The Issue Whether Respondent, Sea World of Florida, Inc. (SWF), subjected Petitioner, Mario Molina, to disparate treatment and terminated his employment because of his national origin (Puerto Rican) and/or alleged disability in violation of Subsection 760.10(1)(a), Florida Statutes (2005).
Findings Of Fact Respondent is an employer, as that term is defined, under the Florida Civil Rights Act (FCRA) of 1992. Petitioner is a male of Puerto Rican descent and is a member of a protected class. Petitioner claims he is disabled due to the pain and limitations following corrective surgery for a lumbar degenerative disc problem in 2003. Petitioner began employment with SWF in 1995 as a warehouse worker in the receiving department. The warehouse worker position required Petitioner to receive and move shipments of merchandise, equipment, and supplies coming into the Warehouse. Petitioner needed to be able to lift up to 50 pounds and assist in lifting up to 100 pounds to shoulder height in order to perform the essential functions of the warehouse worker position. Petitioner had surgery on his back on September 26, 2003, to correct a lumbar degenerative disc problem. Dr. Stephen Goll performed the surgery and provided after-care for Petitioner. SWF granted Petitioner a paid leave of absence from September 26, 2003, until March 19, 2004, in order to allow him to recuperate from his surgery. Petitioner returned to work on March 19, 2004, with restrictions of sedentary work only and no lifting of more than ten pounds. Petitioner's restrictions varied after his surgery, but he was never cleared to lift more than 20 pounds. Petitioner never requested an accommodation that would allow him to lift up to 50 pounds. SWF provided Petitioner with light-duty work, in accordance with his restrictions as defined by Dr. Goll, from his return to work on March 19, 2004, until November of 2004. Specifically, Warehouse Manager Mark S. Wren assigned Petitioner to the pricing table where he was not required to lift more than ten pounds. On November 1, 2004, Dr. Goll examined Petitioner and determined that he had reached maximum medical improvement (MMI) with a three percent impairment rating. He put in place a permanent restriction of no lifting of more than ten pounds. Accordingly, Petitioner could not perform the essential functions of his warehouse worker position, which required lifting up to 50 pounds. Further, there were no permanent light-duty positions available in the Warehouse. Therefore, on November 29, 2004, Warehouse Manager Wren, Human Resources Manager Christine Runnels, and Human Resources Director Teri Robertson met with Petitioner to explain that SWF had no permanent work in the Warehouse that he could perform within his restrictions. During his meeting, SWF offered Petitioner the opportunity either to be assigned to SWF's internal temporary worker pool, known as Workforce, and work as a temporary employee as needed, or to take a six-month personal leave of absence to look for a position at SWF which met his medical restrictions. Petitioner, who complained of continued back pain, elected to take a six-month personal leave of absence from December 4, 2004, through June 4, 2005. He could retain his health benefits during this period. Despite being unable to perform the essential functions of the warehouse worker position, Petitioner was capable of working in a broad range of jobs offered by SWF within his medical restrictions. During Petitioner's six-month personal leave of absence, SWF had 417 positions open. Nevertheless, Petitioner only inquired about two positions during his six-month leave period -- one in the Call Center and one as a horticulturist. Petitioner was not selected for a position in the Call Center because he was unwilling to work the required hours. Petitioner admitted he did not have the required degree to work as a horticulturist. Petitioner never submitted a transfer request for any of the 415 other positions available at SWF during his six-month personal leave of absence. Nevertheless, Petitioner sought to have his leave extended to six months after his leave expired on June 4, 2005. SWF's vice president of Human Resources reviewed Petitioner's request for a leave extension, as well as his personnel file pertaining to the reason for his leave of absence. Christine E. O'Neal discovered that Petitioner had permanent lifting restrictions, preventing him from performing the essential functions of his former position in the Warehouse. O'Neal further learned that despite granting Petitioner six months to find another position, he had done little in furtherance of that goal. In fact, O'Neal determined that Petitioner had only applied for two positions during the entire six months of his leave. Therefore, O'Neal made the decision to deny Petitioner's request for a leave extension, effectively terminating Petitioner's employment on June 4, 2005. Petitioner presented no evidence indicating that SWF terminated his employment because of his alleged disability or national origin. Further, each of the three witnesses who testified at the hearing stated that employment decisions affecting Petitioner were not related to his national origin or alleged disability, and this testimony is credible. SWF submitted legitimate non-discriminatory reasons for Petitioner's termination. Specifically, SWF terminated Petitioner's employment because he had a permanent lifting restriction prohibiting him from performing the essential functions of his position as a warehouse worker, and he failed to actively seek another position during his leave period. Petitioner submitted no evidence establishing that SWF discriminated against him because of his national origin, or that he was handicapped under the FCRA, or that SWF's non- discriminatory reasons for terminating Petitioner was a pretext for unlawful discrimination.
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 which DENIES the Petition for Relief and dismisses Petitioner's claim. DONE AND ENTERED this 2nd day of November, 2006, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 2nd day of November, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mario Molina 116 Coconut Grove Way Kissimmee, Florida 34758 Thomas R. Brice, Esquire McGuireWoods, LLP 50 North Laura Street, Suite 3300 Jacksonville, Florida 32202 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner on the basis of his race in violation of the Florida Civil Rights Act, when Petitioner was an employee of Respondent.
Findings Of Fact From November 2004 until early 2008, which period includes all times relevant to this case, Petitioner Robinson Nelson ("Nelson") worked for Respondent Alutiiq-Mele, LLC ("AML") as a security guard. Nelson, who is black, alleges that on two discrete occasions, AML unlawfully discriminated against him based on race, once denying him an overtime shift which he requested, and the other time refusing to assign him "equal work hours." The first incident allegedly took place on "or about March 1, 2005." According to Nelson, he called his supervisor that day, using a telephone at his workstation, to ask that he be scheduled to work overtime on his day off. The supervisor, Nelson claims, told him that overtime had been "eliminated" and denied Nelson's request. Shortly thereafter, as Nelson tells it, the supervisor called Nelson's coworker, Nadja Abreu, and offered her the overtime that Nelson had just been denied. Nelson's story cannot be squared with AML's records, which the undersigned considers reliable and truthful and hence credits. Nelson's timesheet for the week of February 27 through March 5, 2005, shows (and it is found) that he worked all seven days that week, putting in 40 regular hours and 26 overtime hours. Ms. Abreu's timesheet for the same period shows (and it is found) that she worked four days, accruing 40 regular hours and four overtime hours. At hearing, Nelson claimed (apparently for the first time) that the telephone conversation with his supervisor regarding overtime had not occurred on or about March 1, 2005—— as he had alleged originally in his Charge of Discrimination (signed on November 20, 2005) and maintained as recently as the Joint Prehearing Stipulation (dated May 30, 2008)——but rather some two weeks later, on or about March 15, 2005. Again, however, credible contemporaneous records belie Nelson's claim. A payroll document shows (and it is found) that Nelson and Ms. Abreu each worked 40 regular hours during the week of March 13, 2005——and neither put in overtime. (Moreover, Nelson did not work on March 15 and 16, 2005, which means that, if Nelson called his supervisor on March 15, as he asserted at hearing, then he likely would not have been at his workstation at the time, which is inconsistent with his testimony that he placed the call while at work.) Regarding the second alleged incident of discrimination, Nelson claims that on Monday, October 31, 2005, shortly before 9:00 a.m., he received a telephone call at home from his supervisor, who wanted to know why Nelson had failed to report for work that morning. Nelson says he told his supervisor that he had not been scheduled to work that day, and he could not work because he was babysitting. Nelson complains that, in connection with this situation, AML "denied" him regular work hours because of his race. In addition to being facially illogical, Nelson's claim of discrimination is contradicted by reliable and persuasive documentary evidence. First, AML's payroll record shows (and it is found) that Nelson worked four hours on Sunday, October 30, and seven-and-a-half hours each day the next Tuesday through Friday, making a total 34 regular hours during the week of October 30, 2005. While this was not quite a full-time workweek, that Nelson worked fewer than 40 hours one week is not, of itself, proof that AML "denied" him six hours of work. In fact, AML did not "deny" Nelson a work opportunity, as other contemporaneous documents——not to mention Nelson's own testimony——show. In evidence are two work schedules pertaining to the week of October 30, 2005. One was printed on October 28, 2005, and the other on October 30, 2005. There are a number of differences between them; each, however, notes that "scheduled hours are subject to change as needed." On the earlier schedule, Nelson was to be off on Monday, October 31, 2005. On the subsequent schedule, he was to work from 9:00 a.m. to 4:00 p.m. that day. Had Nelson reported to work on October 31, 2005, as (ultimately) scheduled——and as he was asked to do——Nelson would have worked more than 40 hours the week of October 30, 2005. Ultimate Factual Determinations Taken as a whole, the evidence in this case is either insufficient to establish that AML discriminated unlawfully against Nelson on the basis of his race; or it proves, affirmatively, that AML did not, in all likelihood, unlawfully discriminate against him. Either way, it is determined, as a matter of ultimate fact, that AML did not violate the civil rights laws in its treatment of Nelson while he was an employee of AML.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding AML not liable to Nelson for racial discrimination. DONE AND ENTERED this 23rd day of July, 2008, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 July, 2008. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Christine L. Wilson, Esquire Jennifer A. Schwartz, Esquire Jackson Lewis LLP One Biscayne Tower, Suite 3500 2 South Biscayne Boulevard Miami, Florida 33131 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Martin Marietta Corporation is a multi-state, multi- national defense contractor. Respondent functions as one of its primary divisions/operations in Orlando, Florida. The Petitioner, Frank Maggio was born on April 3, 1914. Petitioner was employed by Respondent on June 16, 1981 in the position of Quality Control Fabrication Inspector A (Fate A Inspector) at Respondent's Orlando facility. Respondent's primary role within the overall corporate operation is the production of highly sophisticated, high-tech missile systems. The development and production of these weapons is maintained under tight security due to the involvement of the national defense effort. Because of Respondent's participation in military and defense programs, the manufacturing process is constantly reviewed and critically inspected by governmental agencies. The Respondent utilizes "state-of-the-art" machines and equipment on its advanced, technical and highly complex defense projects. Petitioner's responsibilities as a Fab A Inspector included checking the first piece of hardware off of the machines, qualifying the tape that runs the machine with his stamp and checking the dimensions of the first layout. This procedure is referred to as a set-up and, once "bought off" "accepted) by the "A" inspector, it establishes the critical reference point or benchmark for the sophisticated, state-of- the-art-manufacturing processes of the Respondent. Respondent's operations involve the manufacture or production of weaponry or weapons systems that require tolerances The Petitioner was given a warning that another similar incident might result in further disciplinary action, up to and including discharge and specifications which are not found or even known in consumer oriented production plants. Certain pieces of equipment used will drill and measure within one one-thousandth of an inch (1/1,000"). The integrity of the highly integrated and closely coordinated production procedures depends upon the correct initial setting, which "commits" the production process. If the initial setting is off or in error, nonconforming parts or items will be manufactured. If the nonconforming parts cannot be reworked or brought into tolerances, they are regarded as scrap and represent a loss to the company. The Petitioner functioned as the only Fab A Inspector on the second shift with very little, if any, supervision. "B" and "C" Inspectors were present, but not performing in a capacity that could provide a backup for Petitioner. In February, 1983, Petitioner functioned under the direct supervision of Charles Holley, Chief Quality Inspector. Although both men worked on the second shift, Petitioner performed as a Fab A inspector and was responsible for making the initial, critical decisions on "set-up" tapes for the second shift production operations. On April 5, 1983, while on his second shift assignment, Petitioner "bought off" on a first piece inspection in order to qualify a newly released tape. On April 7, 1983, the first shift rejected a piece on that particular tape because the dimensions were out of tolerance. Subsequently, after a second inspection of the piece by the senior tool inspector, it was determined that the part was non-conforming and out of tolerance. This error lead to the production of approximately 180 pieces of "scrap" and a loss of about $100,000. As a result of this incident, Mr. Holley, Petitioner's superior, completed a Significant Incident Report (S.I.R.) dated April 18, 1983, which was placed in Petitioner's personnel file. Pursuant to routine procedure, Petitioner was counseled about the S.I.R. and given an opportunity to respond. The Petitioner was given a warning that another similar incident might result in furhter disciplinary action, up to and including discharge. Following the April, 1983 incident, Mr. Holley felt that Petitioner's work performance began to decline. Mr. Holley was dissatisfied because Petitioner often used scales for measurements at times when Mr. Holley believed that calipers should have been used. In addition, Petitioner used his lunch break to take naps, and several times he was late returning to work. Sometime in late September or early October, the Petitioner approved a piece of hardware similar to that involved in the April, 1983 incident and it too was rejected for being out of tolerance. Following this incident, Mr. Holley once again went to the Personnel and Industrial Relations Department (S.I.R.) attempting to have another S.I.R. placed in Petitioner's file. However, the management in P.I.R. did not allow the report to be placed in Petitioner's file. Subsequently, Petitioner was not reprimanded or otherwise disciplined and no official record was kept of this incident. During February, 1984, a "set-up" error by Petitioner on a secret laser tracking missile project know as "Hell-Fire" caused unusable parts to be manufactured and a financial loss to Respondent. Prior to submitting an S.I.R., Mr. Holley met with management in the Personnel and Industrial Relations Department to discuss the Petitioner's situation. It was at this time that Mr. Thomas Mallis, supervisor of employee relations, seized upon the idea of Petitioner's upcoming 70th birthday on April 3, 1984 as a way in which to be rid of Petitioner. Mr. Mallis reasoned that rather than attempting to terminate Petitioner for cause, Petitioner's 70th birthday would provide a point where Petitioner could be "gracefully retired" under Martin Marietta Corporation's corporate retirement policy. Martin Marietta Corporation has a nationwide corporate retirement which requires retirement at age 70. Generally, the company does not enforce this requirement at facilities which are located in states where such a policy violates age discrimination laws. Likewise, Respondent does not generally enforce the corporate wide retirement policy at its Orlando facility because it is subject to Florida state law concerning age discrimination. As of April 4, 1984, Respondent employed approximately 11,000 employees. Approximately 5,017 of those employees were 40 years of age and a small number were over 70. Although the company's age 70 retirement policy is not generally enforced at Respondent's Orlando facility, the retirement plans provided by the company and the benefits package negotiated by the union with the company for retirement pay focus on age 70 as the point at which retirement benefits mature or "top out." After age 70, no further benefits accrue under the retirement plan. Thus, as a matter of established practice and/or expectation on the part of the employees, virtually all workers have retired or plan to retire on or before their 70th birthday. Therefore, Mr. Mallis believed that having respondent "retire" at age 70 would be an easy non-confrontational way to terminate Petitioner's employment. As a member of the United Aerospace Workers local bargaining unit, Petitioner would have had the right to object and file a grievance concerning any proposed termination for cause by Respondent. By "retiring" Petitioner under the corporate policy, Mr. Mallis believed that a "bitter challenge" under the union's often cumbersome grievance/arbitration procedures could be short-circuited. Under the Respondent's progressive discipline system, generally employees are given 3 to 5 S.I.R.'s or written warnings before any stronger action is taken. At the time of his involuntary retirement by Respondent on April 4, 1984, the Petitioner was not vested under the company's retirement program and was not entitled to any benefits thereunder.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that a Final Order be entered finding that the Respondent is guilty of a violation of Section 760.10, Florida Statutes and awarding the Petitioner attorney's fees. It is further RECOMMENDED that the Petitioner be reinstated to his former position. The Respondent may seek to institute proceedings within 30 days from the date of the final order to terminate Petitioner for cause based on his work performance up to April 4, 1984. If the respondent is barred from attempting to terminate Petitioner for cause based on those past incidents for whatever reason, if Respondent chooses not to institute termination proceedings, or if the Respondent successfully defends any termination proceedings, then the Petitioner shall be entitled to back pay for the statutory maximum of two years. DONE and ORDERED this 18th day of August, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1986. COPIES FURNISHED: Joseph Egan, Jr., Esquire Post Office Box 2231 Orlando, Florida 32802 Thomas C. Garwood, Jr., Esquire 57 West Pine Street, Suite 202 Orlando, Florida 32801 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 2. Adopted in Findings of Fact 1 and 3. Partially adopted in Findings of Fact 14 and 16. Matters not contained therein are rejected as misleading. Partially adopted in Finding of Fact 15. Matters not contained therein are rejected as misleading. Adopted in Finding of Fact 5. Adopted in Findings of Fact 4, 5, and 6. Adopted in Finding of Fact 7,/ Partially adopted in Finding of Fact 8. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 10 and 11. Matters not contained therein are rejected as unnecessary and subordinate. Partially adopted in Findings of Fact 13, 14, 16, and 17. Matters not contained therein are rejected as not supported by competent substantial evidence and/or subordinate. In particular, the finding that the "Petitioner under normal circumstances, should have been discharged for his pattern of poor performance and the associated financial impact upon the company" is rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as subordinate and/or not supported by competent substantial evidence. Rejected as argumentative and/or subordinate. ================================================================ =
The Issue Whether Respondent committed the unlawful employment practice alleged in the Petition for Relief filed with the Florida Commission on Human Relations ("FCHR"); and, if so, what relief should Petitioner be granted.
Findings Of Fact Respondent distributes engine oils to customers in various industries. Petitioner, a white female, was employed by Respondent as a customer service representative in Miami, Florida, from approximately December 2013 until her termination on August 7, 2019. According to her Complaint, Petitioner’s national origin is Cuban and she was 58 years old at the time of her termination. At all times material hereto, Petitioner was supervised by Adelkys Romero, a customer service manager employed by Respondent. As a customer service representative, Petitioner’s job duties included entering orders by phone and email, bulk and package invoicing, and answering the telephone. On December 11, 2017, Petitioner received a final warning letter from Ms. Romero because of poor job performance. This letter was given to Petitioner because, among other things, she made numerous errors in her entries and missed orders. Petitioner was directed to improve her performance and advised that failure to do so will result in discharge. In 2018, Ms. Romero had ongoing conversations with Petitioner about the accuracy of her work and the quality of her invoices. In 2019, Petitioner’s poor job performance continued. In 2019, Petitioner received numerous emails documenting approximately 20 errors in processing orders. On July 25, 2019, Petitioner received a second final warning letter for unexcused absences. At that time, Petitioner was specifically advised "that future incidents or violations of company policy, whether or not similar in nature, may result in disciplinary action, up to and including termination." On July 31, 2019, Petitioner "skipped emails" in orders, which affected the accuracy of the delivery of the correct product to customers. On August 5, 2019, Petitioner made another error with regard to order entry. At the hearing, Petitioner acknowledged she made numerous significant errors during her employment with Respondent. Petitioner’s errors resulted in Respondent incurring additional and unnecessary financial costs. On numerous occasions throughout her employment, Petitioner was verbally counseled regarding her poor job performance and advised by Ms. Romero on how to correct her employment deficiencies. However, Petitioner’s job performance did not improve. On August 7, 2019, Petitioner was terminated for poor job performance due to her continued order entry errors, incorrect billing, and inability to complete work or correct errors in a reasonable amount of time. Ms. Romero made the decision to terminate Petitioner. Gabrielle Moore, Respondent’s human resources business partner, also participated in the decision. Respondent has policies and procedures in place regarding complaints of discrimination and harassment. At no time prior to her termination did Petitioner complain to Respondent that she was discriminated against or harassed because of her race, national origin, or age. Nor did Ms. Romero ever make any derogatory comments in the workplace based on race, national origin, or age. The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, nondiscriminatory reasons having nothing to do with race, national origin, or age. Petitioner’s allegations of discrimination are based on speculation and conjecture, and Petitioner failed to prove that Respondent’s reasons for her firing are a mere pretext for intentional race, national origin, or age discrimination.
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. 1 To ultimately prevail in an age discrimination case, Petitioner must prove by a preponderance of the evidence (which may be direct or circumstantial) that age was the "but- for" cause of the challenged employer decision. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177-78 (2009); Greene v. Sch. Bd. of Broward Cty., 2014 U.S. Dist. LEXIS 111664, at *13-14 (S.D. Fla. 2014). DONE AND ENTERED this 16th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 16th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Kent Wellington, Esquire Graydon Head & Ritchey, LLP 312 Walnut Street Cincinnati, Ohio 45202 (eServed) Maria Del Pilar Alvarez Apartment 401 17000 Northwest 67th Avenue Hialeah, Florida 33015 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Sylvester Brown, was subject to discrimination in employment for the reasons alleged in the Petition.
Findings Of Fact The Petitioner, Sylvester Brown, was terminated from his position as Laborer, position number 51343, within the Facilities Operation and Maintenance Department of Florida State University (FSU) on October 7, 1999, for violation of a Last Chance Agreement and absence without authorized leave. The Petitioner had been employed by FSU for 24 years. Petitioner's Disciplinary Violations Leading to Termination Attendance is a critical element of the Laborer's job because departmental productivity depends on the reliable availability of employees. The Petitioner received a copy of Rule 6C2-4.070, Guidelines for Disciplinary Action, Rules of the Florida State University Administrative Code on January 29, 1988, which provided notice to the Petitioner of FSU's standard of conduct and the associated penalties for violation. The Petitioner was cited for numerous disciplinary infractions prior to his dismissal. The Petitioner's work history documents a consistent trend of absences which grew progressively worse over time. A list of documentation in evidence, exhibiting disciplinary action taken by FSU against the Petitioner includes: A three day suspension for Absence Without Authorized Leave (AWOL) and Excessive Absences, dated January 3, 1997. A written reprimand for Excessive Absences and AWOL, dated August 6, 1996. An oral reprimand for excessive absences, dated April 26, 1996. 1996. A written reprimand for AWOL, dated February 29, A written reprimand for AWOL, dated August 14, 1991. A written reprimand for excessive tardiness, dated June 5, 1989. A written reprimand for excessive tardiness, dated February 22, 1989. A written reprimand for excessive tardiness, dated July 8, 1988. A written reprimand for AWOL, dated May 25, 1988. The Petitioner was cited for excessive tardiness in an official written reprimand dated July 8, 1988, and the Petitioner was again reminded that his performance hindered the department's ability to perform its function. An oral reprimand for excessive tardiness, dated January 28, 1988. An oral reprimand for misuse of state property and equipment, dated July 11, 1985. A written reprimand for misuse of state property and equipment dated March 21, 1984. A written reprimand for excessive absences, dated February 7, 1984. A written reprimand for AWOL and misuse of state property and equipment dated, January 25, 1983. A three day suspension for AWOL, dated July 27, 1981. A written reprimand for AWOL, dated July 13, 1981. The Petitioner was directed in an August 14, 1991, written reprimand to phone his supervisor as close to 8:00 a.m. as possible on days he would be unable to report to work. The Petitioner was reminded in the February 29, 1996, written reprimand of the policy requiring employees to provide supervisors with advanced notice or documentation for leave to be authorized. The Petitioner was informed on April 26, 1996, that his absences, both excused and unexcused, exceeded established attendance and leave standards. Specifically, from January through April, the Petitioner used 33 hours of annual leave, 31 hours of sick leave, and 29 hours of leave without pay. FSU notified the Petitioner that his absences and sick leave totaling 33 hours during the period from April 26, 1996 to August 6, 1996, were deemed excessive and in contravention of departmental standards. The Petitioner was also cited for six hours of being absent without authorized leave. The Petitioner's chronic absenteeism did not improve. The period from August 6, 1996 through January 3, 1997, witnessed 46 hours of sick leave or unauthorized leave on the Petitioner's part. An inventory of the Petitioner's absences following his suspension from January 7-9, 1997 until August 22, 1997, catalogued 56 hours of sick leave, 16 hours of leave without pay and two hours of absence without authorized leave. This amount of leave was "considered to be excessive and completely unacceptable." [Id.] Further, the university did not receive any medical excuses for the Petitioner's use of sick leave during this period. [Id.] Counseling was provided to the Petitioner by FSU regarding the use of sick leave on August 17, 1998. An examination of the Petitioner's attendance revealed that he used 63 hours of sick leave from February 20, 1998 through August 6, 1998. [Id.] The university's standard for the same period of time was 33 hours of sick leave. [Id.] The Petitioner was further advised by FSU that he would not be compensated for three consecutive absences or three absences within a 30-day period without proper medical documentation. FSU assessed the Petitioner's attendance from January 8, 1998 through August 6, 1998, by comparing the standard allocated for sick leave to the Petitioner's actual use of sick leave. The sick leave standard for employees for the period under review was 44.16 hours whereas the Petitioner expended 67 hours of sick leave. [Id.] The record establishes that the Petitioner was warned 17 times in writing through reprimands, memorandums, and counseling notices dating back to 1981 that absenteeism was punishable under university employee disciplinary standards. Tardiness and absenteeism are, in fact, grounds for dismissal under the FSU Handbook for Employees. The Petitioner was warned twice in writing that failure to rectify his recurring absenteeism could result in his dismissal. Petitioner's Termination The FSU's Guidelines for Disciplinary Action are based on the concepts of progressive and cumulative discipline. The Disciplinary Guidelines outline standards to apply for punishable offenses to ensure similar treatment. Ms. Susannah Miller, Manager of Employees Relations at FSU, testified that the Petitioner's personnel file revealed the worst case of absenteeism she has seen at FSU. Excessive absences is defined in the Guideline for Disciplinary Action as "an attendance record of recurring absences, even though all or a majority of the absences were necessary and excused." Dismissal is allowed as proper punishment for an employee's fourth violation of the excessive absence rule. FSU notified the Petitioner of its intention to terminate him for excessive absences, effective on or shortly after October 12, 1998. In lieu of firing the Petitioner, FSU elected to allow the Petitioner to enter into a "Last Chance Agreement" (LCA) with FSU to avoid dismissal. Ms. Miller stated that Last Chance Agreements allow a final opportunity for employees to improve their performance. Ms. Miller further testified that to her knowledge FSU has never retained any employee that violated a Last Chance Agreement. The Last Chance Agreement required the Petitioner to (1) obtain prior written approval of requests for annual leave or leave without pay; (2) follow departmental policy and call-in between 8:00 and 8:30 a.m. and speak personally with his supervisor or proper designee if he was sick and unable to report to work; and (3) agree that violation of any LCA provision would result in immediate termination for cause. The Petitioner violated the Last Chance Agreement when he did not report for work on August 27, 1999, because he neither obtained prior approval for the absence nor followed the call-in procedure. The Petitioner also failed to provide any documentation justifying his absence. The Petitioner was in violation of the Last Chance Agreement on August 31, 1999, when he was tardy without permission and failed to follow the call-in procedure. The Petitioner's breach of the Last Chance Agreement is even more egregious because he collected his paycheck prior to work and could have easily informed his supervisor or the designee that he needed leave that day. In addition to violating the terms of the Last Chance Agreement, the Petitioner was also AWOL on August 27 and August 31, 1999. AWOL is "failure to obtain approval prior to any absence from work" and is punishable by dismissal for the third occurrence. The Petitioner admitted that he violated the Last Chance Agreement. On September 15, 1999, FSU informed the Petitioner of its decision to terminate him for violating the Last Chance Agreement and absence without authorized leave. The Petitioner was dismissed on October 7, 1999. Petitioner's Step One Grievance was denied on December 13, 1999. FSU's decision to terminate the Petitioner for violation of the Last Chance Agreement and absence without authorized leave was upheld by the State University System of Florida in its Step Two Grievance decision. Petitioner's Injury The Petitioner's Position Description reveals that lifting is an integral part of a laborer's duties. The Petitioner's 1995 Position Description allocates 85 percent of the job's essential function to lifting, moving and arranging university property and requires that the laborer be able to lift 30 pounds. The Petitioner sustained a back injury at work on September 4, 1997. The Petitioner's job duties changed as a result of the injury and he was tasked with inspecting fire extinguishers from September 10 through November 12, 1997. A physical capacity assessment performed on the Petitioner indicated that he was capable of performing at a medium demand level. The Department of Labor defined medium demand as capable of lifting 50 pounds and pushing and pulling 50 pounds. The Petitioner was temporarily re-assigned to the Grounds Section of the Facilities, Operations and Maintenance Department on December 23, 1997. The Petitioner testified that his job function involved re-cycling. The Petitioner's assignment in the Grounds Section was light duty and he was informed that his job duties could be modified after his physician reviewed the physical capacity assessment. Dr. Alexander, the Petitioner's physician, declared the Petitioner fit for medium demand duty with a 35-pound lifting limit on March 24, 1998. Robert Pullen, American Disabilities Act Coordinator at FSU, was directed by Carolyn Shackleford, under the University's Reasonable Accommodation Policy, to ensure that the Petitioner's job activities with the Grounds Section did not exceed the 35p-pound lifting threshold. The Petitioner never contacted Mr. Pullen's office regarding reasonable accommodation. Mr. Pullen determined that the Petitioner's duties did not violate the lifting restriction and were in full compliance with the accommodation policy. The Petitioner testified that he could lift 35 pounds repetitively. The record reflects no evidence of age discrimination committed by the Respondent against the Petitioner. The record indicates no evidence that the Petitioner was terminated due to his race. The Petitioner presented no evidence or testimony regarding retaliation by FSU.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue Whether Petitioner's Petition for Relief from an Unlawful Employment Practice (Petition for Relief) filed against Respondent should be granted by the Florida Commission on Human Relations (Commission).
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: At all times material to the instant case, Respondent operated Marriott Forum at Deercreek (hereinafter referred to as the "Facility"), a "senior living community, nursing home." Petitioner was employed as a Certified Nursing Assistant (hereinafter referred to as "CNA") at the Facility from 1992 or 1993, until July of 1998, when she was terminated. Petitioner is black. At the time of Petitioner's termination, all of the CNAs, and all but one of the nurses, at the Facility were black. At the time of Petitioner's termination, the chain of command leading down to Petitioner was as follows: the General Manager, Joanna Littlefield; the Health Care Administrator, Sheila Wiggins, and the Interim Director of Nursing, Michelle Borland. The Director of Human Resources was Meg McKaon. Ms. Littlefield had the ultimate authority to terminate employees working at the Facility. Ms. Wiggins, Ms. Borland, and Ms. McKaon had the authority to make termination recommendations to Ms. Littlefield, but not to take such action themselves. In July of 1998, F. S., an elderly woman in, or approaching, her 90's, was a resident at the Facility. On or about July 9, 1998, Petitioner was involved in a scuffle with F. S. while giving F. S. a shower. Joyce Montero, a social worker at the Facility, was nearby in the hallway and heard the "commotion." When F. S. came out of the shower, Ms. Montero spoke to her. F. S. appeared to be "very upset." She was screaming to Ms. Montero, "Get her away from me; she hit me," referring to Petitioner. Ms. Montero noticed that F. S. "had blood [streaming] from her nostril to at least the top of her lip." The nursing staff then "took over" and "cleaned up [F. S.'s] blood" with a towel. Ms. McKaon was contacted and informed that there was a CNA who had "had an altercation with a resident." Ms. McKaon went to the scene "right away" to investigate. When Ms. McKaon arrived, F. S. was still "visibly shaken and upset." Ms. McKaon saw the "bloody towel" that had been used to clean F. S.'s face "there next to [F. S.]." F. S. told Ms. McKaon that she was "afraid [of Petitioner] and that she [had been] punched in the nose" by Petitioner. In accordance with Facility policy, Petitioner was suspended for three days pending the completion of an investigation of F. S.'s allegation that Petitioner had "punched" her. Ms. Wiggins and Ms. McKaon presented Petitioner with a written notice of her suspension, which read as follows: Description of employee's behavior . . . . On July 9, 1998, one of our residents [F. S.] was being given a shower by [Petitioner]. [F. S.] stated that [Petitioner] punched her in the nose. (She was crying and bleeding: witnessed by Joyce Montero). Suspension For Investigation To provide time for a thorough investigation of all the facts before a final determination is made, you are being suspended for a period of 3 days. Guarantee Of Fair Treatment Acknowledgement I understand that my manager has recommended the termination of my employment for the reasons described above and that I have been suspended for 3 days while a decision regarding my employment status is made. I understand that the final decision regarding my employment status will be made by the General Manager. The suspension period will provide time for an investigation of all facts that led to this recommendation. I understand that the General Manager will be conducting this investigation. I further understand that if I feel I have information which will influence the decision, I have a right to and should discuss it with the General Manager. I am to report to my manager on July 13, 1998 at 10:00 a.m. Petitioner was asked to sign the foregoing notice, but refused to do so. Ms. McKaon conducted a thorough investigation into the incident. Following her investigation, she came to the conclusion that there was "enough evidence to terminate" Petitioner. As a result, she recommended that Ms. Littlefield take such action, the same recommendation made by Ms. Wiggins. After receiving Ms. McKaon's and Ms. Wiggins' recommendations, Ms. Littlefield decided to terminate Petitioner's employment. The termination action was taken on or about July 23, 1998. At this time, the Facility was on "moratorium" status (that is, "not allowed to accept any more patients") as a result of action taken against it by the Agency for Health Care Administration because of the "many" complaints of mistreatment that had been made by residents of the Facility. Ms. Wiggins was given the responsibility of personally informing Petitioner of Ms. Littlefield's decision. After telling Petitioner that her employment at the Facility had been terminated, Ms. Wiggins escorted Petitioner out of the building and to the parking lot. In the parking lot, Ms. Wiggins said to Petitioner something to the effect that, she, Ms. Wiggins, was "going to take all of the black nurses in the Facility." (What Ms. Wiggins meant is not at all clear from the evidentiary record.) Following Petitioner's termination, the racial composition of the CNA staff at the Facility remained the same: all-black, as a black CNA filled Petitioner's position. There has been no persuasive showing made that Petitioner's race played any role in Ms. Littlefield's decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order finding that Respondent is not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's Petition for Relief based on such finding. DONE AND ENTERED this 20th day of June, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2003.
The Issue The issues are whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment in December 2001, and if so, what relief is appropriate, if any.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is an African-American female. She was born in November 1984, and she is currently 18 years old. Respondent is the largest franchisee of Popeye's Chicken and Biscuits (Popeye's) restaurants in the country. Respondent operates over 160 Popeye's restaurants in seven states, including Florida. Popeye's is a fast-food restaurant which specializes in fried chicken and biscuits. One of the Popeye's restaurants operated by Respondent is located in Sanford, Florida. Respondent acquired the franchise for the Sanford restaurant in mid-September 2000. In December 2000, Petitioner was hired by Respondent as a "crew member" at Popeye's in Sanford. Petitioner was 16 years old when she was hired. The general duties of a crew member include cleaning the interior and exterior of the store, battering and seasoning chicken, frying the chicken, working the cash registers, washing dishes, and other duties assigned by the shift manager. Crew members operate power-driven machinery, such as bakery-type mixers (for making biscuits) and meat marinators (for seasoning the chicken), and they also use slicing machines for preparing coleslaw and cutting chicken. Crew members work as a "team" and, because there are only four to five crew members per shift, each crew member is expected to be able to (and is often required to) perform each of the duties listed above. During the course of her employment, Petitioner typically worked as cashier at the drive-thru window or the counter in the lobby, although she did perform other duties. Petitioner acknowledged at the hearing that she could not perform some of the job duties, such as cooking the chicken, because of her age. Petitioner was often required to walk past the fryers where the chicken was cooked while performing her other duties, and she was thereby exposed to the hot grease which had a tendency to splatter when the chicken was frying. On occasion, Petitioner had to go into the walk-in freezer in the kitchen area of the restaurant. She also carried the hot water heaters used to make tea, and she used the bakery-type mixers and meat slicers. There are dangers inherent in the duties performed by crew members. For example, the grease in the fryers is in excess of 300 degrees, and it often splatters onto the floor making the floor slippery. The floor of the walk-in freezer can also be slippery due to ice. Because of the team approach utilized by Respondent and the nature of Popeye's business, it would be difficult to limit the duties performed by Petitioner (or other minors) to those not involving hazards such as exposure to hot grease or use of dangerous machinery. Petitioner's starting salary was $5.75 per hour. Her salary remained the same during the entire term of her employment at Popeye's. Crew members work either the "day shift" or the "night shift." The day shift begins at 8:00 a.m. and ends at 4:00 p.m.; the night shift begins between 3:00 p.m. and 4:00 p.m. and ends after the restaurant closes, which is often after 11:00 p.m. Petitioner primarily worked the night shift since she was still in high school during the time that she was working for Popeye's, and she worked later than 11:00 p.m. on occasion. Because of the small number of crew members working on each shift, it was highly impractical for minor employees to be provided the 30-minute breaks every four hours as required by the Child Labor Law. This was a particular problem on the night shift since a minor employee such as Petitioner, who began her shift at 3:00 p.m. or 4:00 p.m., would be taking a break between 7:00 p.m. and 8:00 p.m., which was one of the busiest times for the restaurant. Petitioner only worked part-time at Popeye’s. Her employment earning records for June 2001 through December 2001 show that even during the summer months she worked no more than 46 hours during any two-week pay period. Those records also show that Petitioner typically worked significantly fewer hours during the school year. Petitioner's employment earning records show that she worked an average of 29.25 hours per pay period or 14.625 hours per week. That average is a fair measure of the hours typically worked by Petitioner because the median is 29.24 hours per pay period and, even if the periods with the highest and lowest number of hours are not considered, the average would be 30.02 hours per pay period.2 In August 2001, Petitioner began to hear "rumors" from her co-workers and shift managers that she "had to be gone" soon. She understood those rumors to mean that she would be "laid off," and she further understood that it was because she was a minor. The "rumors" that Petitioner heard were based upon a new policy adopted by Respondent on August 6, 2001 ("the Policy"). The Policy was adopted by Respondent as a direct result of a series of administrative fines it received from the Florida Department of Labor and Employment Security for violations of the Child Labor Law. The violations included minors working more hours per day and/or per week than permitted, minors working in and around hazardous occupations (e.g., cooking with hot grease), and not providing minor employees with the required 30-minute breaks. The Policy was distributed to Respondent's district managers and area managers. Those managers were responsible for distributing the Policy to the store managers who, in turn, were responsible for implementing the policy and conveying the information in the Policy to the "front line" employees, such as Petitioner. Petitioner did not receive a copy of the Policy until after she had been fired. However, Petitioner was informed of the essential substance of the Policy through the "rumors" described above. The Policy states that "[i]t has long been [Respondent's] policy not to hire minors" who are not exempt under the Child Labor Law. The Policy required all minor employees to be "phased out" by December 1, 2001. The purpose of the four-month phase-out period was to enable the employees to find other employment. The Policy did not apply to minors who could provide documentation to Respondent showing that they were legally married, had their disability of non-age removed by a court of competent jurisdiction, were serving or had served in the Armed Forces, and/or have graduated from high school or earned a high school equivalency diploma. These criteria were taken directly from Section 450.012(3), Florida Statutes, which identifies those minors who are not subject to the state's Child Labor Law. Petitioner did not fall within any of these categories. Consistent with the phase-out schedule in the Policy, Petitioner's employment with Respondent was terminated effective December 1, 2001, although her last work day was actually in late November. Petitioner was 17 years old at the time. Petitioner did not look for other employment after she was fired by Respondent. Petitioner attended some type of summer program at Bethune-Cookman College (BCC) in Daytona Beach, Florida, between June 16 and July 27, 2002. Petitioner received an $800.00 stipend from BCC related to that program. Petitioner enrolled in Barry University (Barry) in Miami Shores, Florida, in August 2002. Had she still been employed at Popeye's at the time, she would have quit since she had always planned to attend college after high school and not to have a career working at Popeye's. Had Petitioner continued to work at Popeye's from December 1, 2001, until June 16, 2002, when she started the summer program at BCC in Daytona Beach, she would have earned $2,354.63.3 Had Petitioner been able to continue working at Popeye's while she was attending the BCC summer program and all of the way through mid-August 2002 when she left for college at Barry, she would have earned an additional $756.84,4 for a total of $3,111.47. The additional $756.84 that Petitioner would have earned by working at Popeye's from June 16, 2002, through August 2002, is less than the $800.00 stipend that she received from BCC. Petitioner obtained a part-time job through a federal work study program once she enrolled at Barry. She worked in that program from August 2002 to May 2003 when the school year ended. She was paid $5.50 per hour, and she earned approximately $2,250.00 in that program. In May 2003, Petitioner returned to Sanford for "summer vacation." Upon her return, Petitioner began looking for a summer job in Sanford, but as of the date of the hearing, she was not employed. The record does not reflect what type of job that Petitioner was looking for or whether she actually applied for any jobs. Petitioner will continue in the work study program when she returns to Barry in August 2003. But for the Policy, Petitioner would have not been terminated in December 2001. She was a good, hard-working employee and she had no disciplinary problems. Respondent is willing to rehire Petitioner now that she is 18. Petitioner is not interested in working for Respondent. She testified at the hearing that she does not want to go back to work for "a company that has done me like that," which is a reference to Respondent firing her based solely upon her age. There is no evidence that Petitioner was mistreated in any way or subjected to a hostile work environment while she was working at Popeye's, nor is there any evidence that such an environment currently exists or ever existed at Popeye's.
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 which dismisses Petitioner's unlawful employment practice claim against Respondent. DONE AND ENTERED this 15th day of August, 2003, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 15th day of August, 2003.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on November 17, 2004.
Findings Of Fact Petitioner, Linda Marchinko, was employed by the Witteman Company, Inc., from 1966 until April 2003. The Witteman Company, Inc. (hereinafter "Inc.") was a division of the Dover Corporation. While employed by Inc., Petitioner held the position of traffic manager. The most recent description of the duties of the position of traffic manager reads as follows: Responsible for, but not limited to, traffic managerial duties, coordinate and arrange for all product shipments, required documentation, customer interaction, and providing back-up support as required to others within the Company. Work with minimum supervision, produce quality, complete and accurate work and be an active and positive participant on teams and committees to which assigned. In February 2003, Cryogenic Industries made an asset purchase of Inc. and established Witteman, LLC (hereinafter LLC). LLC engineers and sells carbon dioxide, recovery, and production equipment to soft drink and brewing companies. Whereas Inc. had a maximum of 110 employees, LLC was established with only 17 employees, as many departments such as purchasing, traffic, and accounting were eliminated or "farmed out." At the time of the asset purchase, all employees of Inc. were terminated due to the sale of the assets of Inc. Petitioner was terminated from employment with Inc. effective April 8, 2003. She signed a Severance Agreement and Waiver and Release of Claims, releasing Inc. from all claims, including any related to the Age Discrimination and Employment Act. The position of traffic manager has not and does not exist at LLC. Petitioner was not hired by LLC. Petitioner has never been employed by LLC and, therefore, was not terminated by LLC. A few employees of Inc. were hired by LLC. Petitioner was not one of them. Cara Brammer is one of the employees of Inc. who was hired by LLC. Her position is Comptroller. Petitioner contends that regardless of Ms. Brammer's title, Ms. Brammer performs the same functions that Petitioner used to perform for Inc. Petitioner believes that Ms. Brammer was hired by LLC because she is younger than Petitioner. At the time Ms. Brammer was hired by LLC, she was approximately 39 years old and Petitioner was 55 years old. Ms. Brammer's duties as Comptroller include accounts payable, cost accounting, and general ledger work. According to Ms. Brammer, the traffic manager duties previously performed by Petitioner were separated between two of LLC's sister companies in California, which handle all of the major equipment, including manufacturing and shipping for LLC. William Geiger is General Manager of LLC. According to Mr. Geiger, the manufacturing of the product was shifted to two divisions located in California. The primary shipping of the company's product was also shifted to California. This is consistent with Ms. Brammer's testimony. According to Ms. Brammer, a small portion of the shipping duties that had initially been sent to California are now handled by LLC. She estimates that she spends only four to five hours a week on these traffic duties, that Mr. Geiger handles some of these duties, and that "quite a bit" of these traffic duties have been farmed out to a company called Freight Forwarder. LLC employs people in their thirties, forties, fifties, and sixties. There is no competent evidence that LLC used age as a criterion in its determination of who would and who would not be hired for the newly formed company.
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 Petition for Relief. DONE AND ENTERED this 1st day of November, 2005, 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 1st day of November, 2005.
The Issue The issues are whether Respondent committed discriminatory employment practices against Petitioner in violation of Chapter 70 of the Pinellas County Code as alleged in the Complaint, and if so, what is the appropriate remedy.
Findings Of Fact Parties Petitioner is a 44-year-old African-American male. FMS is a package delivery company that does business in Pinellas County. According to Petitioner, FMS has more than 100 employees. FMS was provided due notice of the date, time, and location of the final hearing in this case, but no appearance was made on its behalf. Petitioner’s Job Duties and Salary at FMS Petitioner started working for FMS in late 1999 or early 2000 as a “driver.” Petitioner’s primary job responsibility was to drive a delivery truck along a designated route to deliver and pick up packages. Petitioner was also responsible for loading the to- be-delivered packages on his truck in the morning and then unloading any picked-up packages from his truck in the evening. Petitioner worked Monday through Friday. His shift started at 7:00 a.m. each day. Petitioner’s gross pay was initially $650 every two weeks, but at some point Petitioner's salary was increased to $750 every two weeks.1 Petitioner did not receive health or dental insurance or other benefits. Failure to Switch Trucks as Directed (Complaint, Count III) Chronologically, the first event alleged in the Complaint as a basis of Petitioner’s discrimination claim started on the morning of Friday, February 8, 2002, when Petitioner’s boss, Tom Aliotti, directed Petitioner to switch trucks with another driver named Eddie. Later that day, Mr. Aliotti told Petitioner that he would switch the trucks over the weekend. As a result, Petitioner and Eddie did not switch the trucks on Friday. The trucks were not switched over the weekend, and on the morning of Monday, February 11, 2002, Mr. Aliotti again directed Petitioner to switch trucks with Eddie. Petitioner did not switch the trucks on Monday morning as directed by Mr. Aliotti because he was too busy preparing to run his delivery route. Petitioner testified that Eddie was equally responsible for the trucks not getting switched because he could not switch trucks with Eddie without Eddie’s participation; however, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do in regard to switching the trucks. After Petitioner failed to switch the trucks on Monday as directed, he was given a written reprimand for insubordination by Mr. Aliotti. The written reprimand, which is referred to as a Counseling Sheet (see Exhibit P4), stated: “[Petitioner] will switch trucks tonite [sic] 2/11/02 or [he] will not be working 2/12/02. Day off without pay.” Petitioner testified that he did not switch the trucks even after the directive on the Counseling Sheet. It is unclear from Petitioner’s testimony whether he was suspended without pay on February 12, 2002. According to Petitioner, Eddie was not reprimanded for the incident. It is unclear from Petitioner’s testimony whether a reprimand was appropriate for Eddie because it is unknown whether Mr. Aliotti also told Eddie to switch the trucks and, as stated above, it is unclear from Petitioner’s testimony what specifically Eddie did or did not do to frustrate the truck switching. Eddie, like Petitioner, is an African-American male. Attendance Issues in March 2002 (Complaint, Counts I and II) The other allegations of discrimination in the Complaint relate to discipline imposed on Petitioner for his unexcused absences from work on several occasions in March 2002. Petitioner submitted a written request for a half-day of leave on Friday, March 1, 2002, in which he stated that he needed to “go out of town to attend a funeral” because of a “death in [his] family.” See Exhibit P1, at page 3. That request was approved, and Petitioner was expected to be back at work on Monday, March 4, 2002. Petitioner attended the funeral of his brother in Largo, Florida, on Saturday, March 2, 2002. Later that same day, he traveled to Madison, Florida, to attend funeral services for his uncle. See Exhibits P2 and P3. For reasons that are unclear in the record, Petitioner did not return to work on Monday, March 4, 2002, as he was expected to do. If a driver was going to be unexpectedly absent from work, he or she was required to let the boss know before 7:00 a.m. so that a substitute or “on-call” driver could be contacted to take over the absent driver’s route. Getting another driver to take over the absent driver's route was important to FMS because some of the packages that the company delivers have to get to the customer by 10:30 a.m. Petitioner understood the importance of this requirement. According to Petitioner, he tried to call his boss before 7:00 a.m. on Monday to let him know that he would not be coming into work, but he was not able to reach his boss until several hours after 7:00 a.m. Petitioner did not produce any credible evidence to corroborate his testimony that he attempted to call his boss prior to 7:00 a.m. on Monday, and the documents introduced by Petitioner include conflicting statements as to whether Petitioner ever called on that date.2 Nevertheless, Petitioner’s testimony on this issue is accepted. When Petitioner returned to work on Tuesday, March 5, 2002, he was suspended for the day and, according to Petitioner, his delivery route was taken away. The Warning Letter that was received into evidence (Exhibit P1, at page 1) references the suspension, but not Petitioner’s route being taken away. According to Petitioner, his delivery route was given to a white female, whose identity Petitioner did not know. Thereafter, Petitioner was given menial tasks such as sweeping the floor and taking out the trash, although he also helped load packages onto the delivery trucks in the morning. Petitioner submitted a written request for leave on March 19 and 20, 2002, because he planned to be in Kentucky on those dates. Petitioner stated in the request that “I will be back to work on the [sic] 3-21.” See Exhibit P1, at page 2. The leave requested by Petitioner was approved, and he was expected to be back at work on March 21, 2002. Petitioner got a “late start” on his drive back from Kentucky, which caused him to miss work on March 21, 2002. According to Petitioner, he used his cellular phone to call his boss before 7:00 a.m. on March 21, 2002, to let him know that he would not be coming into work, but he was not able to reach his boss until 7:30 a.m. Petitioner did not present any credible evidence, such as his cellular phone records, to corroborate his claim that he attempted to call prior to 7:00 a.m. Petitioner’s testimony on this issue was not persuasive. The record does not reflect what, if any, discipline Petitioner received for not calling prior to the start of his shift to report that he would not be coming into work on March 21, 2002. Petitioner’s pay was not reduced at any point during his employment with FMS even though, according to Petitioner, his primary job duties were changed from driving a delivery truck to sweeping the floors and taking out the trash. Petitioner continued to work at FMS until April or May 2002 when he was injured on the job while lifting a box. Petitioner’s Post-FMS Activities and Employment After his injury, Petitioner could not and did not work for approximately one year. During that period, Petitioner collected workers' compensation at the rate of $500 every two weeks.3 Approximately one year after his injury, Petitioner’s doctor allowed him to return to work on “light duty.” Thereafter, in April or May 2003, Petitioner tried to return to work with FMS but, according to Petitioner, he was told that there were no available “light duty” positions. That effectively ended Petitioner’s employment relationship with FMS. The Complaint does not allege that FMS’s failure to re-hire Petitioner was a discriminatory employment practice, nor is there any credible evidence in the record that would support such a claim. From April/May 2003 to approximately March 2004, Petitioner held only one job. He worked for approximately one week cleaning floors at a nursing home, but he left that position because of his back problems. After leaving the floor cleaning job, Petitioner did not actively look for other employment. He briefly attended a training class to become a security guard, but he did not complete the class after learning that he would not be able to be licensed as a security guard “because of his prior record.” In approximately March 2004, Petitioner was hired by a former acquaintance to work as a driver for a mortgage company. In that position, Petitioner is paid $11 per hour and he typically works 40 hours per week, which equates to gross pay of $880 every two weeks. As of the date of the hearing, Petitioner was still employed by the mortgage company. Lack of Evidence Regarding Similarly Situated Employees Petitioner presented no credible evidence regarding any “similarly situated” employees, i.e., employees who engaged in conduct that was the same as or similar to that for which Petitioner was disciplined.4 Although Petitioner testified that he “had heard” of situations where other employees had “put a manager off,” rather than immediately doing what the manager told them to do, he was not able to offer any specific examples of such insubordination. Petitioner also presented no credible evidence regarding how other employees (of any race) were disciplined for conduct that was the same as or similar to that for which Petitioner was disciplined.5
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board issue a final order dismissing Petitioner’s Complaint against FMS. DONE AND ENTERED this 27th day of October, 2004, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 27th day of October, 2004.
