The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
The Issue The issue in the case is whether Marcella Taggart (Petitioner) was the subject of unlawful discrimination by Publix Super Markets, Inc. (Respondent), in violation of chapter 760, Florida Statutes.
Findings Of Fact Beginning in June 2007, and at all times material to this case, the Petitioner was employed as a systems analyst in the Respondent’s Information Technology (IT) department. The Respondent is a Florida corporation that operates a chain of grocery stores. The Respondent’s IT department is a high-security unit. A systems analyst working in the IT department has access to the Respondent’s financial and product pricing systems. Such an employee would also have access to some confidential human resources department data, including names, addresses, social security numbers, and banking information of the Respondent’s other employees. At the hearing, the Petitioner testified that some co- workers harassed her by repeatedly asking questions about her hair when she wore it in a braided hairstyle. The Respondent has adopted an explicit policy prohibiting all forms of harassment. In relevant part, the policy states as follows: The very nature of harassment makes it virtually impossible to detect unless the person being harassed registers his or her discontent with the appropriate company representative. Consequently, in order for the company to deal with the problem, offensive conduct or situations must be reported. The policy identifies a specific formal process by which an employee who feels harassed may lodge a complaint about such behavior. The Petitioner did not file a formal complaint about the alleged harassment related to her hairstyle. The evidence fails to establish that the Petitioner informally complained to the Respondent about such alleged harassment prior to her termination from employment. In April 2009, the Petitioner participated in a work- related meeting, during which the Petitioner perceived that she was treated by another female employee in a demeaning manner. The Petitioner reported the other employee’s behavior in an email to supervisor Terry Walden. The other employee wrote a similar email complaining about the Petitioner’s behavior at the meeting, and, according to the Petitioner’s email, the Petitioner was aware of the other employee’s report. Although the Petitioner now asserts that she complained that the incident was discriminatory, the Petitioner’s email, which was written at the time of the incident, does not state or imply that the incident was related to some type of discriminatory conduct by the other employee, or that the altercation was related to anything other than assigned work responsibilities. In May 2014, the Petitioner and a white male co-worker engaged in an office confrontation about assigned work responsibilities. Both the Respondent and the other employee separately reported the incident to supervisors. The Respondent investigated the incident and interviewed other employees who observed, but were not involved in, the confrontation. As a result of the incident, the Petitioner received a written memo of counseling on June 16, 2014, from supervisor Greta Opela for “poor interpersonal skills.” The memo reported that the Petitioner “consistently performed well in her position from a technical standpoint” but that she “has had ongoing associate relations issues.” The memo stated that the Petitioner was unable to work appropriately with other employees and that “many associates have requested not to work with her because of their previous interactions with her.” The memo noted that the Petitioner’s behavior towards her co-workers had been referenced in previous performance evaluations, as well as in direct discussions between the Petitioner and her immediate managers. In relevant part, the memo further stated as follows: Of concern, when coached or provided constructive criticism, Marcella is very unreceptive and often becomes defensive and deflects blame to others. Given Marcella has had interpersonal conflicts with numerous individuals, Marcella needs to recognize her role in these conflicts, take ownership for her actions, and work to correct her behavior. * * * Marcella must treat her fellow associates with dignity and respect. Also Marcella must take ownership for her actions and work to improve upon her relationships with her peers. Should Marcella fail to improve upon her interpersonal skills, she will be issued additional counseling, removed from her position, or separated from Publix. The Petitioner’s written acknowledgement of her receipt of the memo indicated that she disagreed with the assessment. The Petitioner asserts that the Respondent committed an act of discrimination against her because the Respondent did not issue a similar memo to the other employee. The evidence fails to support the assertion. The evidence fails to establish that the Respondent had any reason to issue a similar memorandum to the other employee, or that the other employee had a documented history of exhibiting “poor interpersonal skills” that could warrant counseling. There is no evidence that the June 2014 memo was related in any manner to the Petitioner’s race, color, sex, age, or was retaliatory. Although the memo was placed in the Petitioner’s personnel file, the Respondent took no adverse employment action against the Petitioner as a result of the memo or the underlying incident. On June 23, 2014, the Petitioner’s house, which she owned with her husband, was partially destroyed in a fire. The Petitioner had been called to the scene after the fire commenced, and was present as the structure burned. The fire and subsequent events resulted in an investigation by the State Fire Marshall’s Office. On April 1, 2015, the Petitioner informed supervisor Opela that the Petitioner had to go to the Hillsborough County Sheriff’s Office (HCSO) and was unsure whether she would return to work on that day. Thereafter, the Petitioner left the workplace and traveled to the HCSO where she presented herself for arrest on a felony charge of making a “false and fraudulent insurance claim.” After the Petitioner left her place of employment, Ms. Opela accessed an internet resource and learned of the pending charge against the Petitioner. Ms. Opela reported the information to her own supervisor, Ms. Walden, and to Susan Brose, a manager in the Respondent’s human resources department. Ms. Brose reviewed the available internet information, and then arranged with the Petitioner to meet upon her return to the workplace. At the hearing, Ms. Brose testified that the Respondent requires complete honesty from its employees, and that, according to the Respondent’s policies, dishonest of any kind is unacceptable and can result in termination from employment. Ms. Brose testified that she restates the requirement at the commencement of every personnel disciplinary meeting, and did so at the beginning of her meeting with the Petitioner, after which she asked the Petitioner to explain the situation. The Petitioner responded by stating that there had been a fire at the house, that there had been no insurance on the house, that her husband had filed a claim, and that she had asked the insurance carrier not to pursue the claim. The Petitioner denied to Ms. Brose that she had been arrested at the HCSO. Ms. Brose also spoke with William Harrison, a detective with the Florida Department of Financial Services, Division of Insurance Fraud. Mr. Harrison prepared and executed the Summary of Offense and Probable Cause Statement (Probable Cause Statement), dated December 4, 2014, which formed the basis for the Petitioner’s arrest on April 1, 2015. According to the Probable Cause Statement: the Petitioner was aware at the time of the fire that the homeowner’s insurance on the house had lapsed for non-payment of the premium; the Petitioner was present at the scene of the fire and became aware that the policy could be reinstated during the “grace period” by payment of the premium due, as long as the house had suffered no damage during the uninsured period; the Petitioner was warned at the scene of the fire by an employee of the State Fire Marshall’s office that the reinstatement of the lapsed policy without disclosing the damage could constitute insurance fraud; and the Petitioner was overheard on the phone at the scene of the fire having the lapsed policy reinstated. Ms. Brose became aware that, when having the lapsed insurance policy reinstated, the Petitioner executed a “Statement of No Loss” form that provided in relevant part as follows: I CERTIFY THAT THERE HAVE BEEN NO LOSSES, ACCIDENTS OR CIRCUMSTANCES THAT MIGHT GIVE RISE TO A CLAIM UNDER THE INSURANCE POLICY WHOSE NUMBER IS SHOWN ABOVE. After completing her review of the circumstances, Ms. Brose concluded that the Petitioner had been dishonest during their meeting. Ms. Brose recommended to Ms. Walden that the Petitioner’s employment be terminated because the Petitioner worked in a high-security unit of the IT department where she had access to confidential financial information and systems, the Petitioner had been arrested for fraud, and the Petitioner was not honest when asked to explain the circumstances. On April 13, 2015, Ms. Walden terminated the Petitioner’s employment as a systems analyst for the reasons identified by Ms. Brose. The Petitioner presented no evidence that the Respondent’s termination of her employment was related to the Petitioner’s race, color, sex, age, or in retaliation for any complaint of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 24th day of May, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 2016.
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida. The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida. The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of $160 per week. Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg. Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired. When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen. When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary. Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written. Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant. Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open. Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview. Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant. Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments. Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner. Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office. Petitioner had no supervisory responsibilities in her position at The Democrat. During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment. Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed. Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice. Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter. Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter. Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions. Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful. Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred. Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made. Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other. Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him. Steinberg, as a supervisor, was demanding but fair. Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970. Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness. Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late. Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel. There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done. Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority. Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted. Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file. The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination. It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise. The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her. In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer. Petitioner was not overworked in comparison with other employees. Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area. Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat. Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner. Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters. Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979. Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to 7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change. The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m. There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors. Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m. The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg. Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately. Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped. On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable. Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979. Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot. The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents. Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg. Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way. In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card. Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls. When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period. Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant. Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment. There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons. The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily. Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment. Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor. On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved. The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention. The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination. The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg. Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice. RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1981. COPIES FURNISHED: Edward S. Jaffry, Esquire S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne & Carrouth Post Office Box 1140 Tallahassee, Florida 32302 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Dana Baird, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, 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 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Has Petitioner been the subject of an unlawful employment practice because of his race, American Indian, and if so, what relief is appropriate?
Findings Of Fact Upon consideration of the oral evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, Respondent operated a citrus processing facility in Bartow, Florida, and employed in excess 15 employees. Petitioner is a full-blooded American Indian who resides in Lakeland, Polk County, Florida. Bobby Branch, Respondent’s Maintenance Supervisor, hired Petitioner as a Maintenance Mechanic. Petitioner commenced employment with Respondent on August 18, 1997. Petitioner was employed at an hourly rate of $10.50. Petitioner was assigned by Bobby Branch to work under the direct supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner had 37 plus years' experience as a mechanic and 15 years' experience with the citrus industry as a mechanic. Petitioner understood at the time he was hired that he would be on probation for a period of 90 days. Shortly after Petitioner began work, Garry Guard told Petitioner “I don’t want to work with an Indian” and “I’m prejudiced and I don’t give a damn who knows it” or words to that effect. Additionally, Guard let it be known that he would prefer working with a Mexican. Approximately one week after this incident, Petitioner complained to Bobby Branch, Maintenance Supervisor, about Guard’s comment to Petitioner. This is supported by the testimony of Charles Palmer, a former employee of Respondent, that he was aware that Petitioner reported Guard's comment to Bobby Branch. There was no remedial action taken by either Branch or any other management personnel concerning Guard’s comment to Petitioner. Subsequently, Petitioner noticed his work being undone and Guard complaining that Petitioner’s work was not done or that his work was done improperly. Petitioner and William Waples, a former employee of Respondent, worked together on one of those projects, rebuilding and installing a pump. Waples considered Petitioner a good mechanic. Later, after Waples and Petitioner were finished with the pump, Guard was observed taking the pump apart. Subsequently, Guard complained that Petitioner failed to install a specific part in the pump. Waples specifically recalls that particular part being installed by himself and Petitioner. Subsequent to that event, Guard, when questioned by another worker about the pump and the problem with it, was over heard by Waples saying words to the effect that the “Damn Indian did it.” On October 22, 1997, Petitioner filed a complaint with Branch that Guard was purposefully sabotaging his work because of his race. Again, there was no remedial action taken by Branch or any other management personnel. Branch neither personally observed deficient work performance by Petitioner nor personally communicated to Petitioner the need for Petitioner to improve his performance if he were to successfully complete his probationary period with Respondent, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was never reprimanded or counseled prior to being terminated. Petitioner was not terminated because of his deficient work performance during his probationary period, but was terminated because of his complaints to Bobby Branch of being discriminated against due to his race, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was terminated by Respondent on November 14, 1997. Petitioner claims lost wages at an hourly rate of $10.50 for 40 hours per week for the period from November 15, 1997 to April 24, 1998. There does not appear to be any evidence of a set-off against the claim for lost wages. Although Petitioner was represented by an attorney, there was no evidence presented as to the amount of Petitioner's attorney's fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition for Relief be granted, and as further relief, award Petitioner back wages for the period of November 15, 1997 until April 24, 1998, based on a 40 hour week at an hourly rate of $10.50, and upon motion to the Commission, award reasonable attorney's, in accordance with Section 760.11(7), Florida Statutes. DONE AND ENTERED this 20th day of August, 2001, 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001. COPIES FURNISHED: Merette L. Oweis, Esquire DiCeasure, Davidson & Barker, P.A. Post Office Box 7160 Lakeland, Florida 33897 David J. Stefany, Esquire Allen, Norton & Blue, P.A. South Hyde Park Avenue Suite 350 Tampa, Florida 33606 Dana A. Baird, General Counsel Florida Commission on Human Relations John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Rd, Bldg. F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue for determination in this proceeding is whether the denial of an application for employment constitutes unlawful discrimination against Petitioner.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is 1800 Forest Hill Boulevard, West Palm Beach, Florida, 33406. Respondent employs approximately 167 employees. A substantial number of Respondent's employees are certified nursing assistants ("CNA"). Petitioner was denied employment as a CNA by Respondent on July 18, 1991. Petitioner was not denied employment due to his disability of alcohol addiction. Petitioner received an average rating on 11 of 12 interview categories. Petitioner received a below average rating on his personality evaluation. He displayed loud and inappropriate behavior during the interview. He gave his "business card" to two female employees and asked them to call him. A background investigation indicated that Petitioner had been arrested for driving while intoxicated and had a bad credit history. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's application for employment. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's application for employment was based upon Petitioner's failure to satisfy Respondent of Petitioner's competence to satisfy his job requirements.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603 250 Australian Avenue South West Palm Beach, Florida 33401 Margaret A. Jones, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Richard Denton 729 N. Ridge Road, Apt. 6 Lantana, Florida 33461
