The Issue The issue in the case is whether the Petitioner was harassed on the basis of national origin or discriminated against on the basis of a disability.
Findings Of Fact The Petitioner began employment with the Respondent in the summer of 1994 and was terminated from his employment on July 28, 1999. The Respondent operates a machine shop where different types of large metal parts are fabricated according to customer order. The Petitioner was employed as a "mill operator" in the "caterpillar" department. As a mill operator, the Petitioner was required to load metal parts into machines for further processing, check the quality of his work, and return the parts to a container of finished parts. At all times material to this case, the Respondent had a policy prohibiting employee harassment on the basis of numerous grounds including "national origin." The policy provided that any employee who believed that such harassment was occurring should report it immediately to a supervisor or to another company official. The non-harassment policy was included in the employee handbook. The Petitioner received the handbook when the Respondent employed him and was aware of the policy. The Petitioner, of Polish origin, asserted that at various times he was harassed on the basis of national origin; specifically, he was sometimes addressed as "pollock" by some co-workers. Although the evidence establishes that employees, perhaps including the Petitioner, occasionally referred to each other by ethnic slurs (i.e., "pollock," "speedy Gonzalez," and "buddha") the testimony regarding such incidents was anecdotal, and the times and dates of such references are uncertain. The evidence fails to establish that the Petitioner was subjected to a hostile work environment or was harassed on the basis of national origin. Other than as set forth herein, the evidence fails to establish that the Petitioner or any other employee ever advised a supervisor or a manager that co-workers were making ethnic references or that any employee felt harassed by the behavior. In March 1998, a note was taped to the men's restroom door reading "Polish Department – Jerry's [sic] Office." The Petitioner reported the note to his supervisor. A meeting was held with the Petitioner's co-workers on March 16, 1998, where the Respondent's managers advised the employees that such behavior was not acceptable and that similar events in the future would result in disciplinary action against the perpetrators. The Petitioner also asserts that he was discriminated against on the basis of an alleged disability. In December 1998, the Petitioner had a total replacement of his right hip. He was medically cleared to return to work on March 1, 1999, with restrictions of not working more than 10 hours per day for two weeks and not lifting more than 20 pounds. The Petitioner reported for work on March 4, 1999, but was sent home by his supervisor because there was no work that met his restrictions, particularly the weight restriction. Generally the metal parts involved in the Respondent's manufacturing process weighed in excess of 20 pounds. By March 18, 1999, the restrictions were lifted and the Petitioner returned to work without incident until July 1999. On July 6, 1999, the Petitioner received a written warning from a plant supervisor who determined that the Petitioner was not properly inspecting parts being produced in the Petitioner's machine. An excessive number of parts were not within acceptable fabrication tolerances and had to be "re- worked." The warning specifically provided that failure to improve the quality and inspection of parts would result in termination of employment. On July 27, 1999, the Petitioner reported hip pain to his physician and was again placed on a restricted workload that included no lifting of weight in excess of 20 pounds and no "twisting" until the physician determined that the pain had been resolved. Based on the medical restrictions and his experience, the Respondent was unable to locate work suitable for the Petitioner. The Petitioner's employment was terminated because there were no jobs available that complied with the Petitioner's medical restrictions. Review of the Petitioner's performance evaluations establishes that he was generally an average worker who was sometimes warned about becoming too involved in other employees' activities. His evaluations of August 1996 and September 1998 contained references to such involvement and indicated that he should "spend less time worrying" about other employees. The 1996, 1997, and 1998 performance evaluations suggested that the Petitioner obtain additional training in order to advance his career. The Respondent offered a program to fund such training, and notices regarding the training were posted on a bulletin board accessible to employees, but the Petitioner did not take advantage of the program. At the time of the July 1999 medical restrictions, the Petitioner's skill set did not qualify him to perform tasks other than as a mill operator using the machine for which he was originally employed.
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 filed by Jerzy Josefik in this case. DONE AND ENTERED this 30th day of May, 2003, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 30th day of May, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jerzy Jozefik 9605 Southwest 27th Avenue Ocala, Florida 34476 Grant D. Petersen, Esquire Ignacio J. Garcia, Esquire Haynsworth Baldwin Johnson & Greaves LLC 600 North Westshore Boulevard, Suite 200 Tampa, Florida 33609-1117 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Petitioner is an African-American female. At all times relevant here, Petitioner worked full-time as a floor technician (floor tech) at Respondent's nursing home facility. As a floor tech, Petitioner was responsible for dusting, mopping and buffing the floors. At all relevant times, Cheryl Johnson was Respondent's facility administrator. Ms. Johnson has held that position since December 2002. In May 2003, Petitioner asked Ms. Johnson if she could receive her paycheck early. Petitioner was aware that Ms. Johnson had given an early paycheck to a nurse. The record does not reveal the nurse's race. Ms. Johnson refused to give Petitioner the early paycheck. Ms. Johnson admitted that she had made a mistake in giving the nurse an early paycheck. Ms. Johnson stated that she would not violate Respondent's policy against early paychecks again. Petitioner filed a grievance, claiming that Ms. Johnson was not being fair. Sometime thereafter, Ms. Johnson gave an early paycheck to a dietary employee. The dietary employee was an African- American. With regard to early paychecks, there is no evidence that Ms. Johnson ever gave preferential treatment to employees who were not members of a protected group. In October 2003, Sue Goldfarb was Petitioner's supervisor. Ms. Goldfarb criticized Petitioner because Petitioner was spending too much time in the Activities Room. Petitioner complained to Ms. Johnson and filed two grievances, claiming that she was being treated unfairly. According to Petitioner, Ms. Goldfarb and a medical records clerk, Pam Brock, did not get into trouble for spending time in the Activities Room. Ms. Johnson explained that Petitioner could assist in the Activities Room, but only after she completed her floor tech duties. There is no evidence that Respondent ever allowed employees to assist in the Activities Room before they completed their regularly assigned duties. Petitioner did not suffer any adverse consequences as a result of Ms. Goldfarb's criticism. At some point in time, Respondent informed all housekeepers, including Petitioner, that their hours were being cut from seven-and-a-half hours per day to six-and-a-half hours per day. Respondent also informed the housekeepers that they would not be eligible for overtime hours. Respondent took these actions because the facility's "census" (number of residents) was low. In February 2004, Ms. Johnson decided to redecorate the Activity Room as a special weekend project. Ms. Johnson requested Gary Brock, Pam Brock's husband and a maintenance man for the facility, to work over the weekend to complete project. Ms. Johnson also requested Ms. Brock to assist with the project because Ms. Brock recently had been short on hours. Thereafter, Petitioner impermissibly reviewed a document on a supervisor's desk. The document indicated that Ms. Brock, the medical records clerk, received three hours of overtime on the weekend of the special project. Petitioner copied the document and returned the original to the supervisor's desk. Petitioner admitted during the hearing that she was not supposed to be looking at documents on the supervisor's desk. In February 2004, Petitioner filed a grievance, complaining that Ms. Brock had received overtime. Petitioner thought it was unfair for Ms. Brock, a medical records clerk, to receive overtime hours, while the housekeepers had their hours reduced. There is no evidence that Petitioner was treated any differently than any other housekeeper. At some point in time, Petitioner complained to Ms. Johnson and filed a grievance that Ms. Goldfarb was not doing her job. After receiving Petitioner's complaint, Ms. Johnson decided to obtain a statement from each housekeeper as to whether they had any concerns regarding Ms. Goldfarb. In March 2004, Ms. Johnson temporarily held all of the housekeepers' paychecks. She requested the housekeepers to visit her office, render their opinions about the housekeeping supervisor, and collect their checks. Petitioner, like all of the housekeepers had to visit Ms. Johnson's office to pick up her paycheck. While she was there, Petitioner signed a statement, indicating that Ms. Goldfarb did not treat her fairly. Subsequently, Petitioner filed a grievance, complaining, in part, because Ms. Johnson held the paychecks for the entire housekeeping department. There is no evidence that Petitioner was treated any differently than any other housekeeper. At the end of March 2004, Petitioner had a confrontation with a co-worker, Robert Goldfarb. Mr. Goldfarb was Sue Goldfarb's husband. The altercation occurred after Mr. Goldfarb walked across a wet floor that Petitioner had just mopped. Mr. Goldfarb had to walk across the wet floor to get to the restroom. Petitioner and Mr. Goldfarb cursed at each other and engaged in a shouting match. Petitioner filed a grievance about the incident. Respondent did not discipline Petitioner or Mr. Goldfarb for getting into the argument. Petitioner and Mr. Goldfarb have not had a similar exchange since the March 2004 incident. In September 2004, Petitioner and her supervisor, Ms. Goldfarb, engaged in an argument outside Ms. Johnson's office. Ms. Johnson suspended both employees for three days. After an investigation, Ms. Johnson reinstated Petitioner and Ms. Goldfarb and gave them back pay to make them whole. Since September 2004, Petitioner has received pay raises. She has not received any write-ups, reprimands, or any other type of discipline. She has not filed any grievances since September 2004. At the time of the hearing, Ms. Goldfarb was still Petitioner's supervisor. Petitioner was serving as Respondent's Chairperson of the Safety Committee, a position of special trust and responsibility.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of October, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2005. COPIES FURNISHED: Dorina Smith 1160 East Mays Street Monticello, Florida 32344 Alvin J. Taylor Delta Health Group 2 North Palafox Street Pensacola, Florida 32502 Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue Suite 225 Tampa, Florida 33606 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 Whether Respondent Florida Department of Economic Opportunity (the Department or DEO) engaged in discriminatory practices, concerning Petitioner’s disability, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Wright was an Employment Program Specialist with the Department’s Reemployment Assistance Division. Although she primarily worked in the Special Programs Child Support unit, she was also assigned to the Benefit Records unit during her employment with the Department. Ms. Wright testified that her issues with the Department started in 2014, and continued until her resignation on August 15, 2018. In 2014, Ms. Wright began experiencing serious medical issues, including bowel and bladder trouble, fatigue, and fibromyalgia. In September 2014, she took a month of leave from her employment because of these medical issues. Upon her return, Ms. Lampkin, who worked in DEO’s human resources department (HR), primarily focused on payroll, and Ms. Wright’s then-supervisor, Ayman Youseff, instructed her to use “leave without pay” for additional absences. Ms. Wright testified that after her return in 2014, Mr. Youseff began harassing her after she took another leave from employment, in the form of requiring her to provide additional supporting medical documentation for the leave. When Ms. Wright informed Mr. Youseff that his request was incorrect, he apologized and advised his supervisors of the mistake. Ms. Wright and her former co-worker, Ms. Milton, both testified that Mr. Youseff was rude and unprofessional. Ms. Milton testified that Mr. Youseff also had issues with Ms. Wright concerning her absences due to illnesses, and with other employees donating leave to Ms. Wright. Ms. Wright also testified that Mr. Youseff made her turn in her timesheets to him directly, as opposed to HR. Ms. Wright testified that she viewed this request, as well as requests from HR to use donated sick leave after she had exhausted all other remaining leave, and ultimately to use leave without pay—which she acknowledged were prompted by her absences from work during this time period—as harassment. In February 2015, Ms. Wright requested a transfer back to a previous unit within DEO, under a supervisor she liked, because she felt she was being harassed. DEO granted her transfer request in less than two weeks. Ms. Wright’s new supervisor was Mr. Leonard. However, after her transfer, Ms. Wright’s medical conditions did not go away. In September 2016, she submitted a request for a modified schedule accommodation to Mr. Huddleston, in DEO’s Office for Civil Rights, which noted that she had issues in the mornings because of her medical condition. DEO granted this request, and changed Ms. Wright’s work schedule to 10:30 a.m. through 6:30 p.m. Beginning in early 2017, DEO overpaid Ms. Wright several times because she failed to complete her timesheet and failed to timely document her use of leave without pay. In August 2017, Ms. Wright took a one-month absence from employment because of her medical issues, and was frequently absent from work during the following few months. During this time period, an HR employee accepted Ms. Wright’s incorrect timesheets for those time periods, and recouped each month’s overpayment from the following month’s pay. This became an issue for DEO because Ms. Wright utilized leave without pay for most of the month of August; however, the resulting lack of funds owed to her precluded DEO from immediate recoupment. Ms. Lampkin, who had left her employment with DEO but returned to her position in August 2017, recognized the payment issue with Ms. Wright. Ms. Lampkin testified that, because of Ms. Wright’s submittal of timesheets that utilize leave without pay after the payroll deadline for correcting timesheets, DEO’s HR department began paying Ms. Wright “on-demand,” i.e., payment for hours that she actually worked, to avoid overpaying Ms. Wright month after month. DEO introduced into evidence the Bureau of State Payroll Manual (Manual), which governs DEO’s handling of payroll issues. With respect to salary overpayment, the Manual states that “Agencies are responsible for identifying and preventing salary overpayments ” Although Ms. Wright contends that this switch from recoupment (which resulted in salary overpayment) to payment on-demand was evidence of harassment based on her disability, she also testified, on cross-examination, that “it’s verified in [the Manual] that it could be done that way.” Ms. Lampkin also credibly explained an issue that arose with Ms. Wright’s allegation that DEO canceled her insurance benefits, which Ms. Wright considered additional harassment. Ms. Lampkin testified: The term canceled is kind of an overstatement. There is a glitch in their insurance if I have to cancel their check and pay them on demand, because that means that the payment doesn’t go over when the regular payroll runs, and it gets paid on supplemental, and it’s usually on the same date that their payday is, but then it’s—the payment to the insurance companies would be sent at a later date than the other ones. It would be a lag time there. * * * If I canceled their monthly paycheck, that stops payment going to any pretax deductions; it would stop them. And then by paying them on demand, that would create the payment and send it over, but the difference in an on-demand and the regular payroll is processed approximately one week before payday. And on-demand is processed three days before payday. Technically two days, because the third day is when they get paid so—so it’s that lag time from a week to down to three days. Ms. Wright also testified that DEO engaged in harassment in discouraging other employees from donating sick leave to her. For example, in 2018, Ms. Wright testified that DEO hindered Charlie Davis, a DEO management level employee, from donating hours to her. DEO presented evidence that Ms. Wright was the recipient of many sick leave donations during her employment; all told, she received and used over 1,000 hours between 2014 and her resignation. Although Mr. Davis had donated sick leave hours to Ms. Wright previously, Ms. Pottle, who was Ms. Lampkin’s supervisor in DEO’s HR Department, explained that DEO employees in a supervisory or management position “are highly discouraged from donating to employees because it – it could be construed as favoritism.” Ms. Wright testified that she discussed Mr. Davis’s intention to donate additional sick leave hours with another DEO employee, and Mr. Davis was ultimately permitted to donate sick leave to Ms. Wright. On February 6, 2018, in response to Ms. Wright’s expressed concerns, individuals in Ms. Wright’s supervisory chain and Ms. Lampkin, met with Ms. Wright to discuss two options she could use in an attempt to resolve her leave and payroll issues: (a) be paid on-demand early, with the balance paid after she finalized her timesheet at the end of the month; or (b) remain on automatic pay, but provide donated leave hours and any necessary medical certification supporting their use by the 15th of each month. Following the February 6, 2018, meeting, Ms. Wright began providing medical certifications, which stated that she needed time off from work intermittently to attend medical appointments. Ms. Wright testified that she believed that these medical certifications allowed her to arrive for work as late as she felt necessary due to her medical condition. Ms. Wright, during a June 5, 2018 meeting with Mr. Leonard, expressed this belief; Mr. Leonard, in an email to Ms. Wright that same day, asked her “to provide supporting documentation regarding the need to arrive at work after 10:30 a.m. since the most recent documentation reflects a schedule of 10:30 a.m. to 6:30 p.m.” Mr. Leonard also testified about his team’s experience covering for Ms. Wright when she was absent. He stated that Ms. Wright cross-trained other members of this team to complete her work in her absence. However, when covering for Ms. Wright, these team members would then have work duties above and beyond their regular work duties. On June 8, 2018, Ms. Wright submitted a request to Mr. Huddleston in DEO’s Office for Civil Rights requesting a flexible, part-time schedule that would allow her to arrive for work between 10:30 a.m. and noon, and end her workday at 6:30 p.m. (Second Accommodation Request). With this Second Accommodation Request, Ms. Wright also submitted a letter from her physician stating that she was unable to arrive to work and do her job before 10:30 a.m., and would benefit from the flexible schedule she requested. At the time of Ms. Wright’s Second Accommodation Request, DEO’s Reemployment Assistance program was undergoing a significant reorganization. Ms. Wright worked in the Special Programs unit of DEO’s Reemployment Assistance program at that time. Mr. Huddleston testified that, after receiving Ms. Wright’s Second Accommodation Request, DEO decided to deny it. In an email dated July 11, 2018, Mr. Huddleston wrote: After reviewing your request, at this time, your request, to modify your accommodation of a flexible part-time work schedule is denied. Currently your accommodation allows you to work at 10:30 AM instead of your regularly scheduled start time of 8:00 AM. Your new accommodation request asks that you be allowed to arrive at work after 10:30 AM but before 12:00 PM. In making this decision our office has spoken with your management team and has determined that this modification would cause an undue hardship. This modification to your existing accommodation would also require a lowering of performance or production standards. Based on these two factors, we have determined that you would not be able to perform the essential functions of your position if this modification were to be put into place. The Equal Employment Opportunity Commission states that essential functions are basic job duties that an employee must be able to perform, with or without a reasonable accommodation. These duties must be performed to achieve the objectives of the job. As part of this, and all accommodation request reviews, our office analyzed your position to determine its purpose and essential functions, consulted with your management team, and researched and explored accommodation options to assess the effectiveness of the accommodation. During this interactive process we explored the possibility of reassigning you to another position that was as close as possible to your current position in status and pay; however, we were unable to find a suitable position. There are no part-time positions currently available and the essential functions of your position can not be completed working the hours you requested. Our office would be more than happy to meet with you to discuss this further and to explore other accommodation options that you and/or your medical professional come up with. However, on July 10, 2018—the day before Mr. Huddleston sent the email denying the Second Accommodation Request—Ms. Wright went on another month-long leave of absence from her employment because of her worsening medical condition. Ms. Wright testified that she believed that DEO would approve of her Second Accommodation Request and that, after returning to work, she would start the new schedule. Ms. Wright testified that she did not know the status of her Second Accommodation Request until she returned to work (after her month-long leave of absence) on August 13, 2018, and read Mr. Huddleston’s email. She sent him the following email response later that afternoon: Thanks for reviewing my request to modify my work schedule. I understand that there is no part- time positions available; but I was referring to me working at least 30 hours per week. When I met with my supervisor Marche and Joel in June concerning me arriving later than my scheduled time 10:30 AM, I advised them that I needed to request a modification to my previous work schedule because I moved back home with my mom which is outside of Quincy due to my health. I also advised them that it was impossible for me to arrive to work at 10:30 AM due to the distance I had to travel and the medications I take. I informed them that 11:15 or 11:30 would work better for me because I understand that my job consists of duties that must be performed in order to achieve the objectives outlined for the job. Please let me know when there’s a good time for us to meet. Thanks again for your help concerning this matter. Rather than wait for Mr. Huddleston’s response, Ms. Wright resigned on August 15, 2018, by a letter that she left in a co-worker’s chair. This resignation letter does not identify any reason for her resignation. On August 20, 2018, Mr. Huddleston—unaware of Ms. Wright’s resignation—actually responded to Ms. Wright’s August 13, 2018, email, inviting her to meet with him about her concerns. Ms. Wright testified that she has not sought out employment after her resignation from DEO because of her medical condition. Ms. Wright presented no persuasive evidence that DEO’s actions subjected her to harassment based on her disability, or that such actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, substantial evidence in the record upon which the undersigned could make a finding of unlawful disability harassment or hostile work environment. Ms. Wright presented no persuasive evidence that, at the time of her resignation, her working conditions were so intolerable that a reasonable person in her position would have felt compelled to resign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Angela Wright’s Petition for Relief. DONE AND ENTERED this 19th day of January, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 19th day of January, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Angela Michelle Wright 4102 Greensboro Highway Quincy, Florida 32351 (eServed) Dominique Gabrielle Young, Assistant General Counsel Department of Economic Opportunity 107 East Madison Street Tallahassee, Florida 32399 (eServed) Brandon W. White, Esquire Department of Economic Opportunity 107 East Madison Street, MSC 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1991.
The Issue The issue is whether Respondent discriminated against Petitioner based on his national origin in violation of Section 760.10(1), Florida Statutes (2008).
Findings Of Fact Respondent operates a residential and commercial waste collection and disposal business. Respondent has multiple locations across the southeastern United States. It employs approximately 8,623 employees. Payroll Management, Inc. (PMI) is an employee leasing company. It assists companies with their human resource issues, payroll needs, employee benefits and worker compensation coverage. Respondent is a client of PMI. Petitioner is an Hispanic male, who was born in Cuba in 1972. As a permanent resident, Petitioner is entitled to work. Petitioner is able to speak some English but occasionally needs a Spanish interpreter. David Otano was a driver/supervisor for Respondent's predecessor in Panama City, Florida. When Respondent bought the predecessor in 2006, Mr. Otano worked as operations manager for Respondent. Petitioner and Mr. Otano are friends. In February 2008, Mr. Otano recommended that Respondent hire Petitioner as a "slinger." A slinger rides on the back of a garbage truck to assist the driver in collecting garbage. On February 11, 2008, Petitioner filled out an employment application with PMI. At that time, Petitioner signed an acknowledgement that he was a leased employee of PMI who was assigned to work for a work site employer. Among other things, the acknowledgement stated as follows: I acknowledge that I am aware that PMI adheres to a grievance policy and it is the employee's right to file a grievance if he/she feels they have been unfairly treated. I understand that if I do not utilize the grievance procedures, my unemployment benefits may be denied me. PMI's employment application package also includes the following employee's certifications/acknowledgements: I CERTIFY and ACKNOWLEDGE that the following is true and correct: I have read, have been read, or will read IMMEDIATELY upon hire, the Employee's Post-Hire Handbook ("Handbook"). Further, I understand and agree to the provision as stated in the Handbook and within the Post- Hire Handbook, Post-Hire Packet, policy manual and safety manual. * * * I hereby acknowledge that I have received a copy of the PMI Post-Hire Handbook . . . . Petitioner signed the certification/acknowledgement on February 2, 2008. PMI's Post-Hire Handbook contains the company's harassment policy. The policy provides as follows in pertinent part: 3. Any employee who feels victimized by harassment should IMMEDIATELY report it to PMI's Human Resource Department . . . PMI will undertake a careful investigation, which may include interviewing other employees who have knowledge of the alleged incident or similar situations. Your complaint, along with the investigative steps and findings, will be documented in accordance with our dispute resolution procedures. PMI routinely trained Respondent's managers and supervisors about the non-discrimination policy. The instruction included an admonition to make decisions about employees based on their work performance and not because of their ethnicity or any other reason. Respondent and PMI knew that Spanish was Petitioner's first language when he was hired. They also knew Petitioner was originally from Cuba. At times, Petitioner had difficulty communicating with his direct supervisor, Penny Atkins. On those occasions, Ms. Atkins found another Spanish-speaking employee, such as Mr. Otano, to act as a translator and/or interpreter. It was not unusual for Respondent to employ people who spoke very little English. For example, Respondent once hired a Russian who spoke limited English. There were no problems with Petitioner's work performance when he was on a route. However, Petitioner was sent home when he was not dressed properly, such as wearing shorts instead of long pants or not having on work boots. Petitioner lived about two miles from the work site. When he was sent home, Ms. Atkins expected him to come right back to work. Decisions to send Petitioner home due to improper clothing were not based on Petitioner's national origin. Residential slingers usually worked Monday, Tuesday, Thursday, and Friday. Sometimes, Petitioner was sent home when there were too many slingers and not enough routes to run. If possible, such time off would be made up on a Wednesday. Occasionally, instead of sending a slinger home, Ms. Atkins would allow two slingers to ride on the back of one residential truck. At other times, Petitioner was given more work or extra routes to ride when there were not enough slingers. There is no persuasive evidence that Ms. Atkins' scheduling decisions were related to the national origin of any employee. Mr. Otano testified that Ms. Atkins wanted him to fire Petitioner because Petitioner did not speak English. Mr. Otano's testimony in this regard is contrary to more persuasive evidence. In April 2008, Mr. Otano's job description changed. Instead of being operations manager, he became a supervisor on an equal footing with Ms. Atkins. Mr. Otano considered the change a demotion. Even though Mr. Otano was no longer in Petitioner's chain of command, he continually complained to Ms. Atkins that she was not treating Petitioner fairly. Because Mr. Otano and Ms. Atkins argued about Petitioner, Respondent's general manager told Mr. Otano to worry about his own responsibilities, roll- offs and front loads, and to let Ms. Atkins worry about residential. In April 2008, Petitioner's wife had a car accident. Petitioner called Ms. Atkins to inform her that he would not be at work the morning after the accident. Ms. Atkins sent a driver in a truck to pick up Petitioner. Sometime in July 2008, Petitioner complained to Respondent's general manager that Ms. Atkins was discriminating against him. Petitioner understood that his complaint would be investigated. On August 28, 2008, Petitioner suffered an injury to his arm and shoulder while working as a slinger. He was transported to a local emergency room/walk-in medical facility. Respondent immediately reported the accident to PMI who was responsible for handling the workers’ compensation claim. After receiving medical treatment and physical therapy for a period of time, Petitioner returned to work with light- duty work restrictions imposed by his physician. Ms. Atkins told Respondent there was no such work available at the work site and sent him home. A second doctor's note dated September 29, 2008, stated that Petitioner could do no work for three weeks. On or about September 29, 2008, Respondent decided that it would be able to accommodate Petitioner's need for light-duty work with restrictions as required by a doctor's note. Once that decision was made, Chris Traughber, Respondent's safety manager, called PMI. PMI then contacted Petitioner's physician to let him know that Respondent would accommodate any restrictions if Petitioner was released to work. On or about October 2, 2008, PMI received a note from Petitioner's physician. According to the note, Petitioner was released to work with restrictions of no lifting, pushing, or pulling, effective that same day. Petitioner reported to work on October 3, 2008. At that time, Petitioner was taking a prescription drug for pain, Lortab. For light-duty work, Ms. Atkins instructed Petitioner to sit in a chair under a shed in the yard and note the truck numbers and times that each truck entered and left the yard. The job could not have been performed anywhere but outside in the yard near the gate. The trucks usually left in the early morning around 4:30 a.m. Some trucks would return around 8:00 or 9:00 a.m. Others would return at 6:00 p.m. Trucks might come and go from the yard anytime there was a mechanical problem with a truck on a route. The shed provided Petitioner shade and some protection from rain. Respondent created this job for Petitioner in order to return him to work. Ms. Atkins did not tell Petitioner that he could not take breaks or go to the bathroom. The most credible evidence indicates that Petitioner sometimes visited with Natalie Richardson, Respondent's dispatcher, in the air-conditioned dispatch office on his breaks. There are restrooms in the dispatch office and in the mechanic's shop area. There also was a portable toilet close to the shed where Petitioner was stationed. Petitioner's testimony that he urinated in his clothes on September 7, 2008, because it was raining and he was not allowed to go to the bathroom is not credible. Petitioner also took lunch breaks while he was working light duty. On one occasion, Petitioner left for lunch and did not come back to work. On or about October 8, 2008, Petitioner was sitting under the shed at work when he had a seizure or fainting spell that caused him to fall down on the ground and foam at the mouth. An ambulance transported Petitioner to the emergency room of a local hospital. There is no competent medical evidence regarding the incident. A doctor's note dated October 10, 2008, stated that Petitioner could return to light-duty work on October 18, 2008, with restrictions against swimming, driving, or climbing. On or about October 14, 2008, PMI sent a memorandum to Respondent, advising that Petitioner could return to light-duty work on October 18, 2008, with restrictions of no swimming, driving, or climbing. Petitioner returned to work light duty as restricted by his physician. Once again Respondent directed Petitioner to sit under the shed and count trucks. He was able to go to lunch and take breaks as needed. On or about October 13, 2008, Petitioner spoke to Respondent's general manager at the work site. During the conversation, Petitioner complained that Ms. Atkins was harassing him and treating him unfairly. Petitioner was told to go ahead and file a complaint with PMI. Petitioner subsequently filed a complaint with PMI, alleging that Respondent was harassing him and treating him unfairly. That same day, PMI learned that Petitioner had filed an employment discrimination claim with FCHR. Because FCHR was investigating the grievance, PMI did not investigate Petitioner's allegations. In the fall of 2008, Respondent began a reduction-in- force (RIF) process for economic reasons at multiple work sites. On or about November 21, 2008, Petitioner was reassigned to PMI along with over 30 other employees, several of which worked at Petitioner's work site. Respondent's Chief Financial Officer, Bruce Roy, decided which employees would be reassigned to PMI during the RIF. Mr. Roy worked at Respondent's corporate office and did not directly supervise the employees on the list. Petitioner's testimony that he was not aware that he had been reassigned until months later is not persuasive. The record is not clear as to the last day that Petitioner actually worked at the work site. Between October 2, 2008, and June 10, 2009, Respondent terminated/reassigned 99 employees at multiple work site locations. The RIF included men and women of Caucasian, African-American, Hispanic, and Asian ethnicities. There is no persuasive evidence that Respondent targeted Hispanics in deciding which employees to include in the RIF.
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 8th day of March, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2010. COPIES FURNISHED: John S. Mead, Esquire Michael WM Mead, P.A. Post Office Drawer 1329 Fort Walton Beach, Florida 32549 Jeffery Daryl Toney, Esquire Law Office of Jeffery D. Toney, Sr. 502 North Main Street Post Office Box 579 Crestview, Florida 32536 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent Department of Corrections (Respondent or the Department) constructively discharged Petitioner Lou Armentrout (Petitioner) in violation of the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by subjecting Petitioner to a hostile work environment because of Petitioner’s race, age, or gender.
Findings Of Fact Petitioner is an Asian female born February 25, 1970. Petitioner speaks Chinese and English. Petitioner speaks with a Chinese accent. She does not speak or understand Spanish. Respondent is a state agency responsible for “the incarceration and supervision of offenders through the application of work, programs, and services." See § 20.315(1), Fla. Stat. At all material times, Respondent employed more than 15 persons. Petitioner was employed by Respondent at its Lake Correctional Institution (Institution) from September 16, 2011, until October 12, 2012, as a Senior Registered Nursing Supervisor. Petitioner's duties as a Senior Registered Nursing Supervisor included the supervision of approximately 80 nurses at the Institution. While employed at the Institution, Petitioner worked directly under the supervision of the Institution's Chief Health Officer. When Petitioner was hired, the Chief Health Officer was Dr. Moreno. Dr. Moreno’s annual performance evaluation of Petitioner for the period ending February 29, 2012, gave Petitioner an overall 3.51 performance rating score, indicating that Petitioner “consistently meets and may occasionally exceed the performance expectation of the position.” Petitioner never received an evaluation score below a 3, indicating that the employee at least “meets expectation,” on any written evaluation of her performance while she was employed by the Institution. After Dr. Moreno resigned in April or May 2012, Dr. Virginia Mesa was hired as Chief Health Officer of the Institution in May of 2012. Dr. Mesa is Hispanic. Dr. Mesa’s supervision was often harsh. Dr. Mesa had a bad temper and would raise her voice and reprimand employees in the presence of others, including inmates. Dr. Mesa described her supervisory style as the “team approach.” She advised that, instead of meeting with employees individually, she would meet them as a “team.” She would meet every morning with the nurses in the medical unit and once a week in the psych unit. Petitioner attended these meetings. During the meetings, Dr. Mesa would often address the group, many of whom were Hispanic, in Spanish instead of English. Many of the discussions were regarding Dr. Mesa’s medical direction and discussion about patients’ cases. Dr. Mesa knew that Petitioner did not speak Spanish. On more than one occasion, Petitioner asked Dr. Mesa what was being said, and Dr. Mesa would reply, “Ask one of the nurses.” Although Dr. Mesa never specifically mentioned Petitioner’s race, age, or gender, she treated Petitioner harshly and made fun of Petitioner’s Asian accent behind her back. On one occasion, while Petitioner was not present, Dr. Mesa made a joke of Petitioner’s pronunciation of a word by substituting Petitioner’s mispronunciation with a vulgar term, repeating the word a number of times in the presence of other employees and laughing with those employees while poking fun at Petitioner. While not mentioning Petitioner’s race, it is evident that the joke was designed to ridicule Petitioner on account of Petitioner’s race.2/ Petitioner was made aware by others that Dr. Mesa belittled her behind her back. Dr. Mesa’s contempt for Petitioner was overt. Dr. Mesa would raise her voice and glare at her, and challenge Petitioner’s competence as a supervisor and medical professional in front of others in a bullying way. Dr. Mesa would humiliate Petitioner by testing Petitioner’s bedside nursing skills in front of other nurses and inmates, knowing that Petitioner had not been working as a nurse for a number of years, primarily because Petitioner had been working in an administrative position. Feeling as though her authority was being undermined by Dr. Mesa, and wanting to improve her business relationship and obtain some direction from Dr. Mesa, Petitioner asked for private meetings with Dr. Mesa on numerous occasions. Dr. Mesa refused. In addition, despite Petitioner’s continued requests that she use English, Dr. Mesa continued to address Hispanic staff in Spanish during morning staff meetings. Dr. Mesa did, however, meet privately with Gary Assante, a white male, who, although not licensed in a medical profession, was an administrator with the Institution with lateral authority to that of Petitioner. Instead of giving directions directly to Petitioner, Dr. Mesa would give directions through Mr. Assante to Petitioner. Some of the directions were of a medical nature. Dr. Mesa would also use nurses supervised by Petitioner to deliver directions to Petitioner. Dr. Mesa’s tactics undermined Petitioner’s supervisory authority. Petitioner became frustrated because Dr. Mesa’s tactics were interfering with Petitioner’s ability to do her job. Petitioner complained to the assistant warden of the Institution, Assistant Warden Young, of Dr. Mesa’s intimidation and behavior. In particular, Petitioner complained that, in addition to her intimidation of Petitioner, Dr. Mesa threatened nursing staff members with termination on several occasions. Assistant Warden Young set up a meeting between Petitioner, Mr. Assante, and Dr. Mesa to discuss the issues in July 2012. During the meeting, Dr. Mesa stated that she is paid too much to listen to the allegations. Despite Petitioner’s complaints, Dr. Mesa’s intimidating behavior continued. On August 22, 2012, without any prior warning of disciplinary action, Dr. Mesa brought Michelle Hanson to Petitioner’s office. Michelle Hanson was the Regional Nursing Director of the Department’s Region 3 Office, which included the Institution. During the meeting, Dr. Mesa questioned Petitioner’s competency as a nurse and told Petitioner that she wanted to demote her. Petitioner told Dr. Mesa that she did not want a demotion and asked Dr. Mesa to specify the problems with Petitioner’s performance. Dr. Mesa never did. In fact, there is no evidence of verbal counseling or reprimands from Dr. Mesa in Petitioner’s personnel file. Dr. Mesa never provided a written evaluation of Petitioner’s performance while Petitioner was employed by the Institution. Near the end of August or early September, Petitioner verbally complained to the Institution’s warden, Warden Jennifer Folsom, about Dr. Mesa’s behavior. Dr. Mesa’s intimidation continued. On September 16, 2012, Petitioner provided Warden Folsom with a letter explaining how Dr. Mesa’s “workplace bullying” was adversely affecting Petitioner and the workplace environment, asking “higher level management for assistance and to make a reasonable working environment,” and advising that Dr. Mesa had asked Petitioner to take a demotion. Petitioner’s letter explained, in part: I strongly feel workplace bullying is linked to a host of physical, psychological, organizational and social costs. Stress is the most predominant health effect associated with bullying in the workplace. My experience with workplace bullying is developed poor mental health and poor physical health, inability to be productive and loss of memory and fear of making key decisions. Recently, I also turn to other organizations for job opportunities and I have been asked by Dr. Mesa and Mr. Assante where do I go for interview and how long will this last by asking for days and hours for interviewing. My fearful of retaliation even made me so scared to ask for job interviewing. Petitioner met with Warden Folsom the next day, September 17, 2012. During the meeting, Warden Folsom assured Petitioner that Dr. Mesa did not have the authority to demote her, and gave Petitioner someone to contact in Employee Relations regarding her concerns. Warden Folsom followed up the meeting with a letter dated September 17, 2012, stating: It has come to my attention that you have alleged harassment by your supervisor. You are being provided the name and contact number for the Intake Officer at the Regional Service Center. Norma Johnson (407)521-2526 ext. 150 Please be aware the Department does not tolerate inappropriate behavior in the workplace. Your allegations will be looked into and any appropriate action taken. The letter was signed by Warden Folsom and a witness, as well as by Petitioner, acknowledging receipt. It was copied to Norma Johnson, Employee Relations. After that, Petitioner spoke a couple of times by telephone with Norma Johnson. She told her that Dr. Mesa was continuing to harass and bully her in the workplace, and that Dr. Mesa was causing a hostile work environment. Despite Petitioner’s complaints, nothing changed. It is apparent that Petitioner’s complaints were ignored. In fact, Dr. Mesa claimed that she never heard about complaints that she treated individuals that are Hispanic differently than she treated Petitioner, and could not recall if the Warden ever approached her regarding Petitioner’s complaints. Incredibly, Dr. Mesa testified that she was not made aware of Petitioner’s complaint that she was speaking Spanish and Petitioner could not understand until after Petitioner left her employment with the Institution. After Petitioner’s meeting with the Warden and conversations with Norma Johnson, Dr. Mesa continued to speak Spanish at meetings with staff and Petitioner could not understand. Dr. Mesa continued to direct Petitioner through other employees. And Dr. Mesa continued to raise her voice and challenge Petitioner’s competence in front of other employees. The evidence supports Petitioner’s claim that the way she was treated was discrimination, based upon Petitioner’s race. The evidence does not, however, support Petitioner’s claims that she was discriminated against based upon Petitioner’s age or gender. The harsh treatment Petitioner received, based upon her race, undermined Petitioner’s supervisory authority and interfered with Petitioner’s ability to do her job. The discrimination was overt, continuous, and created a hostile work environment that was intolerable. Petitioner, in essence, was forced to leave the employ of the Institution. Approximately two weeks later, on September 28th or 29th, 2012, after deciding that she could no longer endure the situation, Petitioner sent the following letter to Dr. Mesa and Warden Folsom: Dear DOC: Please accept this letter as my formal notice of resignation from Senior Registered Nurse Supervisor effective 10/12/12. This is the most difficult decision I have ever made throughout my career; however, my time here at Lake Correctional Institution has been some of the most rewarding and memorable years of my professional life. I sincerely appreciate the opportunities that I have been given to contribute to the organization’s success, while growing professionally and personally. Sincerely, Lou Armentrout Cc Human Resource: Please leave all my leave times (annual and sick leaves) in people first until receiving notification from me. Thank you for your assistance. In the year following Petitioner’s resignation, the health care services were privatized and provided by Corizon Health, Inc. Most employees kept their jobs that they held prior to privatization. Had Petitioner remained with the Institution, it is likely that she would have transitioned over to an equivalent position with Corizon Health, Inc. After leaving the Institution on October 12, 2012, Petitioner obtained a job with the Department of Health on October 26, 2012. Petitioner suffered a loss of pay in the amount of $2,222.40 during the period of her unemployment between October 12, 2012, and October 26, 2012. Petitioner’s pay at her new job with the Department of Health is $299.32 less per two-week pay period than her job at the Institution. $299.32 per two-week pay period equals $648.53 less each month ($299.32 X 26 weeks = $7,782.32/year ÷ 12 months = $648.53/month ÷ 30 = approximately $21.62/day). The time period between the date Petitioner began her new job with the Department of Health on October 26, 2012, and the final hearing held January 16, 2015, equals 26 months and 21 days. The loss in pay that Petitioner experienced in that time period totals $17,315.80 ((26 month x $648.53/month) + ($21.62/day x 21 days) = $17,315.80). The total loss in pay ($2,222.40 + $17,315.80) that Petitioner experienced from her resignation until the final hearing is $19,538.20. Petitioner also drives 92 miles further each work day to her new position with the Department of Health. The extra cost that Petitioner incurs to get to her new job, calculated at the State rate of $0.445 per mile, equals $40.94 per day. Taking into account 260 work days per year (5 work days per week), from beginning of Petitioner’s new job through the date of the hearing equals a total of $23,663.32 (578 days x $40.94/day), without subtracting State holidays or vacation days. Subtracting nine State holidays and two weeks for vacation each year results in a total of $21,943.84 to reimburse Petitioner for the extra miles driven each work day through the day of the final hearing (536 days x $40.94/day).
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: Finding that the Department constructively discharged Petitioner Lou Armentrout by subjecting her to a hostile work environment on account of Petitioner’s race in violation of the Act; Ordering the Department to pay Petitioner $19,538.20 in back pay through the date of the final hearing, January 16, 2015, plus $21.62 per diem thereafter through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to pay Petitioner $23,663.32, as an additional aspect of back pay, for extra daily travel expenses incurred to get to and from her new job through the date of the final hearing, plus $40.94 for each work day thereafter that Petitioner drives to her new job through the date of the Commission's final order, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering the Department to make arrangements to reinstate Petitioner to an equivalent position with Corizon Health, Inc., for service at the Institution; Prohibiting any future acts of discrimination by the Department; and Awarding Petitioner her costs incurred in this case. DONE AND ENTERED this 29th day of April, 2015, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2015.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been the victim of discrimination based upon his race and upon retaliation regarding his termination (lay-off) from employment with the Respondent and with regard to his allegation that he was denied overtime by the Respondent.
Findings Of Fact The Petitioner was a laborer and carpenter's helper for the Respondent, a construction company, at times pertinent to this case. The two construction projects involved in this proceeding are known as the Oceans Grande Project, a 20-story high rise condominium in Daytona Beach Shores and the Salida Del Sol project in Daytona Beach Shores. The first was commenced in construction in January 2004, and the Salida project in December 2004. They are still ongoing. Sometime in 2004 the Petitioner applied at the Respondent's Oceans Grande worksite asking for a wage rate of $14.00 per hour. He filled out an application and left and had no more contact with the Respondent employer for two or three months. He returned after that period of time and spoke with Grady Johnson, the project superintendent for the Respondent. He ultimately took a job at $12.00 per hour with the Respondent as a carpenter's helper/laborer. He was thus employed initially at the Oceans Grande project. The Petitioner was employed at that location from June 21, 2004 until early March 2005, when he was transferred to the Salida Del Sol project. Prior to that transfer, in November 2004, at the Oceans Grande site the Petitioner suffered an on- the-job injury. He was provided medical care by the Respondent, and had been placed on light duty by his physician. In early March 2005, the Oceans Grande project no longer had any light duty work available. It was the understanding of the superintendent, Grady Johnson, that at all times after November 15, 2004, the Petitioner had been on light duty status. He was aware of three specific letters that the company received from the physician. The latest one, advising that the Petitioner must remain on light duty, was received in March according to Mr. Johnson; however, rather than lay-off the Petitioner, the Respondent transferred the Petitioner to the Salida Del Sol project. That project was just getting underway at that time and light duty work was available. Two other employees were also transferred to that project. Thus, the Petitioner's employment at Salida Del Sol consisted of light duty work. Superintendent Getz of that project re-affirmed that the transfer to his project was because of a lack of a need for one such as the Petitioner on light duty at the Oceans Grande project, as well as the fact that his project at this time had light duty work. The transfer to the Salida Del Sol project occurred on March 7, 2005. At the time of the Petitioner's transfer to the Salida job site there were only two Yates employees, including the Petitioner, who were employed there, aside from supervisory personnel. On or about April 12, 2005, an employee of a subcontractor referred to the Petitioner with a racial slur, and made other unkind, argumentative comments toward him. The Petitioner made no mention of it initially, but on the very next day was working in that area and realized that one of the female employees was quite angry because of her awareness of the racially derogatory comment that the subcontractor's employee had made toward the Petitioner. This co-employee made a complaint about the matter to Rick Getz, the project superintendent at the Salida job. Mr. Getz immediately investigated the matter and confronted the employee of the subcontractor ("Dominick") and told him in no uncertain terms that such conduct was not to be tolerated on that job, regardless of whom he worked for. Subsequently Mr. Getz, along with the assistant project superintendent Rick Bilodeau, met with the subcontractor's employee, Dominick, as well as his employer and reiterated to both of them that this type of conduct would not be condoned and there would be no further incidents like this. There were no more complaints thereafter by the Petitioner or any other employee of the Respondent. In a conversation shortly after this meeting, Mr. Bilodeau informed the Petitioner that the matter had been resolved, at which point the Petitioner made a statement to the effect that he wanted to know the name and address of Dominick's employer because "my people like people with big mouths and lots of money." In any event, the Respondent's action remedied the situation and stopped any further racially derogatory incidents. The Petitioner has also complained of being denied overtime. This stems from Friday, April 29, 2005, when the Petitioner learned that the other two employees on his job site were going to work overtime the next day, Saturday. He claims he knew nothing about it and was not told by his employer and concluded therefore that he was denied overtime. The Respondent, however, offered preponderant evidence that there was overtime available on Saturday April 30, 2005, and that no effort had been made to exclude the Petitioner. Rather, overtime is voluntary and because of the small number of employees superintendent Getz had announced to all employees near the end of the workday on Friday that work was available for anyone who wanted to work on Saturday. It was Mr. Getz's impression that this had been made known to the Petitioner, but if the Petitioner had not heard the announcement at a gathering at the end of the day, it was not through any intentional effort by the Respondent to exclude him from an overtime opportunity. This was confirmed by Assistant Superintendent Billodeau in his testimony to the effect that it was customary on the job site on Friday to announce to everyone congregated in the afternoon whether they were going to work on Saturday or not. It was Billodeau's impression also that the Petitioner was present on that occasion. So all employees were told as a group that there was work to be done on Saturday. It is also true that numerous occasions had arisen on this and the Oceans Grande project in which the Petitioner was asked to work overtime but declined for various reasons, as the Petitioner himself has conceded. Finally, the Petitioner complains concerning his lay- off from the Oceans Grande project on May 6, 2005. In fact, efforts were made to avoid laying the Petitioner off, and to find him available work at the Salida project. Additional efforts were also made to contact the Petitioner for re-call purposes even after he was laid-off from the Oceans Grande project. This belies any intention on the part of the Respondent to retaliate against the Petitioner for complaining about the racial comment incident by denying him overtime or laying him off. On May 2, 2005, the Salida Del Sol project had reached a stage in which there was very little work to do. The project was waiting for a work permit and for the installation of a tower crane. Therefore there was no work for a laborer, the Petitioner, or for the two carpenters, Felix Hernandez and Otillo Toledo. Rather than lay them off, however, Superintendent Getz called the project Superintendent, Mr. Johnson, at the Oceans Grande project to see if there was any work for the three employees. Mr. Johnson told him that he might have work for perhaps a week and therefore the Petitioner and the other two employees were transferred to the Oceans Grande project. Both Hernandez and Toledo were skilled carpenters, as opposed to the Petitioner, who was a laborer/carpenter's helper. When this transfer occurred it left only two traffic control employees, who were females, at the Salida job site, along with the tower crane operator. On May 6, 2005, the Petitioner was laid-off from the Oceans Grande project. There was simply no further work for a laborer at that job site so Mr. Mecker, the foreman, explained to the Petitioner why he was laid-off. He also told him that the company might soon have another project starting known as the Halifax Landing project and that he might have work available there. He told the Petitioner that he should remain in contact with the Oceans Grande project supervisory personnel in case a re-call came up because of additional work becoming available. The Respondent also noted in the Petitioner's personnel file at the time of this "reduction in force" that the Petitioner was "recommended for re-hire." Mr. Johnson also testified that as far as he was concerned the Petitioner was still eligible for re-hire and that he actually liked Julian Lawrence as a person and as an employee. It is undisputed, however, that the Petitioner never contacted the Respondent and never made any inquiry as to additional work. On occasion, Project Superintendent Johnson made efforts to call the Petitioner at the only phone number he had for him, regarding re-calling him for more work. This was probably three to four weeks after the lay-off. The fact that the Respondent noted on the personnel record at the time of his lay-off that the Petitioner was recommended for re-hire belies any indication that the Petitioner was being retaliated against by the Respondent. It also significant that the decision-maker with regard to the lay-off was Grady Johnson. The Petitioner maintains that he was laid-off in retaliation for complaining about the racial epithet incident involving "Dominick" at the Salida project. Mr. Johnson however, was totally unaware of that incident at the time he made the decision to lay the Petitioner off. Thus it was not possible that he did so as an act of retaliation. Indeed the Petitioner himself did not complain regarding the racial comment incident, but rather learned of it from the female employee who had made the complaint to the Respondent's management. Equally significant, no derogatory employment action was ever taken against the female employee who complained to the Respondent regarding the incident either. Project Superintendent Johnson established, based upon his 45 years experience in the construction industry, that it is important to understand how a construction project and company operates. There are different steps and different stages. During these different steps and stages of a project different employees are required and then become un-needed at a later stage of the project. Many times much of the work at various stages is performed by subcontractors. Additionally, it is important to acknowledge that not only was Mr. Johnson unaware of the "Dominick" incident, but when asked if the lay-off of the Petitioner was in any degree an effort, to retaliate, Mr. Johnson was very adamant in denying that. He stated, "I've never done that in my life." Indeed, the testimony shows that on at least two occasions the Respondent sought to find available work for the Petitioner rather than lay him off. Mr. Johnson established that the Petitioner's employment record was marked as "eligible for re-hire" and the Respondent's attempts to reach the Petitioner after the lay-off was because the Respondent was actively trying to effect an arrangement so that the Petitioner would have work at different times with the Respondent. In Mr. Johnson's words, "We like Julian. Julian is good guy. There was no selection . . . we were trying to work it out where he could go to the other job, but that didn't work out."
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, 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 1st day of September, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 2006. COPIES FURNISHED: 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 Julian J. Lawrence Post Office Box 263225 Daytona Beach, Florida 32126 Taylor B. Smith, Esquire The Kullman Firm Court Square Tower 200 6th Street North, Suite 505 Columbus, Mississippi 39703-0827 Jennifer Robbins Guckert, Esquire The Kullman Firm 1640 Lelia Drive, Suite 120 Jackson, Mississippi 39216
The Issue Whether Respondent Eastern Florida State College (EFSC) engaged in discriminatory employment practices and retaliation, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Ms. Garrett is a 53-year-old African American woman. EFSC is a public college in Brevard County, Florida. For the time period relevant to this matter, EFSC is, and has been, her employer. On July 9, 2018, Darla Ferguson informed Ms. Garrett that EFSC eliminated her position as e-Learning Coordinator. EFSC did not fill Ms. Garrett’s position in the e-Learning department; rather, the prior job duties were assigned to other members in the e-Learning department. After eliminating the position of e-Learning Coordinator, EFSC offered Ms. Garrett the position of Coordinator of the Office of Undergraduate Research (OUR). The OUR department supports and promotes research opportunities among undergraduate research students through EFSC’s four campuses. Ms. Garrett accepted EFSC’s offer, and Ms. Garrett became EFSC’s first employee to hold the position as Coordinator of OUR. In lieu of offering Ms. Garrett the position of Coordinator of OUR, EFSC could have laid off Ms. Garrett following the elimination of her position as e-Learning Coordinator. However, rather than laying her off, EFSC found a new position for Ms. Garrett. Following her transfer to the position as Coordinator of OUR, Ms. Garrett’s salary and benefits remained unchanged from her prior position as e-Learning Coordinator. On July 10, 2018, Ms. Garrett met with Dr. Sandra Handfield, Scott Herber, and Dr. Ashley Spring to discuss Ms. Garrett’s new position as Coordinator of OUR. At that meeting, Dr. Handfield—who was Ms. Garrett’s new supervisor—informed Ms. Garrett that Dr. Spring and Mr. Herber were the founders of OUR. Prior to Ms. Garrett’s arrival as Coordinator of OUR, Dr. Spring and Mr. Herber, who were full-time faculty members, oversaw the OUR program. Dr. Handfield also informed Ms. Garrett that should she have any questions regarding her position as Coordinator of OUR, she should consult with Dr. Spring and Mr. Herber. As of the date of the final hearing, Ms. Garrett remained employed by EFSC as the Coordinator of OUR, and continues to receive the same salary and benefits that she received when she was the e-Learning Coordinator. Allegations of Adverse Employment Action EFSC originally intended for the Coordinator of OUR to be a Director, and possess a doctorate degree. However, EFSC later changed this position to Coordinator, which did not require a doctorate degree, and which had a lower salary. Ms. Garrett never applied for the Director of OUR position, and she does not have a doctorate degree. Ms. Garrett testified concerning her belief for the reason that EFSC transferred her to the Coordinator of OUR position, stating: I believe they did that because the intent was to put me in a position that was beyond my reach so that when I had issues and problems, they could use that and tie it with this position in order to say that I could not do the job. On April 12, 2019, Ms. Garrett received a six-month performance evaluation covering her first six months in her position as Coordinator of OUR. Dr. Handfield provided the performance evaluation approximately four months after the performance period ended. The performance evaluation indicated that Ms. Garrett was deficient in the areas of teamwork, valuing differences, and communication. Following the performance evaluation, Ms. Garrett did not lose any pay or benefits, and nothing adverse happened to Ms. Garrett as a result of the performance evaluation. Ms. Garrett testified that she believed Dr. Handfield gave her that evaluation “as a form of retaliation[,]” but not on the basis of her race, age, or gender. She further testified as follows: Q. Okay. But just to be clear, not gender, age, or race. You think it’s retaliation, what she did, correct? A. Correct. Q. Okay. And what was she retaliating against you for in your view or what facts do you have that it was for retaliation? A. I believe it was retaliation based on the input from the faculty members, based on the interactions we had during the actual performance review period, which would have been July 9th, 2018, until January 9th, 2019. Q. So based on the interaction you had with Dr. Handfield, Dr. Spring and Mr. Herber for the six months before that; is that what you’re saying? A. Yes In January 2019, Ms. Garrett requested that she use Canvas shell computer software to enable her to build an orientation outline. EFSC denied this request, because it would not generate money. Allegations of Comparator Ms. Garrett identified Justin Looney, a 38-year-old white male, as a comparator in support of her discrimination claim.1 Ms. Garrett’s testimony was that Mr. Looney was an EFSC employee working as an Academic Services Coordinator at EFSC’s Patrick Air Force Base campus; upon the closing of that campus, EFSC eliminated Mr. Looney’s position and, similarly to Ms. Garrett, transferred him to a newly-created position in which he received the same salary and benefits. 1 At the final hearing, Ms. Garrett also mentioned Marian Sheltman as a possible comparator, stating that she was a white female. However, Ms. Garrett failed to introduce any additional facts or evidence concerning Ms. Sheltman’s status or to explain how the undersigned could consider Ms. Sheltman as a valid comparator. The undersigned finds that Ms. Garrett failed to establish Ms. Sheltman as a comparator in this matter. Ms. Garrett contends that EFSC treated Mr. Looney differently, during his transfer, in that EFSC provided Mr. Looney more notice time between the elimination of his prior position and the transfer to his new position. Ms. Garrett also contends that EFSC treated Mr. Looney differently than her because Mr. Looney was Dr. Handfield’s son-in-law. Allegations of Hostile Work Environment Ms. Garrett testified that at the July 10, 2018, meeting, Dr. Spring commented about the uncleanliness of the OUR office, and recommended that Ms. Garrett obtain a broom and dustpan to keep the office clean. Ms. Garrett also testified that she declined to assist Dr. Spring in hanging posters on the wall of the OUR office. Ms. Garrett also testified that Dr. Spring noticed that the OUR signage was covered up on the outside of the building, and asked Ms. Garrett to correct this. Ms. Garrett testified that in subsequent meetings with Dr. Handfield, she “shared [her] concerns regarding the work environment[,]” and stated that she did not feel comfortable with the things Dr. Spring and Mr. Herber asked of her because these things “were in violation of college policy.” Ms. Garrett testified that Dr. Spring micromanaged her role as the Coordinator of OUR; for example, Dr. Spring continued to process online student research forms, and coordinated the Fall 2018 OUR board meeting. Ms. Garrett also testified that Dr. Spring opened the OUR online student forms too early, which prevented Ms. Garrett from matching faculty mentors with student applicants.2 Ms. Garrett also testified that Dr. Spring made decisions concerning the OUR without consulting with her. Ms. Garrett testified that Dr. Spring would send her e-mails asking if Ms. Garrett had completed the work requested of her. 2 Ms. Garrett also testified that Mr. Herber was not involved in micromanaging her role as the Coordinator of OUR. Ms. Garrett testified that Dr. Spring told Ms. Garrett what she should be doing, and would become vocal with her dissatisfaction of Ms. Garrett’s job performance. Ms. Garrett testified that she did not know why Dr. Spring engaged in any of these actions. After a November 2018 meeting with Dr. Spring, Ms. Garrett testified that her work atmosphere became “more tense … in terms of Dr. Spring and Mr. Herber starting to make comments about allegations about my work.” She further testified that after this meeting, Dr. Handfield “started issuing directives[,]” such as requiring Ms. Garrett to first ask Dr. Spring and Mr. Herber for input prior going to other EFSC campuses to host information tables. Ms. Garrett claimed that she was subjected to a hostile work environment in which “in every meeting that I planned and hosted, Dr. Spring and Mr. Herber would say disparaging comments during the meeting.” For example, “[t]hey would talk across me and I did not reply.” Although Dr. Handfield was Ms. Garrett’s supervisor, Ms. Garrett testified that Dr. Handfield openly discussed supervision of the OUR with Dr. Spring and Mr. Herber. Findings of Ultimate Fact Ms. Garrett presented no persuasive action that EFSC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race-based, sex-based, or age-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age discrimination. Ms. Garrett presented no persuasive evidence that EFSC’s actions subjected her to harassment based on race, sex, or age. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race, sex, or age harassment. Ms. Garrett presented no persuasive evidence that EFSC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Garrett presented no persuasive evidence that EFSC’s actions were sufficiently severe or persuasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record upon which the undersigned could make a finding of hostile work environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Mary F. Garrett’s Petition for Relief. DONE AND ENTERED this 12th day of November, 2020, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 12th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Mary F. Garrett Apartment 2508 2741 Caribbean Isle Boulevard Melbourne, Florida 32935 (eServed) Mark E. Levitt, Esquire Allen, Norton & Blue, P.A. Suite 100 1477 West Fairbanks Avenue Winter Park, Florida 32789 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue for determination is whether Respondent committed an unlawful employment act by discriminating against Petitioner on the basis of age and retaliating against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Mr. Meikle is an African-American male. At hearing, Mr. Meikle withdrew his claim of age discrimination. Mr. Meikle is only pursuing the claim of retaliation. Mr. Meikle was employed with the Radisson Hotel (Radisson), which was owned by Hotels Unlimited. Mr. Meikle’s supervisor at the Radisson was Harland McPhun, who was the Assistant General Manager. Mr. McPhun’s supervisor at the Radisson was Diane Gray, who was the General Manager. During his employment at the Radisson, Mr. Meikle was promoted from a cook to the Kitchen Director. He was very proud of being in the position of Kitchen Director. Mr. McPhun had not encountered any problems with Mr. Meikle being on time for work or being a “no-show” for work as scheduled. However, Mr. McPhun had encountered problems with Mr. Meikle in other areas, such as Mr. Meikle's providing his sister, who was employed at the front desk of the Radisson, with larger portions of food than the other employees; and being in places other than the kitchen area talking, i.e., at or near the front desk. Mr. McPhun gave Mr. Meikle verbal warnings, regarding the incidents, but never documented any of the verbal warnings. At some point in time, Hotels Unlimited decided to convert the Radisson to a Double Tree Hotel (Double Tree). The Double Tree’s structure required the position of a Food and Beverage Manager, who would supervise the food and beverage personnel, kitchen staff, and restaurant servers. Gerald Brown was hired as the Food and Beverage Manager in January 2008. Mr. Brown began his employment before the completion of the conversion from the Radisson to the Double Tree. On February 14, 2008, Mr. Brown held his first staff meeting with the entire staff over whom he had supervision. Mr. Meikle was late for the staff meeting. On February 16, 2008, Mr. Brown issued a “Disciplinary Document” indicating that he was giving Mr. Meikle his first written warning for being late at the meeting. Mr. Meikle admits that he was late for the meeting. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager (the date of the signature was not completed), and by Ms. Gray, as the General Manager, on February 18, 2008. Additionally, on February 16, 2008, Mr. Brown issued another Disciplinary Document indicating that he was giving Mr. Meikle his first written warning for failing to follow rules and direction involving four different matters about which Mr. Brown had repeatedly counseled Mr. Meikle on several occasions, but were not being adhered to by Mr. Meikle. The Disciplinary Document was signed by Mr. Meikle (the date of the signature was not completed), by Mr. Brown, as the Manager, on February 16, 2008, and by Ms. Gray, as the General Manager, on February 18, 2008. On February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 23, 2008, a Saturday night. Mr. Meikle was scheduled to work, but he departed the kitchen and the hotel property without informing and obtaining permission from the manager. Hotels Unlimited’s policy required the informing of the manager in order for the manager to take appropriate steps to make adjustments to accommodate the absence. Mr. Meikle was entitled to a break, but he failed to notify the manager of his absence in accordance with the policy. The Disciplinary Document included a statement that “Disciplinary Action to be decided by the General Manager.” The Disciplinary Document was signed by Mr. Meikle on February 26, 2008, by Mr. Brown, as the Manager, on February 25, 2008, and by Ms. Gray, as the General Manager, on February 26, 2008. Regarding Mr. Meikle’s absence from work on Saturday evening, February 23, 2008, he was working an 18-hour shift, without anyone to relieve him, which meant that he was unable to take a break. He was exhausted and needed to take a break. Before Mr. Brown was hired, Mr. Meikle was working the 18-hour shift, and after Mr. Brown was hired, Mr. Meikle agreed to continue working the 18-hour shift. Mr. Brown did not wish to disrupt what was already in place, so he agreed to allow Mr. Meikle to keep the 18-hour shift. It was not unreasonable for Mr. Brown to maintain Mr. Meikle on the 18-hour shift, as Mr. Meikle requested. On that same day, February 25, 2008, Mr. Brown issued a Disciplinary Document for an incident that occurred on February 25, 2008. Mr. Meikle raised his voice and became very loud, resulting in guests being disturbed. As Mr. Meikle had been absent from work on Saturday evening, February 23, 2008, Mr. Brown was inquiring of Mr. Meikle the reason for his (Mr. Meikle’s) absence. Further, during the conversation, Mr. Brown raised several other concerns. Mr. Meikle raised his voice and became very loud, which Mr. Brown determined was disturbing the guests. Mr. Brown requested Mr. Meikle to remove himself from the dining area. The Disciplinary Document was signed by Mr. Brown on February 26, 2008. Mr. Meikle refused to sign the Disciplinary Document where the employee’s signature is indicated; but, he (Mr. Meikle) noted on it, “Refuse to sign because I did what I was told,” and signed his name under the statement. Each Disciplinary Document indicated that Mr. Meikle’s termination was effective “2/29/08.” Mr. Brown did not indicate a date for termination on any Disciplinary Document and could offer no explanation as to why or how each Disciplinary Document contained such information. Furthermore, no testimony was presented as to why or how each Disciplinary Document contained such notation. Mr. Brown contacted Ms. Gray, recommending the termination of Mr. Meikle. Ms. Gray did not approve the recommendation; she wanted to continue to work with Mr. Meikle. On February 25, 2008, a letter, bearing the same date, from Mr. Meikle was faxed to Hotels Unlimited’s Human Resources. Among other things, Mr. Meikle notified Human Resources that he was working in a hostile work environment created by Mr. McPhun, providing examples of what he considered inappropriate action and conduct by Mr. McPhun; that Mr. McPhun “strongly dislike[s]” him “for whatever the reason”; that Mr. McPhun was taking food from the hotel and that he (Mr. Meikle) had reported it to the general manager; that all of his (Mr. Meikle’s) current problems at work stemmed from Mr. McPhun, providing examples of the problems that he (Mr. Meikle) had encountered2; that Mr. McPhun was the cause of all of his problems at work; that he (Mr. Meikle) had no one to ask for help; that Mr. McPhun was out to get him (Mr. Meikle) fired; that everyone was biased against him (Mr. Meikle) because of Mr. McPhun; and that a copy of the letter would be forwarded to the EEOC and the FCHR. Ms. Gray was notified by her superior that Human Resources had received a letter from Mr. Meikle, but she was not notified of the content of the letter nor did she receive or view a copy of the letter. Her superior told her to talk with Mr. Meikle and resolve the problem. Hotels Unlimited’s Employee Handbook, Employment Policies & Practices section, provides in pertinent part: Equal Employment * * * If you suspect discriminatory or harassing actions on the part of the Company or any other employee, you should immediately notify your General Manager or Corporate Department Head, as applicable, or, if you prefer, a Company Officer. Such notification will be held in confidence to the extent possible. Discriminatory behavior or action by any employee is cause for discharge. * * * Sexual and Other Forms of Harassment Policy Statement: Hotels Unlimited, Inc. is committed to a work environment in which all employees are treated with respect and dignity. It is the policy of Hotels Unlimited, Inc. to provide a work environment that is free from discrimination and harassment. Action, words or comments based on an individual’s sex, race, color, religion, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law – either overt or subtle – are demeaning to another person and undermine the integrity of the employment relationship. . . . * * * Harassment on the basis of any other protected characteristic is also strictly prohibited. Such harassment is defined as verbal or physical conduct that denigrates or shows hostility toward an individual because of his/her race, color religion, sex, sexual orientation, national origin, age, disability, marital status, citizenship or any other characteristic protected by law, and that has the purpose or effect of creating an intimidating, hostile or offensive work environment; has the purpose or effect of unreasonably interfering with an individual’s work performance; or otherwise adversely affects an individual’s employment opportunity. * * * Administration of Policy: * * * It is unlawful to retaliate in any way against anyone who has complained about harassment. Any incident of retaliation should be reported in the same manner as an incident of harassment. Any employee who engages in such retaliation will be subject to disciplinary action up to and including discharge. All allegations of discrimination, harassment, or retaliation will be subject to prompt, thorough and confidential investigation. All investigations will be designed to protect the privacy of, and minimize suspicion toward, all parties involved. . . . The Employee Handbook provided protection against employment practices for statuses beyond those set forth by law.3 In the early morning hours of February 29, 2008, Mr. Meikle was awoken by a telephone call from a co-worker inquiring as to why he (Mr. Meikle) was not at work. Mr. Meikle informed his co-worker that he was off that day, but his co- worker advised that he (Mr. Meikle) was scheduled to work. Mr. Meikle telephoned Mr. Brown, who informed Mr. Meikle to be at work. Mr. Meikle reported to work, but failed to report for his shift as scheduled. Regarding Mr. Meikle’s failure to report to work on time for his scheduled shift, all work schedules for Food and Beverage, during Mr. Brown’s tenure, were typed and posted, one week in advance. The work week for Food and Beverage was Monday through Sunday. The posted work schedule for the week of February 25, 2008, was prepared, typed, and posted by Mr. Brown and indicated that Mr. Meikle was required to work on Monday, February 25, 2008, and Tuesday, February 26, 2008; was not required to work on Wednesday, February 27, 2008, and Thursday, February 28, 2008; but, was required to work on Friday, February 29, 2008, specifically, from 5:00 a.m. to 2:00 p.m. Mr. Meikle reviewed a work schedule for the week of February 25, 2008, that was typed and hand-written. The work schedule indicated that it was prepared by Mr. McPhun and that he (Mr. Meikle) was not required to work on Friday, February 29, 2008. Based on that work schedule, Mr. Meikle did not believe that he had to report to work on February 29, 2008. However, Mr. Meikle was required to report to work on February 29, 2008, and work from 5:00 a.m. to 2:00 p.m. He failed to report to work for his shift as scheduled.4 No dispute exists that, at no time previously, had Mr. Meikle failed to report to work for his shift as scheduled. On February 29, 2008, Mr. Meikle was terminated for failing “to be at work on time for [his] schedule [sic] shift.” A Termination Report dated February 29, 2008, was signed by Mr. Brown, by Mr. Meikle, and Ms. Gray. Mr. Brown made the determination to terminate the employment of Mr. Meikle, and Ms. Gray agreed. Mr. McPhun did not participate with Mr. Brown and Ms. Gray in the determination to terminate the employment of Mr. Meikle. At the time of Mr. Meikle’s termination, Mr. Brown was not aware of Mr. Meikle’s letter to Hotels Unlimited’s Human Resources.
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 finding that Hotels Unlimited/Double Tree did not retaliate against Marshall Meikle in violation of the Florida Civil Rights Act of 1992, as amended and dismissing his petition for relief. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 23rd day of November, 2009.
The Issue Whether Respondent, Fort Walton Beach Medical Center (FWBMC), engaged in employment discrimination and, thus, violated the Florida Civil Rights Act(FCRA), section 760.10, et seq., Florida Statutes, by: (a) failing to accommodate Petitioner, Jennifer L. Landress, because of her alleged disability; (b) subjecting Ms. Landress to a hostile work environment on the basis of her sex; (c) constructively discharging Ms. Landress from employment; and (d) retaliating against Ms. Landress, and, if so, the appropriate penalty.
Findings Of Fact FWBMC hired Ms. Landress on October 31, 2005, and employed her for approximately 14 years as a Cardiovascular Services Specialist. Ms. Landress resigned her employment with FWBMC on October 4, 2019. During her employment with FWBMC, Ms. Landress reported to either Ms. Ristom, Vice President of Quality and Risk Management, or Rob Grant, the former Director of Cardiovascular Services. Between August 30, 2018, and October 4, 2019, FWBMC also employed Ms. Sanders, Human Resources Business Partner, and Ms. Clark, Cardiovascular Tech. FWBMC never employed Dr. Al-Dehneh (or the other physicians who testified at the final hearing—Dr. Sandwith and Dr. Chen). Dr. Al-Dehneh has privileges to use FWBMC to provide services to the patients who come to FWBMC to receive care. Neither Dr. Al-Dehneh nor any of the physicians who testified at the final hearing were supervisors of Ms. Landress. Further, Dr. Al-Dehneh: never had a role in Ms. Landress’s discipline or schedule; never evaluated her performance; and did not exercise any control over Ms. Landress or affect the terms or conditions of her employment with FWBMC. FWBMC’s Policies Concerning Discrimination and Sexual Harassment FWBMC has a policy entitled “Equal Employment Opportunity/Harassment,” which is included in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Equal Employment Opportunity/Harassment” policy states, in part: Equal employment opportunities are provided to all employees and applicants for employment without regard to race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, genetic information, or protected veteran status with applicable federal, state and local laws. This policy applies to all terms and conditions of employment, including, but not limited to, hiring, placement, promotion, termination, layoff, transfer, leaves of absence, compensation and training. * * * Any form of unlawful employee harassment based on race, color, religion, gender, gender identity, national origin, age, disability, sexual orientation, protected veteran status or any other status in any group protected by federal, state or local law is strictly prohibited. Improper interference with the ability of employees to perform their expected job duties is not tolerated. Each member of management is responsible for creating an atmosphere free of discrimination and harassment, sexual or otherwise. Further, employees are responsible for respecting the rights of their co- workers. The following is prohibited: Unwelcome sexual advances, requests for sexual favors, and all other verbal or physical conduct of a sexual or otherwise offensive nature …. Behaviors that engender a hostile or offensive work environment will not be tolerated. These behaviors may include, but are not limited to, offensive comments, jokes, innuendos and other sexually oriented or culturally insensitive/inappropriate statements, printed material, material distributed through electronic media or items posted on walls or bulletin boards. FWBMC also has a policy entitled “Complaint Procedures,” which is contained in the employee handbook, as well as on its “HR Answers” online portal and intranet. The “Complaint Procedures” policy states, in part: If you experience any job-related harassment based on race, national origin, religion, gender, gender identity, color, disability, age or other factor prohibited by federal, state or local statute, or you believe you have been treated in an unlawful, discriminatory manner, promptly report the incident to your manager or Human Resources, who will investigate the matter and take appropriate action. If you believe it would be inappropriate to discuss the matter with your manager or Human Resources, you may bypass your manager or Human Resources and report it directly for investigation at The Ethics Line at [phone number]. Ms. Landress testified that she received a copy of the employee handbook, read the policies contained in it—including the policy concerning “Equal Employment Opportunity/Harassment” and “Complaint Procedures”—and knew of and utilized them. Ms. Sanders testified that if FWBMC, after investigation by its human resources department, substantiates a claim of harassment or discrimination by a physician, it would provide its investigative findings to the medical staff office, who would then refer the physician to a peer review process that could culminate in an appropriate action with respect to that physician’s hospital privileges. The undisputed evidence at the final hearing revealed that Ms. Landress reported to FWBMC’s human resources department that she was subjected to discrimination and harassment in August 2018, and again in March 2019. Allegations of Harassment and Hostile Work Environment Ms. Landress testified that Dr. Al-Dehneh began sexually harassing her starting in 2013. On August 30, 2018, she met with Ms. Sanders and Ms. Ristom and discussed this allegation. Ms. Sanders testified of the allegations made by Ms. Landress at the August 30, 2018, meeting: That Dr. Al-Dehneh had asked Rob to find women for him and to get Ms. Landress to sleep with him. She also indicated that Dr. Al-Dehneh was listening to her conversations via some sort of recording or monitoring device in her computer. She felt that Dr. Al-Dehneh had bugged her home through Siri and had accessed her medical records here at the facility. She was afraid for her life and had a gun. She also felt that Dr. Al-Dehneh was watching her home and that she told us a story about a lady on a bike who said that she was dead to her. She was afraid to go to the police about Dr. Al-Dehneh because she had been told that he was a mobster. And then she did admit to us at one point that she had started developing feelings for Dr. Al-Dehneh. Ms. Ristom also testified concerning the allegations made by Ms. Landress at the August 30, 2018, meeting: She said that Dr. Al-Dehneh had said to her to let him know when she was ready to get married. She said that Rob was tasked with getting women and obtaining sex for Dr. Al-Dehneh. And, you know, during that time Jennifer told me that – told Julie Sanders and I that she had started developing feelings for him, for Dr. Al-Dehneh. And in addition, she felt like her neighbor was watching her and providing information back to Dr. Al-Dehneh about her activities at home. Also, she said that she was afraid to report him because she felt like she – she understood him to be a mobster. She said he was listening to her through a listening device when she was at home through, like, a Siri, a radio kind of device because he would say things that he would only know if he was able to hear her at home. She told us about a heavyset lady on a bicycle who told her that she was a dead lady, that Jennifer was a dead lady, but that that woman was not going to be the one to kill her because Jennifer had been nice to her. She said that she was afraid to go to the police because she believed Dr. Al-Dehneh to be a mobster and that he owned the police and the hospital as well. She said that she was defending herself – felt like she needed to defend herself and had been carrying a gun and keeping it on her nightstand as well. She told us that she hadn’t slept in months, that she was taking medication to help her but that she was having difficulty concentrating. The testimony of Ms. Landress more or less confirmed that she made those allegations that Ms. Sanders and Ms. Ristom testified were made at the August 30, 2018, meeting, and that those allegations formed the basis for her Petition for Relief. She added that Dr. Al-Dehneh “constantly” harassed her, that she believed he started a rumor at the hospital that she had herpes, and that he had her “followed” to a local mall. Ms. Landress denied that she had romantic feelings for Dr. Al-Dehneh, but stated that she “had a great working relationship with him for a long time.” Dr. Al-Dehneh testified and denied all of Ms. Landress’s allegations, including: asking Ms. Landress to let him know when she was ready to get married; offering to “buy” Ms. Landress from her husband; threatening to have Ms. Landress fired; having Ms. Landress followed; putting a “hit” out on Ms. Landress; making comments about Ms. Landress to other physicians; spreading a rumor that Ms. Landress had herpes; calling Ms. Landress’s treating physician, Dr. Chen, for information about her; and accessing Ms. Landress’s medical records. According to Ms. Landress, Dr. Sandwith and Ms. Park were witnesses who could corroborate many of her allegations concerning Dr. Al-Dehneh. Both denied each and every allegation. Dr. Sandwith testified that he never saw Ms. Landress and Dr. Al-Dehneh together; denied talking to Dr. Al-Dehneh about Ms. Landress; denied ever seeing or hearing Dr. Al-Dehneh harass or act inappropriately with Ms. Landress or any other hospital staff; and denied hearing rumors concerning Ms. Landress, Dr. Al-Dehneh, their alleged relationship, or that Ms. Landress had herpes. Ms. Park, who worked with Ms. Landress: testified that she never heard any rumors that Dr. Al-Dehneh was having sexual relationships with other women; denied witnessing Dr. Al-Dehneh tell Ms. Landress that he was going to call Ms. Landress’s husband and offer $5,000 for her; denied talking with Ms. Landress about being sexually harassed; denied hearing rumors about Ms. Landress and Dr. Al-Dehneh; denied hearing rumors that Ms. Landress had herpes; and denied telling Ms. Landress to stay away from Dr. Al-Dehneh. According to Ms. Landress, she also discussed her allegations of sexual harassment with her orthopedic physician, Dr. Chen, on numerous occasions. Dr. Chen testified that during one of Ms. Landress’s appointments, I recall you telling me just occurrences at home, of what happened in the workplace between yourself and a certain physician on staff at the – at the Walton Beach Medical Center. Yeah, and there was situations or there were occurrences that were – upsetting to you and they were providing some sorts of distress. He further testified that Ms. Landress “spoke … about the herpes.” Dr. Chen testified that he may have heard FWBMC staff discussing the alleged herpes rumor, but could not recall from whom he heard those rumors, and admitted that the rumors could have come from Ms. Landress herself. Dr. Chen testified that he never witnessed Dr. Al-Dehneh acting inappropriately towards Ms. Landress, and that he never heard any other physician at FWBMC discuss any rumors concerning Ms. Landress or Dr. Al-Dehneh. FWBMC Investigation of Complaint of Harassment and Hostile Work Environment At the conclusion of the August 30, 2018, meeting, Ms. Sanders immediately investigated Ms. Landress’s claims by interviewing Dr. Al-Dehneh that same day, and by interviewing other employees who could potentially substantiate Ms. Landress’s claims. However, Ms. Sanders was unable to find any witness who corroborated any of Ms. Landress’s allegations. Ms. Sanders testified, as part of her investigation, that she determined that Dr. Al-Dehneh did not have any remote access or log-in capabilities to access Ms. Landress’s computer. Ms. Sanders further testified, as part of the investigation, that she confirmed that Dr. Al-Dehneh never had access, nor tried to access, Ms. Landress’s medical records. During the investigation, Ms. Ristom testified that she offered to move Ms. Landress’s office to distance her from the individuals allegedly involved, including Dr. Al-Dehneh. Ms. Landress declined this offer. Ms. Sanders completed her investigation of Ms. Landress’s claims of sexual harassment and hostile work environment on September 18, 2018, and informed Ms. Landress that FWBMC could not substantiate her claims. Subsequent Events On September 20, 2018, Ms. Landress suffered an anxiety attack and went home from work early. When Ms. Sanders and Ms. Ristom learned of the anxiety attack, they attempted to speak with Ms. Landress in her office and told her to take the weekend off to deal with her anxiety. Both Ms. Sanders and Ms. Ristom testified that Landress did not attribute her anxiety attack to the alleged past sexual harassment incidents with Dr. Al-Dehneh, nor any new incidents of harassment. Ms. Landress’s testimony concerning the anxiety attack and subsequent leave was as follows: Predominately because I really wanted to come home and take medication because I couldn’t stand – I – I just couldn’t get past people in the hospital constantly talking about me having herpes. I mean, it’s kind of like if you were walking in the building and that’s all you heard, you want to get out of there. As previously noted, the FWBMC investigation did not substantiate Ms. Landress’s allegation concerning hospital rumors that she had herpes. Further, there was no testimony or evidence presented at the final hearing, outside of Ms. Landress’s testimony, that confirmed this allegation. Ms. Landress soon returned to work and did not report another incident of harassment until March 2019. On March 1, 2019, Ms. Landress reported that a nurse practitioner, who she claimed worked for Dr. Al-Dehneh, took a photo of Ms. Landress on her cellphone when she walked by Ms. Landress’s office. Ms. Landress testified that she “assumed” the nurse practitioner took the photo for Dr. Al-Dehneh. Ms. Landress further testified that she never saw the photo. Ms. Ristom and Ms. Sanders met with Ms. Landress concerning this allegation, and Ms. Sanders investigated it. Ultimately, FWBMC was unable to substantiate this claim or that she was being harassed by Dr. Al-Dehneh or his nurse practitioner. Ms. Landress did not report any other incidents of harassment after March 1, 2019. Leave(s) of Absence FWBMC approved Ms. Landress for a paid leave of absence from June 10, 2019, until she resigned on October 4, 2019. FWBMC granted this leave for two separate reasons: for an orthopedic condition, and for a mental health condition. Initially, Ms. Landress was placed on leave for her claims of stress, anxiety, and post traumatic stress disorder related to the alleged harassment. Then, on September 9, 2019, Ms. Landress submitted a separate claim because of pain in her right elbow. Dr. Chen, Ms. Landress’s treating orthopedic physician, informed FWBMC that her anticipated return work date was October 7, 2019, with restrictions, such as “no repetitive use of right arm to include typing, mouse use, [and] writing.” After Dr. Chen cleared Ms. Landress to return to work, with restrictions, Ms. Sanders reminded Ms. Landress that she could not return until her mental health counselor also cleared her. Ms. Landress’s mental health counselor never cleared her to return to work. In July 2019—during her leave of absence for a mental health condition—Ms. Landress requested, to Ms. Ristom, the opportunity to work from home. FWBMC denied Ms. Landress’s accommodation request; Ms. Sanders testified: At that time we weren’t able to accommodate the work from home request. There was concerns around protecting patient medical records and her ability to work with the staff and the physicians when she needed to ask questions. On September 20, 2019, while Ms. Landress remained on leave, Ms. Ristom received an email from Q-Centrix, a third-party data management provider that collaborates with healthcare providers, such as FWBMC. The September 30, 2019, email requested that FWBMC terminate Ms. Landress as an employee so that Q-Centrix could employ Ms. Landress in a full-time position. Ms. Ristom forwarded this email to Ms. Sanders to investigate and did not reply to the September 20, 2019, email from Q-Centrix until FWBMC could confirm from Ms. Landress that it was her intention to resign her position with FWBMC. On September 27, 2019, Q-Centrix emailed another request to FWBMC to terminate Ms. Landress. Ms. Sanders testified that she spoke with Ms. Landress about this request. On October 4, 2019, Ms. Landress—who still had not received clearance to return to work at FWBMC from her mental health counselor— submitted a letter of resignation to Ms. Sanders. Her letter of resignation stated that she and her mental health counselor agreed that her “PTSD is too great to return.” Her letter further stated that because FWBMC denied her request to work from home, she had accepted a position with “another company.” The October 4, 2019, letter of resignation attached four additional pages of what Ms. Landress contends were the events that led her to resign. The first page listed the allegations of sexual harassment by Dr. Al-Dehneh that Ms. Landress discussed with Ms. Sanders and Ms. Ristom during the August 30, 2018, meeting. The remaining three pages listed various allegations that Ms. Landress did not report to FWBMC and did not include in her charge of discrimination with FCHR. Findings of Ultimate Fact Ms. Landress presented no persuasive evidence that FWBMC’s decisions concerning, or actions affecting, her, directly or indirectly, were motivated in any way by sex-based or disability-based discriminatory animus. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sex-based or disability-based discrimination. Ms. Landress presented no persuasive evidence that FWBMC’s actions subjected her to harassment based on sex. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful sexual harassment. Ms. Landress presented no persuasive evidence that FWBMC discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation. Ms. Landress presented no persuasive evidence that FWBMC’s actions were sufficiently severe or pervasive to alter the terms and conditions of her employment to create a hostile work environment. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of hostile work environment. Finally, Ms. Landress presented no persuasive evidence that her working conditions at FWBMC were so intolerable that a reasonable person in her condition would have been compelled to resign. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of constructive discharge.
Conclusions For Petitioner: Jennifer L. Landress 7758 Ramona Drive Navarre, Florida 32566 For Respondents: Cymoril M. White, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Jennifer L. Landress’s Petition for Relief. DONE AND ENTERED this 29th day of December, 2021, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER 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 29th day of December, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Tracey K. Jaensch, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Stanley Gorsica, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 Jennifer Lynn Landress 7758 Ramona Drive Navarre, Florida 32566 Cymoril M. White, Esquire Ford & Harrison, LLP 101 East Kennedy Boulevard Suite 900 Tampa, Florida 33602
