The Issue Whether Petitioner, David Riggins, was subject to an unlawful employment practice by Respondent, Hillsborough County, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner brings this action alleging that his current employer, the County’s Public Utilities Department, discriminated against him based on his disability and in retaliation for his challenge to his job reassignment. Petitioner started working for the County in January 2008. Petitioner was hired as an Electrician 3 in the Public Utilities Department. On January 18, 2011, Petitioner was promoted to Electronic Technician III. Generally, Petitioner’s job was to inspect, maintain, and repair field instrumentation related to the County’s water treatment and wastewater facilities. By all accounts, he was a competent, knowledgeable, and reliable employee without any issues in his performance. In January 2014, Petitioner’s position was reclassified from Electronic Technician III to Industrial Instrumentation and Controls Technician (“IIC Technician”). The job duties for Electronic Technician III and IIC Technician were substantially similar. With the reclassification, Petitioner’s pay was increased to $28.48 per hour (effective October 1, 2013). On October 1, 2014, Petitioner received a market equity pay increase to $29.33 per hour. On March 2, 2011, Petitioner suffered a serious work- related accident. Petitioner was electrocuted while he was servicing modules at a water treatment plant. The electric shock left Petitioner with two medical conditions identified as Syncope and Collapse. Syncope causes a loss of consciousness resulting from insufficient blood flow to the brain. Collapse causes an individual to fall down or become unconscious due to sickness or exhaustion. At the final hearing, Petitioner explained that the shock he received caused the electrical impulses in his heart to stop functioning efficiently. Petitioner relayed that his medical condition causes him to experience episodes of dizziness and light-headedness. He also periodically suffers from blurred vision, tunnel vision, and on several occasions, loss of consciousness. Petitioner cannot predict when he will experience the symptoms of Syncope or Collapse. An episode could happen at any time. In a medical evaluation in July 2012 with his treating cardiologist, Dr. J. Thompson Sullebarger, Petitioner recounted that since his electric shock, he “had several spontaneous episoded [sic] of syncope with similar symptoms and still has dizziness sometimes when he gets up in the morning.” Petitioner also complained of dizziness, paresthesia (a tingling or numbness on the skin), and vertigo. Dr. Sullebarger opined that Petitioner “is unsafe to work on ladders or in buckets or high places.” Dr. Sullebarger further instructed Petitioner to “[a]void ladders and working in high places.” On September 25, 2012, Petitioner returned to Dr. Sullebarger. Petitioner “continued to complain of dizziness and episodes of near syncope.” Petitioner relayed that he “is dizzy almost every day.” On August 14, 2013, Petitioner submitted a “Request for Reasonable Accommodation” to the County based on his medical conditions. Petitioner relayed that he should avoid working from heights, elevated platforms, or catwalks, as well as working around open wet wells. In a follow-up letter to the County clarifying his request, Petitioner represented that he could perform his IIC Technician duties if he was allowed to wear a safety harness and lanyard when working at heights and elevated platforms. In January 2014, at the County’s request, Petitioner’s job of Electronic Technician III was analyzed to determine the essential physical requirements of his job. The study found that “climbing in [the Electronic Technician III] position is required.” However, “the frequency of climbing ladders was determined to be approximately 10%.” On June 20, 2014, the County notified Petitioner that, in light of his medical limitations, it would no longer allow him to work as an Electronic Technician III/IIC Technician. The County determined that climbing ladders of various heights was an essential function of Petitioner’s duties. Therefore, because Petitioner’s medical provider had instructed him to “avoid climbing on ladders,” the County determined that Petitioner could no longer perform the duties of an IIC Technician. The County offered Petitioner three months to search for another job with the County. The County informed Petitioner that if he did not find another job within the allotted time, the County would proceed with a Due Process Hearing to terminate his employment. Petitioner valued his IIC Technician job very much and did not want to lose it. Consequently, over the ensuing three months, Petitioner neither applied for nor requested another job with the County. Instead, Petitioner elected to challenge the County’s employment decision at a Due Process Hearing. The Due Process Hearing was held on February 9, 2015. Petitioner did not prevail. Thereafter, on March 20, 2015, George Cassady, the Director of the County’s Public Utilities Department, formally removed Petitioner from his IIC Technician job. However, rather than terminate Petitioner, Mr. Cassady offered to place him in the position of Business Analyst II. Mr. Cassady wrote in a letter to Petitioner, “I have decided to accommodate your restriction(s) by transferring you to the job of Business Analyst II in the Maintenance Planning Support Team. Your salary will be $26.00 per hour. Your transfer is effective Monday, March 23, 2015.” Petitioner was very disappointed to lose his IIC Technician job. He was also distressed that his salary was to be reduced from $29.33 to $26.00 per hour. Therefore, before he accepted the transfer, in June 2015, Petitioner appealed the Due Process Hearing determination to the Hillsborough County Civil Service Board. Petitioner argued that his reassignment to Business Analyst II was a “demotion.” The Civil Service Board held an evidentiary hearing on March 16, 2016. The Civil Service Board agreed with Petitioner that, because his salary was reduced, his placement in the Business Analyst II position should be considered a demotion. However, the Civil Service Board concluded that Petitioner failed to prove that the County “acted without just cause” to demote him to Business Analyst II. Subsequent to the Civil Service Board decision, on May 4, 2016, Petitioner and the County entered into a settlement agreement to amicably resolve the issue of his reassignment. Through the settlement agreement, the County agreed to increase Petitioner’s base hourly rate of pay to $28.00 per hour (up from $26.75). The County also agreed to pay Petitioner a lump sum of $5,000. For his part, Petitioner agreed to “release and/or withdraw . . . [a]ny and all claims, grievances, appeals in any forum associated with the placement of [Petitioner] in the Business Analyst II position as of March 23, 2015.” Petitioner also assented that his placement as a Business Analyst II was a “transfer of his employment and not a demotion.” Petitioner’s current action focuses, not on his placement in the Business Analyst II position, but on the County’s subsequent refusal to hire him back in his previous job as an IIC Technician. On two separate occasions, Petitioner applied with the County for an IIC Technician position. In February 2015, the County advertised an IIC Technician opening. The advertisement did not list any physical requirements for the position. The County did not interview Petitioner for the job. In July 2016, the County advertised to fill another IIC Technician position. In this advertisement, the County expressly listed that the job specific competencies included, “[a]bility to climb ladders.” Petitioner applied again. In September 2016, the County notified Petitioner that he would not be considered for the IIC Technician position. Petitioner received an e-mail from the County Human Resources office stating, “[w]e were very impressed with your qualities as an applicant and even though other candidates overall Qualifications were deemed most compatible with the duties and responsibilities of this position, we hope your interest in career opportunities with Hillsborough County will continue.” Petitioner asserts that, based on the County’s hiring matrix, he was the most qualified candidate given his years of experience and his possession of the required certified central system technician license, which no other candidate possessed. Nevertheless, he was excluded from consideration for the position. Petitioner asserts that no legitimate reason existed for the County to reject his application to fill the IIC Technician position. Petitioner disputes that his current medical restrictions prevent him from performing the essential functions of an IIC Technician. At the final hearing, Petitioner expressed that he is no longer medically prohibited from climbing ladders. On September 21, 2015, following another medical examination, Dr. Sullebarger stated that Petitioner’s only restriction was “Harness at Heights (otherwise no restrictions).” Petitioner’s understanding is that Dr. Sullebarger will allow him to climb ladders if he wears a safety harness. On March 3, 2016, Dr. Sullebarger completed a Medical Certification Form for the Commission. On this form, Dr. Sullebarger wrote that Petitioner is “at risk for dizziness or fainting.” Dr. Sullebarger opined that Petitioner’s use of a safety harness was reasonably necessary in order for him to perform the required functions of an IIC Technician. Dr. Sullebarger specified that “working with a harness at heights will reduce [Petitioner’s] risk of injury due to falls.” Despite the apparent improvement of his condition, at the final hearing, Petitioner affirmed that he still suffers from Syncope and Collapse. Petitioner further acknowledged that his medical condition could make performing the IIC Technician duties more risky. For instance, if an IIC Technician needed to climb a ladder to access a device, and the location did not support the use of a safety harness, then Petitioner would have to work at heights without the medically required safety equipment. However, despite his unpredictable episodes of dizziness and his need to use a safety harness, Petitioner argued that he can competently perform the IIC Technician job. Initially, Petitioner disputed that climbing ladders is an essential function of an IIC Technician. Petitioner expressed that an IIC Technician typically programs and calibrates electronic equipment on level ground. Petitioner relayed that for the months prior to losing his IIC Technician position, he satisfactorily performed his responsibilities without climbing ladders. At the final hearing, Petitioner insisted that, at most, ten percent of the IIC Technician job involves climbing ladders. Furthermore, to the extent that climbing ladders is required, reasonable accommodations exist to allow him to perform the essential functions of the job. These accommodations include hydraulic lifts, as well as the use of a safety harness at heights. Petitioner asserted that neither preventive measure would change the scope of the IIC Technician responsibilities. Consequently, his medical condition poses no safety threat. Petitioner further argued that his medical restriction should not preclude him from the IIC Technician job because every IIC Technician is required to use a safety harness.3/ Therefore, because Petitioner’s need to use a “safety harness at heights” is a precaution that every IIC Technician must exercise, his medical condition should not prevent the County from hiring him as an IIC Technician. Finally, Petitioner disputed the County’s position that situations exist in which IIC Technicians are not able to use a safety harness to perform their duties. In particular, Petitioner argued that it is standard industry practice for technicians to wear a harness with two lanyards when transitioning at heights, such as from a ladder to a platform. Further, no County employee can perform inspections or repair work six feet or more above any work surface without a safety harness or some other approved means of fall protection, such as guardrails. Therefore, Petitioner’s medical restriction would not affect his job performance in any way. Petitioner pursues four results with his action. First, Petitioner seeks an immediate return to his IIC Technician position. Next, Petitioner wants his salary restored to its previous rate ($29.33 per hour) along with any lost merit increases. Third, Petitioner desires to have his seniority status restored. Prior to his demotion, he was the most senior member of his team. He has no seniority as a Business Analyst II. Finally, Petitioner seeks the ability to renew his professional certifications. He alleged that the Business Analyst II job severely hinders his professional prospects by making it more difficult for him to renew and maintain his professional certifications. Mr. Cassady testified at the final hearing regarding the County’s refusal to rehire Petitioner as an IIC Technician. Mr. Cassady, as the Director of the Public Utilities Department, oversees the division in which Petitioner works. Mr. Cassady made the ultimate decision regarding Petitioner’s current employment status. Mr. Cassady described the County’s public works facilities as an “industrial work environment.” The County oversees and monitors 17 separate water treatment and water reclamation plants. Mr. Cassady commented that some chemical storage tanks “exceed 40 feet in height and have limited guardrails around them.” Mr. Cassady recounted that he reviewed Petitioner’s situation at great length. Mr. Cassady imparted that he is constantly aware of, and watching out for, the safety of his employees. Mr. Cassady relayed that an IIC Technician is responsible for working around high voltages and in close proximity to large machinery that includes rotating pieces of equipment motors and pumps. In considering Petitioner’s medical restrictions, Mr. Cassady determined that climbing ladders and working at heights to access or inspect electronic controls and components is an essential function of the IIC Technician job. Mr. Cassady explained that, although the frequency of the use of ladders might vary amongst assignments, all IIC Technicians must be able to climb and use ladders. Mr. Cassady described several routine tasks in which an IIC Technician operates in or on elevated equipment that do not support the use of a safety harness. These situations include climbing ladders to service electronic instruments located on top of raised pipes. In addition, IIC Technicians regularly ascend ladders to small platforms located on top of the 40-foot-tall treatment tanks to calibrate level control devices within the tank. Consequently, Mr. Cassady concluded that the responsibilities of the IIC Technician position would directly expose Petitioner to the inherent dangers associated with working at heights. Mr. Cassady did not dispute that Petitioner possesses the skills and qualifications to perform the job of ICC Technician (not considering his disability). However, he was (and is) very concerned about the possibility that Petitioner could be injured if he were to experience a sudden or unexpected dizzy or fainting spell while climbing a ladder or accessing a high platform. Mr. Cassady adamantly believes that Petitioner’s unfortunate medical condition creates unacceptable safety hazard for both Petitioner and the County should he return to the IIC Technician position. Mr. Cassady admitted that the County purposely did not interview Petitioner for the IIC Technician job openings. However, he denied that the County refused to consider Petitioner just because he has a disability. Instead, the County’s overriding concern was that Petitioner could not work safely at heights due to his medical condition, which causes him to experience unpredictable dizziness or loss of consciousness. On the other hand, while Petitioner was unable to perform the job of IIC Technician, Mr. Cassady believed that Petitioner’s analytical and practical skills remain an asset to the County. Therefore, Mr. Cassady offered Petitioner the Business Analyst II position. A Business Analyst focuses on data collecting and analyzing as opposed to operations. Not only does the Business Analyst II position provide Petitioner the opportunity to use his knowledge and training in the same field as an IIC Technician, but Petitioner can perform the job on the ground and is not required to climb ladders or work at heights. The Business Analyst II position includes a higher pay scale than the IIC Technician. However, Mr. Cassady set Petitioner’s initial salary at a lower rate ($26 per hour) to maintain equity with the four other County employees who had been assigned to the same position for a longer period of time. Mr. Cassady denied that the County refused to hire Petitioner as an IIC Technician job in retaliation for his request for a Civil Service Board review of his placement in a Business Analyst II position. On the contrary, Mr. Cassady believed that Petitioner was a valuable employee with the Public Utilities Department. Mr. Cassady offered Petitioner the Business Analyst II job specifically as a way for the County to retain his services. Mr. Cassady explained that he has always been supportive of Petitioner’s career development with the Public Utilities Department. In fact, he rejected Human Resources’ initial recommendation to terminate Petitioner’s employment when the County determined that Petitioner was unable to perform the essential functions of his IIC Technician job. Mr. Cassady has also encouraged Petitioner to improve his marketable skills by furthering his education, courtesy of a County scholarship program. Finally, Mr. Cassady testified that implementing the accommodations that Petitioner suggests is unworkable. Mr. Cassady contended that a number of the locations in which an IIC Technician must work do not support the use of a safety harness and lanyard. For example, the treatment tanks are not equipped to enable the use of a safety harness while climbing up the 40-foot-tall ladder or when transitioning from the ladder to the platform. Mr. Cassady asserted that any such modifications would be prohibitively expensive or impractical to install. Several County employees who are currently employed as IIC Technicians testified at the final hearing regarding their job requirements. These witnesses discussed the role of climbing ladders and working in high places in performing their duties. Mark Maples, an IIC Technician with the County, testified that he regularly climbs ladders while performing his job. Mr. Maples stated that he must use a ladder during several of his routine work responsibilities, such as checking a flow meter device at a water treatment plant. Mr. Maples estimated that he uses a ladder approximately 40 percent of the time he works. Mr. Maples also remarked that he routinely climbs ladders in work settings that do not offer a mechanism to tie off a safety harness. Consequently, a safety harness would not provide an IIC Technician complete protection while working at heights. Mr. Maples also expressed his discomfort with the idea of working with an IIC Technician who was not medically cleared to work on elevated equipment. As an example, Mr. Maples described how IIC Technicians are responsible for inspecting and calibrating the level control devices situated on top of each large treatment tank. Each tank is 40 feet high. To accomplish such an inspection, the IIC Technician must scale a ladder attached to the side of the tank. The tank provides no apparatus to which a safety harness may be fastened. Based on Petitioner’s medical condition, which could cause sudden and unanticipated dizziness, Mr. Maples was concerned whether Petitioner could safely accomplish the required inspection. Mr. Maples would be worried that Petitioner might faint and fall down the ladder or tumble off the top of the tank. Mr. Maples declared that a “one- time fall is one time too many.” Michael Newsome, another IIC Technician, testified that he regularly uses a ladder to perform his job. Mr. Newsome explained that his job requires him to work in elevated places, and he has to climb a ladder to get there. Mr. Newsome estimated that he needs a ladder less than five percent of the time. Louis Ocampo has worked as an IIC Technician for the County for approximately two years. Mr. Ocampo testified that he regularly uses a ladder in his job. He works at heights and elevated areas, such as treatment tanks and on video cameras. Mr. Ocampo estimated that he needs a ladder approximately ten percent of the time. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that the County discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that the County discriminated against him in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order: finding that Petitioner, David Riggins, did not prove that Respondent, Hillsborough County, committed an unlawful employment practice against him; and dismissing his Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 29th day of November, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of November, 2017.
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue in this case is whether Respondent is guilty of discriminating in employment against Petitioner on the basis of her race.
Findings Of Fact Respondent hired Petitioner, who is black, as an inspectress on April 11, 1988. An inspectress supervises the work of maids, who are responsible for cleaning the hotel rooms. On July 3, 1988, the housekeeper, Mr. Douglas Knight, who supervised Petitioner, informed her that, due to an excess of personnel, she was no longer needed as an inspectress. He offered her a position as a maid. The record does not reveal whether the change in duties would have resulted in less pay. Petitioner apparently declined the position. When she did so, Respondent terminated her. Although Respondent had received no warnings concerning unsatisfactory job performance, the work of the maids had clearly been unsatisfactory up to the time of her offered reassignment. The white woman who allegedly replaced Petitioner as an inspectress was Mrs. Triplett, who was married to the head maintenance manager of the hotel. Shortly after losing her job elsewhere, she was hired by Respondent around June 9, 1988, to replace the assistant housekeeper, who was on maternity leave until July 6, 1988. Mrs. Triplett was reassigned to the position of inspectress around June 18, 1988, and later promoted to housekeeper about two weeks after Petitioner's departure. Mr. Knight, who hired Mrs. Triplett, was friends with Mr. Triplett and later terminated for inefficiency in performing his work.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and ORDERED this 16th day of March, 1989, in Tallahassee, Florida. ROBERT D. MEALE 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 16th day of March, 1989. COPIES FURNISHED: Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird General Counsel Commission Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Latricia W. Dukes 4189 Tatum Street Orlando, FL 32811 Gale Brandy Ramada Main Gate Resort 2950 Reedy Creek Boulevard Kissimmee, FL 32741
The Issue Whether Respondent Employer is guilty of an unlawful employment practice against Petitioner Employee.
Findings Of Fact On or about November 17, 2006, Petitioner filed an Employment Complaint of Discrimination (formerly known as a "Charge of Discrimination") on the basis of disability/handicap and national origin with the Florida Commission on Human Relations. On June 15, 2007, the Commission entered a Determination: No Cause. On or about July 2, 2007, Petitioner filed a Petition for Relief with the Commission. On or about July 5, 2007, this case was referred by the Commission to the Division of Administrative Hearings. On July 18, 2007, a telephonic conference was held to schedule a final disputed-fact hearing date. The hearing date agreed upon was October 1, 2007, and a Notice of Hearing and Order of Pre-hearing Instructions issued on July 18, 2007. Neither party complied with the Order of Pre-hearing Instructions. At the time noticed for October 1, 2007, Respondent appeared for hearing. In the Joint Response to Initial Order, filed July 16, 2007, and in a subsequent Motion filed September 26, 2007, Respondent referred to itself as "Wal-Mart Stores, East L.P. (incorrectly referred-to in the caption as Wal-Mart Stores)," but made no motion to correct the style of this cause. Respondent acknowledged in its pleadings, and its counsel acknowledged orally at hearing, that it was the appropriate Respondent in this cause, regardless of the case's style. After waiting 30 minutes, Petitioner still had not appeared for hearing. The undersigned made diligent inquiry to ensure that Respondent had done nothing to discourage Petitioner from appearing, and closed the hearing.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and a Petition for Relief. DONE AND ENTERED this 3rd day of October, 2007, in Tallahassee, Leon County, Florida. S ___ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Amy Harrison, Esquire Lindsay A. Connor, Esquire Ford & Harrison 225 Water Street, Suite 710 Jacksonville, Florida 32202 Catrina Soriano 1826 Nekoma Court Tallahassee, Florida 32304
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 October, 2012.
The Issue Whether Respondent employer is guilty of an unlawful employment practice against Petitioner based upon mental disability.
Findings Of Fact The final disputed-fact hearing began on time. Petitioner was present, as was the attorney for Respondent. Petitioner appeared pro se and responded clearly and affirmatively to the undersigned's questions, stating that she knew that she could be represented by an attorney but for reasons of her own she chose to represent herself. After explaining the duty to go forward, the burden of proof, and the order of proof, the undersigned inquired of both parties whether any further explanation was necessary; whether they had any questions; and whether the undersigned could do anything to make the process easier on either of them. At that point, Petitioner gestured to a piece of paper and requested to meet with Respondent's counsel for purposes of negotiating a settlement. A brief recess was granted for that purpose, and the undersigned left the hearing room. Upon returning to the hearing room, the undersigned inquired whether a settlement had been reached and was informed that one had not been reached. Petitioner then announced that, "Since they won't settle, I have no more to say." The undersigned inquired at length to be certain Petitioner understood that: she could call witnesses; she could testify on her own behalf; and she could present documents, either through her own testimony or that of others. Petitioner stated that she understood but did not want to call witnesses or testify. She gestured at what appeared to be her proposed settlement document, but which could have been something else, stating that she only had a document. The undersigned explained that very few documents could be called "self-authenticating" and gave a brief explanation of what type of testimony is necessary to lay a predicate to put any document into evidence. Petitioner said she did not wish to testify. She did not offer her piece of paper. The undersigned explained that if Petitioner did not testify and did not offer her single document, she could not prevail, and that based upon the allegation in her Petition that she has a "mental disability/handicap," the undersigned needed to be assured that Petitioner understood that unless she testified to something, called witnesses to testify, or offered some exhibits, the undersigned would have no choice but to enter a recommended order of dismissal. Petitioner assured the undersigned that she understood and refused to proceed.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief herein. DONE AND ENTERED this 1st day of August, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Michele B. Brown, pro se 2634 North Point Circle, Apt. B Tallahassee, Florida 32308 Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett Foster & Gwartney, P.A. 909 East Park Avenue Tallahassee, Florida 32301
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner is a black female who was employed by the Respondent on or about March 21, 1989. Petitioner's job with the Respondent was to assemble and wire electrical devices in a designated configuration and to a specified standard. Petitioner was the only black employee stationed in her job location, but the company employes other blacks in other areas of production. Petitioner's job was an entry level position which required minimum skills but aptitude for the work and attention to detail were necessary. During her employment with the Respondent, Petitioner was supervised by Charlie Goodman. Mr. Goodman was known to be a demanding and sometimes brusk individual. Petitioner perceived the corrections Mr. Goodman required to be personally directed toward her. Others besides Mr. Goodman observed Petitioner's work and deemed it inadequate to the requirements of the job. Both Mr. Gardner and Ms. Giles observed that Petitioner made errors or took too long to perform routine tasks. Mr. Gardner confronted Petitioner on two occasions regarding her work performance. In both cases, Petitioner responded by claiming Mr. Goodman was "nit picking" her work and was demeaning to her personally. Finally, on May 5, 1989, when Petitioner's work performance did not improve, Mr. Gardner advised Petitioner that she was terminated. Respondent is an employer within the definition of Section 760.10, Florida Statutes. Respondent did not terminate Petitioner on account of her race but because her work performance fell below company standards. Subsequent to Petitioner's termination, Respondent's production demand decreased resulting in layoffs. Those positions, including Petitioner's, have not been filled.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination against this Respondent. RECOMMENDED this 22nd day of October, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3619 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 3, 5, and 6 are accepted. All other paragraphs are rejected as irrelevant, argument, or unsupported by the weight of the credible evidence presented in this case. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: None submitted. COPIES FURNISHED: Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Sheila D. Crawford 3650 Washington Street Sanford, Florida 32771 Stuart I. Saltman ABB Power T & D Company, Inc. 630 Sentry Park Blue Bell, PA 19422
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
