Findings Of Fact Petitioner Linda Mae Krueger, a white female, became a manager at One Stop Oil's Riverview, Florida, store on April 1, 1986. Petitioner's first immediate supervisor was Mr. Tom McBeth, area supervisor for six stores. Mr. McBeth was replaced by Mr. John Richardson on January 26, 1987. Upon becoming area supervisor, Mr. Richardson implemented certain changes in the manner in which all store managers under his supervision were to perform their duties. Petitioner disagreed with Mr. Richardson's changes and failed to follow some of Mr. Richardson's instructions regarding these changes. Petitioner developed a great deal of hostility towards Mr. Richardson and refused to accept the fact that the changes in operation were within Mr. Richardson's managerial capacity. The basis of Petitioner's claim of discrimination was Mr. Richardson's attempt to implement operational changes which Petitioner disagreed with and which were clearly not sexually discriminatory in nature. At the hearing, Ms. Krueger testified that she felt like she was treated unfairly by Mr. Richardson, but admitted that Mr. Richardson placed the same requirements on all other store managers. Petitioner, in June of 1988, told Mr. Richardson that she was considering leaving employment during the beginning of July. Petitioner marked on her store's calendar that she was leaving employment on July 2, 1988. Petitioner, on August 12, 1988, again gave verbal notice to One Stop Oil that she was separating employment with the company on August 27, 1988. At the time the Petitioner gave One Stop Oil this verbal notice of separation, Petitioner was planning to move with her family to North Carolina. On August 17, 1988, Petitioner quit her position as store manager at One Stop Oil's Riverview store. She quit because of a pay dispute over the amount of her bonus check. Petitioner and her husband expected a larger check. When Petitioner's husband saw the actual amount of the check he called the Jacksonville office of Respondent and told them he was closing the store and they had "better get somebody down there." Petitioner and her husband then left the store. Respondent sent Mr. Richardson to the store. He called in Cheryl Chipman and began accounting for the store receipts. He discovered that $1,700 in deposits was missing. Petitioner had given the deposit money to her husband on the day the check dispute arose. Petitioner's husband could not adequately account for the missing money. 1/ Respondent obtained Petitioner's store keys from her without any discussion. The keys were voluntarily turned over by Petitioner. Petitioner never reported for work afterwards. Petitioner's position was filled by Ms. Cheryl Chipman, a white female.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the petition against Respondent be dismissed. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 17th day of January, 1989. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1989.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner.
Findings Of Fact Petitioner is an African-American female who was employed by Respondent from October 16, 2000, until her termination on January 4, 2011. When she began her employment with Respondent, she was hired as a Food Service Specialist. Respondent, MRMC-Munroe Regional Health Systems, Inc. (Munroe or Respondent), is an employer within the meaning of the Florida Civil Rights Act. Munroe is a not-for-profit hospital located in Ocala, Florida, and comprises numerous departments, including the Nutritional Services Department. Petitioner worked for this department the entirety of her employment with Respondent. On or about October 23, 2000, Petitioner received a copy of Munroe's Employee handbook. The Employee Handbook includes an Equal Opportunity policy, an anti-harassment policy, a complaint procedure, and an open door policy. Petitioner was aware from the beginning of her employment that Respondent had written policies prohibiting unlawful discrimination and that there were procedures in place to report work-related problems, in particular unlawful discrimination. Petitioner acknowledged in October 2000, that she received copies of these policies. She also signed an acknowledgment that she was an "at-will" employee, meaning that either the employee or Munroe has the right to terminate the employment relationship at any time with or without notice or reason. As early as 2000, Petitioner was aware that one way to report unlawful discrimination was to contact the Human Resources Department. In early 2004, Petitioner sought a promotion to the position of Team Leader. Melinda Monteith was one of Petitioner's immediate supervisors at that time. Ms. Monteith recommended Petitioner for the promotion to Team Leader. Petitioner was promoted to the position of Team Leader in February 2004, and received a pay raise commensurate with that position. Ms. Monteith continued to be Petitioner's immediate supervisor until January 4, 2011, when Petitioner was discharged. Petitioner received pay increases every year from 2004 through 2010. Petitioner's former husband, Michael Pearson, believes that Petitioner's supervisor is racist because he claims she once called him a "thug" and saw her look at another black male "like she don't like black folks."1/ Mr. Pearson has never worked for Respondent and bases his personal belief that Petitioner's supervisor is racist on interactions he had with Petitioner's supervisor(s) at holiday parties. On February 6, 2009, Petitioner was disciplined in the form of a written Counseling Agreement for conduct which Respondent considered "workplace bullying." Petitioner, along with other team leaders, was asked to learn to use a computer system referred to as the C-Board System, in order to fill in when necessary for employees whose assigned duties were to use that system to correctly prepare patient meals. Petitioner was never able to operate the C-Board system. She was never disciplined by Respondent for her inability to use the C-Board system. During the time that Petitioner held the position of Team Leader, some employees complained to Ms. Monteith about the way Petitioner interacted with them. On December 20, 2010, Stephanie Smith, another Team Leader, told Ms. Monteith that Petitioner was not speaking to people and being very "sharp" with them. The next morning, Ms. Monteith asked to speak with Petitioner about what Ms. Smith had told her about Petitioner's behavior the previous day. When Petitioner responded curtly, "Is it business?," Ms. Monteith decided to speak with her later. Later that morning, Ms. Monteith was approached by Pam Knight, one of Petitioner's subordinates, who was in tears regarding Petitioner's behavior and the resulting tense atmosphere. Ms. Knight was particularly concerned with the way Petitioner was treating Ms. Smith. Ms. Monteith and Clinical Nutrition Manager Betsy DeMatto met with Ms. Knight and confirmed what Ms. Knight had told Ms. Monteith earlier regarding Petitioner's behavior: that Petitioner was not speaking to Ms. Knight or Ms. Smith at all, and that she was not responding to work-related questions. Ms. Monteith and Ms. DeMatto decided that Petitioner should be counseled in writing for her unprofessional behavior toward coworkers. On December 21, 2010, Petitioner was disciplined, again in the form of a written Counseling Agreement, for "behaving in an unprofessional manner [which] creates an environment of tension and discomfort." When presented with the counseling agreement, Petitioner became very angry, remarked that everything she was accused of were lies, and refused to sign the counseling agreement. Later that day, Ms. Monteith was approached by Ms. Smith who was "very pale" and who advised that Petitioner spoke with her (Ms. Smith) following the counseling meeting, and appeared to be angry. Ms. Smith informed Ms. Monteith that Petitioner stated that she was "going postal" and that if she was "going out" she was taking Ms. Monteith with her. Ms. Monteith believed what Ms. Smith told her, and relayed it to Ms. DeMatto. Ms. Monteith and Ms. DeMatto decided to report this to Human Resources (HR) Manager Vicky Nelson. Ms. Nelson has been employed by Respondent for 33 years, five of which as HR Manager. In her capacity as HR Manager, Ms. Nelson has conducted approximately 300 investigations into workplace issues, including allegations of unlawful discrimination, harassment, threatening behavior, workplace violence, and bullying. These investigations included reviewing applicable policies and procedures, referring to any prior events of a similar nature, interviewing the complaining employee and the individual against whom the complaint has been made, and reviewing the personnel files of the individual making the complaint and the individual who is accused of inappropriate behavior. In some cases, a decision is made to remove the accused from the workplace during the pendency of the investigation. Ms. Nelson interviewed Ms. Monteith and Ms. DeMatto in her office. She observed that Ms. Monteith appeared to be "visibly shaken." On the afternoon of December 21, 2010, Petitioner was called into the office of Ms. Nelson to discuss the allegations that Petitioner made this threatening comment regarding Ms. Monteith. During the December 21, 2012, meeting, Petitioner initially denied making the statement about going postal and taking Ms. Monteith with her. She later admitted that she used the word "postal," but was just joking and was not serious. At hearing, Petitioner acknowledged that she used the word "postal," but in the context that they had her in the office "trying to make me postal" and reiterated that she was just kidding in using that word. Petitioner believes that she was being accused of acting "crazy." While there is some dispute as to the context of Petitioner's use of the word "postal," it is not disputed that she did use the word "postal" in the workplace, and that employees of Respondent were extremely concerned because of it. At the conclusion of the December 21, 2010, meeting, Ms. Nelson told Petitioner not to return to work until after she (Ms. Nelson) had finished the investigation if this matter. Ms. Nelson also asked Petitioner to submit a written statement setting forth her position as to the events of December 21, 2010. Petitioner did not submit a written statement at that time, but said she would do so later. On December 22, 2010, Ms. Nelson interviewed Ms. Smith and Ms. Knight, each of whom confirmed what Ms. Monteith previously told Ms. Nelson. Based on the information available to her, Ms. Nelson determined that Petitioner's employment should be terminated. Whether or not Petitioner was just joking when she used the word "postal," it was taken seriously by her employer. Ms. Nelson based the termination decision on Petitioner's use of the word "postal" and considered it inflammatory in nature. She based her decision in part on the comment itself; the credibility of Ms. Smith, Ms. Knight, Ms. DeMatto, and Ms. Monteith; her personal observations of Petitioner's behavior and demeanor in the December 21, 2010, meeting; and the context in which the comment was made, i.e., the information she received regarding Petitioner's interaction with co-workers on December 20 and 21, and her angry reaction to being presented with the counseling agreement on December 20. Ms. Nelson contacted Petitioner on January 3, 2011, and asked to meet with her the following day. On January 4, 2011, Ms. Nelson informed Petitioner of the results of her investigation and of the decision to terminate her employment, effective that day. At the January 4, 2011, meeting, Ms. Nelson again asked Petitioner for a written statement. Petitioner did not give one to her. On January 13, 2012, Petitioner filed a written request, pursuant to Respondent's Conflict Management Program, for peer review of the circumstances surrounding her termination from Munroe. The Panel Review Request Form lists several factors for the employee making the request to "check off" as to the nature of the dispute. Petitioner checked the boxes for "race" and for "retaliation, but did not check the box for "disability." At no time during the December 21 meeting with Ms. Nelson or the time between that meeting and the January 4, 2011, meeting, did Petitioner advise Ms. Nelson that she believed that she was being discriminated against on the basis of race, color, or disability. On February 23, 2011, the Peer Review Panel recommended that Petitioner's termination be upheld and that she not be eligible for rehire.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 11th day of December, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 11th day of December, 2012.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by subjecting Petitioner to gender discrimination and retaliation in violation of the Florida Civil Rights Act.
Findings Of Fact Southgate is a student housing and dining facility located in Tallahassee, Florida, near the campuses of Florida State University, Florida A&M University, and Tallahassee Community College. On September 16, 2004, Southgate hired Petitioner Devon Rozier as a dishwasher in the cafeteria dish room. The cafeteria is open seven days a week and currently employs approximately 34 employees, some part-time and some full-time. Petitioner had just turned 16 years old when Ken Mills hired him based upon a long-standing relationship with Petitioner's father, who had worked at Southgate for many years and was an exemplary employee. Petitioner worked as a part-time employee on the night shift, 3:30 p.m. until 8:00 p.m., for a total of 20-25 hours per week. Petitioner later received a promotion out of the dish room to the grill, and also worked other positions such as attendant and greeter. Petitioner also worked in various positions to assist as needed, as did other employees in the cafeteria. At the beginning of his employment, Petitioner exhibited good performance. As time progressed, Petitioner's performance began to decline, and he openly disrespected management. Various disciplinary techniques were employed by his supervisors in efforts to improve his performance, but the improvements always proved to be short-lived. On April 30, 2009, Petitioner and his supervisor, Rasheik Campbell, had an altercation, and Petitioner left the facility. Mr. Campbell warned Petitioner before he left the facility that such action would constitute job abandonment. Despite Mr. Campbell's warning, Petitioner left the facility. Mr. Campbell took the position that Petitioner abandoned his employment with Southgate. Petitioner was no longer placed on the schedule. On May 4, 2009, Southgate sent Petitioner a letter confirming his resignation. As months passed, Petitioner made attempts to regain his position with Southgate by calling his supervisors Mr. Campbell and Mr. Jason McClung. When his attempts were met with resistance by his supervisors, Petitioner bypassed them and went directly to Ken Mills, Southgate's General Manager and Petitioner's former supervisor. Petitioner presented his case to Mr. Mills in July and August 2009, regarding his desire to return to work. Mr. Mills had previously intervened on Petitioner's behalf, out of respect for Petitioner's father, to help him keep his job when difficulties with management had arisen. This time, Mr. Mills instructed Petitioner that Mr. McClung and Mr. Campbell were his direct supervisors and that they had ultimate responsibility regarding his desired return to work at Southgate. In August 2009, at the request of Mr. Mills, once again doing a favor for Petitioner based upon the long-standing work history of Petitioner's father at Southgate, Mr. Mills, Mr. McClung, and Mr. Campbell met with Petitioner and his mother, Jennifer Rozier. At the meeting, they discussed Petitioner's request to return to work at Southgate. During the meeting, Mr. McClung and Mr. Campbell did not feel that Petitioner exhibited any improvement in his behavior and respect for authority. As a result, Mr. McClung and Mr. Campbell chose not to re-hire Petitioner. Petitioner claims the following conduct he witnessed while working at Southgate was discriminatory: a) females were allowed to sit down at tables and eat while on the clock; b) females were allowed to use the computer while on the clock; and c) Petitioner was required to perform the females' work when they failed to show up or wanted to leave early. Petitioner further claims that his firing was retaliatory based upon one complaint he made to Mr. Campbell in February 2009 about having to perform the tasks of others who failed to come to work. Other employees, including Jodece Yant, Petitioner's girlfriend, and Darnell Rozier, Petitioner's own brother, testified that both males and females could be seen eating or using the computer while on the clock, and all were told to perform others' tasks when they failed to come to work or left early. Petitioner conceded that on occasion he engaged in the same behaviors he alleges to be discriminatory. Petitioner obtained a full-time job at Hobbit American Grill on January 21, 2010, and, as of the date of the hearing, continued to work there. His rate of pay at Hobbit American Grill is currently $7.25 per hour, and he testified he is better off there than at his former employer, Southgate. Petitioner is currently earning the same hourly wage ($7.25) as he was earning when employed at Southgate. Southgate had policies and procedures in force that prohibited, among other things, discrimination on the basis of gender or any other protected characteristics. Southgate's policies and procedures also prohibited retaliation. Petitioner received a copy of the employee handbook, which contained Southgate's anti-discrimination policies and was aware that Southgate had such policies in place.
Recommendation Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of November, 2010, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 10th day of September, 2010. COPIES FURNISHED: Desiree C. Hill-Henderson, Esquire Littler Mendelson, P.C. 111 North Magnolia Avenue, Suite 1250 Orlando, Florida 32801 Micah Knight, Esquire 123 North Seventh Avenue Durant, Oklahoma 74701 Devon A. Rozier 7361 Fieldcrest Drive Tallahassee, Florida 32305 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, Department of Economic Opportunity (DEO or Department), discriminated against Petitioner, Georgie Breville, in violation of the Florida Civil Rights Act of 1992 (the Act), sections 760.01–760.11 and 509.092, Florida Statutes, based upon her national origin, age, disability, or in retaliation.
Findings Of Fact Petitioner is a 64-year-old female from Mauritius, a French island nation off the coast of Africa. As such, she falls within a protected class based on age and national origin. Respondent, DEO, is the successor State agency to the former Agency for Workforce Innovation (AWI) with the responsibility to implement the FloridaWorks program. FloridaWorks is organized into Regional Workforce Boards which oversee the delivery of employment services in their local jurisdictions. Employment services delivered at local One-Stop Centers include job searches, job counseling, and resume drafting, among others. Petitioner was employed at the FloridaWorks Alachua County One-Stop Career Service Center in Gainesville, Florida, from 2001 through 2010. At all times relevant hereto, Petitioner was an employee of AWI in the position of Customer Service Specialist. In her capacity as Customer Service Specialist, Petitioner met with job seekers, assessed their needs, and referred them for assessment testing and community services. She also conducted workshops on resume writing, interviewing skills, and job search skills. In February 2009, Betty Holmes, an AWI employee, became Petitioner’s supervisor. By letter dated September 17, 2010, Petitioner was terminated from her employment with AWI effective October 1, 2010. The termination letter was hand delivered to Petitioner on September 20, 2010, by Ms. Holmes in her office at the One-Stop Center. The letter stated that Petitioner’s termination was due to loss of funding for the Regional Workforce Board. On October 22, 2010, Petitioner filed a Charge of Discrimination with the Commission alleging that Florida Management Solutions, Inc. (FMS), had discriminated against her on the basis of her national origin, age, and in retaliation by giving her unfair negative evaluations, harassing and demeaning her, assigning her a larger workload than other employees, and ultimately unfairly terminating her.3/ The Commission issued a Determination of No Cause on May 16, 2011, finding there was no cause to find that Respondent had committed an unlawful employment action. Petitioner timely filed with the Commission a Petition for Relief against FMS, which was forwarded to DOAH for assignment of an administrative law judge (ALJ) to conduct a fact-finding hearing. Following an evidentiary hearing on the matter, the ALJ entered a Recommended Order finding that FMS was not Petitioner’s employer during the time period in which the alleged acts of discrimination occurred. Rather, the ALJ found that AWI was Petitioner’s employer. The Recommended Order was entered on September 14, 2011. On September 29, 2011, Petitioner filed a Complaint of Discrimination against AWI alleging unlawful employment discrimination on the basis of her race, national origin, age, and in retaliation. Again, the Commission issued a Determination of No Cause and Petitioner filed a Petition for Relief, which was forwarded to DOAH and assigned to the undersigned for conduct of an evidentiary hearing. Petitioner’s Complaint of Discrimination alleges that she was discriminated against by being assigned a larger caseload and being held to different performance standards than similarly situated non-classified employees; denied training; given unmerited negative performance evaluations; harassed, demeaned, and threatened, resulting in negative health issues; and unlawfully terminated, resulting in loss of benefits and future employment opportunities. As such, Petitioner’s complaint raises both individual discrete acts of discrimination, as well as an ongoing hostile work environment. Petitioner’s complaint and testimony are largely focused on the treatment she received from Ms. Holmes, her supervisor from February 2009 to October 1, 2010. Petitioner alleges that when Ms. Holmes became her supervisor, Ms. Holmes removed Petitioner from her usual duties and assigned Petitioner a caseload of 150 cases in a program with which she was not familiar. Petitioner argues that the assignments were unreasonable and, perhaps, even unauthorized by the agency. Petitioner further alleges that Ms. Holmes was critical of Petitioner’s inability to complete the cases in a timely manner, and that Petitioner was denied the training she requested to better perform on the job. Ms. Holmes’ assignment of job duties to Petitioner, as well as Petitioner’s request for training, occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that the employee evaluations Ms. Holmes performed, completed, and signed in April 2009 and April 2010 were unmerited.4/ The evaluations complained of were completed more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. Petitioner alleges that Ms. Holmes unnecessarily contacted 9-1-1 on May 18, 2010, when Petitioner fainted in Ms. Holmes’ office, and allegedly told the paramedics that Petitioner was acting erratically prior to fainting, allegations which Petitioner denies. The incident during which Petitioner fainted and was taken to the hospital by the paramedics occurred more than 365 days prior to the date on which Petitioner filed her Compliant of Discrimination. Petitioner alleges that Ms. Holmes spoke harshly to her, yelled at her, told her to “shut up,” and made demeaning comments about Petitioner’s French accent. Petitioner testified that Ms. Holmes made Petitioner repeat after her, and on at least one occasion said, “This is how Americans speak.” All the statements alleged to have been made by Ms. Holmes occurred more than 365 days prior to the date on which Petitioner filed her Complaint of Discrimination. On May 26, 2010, Petitioner filed a grievance with AWI Human Resources regarding Ms. Holmes’ alleged harassment of Petitioner as well as her unmerited negative evaluation. After filing the grievance, Petitioner met with Ms. Holmes and her direct supervisor, Arelis Rosario, to discuss her performance evaluation and other issues raised in Petitioner’s grievance. A written summary of the meeting was made and signed by Petitioner, Ms. Rosario, and Ms. Holmes on June 2, 2010. Petitioner disagrees with the substance of the summary and maintains that her grievance was not satisfactorily resolved. Petitioner alleges that she was terminated, in part, in retaliation for filing the grievance against Ms. Holmes. The grievance filed against Ms. Holmes, as well as the resolution meeting between Petitioner, Ms. Holmes, and Ms. Rosario, occurred more than 365 days prior to Petitioner’s Complaint of Discrimination. Petitioner was notified of her termination on September 20, 2010, which was a Monday. At hearing, Petitioner did not testify with certainty whether, or on which days, she was absent from work following notice of her termination. Petitioner had enough accumulated leave to take the two weeks off between termination and effective date. However, Petitioner chose not to. Petitioner was uncertain about the days that Ms. Holmes was in the office during either the week of her termination or the following week. At final hearing, Petitioner seemed confused about various events she related. On the whole, Petitioner’s testimony was inconsistent and equivocal. The evidence was clear that Petitioner was assigned no work during the period of September 20, 2010, through October 1, 2010. Petitioner had little, if any, interaction with Ms. Holmes during that same time period. She testified that her co-workers avoided her and barely spoke to her. Petitioner spent most of her time cleaning out her office and packing her belongings. In what must have been an awkward situation, Petitioner gave away many of her personal belongings to her co-workers during the time period between September 20, 2010, and October 1, 2010. Petitioner gave Ms. Holmes a vase from her office as a gift, although the exact date was not established. Petitioner introduced no evidence of any discrete acts of discrimination by Ms. Holmes, or any other AWI employee, between September 29, 2010, and October 1, 2010. Petitioner has been diagnosed with breast cancer and has been under treatment for several years. Petitioner did not take sick leave when employed at AWI. Instead, she took annual leave for her treatments or attended doctor’s visits during her lunch hour. The evidence did not support a finding that her employer knew of either her diagnosis or treatment.
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 Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 26th day of September, 2013, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2013.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by retaliating against Petitioner for filing a charge of discrimination.
Findings Of Fact Petitioner, Jacques Pierre (Petitioner or Mr. Pierre) is black and his national origin is Haitian. He has worked in the United States for 24 years. On or about January 25, 2006, Mr. Pierre filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination against his employer, Respondent, SSA Security, Inc., a/k/a Security Services of America, a California Corporation (Respondent or SSA). SSA, under a subcontract with a federal government contractor, Alutiiq-Mele, provided security services for a federal building in Miami. SSA continued to employ Petitioner as a security guard when it took over the contract from his previous employer, Superior Protection. Contractors and managers changed, in the past, but the security guards stayed the same. On August 10, 2006, and August 15, 2006, first Mr. Pierre, then a representative for SSA signed an agreement to settle the EEOC complaint. With a letter dated August 23, 2006, Mr. Pierre received a settlement check in the amount of $1,257.04, and he was advised to report any future unlawful harassment or discrimination charges by use of a "Harassment Hotline and [to] speak with your local area manager, Barry Hirsch [sic]." Captain Barry Hersch was Mr. Pierre's immediate supervisor. The agreement was approved, in principle, by Kent Jurney, Sr., an SSA corporate officer. The language of the agreement is, in relevant part, as follows: Removal of all Disciplinary Notices in File. Company agrees to remove all writings related to disciplinary actions taken against Employee from Employee's personnel file maintained by the Company. Employee understands that the removal of said documents does not prevent the Company from issuing disciplinary notices and/or taking disciplinary action against Employee as necessary in the future should Employee violate the Company's rules of [sic] policies. * * * 4. Confidentiality Clause. The Employee and the Company agree to the following confidentiality and non-disclosure agreement: (a) The parties represent and agree that they will keep the terms and amount of this agreement completely confidential. The parties will not hereafter disclose any information concerning this agreement to anyone, including but not limited to, any past, present or prospective employee of the Company or any prospective employer of the Employee. On August 25, 2006, the federal government changed the requirements in the contract. No longer would security guards be allowed to take breaks at the start or end of their shifts, but only during the middle. Mr. Pierre was made aware of the change. In violation of the requirement, on September 1, 2006, Mr. Pierre took his break at the end of his shift. The federal government contract also prohibited security guards from being on the work premises more than 30 minutes before or after their shifts. On August 28, 2006, Mr. Pierre returned to his work site and entered the building more than 30 minutes after his shift to retrieve keys and a telephone charger. Mr. Pierre also got into a loud and profane argument with another worker during his unauthorized return to the building. Mr. Pierre admitted he had an incident where he got into an argument with and "fired back" at a supervisor in 1995 or 1996. Beginning on or about July 10, 2006, Petitioner began to request, but initially was denied, leave. Mr. Pierre was feeling threatened and harassed by his supervisors and was suffering physically as a result. On a form dated August 25, 2006, Mr. Pierre said he was requesting leave from September 11 to September 25, with a return date of September 27, 2006. Spaces on the form to indicate whether it was approved or disapproved, and by whom are blank. As the reason for the request, Mr. Pierre indicated "stress related: as a result of retaliation.” This time, Captain Hersch, approved the request and Mr. Pierre went on vacation in September 2006. On September 5, 2006, as instructed by Mr. Jurney, another Miami supervisor, Bill Graham, issued a memorandum to Mr. Pierre requiring him to attend a mandatory meeting "about several important issues and notifying him of his "temporary removal from the schedule until this meeting has taken place." Copies of the memorandum were sent to Mr. Jurney and Captain Hersch. The evidence is insufficient to determine if other security guards who violated the same rules were subjected to the same consequences, or if discipline was uniformly applied. Mr. Pierre requested, either through his supervisor, Captain Hersch, or directly to Mr. Graham, that the attorney who handled his EEOC complaint and settlement agreement be allowed to attend the meeting with him. Mr. Jurney denied the request. Because he never attended a meeting, Mr. Pierre remained "off the schedule." For the remainder of 2006 and in early 2007, he was working part-time only at his second job with the State Department of Corrections. Mr. Pierre's income was reduced from $15 an hour ($17 minus $2 for insurance) for 40-hour weeks with SSA, plus $1,000 every two weeks from Corrections to only his Corrections pay. The evidence is insufficient to determine how long Mr. Pierre was, or if he still has, a lower income and what, if any, efforts he has taken to secure alternate employment to mitigate damages. SSA supposedly notified Mr. Pierre, in a memorandum dated September 22, 2006, that he was suspended without pay for two weeks for his rule violations and his failure to attend the mandatory meeting. The authenticity of the memorandum was questioned, and no witnesses testified to sponsor it or to explain why it was necessary, given the fact that Mr. Pierre was already "off the schedule." On October 3, 2006, Mr. Pierre filed a charge of retaliation with the Florida Commission on Human Relations which, on July 2, 2008, found that reasonable cause existed to believe that an unlawful employment practice had occurred. In the fall of 2006, Mr. Pierre applied for a job with the Miami-Dade Corrections and Rehabilitation Department (Miami- Dade). It was his understanding that his background investigation had been successfully completed, but that SSA had not responded to a reference form. Mr. Pierre took the form to SSA. The form, dated October 4, 2006, was completed by Captain Hersch, who responded, in relevant part, as follows: Reason for termination (voluntary/fired)? NON APPLICABLE Describe the applicant's work performance. GENERALLY ACCEPTABLE Describe the applicant's attendance record. GOOD OVERALL Was the applicant ever disciplined for any reason? If YES, please explain. YES CONFIDENTIAL." Is applicant able to work well with others? YES Is applicant trustworthy? YES Describe applicant's work habits? KNOWS HIS JOB, AND DOES IT Is applicant eligible for re-employment? If NO, please explain why. STILL EMPLOYED There is no explanation why Captain Hersch mentioned the confidential agreement, but not the subsequent disciplinary actions that were the focus of concern to Mr. Jurney and Mr. Graham, which could have been disclosed without violating the agreement. Based on the earlier assurances from Miami-Dade, Mr. Pierre, having put "no" when asked about discipline of his job application, believes the contradictory response from SSA caused him not to get the job. He received a letter informing him, but without giving specific reasons, that he was not hired by Miami-Dade. He failed to prove the correctness of his belief. Mr. Pierre testified, but presented no supporting evidence, that he could have earned up to $120,000 a year with Miami-Dade. SSA received notice on the second anniversary of its contract, in October 2006, that the federal government contract would not be renewed. Some time in 2007, most likely in February, at Mr. Pierre's request, he met with Mr. Jurney. It was not until that meeting, Mr. Pierre remembered, that Mr. Jurney had someone remove pre-settlement discipline records from his personnel file. By that time, SSA no longer had a contract with the federal government and was transferring its personnel over to work for the next contractor, Alutiiq. Mr. Pierre asked to be transferred and Mr. Jurney testified that he contacted someone at Alutiiq and asked for Mr. Pierre to be interviewed, but the evidence is insufficient to support a finding that SSA attempted to transfer Mr. Pierre to Alutiiq, or what the routine procedures were for transferring security guards. When Mr. Pierre found out that the necessary paperwork was never sent from SSA to Alutiiq, he tried unsuccessfully for two or three weeks to contact SSA. It is reasonable to believe that SSA, while not allowing Mr. Pierre to work, would not help him transfer over to the next contractor. Mr. Pierre was not transferred and was not employed by Alutiiq. Mr. Jurney testified unconvincingly that he made non-federal contract job offers to Mr. Pierre and Mr. Pierre found the offers acceptable, “but he didn’t accept them.” It is inconceivable that Mr. Pierre, who has three children to support and a wife who works part-time, would have rejected any legitimate job offer at that time. Mr. Pierre and Mr. Jurney, a former highway patrol trooper and member of an advisory board for the Florida Highway Patrol, discussed Mr. Pierre’s desire to be a trooper. Mr. Jurney offered to assist him but that employment never materialized. As a corporate officer, Mr. Jurney was responsible for overseeing hundreds of contracts involving 1,500 employees. He was senior to Mr. Graham and Captain Hersch. Yet, once he authorized the EEOC settlement, he became directly involved in the decision-making concerning discipline and consequences for Mr. Pierre. There is no evidence that Mr. Pierre had ever come to his attention before he approved the settlement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order directing that Respondent cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $15.00 an hour for each normal 40-hour work week between September 5, 2006, and the date of the final order, offset by earnings from substitute employment, if any. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 27th day of January, 2010. COPIES FURNISHED: 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 Ronald G. Polly, Esquire Hawkins & Parnell, LLP 4000 SunTrust Plaza 303 Peachtree Street, Northeast Atlanta, Georgia 30308-3243 Jacques Pierre 19601 Northwest 12th Court Miami, Florida 33169 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141
The Issue The issue is whether the Petition for Relief should be dismissed for lack of jurisdiction because Respondent was not Petitioner’s employer.
Findings Of Fact The complaint alleged that Petitioner was the victim of employment discrimination based upon her race. The employers identified in the complaint were Respondent and Civigenics/Community Education Centers (Civigenics). The determination issued by FCHR with respect to Respondent stated in pertinent part:1/ The Commission lacks jurisdiction over the Complaint of Discrimination because the Respondent is not the Complainant’s employer. The investigation revealed that Civigenics/Community Education Center, not Respondent, is the proper Respondent in this case. The petition does not allege that Respondent was Petitioner’s employer. Rather, the petition “give[s] acknowledgement to the determination [of] no jurisdiction” and then focuses on the merits of Petitioner’s discrimination complaint. Respondent argues in its motion to dismiss that “Petitioner acknowledges and therefore, concedes the validity of FCHR’s no jurisdiction determination in her request for relief.” The Order to Show Cause entered on October 10, 2008, stated in pertinent part: The petition does not appear to raise any disputed issues of fact as to whether DOC was Petitioner’s employer. That is the only issue properly before the undersigned in this case based upon the “no jurisdiction” determination issued by the Florida Commission on Human Relations (FCHR). Petitioner is entitled to a de novo hearing on the issue of whether DOC was her employer. If it is determined that DOC was her employer, then the case will be returned to FCHR with a recommendation that it investigate the merits of Petitioner’s discrimination complaint against DOC. [Endnote omitted]. If it is determined that DOC was not Petitioner’s employer, then the case will be returned to FCHR with a recommendation that the petition be dismissed based upon a lack of jurisdiction. That said, Petitioner is only entitled to a formal administrative hearing at the Division of Administrative Hearings (DOAH) if there are disputed issues of fact as to whether DOC was Petitioner’s employer. If there are no disputed issues of fact, then DOAH must relinquish jurisdiction back to FCHR. See § 120.57(1)(i), Fla. Stat. As stated above, the petition does not appear to raise any disputed issues of fact on this issue; rather, it “give[s] acknowledgement to the determination of no jurisdiction” and then focuses on the merits of the discrimination complaint. The Order to Show Cause directed Petitioner to: show cause in writing as to why DOC’s Motion to Dismiss should not be granted and/or Petitioner shall file an amended petition that identifies the factual basis upon which Petitioner contends that DOC was her employer. The Order advised Petitioner that: Failure to respond to this Order and/or failure to identify any disputed issues of fact as to whether DOC was Petitioner’s employer will result in a Recommended Order of Dismissal or an Order closing DOAH’s file and relinquishing jurisdiction to FCHR. Petitioner’s response to the Order to Show Cause stated in pertinent part: This is response to the Order to Show Cause, Case #08-4878. I am submitting in response to this order the attachments of a notice of hearing to be held in this case at the Board of County Commissioners, Community Treasures [sic] Room, First Floor, County Administration Building, 12 Southeast First Street, on December 1, 2008, at 1:00 p.m., Gainesville, FL. I am also submitting a copy of the Order of Pre Hearing Instructions. All information as required will be provided at the times ordered. The response does not allege any facts that might establish that Respondent was Petitioner’s employer. The pleadings do not raise any disputed issues of material fact concerning whether Respondent was Petitioner’s employer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, Respondent’s motion to dismiss is granted, the final hearing scheduled for December 1, 2008, is cancelled, and it is RECOMMENDED that FCHR issue a final order dismissing the petition with prejudice. DONE AND ENTERED this 30th day of October, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 2008.
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Trend Offset Printing Company (Respondent or Trend), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to an unlawful employment practice.
Findings Of Fact Respondent is, purportedly, a printing company located in Jacksonville, Florida. Specific information as to the company is limited, since the company did not appear at the final hearing. Based on Petitioner’s testimony, it is inferred that Respondent meets the definition of an employer in section 760.02(7), Florida Statutes. On Saturday, September 28, 2019, the printing plant was open, though the office was closed for the weekend. Petitioner was at work that day. On September 28, 2019, Petitioner had some vegetables that she had placed in a personal refrigerator that she kept at work. She intended to take the vegetables to her aunt. Several of the bags in which the vegetables had been placed had broken open. Therefore, after she clocked out of work, Respondent took a box from a trash receptacle located on the plant floor in which to place the vegetables. Unbeknownst to Petitioner, there was a cell phone in the discarded box. She loaded the box, and took it to her aunt’s house. Upon arrival, Petitioner unloaded the box and, at that time, discovered the phone at the bottom. The screen of the phone was cracked and broken. There was no evidence as to how or when the phone was damaged, nor was there any evidence that Petitioner was responsible for the phone’s condition. Petitioner’s aunt recommended that Petitioner discard the damaged phone. Petitioner, wanting to ensure that the phone was returned to its rightful owner, 1 Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla. regardless of its condition, decided to return the phone on Monday, September 30, 2019, when the office would be open. Upon her return to work on Monday, September 30, 2019, Petitioner immediately turned in the phone to her supervisor, and accurately explained the circumstances of how it came into her possession. On October 2, 2019, Petitioner was presented with a letter of termination from Respondent’s Human Resources Manager, which provided that: After reviewing the pertinent evidence on the evening of Sept 28th, 2019, we have determined to terminate your employment with Trend Offset Printing immediately. Any remaining hours worked and any unused vacation hours will be paid out in full on our next payroll cycle, Oct 11th, 2019. Those worked hours and unused vacation hours will be paid as directed via direct deposit or physical check. I've tried to reach out to you several times but unable to leave a message.[2] Please make arrangements with me to pickup any personal belongings that you may [sic]. If we don't hear from you in a reasonable time your personal belongings will be discarded. The evidence in this case establishes that Petitioner did nothing to warrant her termination. It is unreasonable to think that Petitioner would steal a phone, and then return it at the earliest opportunity. She had no desire or use for a cell phone. She did not try to use it. She had no idea to whom it belonged. That the phone ended up in her possession was entirely accidental. Though there was no evidence as to how or why the phone ended up in the box in the trash, the condition of the phone suggests that it may have been discarded by its owner. In any event, the evidence was persuasive that Petitioner did not intentionally take the phone. 2 The difficulty in reaching Petitioner may have been due to the fact that she did not own a cell phone, did not want a cell phone, and, according to both Petitioner and her sister, did not know how to use a cell phone. The letter of termination was vague, unusually and unnecessarily harsh, and not based on fact. Petitioner testified, for good reason, that “they didn’t treat me fair, at all.” However, Petitioner did not testify or present evidence at the hearing that Respondent’s action was based on discrimination due to race, sex, or age, or was the result of retaliation. As will be discussed herein, the failure to prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is 3 Petitioner requested, as relief, that she be reinstated to her previous job with Respondent, because she loved working with her co-workers, who she described as family; and that her name be cleared of the unwarranted allegation of theft. Due to the outcome of this proceeding, the undersigned is unable to recommend Petitioner’s reinstatement. However, this Order is intended, and should be treated, as determining that Petitioner engaged in no theft, or any other conduct vis-á-vis the cell phone, that warranted her termination. RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Annette Johnson’s Petition for Relief, FCHR No. 202126948. DONE AND ENTERED this 8th day of July, 2021, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Annette Y. Johnson 635 Luna Court Jacksonville, Florida 32205 Trend Offset Printing Company 10301 Busch Drive North Jacksonville, Florida 32218 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Human Rights Act by maintaining racially segregated restroom facilities, as alleged by Petitioner; and, if so, the affirmative relief which should be granted.
Findings Of Fact At all times material hereto, the COMPANY operated a business establishment located at Pompano Beach, Florida. BOYKIN a black male, was employed by the COMPANY during a one-week period in 1978. During BOYKIN'S employment, the COMPANY maintained separate restroom facilities, segregated on the basis of race. (Testimony of Boykin.) The COMPANY'S two restroom facilities were racially segregated by the use of signs affixed to the outside door of each restroom--one sign labeled "Colored," and the other, "White." (Testimony of Boykin.) The COMPANY'S maintenance of racially segregated restrooms was offensive to BOYKIN, and the other black employees. (Testimony of Boykin.) As of September 26, 1980, the offending signs by which the COMPANY racially segregated its restrooms were no longer affixed to the restroom doors. (Viewing by hearing officer, accompanied by parties.) The COMPANY presented no evidence controverting BOYKIN'S allegation that it maintained racially segregated restrooms during the time in question. Neither did it assert a legitimate, nondiscriminatory purpose for maintaining segregated restroom facilities. BOYKIN presented no evidence to establish that the COMPANY employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1977 or 1978.
Conclusions Conclusions: Respondent company maintained racially segregated restrooms for Petitioner and its other employees. The signs, by which the restrooms were labeled, "Colored" and "White" were no longer affixed to the restrooms at the time of final hearing. However, Petitioner failed to prove an essential elements of his claim-- that Respondent is an "employer" within the meaning of the Human Rights Act. Recommendation: That the Petitioner for Relief be DISMISSED. Background: On November 27, 1978, Petitioner Michael C. Boykin ("BOYKIN") filed with the Florida Commission on Human Relations a complaint of unlawful discrimination against Respondent H. L. Westberry Paving and Trucking Company ("COMPANY"). The gravamen of BOYKIN'S complaint was that he was subjected to an unlawful condition of employment by virtue of the COMPANY'S maintenance of racially segregated restroom facilities. After investigation, the Commission on Human Relations issued its determination that there was reasonable cause to believe that the COMPANY had engaged in an unlawful employment practice, as alleged, in violation of the Human Rights Act, Sections 23.161, et seq., Florida Statutes. After an unsuccessful effort to effect voluntary conciliation of the dispute, the Commission issued a Notice of Failure of Conciliation on June 11, 1980. Within the requisite 30-day period thereafter, BOYKIN filed a Petition for Relief from the alleged unlawful employment practice. Notwithstanding the COMPANY'S failure to file any pleading responding to BOYKIN'S Petition for Relief, or request a hearing thereon, the Commission forwarded it to the Division of Administrative Hearings on July 10, 1980, for the assignment of a hearing officer. By Notice of Hearing, final hearing was thereafter set for September 26, 1980. At final hearing, counsel for the COMPANY represented that on September 25, 1980, he received a telephone call from an unidentified employee of the Commission purporting to cancel the hearing scheduled for September 26, 1980. As a result, he asserted his witness was not present at final hearing; he then proffered that, if present, his witness could testify that signs indicating "Colored" and "White" were not now affixed to the doors of the separate restrooms located on the COMPANY'S premises. In order to avoid continuing the hearing, the parties agreed that the undersigned hearing officer should determine whether or not the described signs were present by conducting a viewing of the COMPANY'S premises. In light of this viewing, the COMPANY declined to request a continuance, and indicted that it wished to present no further evidence. The COMPANY also moved to dismiss the Petition for Relief, claiming that the Commission lacked jurisdiction based on: (1) federal preemption of the area by Title VII of the Civil Rights Act of 1964, and (2) failure of the Commission to complete its proceeding within 120 days from the Federal Equal Employment Opportunity Commission's deferral of this matter to the Florida Commission on Human Relations. Respondent's Exhibit 1 was offered, and received in support of the motion, after which the motion was denied. The only witness who testified at final hearing was BOYKIN. No other exhibits were offered by either party. The Florida Commission on Human Relations was not represented at final hearing; BOYKIN represented himself, in proper person, and without assistance by the Commission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is Recommended: That the Petition for Relief filed by Petitioner be DISMISSED. DONE AND ENTERED this 10th day of October 1980 in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October 1980. COPIES FURNISHED: Michael C. Boykin 801 Powerline road, #161 Pompano Beach, Florida 33060 Thomas P. Quinn, Esquire 2455 East Sunrise Boulevard Suite 605, International Building Fort Lauderdale, Florida 33404
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact In the summer of 1997, Respondent advertised several employment positions. The advertised positions included a position for Corporate Training Representative and a position for Coordinator of Continuing Education. The advertisement informed potential applicants of the minimum qualifications; the knowledge, abilities, and skills associated with each position; and the application deadline for each position. Petitioner was one of approximately 65 candidates who applied for the position of Corporate Training Representative. Petitioner was also one of 85 candidates who applied for the position of Coordinator of Continuing Education. Petitioner was over age 40 at the time he applied for both positions. Petitioner's application, like the application of each candidate, included an application supplement. The application supplement identified the applicant's gender, ethnic origin, birth date, and included a statement of how the candidate learned of the open position. Respondent uses application supplements to collect data needed to respond to inquiries from the Commission, the U.S. Equal Employment Opportunity Commission, the Veterans Administration, and the U.S. Department of Labor. Respondent directs completed applications to Respondent's Human Resources office. The Human Resources office separates the application supplement attached to each application, files the application supplement in a separate location, and forwards each application to the selection committee responsible for filling the position to which the application pertains. After, the position is filled, the Human Resources office re-attaches the application to the application supplement and retains the documents in data files maintained by the Human Resources office. The selection committee, responsible for reviewing the applications submitted for the two positions sought by Petitioner, was comprised of four members. The selection committee reviewed each application, selected candidates for interview, and recommended those candidates the committee determined to be best suited for the position. In selecting candidates for interview, the selection committee reviewed only the application of each candidate. The selection committee did not have access to any of the application supplements. The application supplements originally attached to the applications had been previously separated by the Human Resources office and retained in separate files in the Human Resources office. No one on the selection committee considered the age of an applicant, including Petitioner, when selecting a candidate for interview. The selection committee did not select Petitioner for an interview. The selection committee selected for an interview only eight of the 65 applicants for the position of Corporate Training Representative and only eight of the 85 applicants for the position of Coordinator of Continuing Education. Six of the eight applicants selected for interview for the position of Corporate Training Representative were over 40 years of age at the time they applied. Three of those applicants were aged 50 or older. Four of the eight applicants selected for interview for the position of Coordinator of Continuing Education were aged 40 or older. The applicant ultimately hired was in her mid-forties at the time. No employee or representative of Respondent made any derogatory comments about Petitioner's age. No member of the selection committee discussed the age of any applicant. Petitioner admits that had he been selected for an interview he might not have been selected as the successful candidate.
