The Issue Did Respondent, Winn-Dixie Corporation (Winn-Dixie), discriminate against Petitioners on account of their race or sex, or retaliate against Petitioners in violation of chapter 760, Florida Statutes?
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Petitioners, Reginald Burden (Burden) and Donald Rockhold (Rockhold) were co-workers and Warehouse Supervisors for the night shift at Winn-Dixie's General Merchandise Distribution (GMD) facility on Edgewood Avenue in Jacksonville, Florida. At the time of their termination from Winn-Dixie, Rockhold had worked for Winn-Dixie for almost ten years and Burden for fourteen years. In March 2009, Rockhold's supervisor, Mark Murray (Murray) received an anonymous letter accusing Rockhold (a/k/a Rocco) of being unable to control his libido and attempting to "sleep with as many women under him as possible, married or single." Murray showed the letter to his immediate supervisor, Operations Manager Jayson Kielar (Kielar), who in turn showed it to his supervisor, Distribution Center Manager Robert Stewart (Stewart). Contrary to Winn-Dixie policy, the existence of the letter accusing an employee of sexual harassment was not immediately brought to the attention of the Winn-Dixie Human Resources (HR) office. According to Kielar, Stewart did not inform HR because he was afraid someone would be fired. Instead, it was decided the matter would be handled internally at the GMD. Stewart and Kielar informally questioned Rockhold, who denied all of the allegations in the letter. Kielar questioned Stewart's decision not to involve HR, but because Stewart was his boss, he capitulated. In December 2009, Winn-Dixie received a second, similar anonymous letter complaining about rampant sexual harassment in the GMD. This time, however, Peter Lynch, Winn-Dixie's CEO also received a copy. Entitled "Gross Abuse of Power Winn-Dixie Sex Camp," the letter contained lurid accusations of sexual misconduct and named Rockhold as the worst abuser. The letter also accused several other male supervisors, namely Burden (a/k/a Regis or Reggie), Kielar, Murray and Raynell Turner, of sexually harassing female employees. Winn-Dixie immediately launched an investigation to determine whether the allegations were accurate. Robert Scott (an African-American male), Tanya Kornegay (an African-American female), and Stacy Brink (a white female) interviewed numerous GMD employees and obtained written witness statements. Rockhold was interviewed twice (January 18 and 25, 2010) and Burden once (January 18, 2010). During the course of the investigation, it became evident that many of the more sordid accusations of overt sexual misconduct in the letters were false or unsubstantiated. However, the investigation did reveal violations by Petitioners of Winn-Dixie's "Written Company Policy Statement on Harassment, Including Sexual and Racial Harassment." That Statement provides in relevant part: The company will not tolerate any harassment that degrades or shows hostility towards an individual because of race, color religion, sex, national origin, age or disability, including, but not limited to slurs, jokes, verbal abuse, stereotyping, threats, intimidation, hostile acts, or denigrating or hostile written or graphic material circulated or posted in the Company premises. Anyone who violates these guidelines will be subject to termination. * * * 3. Management at all levels is responsible for reporting and taking corrective action to prevent harassment in the work place. * * * The following conduct, especially by managers, can be as serious (or even more serious) than harassment itself: Ignoring or concealing harassment, or treating it as a joke. Failing to report known harassment. Retaliating against associates reporting or complaining of harassment. Being dishonest or refusing to cooperate with a harassment investigation. With respect to Rockhold, the investigation revealed that Rockhold had heard racial slurs and racially inappropriate remarks among employees but failed to take any disciplinary action or report the harassment to HR. One employee complained that Rockhold observed African-American and white employees using the words "nigger" and "cracker" in the workplace. In addition, another employee complained that Rockhold ignored a co-worker saying, "If you come back in Middleburg, we'll show you how we used to do them black boys back in the days." At hearing, Rockhold acknowledged that he heard GMD employees calling each other "nigger" or "cracker." He stated that he "called them out on it." He explained his failure to take any formal disciplinary action by stating, "It wasn't malicious. It was the n-word between black guys being thrown back and forth as a nickname." According to Rockhold, he didn't think it was inflammatory in that context and was merely their vernacular. The investigation also revealed allegations from several employees that Burden made inappropriate sexual comments toward female employees. These included witness statements from John Mason, Tammy Underwood, Amber Brown and Frank Butler. Burden was reported as saying one female employee had "big titties," and telling another female employee that she looked good in her jeans, that Burden could "handle" her, and when was she going to let him be the one for her, and that she didn't need to mess with the young guys because he (Burden) could please her better in the bedroom. One GMD employee testified at hearing that he was present when Burden told a group of employees that he thought a particular female employee had "nice tits." Petitioners knew Winn-Dixie did not tolerate sexual or racial harassment in the workplace, and they were tasked with making sure the environment was not one where employees felt it would be tolerated. Both Petitioners received sexual and racial harassment training as part of their leadership training. Winn-Dixie's employment policies emphasize the importance of supervisors' roles as leaders and the importance of not giving the impression to employees that it is acceptable to make inappropriate jokes in the workplace. Moreover, a supervisor has a duty to act when observing harassing behavior in the workplace. The failure to act communicates to subordinates the company condones or tolerates the behavior. As a result of the investigation, Winn-Dixie decided to terminate Petitioners' employment. Several members of Winn- Dixie's management (male, female, white and African-American) were involved in making this decision. One of those involved in making the decision testified that the group never discussed or considered Petitioners' gender in their decision to terminate Petitioners' employment. The termination notices given to Petitioners are identical, and read as follows: "As the result of an anonymous letter received in early January 2010, addressed to Peter Lynch, a thorough investigation was conducted relative to alleged allegations of inappropriate comments by Associates regarding sexual and racial comments in the presence of management in the Jax-GMD Warehouse. The investigation clearly identifies you as a willing participant or lack of effective execution of the proper protocol established through management training (Duty to Act) to address inappropriate comments from Associates as required by Winn-Dixie's Policy in your Supervisor position." At hearing, Rockhold described his job as "being his life, other than his children." He also testified that being falsely accused of sexual misconduct or ignoring employees who engaged in sexual or racial misconduct, then being fired, ruined his life. He "poured his heart and soul into the company" and testified that no one had ever come to him, as a supervisor, with any kind of a problem with regard to sexual or racial misconduct. Burden testified that he believed that Robert Scott (African-American male) was the one that made the decision to terminate him, not Jayson Kielar (white male) since Kielar had written a letter of recommendation for Burden after he was terminated. Burden testified that he believed he was terminated because he was a man accused of sexual harassment and that somebody had to take the responsibility for the false allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petitions for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 17th day of June, 2013, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 17th day of June, 2013.
The Issue Petitioner charged that Respondent Employer had committed an unlawful employment practice by racial discrimination.
Findings Of Fact This cause was referred to the Division of Administrative Hearings on or about February 17, 2005, following a "Determination: No Cause" by the Florida Commission on Human Relations and the filing of a timely Petition for Relief by Petitioner. Final Hearing was originally noticed on March 2, 2005, for June 1, 2005. Following numerous continuances requested by one or both parties or occasioned by problems arising out of service of discovery by Respondent upon Petitioner, a Notice of Hearing was issued on August 26, 2005, for December 1, 2005, in Jacksonville, Florida. On November 14, 2005, an Amended Notice of Hearing, amended only as to location within the City of Jacksonville was entered and served. Two days before December 1, 2005, which was the date that had been scheduled for final hearing since August 26, 2005, Petitioner telephoned the office of the undersigned to orally request a continuance. The undersigned's secretary advised him the request must be made in writing. The very day before the scheduled hearing, Petitioner filed a "Motion for Extension With Cause," which was essentially a request for a continuance based on Petitioner's allegedly having been unable to obtain legal counsel and unable to engage in discovery using subpoenas. This pleading also indicated that Petitioner had received the November 14, 2005, Amended Notice of Hearing and that he was aware of the new location for the final hearing. Petitioner's Motion was untimely, pursuant to Florida Administrative Code Rule 28-106.210. The record of the Division does not indicate that Petitioner ever applied for any type of subpoena and does indicate that Petitioner had many months in which to obtain an attorney. Because there was no time for a written order to be entered before the final hearing date, the undersigned, through her secretary, advised Petitioner that his Motion was denied as without good cause and that he should appear for the hearing the following day. At the time and place appointed, the final hearing was convened on December 1, 2005. Respondent was represented by a corporate agent, witnesses, and legal counsel, all of whom had traveled some distance to be there. After waiting 30 minutes, neither Petitioner, nor any attorney on his behalf, had appeared. The undersigned "sounded the docket" outside the hearing room, and Petitioner was not there, either. It was further determined that Petitioner had not telephoned the office of the undersigned to indicate any reason he could not physically attend the final hearing. After 40 minutes, Respondent orally moved to dismiss.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination herein. DONE AND ENTERED this 7th day of December, 2005, 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 7th day of December, 2005. COPIES FURNISHED: Cecil Howard, Esquire 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 Antwoine L. Edwards, Esquire Ford & Harrison, LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 Steven Bell Post Office Box 2117 Interlachen, Florida 32148
The Issue Whether Respondent Gulf Coast Community College (Respondent or the College) violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes, by subjecting Petitioner Derek A. Robinson (Petitioner) to discrimination in employment or by subjecting Petitioner to adverse employment actions in retaliation of Petitioner’s opposition to the College’s alleged discriminatory employment practices.
Findings Of Fact Petitioner is an African-American male. The College is a public institution of higher education located in Panama City, Florida. In 1998, Petitioner was hired by the College to work in its custodial department as a custodian. Petitioner held that position until his termination on February 11, 2009. The College's custodial department is part of the College's maintenance and operations division (collectively, ?Maintenance Division?) managed by the campus superintendent. The two other departments within the Maintenance Division are the maintenance and grounds departments. During the relevant time period, there were approximately 40 to 50 employees in the Maintenance Division. Of those, there were approximately 21 to 28 custodians in the custodial department. Most of the custodians were African-Americans and there were only three Caucasian custodians. The Caucasian custodians were Tom Krampota, Josephine Riley, and Tommy Gillespie. Custodial staff typically work shifts beginning at 2:00 p.m. and ending at 10:00 p.m., Monday through Friday. They are generally assigned housekeeping duties for a specific building. In addition to Monday through Friday, the College is also open on most weekends. Prior to 2001, the College began designating one employee to work a non-rotating weekend shift. Unlike other custodians, the designated weekend custodian worked from 10:00 a.m. to 10:30 p.m. on Fridays and 6:00 a.m. to 6:30 p.m. on Saturdays and Sundays. The weekend custodian was not assigned to a particular building, but rather worked in various buildings as needed and was to be available to open doors to campus buildings during weekend hours. Petitioner was the designated weekend custodian from 2001 until his duties were changed in September 2008. Dr. John Holdnak, who worked for the College for 26 years in various capacities, including four years as Director of Human Resources, was the one who established the position of designated weekend custodian. Dr. Holdnak served as the College's Vice-President for Administration Services for his last eight years of employment with the College until leaving in July, 2008. As vice-president, Dr. Holdnak reported directly to the president of the College, Dr. James Kerley. Sometime prior to 2008, Dr. Holdnak observed that the departments in the Maintenance Division were underperforming, not adequately supervised, and failing to meet expectations. Dr. Holdnak observed that the Maintenance Division employees took excessive breaks and showed lack of effort in their work. For example, mold was found in some of the classrooms, an open window with a bird's nest was found in another, maintenance orders were backlogged, and Dr. Holdnak received a number of complaints from faculty and College employees regarding the Maintenance Division's level of service. As a result of Dr. Holdnak's observations, the College removed the campus superintendent from his position because of the superintendent's inability to manage line supervisors, provide leadership, or supervise personnel. After that, Dr. Holdnak personally supervised the Maintenance Division for a time in order to assess and develop a solution to the problem. Based upon Dr. Holdnak's assessment, the College sought applications for a new campus superintendent who could change and clean-up the culture of the Maintenance Division. At the time, the three department supervisors within the Maintenance Division were: Carlos "Butch" Whitehead for maintenance, Dan Doherty for custodial, and Ronny Watson for grounds. All three supervisors were Caucasian. The vacancy for the campus superintendent position was advertised. Dr. Holdnak encouraged John Westcott to apply for the campus superintendent position because he had previously worked with Mr. Westcott on a College construction project and was impressed with his vigor and work ethic. Mr. Westcott, a Caucasian, applied. So did custodial department supervisor, Dan Doherty, and three other candidates. Mr. Westcott disclosed on his application that he had been convicted of a felony twenty years prior to his application. Dr. Holdnak determined that Mr. Westcott's prior conviction would not impact his candidacy for the position. The applicants were screened by a selection committee composed of a number of College employees from various divisions, including Petitioner. Of the five applicants who applied, the selection committee's first choice was John Westcott, who was qualified for the position. Petitioner did not agree with the selection committee's first choice and was not impressed with Mr. Westcott during the screening process because Mr. Westcott referred to himself as the "terminator." Based upon the selection committee's first choice and the conclusion that Mr. Westcott satisfied the necessary criteria to change the Maintenance Division's culture, Dr. Holdnak recommended that the College hire John Westcott as the new campus superintendent. John Westcott was hired as campus superintendent in January 2008. Once Mr. Westcott was hired, Dr. Holdnak specifically directed him to take control of his departments, ?clean up the mess? and hold his mid-level supervisors responsible for their subordinates' results. Dr. Holdnak instructed Mr. Westcott to take a hands-on approach, physically inspect and visit the buildings to ensure cleanliness, increase effectiveness, stop laziness, and decrease work order backlogs. During his tenure, Mr. Westcott increased productivity and reduced backlogs. Mr. Westcott took more initiative than previous superintendents with cleaning and maintenance, and he conducted weekly walkthroughs. While Mr. Westcott was campus superintendent, the backlog of 400 work orders he had inherited was reduced to zero. During Mr. Westcott's first month as campus superintendent, he had an encounter with a Caucasian employee named Jamie Long. On January 31, 2008, Mr. Westcott issued a written memorandum to Mr. Long as a follow-up from a verbal reprimand that occurred on January 28, 2008. The reprimand was Mr. Westcott's first employee disciplinary action as campus superintendent. According to the memorandum, the reprimand was based upon Mr. Long's confrontation and argument with Mr. Westcott regarding the fact that Mr. Westcott had been ?checking-up? on him. According to the memorandum, Mr. Westcott considered "the manner in which [Mr. Long] addressed [him as] totally inappropriate and could be considered insubordination." Mr. Long disputed Mr. Westcott's version of the incident and later sent a letter to College President Dr. Kerley dated June 23, 2008, complaining about "the alleged incident of insubordination" and the "almost non-stop harassment by John Westcott." There was no mention or allegation in the letter that John Westcott was racist or had discriminated against anyone because of their race. After Dr. Holdnak left the College in July 2008, John Mercer assumed his responsibilities. Mr. Mercer, like Dr. Holdnak, had the perception that custodial work was below par based on complaints and personal observations. He therefore continued to direct Mr. Westcott to address these deficiencies to improve the custodians' performance. Petitioner was the designated weekend custodian when Mr. Westcott was hired. In February 2008, Dr. Holdnak discovered a problem with the amount of paid-time-off Petitioner received as a result of his weekend schedule. The problem was that if a holiday fell on a weekend, Petitioner would take the entire weekend off, resulting in a windfall of 37.5 hours in additional paid-time- off for Petitioner over other employees because his work hours on the weekends were longer. In order to correct the problem, in approximately March 2008, Petitioner was placed on a similar holiday pay schedule as all other employees. At the time, the then-director of the College's Department of Human Resources, Mosell Washington, who is an African American, explained the change to Petitioner. According to Mr. Washington, Petitioner was not happy about the change in his holiday pay schedule. Petitioner, however, does not blame Mr. Westcott for initiating the change. Because of the change in his holiday pay schedule, Petitioner was required to work or use leave time for the additional working hours during the Fourth of July weekend in 2008. Petitioner called and asked to speak with Mr. Westcott regarding the issue. During the phone call, Petitioner used profanity. After being cursed, Mr. Westcott hung up the phone and then advised Mr. Washington, who told Mr. Westcott to document the incident. The resulting written reprimand from Mr. Westcott to Petitioner was dated July 11, 2011, and was approved by Mr. Washington. When Mr. Washington presented Petitioner with the written reprimand, Petitioner refused to sign an acknowledgement of its receipt and abruptly left the meeting without any comment. Petitioner did not tell Mr. Washington that he believed he was being targeted or discriminated against because of his race. In addition to setting forth Mr. Westcott's version of what occurred, the written reprimand advised Petitioner that the College had a grievance procedure, and also stated: I have an open door policy and will gladly address any concerns you may have whether personal or job related. If you have a grievance, tell me, but in the proper manner and in the proper place. Petitioner did not take advantage of either the College's grievance procedure or Mr. Westcott's stated open door policy. The College maintains an anti-discrimination policy and grievance policy disseminated to employees. The College's procedure for employee grievances provides several levels of review, starting with an immediate supervisor, then to a grievance committee, and then up to the College's president. Under the College's anti-discrimination policy, discrimination and harassment based on race or other protected classes is prohibited. Employees who believe they are being discriminated against may report it to the Director of Human Resources. Likewise, harassment is prohibited and may be reported up the chain of command at any level. Petitioner acknowledged receipt of the College handbook and policies on August 17, 2007. In addition, both the College President, Dr. Kerley, and Vice President, John Mercer, maintain an ?open door? policy. After receiving the July 11, 2008, written reprimand, Petitioner spoke to both Dr. Kerley and Mr. Mercer, at least once, on July 15, 2008. Petitioner, however, did not tell them that he had been discriminated against because of his race. In fact, there is no credible evidence that a report of race discrimination was ever made regarding the July 11, 2008, written reprimand prior to Petitioner's termination. Petitioner, however, did not agree with the July 11, 2008 written reprimand. After speaking to Dr. Kerley and Mr. Mercer, Petitioner met with Jamie Long, the Caucasian who had earlier received a write-up from Mr. Westcott, for assistance in preparing a written response. The written response, dated August 4, 2008, and addressed to Mr. Washington, Mr. Westcott, and Mr. Mercer, stated: On July 25, 2008, I was called into Mosell Washington's office and was given a written letter of reprimand from John Westcott, the Campus Superintendent, which states that on July 3, 2008, I had used profanity in a phone conversation with him regarding my 4th of July work schedule. From the schedule that I received in February, from Mosell Washington, I believed I was off that weekend. I am writing this letter to dispute Mr. Westcott's version of our conversation and to protest the letter of written reprimand. Mr. Westcott says in the reprimand that I was insubordinate to him and had used profanity. I did not use profanity, and I do not believe that I was insubordinate in any manner to him during our brief conversation. I feel that my work record and my integrity speaks for itself. I have never been insubordinate, or been a problem to anyone until John Westcott, and had I known that I was supposed to be on the job that weekend, I would have been there. Mr. Washington, Mr. Westcott, and John Mercer all deny receiving the written response. In addition, contrary to the written response, at the final hearing, Petitioner admitted that he used profanity during the call and said ?ass? to Mr. Westcott. Moreover, the written response does not complain of race discrimination, and Dr. Kerley, Mr. Mercer, Dr. Holdnak, Mr. Washington, and Mr. Westcott all deny that they ever received a complaint of race discrimination regarding the incident. Evidence presented at the final hearing did not show that the written reprimand given to Petitioner dated July 11, 2008, was racially motivated, given in retaliation for Petitioner’s statutorily-protected expression or conduct, or that a similarly-situated non-African-American who used profanity to a supervisor would not be subject to such a reprimand. Mr. Westcott generally worked a more traditional Monday through Friday schedule and, because of Petitioner's weekend work schedule, had minimal contact with Petitioner. In fact, Mr. Westcott would not usually be on campus with Petitioner, except Fridays, and the two men rarely spoke until Petitioner's work schedule was changed in September 2008. During the weekends that he worked at the College, Petitioner was on-call and expected to return communications to his pager or mobile phone, even during his lunch breaks, regardless of his location. On Friday, August 22, 2008, after receiving a request from faculty member Rusty Garner, Petitioner’s supervisor Dan Doherty asked Petitioner to clean the music room floor. On Sunday afternoon, August 24, 2008, Mr. Mercer and Mr. Westcott were working when they received word from Mr. Garner that the music room floor had not been cleaned. After unsuccessful attempts to reach Petitioner by cell phone and pager, both Mr. Mercer and Mr. Westcott drove around the College campus to find him. They were unsuccessful. The reason Petitioner could not be reached was because he had left campus and had left his telephone and pager behind. According to Petitioner, he was on lunch break. Mr. Mercer and Mr. Westcott found another employee, Harold Brown, to help prepare the music room for Monday. Mr. Mercer was upset because he had to take time out from his own work to find someone to complete the job assigned to Petitioner. That same afternoon, Mr. Mercer reported the incident by e-mail to Mr. Washington and requested that appropriate action be taken. On August 27, 2008, Petitioner’s supervisor, Dan Doherty, issued a written reprimand to Petitioner for the August 24th incident. No evidence was presented indicating that the written reprimand was racially motivated, or that a similarly situated non-African-American who could not be located during his or her shift would not be subject to such a reprimand. In September 2008, Dr. Kerley unilaterally determined that no single employee should work his or her entire workweek in three days. He believed this schedule was unsafe, and not in the best interests of the college. He therefore directed Mr. Westcott and Mr. Mercer to implement a rotating schedule for the weekends. Mr. Westcott was not in favor of the change because it meant additional scheduling work for him to accommodate new rotating shifts. No credible evidence was presented that the schedule change was because of Petitioner’s race, or made in retaliation for Petitioner’s statutorily-protected expressions or actions. From August 27, 2008, through January 2009, there were no other disciplines issued to Petitioner or reported incidents between Petitioner and Mr. Westcott. In December, 2008, a group composed of most of the custodial employees, including Petitioner, conducted a meeting with the College's president, Dr. Kerley, and vice-president, Mr. Mercer. The group of custodians elected their new supervisor James Garcia, an Asian-Pacific Islander, as their spokesperson for the meeting. The custodians' primary purpose for the meeting was to address complaints regarding Mr. Westcott’s management style, his prior criminal conviction, and approach with employees. They felt that Mr. Westcott could not be pleased. Various concerns about Mr. Westcott expressed by the employees were condensed into three typed pages (collectively, ?Typed Document?) consisting of two pages compiled by Jamie Long and his wife Susan Long which contained 12 numbered paragraphs, and a third page with six unnumbered paragraphs. Mr. Garcia did not transmit the Typed Document to the president or vice- president prior to the meeting. Neither Jamie Long nor his wife attended the meeting. During the meeting, Mr. Garcia read several of the comments from the Typed Document and Dr. Kerley responded to each comment that was read. Mr. Garcia did not read through more than the first five of the 12 items listed on the Typed Document. The Typed Document was not reviewed by the president or vice-president and they did not retain a copy. Petitioner asserts the comment listed in paragraph 9 on the second page of the Typed Document constitutes a complaint or evidence of racial animus. Although not discussed at the meeting or reviewed by Dr. Kerley or Mr. Mercer, paragraph 9 states: During a recent candidate forum, Westcott used the term ?black ass? in regard to School Superintendent James McCallister. This was heard by at least two witnesses. Q. Are such racial slurs and inappropriate, unprofessional behavior condoned and acceptable? Mr. Westcott denies making the alleged statement referenced in paragraph 9 of the Typed Document. No evidence of other racial remarks allegedly made by Mr. Westcott was presented. There is no evidence that the College or its administration condoned the alleged statement. President Kerley, Vice President Mercer, and Mr. Washington all gave credible testimony that they were not made aware of the statement and that, if the statement in paragraph 9 of the Typed Document or any alleged racial discrimination by Mr. Westcott had been brought to their attention, immediate action would have been taken. As a result of custodial employees’ complaints about Mr. Westcott’s management style, Dr. Kerley and Mr. Mercer required Mr. Westcott to attend several sessions of management training. In addition, Dr. Kerley counseled Mr. Westcott against using harsh tactics and rough language that may be acceptable on a construction site, but were not appropriate on a College campus. On February 9, 2009, Mr. Westcott observed both Petitioner and a co-worker leaving their assigned buildings. He asked their supervisor, Mr. Garcia, to monitor their whereabouts because he thought that they appeared to not be doing their jobs. Mr. Westcott also told Mr. Garcia that, although the two workers may have had a legitimate reason for walking from their assigned buildings, he had not heard anything on the radio to indicate as much. The next day, on February 10, 2009, Mr. Garcia told Petitioner that Mr. Westcott had wanted to know where they had been headed when they left the building the day before. Petitioner responded by saying that if Mr. Westcott wanted to know where he was, Mr. Westcott could ask him (Petitioner). Later that day, Petitioner spoke to Mr. Washington on campus. Petitioner was very upset and said to Mr. Washington, ?What’s wrong with Westcott? He better leave me alone. He don’t know who he’s messing with.? Later that same afternoon, Petitioner had a confrontation with Mr. Westcott. According to a memorandum authored that same day by Mr. Westcott: I [John Westcott] had stopped outside the mailroom to talk with Beth Bennett. While talking with her I observed Derek [Petitioner] leave Student Union West. After seeing me, he returned to Student Union West and waited outside the door. Beth walked toward the Administration building and I headed through the breezeway. Derek approached me and said that he had heard that I wanted to ask him something. I asked him what he was talking about. He said that I wanted to ask him where he was going the evening before. I said ok, where were you going? Derek said that it was ?none of my f_ _ _ ing business.? I told him that since I was his supervisor, that it ?was? my business. At this time, he stepped closer to me in a threatening manner and said ?if you don’t stop f_ _ _ ing with me, I’m going to f_ _ _ you up.? I told him that if he would do his job, that he wouldn’t have to worry about me. He replied ?you heard what I said--- I’ll f_ _ _ you up?, as he walked back into SUW. I left the breezeway and went to John Mercer’s office to report the incident. Mr. Westcott’s testimony at the final hearing regarding the incident was consistent with his memorandum. While Petitioner’s version of the confrontation is different than Mr. Westcott’s, at the final hearing Petitioner admitted that Mr. Westcott had a legitimate question regarding his whereabouts and that he failed to answer the question. And, while he denied using the specific curse words that Mr. Westcott attributed to him, Petitioner testified that he told Mr. Westcott to leave him the ?hell? alone because he was doing his job. While there is no finding as to the exact words utilized by Petitioner to Mr. Westcott, it is found, based upon the testimonial and documentary evidence, that on the afternoon of February 9, 2009, Petitioner was confrontational towards Mr. Westcott, that Petitioner refused to answer a legitimate question from Mr. Westcott, that Petitioner demanded that Mr. Westcott leave him alone even though Mr. Westcott had a legitimate right to talk to Petitioner about his job, and that Petitioner used words that threatened physical violence if Mr. Westcott did not heed his warning. After Mr. Westcott reported the incident to Mr. Mercer, both Mr. Mercer and Mr. Westcott went to Dr. Kerley and advised him of the incident. Dr. Kerley believed the report of the incident and that Petitioner had threatened Mr. Westcott. Mr. Washington was then informed of the incident. After reviewing Petitioner’s employment history, including Petitioner’s recent attitude problems, as well as Mr. Washington’s own interaction the same day of the latest incident, Mr. Washington concluded that Petitioner should be terminated. Mr. Washington gave his recommendation that Petitioner be terminated to Dr. Kerley, who adopted the recommendation. The following day, February 11, 2009, Mr. Washington called Petitioner into his office and gave him a memorandum memorializing Petitioner’s termination from his employment with the College. The memorandum provided: This memorandum is written notification that because of a number of incidents which the administration of the college deems unprofessional, adversarial, and insubordinate, you are hereby terminated from employment at Gulf Coast Community College, effective immediately. At the time that he presented Petitioner with the memorandum, Mr. Washington provided Petitioner with the opportunity to respond. Petitioner told Mr. Washington, ?It is not over.? Petitioner did not state at the time, however, that he believed that his termination, change of schedule, or any disciplinary action taken against him were because of racial discrimination or in retaliation for his protected expression or conduct. Further, at the final hearing, Petitioner did not present evidence indicating that similarly-situated non-African- American employees would have been treated more favorably than was Petitioner for threatening a supervisor. Further, the evidence presented by Petitioner did not show that the decision to terminate him was based on race or in retaliation for protected expression or behavior, or that the facts behind the reason that Petitioner was fired were fabricated. Following his termination, Petitioner met with both Dr. Kerley and Mr. Mercer and apologized for acting wrongly. The empirical record evidence of discipline against College employees in the Maintenance Division during Mr. Westcott’s tenure does not demonstrate a tendency by Mr. Westcott or the College to discriminate against African- American employees. The majority of disciplines and the first discipline taken against Mr. Long by Mr. Westcott were administered to Caucasians. In total, Mr. Westcott only reprimanded five employees. Of these, three were Caucasian -- Mr. Long, Mr. Whitehead, and Mr. Doherty. Despite the fact that the majority of the custodians were African-American, only two African-Americans were disciplined -- Petitioner and Harold Brown. During Mr. Westcott’s employment, the only two employees who were terminated were Petitioner and a white employee, Mark Ruggieri. Excluding Petitioner, all African-American witnesses testified that Mr. Westcott treated them equally and not one, except for Petitioner, testified that they were treated differently because of their race. The testimony of Petitioner’s African-American co-workers is credited over Petitioner’s testimony of alleged discrimination. Harold Brown’s discipline was based upon the fact that he gave the College’s master keys to an outside third-party contractor. Although Mr. Brown disagreed with the level of punishment he received, in his testimony, he agreed that he had made a mistake. Mr. Brown further testified that he did not believe African-Americans were targeted. According to Mr. Brown, Mr. Westcott did not discriminate against him because of his race, and ?Westcott was an equal opportunist as far as his behavior? and ?seemed agitated towards everybody when he was in his moods.? Mr. Garcia was the lead custodian when Petitioner was terminated and is currently the College’s custodial department supervisor. While several employees told Mr. Garcia that they did not like Mr. Westcott’s management style, Mr. Garcia never heard a racist comment and testified that Mr. Westcott was strict and threatened the entire custodial and maintenance staff. Butch Whitehead believes that Mr. Westcott attempted to get him and his maintenance crew ?in trouble.? He had no personal knowledge of the manner in which Mr. Westcott treated Petitioner. Mr. Whitehead's testimony does not otherwise support a finding that Mr. Westcott was a racist or that the College discriminated against Petitioner because of his race. Tom Krampota, a Caucasian and longtime employee and former supervisor, agreed that Mr. Westcott was firm with all custodians and complained about everybody, but was not a racist. Lee Givens, an African-American, testified that his custodial work was monitored because Mr. Westcott took issue with dust and cleanliness, but that if he did his job Mr. Westcott did not bother him. Mr. Givens did not testify that he felt discriminated against because of his race, but rather stated that Mr. Westcott made the job hard for ?all the custodians.? Horace McClinton, an African-American custodian for the College, provided a credible assessment of Mr. Westcott in his testimony which summarized how Mr. Westcott treated all of his subordinates: There were certain things that he wanted us to do that we should have been doing already, and he was just there to enforce it . . . he did not think anybody was doing their job . . . . He was put there to make sure we were doing our job . . . . I don't think he was a racist. Mr. McClinton further testified that all Maintenance Division employees, including Caucasian supervisors, were afraid of Westcott because it was ?his way or the highway.? Latoya ?Red? McNair testified that he was being monitored like the other custodians but did not believe it was because of race. Just as Petitioner’s co-workers’ testimony does not support a finding that Mr. Westcott was a racist, Dan Doherty’s deposition testimony does not support a finding that Mr. Westcott’s actions against Petitioner were because of race. A review of Mr. Doherty’s deposition reflects that Mr. Doherty has no first-hand knowledge of actual discrimination. Mr. Doherty stated, ?I don't know? when asked how he knew Westcott was motivated by race. Nevertheless, according to Mr. Doherty, five African-Americans were singled out, including Petitioner, Mr. McClinton, Mr. Givens, Mr. McNair, and Mr. Brown. Two of these alleged ?victims? outright denied that Mr. Westcott treated them unfairly because of race. The others did not testify that they believed Mr. Westcott treated them differently because of race. Mr. Doherty testified that besides the five identified, the remaining African-Americans were not criticized or targeted. Mr. Doherty also conceded that it was possible that Mr. Westcott just did not like the five custodians. Further, despite the fact that Mr. Doherty was written up by Mr. Westcott more than any other employee, including Petitioner, Mr. Doherty never reported Mr. Westcott for discrimination and did not state in his exit interview from the College that Mr. Westcott was a racist or complain that race was an issue. Rather than supporting a finding that Mr. Westcott was motivated by race, Mr. Doherty’s testimony demonstrated that the problems he had with Mr. Westcott were similar with those pointed out by others—-namely, that Mr. Westcott had a prior criminal conviction, had a harsh management style, and closely scrutinized all workers. While Petitioner and Mr. Long contend that they raised the issue of discrimination with the College's management, the College's president, vice-president, director of human resources, former vice-president, and superintendent all deny receiving a report of discrimination or that any employment action was based on race or in retaliation. Mr. Long’s testimony that he complained of race is not substantiated because he did not witness any discrimination first hand. He also never documented his alleged concerns about racial discrimination prior to Petitioner's termination. In addition, in his testimony, Mr. Long admitted that he never heard Mr. Westcott use a racially discriminatory term. Likewise, Petitioner never documented alleged discrimination until after being terminated. Considering the evidence presented in this case, and the failure of Petitioner and Mr. Long to document alleged complaints when an opportunity was presented, it is found that the allegations of reported complaints of discrimination by Mr. Long and Petitioner are not credible. Further, the testimony from Petitioner’s co-workers and supervisors, which indicates that Mr. Westcott was harsh with all employees but not racially discriminatory, is credited. It is found that Petitioner did not show that any employment action by the College or Mr. Westcott against him was based on race. Rather, the evidence presented in this case demonstrates that Petitioner was not targeted or treated differently from any other employees based upon race. The evidence also failed to show that Petitioner was retaliated against because of his protected expression or conduct. In sum, the evidence did not show that Petitioner was subject to racial discrimination or wrongful retaliation, and Respondent proved that Petitioner was terminated for engaging in a pattern of unprofessional, adversarial, and insubordinate behavior, including a threat to his supervisor’s supervisor, John Westcott.
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 Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of December, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 6th day of December, 2011.
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 2014.
The Issue The issue in this case is whether Limited Edition Interiors, Inc. (Respondent), committed an act of unlawful employment discrimination and an act of retaliation against an employee, Arlene Matvey (Petitioner), in violation of Pinellas County Code sections 70-53(a) and 70-54(1).
Findings Of Fact At all times material to this case, the Respondent was an interior furnishings retailer located in Largo, Florida, and owned by William S. Miller (Mr. Miller) and Judith L. Miller (Mrs. Miller), a married couple. Mrs. Miller was the president of the company. Mr. Miller was the secretary/treasurer of the company. Both Mr. and Mrs. Miller were generally present at the business. The Respondent was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. On October 31, 2005, the Respondent hired the Petitioner to work as the office manager and bookkeeper in a full-time, salaried position. The Petitioner's duties included tracking various accounts, preparing sales invoices, preparing the payroll, preparing certain tax records, and general office filing. The Petitioner, a single mother, had been unemployed for an extended period prior to being hired by the Respondent. Both Mr. and Mrs. Miller knew that the Petitioner needed the financial support provided by her job. Mr. Miller was the Petitioner's supervisor. Their work areas were in relatively close proximity, with Mr. Miller occupying an office space with a door and the Petitioner occupying a workstation immediately outside Mr. Miller's office. There was a second workstation also located outside Mr. Miller's office, and, on occasion, a third employee was present in the area. A few months after the Petitioner began employment at the Respondent, Mr. Miller began to make remarks about the Petitioner's physical appearance, particularly her "derriere." The remarks were frequent and were heard by other employees. The Petitioner was offended by the remarks and routinely told Mr. Miller to stop. On more than one occasion, Mr. Miller asked the Petitioner to sit on his lap. The Petitioner objected to Mr. Miller's requests and told him so. On at least one occasion, the exchange between Mr. Miller and the Petitioner was overheard by another employee. At various times, Mr. Miller called male employees and the Petitioner into his office to view sexually-suggestive photographs on his computer, some of which were described as pornographic. The Petitioner and other employees objected to the display of photographs and told him that they objected to his showing them the photos. At other times, Mr. Miller called the Petitioner into his office and showed her pornographic images on his computer screen. She felt disturbed by his behavior and told him of her objection. At times during the Petitioner's employment by the Respondent, Mr. Miller made purposeful and inappropriate physical contact with the Petitioner's body. Such contact included attempts to grab the Petitioner by her waist and to rub his clothed genital area against the Petitioner's clothed buttocks. The Petitioner consistently objected to Mr. Miller's behavior and told him of her objections. Other employees observed Mr. Miller's conduct and the Petitioner's objections to his behavior. On one occasion, Mr. Miller called the Petitioner into his office and told her a joke that included his displaying the outline of his penis through his pants, at which time the Petitioner voiced her objection to Mr. Miller. In September 2007, Mr. Miller appeared at the Petitioner's home, and, while there, he exposed his penis to the Petitioner and attempted to entice the Petitioner into sexual activity. He had not been invited to come to her home, and he left the premises when she directed him to do so. At various times during her employment, Mr. Miller asked the Petitioner to expose her breasts to him, and she objected and declined to do so. She eventually complied with the request on one occasion, because she feared losing her job if she refused. Subsequently, Mr. Miller told a male employee that the Petitioner had acceded to his request to see her breasts. The male employee relayed the conversation to the Petitioner, who felt humiliated by the incident. There was no evidence presented at the hearing to suggest that the Petitioner invited or encouraged Mr. Miller's inappropriate behavior. To the contrary, the evidence establishes that the Petitioner routinely told Mr. Miller of her objections to his conduct at the time it occurred. Because the Petitioner had been unemployed prior to being hired by the Respondent and was afraid of losing her job, she did not complain to Mrs. Miller about Mr. Miller's conduct. At the beginning of 2008, the Petitioner advised Mr. Miller that she felt he was "sexually harassing" her. Mr. Miller thereafter began to engage in a pattern of verbal harassment directed towards the Petitioner's job performance. He began to assign tasks to the Petitioner unrelated to her prior bookkeeping or office manager duties. She was assigned to monitor the store inventory, prepare sales tags and attach them to floor samples, dust the store, and clean the kitchen. Mr. Miller routinely criticized the Petitioner's work skills, argued with her about the performance of her duties, and called her "stupid." Prior to January 2008, neither Mr. nor Mrs. Miller had expressed any significant dissatisfaction with the quality of the Petitioner's work as office manager or bookkeeper. There was no credible evidence presented at the hearing that the Petitioner was unable or unwilling to perform the office manager and bookkeeper tasks for which she was hired. Indicative of Mr. Miller's general attitude towards the Petitioner, he used a parrot that was kept at the store to intimidate the Petitioner, who was afraid (perhaps irrationally) of the bird. Mr. Miller clearly knew that the Petitioner was fearful of the bird, yet he would stand behind the Petitioner while she was working and hold the bird near the Petitioner's head, terrifying her. In early 2009, Mr. Miller again called the Petitioner into his office and showed her pornographic images on his computer screen. She again advised him of her objection to his conduct. Prior to 2009, the Petitioner had not talked with Mrs. Miller about her husband's conduct, because the Petitioner remained concerned about losing the job. However, in February 2009, while the two women were both in the store's lunchroom area, the Petitioner advised Mrs. Miller of Mr. Miller's conduct and asked Mrs. Miller to intervene. Mr. Miller had been out of the store for much of February 2009. He returned to work on February 23, 2009, and the Petitioner testified that he left her alone for a few days after his return. However, on March 2, 2009, the Respondent terminated the Petitioner's employment as a salaried, full-time employee, transferred her into an hourly wage position, and reduced her employment hours. She was partially relieved of her bookkeeping responsibilities and was assigned additional store tasks such as moving old boxes and cataloging their contents. The Respondent asserted that the March 2, 2009, action was the result of deteriorating business conditions. The Respondent asserted that the store revenues had declined and that they were required to reduce payroll costs by reducing personnel. The Respondent failed to provide any credible evidence supporting the assertion that deteriorating sales and income were the rationale behind the alteration of the Petitioner's work responsibilities. After March 2, 2009, Mr. Miller routinely continued to criticize the Petitioner's work performance. On July 23, 2009, Mr. Miller and the Petitioner became engaged in a heated discussion in the office area, during which he referred to her as a "fucking c-nt." Although Mr. Miller testified that he did not intend for the Petitioner to hear his insult, he said it loudly enough to be overheard by another employee who was also in the office area. Mr. Miller had previously used the same phrase to refer to other women, including Mrs. Miller. The Petitioner immediately reacted, screaming at Mr. Miller that he could not use the phrase and stating that she would be filing "a complaint" against him. The Petitioner left the office area and went into the store area, loudly protesting Mr. Miller's insult and intending to advise Mrs. Miller of the incident. Because there were customers in the store at the time, Mrs. Miller focused more on calming the Petitioner and not disrupting the store. After speaking briefly with Mrs. Miller, the Petitioner returned to the office area to collect her possessions. Mr. Miller approached the Petitioner and placed his hands in the area of her neck, which caused the Petitioner to feel physically threatened. The Petitioner took her possessions and left the store. The Petitioner next returned to work on July 27, 2009, at which time she was told that she was no longer the office manager and bookkeeper. At the hearing, Mr. Miller testified that the Petitioner was removed from the office because the situation had become volatile. Mrs. Miller testified that, because the Petitioner was argumentative, a decision had been made to remove her from the office. On July 27, 2009, when the Petitioner asked Mrs. Miller why she was no longer the office manager, Mrs. Miller said the Petitioner's job had been changed "because of Bill," meaning Mr. Miller. As of July 27, 2009, the Petitioner had no further office management responsibilities and retained only janitorial and store tasks. The Petitioner was also directed to call the store before coming in to see if she was needed on that day. On some days, the Petitioner was told there was no work for her. On August 14, 2009, the Respondent terminated the Petitioner's employment. There was no credible evidence presented at the hearing that the termination of the Petitioner's employment was related to dissatisfaction with her performance as the Respondent's office manager and bookkeeper, or to the performance of the other tasks that were subsequently assigned. The Respondent asserted that economic conditions caused them to terminate some employees, including the Petitioner, but there was no credible evidence presented to support the assertion. The evidence presented during the hearing established that employees who were terminated were fired for non-performance of their job duties. There was no credible evidence presented at the hearing that the Petitioner's termination or the reduction in her work hours was related to the Respondent's economic condition. At the hearing, employees (both current and former) described Mr. Miller's treatment of women as degrading and humiliating. Employees who worked for the Respondent concurrently with the Petitioner were aware that she was being humiliated by Mr. Miller's behavior. In addition to the Petitioner, Mr. Miller previously assigned janitorial duties to an employee whom he disfavored when he wanted the employee to quit. After the Petitioner's employment was terminated by the Respondent, the Petitioner attempted to obtain another job. During the period of unemployment, the Petitioner received $300.00 per week in unemployment compensation benefits. As of November 9, 2006, the Petitioner earned a bi- weekly salary of $1,600.00 from the Respondent. As of February 1, 2006, the Respondent provided health insurance coverage for the Petitioner as a benefit of her employment and continued such coverage after her termination and through December 31, 2009. As of April 29, 2010, the Petitioner became employed by Gentry Printing Company as a full-time bookkeeper earning $15.00 per hour and working a 40-hour week. On July 17, 2010, the Petitioner received a raise from Gentry Printing Company to $16.00 per hour for the 40-hour week. Gentry Printing Company withholds $22.50 from the Petitioner's weekly income as her contribution to the medical insurance program. At the hearing, the Petitioner presented testimony related to damages. The evidence established that the Petitioner was entitled to an award of $32,745.00 in back pay. The Respondent presented no corresponding evidence or testimony related to damages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the Respondent violated Pinellas County Code sections 70-53 and 70-54 and ordering the Respondent to pay the sum of $32,745.00 plus interest at the prevailing statutory rate to the Petitioner. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011. COPIES FURNISHED: William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street, Sixth Floor Clearwater, Florida 33756 Robert G. Walker, Jr., Esquire Robert G. Walker, P.A. 1421 Court Street, Suite F Clearwater, Florida 33756 Sherri K. Adelkoff, Esquire 1159 South Negley Avenue Pittsburgh, Pennsylvania 15217 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee. Violations of this policy resulted in dismissal of a non- minority employee in the past. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. 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 13th day of September, 2005. COPIES FURNISHED: James M. Bowles 4193 Evelyn Street Marianna, Florida 32446 H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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 On April 27, 1995, Petitioner filed a charge of discrimination alleging that Respondent discriminated against him on account of his race when it discharged him from employment. The issue for disposition in this proceeding is whether that discrimination occurred and, if so, what remedy is appropriate.
Findings Of Fact The Center for Drug Free Living Center is a not-for- profit corporation which operates substance abuse and juvenile justice programs in central Florida. It works in four counties with approximately 500 employees. The Center receives state and federal grants and contracts and also receives funds from United Way and various local governments. Approximately 5 years ago the Center expanded from a substance abuse treatment program into a program that also targets young juvenile offenders. Its largest facility for juvenile offenders is a 100-bed residential facility in Intercession City, Florida. That facility is called the Adolescent Residential Campus (ARC). Youths at the ARC are involuntarily committed for a variety of offenses, from property crimes to violent crimes against persons. ARC provides educational treatment, skills training, health care, and a broad range of residential services with the goal of returning the youths to productive lives in their communities. The entire ARC staff is trained in crises intervention. Dana Monroe is an African-American male who was hired by the Center on October 21, 1993, to work as a night monitor at the ARC. On June 15, 1994, retroactive to April 16, 1994, he was promoted to counselor and received a raise from $15,000.00 to $18,000.00. The new hire and promotion were both approved by the Center president, Donald J. "Jerry" Feulner. Bill Ferguson was the ARC program director when Dana Monroe was hired. Mr. Ferguson was a cordial, low-key professional administrator. When Mr. Ferguson left he was replaced with Scurry Miller sometime in late 1994. Mr. Miller's management style was very different from his predecessor's. As described by both superiors and subordinates, Mr. Miller was bold, abrasive, unorthodox, and strict. He began disciplining employees for matters which Mr. Ferguson had evidently ignored. Some employees found him a charismatic leader; others found him disagreeable and offensive. In December 1994, Dana Monroe received his first verbal warning for inappropriate use of physical force. A written memorandum documenting the meeting between Dana Monroe and Scurry Miller is dated December 15, 1994. A copy was provided to Finn Kavanaugh, the assistant director of ARC. The incident confirmed Mr. Kavanaugh's own observations of Dana Monroe's growing tendencies to yell and use physical intervention with clients or to inappropriately lose his temper. On March 3, 1995, Mr. Kavanaugh personally counseled Dana Monroe, by telephone, after Mr. Monroe failed to appear for work the preceeding day, March 2. Mr. Monroe's immediate supervisor, Vince Hennessy, an African-American male, had called Mr. Monroe at home when he did not appear for work and was told that Mr. Monroe was ill. The nature of the work and need for adequate staffing required that ARC employees give at least 2 hours prior notice for absenteeism due to illness. Also in the March 3 telephone conversation Finn Kavanaugh informed Mr. Monroe that Vince Hennessy had documented a written warning for Mr. Monroe's loss of professional composure with a client subsequent to the incident that was addressed by Mr. Miller in December. When asked what could be done to help him, Mr. Monroe denied that he had a problem. On March 31, 1995, Scurry Miller documented another verbal warning to Dana Monroe when two clients escaped while under his supervision. Mr. Monroe does not dispute the escape but claims that he was occupied with other clients at another location and was not responsible. On April 17, 1995, Finn Kavanaugh issued another written warning to Dana Monroe for two incidents of tardiness: April 2 and April 17. In a meeting that same date, among Mr. Kavanaugh, Mr. Miller, and Dana Monroe, Mr. Monroe became belligerent and abusive and refused to calm down. The meeting was terminated. On April 20, Scurry Miller and Finn Kavanaugh again met with Dana Monroe. Mr. Miller offered Mr. Monroe the opportunity to resign, based on his continued poor performance and lack of response to supervision. When Mr. Monroe refused to resign he was told that Mr. Miller would recommend his termination. As Center president, Jerry Feulner accepted the recommendation and Finn Kavanaugh notified Dana Monroe, by letter, that he was terminated effective April 21, 1995. There is no credible evidence that Dana Monroe's termination was based on racial discrimination. At the time of Dana Monroe's employment and continuing to the time of hearing, approximately half of the ARC employees were African-American; several of Mr. Monroe's immediate supervisors were African-Americans whom he conceded also disciplined him on occasion. Mr. Monroe heard Scurry Miller say "you guys" or "you people," but never any specific racial references. Those comments are not themselves evidence of racial animus and could be directed to any group, of any racial composition. Scurry Miller used profanity with staff and with clients and was counseled for that. White employees, including Mr. Monroe's witness, Ms. Parker, viewed him as disrespectful to all staff, not just the African-Americans or minorities. In June 1995, the Center hired Mr. Monroe's replacement, another African-American male.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Dana L. Monroe's charge of discrimination be dismissed. DONE AND ENTERED this 2nd day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1999. COPIES FURNISHED: Dana L. Monroe 5116 Hernandes Drive Orlando, Florida 32810 Kimberly A. Wells, Esquire Jackson, Lewis, Schnitzler, & Krupman 390 North Orange Avenue, Suite 1285 Orlando, Florida 32801 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 34303-4149
