The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, by terminating Petitioner for allegedly using an electronic device while operating a FedEx vehicle.
Findings Of Fact Petitioner, Preston Pamphile ("Petitioner") worked for Respondent as a driver/courier at its Tallahassee station from 2006 until his termination in May 2010. Petitioner is African- American. Respondent, Federal Express Corporation ("Respondent" or "FedEx") is an express delivery company. The Employment Complaint of Discrimination filed by Petitioner alleges discrimination based upon race/color. Specifically, the Discrimination Statement reads as follows: I am an African American. I was subjected to different terms and conditions and discharged because of my race. I worked for Fedex as a Driver. I was falsly accused of talking/texting on my cell phone while operating a company vehicle. I tried to tell my supervisor (Tony Henderson) that I was not using my phone. I offered to show him my phone bill. Mr. Henderson said “I know what I saw.” On May 6, 2010, I was terminated. However, a white employee (Robert Fitzsimmons) was reported by another employee for talking on his cell phone while operating a company (vehicle) and he was not disciplined. I believe I was terminated because of my race. In addition to the claim of race discrimination, the Petition for Relief filed with the Commission also asserts a claim of retaliation. In Petitioner's written statement accompanying the Petition for Relief, Petition explains the basis for the retaliation claim: I feel that he retaliated because when I came to work at 2:50 a.m., I saw him in the back of the building with a female employee. The same female employee I saw him in back of the building with is his employee that is under his management. And I feel that Tony Henderson is trying to protect his marriage because of me seeing him in back of the building with the female employee. FedEx's "Three-Strikes You're Out" Policy At all relevant times during his employment with Respondent, Petitioner was aware of FedEx's Acceptable Conduct Policy. Under this policy, an employee who receives any combination of three warning letters and/or performance reminder letters during a twelve-month period is subject to termination. Petitioner conceded that this policy was uniformly applied by Respondent, and Petitioner did not contend that Respondent committed any unlawful conduct in applying this policy. On February 5, 2009, Petitioner received a warning letter for failing to report traffic citations he received while operating his personal vehicle. The warning letter reminded Petitioner that "3 notifications of deficiency (i.e., any combination of warning letters and/or reminders) received within a 12-month period" would result in his termination. On September 1, 2009, Petitioner received a second warning letter for crossing a moving conveyor belt during a morning sorting operation. This letter stated: "This is your second deficiency notification within 12 months. If you receive a third notification within 12 months, regardless of the type, you will be terminated." On January 6, 2010, Petitioner received a third warning letter for failing to report a traffic citation he received while operating a FedEx vehicle. Petitioner was informed that this was his "third disciplinary letter within 12 months." Petitioner acknowledged that he could have been terminated at that point pursuant to the “Three Strikes” policy without issue. However, rather than immediately terminating his employment, Petitioner was given another opportunity by Respondent. In Petitioner's words, two managers "stuck their necks out" for Petitioner and gave him "another shot." Petitioner was clearly warned in the January 6, 2010, warning letter, however, that "If you receive another [disciplinary letter], whether a warning letter or performance reminder, within 12 months, you will be terminated." The letter went on to state that Petitioner's employment with FedEx was "precarious," and that one more warning letter or performance reminder at any time during the next 12 months would result in his termination. FedEx's Prohibition on Use of Cell Phones Respondent's Safety Manual Policy 4-5 strictly prohibits drivers/couriers from using electronic devices while operating a FedEx vehicle. Petitioner acknowledged he was fully aware of Respondent's policy about using electronic devices while operating a vehicle. Indeed, Petitioner received and signed an Electronic Devices Memorandum, authored by the district manager responsible for the Tallahassee station. The memorandum specifically lists cellular telephones as a type of electronic device that may not be used while a driver is operating a FedEx vehicle. The memorandum further provides: "If you carry a cellular phone or Nextel with you when you are on the road, you MUST keep it in the rear cargo area of your vehicle so that you are not tempted to use it while operating the vehicle," and "You are NOT to have your phone on your person while on the clock." (Emphasis in original) The memorandum also prohibits the use of "I-POD type products" and "any other device or activity that would cause distraction while operating a vehicle." The memorandum concludes with the admonition that: "Violations of this policy will be addressed by management using Policy 2-5 of The People Manual (Acceptable Conduct). Violations may result in disciplinary actions up to and including termination." The Mahan Drive Delivery On May 6, 2010, Petitioner made a delivery to the building complex at 2727 Mahan Drive in Tallahassee. Petitioner had his cell phone with him in the FedEx vehicle, and was using the phone to listen to music. Respondent's operations manager, Tony Henderson ("Henderson"), was present at the complex that morning and was parked in the parking lot. As Petitioner was pulling into the complex, Henderson personally observed Petitioner operating his cell phone while driving the FedEx vehicle. Petitioner pulled up to a building in the complex, delivered his packages, and then left the complex. Henderson attempted to follow Petitioner in his vehicle, but was unable to keep up with him. Henderson then proceeded to the Tallahassee station, where Petitioner arrived approximately one hour later. Upon his arrival at the station, Henderson confronted Petitioner and asked whether he had been using an electronic device while operating a FedEx vehicle. Petitioner responded that he was not talking or texting on his cell phone, but rather had been changing the radio station on the phone. Petitioner was thereafter placed on paid suspension pending an investigation into whether he had violated Respondent's policy by using an electronic device while operating a FedEx vehicle. Two days later, on May 8, 2010, Henderson issued a warning letter to Petitioner for violation of the policy prohibiting the use of electronic devices while operating a FedEx vehicle. This was, again, Petitioner's third warning letter within a 12 month period. Consistent with Respondent's Acceptable Conduct Policy, as well as the prior warning to Petitioner, Respondent terminated Petitioner's employment. On May 17, 2010, Petitioner wrote a statement concerning the events of May 6, 2010. In that statement, Petitioner admitted to using his cell phone to listen to music while operating a FedEx vehicle.1 Allegations of Disparate Treatment Petitioner has alleged that he was subjected to different terms and conditions because of his race, and that white employees that violated Policy 4-5 were treated less harshly than he. Petitioner cited two instances of cell phone usage by FedEx employees in support of this claim. On or about January 29, 2010, Henderson personally observed FedEx courier Dan Workman operating a FedEx vehicle. Workman is white. Judging by what he saw, Henderson believed Workman might have been engaged in a conversation on a cell phone while operating the FedEx vehicle. Henderson contacted another FedEx operations manager, Sam Karvelas, and asked him to confront Workman about using a cell phone while operating a FedEx vehicle. When confronted by Karvelas, Workman admitted that he had been talking on his cell phone while operating the vehicle. On February 1, 2010, Workman received a warning letter for using an electronic device while operating a FedEx vehicle. On October 15, 2008, Henderson personally observed FedEx courier Elizabeth Christian talking on a cell phone while operating a FedEx vehicle. Christian is white. On that same day, Christian received a warning letter for using an electronic device while operating a FedEx vehicle. At hearing, Petitioner testified that a white FedEx employee, Blake Fitzsimmons, had recounted to Petitioner that he had been observed by Henderson using a cell phone while operating his FedEx vehicle, and had not received any form of discipline. However, Henderson's testimony on this issue was that prior to Petitioner's termination from FedEx, Henderson had never personally observed Fitzsimmons using a cell phone or electronic device while operating a FedEx vehicle. On cross- examination, Petitioner admitted he had no personal knowledge of whether Henderson has ever shown preferential treatment to white employees over black employees. Basis for the Retaliation Claim Approximately three to four months before Petitioner received the warning letter for using his cell phone while operating a FedEx vehicle, Petitioner claims he saw Henderson alone with a female FedEx employee. Petitioner testified he arrived at the Tallahassee station at 3:00 a.m., and saw Henderson leaning over the driver's side door of a truck. Petitioner testified "I can't say what I saw, but I saw him -- when they saw me, they parted ways." Petitioner further testified, "Pretty much he leaned over in the driver's side door and whatever they did, if they kissed, they kissed. I'm not sure what they did, but, yes, that's what I saw at three in the morning." Petitioner told several of his friends and co-workers what he had seen but did not report the incident to anybody in management or Human Resources.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of August, 2011, 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 24th day of August, 2011.
The Issue Whether the Respondent, Mario Medero, discriminated against the Petitioner, Sharon L. Zbikowski, on the basis of her sex, female?
Findings Of Fact The Parties. The Petitioner, Sharon L. Zbikowski, is a female. The Respondent, Mario Medero, is a male. Dr. Medero is a physician. He practices medicine as a professional association. Dr. Medero is the chief executive officer and the supervisor or principal of the professional association. The professional association operates a medical office in Ocala, Florida. The medical practice performed by Dr. Medero consists primarily of treating individuals who have been injured on the job and who are covered by workers compensation insurance. Ms. Zbikowski's Employment. On August 20, 1992, Ms. Zbikowski was hired for employment by Dr. Medero's professional association as the front desk receptionist at Dr. Medero's office. At the time she was hired, Ms. Zbikowski was told that she would be considered for an accounts payable clerk position at the office. The position was held by Barbara Redding if Ms. Redding left the position. Ms. Zbikowski was told at the time of her employment that her consideration for the position of accounts payable clerk was dependent upon Ms. Redding actually leaving. Ms. Redding ultimately decided not to resign her position. The evidence failed to prove that Ms. Zbikowski was hired as a bookkeeper or accounts payable clerk, or that she was not placed in the position she was hired to fill. Ms. Zbikowski's Performance. Ms. Zbikowski worked initially at the front desk. Her performance was considered inadequate by Marilyn Hartsel, the office manager and Ms. Zbikowski's immediate supervisor. Ms. Zbikowski was moved to other positions within the office. She worked for a while in medical records and for approximately one day in accounts payable with Ms. Redding. Ms. Zbikowski's performance in medical records and in accounts payable was also considered inadequate by Ms. Hartsel. Within three or four weeks after Ms. Zbikowski began her employment, Ms. Hartsel had decided to recommend that Ms. Zbikowski be terminated because of the inadequacy of her work. Ms. Zbikowski's Employment by Dr. Medero. At the time that Ms. Zbikowski was initially employed at Dr. Medero's office, Dr. Medero had caused the office to advertise for a housekeeper for his home. Ms. Zbikowski discussed the position with Dr. Medero. Dr. Medero agreed to employ Ms. Zbikowski as his housekeeper and Ms. Zbikowski agreed to work as Dr. Medero's housekeeper. Ms. Zbikowski agreed to clean Dr. Medero's house, run errands for him and the office, pick up his son from school and take his son to and from tennis lessons, meet Dr. Medero's former wife half way between Ocala and Tampa to pick up or to drop off Dr. Medero's daughter, who was in the custody of his former wife, and generally oversee his household. Although the evidence failed to prove that Ms. Zbikowski performed services in her capacity as housekeeper for anyone other than Dr. Medero, Ms. Zbikowski was paid for her services out of accounts of the professional association and Ms. Hartsel continued to be her immediate supervisor. The evidence failed to prove that Ms. Zbikowski was forced in any way to accept employment as Dr. Medero's housekeeper. The evidence proved that she accepted the position voluntarily and without coercion. Ms. Zbikowski continued to work as Dr. Medero's housekeeper until September 28, 1992. During her employment as Dr. Medero's housekeeper, Dr. Medero was satisfied with Ms. Zbikowski's performance. Alleged Sexual Harassment. The evidence failed to prove that Dr. Medero sexually harassed Ms. Zbikowski. Ms. Zbikowski testified about very few specific alleged incidents involving Dr. Medero and the evidence failed to substantiate those incidents. Ms. Zbikowski admitted that she had had no physical contact with Dr. Medero except for one occasion when she hugged him from advancing funds to her to pay for her son's day care and on another occasion when he gave her a physical examination after being in an automobile accident. The evidence failed to prove that either incident involved improper conduct by Dr. Medero. Ms. Zbikowski's testimony that Dr. Medero evidenced a "flirtatious manner" was not substantiated by competent substantial evidence of specific incidents. The most specific incident, and the incident which led to Ms. Zbikowski's termination from employment, took place on Thursday, September 24, 1992. At lunch on that day, Ms. Zbikowski and her four year old son were in Dr. Medero's back yard. Ms. Zbikowski was cleaning lawn furniture. Dr. Medero and Ms. Redding came to Dr. Medero's house, waved at Ms. Zbikowski and went into Dr. Medero's bedroom. The curtains/blinds to the bedroom windows were closed soon after Dr. Medero and Ms. Redding went into the room. Dr. Medero and Ms. Redding, both of whom were not married at the time, were lovers. Ms. Zbikowski was aware of their relationship. At no time did Ms. Zbikowski see Dr. Medero or Ms. Redding in Dr. Medero's bedroom. Ms. Zbikowski believes that Dr. Medero and Ms. Redding engaged in sexual intercourse while in the bedroom. This belief was not, however, substantiated by competent substantial evidence. Dr. Medero and Ms. Redding, who is not longer involved personally or in a working relationship with Dr. Medero, both testified that they did not engage in sexual intercourse. Ms. Zbikowski did not see them engage in intercourse. At best, Ms. Zbikowski's belief was based upon hearing "giggling" and "these little, um, sounds and things" from the bedroom. Ms. Zbikowski's Termination from Employment. On the afternoon of September 24, 1992, Ms. Zbikowski spoke with Ms. Hartsel and told her that Dr. Medero and Ms. Redding had sexual intercourse in her presence and her son's presence. Ms. Zbikowski was very upset and Ms. Hartsel told her to take the afternoon off and report to the office the next morning. Ms. Zbikowski also made other allegations, which the evidence failed to substantiate, of incidents of sexual harassment by Dr. Medero. Ms. Zbikowski left a beeper and a garage door opener she had been provided by Dr. Medero at Dr. Medero's home and left. The next morning, Friday, September 25, 1992, Ms. Zbikowski reported to the office. She was told that she would be expected to the work at the office in the mornings and then work at Dr. Medero's home in the afternoons. Ms. Zbikowski left at lunch and did not return. Ms. Zbikowski informed Ms. Hartsel that she did not intend to return that day because she did not want to return to Dr. Medero's home. Ms. Hartsel told Ms. Zbikowski that she would discuss the matter with Dr. Medero. Ms. Hartsel did not, however, order Ms. Zbikowski to return to work that day or inform her that she was not authorized to stay home. After speaking to Ms. Hartsel by telephone that weekend and being told that Ms. Hartsel had not yet discussed the matter with Dr. Medero, Ms. Zbikowski reported to work Monday, September 29, 1992. By the time that Ms. Zbikowski returned to the office on Monday, Dr. Medero had been informed of the allegations of sexual harassment she had made against him to Ms. Hartsel. Shortly after arriving at the office, Ms. Zbikowski was escorted to her automobile by Dr. Medero, Ms. Hartsel and a nurse and was told by Dr. Medero not to return. Ms. Zbikowski was, therefore, fired by Dr. Medero. Ms. Zbikowski was terminated because of the allegations she made concerning Dr. Medero and Ms. Redding and the other allegations of sexual harassment. Ms. Zbikowski was not terminated because she was not performing her duties as Dr. Medero's housekeeper in a satisfactory manner. Ms. Zbikowski's Subsequent Employment. Ms. Zbikowski was employed, and eventually terminated, by other physicians after her termination from employment by Dr. Medero. The evidence failed to prove that Dr. Medero was involved in any manner in Ms. Zbikowski's subsequent terminations from employment. Ms. Zbikowski's Charge of Discrimination. Ms. Zbikowski filed a Charge of Discrimination against Dr. Medero with the Florida Commission on Human Relations. Ms. Zbikowski alleged that she had been discriminated against based upon the following: I am a female. I worked for the above named respondent since August 20, 1992, until September 28, 1992 when I was discharged from my position of maid. During my employment I was subjected to sexual harassment by Dr. Mario Medero, and also I was subjected to different terms and conditions in my employment. I believe I have been discriminated against because of my sex, in violation of Title VII of the Civil Rights Act of 1964, as amended. On September 2, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " Ms. Zbikowski filed a Petition for Relief, requesting a formal administrative hearing on October 19, 1993. In the Petition for Relief filed with the Commission Ms. Zbikowski alleged, in part, the following: Respondent has violated the Human Rights Act of 1977, as amended, in the manner specifically described below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The disputed issues of material fact, if any, are as listed below: Petitioner did not abandoned [sic] her job. Petitioner was hired for one position and was told to accept another position 1 1/2 weeks into her employment which was not mentioned, nor described as part of original position. The ultimate facts alleged and entitlement to relief are as listed below: . . . . The alleged fact memos are that Petitioner was hired for a "Bookkeeping" position but was never given the opportunity to work in this position as original Bookkeeper (Dr. Medero's girlfriend) decided not to leave her position, so Petitioner was given a less meaningful job as "Housekeeper" but was subjected to harassing sexual misconduct by Respondent. The relief is as follows: Petitioner has for 1 year been trying to maintain and seek employment in the Medical field, one which she has worked in for 13 years, but because of Dr. Medero's influence in the Medical field has made it very hard for Petitioner to continue in this field. Petitioner is seeking recovery for the discriminating position he placed her in while under his employment plus relief from the undue hardship which has been placed upon her because of his lies in this matter. . . . . . . . Ms. Zbikowski proved the following allegations contained in her Charge of Discrimination and the Petition for Relief: "I am a female." "I worked for the above named respondent since August 20, 1992, until September 28, 1992, when I was discharged from my position of maid." "Petitioner did not abandoned [sic] her job." The remaining allegations contained in the Charge of Discrimination and the Petition for Relief were not supported by the weight of the evidence. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Ms. Zbikowski. Ms. Zbikowski failed to prove that any action of Dr. Medero was based upon Ms. Zbikowski's sex: she was not held to any standard or requirement based upon her sex, she was not sexually harassed and she was not terminated because of her sex. Ms. Zbikowski failed to prove that any policy or standard of Dr. Medero or his office had a disparate impact on female employees. Ms. Zbikowski failed to prove that she was replaced by a male or that other female employees with comparable or lessor qualifications were retained. Ms. Zbikowski failed to prove that she was sexually harassed by Dr. Medero. Ms. Zbikowski failed to prove that Dr. Medero or his office discriminated against her on the basis of her sex, female.
The Issue Did Respondent, Emerald Grande, LLC (Emerald), discharge Petitioner, Shelia Demons, on account of her race in violation of chapter 760, Florida Statutes (2013)?1/
Findings Of Fact By Notice dated December 3, 2013, the hearing was originally scheduled for January 14, 2014. On January 8, 2014, Petitioner filed a request that the hearing be continued. The undersigned continued the hearing until February 4, 2014. On January 17, 2014, Respondent filed an Unopposed Motion for Continuance. The undersigned continued the hearing until March 11, 2014. On March 7, 2014, Respondent filed a Motion to Exclude Petitioner’s Undisclosed Witnesses and (Proposed) Exhibits on the grounds that Petitioner had not disclosed her witnesses and exhibits to Respondent as required by the Order of Pre-Hearing Instructions. The hearing convened as scheduled at 9:00 a.m., Central Time, on March 11, 2014. Counsel for Emerald and Emerald's representative and witnesses appeared. Emerald had previously timely provided Petitioner with its witness and exhibit lists. As of 9:16 a.m., Ms. Demons had not appeared or contacted the office of the undersigned. At 9:17 a.m., counsel for Respondent moved, ore tenus, for an order of dismissal. The undersigned informed counsel for Respondent that a written recommended order would be entered granting Respondent’s motion. Ms. Demons presented no evidence. Emerald presented no evidence. The hearing was adjourned at 9:20 a.m. When the undersigned left the hearing room at 9:30 a.m., Petitioner had still not appeared or contacted the office of the undersigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition for Relief of Shelia Demons. DONE AND ENTERED this 17th day of March, 2014, 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 March, 2014.
Findings Of Fact Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school. Background When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983. Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal. No Unlawful Discrimination Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida. DANIEL S. MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021 Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1. Accepted in finding 1. 2. Accepted in finding 2. 3. Accepted in finding 10 4. Rejected as conclusion of law. 5. Accepted in finding 4. 6. Accepted in finding 5. 7. Accepted in finding 7. 8. Accepted in finding 9. 9.-10. Accepted in finding 10. 11. Rejected as irrelevant and immaterial. 12. Accepted in finding 11 13. Rejected as irrelevant and immaterial. COPIES FURNISHED: Marcelino D. Mata 158 East 47th Street Hialeah, Florida 33013 Ann Cocheu Assistant Attorney General Department of Legal Affairs PL01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent committed an unlawful employment act against Petitioner pursuant to Chapter 70 of the Pinellas County Code, as amended, and Title VII of the U.S. Civil Rights Act of 1964, as amended.
Findings Of Fact Petitioner, a black female, is a member of a protected group. Respondent is an employer as defined in the Pinellas County Code, as amended, and Title VII of the Civil Rights Act of 1964, as amended. Respondent hired Petitioner as a telemarketer on December 8, 1997. Petitioner's job required her to call the telephone numbers on a list furnished by Respondent. After making the call, Petitioner was supposed to solicit the booking of vacations in time-share rental units by reading from a script prepared by Respondent. The script included an offer to sell potential customers three vacations in three locations for $69. When Respondent hired Petitioner, she signed a copy of Respondent's "New Employee Policy and Procedures" manual. Petitioner admits that this manual required her to book 25 vacations each pay period after a two-week training period. She also admits that the manual required her to only use the prepared script, including preplanned rebuttals to customer questions when talking over the telephone. Petitioner understood that during the two-week training period, she would be required to book 14 vacations or be terminated. She knew that Respondent's supervisors would monitor her sales calls. Petitioner sold four vacation packages in her first week at work with no complaints from her supervisors. In fact, one of Respondent's supervisors known as Mike told Petitioner, "You got the juice." On December 15, 1997, Mike monitored one of Petitioner's calls. Petitioner admits that she did not use the scripted rebuttals in answering the customer's questions during the monitored call. Instead, she attempted to answer the customer's questions using her own words. According to Petitioner, she used "baby English" to explain the sales offer in simple terms that the customer could understand. After completing the monitored call on December 15, 1997, Mike told Petitioner to "stick to the shit on the script." Mike admonished Petitioner not to "candy coat it." Petitioner never heard Mike use profanity or curse words with any other employee. Before Petitioner went to work on December 16, 1997, she called a second supervisor known as Kelly. Kelly was the supervisor that originally hired Petitioner. During this call, Petitioner complained about Mike's use of profanity. When Kelly agreed to discuss Petitioner's complaint with Mike, Petitioner said she would talk to Mike herself. Petitioner went to work later on December 16, 1997. When she arrived, Mike confronted Petitioner about her complaint to Kelly. Petitioner advised Mike that she only objected to his language and hoped he was not mad at her. Mike responded, "I don't get mad, I get even." When Petitioner stood to stretch for the first time on December 16, 1997, Mike instructed her to sit down. Mike told Petitioner that he would get her some more leads. Mike also told Petitioner that she was "not the only telemarketer that had not sold a vacation package but that the other person had sixty years on her." Petitioner was aware that Respondent had fired an older native-American male known as Ray. Respondent hired Ray as a telemarketer after hiring Petitioner. When Petitioner was ready to leave work on December 17, 1997, a third supervisor known as Tom asked to speak to Petitioner. During this conversation, Tom told Petitioner that she was good on the telephone but that Respondent could not afford to keep her employed and had to let her go. Tom referred Petitioner to another company that trained telemarketers to take in-coming calls. Tom gave Petitioner her paycheck, telling her that he was doing her a favor. During Petitioner's employment with Respondent, she was the only black employee. However, apart from describing the older native American as a trainee telemarketer, Petitioner did not present any evidence as to the following: (a) whether there were other telemarketers who were members of an unprotected class; (b) whether Petitioner was replaced by a person outside the protected class; (c) whether Petitioner was discharged while other telemarketers from an unprotected class were not discharged for failing to follow the script or failing to book more than four vacations during the first ten days of employment; and (d) whether Petitioner was discharged while other telemarketers from an unprotected class with equal or less competence were retained. Petitioner was never late to work and never called in sick.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the City's Human Relations Review Board enter a final order dismissing Petitioner's Complaint. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2001. COPIES FURNISHED: Bruce Boudreau Vacation Break 14020 Roosevelt Boulevard Suite 805 Clearwater, Florida 33762 Donna Conway 3156 Mount Zion Road No. 606 Stockbridge, Georgia 30281 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie Rugg, Hearing Clerk City of St. Petersburg Community Affairs Department Post Office Box 2842 St. Petersburg, Florida 33731
The Issue Whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Kennedy is of the Mormon faith. Mr. Kennedy had worked for Trawick in the past. He renewed his employment with Trawick in September 2005. He was a laborer. Sometime around the middle of September 2005, Mr. Kennedy was assigned to a work crew, whose foreman was Andrew Cooper. Trawick Construction is involved in laying and maintaining communication cable. Trawick has a work yard in Chipley, Florida. In accomplishing its work Trawick erects poles, and strings and lays wires, including fiber-optic cable. The work crew in which Mr. Kennedy worked used a five-ton truck and a trencher. Shovels are also used. Mr. Cooper had worked with Mr. Kennedy when both were laborers for Trawick in 1998. Mr. Cooper advanced to the position of foreman, but Mr. Kennedy remained a laborer and sometime after 1998 left the employ of Trawick. Mr. Kennedy asserted that during working hours on September 26 and 27, 2007, Mr. Cooper talked roughly to him and was "bossy." During that time, the Lord came in a vision to Mr. Kennedy and told him that he needed to pray for Mr. Cooper, so that Mr. Cooper might become a more accommodating and gracious supervisor. Mr. Kennedy revealed to Mr. Cooper that he was praying for him, although Mr. Cooper did not recall hearing any prayers. On September 27, 2007, the crew was working at a site near Enterprise, Alabama. On that day Mr. Kennedy worked slowly and was insubordinate toward Mr. Cooper. When he was told to accomplish designated tasks, Mr. Kennedy informed Mr. Cooper as to whether he would, or would not do as instructed. Mr. Kennedy was disrespectful and insubordinate to Mr. Cooper, who found this behavior to be unacceptable. Mr. Cooper and his crew were late getting back to Chipley because of Mr. Kennedy's failure to participate in the crew's assigned work. On the return trip, apparently having given up on the efficacy of prayer, Mr. Kennedy instead cursed and ranted in the presence of Mr. Cooper. After their return to Chipley, Mr. Cooper prepared a disciplinary report in response to Mr. Kennedy's behavior. The report was presented to Mr. Kennedy and he was asked to sign it. He refused to sign the document Mr. Cooper prepared. Instead he said, "I quit." The next morning, Wednesday, September 28, 2007, Mr. Kennedy put his gear in the five ton truck as if his employment continued, but Mr. Cooper told him to remove it and reminded Mr. Kennedy that he had been fired. Mr. Cooper called Carlton Wells, a supervisor, who eventually arrived at the Trawick facility in Chipley. Mr. Wells could have reversed the termination. However, by the time he arrived, Mr. Kennedy had departed the Chipley work yard. Mr. Wells, by doing nothing, ratified the action of Mr. Cooper. Neither Mr. Cooper nor Mr. Wells was aware of Mr. Kennedy's religious affiliation. No one in the Trawick organization harassed Mr. Kennedy because he was a Mormon, because no one knew he was a Mormon. Accordingly, whatever the hostility of the work situation, it was not in any manner related to religion. The timesheet maintained by Mr. Cooper reflects that Mr. Kennedy was fired on Wednesday, September 28, 2005. It is found as a fact that Mr. Kennedy was fired on September 28, 2005. Trawick has quarterly "safety" meetings. Despite the nomenclature, Trawick uses these "safety" meetings to educate its workers on many subjects, including the company policy forbidding discrimination. Mr. Cooper has attended these meetings when Trawick's policy as to nondiscrimination was taught. As a result, Mr. Cooper is quite aware that Trawick does not tolerate discrimination based on sex, race, color, or religion. He understands that a failure to conform to Trawick's policy with regard to discrimination could result in his demotion. Religion was not a factor in Mr. Cooper's decision to terminate Mr. Kennedy. No one retaliated against Mr. Kennedy because he complained of discrimination based on his religion. In fact, the first complaint of discrimination made by Mr. Kennedy was when he complained to the Commission and by that time he was no longer employed by Trawick. Mr. Kennedy provided no evidence of harm, monetary or otherwise, during the hearing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the complaint of Lee Dell Kennedy. DONE AND ENTERED this 12th day of May, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2008. COPIES FURNISHED: Mark J. Levine Levine & Associates, P.C. 4747 Bellaire Boulevard, Suite 500 Bellaire, Texas 77401 David Britain, Jr., Esquire Trawick Construction 1360 Post Oak Boulevard, Suite 2100 Houston, Texas 77056 Lee Dell Kennedy 747 Pecan Street Chipley, Florida 32428 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 H. Lester McFatter, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Jason C. Taylor, Esquire Carr Allison 305 South Gadsden Street Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether Jupiter Medical Center committed the unlawful employment practices alleged in the employment discrimination charge filed by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is from the Philippines and is a Filipino citizen. He is now, and has been since approximately February 2000, a legal resident of the United States. JMC operates a 156-bed hospital (Hospital) located in Jupiter, Florida, which has a medical laboratory (Laboratory) that is "open twenty-four hours a day, seven days a week." At all times material to the instant case, Kathleen Rogers was the director of the Laboratory and Sherry Miller was the assistant director of the Laboratory. Petitioner was hired by JMC in October 2000, as a medical technologist to work in the Laboratory. He worked in the Laboratory as a medical technologist, under Ms. Rogers' supervision, from October 2000, until his employment was terminated on June 6, 2003 (Employment Period). During the Employment Period, Jeanne Wiley also worked as a medical technologist in the Laboratory under Ms. Rogers' supervision. Ms. Wiley did not exercise any supervisory authority over Petitioner, nor was she part of the JMC management team. Ms. Rogers was responsible for Petitioner's hiring. She "hired him at the maximum [salary] that anybody coming in at th[at] level could be paid" under JMC's race/religion/gender- blind pay scale. Petitioner received pay raises during the time that he worked for JMC. There were other Laboratory employees who were paid less than Petitioner. None of these employees was Asian. John Lambiase was hired by JMC as a medical technologist to work in the Laboratory in 2003, shortly before Petitioner's termination. At the time of his hiring, Mr. Lambiase had less education and experience than did Petitioner. Nonetheless, Mr. Lambiase's starting salary of $17.80 per hour was $0.38 per hour more than Petitioner was making.2 This disparity in pay was the product of market conditions and had nothing to do with either Mr. Lambiase's or Petitioner's race. The position that Mr. Lambiase filled had been vacant for approximately eight months despite JMC's recruiting efforts. "[D]esperate" to fill the vacancy, Ms. Rogers requested and obtained from JMC's human resources department "special permission" to hire Mr. Lambiase at the going market rate. During the Employment Period, JMC had a human resources administrative policy and procedure manual (Manual), which was made available to all employees, including Petitioner. The Manual contained, among other things, an anti-discrimination and anti-harassment policy, a grievance procedure, a "Time and Attendance" policy, and a progressive discipline policy. The progressive discipline policy stated, in pertinent part, substantially the following with respect to "Verbal Warning[s]," "Written Conference Records," and terminations: Verbal Warning: "Informal counseling" will be regarded as a daily on-going process through which management may communicate necessary information to his/her staff. Such information may include both positive comments and/or areas in need of improvement. In either case, management may wish to utilize "Employee Action Assessment" for the following purposes: To justify pay for performance adjustment decisions and to confirm performance appraisal accuracy. To document excellence for promotional opportunities. To document "reoccurring" performance/behavior/work habit problems that individually do[] not yet require formal documentation, (i.e.) "Written Conference Record." Employee Action Assessment entries will be shared with the employee within a reasonable time of management's observation or date of discovery. Employee Action Assessments need not be shared with Human Resources but rather maintained by the appropriate manager to be used as outlined above. Written Conference Records: Unless immediate suspension pending investigation or termination is necessary, an employee will receive a documented "Written Conference Record" which will delineate steps toward correction of the problem. The completed Written Conference Record process should take place within (3) three business days of the date of discovery, unless the employee has been temporarily suspended pending investigation or if interrupted by a Medical Center holiday. In the case of the latter, the process should be completed by the next business day. The Chief Human Resource Officer or Assistant Director of Human Resources will review and approve all "Written Conference Records" prior to management meeting with the employee. All employee "Written Conference Records" shall be documented on a Jupiter Medical Center "Conference Record" form and ultimately filed in the Human Resources Department. The employee is encouraged to review and record personal comments and sign the form. While employees are encouraged to respond [to] and sign the form, responding to, or signing the form merely indicates that the action was discussed with the employee, not that the employee agrees or disagrees with the corrective action. All completed "Written Conference Record" forms should be received by the Human Resources Department within (3) business days. A completed "Written Conference Record" form will be appropriately signed and dated by the manager, employee, if agreeable, and a managerial witness from the same department. A witness's signature will acknowledge that the information was thoroughly discussed with the employee in an appropriate manner. Any combination of three appropriately documented "Written Conference Records" within an eighteen-month (18) period will constitute grounds for termination unless otherwise noted on the "Written Conference Record." In such instances, fewer than (3) repetitions of some violations may [warrant] termination. . . . No department, other than the Human Resources Department will maintain formal "Written Conference Records" in their files. Informal documentation such as "employee action assessments" and/or employee attendance record may be kept within individual department files. A "Written Conference Record" should be available to support any performance appraisal standard scored as "needs improvement." Suspension and Termination: * * * 5. Terminations reviewed and approved by the Senior Manger will be forwarded to the Chief Human Resource Officer or the Assistant Director of Human Resources for review and final approval. A letter of termination must be coordinated through the Asst. Dir. of Human Resource[s] outlining all documentation used to justify the termination and to act as a notice to the terminated employee regarding [his or her] grievance rights and need to return certain Medical Center property. * * * Petitioner's employment with JMC was terminated, consistent with the above-referenced progressive discipline policy, because, in less than 18 months, he had accumulated three "Written Conference Records" (all of which were given to him by Ms. Rogers and, before becoming a part of Petitioner's permanent record, were reviewed and approved by JMC's human resources department). Petitioner's race played no role whatsoever in his receiving these three "Written Conference Records"3 or in his being terminated. There has been no showing that any other employee at the Hospital received three "Written Conference Records" within an 18-month period and remained employed. Petitioner received the first of these three "Written Conference Records" in September 2002. It read as follows: REASON FOR CONFERENCE: . . . . On August 23, 2002, Ramuriel reported out a 7.3mmol/L potassium result.[4] Ramuriel did not meet laboratory competency standards because he did not follow the attached laboratory procedure: NOTIFICATION OF LABORATORY VALUES. Procedures specifically not followed are: -2.1.1 "Verify the quality of the specimen" and "Recollect specimens immediately if specimen is suspect" 2.1.3 "Notify the physician/patient care personnel when patient is outside the hospital." Ramuriel failed to meet Human Resources 6.7a, a Class II violation, "Performance of duties below standard that continue after a reasonable period of appraisal and training." ACTION PLAN FOR IMPROVEMENT: . . . Ramuriel will immediately improve his technical skills and follow all laboratory policies, especially G.4.2 "Notification of Laboratory Values." Failure to meet JMC standards of competency will lead to further disciplinary action, up to and including termination. Ms. Rogers learned of the violation cited in this "Written Conference Record" as a result of a "physician complaint" (and not from Ms. Wiley).5 In giving Petitioner this "Written Conference Record," she did not treat him any differently than she treated other medical technologists who committed similar violations. Petitioner did not grieve his receipt of this "Written Conference Record," nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The next "Written Conference Record" Petitioner received concerned an on-duty verbal altercation Petitioner had in January 2003, with another medical technologist working in the Laboratory, Susan Goldstein. Ms. Goldstein also received a "Written Conference Record" from Ms. Rogers for her participation in the altercation. Petitioner's "Written Conference Record" read as follows: REASON FOR CONFERENCE: . . . . On January 17, 2003, Ariel requested another employee to work in the coagulation section. The fellow employee stated she was busy helping a new employee with chemistry. The workload did not justify his request (see attached report). The coworker stated Ariel called her lazy when she refused to leave chemistry. Coworkers and supervisors do not feel Ariel is a patient focused team player and are unable to discuss workflow and cooperation with him. It is the policy of the Laboratory and Jupiter Medical Center to complete all tasks and work as a team to the benefit of our patients. Ariel violated Personnel Policy 6.7 group II.y "Other actions determined by management to not be in the best interest of the Medical Center." ACTION PLAN FOR IMPROVEMENT: . . . Ariel will immediately put the patient first, and remain focused on patient testing. The evening shift must work together as a team, and Ariel needs to be a member of this team. Petitioner grieved his receipt of this "Written Conference Record." Petitioner's grievance was ultimately presented to JMC's Chief Operating Officer, who reached the following "conclusion," which she reduced to writing on March 25, 2003: This investigation has revealed substantial agreement about the facts of the incident itself by all parties. The facts regarding the incident do merit a Written Record of Conference in accordance with Jupiter Medical Center Policy. The Record should be amended to show that the lack of teamwork referenced was agreed by the Department Man[a]ger to be primarily limited to the one employee involved in this incident and does not extend to the entire Department. With the amendment, the Written Record of Conference should be a permanent part of the employment file of Mr. Orlino. Following his receipt of the Chief Operating Officer's written "conclusion," Petitioner took no action to "continue with [his] grievance." As a result, pursuant to the grievance procedure set forth in the Manual, the Chief Operating Officer's written "conclusion" became the final resolution of Petitioner's grievance. The last of the "Written Conference Records" Petitioner received was for repeatedly violating, after being warned on "multiple occasions" to stop,6 that portion of JMC's "Time and Attendance" policy, which provided that "employees will not badge in more than seven minutes prior to the start of their shift." This "Written Conference Record," which was given to Petitioner on June 6, 2003, read as follows: REASON FOR CONFERENCE: . . . . See attached list of dates and times of Ramuriel's timeclock punches. Beginning on March 17, 2003 through May 24, 2003, Ramuriel has failed to badge in at the correct time. Ramuriel is establishing an unacceptable pattern of badging in for work early and leaving early. Ramuriel has violated Human Resources Policy 6.7.a, "Insubordination- refusal or failure to follow instruction or established practices of the Medical Center," a Class I violation. Ramuriel was informed of the correct badging practice verbally on March 3, 2003 and by mailbox on March 17, 2003. Again the policy was reviewed at the April 2, 2003 general laboratory meeting, which Ramuriel attended, and [he] reviewed and initialed the minutes which included the time clock policy. ACTION PLAN FOR IMPROVEMENT: . . . See associated letter. There has been no showing that any other Laboratory employee engaged in similar insubordinate conduct and did not receive a "Written Conference Record." Petitioner did not grieve his receipt of this "Written Conference Record" because he knew that he was in the wrong; nor did he write anything on this "Written Conference Record" in the space provided for "[e]mployee [c]omments." The "associated letter" in the "Written Conference Record" was a June 6, 2003, letter to Petitioner from Ms. Rogers, advising Petitioner of his termination. It read as follows: On August 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training." On October 23, 2002, you failed to meet laboratory competency standards or follow laboratory procedure. This is a Class II violation of Human Resources Policy 6.7- Discipline (a) "Performance of duties below standard that continue[s] after a reasonable period of appraisal and training."[7] On January 17, 2003, you failed to work as part of a team. This is a Class II violation of Human Resources Policy 6.7- Discipline (y) "Other actions determined by management to not be in the best interest of the Medical Center." Beginning on March 17, 2003 through May 24, 2003, you failed to badge in at your scheduled time, which is a violation of Human Resources Policy 6.7- Discipline, "Insubordination - refusal or failure to follow instructions or established practices of the Medical Center." Mr. Orlino, as a result of your actions, as denoted above, Jupiter Medical Center is terminating your employment effective immediately. You have the prerogative to utilize Jupiter Medical Center's grievance procedure; human resource policy 4.1, if you feel your termination is unjust. If you decide to grieve such a decision should be made within five (5) business days of June 6, 2003. In your absence, Jupiter Medical Center has elected to hand deliver this correspondence to ensure your complete understanding of the above events. Any compensation that you are eligible to receive will be paid to you on the hospital's next regularly scheduled payday. Please be aware that any hospital property, such as your ID badge, employee handbook, keys, uniform, etc. should be returned to the Human Resources Department. The final decision to terminate Petitioner was made, in accordance with JMC policy, by JMC's human resources department. Ms. Wiley did not provide any input in the making of this decision. Petitioner did not grieve his termination. At no time during the Employment Period did Petitioner ever utilize the procedures available to him under the Manual to complain that he was being discriminated against or harassed on the basis of his race; and there is no indication in the evidentiary record that, as a JMC employee, he was ever the victim of race-based discrimination or harassment.8 On May 24, 2005, almost a year after his termination, Petitioner filed an employment discrimination charge with the FCHR, alleging for the first time that he was the victim of anti-Asian discrimination. There are currently three or four Asian employees working in the Laboratory. They were all hired by Ms. Rogers following Petitioner's termination. None of these employees has received a "Written Conference Record."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding JMC not guilty of the unlawful employment practices alleged by Petitioner and dismissing his employment discrimination charge. DONE AND ENTERED this 14th day of August, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of August, 2006.
The Issue The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.
Findings Of Fact Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett, acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.
Recommendation Based on the 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. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2001. COPIES FURNISHED: Joann Annichianrico Tandem Healthcare, Inc. Cherrington Corporate Center 200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108 Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344 James Garrity, Esquire McConnaughay, Duffy, Coonrod, Pope & Weaver, P.A. 101 North Monroe Street Post Office Drawer 229 Tallahassee, Florida 32302-0229 Azizi M. Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Petitioner's termination from employment by Respondent on November 12, 2004, for Petitioner's refusal to take a DNA test to affirmatively establish the paternity of a child he wanted to add to his company-provided insurance coverage was discriminatory in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2004).
Findings Of Fact Petitioner was employed by Respondent from May 1998 until his termination on November 12, 2004. Petitioner had performed his duties adequately during his employment period and had no major disciplinary reports in his record. Petitioner was at the time of his termination from employment a single, divorced, white male, and he was living with his girlfriend, Shannon Mitchell. On September 28, 2004, Petitioner received a message while he was at work that his girlfriend had called and was in distress, purportedly suffering from back pains. Petitioner requested and was given permission to go home to attend to her. Upon arrival at home, Petitioner discovered that his girlfriend had in fact given birth to a child. Petitioner may or may not have known about the birth before he left work; his testimony on that issue was contradictory. Petitioner had only learned of his girlfriend's pregnancy about one week before the birth despite the fact they had lived together for almost a year. Petitioner notified Respondent about the birth the next day (September 29) in accordance with company policies. He also requested and was granted leave from work. The child was immediately added to Petitioner's health insurance coverage in accordance with Respondent's normal practice. Even though Respondent added the child to Petitioner's family insurance coverage, there were several concerns about the unusual circumstances surrounding Petitioner's reporting of the birth, to wit: That he didn't tell his employer about the birth when he left to go home that day even though he likely knew it had occurred; that he represented a lack of knowledge about the pregnancy even though he was living with the child's mother; that the hospital records did not list Petitioner as the father. Respondent's insurance plan is self-funded and is administered directly by management of the company. Each employee's cost of insurance is determined by the prior year's costs and expenses. The company pays about 99.5 percent of the employee's cost; the employee pays the remainder plus the cost of coverage for family members. Proper administration of the health plan is therefore important to both management and employees alike. Respondent employs over 250 people. The employee handbook is silent on the degree or kind of proof necessary to establish paternity of a child for insurance purposes. Neither Respondent nor its insurance program has an established policy requiring employees to obtain a paternity test in order to prove relationship to their child. There is no prohibition against an unmarried person adding his or her child and, in fact, the company has provided benefits for such children. It is not common for Respondent to ask an employee to submit to a DNA examination in order to establish paternity for insurance coverage purposes. The only other time such a test had been required was for an unmarried male employee who was not able to provide a birth certificate for his child showing he was the father. That situation, like the present matter, had certain unusual facts associated with it. While working for the company during the years of 1998 to 2003, Petitioner was married. During that time he and his wife had two children, both of whom were added to his family insurance coverage. He was not required to provide proof of paternity for those children other than a birth certificate. Based upon the unusual circumstances regarding Petitioner's reporting of his most recent child's birth, Respondent demanded further proof of paternity. On October 12, 2004, Respondent's human resources director, Sandra Ho, asked Petitioner to have a DNA test performed and to provide Respondent with the results on or before November 12, 2004. Respondent did not offer to pay for the required test. Petitioner acknowledged receipt of this demand from his employer which included an ultimatum regarding his continued employment should he fail to comply. In response to the request for proof of paternity, Petitioner provided Respondent a Social Security document for the child and a hospital discharge notice for Shannon Mitchell. Neither of these documents listed Petitioner as the child's father. On or about November 10, 2004 (two days prior to the DNA test deadline), Petitioner provided Respondent with a copy of the child's birth certificate listing him as the father. He had filled out "paperwork" at the hospital to obtain the birth certificate. There was no evidence in the record as to what the paperwork entailed. Respondent had accepted birth certificates as proof of paternity for other employees. Petitioner did not obtain or provide to Respondent a DNA test result. In fact, he did not make any effort to obtain such a test. He did discuss with Respondent his concerns about the costs of such a test. Based upon Petitioner's refusal to comply with his employer's directives, he was terminated from employment on November 15, 2004, effective November 12, 2004. The basis for termination was Petitioner's insubordination and refusal to follow the orders of his employer. Petitioner supervised approximately six people on a regular basis. Respondent was concerned about Petitioner's continued ability to properly supervise others while he was refusing to cooperate with management.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of July, 2006, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 2006.
