The Issue The issue in this case is whether the Respondent committed an unlawful employment practice and, if so, determination of the relief to which the Petitioner is entitled.
Findings Of Fact The Petitioner, Allison M. Huth, is an adult female person. At all times material to this proceeding the Petitioner has been a resident of the State of Florida. The Respondent, National Admark Corporation, is an advertising agency and publishing company. At all times material to this proceeding, the Respondent was doing business from offices located in Fort Lauderdale, Florida. On the morning of June 12, 1998, a Mr. William Rufrano, who was at that time a boyfriend of the Petitioner, took the Petitioner with him to the Fort Lauderdale offices of the Respondent. At that time, Mr. Rufrano had some type of arrangement with the Respondent pursuant to which he worked in the field making sales calls in an effort to sell the Respondent's products.1 The Petitioner's reason for going with her boyfriend to the Respondent's offices on June 12, 1998, was to find out more about the company in order to decide whether she wanted to work for the company. Upon arriving at the Respondent's offices on June 12, 1998, Mr. Rufrano introduced the Petitioner to his "boss" and to several of the other people who worked in the Respondent's offices. Shortly thereafter, Mr. Rufrano left the Respondent's offices and spent most of the rest of the day meeting prospective customers and making sales presentations outside of the Respondent's offices. The Petitioner remained at the Respondent's offices for most of the day. The Petitioner spent the day making calls to prospective customers. She attempted to have each of the prospective customers make an appointment for a salesperson to visit and make a sales presentation for the Respondent's products.2 The Petitioner never signed any paper work with the Respondent regarding any business relationship between herself and the Respondent. Specifically, she did not sign or submit an application for employment with the Respondent, she did not sign or enter into an employment contract with the Respondent, and she did not sign or enter into an independent contractor agreement with the Respondent. The Petitioner did not have an understanding with the Respondent as to what her hours of work would be or as to how many hours she would work each day, each week, or each month. The Petitioner did not have an understanding with the Respondent as to what her compensation would be for making telephone calls.3 In sum: The Petitioner and the Respondent never entered into any agreement by means of which the Petitioner became either an employee or an independent contractor of the Respondent. During the course of her day at the Respondent's offices, the Petitioner had occasion to seek assistance from Mr. Anthony Tundo, who was the Respondent's Sales Manager, and was the person the Petitioner had been told to contact if she had any questions. Following the Petitioner's request for assistance, Mr. Tundo engaged in a number of inappropriate, unwanted, and ungentlemanly acts that caused the Petitioner to become very upset and uncomfortable. The worst of Mr. Tundo's acts that day are described as follows in the Petitioner's Exhibit 8, a letter signed by the Petitioner and her boyfriend a few days after the events on June 12, 1998: Mr. Tundo began stroking Allison's [Petitioner's] head very softly and used the excuse that he was trying to pick something out of her hair. Mr. Tundo trapped Allison against the coffee counter in the hallway. He then pressed himself, including his erection [,] against her body which was against the counter. He then proceeded to kiss her on her forehead and cheeks. When Allison was in Mr. Tundo's office, he told her to take a look at something he was doing. Not wanting to go behind the desk, Allison leaned over the front of the desk to look. As she did so, Mr. Tundo stared directly down Allison's blouse and commented[,] "what a nice pair of tits you have." Allison quickly stood up, and proceeded to walk around behind Mr. Tundo's desk figuring he couldn't look down her blouse. As she was leaning on his desk watching what he was doing, he began to stroke her fingers and hands. He then told her to turn around. Allison did so thinking there was a flaw or something wrong with her outfit. He then grabbed her firmly by the backs of her arms and positioned her[,] which made her feel extremely uncomfortable. After doing so, he uttered the word[,] "there." He then told Allison[,] "You have very, very nice legs," and "You have a very beautiful ass[,]" and proceeded to pat Allison on her rear end. When Allison was sitting on the couch in Mr. Tundo's office, she got up to go to the ladies' room. Mr. Tundo told her to sit back down. Presuming Mr. Tundo wanted to tell her some more things related to business, she sat back down. Mr. Tundo told her to "do that again." When Allison questioned what he meant, Mr. Tundo told her that he wanted her to uncross her legs (like she would have to do in order to stand up) again so he could see what it looks like inside her legs and up her skirt. Mr. Tundo was also moving his hands in an outward motion as he was telling her these things. After Allison left Mr. Tundo's office, he continued to follow her around the office building. As he was following her, he continually told her that she has "such a sexy walk," and "such a nice ass." He followed her into the conference room next to the coffee maker. He then proceeded to rub her shoulders, moaning softly and breathing heavy as he did so. He then told her that she seemed "tense." There is no competent substantial evidence that Mr. Tundo had ever previously engaged in conduct such as that to which he subjected the Petitioner. There is no competent substantial evidence that Mr. Tundo had ever previously engaged in any type of conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever been advised that Mr. Tundo had previously engaged in any conduct that would create a sexually hostile or abusive work environment. There is no competent substantial evidence that the Respondent's management had ever received any prior complaints that Mr. Tundo had engaged in conduct such as that to which he subjected the Petitioner, or that he had engaged in any other type of conduct that would create a sexually hostile or abusive work environment.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order in this case dismissing the Petition for Relief and denying all relief sought by the Petitioner. DONE AND ORDERED this 30th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2001.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue Whether the Respondent intentionally committed an unlawful employment practice against the Petitioner on the basis on her national origin/Hispanic (Puerto Rican) or gender/female (sexual harassment). Whether Petitioner, a member of a protected class, was removed from her position with the Respondent in retaliation for her filing of a sexual harassment complaint with the Florida Commission on Human Relations on March 12, 1992.
Findings Of Fact The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. Respondent, Martin-Marietta Electronics Information and Missiles Group, is a foreign corporation licensed to do business in Florida which employs more than fifteen employees. Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner, Margarita Coll, is a female, hispanic, citizen of the United States who resides in the State of Florida. Petitioner is a member of a protected class. Petitioner was an employee of Hi-Tec Associates, Inc., during all relevant periods, and was a de facto employee of Respondent for approximately four and one-half years. Petitioner was employed at Respondent company through a temporary agency called Associated Temporary Services and placed with the Respondent on January 5, 1987 as a receptionist/secretary in Martin-Marietta's Fleet Administration Department off Sand Lake Road, Orlando, Florida. Her responsibilities included record keeping, filing and helping Respondent's employees with company vehicles. Petitioner reported to the Respondent's Fleet Manager, Linda Reilly. Her day to day work assignments and supervision were received exclusively from the Fleet Manager. Petitioner worked in her position at the pleasure of the Respondent. She was assigned a "buyer" at Martin- Marietta who worked with the requesting department to fashion a position to meet the department's needs. The work was bidded out and awarded to the temporary employment agency who best met Respondent's criteria, on an annual basis. Over time, Petitioner assumed additional job responsibilities and in June, 1988 received a commendation for exceptional performance from Respondent's supervisors. In an effort to reward her efforts, Reilly successfully upgraded her position, first to Administrative Assistant and then to Fleet Analyst. When she was reclassified as a Fleet Analyst, the contract for her position was awarded to Hi-Tec Associates, Inc., since Associated Temporary Services did not provide technical employees under their contract with Respondent. Petitioner always worked at Martin-Marietta as a temporary employee and was never employed as a regular employee of the company. As such, she had no company benefits; she was classified as a contract laborer and her services were purchased by purchase order. Petitioner completed no company employment application, was not subject to Martin-Marietta performance appraisals and had no Martin-Marietta employment records or personnel file, other than her contract labor time slips. Petitioner received her pay from Hi-Tec. In June, 1990, Marilyn Quinonez was placed in the Fleet Administration Department as a Fleet Administrative Assistant by a temporary employment agency. Friction quickly developed between Petitioner and Quinonez. Petitioner believed that Quinonez was hired to assist her and became upset when she would not follow Petitioner's supervision or directions. Quinonez understood that she was to report to the Fleet Manager, and objected to the way Petitioner treated her. On November 15, 1990, Reilly was laid off by Respondent as part of a reduction in force and was replaced by Joseph LaPak. LaPak observed the bickering between Petitioner and Quinonez and that it continued to escalate over time. In December, 1990, the temporary positions in the department were reevaluated and the contract requirements for both positions were rewritten. The titles of both Petitioner and Quinonez were changed to that of Fleet Administrative Assistant. Any language in the contract which called for Petitioner to direct the clerical duties of the department were eliminated. In the fall of 1991, Quinonez met with LaPak and Wally DuBose to clarify her reporting responsibilities. It was confirmed that Quinonez and Petitioner were to report to the Fleet Manager, and that Petitioner did not have supervisory authority over Quinonez. Nevertheless, disputes between Petitioner and Quinonez continued. Attempts by management to resolve the problems were unsuccessful. On February 17, 1992, during the normal lunch hour, an altercation occurred between Petitioner and Quinonez. When Quinonez returned from lunch, she found Petitioner at her computer terminal. Quinonez asked for it back. Petitioner refused and an argument ensued. The two women became so angry and loud that a neighboring supervisor had to come over and separate them. Wally DuBose sent both Petitioner and Quinonez home for the day. Petitioner's immediate supervisor, LaPak was not in the office at the time. DuBose then discussed the matter with his supervisor, Paul Smilgen, and it was decided that Petitioner would be removed from the contract for her failure to work with fellow employees and management, and for general insubordination. LaPak was not involved in the decision to remove Petitioner. The decision was communicated to Hi-Tec. They, in turn, notified Petitioner that same evening that she was being replaced on the contract and not return to the Fleet Administration Department. Hi-Tec offered to attempt to place Petitioner elsewhere at Martin-Marietta but Petitioner refused because the openings available at the time paid less that the Fleet Administrative Assistant position. When LaPak first became the Fleet Manager in November of 1990, Petitioner and Quinonez worked in a very small work space. While Petitioner was training LaPak and working on the computer, LaPak's body was frequently close to Petitioner's and she felt pinned in a corner by him. After the initial working relationship was established and LaPak came into Petitioner's work area, he would touch her on her arms or shoulder in order to get her attention. In December, 1990, Petitioner complained to DuBose about LaPak touching her and making her uncomfortable. Both Petitioner and DuBose talked to LaPak about the fact that Petitioner did not want LaPak to touch her. LaPak honored that request and did not touch her again. He made every reasonable effort to get her attention when he needed to talk to her without touching her. In October, 1991, Petitioner complained to the Martin-Marietta EEO office that LaPak was sexually harassing her by inappropriate touching. Respondent then conducted an immediate investigation into the allegations and attempted to resolve the matter through internal mediation. Petitioner's testimony and other witnesses' testimony concerning sexual comments, innuendoes or propositions and inappropriate touching allegedly made by LaPak that occurred between December, 1990 and October, 1991 were inconsistent and are not credible. Petitioner presented no relevant or material evidence to show that Petitioner was the victim of national origin discrimination. Respondent's articulated reason for its decision to remove Petitioner from her contract labor position was not based on gender discrimination or national origin discrimination, nor was it pretextual. Petitioner failed to prove that her termination of employment at the Respondent's company was in retaliation for her complaints of sexual harassment or national origin discrimination.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued in which the Charge of Discrimination is DENIED and the Petition for Relief is DISMISSED. DONE AND ENTERED this 26th day of April, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 1994. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings of Fact. Accepted in substance: Paragraphs 1, 2, 3, 4, 5(in part), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 13, 14(except as to date of hire), 15(in part), 16(in part), 18(except as to the date of the counseling session), 19(except as to the date of the counseling session), 20, 21(in part). Rejected as against the greater weight of evidence: paragraphs 5(in part: Petitioner was first a contract employee with Associated Temporary Services), 6(in part), 7(in part), 8(in part), 9(in part), 10(in part), 15(in part), 16(in part), 17. Rejected as immaterial, irrelevant or subsumed: paragraphs 11, 12, 21(in part). Respondent's Proposed Findings of Fact: Accepted in substance: paragraphs 1, 2, 3, 4(in part), 5, 6(in part), 7, 11(in part), 12, 13, 14(in part). Rejected as argument or a conclusion of law: paragraphs: 9, 10, 15, 16, 17. Rejected as irrelevant, immaterial or subsumed: paragraphs 4(in part), 8, 11(in part), 14(in part). Rejected as against the greater weight of evidence: paragraph 6(in part). COPIES FURNISHED: Kay L. Wolf, Esquire John M. Finnigan, Esquire GARWOOD, MCKENNA & MCKENNA, P.A. 815 North Garland Avenue Orlando, Florida 32801 James Sweeting, III, Esquire 2111 East Michigan Street Suite 100 Orlando, Florida 32806 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue The issue is whether Respondent, Ashley Furniture Homestore (“Ashley Furniture”), subjected Petitioner, Mika Kowaluk (“Ms. Kowaluk” or “Petitioner”), to discrimination on the basis of her race, national origin, or gender or on the basis of a sexually hostile work environment, in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Ashley Furniture is an employer as that term is defined in section 760.02(7). Ashley Furniture is a furniture manufacturer with retail stores around the world, including in Altamonte Springs, Florida. Ms. Kowaluk is a white female who was born in Poland. Ms. Kowaluk began working as a Retail Sales Associate (“RSA”) on or about December 26, 2017, at Ashley Furniture’s Altamonte Springs retail store. Petitioner worked at the Altamonte Springs store until her resignation on July 16, 2018. The chronology of events in this case is complicated because there were two simultaneous tracks of complaints coming in to Ashley Furniture’s HR department. Starting in February 2018 and continuing until her resignation, Ms. Kowaluk filed a steady stream of complaints regarding incidents with fellow employees and supervisors. At the same time, several other Ashley Furniture employees were filing their own stream of complaints with HR regarding Ms. Kowaluk. HR Manager Gladys Lopez testified that her office was often conducting more than one investigation either initiated or provoked by Ms. Kowaluk. On February 1, 2018, Ms. Kowaluk filed with HR a written complaint that a male employee was singing near her as she completed some paperwork. She shushed him. He then began a conversation with a nearby female employee that included the “F-word.” Ms. Kowaluk admonished him for his language and both of the other employees laughed at her. Referencing Ms. Kowaluk’s paperwork, the male employee told Ms. Kowaluk to “take your junk” and work elsewhere. Ms. Kowaluk took offense because she believed the word “junk” to be vulgar. Ms. Kowaluk testified that she believed this incident and her complaint to HR about it were the reason she was never accepted by the other employees in the Altamonte Springs store. She testified that from that point forward, management would ignore her complaints about improper language or behavior by fellow employees. Instead, management would turn the situation on its head and impose discipline on her because she had the temerity to speak out. In March 2018, Craig Hanson, an experienced manager with Ashley Furniture, came to the Altamonte Springs store as Store Manager. He described Ms. Kowaluk as confrontational, argumentative, and “kind of rude.” She was disruptive in morning meetings and did not take feedback well in terms of complying with Ashley Furniture policy. On March 16, 2018, Ms. Kowaluk came to Mr. Hanson to complain about a customer “being inappropriate and touching himself.” Ms. Kowaluk stated that when she asked the customer about it, he said, “What are you talking about?” and acted as if he had done nothing wrong. Mr. Hanson testified that no other employee corroborated Ms. Kowaluk’s account of the customer’s inappropriate behavior. Mr. Hanson also stated that no other employee at the Altamonte Springs store ever made a similar complaint about a customer but that Ms. Kowaluk did so more than once. Ms. Kowaluk also raised with Mr. Hanson an issue she had with fellow RSA Dominique Jaime. Ms. Kowaluk had reported Ms. Jaime to Assistant Manager Lincoln Rivera on February 18, 2018, and would continue to complain about Ms. Jaime throughout her employment with Ashley Furniture. Ms. Kowaluk’s allegations were always variations of the complaint that Ms. Jaime was loud, that she yelled at Ms. Kowaluk, and that she was overly aggressive in taking the “point” position, i.e., the RSA first in line to greet customers entering the store. On March 16, 2018, Mr. Hanson told Ms. Kowaluk that he was required to speak to all parties and get all of the facts before taking any disciplinary action. Ms. Kowaluk was unsatisfied. In his memo to Ms. Lopez, dated March 17, 2018, Mr. Hansen wrote that Ms. Kowaluk “asked me if I was uncomfortable with the conversation because of my mannerisms.” Mr. Hanson responded that he was not uncomfortable and that Ms. Kowaluk should put her statement in writing. Mr. Hanson characterized Ms. Kowaluk as “not a team player.” She had a confrontation of some kind on every shift she worked. Other employees complained about her on a daily basis. Mr. Hanson noted that Ms. Kowaluk was insubordinate and confrontational with management. She would openly disparage company policies and state her intention not to follow them. She would argue with her managers during morning staff meetings. Mr. Hanson testified that he would take Ms. Kowaluk aside and counsel her one-on-one after these incidents. However, he would contact HR when Ms. Kowaluk referenced sexual harassment, abuse, or someone being aggressive toward her. HR came to the Altamonte Springs store to investigate every complaint made by or about Ms. Kowaluk. Ms. Lopez testified that as the regional HR Manager, she visited each of the 18 stores in her region about once every three weeks for at least four hours per visit. Ms. Lopez testified that she received approximately four complaints from Ms. Kowaluk and about six complaints against Ms. Kowaluk in March and April of 2018 alone. She testified that she made about five extra trips to the Altamonte Springs store due to Ms. Kowaluk and that her subordinate HR staff was required to make trips to the store as well. In every case, Ms. Lopez found evidence to substantiate the allegations against Ms. Kowaluk in terms of her belligerence and aggressiveness. She could find no evidence to support Ms. Kowaluk’s claims that other RSAs were abusive and physically aggressive towards her. Mr. Hanson testified as to a meeting with Ms. Kowaluk on April 12, 2018, that began normally but took an odd turn. Mr. Hanson’s written statement to Ms. Lopez, confirmed by Mr. Hanson at the hearing, was as follows, in relevant part: Mika asked me to meet with her today at noon to speak about her growth as a person and with the company. It started off with her asking me about how she can get better and what the next steps towards management would be. I stated that first we should focus on getting her numbers up, focus on her process, and then go from there. I told her about my path and how I got to where I am at and it came from learning and growth at the role as I was at [sic]. This then turned into her talking about growth as a person. She then took it to why do customers “touch their privates” and is this acceptable in our culture. She then went on to speak about issues and conflict that she has had with the team and how is this still going on and isn’t this supposed to be a professional environment? Eventually she started speaking about Lincoln and how he adjusts his pants from the front and not from the side and how she finds this to be “highly inappropriate.” She went on speaking about his hand gestures and how he uses them when talking and how this was not professional. We spoke a bit more and she stated that she didn’t know if how he adjusted his pants in front of her was intentional or just a habit. This concerns me because I feel she is implying that it could be on purpose just around her. Lincoln sent me a statement that I will forward to you stating his side of what happened…. Mr. Rivera’s written statement to Mr. Hanson, sent on April 4, 2018, was as follows, in relevant part: At some point, we will need to sit down and discuss Mika once again because I feel I have to watch everything that is done in front of her. I just sat down at my desk at the end of the night to take care of some paperwork and she approached my desk. I adjusted my pants after sitting down because they were sliding down when I sat. I did not touch myself anywhere private, I simply grabbed my pants at the side and pulled them up. She asked me not to do that in front of her as this was inappropriate behavior. I told her that, at this point, I feel uncomfortable with her here at my desk and to please go to the back of the store in preparation to leave. I did ask Priya to stay until she leaves but this person is very difficult to work around. I don’t know what to say or do at this point but wanted you to know the moment it happened. Mr. Hanson testified that he never saw Mr. Rivera touch his genitals in front of anyone and that HR’s investigation found no evidence to substantiate Ms. Kowaluk’s allegation. The facts established that Mr. Rivera was making an everyday movement of adjusting his belt. Ms. Kowaluk described a morning staff meeting with Mr. Rivera during which he “was constantly moving his hands close to his private parts or on his hips.” She testified that Mr. Rivera was not simply adjusting his pants but would “[put his] hands in front of [his] privates and grab and adjust that way.” This was “highly inappropriate” and “very bizarre.” Ms. Kowaluk testified that Mr. Rivera repeated the gesture while standing next to her during a sale. She claimed to have developed a reaction akin to post traumatic stress disorder from witnessing Mr. Rivera adjust his pants. Ms. Kowaluk testified that she asked Mr. Hanson about the behavior because it was so bizarre she could not understand it. She speculated that maybe it was a nervous tic, or some psychological residue from his time in the military. Mr. Hanson investigated the morning meeting. In a memo to Ms. Lopez dated May 25, 2018, Mr. Hanson wrote, in relevant part: Mika came to me today asking to go home and I asked why. She said the morning meeting and how she felt it was abusive and offensive. She stated that Lincolns [sic] hand gestures are around his crotch and she find this to be unacceptable and that he only does it around her. She feels as if she is being bullied and that anytime we conduct an investigation the stories get twisted. She states that she can’t trust the team for this reason. Per our conversation I had one on one meetings with everyone who attended this morning meeting…. Mr. Hanson’s interviews with the three other people at the meeting revealed that nothing untoward occurred. The witnesses uniformly described the meeting as “productive and helpful,” “very beneficial,” and “positive.” Neither of the two other females present at the meeting noticed Mr. Rivera doing anything that could be deemed socially unacceptable or offensive. Ms. Kowaluk also complained that another assistant manager, Luking Martinez, was “licking his upper lip sensually.” She believed this to be a form of harassment and sabotage of her sales because Mr. Martinez only did it when he was near Ms. Kowaluk and her customers. Ms. Kowaluk testified that her problems with Mr. Martinez commenced when he placed his hand on her shoulder while helping her with a sale and she asked him not to touch her. In a memo to Ms. Lopez, dated July 1, 2018, Ms. Kowaluk wrote as follows, in relevant part, verbatim: After your visit at the Altamonte Ashley Furniture on June 27, 2018, the situation at the store got worst. I have experienced more harassing behaviors from co-workers and managers at the store. In my opinion, I am not considering this as a coincidences but it feels like it’s creating an intentional bullying situations by oppressors at this company. It is very unprofessional and harassing environment that I am working in. To be more specific: Homiera is creating hostile situations front of customer, as well as holding her hand intentionally with inappropriate gesture front of her privet parts. Saturday morning June 30, 2018, in store meeting I have observed that Rohan was [holding] his left hand inappropriately on his private parts. Another situation happened with Lorraine and she was holding her hand intentionally front of her privet part. I have experienced as well inappropriate behavior from David like sticking his tongue out randomly in front of me and making strange sounds. I have experienced this same harassing gestures from customers, man and woman’s holding hand front of privet parts. There was one customer at the store and he was approaching me in inappropriate harassing way aggressively getting very close to me, invading my personal space! Tiffany the person works in office at the store told me that he is her friend. I had conversation with her about his highly invasive behavior. She suggest that I should talk about this with my managers. Well I have mention many times similar problems to managers but with out any problem solving solutions. Basically my words and concerns are not going anywhere and I have the impression that harassing culture is in favored instead of proper safe and pleasant environment for employ at Ashley Furniture in Altamonte…. HR investigated every allegation made by Ms. Kowaluk and could not substantiate any of them. The multiple complaints made against Ms. Kowaluk led to disciplinary action against her. On April 18, 2018, a written warning was issued that described her conduct as follows: Mika Kowaluk is expected to act in accordance with our company values and code of conduct. You must conduct yourself in a professional manner and treat your peers and fellow employees with respect. Mika has had multiple instances of conflict with numerous members of the team, including conflict with management, failure to follow proper floor etiquette, and push back on certain behavioral initiative that drive sales numbers. Mika refuses to use appropriate meeting etiquette when speaking with management and peers. Mika focuses on individual mannerisms and verbal tone to the point that members of the team and management feel uncomfortable working with her. Ashley is proud of our diverse workforce and embrace [sic] those things that make us different. Mika must work together with her peers to maintain a professional work environment. Retaliation of any kind will not be accepted. Mika, your behaviors and actions have not demonstrated alignment with the expectations of the RSA and Company Care Values. This has shown up in your behaviors, communication style and interactions with your peers and management team within the store. The written warning set forth the following corrective action plan: Mika is receiving a written warning due to her failure to abide by the Company code of conduct and values. Moving forward it is expected that Mika is in alignment with management and company initiatives. We will also cover our floor rules with Mika as well as any questions she may have on proper floor etiquette. Mika, it is expected from you to abide by the floor rules and etiquette moving forward. Engaging in any further unsatisfactory behavior could result in disciplinary action up to and including termination of employment. Ms. Lopez testified that she discussed the written warning with Ms. Kowaluk at the time it was issued. Ms. Kowaluk refused to accept the corrective action and continued to blame her actions on her peers. Ms. Lopez stated that Ms. Kowaluk’s behavior did not change after the written warning was issued and that she continued to receive complaints from Ms. Kowaluk’s coworkers as to her aggressiveness, insubordination, and lack of respect for her peers and managers. Ms. Kowaluk likewise continued to file harassment complaints. On May 12, 2018, an incident occurred involving RSA Susan Woodbury, whom Ms. Kowaluk had already accused of “physical assault” after Ms. Woodbury bumped into her and neglected to apologize. On May 12, 2018, Ms. Woodbury had spread out her lunch on a table in the store’s break room. She was about to sit down and eat when she was called to the sales floor. She covered her food and went out of the break room. When Ms. Woodbury returned to the break room a few minutes later, Ms. Kowaluk was sitting and eating her own lunch in the space that Ms. Woodbury had set for herself. Ms. Woodbury asked Ms. Kowaluk to move. Ms. Kowaluk refused. When Ms. Woodbury insisted that she had been there first, Ms. Kowaluk said words to the effect of, “What are you going to do? Fight me?” Ms. Woodbury gathered her lunch things. On her way out of the break room, Ms. Woodbury stated, “This is why no one likes you.” Ms. Kowaluk testified that she sat down at the table in the break room. She saw Ms. Woodbury’s plates on the table but sat down and began to eat her own lunch. Ms. Woodbury then entered the room and “abusively approached” Ms. Kowaluk. In a “threatening” manner, she demanded that Ms. Kowaluk vacate the table. Ms. Kowaluk denied that she taunted Ms. Woodbury with the “what are you going to do?” statement but confirmed that she refused to move and told Ms. Woodbury to find someplace else to sit. In keeping with Ashley Furniture’s progressive discipline policy, Ms. Kowaluk was issued a final written warning on May 16, 2018. As the name indicates, a final written warning is the last step before termination of employment. The final written warning described Ms. Kowaluk’s conduct as follows: Mika Kowaluk is expected to act in accordance with our company values and code of conduct. You must conduct yourself in a professional manner and treat your peers and fellow employees with respect. Mika has continuing conflict with members of the team, including conflict with management. Mika continues to refuse to use appropriate meeting etiquette when speaking with management and peers. Mika had an incident with another manager, Luking Martinez, on May 4th. Mika was on a phone call, and after calling you two times, Luking moved you to the bottom of the list. He informed you that you were moved to the bottom of the list because you were not ready to take point. At this point you felt as if he was raising his voice at you and he stated he was not raising his voice. He then said that you need to be more respectful to the team and to management. You followed this statement with, “this is America and we are all equals.” On 5/12/18 Mika had another incident with Susan that was a confrontation in the break room. Mika sat in a spot that Susan had recently vacated in which she asked her to move and she refused. This is not against policy. You also implied what is she going to do about it? Fight you? These are confrontational words and is [sic] not accepted at Ashley. Mika, your behaviors and actions have not demonstrated alignment with the expectations of the RSA and Company Care Values. This has shown up in your behaviors, communication style and interactions with your peers and management team within the store. As a result, Mika Kowaluk is receiving a Final Warning effective today. The final written warning set forth the following corrective action plan: Mika is receiving a Final Warning due to her failure to abide by the Company code of conduct and values. Moving forward it is expected that Mika is in alignment with management and company initiatives. We will also cover our floor rules with Mika as well as any questions she may have on proper floor etiquette. Mika, it will be expected from you to abide by the floor rules and etiquette moving forward. Engaging in any further unsatisfactory behavior could result in disciplinary action up to and including termination of employment. Ms. Kowaluk signed the final written warning to acknowledge her receipt of it, but also wrote the following beneath the signature lines: “I don’t agree with this statement. The statements from Luking and Susan is not what actually happened.” The event that finally precipitated Ms. Kowaluk’s separation from employment at Ashley Furniture occurred on June 30, 2018. The most credible version of the event is that of Mr. Hanson, who wrote the following account in a memo to Ms. Lopez on June 30, 2018: Today Mika had a guest that spoke primarily Spanish. She called Luz over the intercom, but I guess Luz was not available or didn’t respond for some reason. Mika then called Luking over. Luking was speaking with the customer, and called me over because he noticed that the situation was getting uncomfortable. I came over and Luking was speaking to the guest in Spanish. He states that they would prefer to work with someone who speaks Spanish, so he called Lorraine, an RSA who speaks Spanish. At this point Mika got very upset and started talking about how she doesn’t appreciate this and this is not okay in front of the guest. She also said that the guest did not ask for someone who spoke Spanish. Luking said that they did, but during the conversation with Luking, they were both speaking Spanish. When asked if she understood Spanish, Mika said no. At this point, I advised Mika that it was best to not assume Luking was lying and allow him to turn the sale over. She then stated that she doesn’t believe anything Luking says and that he was lying and they did not want someone who spoke Spanish. I advised her that I was trying to help her understand how to handle this situation, but we cannot cause a [scene] in the middle of the showroom. She stated that I was abusing and harassing her and was no help at all. I then said that for the past two days more so than usual, she has had an attitude, been disruptive, and negative, impacting the building [in] a very bad way. I told her that this is not acceptable and she will need to change her attitude. She then stated that she is frustrated and that is why. She then continued to go on about how this is unfair, she was abused, harassed, and nothing is being done. I tried to explain to her that investigations have been done and was trying to help her understand. She would not take this for an answer and continued being rude and disrespectful. At this point I asked her to leave the building and told her I would call her when she can come back. She continued to talk about her pay, and fight back being rude and disrespectful [sic]. I asked her to leave again. Same result. I then asked her to leave one more time and she walked away. After she walked away, I saw her walking back towards me and knew it was going to be confrontational. I asked Janine [to] attend the conversation. At this point, she came up to me and told me she wanted a meeting with Steve King.[3] I told her that she had the right to request a meeting with whomever she wanted, but should do it through HR. I then politely and calmly asked her to leave the premises. She then got attitude and was confrontational talking about how she was being harassed and abused. I asked her calmly to leave 3 The record does not otherwise identify Steve King. From the context, it is presumed that Mr. King was an executive with Ashley Furniture. again, and same result. I asked her one [more] time to leave and she finally left the premises. I personally believe she is creating a hostile work environment and would suggest not having her come back to the store until this is resolved. After all this was done, I went to the customer that was in question, and apologized. I then politely asked if they were having a good experience since the issue. They said yes and that they were working with Lorraine. I then asked if they did prefer to work with someone who spoke Spanish and [they] gestured yes, as [they] did not speak very much English at all. . Mr. Hanson’s testimony was consistent with his statement. The customers spoke little English and Ms. Kowaluk spoke no Spanish. Mr. Hanson stated that it is Ashley Furniture’s policy to provide Spanish speaking customers with an RSA who can communicate with them. Ms. Kowaluk was upset and argumentative and finally had to be asked to leave the store. In her testimony, Ms. Kowaluk denied that the customers needed assistance from a Spanish speaking RSA, but she nevertheless put out a call for a Spanish speaking RSA named Luz. Ms. Kowaluk testified that she and Luz had worked well together in the past. Ms. Kowaluk stated that she had a good history with Luz. Ms. Kowaluk had no fear that Luz would steal the sale rather than follow Ashley Furniture’s protocol and share the commission with Ms. Kowaluk as the RSA who first assisted the customers. Ms. Kowaluk testified that when Luz did not appear, she asked Mr. Martinez if he knew her whereabouts. She said that Mr. Martinez and the RSA identified as Lorraine “stormed to me.” Mr. Martinez began speaking in Spanish to the customers and took over the sale. Mr. Martinez stood, “putting his hands on his waist” and repeatedly asking Ms. Kowaluk if she spoke Spanish. Mr. Martinez “molested” her and made her “highly uncomfortable.” She was not given an opportunity to explain to Mr. Hanson what had actually happened because Mr. Martinez “bullied the whole situation.” Ms. Kowaluk adamantly held that the customers spoke English and did not need or ask for assistance from a Spanish speaking RSA. She wanted to involve Luz in the sale to return a favor from a prior sale and because she knew Luz would work well with these customers. Ms. Kowaluk was suspended pending HR’s investigation of the incident. In the July 1, 2018, memo quoted in Finding of Fact 24, supra, Ms. Kowaluk told Ms. Lopez her version of the events of June 30, 2018: … It was another situation created when on Saturday I have customer looking for furniture and they asked me to give them a space and if they need something they will approach me with any questions. After some time they got back with me asking for particular table in dark finishing. I have show some to them and I was in process of searching for more when I decided to TEO this customer to Luz.[4] This customer was speaking English and Spanish but [I] had this feeling that Luz could have a better connection with them. I called her over radio but [didn’t have] a clear answer do to unacceptably bad radio quality’s (we have constantly problem with radio at store and the communication is horrible unsatisfactory and unclear). I have called Luking that was walking next to Lincoln desk at the time to help me with the customer and my intention was as well to introducing the customer to manage, He started to approach me and Lorraine for some reason was walking with Luking (I have not asked her for help or like to have her near me or my customer. She is presenting aggressive and not pleasant attitude for most part when interacting with me, and I don’t feel comfortable around her). 4 The term “TEO” was not explained at the hearing. I told her: thank you Lorraine but I don’t need your help and that I have called Luz. I was starting to introducing the customer needs to Luking but he interrupted me rudely starting talking in Spanish, and then told Lorraine to help the customer because that’s what they requested. It was not really what the customer intention was. Luking and Lorraine in my opinion created this situation intentionally. Then Luking stared to talking to me with intimidating voice and body gesture like puling his jacket up and touching belt in way to created abusive body posture. Interrogating me with this same question few times if I speak Spanish, to create terrorizing and bully atmosphere. Craig asked me then to go to training room to talk about this instead of in show room. I have refused because I don’t really feel comfortable in his present and Priya. I have experienced unappropriated body behavior from Craig as well all the conversations are more like interrogations and trying to putting me down rather then to understand and recognize the severe problem of harassment. Actually all the conversations in the training room that I had with management it felt to me like harassment and threats: verbally or body gestures, rather [than] friendly, compassionate and understanding with intention to solve the problem. Craig is accusing me of been aggressive which is not the case. I was frustrated with this in my opinion intentionally created situation to effect me in negative way so the manager can accumulate a fake reason to send me home again and effect my earnings, but I have not present any aggressive behavior…. I do apologies for any grammatically or spelling errors, English is not my [first] language and I appreciate your understanding…. Ms. Lopez testified as to HR’s investigation of this incident. Ms. Kowaluk was suspended and therefore had to be interviewed by telephone. Ms. Lopez visited the store and interviewed all of the employees who witnessed the incident. Ms. Lopez stated that she was able to establish that Ms. Kowaluk was the aggressor in the incident but was not able to establish Ms. Kowaluk’s allegation of harassment. Ms. Lopez testified that she never had a chance to discuss the results of the investigation with Ms. Kowaluk because Ms. Kowaluk submitted her resignation by email on July 16, 2018, stating that she had accepted a job offer from another company. Ms. Lopez and Mr. Hanson testified that while an employee at Ashley Furniture, Ms. Kowaluk never alleged that she was being discriminated against because of her sex, race, or national origin. Ms. Kowaluk herself testified that she never complained to HR that she was being discriminated against because of her sex, race, or national origin and conceded that no one at Ashley Furniture was discriminating against her because she was white, female, or Polish. She stated that she was discriminated against because she stood up for herself and was not friends with her coworkers. Ms. Kowaluk testified that she has held eight jobs since she resigned from Ashley Furniture on July 16, 2018, and has been terminated from six of those jobs. She resigned from the other two. Ms. Kowaluk testified that she was mistreated at all of these jobs. The fact that so many people Ms. Kowaluk encountered at Ashley Furniture—employees and customers, male and female—appeared to engage in odd crotch-grabbing or suggestive adjustment of their pants fatally undermines the credibility of her testimony on this point. Ms. Kowaluk either fantasized these behaviors or is hypersensitive to casual actions that other people simply do not notice. Ms. Kowaluk’s allegations of sexual harassment and/or a sexually hostile workplace based on what she saw as the lewd gestures of multiple Ashley Furniture employees, including her immediate supervisors, were not supported by credible evidence. The only action alleged by Ms. Kowaluk that might rise to the level of sexual harassment was Mr. Martinez’s placing his hand on her shoulder. Ms. Kowaluk testified that Mr. Martinez never touched her in an intimate area and never proposed a sexual relationship with her. She stated that Mr. Martinez touched her shoulder more than once. She did not state that he persisted in touching her once she told him to stop. The weight of the evidence established that Ms. Kowaluk is extremely sensitive to infringement of her personal space. It is clear that Mr. Martinez’s actions were unwelcome. However, it cannot be found that his actions constituted sexual harassment or the creation of a sexually hostile work environment under any objective view of the evidence. The evidence established that Ms. Kowaluk was consistently aggressive, obstreperous, and insubordinate in the workplace. Mr. Hanson’s statement that she was not a “team player” was a gross understatement. With the exception of the RSA identified in the record only as “Luz,” Ms. Kowaluk had an adversarial relationship with every one of her peers and supervisors. She functioned chiefly as a distraction and a detriment to the sales force at Ashley Furniture. The evidence produced at hearing establishes that Ashley Furniture took Ms. Kowaluk’s accusations seriously, even when they were outlandish on their face. In each instance, Ms. Lopez and her staff came to the Altamonte Springs store and interviewed every employee who could possibly have any relevant information. In each instance, Ms. Lopez ultimately concluded that she could not sustain Ms. Kowaluk’s allegations due to a lack of corroborating evidence. Ms. Lopez also concluded, in each instance, that the complaints made by other employees against Ms. Kowaluk were corroborated and sustainable. Ms. Kowaluk’s Petition made no allegation of retaliation as such but Ms. Kowaluk raised the issue of retaliation at the hearing. Even if it were found that she should be allowed to pursue a retaliation claim, the evidence convincingly established that Ms. Kowaluk was not subjected to unlawful retaliation. She alleged that she was forced to work in a hostile atmosphere but the evidence established that the hostile atmosphere was largely of her own making. She offered no specific instances of Ashley Furniture acting against her for reasons unrelated to her performance as an RSA or her own poor behavior as established by the thorough investigations undertaken by Ms. Lopez and her staff. Ms. Kowaluk offered no evidence that she was treated differently than any other similarly situated employee. Ms. Kowaluk offered no evidence that her separation from employment with Ashley Furniture was anything other than voluntary. In summary, Petitioner offered no credible evidence that she was discriminated against based on her race, sex, or national origin. Petitioner offered insufficient credible evidence that she was subjected to a sexually hostile work environment or sexual harassment. Petitioner also offered no credible evidence that she was subjected to unlawful retaliation. Petitioner offered no credible evidence disputing the legitimate, nondiscriminatory reason given by Ashley Furniture for sending her home and suspending her employment. Petitioner offered no credible evidence that Ashley Furniture’s stated reasons for sending Petitioner home and suspending her employment were a pretext for discrimination based upon Petitioner’s sex, race, or national origin or a pretext for unlawful retaliation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Ashley Furniture Homestore did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 6th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S LAWRENCE P. STEVENSON Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Jimmie Morgan, Esquire Ashley Furniture Industries, Inc. 1670 East 8th Avenue Tampa, Florida 33605 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Mika Kowaluk Apartment 15-306 1700 Robb Street Lakewood, Colorado 80215 Stephanie C. Generotti, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Suite 3600 100 North Tampa Street Tampa, Florida 33602
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
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 The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
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. DONE AND ENTERED this 10th day of August, 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 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 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 The issue in this case is whether Petitioner was retaliated against in violation of the Florida Civil Rights Act of 1992 (FCRA), chapter 760, Florida Statutes.
Findings Of Fact Based upon the demeanor and credibility of the witnesses and other evidence presented at the final hearing and on the entire record of this proceeding, the following Findings of Fact are made: Petitioner worked for FCTC for several years in several different positions, including as a career pathways supervisor, and most recently as a grant writer. FCTC was, for all times relevant to Petitioner’s allegations, a conversion charter technical center in St. Johns County, Florida, operating pursuant to a charter contract with the District by a privately organized 501(c)(3) non-profit corporation, the First Coast Technical Institute (FCTI). On July 1, 2016, the District began operating the educational programs at FCTC, due to the dire financial situation which had developed at the college. In taking over the programs at FCTC, the District immediately recognized that the administrative staff at FCTC was bloated and needed to be streamlined. Further, because FCTC would now be operated by the District, the District endeavored to evaluate FCTC’s structure to determine how it could operate more like a District school, including with respect to personnel structure. The District set out to reorganize and restructure FCTC to align it with the District and address administrative redundancy and financial issues. To facilitate this transition and evaluation, the District placed all administrative employees at FCTC on temporary contracts, effective July 1, 2016. This decision was made sometime in June 2016. On the morning of July 1, 2016, all employees of FCTC were called to a meeting held by Dr. Joseph Joyner, the District Superintendent. At that meeting, Dr. Joyner introduced Cathy Mittelstadt as the interim principal. At the conclusion of the meeting, all administrative personnel, including Petitioner, were offered temporary employment contracts, for a term of approximately six months. The contracts could be terminated by either party with two weeks’ notice. No administrative employee was placed on a longer temporary contract. The temporary employment contracts, including Petitioner’s, began on July 1, 2016, and terminated on December 21, 2016. Petitioner’s temporary employment contract expressly incorporates District Board Rule 6.10(3). Board Rule 6.10(3) concerns temporary employment with the District, and provides that temporary employees work for a limited amount of time. The rule does not state that temporary employees enjoy an expectation of employment beyond the contract term. As the interim principal, Ms. Middelstadt was tasked by the District with evaluating the structure of FCTC to determine how it could be streamlined to address budget and financial issues and also bring it in line with how other District schools operated. The elimination of positions at FCTC was contemplated as part of this evaluation. Every administrative position at FCTC was evaluated for potential elimination. Ultimately, Ms. Mittelstadt was responsible for recommending to the District’s Executive Cabinet (Executive Cabinet) how FCTC should be restructured. As part of this process, Ms. Mittelstadt was also responsible for recommending to the Executive Cabinet those positions that would be eliminated as part of the restructuring process. The Executive Cabinet did not reject any of Ms. Mittelstadt’s recommendations, but rather, accepted them without change. The Executive Cabinet would not have taken any action with respect to any employee working at FCTC without a recommendation from Ms. Mittelstadt. Ms. Weber had limited involvement in the restructuring process. She provided ministerial assistance to Ms. Mittelstadt during this process, but she was not responsible for, or involved in, the decision as to how the school would be restructured, or for any recommendations regarding the same. FCTC employees were kept informed as to the status of restructuring during the process. Ms. Mittelstadt and Ms. Weber did not tell any administrative employee at FCTC, including Petitioner, that they could expect their contract would be renewed or that they would retain their positions past the term of their temporary employment contract. Petitioner understood that he was being appointed to a temporary employment contract not to extend past December 21, 2016. Ms. Mittelstadt made the determination as part of the restructuring process that Petitioner’s position should be eliminated, and that his temporary employment contract would be allowed to expire pursuant to its terms. Ms. Mittelstadt recommended this course of action to the Executive Cabinet, which approved it. Through Ms. Mittelstadt’s evaluation and assessment of the needs of FCTC, she determined that a full-time grant writer was not necessary for FCTC. Certain tasks related to grants obtained by the School District, including accounting related tasks, are handled in the District’s main office, and the remaining tasks related to grants are handled at particular schools by a different position, career specialists. Indeed, no other District school employs a full-time grant writer. In furtherance of the District’s decision to streamline administration at FCTC and realign it with how other District schools operated, Ms. Mittelstadt determined that the grant writer position occupied by Petitioner, as well as another type of position at FCTC, the program manager position, should be eliminated, and the duties performed within those positions subsumed within the career specialist position, as in other District schools. The District distributed a vacancy announcement for the Career Specialist position to all FCTC employees, including Petitioner. The announcement included a job description for the position. The job description and vacancy announcement were used to fill the position. The job description provides that grant writing and management, encompassing Petitioner’s duties as a grant writer, are part of the duties, among others, of a career specialist. Petitioner did not apply for this position. Petitioner was informed at a meeting on November 18, 2016, that his contract would be allowed to expire effective December 21, 2016, and not renewed. Present at this meeting, in addition to Petitioner, were Ms. Mittelstadt, Ms. Weber, and Brennan Asplen, the District’s Deputy Superintendent for Academic & Student Services. At the meeting, Petitioner was provided a notice indicating that his temporary employment contract was expiring pursuant to its terms. Petitioner was permitted to work through the remainder of his contract term with no diminution in benefits or pay. Petitioner requested to be placed in another position at FCTC at this time, but was informed there were no vacancies posted for him to be moved to, that the District was not placing non-renewed employees into positions, and that he could apply to any position he liked when it was posted. One position, a Case Manager in the Career Pathways program, was funded from a grant, and that position was technically vacant under the grant. However, FCTC was in a hiring freeze at the time, as Ms. Mittelstadt made the decision to not fill the Case Manager position given, and during, the extensive realignment and assessment of FCTC whose budget was being scrutinized at a deep level. The District did not place any other non-renewed employees into positions. The Case Manager position was eventually advertised in April 2017. Petitioner did not apply for the position despite being informed of it and having nothing restricting him from doing so. Petitioner’s work performance played no role in the decision to eliminate his position. Ms. Mittelstadt and Ms. Weber both indicated that they did not retaliate against Petitioner for any reason. In fact, Petitioner was not the only person whose position was eliminated. Ms. Mittelstadt also recommended that six or seven other positions also be eliminated. Furthermore, approximately 12 to 15 FCTC employees resigned, and their positions were eliminated. Had those employees not resigned, their positions still would have been eliminated and those employees’ contracts would have been allowed to expire. Petitioner filed the complaint or charge, at issue in this proceeding, with the FCHR on December 22, 2016 (December 22nd Complaint). In it, Petitioner alleges that he was retaliated against in violation of the FCRA. While Petitioner was not represented by counsel at the time that he filed the December 22nd Complaint, he obtained representation from a lawyer thereafter, and during the FCHR’s investigation of this complaint. This was not Petitioner’s first complaint filed with FCHR concerning his work at FCTC. Just before the District began operating the programs at FCTC, and specifically on June 27, 2016, Petitioner filed a complaint (June 27th Complaint) with the FCHR also alleging retaliation. The June 27th Complaint was received by the FCHR on June 28, 2016. Petitioner introduced no evidence showing that at the time the decision was made to place individuals on temporary employment contracts, that the District was aware of his June 27th Complaint. Petitioner alleges in the December 22nd Complaint that the District terminated his employment because he engaged in protected activity under the FCRA. Petitioner does not allege in the complaint that he was subjected to a hostile work environment or harassment due to any retaliatory animus on the part of the District. Rather, Petitioner only alleges that he believes he frustrated his supervisor at various times, not that he was subjected to a hostile work environment. On August 17, 2017, the FCHR issued a no-cause determination. On September 20, 2017, Petitioner filed a Petition for Relief from Unlawful Employment Practice, initiating the instant proceeding. In the Petition, Petitioner largely alleges that he believes the District submitted false information to the FCHR and that the District was guilty of various acts of fraud and abuses. Specifically, Petitioner alleged: Not only did the SJCSD lie about its relationship with FCTC, the SJCSD deliberately lied about my position working collaboratively with other SJCSD personnel assigned to grants administration and my unique ability to assist the SJCSD in avoiding mistakes that they were driven to make, mistakes that rose to the point that they became criminal. The SJCSD committed to a path of making such criminal errors with federal funds and falsifying their account of why they fired me. I have assembled sufficient evidence to show that the SJCSD is guilty of violating the Racketeer Influenced and Corrupt Organizations Act and that they fired me as a whistle blower having abundant evidence of their crimes committed against the public interest for the personal benefit of key administrators. In his Petition, Petitioner did not identify reasons why he believes the FCHR’s “No Reasonable Cause” finding was without merit. And other than his alleged retaliatory firing, Petitioner does not identify any other adverse effects that he suffered as a result of the SJCSD “criminal” activities, or allege that he was subjected to a hostile work environment. Petitioner alleged for the first time at hearing that the District subjected him to a hostile work environment in retaliation for engaging in protected activity. He alleged this hostile work environment centered on three actions. First, that the District did not provide him a copy of a harassment complaint filed by another employee concerning him in a timely manner, and did not set up the meetings he requested to address that complaint the way he wished. Second, that District personnel did not provide him access to “SunGard” software. And, third, that District officials asked him to sign a form related to grants that he did not wish to sign. Regarding the first allegation, sometime prior to July 1, 2016, Renee Staufaccher filed a complaint with Stephanie Thomas regarding Petitioner’s conduct. This complaint was lodged while the District was not operating the programs at FCTC. District officials told Petitioner that complaints lodged during this time period should be referred to FCTI. Once the District began operating the programs at FCTC, Petitioner reached out to Ms. Weber for a copy of Ms. Staufaccher’s complaint. Ms. Weber took steps to obtain that complaint, and it was provided to Petitioner within roughly two weeks of his request, despite Ms. Weber being out of the office one of those weeks. Petitioner requested to meet with Ms. Staufaccher and Ms. Thomas regarding the nature of the complaint and his concerns about whether the complaint was authentic. Ms. Staufaccher was no longer employed at FCTC within a matter of days of this request. Petitioner also requested to meet with Ms. Thomas only a matter of days before she ceased working at FCTC. Petitioner was not afforded the meeting or other items requested because the matter concerned old, not ongoing events occurring prior to the time the District began operating FCTC. Petitioner did not interact with, or report to, Ms. Staufaccher or Ms. Thomas during this time, and neither supervised him. Petitioner never disclosed to the District that he was suffering continued harassment at the hands of Ms. Staufaccher or Ms. Thomas subsequent to July 1, 2016. Petitioner offered no evidence that his request was handled differently from any other District employee, and Ms. Weber credibly testified he was treated the same as any other District employee in this regard. Regarding the second allegation, Petitioner alleged at the hearing that the District did not provide him access to SunGard, a computer program that had some relation to the performance of his job duties. At hearing, Petitioner represented that he was never provided access to this program. However, he later conceded that he did have access to this program during his employment. Specifically, prior to being given direct access to this program, Petitioner was provided access to the information in the program through the assistance of another District employee. This provided Petitioner with access to the information he needed to perform his job, including generating reports. Accordingly, it was not necessary for Petitioner to have direct access to SunGard to perform his job duties. The District was not authorizing extensive access to SunGard during this time because it was in the process of creating new systems and processes to bring FCTC in line with the District’s standards. In short, Petitioner was still able to perform his job, despite his complaint that he was not given direct access to SunGard. As to Petitioner’s third complaint, on or about October 2016, Jena Young, formerly employed in the District’s accounting office, asked Petitioner to sign a form related to grant accounting. Ms. Young was not Petitioner’s supervisor. Petitioner stated that he did not want to sign the form because he believed there was incorrect information on the form. Petitioner was not forced to sign the form, and was not told he must sign the form or face adverse consequences. Ultimately, he did not sign the form. The District maintains a rule governing harassment in the workplace. The rule provides a complaint procedure for employees to complain of harassment. The rule provides multiple avenues for employees to report harassment, and provides that complaints will be investigated and discipline meted out for employees impermissibly harassing others in violation of the rule. The rule prohibits retaliation against an employee who files a complaint. Notably, Petitioner never filed a harassment complaint about conduct occurring subsequent to July 1, 2016, despite his being aware of the rule. Petitioner’s protected activity at issue in this case concerns his June 27th Complaint and varied grievances that he filed while he was an employee at FCTC prior to July 1, 2016. Petitioner only offered three grievances into evidence--his first grievance, his ninth grievance and his tenth grievance-- all lodged prior to July 1, 2016, and all concerning the conduct of administrators at FCTC while it was still operated by FCTI and not the District. Petitioner’s first grievance was filed on May 21, 2015, alleging that FCTC’s then-president, Sandra Fortner, engaged in nepotism by hiring her friends and family, and that he experienced a hostile work environment because a co-worker, William Waterman, was rude to him in meetings and in e-mails. Petitioner does not allege in this grievance that he was being discriminated against on the basis of a protected class or that he believed anyone else was being discriminated against or adversely affected because of their protected class. Petitioner’s ninth and tenth grievances, both filed on June 13, 2016, allege that Ms. Fortner engaged in nepotism by hiring her associates, and that Stephanie Thomas, FCTC’s Human Resources Director, and Ms. Stauffacher, were complicit in that nepotism. Indeed, Petitioner testified that the thrust of these grievances was that members of potential protected classes did not get to interview for jobs at FCTC, not because of those protected classes, but because they were not Ms. Fortner’s friends or family. Ms. Mittelstadt had not seen the grievances that Petitioner filed, and had no knowledge of the June 27th Complaint when she determined that his contract be allowed to expire pursuant to its terms and his position eliminated. Petitioner introduced no evidence that Ms. Mittelstadt ever saw any of his grievances or the June 27th Complaint at the time she made the decision to eliminate his position. Ms. Mittelstadt credibly testified that none of Petitioner’s grievances, requests for grievances, e-mails related to grievances, or his June 27th Complaint played any role in her recommendation that his position be eliminated.
Recommendation Based upon 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 Gregory R. Lulkoski in this case. DONE AND ENTERED this 28th day of June, 2019, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Gregory Ryan Lulkoski 212 River Island Circle St. Augustine, Florida 32095 (eServed) Michael P. Spellman, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Jeffrey Douglas Slanker, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Robert J. Sniffen, Esquire Sniffen & Spellman, P.A. 123 North Monroe Street Tallahassee, Florida 32301 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
