The Issue The issue is whether Petitioner's Charge of Discrimination (Complaint) was timely filed, so that his allegations of discrimination can be investigated.
Findings Of Fact Petitioner is a Chinese national and was hired by USF in 1994 as an assistant professor in the Department of Government and International Affairs. USF is a state university. In 2002, Petitioner was promoted to an associate professor at USF. On an undisclosed date, he was given tenure. Petitioner's duties included teaching, research, publication, and service to the community. He also supervised graduate students in the preparation of a thesis for their studies. In 2010, Petitioner was suspended for one year. For violating the terms and conditions of his first suspension, on May 23, 2013, USF issued Petitioner a Notice of Suspension (Notice) informing him that he was suspended a second time, for two years without pay, from June 3, 2013, to August 6, 2015. This meant he had no regular Department, College, or University responsibilities for which he was needed, and he was not expected to be on campus during the suspension. Also, he had no teaching or work assignments during this period of time. Among other things, the Notice advised Petitioner that no employer contributions towards his benefits, including health insurance, would be made by USF during the two-year period. However, the Notice provided Petitioner with the name, email address, and telephone number of a University contact person to coordinate his benefits while he was suspended. During his suspension, Petitioner returned to China a number of times. On May 24, 2013, Petitioner sent an email to Dr. Dwayne Smith, Senior Vice Provost & Dean of the Office of Graduate Studies at USF, acknowledging his receipt of the Notice and calling his suspension a "racially discriminative and vindictive action." He further advised Dr. Smith that he would "make an open response to the whole university" and file a grievance regarding the suspension. On June 21, 2013, Petitioner filed an internal grievance regarding his suspension pursuant to the Collective Bargaining Agreement between USF and United Faculty of Florida (Union). On January 2, 2014, Petitioner filed a Notice of Arbitration with USF's Office of the Provost, indicating his intent to arbitrate the matter. However, the Union subsequently declined to proceed with arbitration, no arbitration was scheduled or conducted, and the grievance was withdrawn. Petitioner agrees that USF did not prevent him from arbitrating the dispute. On May 4, 2015, or a few months before his suspension ended, Petitioner filed his Complaint with the EEOC. The Complaint was later referred to the FCHR and was date-stamped on January 25, 2016. It alleged race and national origin discrimination and retaliation. Whether there is a workshare agreement between the two agencies that allows the EEOC complaint to operate as a dual filing with the FCHR, with the same filing date, is not of record. In any event, for purposes of this Recommended Order, it makes no difference whether the filing date is May 4, 2015, or January 25, 2016. The allegations in the Complaint were investigated by an FCHR investigator. Among other things, she conducted a 90-minute, unrecorded telephonic interview with Petitioner in April 2016 and reviewed his responses to a questionnaire. Although Petitioner contended at hearing that he raised additional allegations during the telephone interview, there is no credible evidence to support this claim. The investigator also spoke with persons at USF and received USF's written reply to the charges. After the review was completed, the FCHR determined the most recent allegation of discipline occurred on May 23, 2013, the Complaint was untimely, and it had no jurisdiction to investigate the charges. Other than the suspension, the Complaint does not identify any other discrete acts of discrimination or retaliation during the 365 days preceding the date of filing the Complaint. The deadline for filing a complaint regarding the suspension expired in May 2014. Petitioner did not seek to amend his Complaint to add new charges before the FCHR began its investigation. At hearing, however, he testified regarding a number of grievances, including a less-than-satisfactory evaluation received for the fall semester 2015; difficulty in arranging premium payments on his health insurance and changing coverage from family to single while he was suspended; unfair student evaluations he received for two courses he taught in the fall of 2015; and his inability to supervise a graduate student's literature review in the fall of 2015. All of these events occurred long after he was suspended, involved different actors and types of conduct, were dissimilar from each other, and should have been raised by timely amending his Complaint or by filing a new complaint with the FCHR. Petitioner offered no proof that he was misled or lulled into inaction by USF or FCHR. Rather, Petitioner explained that he waited to file his Complaint with the EEOC until after the grievance was resolved, and he had not yet retained an attorney to represent him.
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 as untimely filed. DONE AND ENTERED this 21st day of February, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of February, 2017. COPIES FURNISHED: Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed) Richard F. Meyers, Esquire The Meyers Firm, P.A. Post Office Box 16308 Tampa, Florida 33687-6308 (eServed) Craig S. Dawson, Esquire Office of the General Counsel University of South Florida 4202 East Fowler Avenue, CGS301 Tampa, Florida 33620-9951 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Suite 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 1992.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to discrimination in employment for the reasons alleged in the Petition.
Findings Of Fact The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years. Petitioner's Disciplinary Violations Leading to Termination Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation. The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes: A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997. A written reprimand for Excessive Absences and AWOL, dated August 6, 1996. An oral reprimand for excessive absences, dated April 26, 1996. 1996. A written reprimand for AWOL, dated February 29, A written reprimand for AWOL, dated August 14, 1991. A written reprimand for excessive tardiness, dated June 5, 1989. A written reprimand for excessive tardiness, dated February 22, 1989. A written reprimand for excessive tardiness, dated July 8, 1988. A written reprimand for AWOL, dated May 25, 1988. The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function. An oral reprimand for excessive tardiness, dated January 28, 1988. An oral reprimand for misuse of state property and equipment, dated July 11, 1985. A written reprimand for misuse of state property and equipment dated March 21, 1984. A written reprimand for excessive absences, dated February 7, 1984. A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983. A three day suspension for AWOL, dated July 27, 1981. A written reprimand for AWOL, dated July 13, 1981. The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work. The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized. The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay. FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave. The Petitioner's chronic absenteeism did not improve. The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part. An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.] Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used 63 hours of sick leave from February 20, 1998 through August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.] The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation. FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.] The record establishes that the Petitioner was warned 17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards. Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment. Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998. In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement. The Last Chance Agreement required the Petitioner to (1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause. The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence. The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day. In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement. On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999. FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision. Petitioner's Injury The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties. The Petitioner's 1995 Position Description allocates 85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds. The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds. The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling. The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998. Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation. Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively. The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
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 arguments of the parties, it is, therefore,
Findings Of Fact Timothy M. Gray applied for an instructional position with the Pinellas County School Board in May 1984 and accepted an annual contract to teach at Safety Harbor Middle School for the school year starting in the fall of 1984. He taught a course to eighth grade classes called Power and Transportation, which is predominantly a shop course. Gray was certificated to teach industrial arts in 1980. The charges involved in these two cases stem from inappropriate remarks Gray allegedly made to various students in his class or in the school. Gray denies making the improper remarks attributed to him. Specifically, Respondent is alleged to have made inappropriate remarks of a sexual nature to Paul Bartolo and Mark Fulghum while driving them home from a school detention period that caused them to miss their bus. Respondent admits that he gave these 14- and 15- year-old boys a ride home after their detention. He lived in the same direction as the two boys and giving them a ride home was not out of his way. Both of these boys were discipline problems. During the school year Paul served about 15 detentions and was suspended twice. Both were in Respondent's Power and Transportation class and both had been placed on detention by Respondent. During the ride home Paul was in the front seat of Respondent's car and Mark was in the rear seat. Both boys testified that during the ride home an extensive conversation ensued and that Respondent, after answering a question regarding his marital status in the negative, continued with he liked snatch. Respondent admits the conversation and his attempts to reach these boys to improve their attitudes toward school but denies ever using the word "snatch." During discussions with girls on the school bus and at school regarding Respondent and his comments, Paul and Mark told the girls that Respondent said he liked snatch. At this time a lot of rumors were being circulated among the eighth graders in Respondent's classes about the way he looked at them and comments he had made they deemed inappropriate. The prime mover of this group was Dana Shaver, who testified only by deposition in these proceedings. Dana urged Paul and Mark to report Respondent's remarks to the principal. In a deposition (Exhibit 1) Dana testified that Gray had seen her at the beach over the weekend and told her in class Monday that he had seen her at the beach in her bikini and that she did not have much of a tan for a beach girl. This embarrassed Dana and she hung her head and did not hear Respondent say she would look better without it (bikini) on. This was later reported to Dana by an anonymous girlfriend. Respondent admits he saw Dana and another girl at the beach but denies saying anything more to her than she did not have as good a tan as he did. Dana's parents requested she be moved from Respondent's class in Power and Transportation (which she did not like) because of her being "embarrassed" by Respondent. Evidently, no embarrassment was involved discussing use of the word "snatch" with boys in her class. Kera Lampman is a bright 13-year-old who was in Respondent's Power and Transportation class. She testified that Respondent told her she had a nice butt and that she could get straight A's in his class. Respondent denies ever using the word "butt" to Kera but does not deny the remarks about her grades as Kera is a straight-A student. Respondent also testified that he was trying to get Kera moved to a more challenging class when he was suspended. Alissa Lanier, a 14-year-old student at Safety Harbor Middle School, testified that while walking from the bus drop to the entrance door immediately before classes started in the morning she heard someone say, "You've got a nice ass." When she turned around she saw Respondent some 20 feet away. She had never talked to Respondent, was not in his class, and testified Respondent was the only person on the ramp besides her. Respondent not only denies making such a remark but also testified that he frequently has bus ramp duty before school starts and he has never been in the area between the bus stop and school entrance doors shortly before school was due to start when the area was not crowded with students. The testimony that this area would be crowded immediately prior to school starting is deemed more credible. Respondent's denial that he made any comment to any girl he did not even know is more credible than is the testimony that this remark was heard from someone 20 feet distant in the bus ramp area immediately prior to school starting. Shelly Evans, a 14-year-old girl in Respondent's class heard Respondent say he had seen Kera and Dana at the beach and they looked great in their bikinis. During the period when others were reporting Respondent's actions she too reported this comment to the principal. One witness testified that Respondent looked at her in a strange way in class; that it appeared to her that he was staring. Such discussion and remarks including comments about bodies were being circulated among students at Safety Harbor Middle School and was brought to the attention of the principal who interrogated some of the students. The principal was told substantially what was testified to at these proceedings. During the investigation which followed Respondent denied using the words "snatch," "butt," or "ass," while talking to any of the students. Respondent, before coming to Safety Harbor Middle School, had worked in a Y conservation program involving young men. This age group was doubtless older than the 13-15 year olds in the eighth grade class Respondent taught at Safety Harbor Middle School and were less impressionable than eighth grade students. Hearing from one of her teachers that rumors were going around the school regarding Gray's language in the presence of students, Mrs. Raymond, Principal of Safety Harbor Middle School obtained the name of one or more students reported to be aware of such language and called them into her office. After obtaining statements from these students, who appeared as witnesses in these proceedings, Mrs. Raymond confronted Gray, who denied making inappropriate comments. Nevertheless, she recommended his immediate suspension with pay pending the next meeting of the School Board, who was authorized to suspend Gray without pay. Upon her recommendation, Gray was immediately suspended.
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on national origin and disability.
Findings Of Fact Mr. Llevado was born in the Philippines and is a naturalized citizen of the United States. In 1995, Mr. Llevado began working for Sandestin Resort as an equipment operator at the Burnt Pine Golf Course. Mr. Llevado’s duties included mowing greens, raking bunkers, and other tasks related to the maintenance of a golf course. Mr. Llevado was part of a golf maintenance team. The members of the team are cross-trained so that they are able to do all the tasks necessary to maintain the golf course. None of the team members receive extra compensation for doing a particular task. The assignment for each team member is posted at the beginning of the work day, which is 6:00 a.m., on a chalkboard in the break room. The assignment of the tasks is based on the tasks that are needed to be completed and the personnel working each day. Mr. Llevado’s supervisors were Barry Sayers, who was the assistant superintendent of golf maintenance at the Burnt Pine Golf Course, and Jake Leham, who was the director of golf maintenance. Both Mr. Sayers and Mr. Leham considered Mr. Llevado to be a good employee, who could perform all the necessary tasks of an equipment operator. During his employment with Sandestin Resort, Mr. Llevado kept a diary. He noted in his diary that, in April 2001, Mr. Sayers said bad words to him. Mr. Llevado did not specify what the bad words were, but the interpreter at the final hearing interpreted it to mean the words were probably curse words. Mr. Sayers did not recall the incident. No evidence was presented that Mr. Llevado was the only employee to whom Mr. Sayers may have said bad words. On August 22, 2002, Mr. Llevado received an Employment Communication Notice, suspending him for one day without pay. The offense was failing to complete his work as instructed and leaving grass clippings in a bunker. Two times during his employment with Sandestin Resort, Mr. Llevado received an Employment Communication Notice concerning his failure to abide by the company’s policy for requesting leave time. The first occurrence was on September 26, 2003, and the second occurrence was on January 8, 2006. He was suspended two days for the first occurrence, and no disciplinary action was taken for the second occurrence. On October 25, 2006, Mr. Llevado received his annual performance evaluation. He met or exceeded expectations in all categories except following instructions, where it was noted he needed to improve. As a result of his evaluation, Mr. Llevado was given a raise. On October 26, 2006, Mr. Llevado reported to work and found that he was assigned to mow the greens. Two employees failed to come to work, and it was necessary to assign Mr. Llevado the task of mowing greens. Mr. Llevado did not like to mow greens and preferred to rake the bunkers. He requested Mr. Sayers to allow him to rake the bunkers instead of mowing the greens. Mr. Sayers refused and explained the reason why Mr. Llevado was assigned to mow the greens. Mr. Llevado refused to mow the greens. It was 7:00 a.m., and Mr. Sayers had to leave the maintenance building to begin the work of the day. He left Mr. Lehman to deal with Mr. Llevado. Mr. Lehman discussed the mowing of the greens with Mr. Llevado, who requested to be paid more than his hourly wages if he had to mow the greens. Mr. Lehman refused to pay him additional money, and Mr. Llevado accused Mr. Lehman of discriminating against him. When Mr. Llevado accused Mr. Lehman of discriminating against him, Mr. Lehman told Mr. Llevado that he would need to speak to personnel in the human resources department. The human resources department did not begin work until 8:30 a.m. Mr. Lehman indicated that he would arrange a meeting with Sylvia Hanks, the director of human resources. Mr. Lehman told Mr. Llevado to clock out and go home until the meeting could be arranged. Mr. Lehman told Mr. Llevado that he would be compensated for the lost time, if Mr. Lehman erroneously told Mr. Llevado to go home. Mr. Llevado called his sister to come and get him. Mr. Lehman instructed Mr. Llevado to wait in the break room for his ride home from work. Mr. Llevado returned to the break room to wait. While Mr. Llevado was in the break room, he was struck on his head. Terry Clemons, who is the administrative assistant to Mr. Lehman, got to work around 7:00 a.m. on October 26, 2006. When she came in the building, she saw Mr. Llevado sitting in the break room. Approximately 15 minutes later, Mr. Llevado came to her with a bleeding head and said that he had been hit and someone was behind the door. Mr. Llevado had called Sandestin Resort’s security office and reported the incident. Mr. Llevado claims that he saw three men in uniforms running away from the building after he had been hit. Personnel from security were unable to locate anyone described by Mr. Llevado as running from the building. The door to the break room was a swinging door, and it is possible that Mr. Llevado pushed the door, hitting someone behind the door, and causing the door to swing back and hit him in the head. The incident was reported to the Walton County Sheriff’s Office. Mr. Llevado told the investigating officer that he was attempting to exit the building through the swinging door, and someone was on the other side of the door, and he was hit in the head. Mr. Llevado claimed that he passed out as soon as he was hit. If Mr. Llevado passed out as soon as he was hit, it is difficult to reconcile his claim that he saw three uniformed men running away from the building. The greater weight of the evidence does not establish that Mr. Llevado was attacked by employees of Sandestin Resort. It is undisputed that Mr. Llevado did sustain an injury in the break room of the Sandestin Resort on October 26, 2006. Mr. Llevado was treated at the emergency room for his injuries. Mr. Llevado came back to work the day after his injury but left by midday, complaining that his head hurt. Within a day or two of the incident, Mr. Llevado, his sister, Mr. Lehman, and Mr. Sayers met with Ms. Hanks to discuss the situation. At the meeting, Mr. Llevado indicated that he thought that Mr. Lehman had fired him on October 26, 2006. Mr. Llevado was assured that Mr. Lehman had no authority to fire him and that he was not fired. Mr. Llevado did not return to work after October 27, 2006. He requested and received workers’ compensation benefits related to his injury. By letter dated March 22, 2007, the human resources office for Sandestin Resort advised Mr. Llevado that Mr. Llevado’s physician had released Mr. Llevado to return to work and that Sandestin Resort had a job available for him. Mr. Llevado was told to report to work on March 28, 2007. By letter dated March 26, 2007, Mr. Llevado advised Sandestin Resort that he was aware that his physician had released him to return to work, but that he was still experiencing headaches and dizziness. Mr. Llevado also advised that he was seeking further medical treatment. By June 12, 2007, Mr. Llevado had not returned to work at Sandestin Resort. By letter dated June 12, 2007, Sandestin Resort advised Mr. Llevado that he had been on leave of absence since November 28, 2006, and that he had exceeded Sandestin Resort’s leave policy. Mr. Llevado was advised that if he was able to return to work that he would need to submit a full release from his medical provider. Mr. Llevado was also advised that if he did not return to work by June 18, 2007, that his employment would be terminated. Mr. Llevado never submitted a medical release and never returned to work. Sandestin Resort’s Employee Handbook provides that an eligible employee may take up 12 weeks of unpaid medical leave during any “rolling” 12-month period. The handbook further provides that an employee who exceeds the 12-week medical leave may be subject to termination of employment. Mr. Llevado claims that on December 19, 2005, Mr. Sayers told him that he was an illegal alien and that he should go back to the Philippines. Mr. Sayers denied ever telling Mr. Llevado that he should go back to the Philippines. The greater weight of the evidence does not establish that Mr. Lehman made the statement. Both Mr. Sayers and Mr. Lehman have participated in discrimination prevention training. Sandestin Resort employs many persons who have foreign nationalities. Mr. Sayers has personally worked with many people with varying nationalities. Sandestin Resort gives each of its employees an Employee Handbook, which describes the procedure an employee can follow to report a claim of discrimination. If an employee feels that he or she has been discriminated against, the employee is to bring it to the attention of the employee’s supervisor. If the supervisor is the subject of the claim of discrimination, the employee may contact either the manager of the human resources department or the vice president for human resources. Mr. Llevado received the handbook. His personnel file does not indicate that he made any claim of discrimination to his supervisor or the human resources officer prior to October 26, 2006. Part of Mr. Llevado’s claim of discrimination is based on an alleged disability. However, Mr. Llevado failed to establish that he had a disability or that Sandestin Resort perceived him to have a disability. Prior to his injury on October 26, 2006, Mr. Llevado performed his work in a satisfactory manner. He never asked Sandestin Resort for any type of accommodation for his alleged disability. Mr. Llevado contends that he is unable to work because of the injury he sustained on October 26, 2006, and that he has not sought work since the incident. However, Mr. Llevado did not present any medical evidence to establish that he is disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Sandestin Golf and Beach Resort did not discriminate against Mr. Felixberto A. Llevado based on national origin or disability and dismissing the Petition for Relief. DONE AND ENTERED this 14th day of January, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 14th day of January, 2009.
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times material to this proceeding, Petitioner, an African-American female, was employed as a nurse at Bayside Manor ("Bayside"), a long-term nursing facility owned and operated by Respondent. Petitioner began her employment with Respondent in or around 2004, which continued until she resigned from her position on December 5, 2013. Petitioner's Complaint, which she filed shortly thereafter, raises two discrete claims. First, Petitioner asserts that, because of her race, Respondent treated her disparately by issuing her a written reprimand without cause. Petitioner further contends that she was constructively discharged from her position due to the existence of an intolerable, racially-charged working environment. Beginning with the first issue, it is undisputed that, on December 5, 2013, a member of Bayside's administration cited Petitioner for "failure to follow policies," and that the genesis of the reprimand was Petitioner's act of maintaining possession of a drug-cart key while taking a lunch break. The parties are in sharp disagreement, though, as to whether Respondent's policies required staff members to surrender drug- cart keys while eating lunch on site. On this point, the credible evidence demonstrates that, on the date of the purported infraction, Petitioner was required to turn in her drug-cart key during lunchtime only if she left the worksite. As it is evident that Petitioner remained at Bayside during her lunch break on the date in question, the undersigned is persuaded that the December 5, 2014, reprimand should not have been issued. This does not end the inquiry, however, as Petitioner must also demonstrate, in order to prove her claim of disparate treatment, that the reprimand constituted an adverse employment action and that it was issued on account of her race. Here, Petitioner's claim fails on the first prong (making it unnecessary to address the second), for the record is devoid of evidence that the December 5 reprimand led to a materially adverse consequence such as lowered pay, demotion, suspension, loss of benefits, or the like.1/ As for the claim of constructive discharge, the evidence adduced at final hearing focused almost exclusively on the conduct of Heidi Duncan, who served as Bayside's director of nursing during Petitioner's term of employment. In particular, Petitioner testified: that Ms. Duncan frequently spoke to her in a demeaning fashion; that, on one occasion, Ms. Duncan harshly——and erroneously——scolded her for leaving work unfinished at the end of a shift; that Ms. Duncan reassigned her to a different floor of the facility (by all appearances, a change that did not affect the terms of Petitioner's employment); that, on one particular day, Ms. Duncan brusquely instructed her to do as she was told, at which point Petitioner broke into tears; that Ms. Duncan forbade her (Petitioner's) husband from visiting Bayside because of his "black man's swagger"; that, on the lone occasion when she attempted to complain about Ms. Duncan to a member of Bayside's management, her concerns were brushed aside; and that Ms. Duncan attempted to stir up marital discord between Regine Smith——Petitioner's direct supervisor, who, in turn, reported to Ms. Duncan——and Ms. Smith's husband by telephoning Mr. Smith and informing him that Ms. Smith was nowhere to be found at the worksite.2/ According to Petitioner, the straw that broke the camel's back was Respondent's erroneous issuance of the December 5 reprimand. Assuming for argument's sake that Petitioner's recounting of the foregoing incidents was credible and, moreover, that each event was the product of racial animus, the evidence fails to satisfy the high threshold applicable to constructive discharge actions——namely, that the working conditions were so intolerable that a reasonable person would be forced into involuntary resignation. To be sure, the comment regarding Petitioner's husband was despicable and outrageous, and the undersigned has no doubt that Ms. Duncan's abrasive management style added unnecessary anxiety to an already stressful line of work. Nevertheless, as discussed below, it has not been shown that a reasonable person in Petitioner's shoes would have felt forced to quit, particularly since the credible evidence discloses only one attempt by Petitioner (on an unspecified date) to address her concerns with a member of Bayside's management. Accordingly, Petitioner's constructive discharge claim fails.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 18th day of December, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 18th day of December, 2014.
Findings Of Fact Alfred Perry is a fifteen year old child under commitment to the Department of Health and Rehabilitative Services (HRS) who on July 16, 1980, was granted the privilege of transferring to an Intensive Counseling Program under the direct supervision of the Bureau of Group Services, Division of Youth Services. While participating in that program, Respondent was permitted to remain in the custody of his father at Fort Pierce, Florida. The transfer was the subject of a furlough agreement entered into by Perry and HRS on the same date. Under the terms of the furlough agreement, Perry was required to comply with fourteen conditions of supervision as a prerequisite to remaining in the treatment program and on furlough (Exhibit No. 1). In the event a condition was violated, Respondent was subject to being transferred to another program or facility of the Division of Youth Services (Exhibit No. 1). Because of certain alleged violations of Perry's Supervision Agreement (Exhibit No. 3), an informal transfer hearing was held on August 27, 1980, in Fort Pierce, Florida, before a Youth Services Program Specialist. By Order dated September 2, 1980, the Specialist recommended that Perry's furlough be revoked for violating Conditions (1), (4) and (11) of his Supervision Agreement, and that he be transferred to another program/facility. Since that time, Perry has been assigned to the Training School at Okeechobee, Florida. Condition No. 1 of the Agreement requires that Respondent "promptly and truthfully answer all questions directed to (him) by the counselor." On or about August 4, 1980, Respondent telephoned his counselor and advised her he had been injured when falling off a motorcycle and would therefore be unable to attend a required group session. While conceding he also watched a basketball game in a playground adjacent to his home after the injury occurred, he nevertheless maintained the injury prevented his participation in the group session on that date. Condition No. 4 requires that Respondent "not change or leave residence." This condition prohibits Respondent from spending the night at another person's house without having obtained permission from his counselor. The counselor was advised by Respondent's father that Perry spent the nights of July 18, August 18 and 19, 1980, at his sister's house. Respondent confirmed he spent several nights at his sister's home during the period in question. Although prior permission to stay overnight was required from the counselor, Respondent failed to obtain such permission on each occasion. Condition No. 11 provides that Respondent observe an 8:00 p.m. curfew on weekday nights and a 9:00 p.m. curfew on Fridays and Saturdays. Respondent acknowledged he was not inside his father's house at the required time on the evening of July 30, 1980.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the furlough agreement of Alfred Perry be revoked and the action of Petitioner on September 2, 1980, be sustained. DONE and ENTERED this 16th day of January, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1981. COPIES FURNISHED: K. C. Collette, Esquire District 9 Legal Counsel Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Mr. Alfred Perry Florida School for Boys Route 2, Box 250 Okeechobee, Florida 33472 Shirley M. Steele, Esquire Assistant Public Defender 111 Atlantic Avenue Fort Pierce, Florida 33450
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 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 16th day of February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment action in violation of Section 760.10(1), Florida Statutes, by failing to hire Petitioner based on his race, sex and age.
Findings Of Fact Petitioner is a white male who was born on August 13, 1928. He was 73 years old, and retired from state employment, when he applied for the employment positions at issue here. Petitioner majored in sociology/psychology, earning a Batchelor of Arts degree from San Jose State University, San Jose, California, in 1954. He completed post-graduate work in English and education, earning a master of science degree at Purdue University, Lafayette, Indiana, in 1980. Petitioner became a paralegal after earning an associate of science degree at Tallahassee Community College, Tallahassee, Florida, in 1995. Petitioner received teaching certificates in California in 1960 and in Florida in 2001. He has over 22 years of teaching and administrative experience. He was qualified to work as a behavioral specialist in a skills program. Petitioner's recent job history includes, but is not limited to, the following: (a) from February 27, 2001 to August 17, 2001 (approximately six months), contract administrator for the Florida Department of Juvenile Justice; (b) from August 15, 2000 to December 27, 2000 (approximately four months), counselor for inmates in drug treatment program at Jefferson County Correctional Institution; (c) from December 4, 1994 to June 30, 2000 (approximately five and one-half years), coordinated offender placement program for Florida Department of Labor and Employment Security; and (d) from March 11, 1992 to September 18, 1992 (approximately six months), drug counselor for Liberty County Correctional Institution. Petitioner's prior work experience also includes, but is not limited to, the following: (a) 1990/91 school year as a teacher at the Dozier School for Boys in Mariana, Florida; (b) 1990/91 school year as residence hall manager for Chipola Junior College; (c) five months in 1988 as coordinator of a drug program for the Florida Department of Education; (d) 1985/86 school year as instructor of military personnel in Korea and Japan for Central Texas College; (e) one year and three months in 1984/85 as a program coordinator for Florida Department of Transportation; (f) from 1975 to 1989, as a contractor on state and national governmental projects; (g) six months (1980/1981) as assistant safety director for George Washington University; (h) from 1968 to 1976 as teacher in California secondary schools; (i) from 1965 to 1968 as teaching supervisor for Job Corps program in California; (j) 1964/65 school year as instructor for University of Nevada; and (k) 1961 to 1964 as teacher/principal in a California elementary school. Respondent has a written procedure for processing job applications. One purpose of the procedure is to maintain a pool of qualified applicants for each position. Another purpose is to assure each applicant or employee an equal employment opportunity without regard to a person's age, race, color, sex, religious creed, national origin, handicap, military or marital status. Respondent's Human Resources Department is responsible for receiving and taking the initial steps in processing employment applications. As applications are processed, they are checked for completeness and evidence of minimum qualifications for the position or positions for which the applicant is applying. First, essential information about each applicant is typed into the corresponding computerized position requisition file. The input data includes the following: (a) applicant name; (b) applicant sex and race; (c) applicant veteran status; (d) how applicant learned of position; (e) date of application; (f) applicant current employment status; and (g) applicant met minimum qualifications. Respondent's Human Resources Department then prints a computerized applicant referral form, which does not contain any reference to the applicant's age or birth date. Next, Respondent's Human Resources Department copies the applications except for certain sections. One section that is not copied is the EEO Survey, which contains a statement directing applicants who believe they have been discriminated against to file a complaint with FCHR. The EEO Survey also requests information about the applicant's sex, birth date, and race. It is not mandatory for applicants to provide Respondent with the information requested in the EEO Survey. Respondent's Human Resources Department sends the original applicant referral form and a copy of the application to the hiring supervisor. The materials reviewed by the hiring supervisor do not include the EEO Survey or refer to the applicant's age or birth date. Finally, the original application in its entirety is filed alphabetically by name of applicant in the application file. The application file is purged twice a year, eliminating any applications that are one year old. An employment position is open or available on the date that the hiring supervisor fills out a position requisition form. The employment position remains open until someone is hired to fill the position. On or about January 28, 2002, Respondent's Director of Clinical Skills, Alicia Conger, Ph.D., completed a position requisition form for position #2055. The position related to a behavioral specialist in a skills program at Stewart Street Elementary School in Quincy, Florida. On or about February 22, 2002, Respondent's behavioral analyst and clinical supervisor at Pace School, Ginger Stodard, completed a position requisition form for position #2129 for a behavioral specialist in a skills program at Pace School in Tallahassee, Florida. The position requisition form indicated that the position would not be available until March 1, 2002. Dr. Conger subsequently reviewed the applications sent to her by Respondent's Human Resources Department for position #2055. The applications included one submitted by Adrian Mills. On February 26, 2002, Dr. Conger completed a personnel action form, recommending that Respondent hire Ms. Mills to fill position #2055 for $11.50 per hour. Respondent's Chief Administrative Officer accepted this recommendation on February 28, 2002. Ms. Mills was hired effective March 4, 2002. In the meantime, Petitioner became aware of Respondent's February 27, 2002, advertisement for position nos. 2055 and 2129. Petitioner was not aware that position #2055 was closed on February 28, 2002, before he submitted his employment application. Petitioner filed an employment application with Respondent on March 4, 2002, while position #2129 was still available. His application referenced five employment positions in which he was interested. Petitioner was especially interested in working as a behavioral specialist in position #2055 or #2129. The application clearly states that Petitioner's minimum acceptable salary was $12.10 per hour. Respondent's Human Resource Department processed Petitioner's application pursuant to Respondent's written procedure. His application, among others, was sent to Ms. Stodard for consideration of Petitioner as a candidate for position #2129. Ms. Stodard reviewed the applications for position #2129 as she received them. However, she did not interview any applicants because, about the time the position became vacant, Respondent placed a hold on the hiring procedure for position #2129. Respondent funds behavioral specialists positions using Medicaid dollars. Respondent must have six Medicaid eligible students for every behavioral specialist position. Pace School's student population is very transient. After Respondent advertised position #2129 in February 2002, Pace School lost three Medicaid eligible students to a program operated by the Florida Department of Juvenile Justice. Another student lost his Medicaid eligibility when he became 18 years old. Consequently, the Pace School did not have a sufficient number of Medicaid eligible students to support the hiring of another behavioral specialist when position #2129 became vacant on March 1, 2002. The training that Respondent provides to persons hired as behavioral specialists is very intensive. Typically, it takes from six months to one year before a person is proficient in that position. Accordingly, Ms. Stodard always considers an applicant's work history, focusing on the length of time spent in prior jobs. Ms. Stodard reviewed Petitioner's application when she received it even though she was not interviewing applicants at that time. She noted that he had stayed in his last two jobs for only six months and four months respectively. She was not impressed with Petitioner's work experience because she wanted to hire a person with better staying potential. People hired as behavioral specialist stay in that position for about two years on average. Some employees remain in that position for a much longer period of time. On or about June 17, 2002, Ashley Doyle submitted an application for employment as a behavioral specialist in position #2129. The application indicated that Ms. Doyle could begin working on July 10, 2002. In April 2002, Ms. Doyle earned a bachelor of science degree in Family and Child Sciences/Counseling from Florida State University, in Tallahassee, Florida. Ms. Doyle's work experience included the following: (a) from January 7, 2002 to April 9, 2002, intern guidance counselor at an elementary school; (b) from August 2001 to December 2001, after-school teacher at a private preparatory school; and (c) from July 2000 to June 2001, psychometrist for Psychology Associates of Tallahassee, Florida. Ms. Doyle was qualified to work as a behavioral specialist in a skill program. Petitioner testified that Ms. Doyle was a female in her twenties. There is no evidence to the contrary. By the time Respondent took position #2129 off hold, Ms. Stodard had received a stack of applications. Ms. Stodard decided who she would interview by reviewing the stack of applications that she had received in the last month. After finding candidates to interview, Ms. Stodard did not reconsider Petitioner's application or any of the earlier filed applications. On June 20, 2002, Ms. Stodard recommended that Respondent hire Ms. Doyle for position #2129. Dr. Conger accepted Ms. Stodard's recommendation and completed the paperwork on June 26, 2002. Respondent's Chief Administrative Officer subsequently approved Dr. Conger's decision to hire Ms. Doyle effective July 12, 2002. Position #2129 was closed in Respondent's records on June 28, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S 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 1st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 D. Paul Sondel 2135 Victory Garden Lane Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the claim of employment discrimination contained in the Petition for Relief must be dismissed due to Petitioner's execution of a release of all claims.
Findings Of Fact On June 29, 2012, Petitioner's employment with Respondent was terminated. On July 24, 2012, Petitioner filed a Charge of Discrimination alleging that he was subjected to discrimination. On August 18, 2012, Petitioner signed an agreement. Under the agreement, Respondent agreed to pay Petitioner $5,000.00, net several items, provided Petitioner did not exercise his right to revoke the agreement within the seven days following execution, as provided in the agreement. Petitioner did not revoke the agreement, and Respondent discharged all obligations under the agreement. In exchange, Petitioner agreed to release Respondent from all claims, damages, suits, complaints, damages, losses and expenses, of every nature, legal or equitable, whether known or unknown, which Olascoaga ever had, now has, or may claim to have, upon or by reason of the occurrence of any matter, cause or thing whatsoever . . . . This release specifically includes, but is not limited to, a release of any and all claims under the Florida Civil Rights Act . . . . There is no contention that Petitioner was not acting knowingly or voluntarily when he executed a release of claims.
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 Carlos Olascoaga's Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 11th day of April, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 11th day of April 2014.
