The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing.
Findings Of Fact The Notice of Hearing in these consolidated cases was issued on November 17, 2010, setting the hearing for January 24 and 25, 2011, in Tallahassee, Florida. The hearing was scheduled to commence at 9:30 a.m. on January 24, 2011. Also on November 17, 2010, an Order of Pre-hearing Instructions was entered. Neither the Notice of Hearing nor the Order of Pre- hearing Instructions was returned as undeliverable to Petitioner. On January 19, 2011, Petitioner filed a letter at the Division of Administrative Hearings requesting that the hearing be delayed until after February 18, 2011, due to various appointments she had made that conflicted with the hearing dates. This letter indicated that Petitioner was aware of the scheduled hearing dates. By order dated January 20, 2011, the undersigned declined Petitioner's request for failure to state grounds sufficient to warrant a continuance over the objection of Respondent. Several attempts to reach Petitioner by telephone were unavailing. At 9:30 a.m. on January 24, 2011, counsel and witnesses for Respondent were present and prepared to go forward with the hearing. Petitioner was not present. The undersigned delayed the commencement of the hearing by fifteen minutes, but Petitioner still did not appear. The hearing was called to order at 9:45 a.m. Counsel for Respondent entered her appearance and requested the entry of a recommended order of dismissal. The hearing was then adjourned. As of the date of this recommended order, Petitioner has not contacted the Division of Administrative Hearings, in writing or by telephone, to explain her failure to appear at the hearing.
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 Petitions for Relief in these consolidated cases. DONE AND ENTERED this 26th day of January, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2011. COPIES FURNISHED: Kimberly D. Dotson 825 Briandav Street Tallahassee, Florida 32305 Kim M. Fluharty-Denson, Esquire Department of Financial Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary Kowalski Department of Financial Services Human Resource 200 East Gaines Street, Suite 112 Tallahassee, Florida 32399 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent, AAR Airlift Group, Inc. (Respondent), committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Gabriel C. Gaudio (Petitioner), be granted.
Findings Of Fact Petitioner is a male over 50 years of age. On or about May 9, 2009, a company located in North Carolina hired Petitioner to work as a Technical Publications Clerk. Petitioner was over 40 years of age at the time of his employment. Prior to March 2012, Petitioner relocated to Florida to continue employment with the company that then became known as AAR Airlift Group, Inc. Respondent does business in Melbourne, Brevard County, Florida, and has over 15 employees, one of whom was Petitioner. At all times material to this matter, Respondent employed Steve Lane (Lane) and Melvin Zahn (Zahn) as supervisors with the company. At all times material to the allegations of this case, Respondent had policies that prohibit discrimination on the basis of age, disability, and any other reason prohibited by law. Any employee who believed discrimination had occurred was directed to report to the local Human Resources Department or to the Corporate Vice President of Human Resources. Respondent’s employees are considered “at will.” Respondent reserves the right to involuntarily terminate any employee for any reason or for no reason unless to do so would violate law. Petitioner maintains he was terminated in retaliation for a complaint he submitted because of his age, or because of his disability. All of the actions complained of occurred between March 2012 and June 2012 (when Petitioner was terminated). It is undisputed that Petitioner’s age would establish he is a member of a protected class. It is undisputed that Petitioner was terminated after he submitted a complaint against his co-workers. Although Petitioner asserted he is disabled, Petitioner presented no evidence to establish the nature of his disability or that Respondent required him to perform tasks contrary to his physical or mental limitations. There is no evidence that Respondent failed to accommodate any claimed limitation Petitioner might have had. In April 2012, Respondent issued a Performance Improvement Plan (PIP) to Petitioner to outline areas of his job performance that needed improvement. It was anticipated that Petitioner would address the areas of concern and make improvement within 90 days. Upon receipt of the PIP Petitioner filed a claim of hostile work environment with the company’s human resources office. More specifically, Petitioner claimed two employees, Zahn , technical publications manager, and Rachel Grygier (Grygier), a technical publications librarian, had disparaged him regarding his age and disability. To address Petitioner’s complaint, Respondent initiated an internal investigation of the claim. As part of the investigation process, Respondent directed Petitioner not to disclose or discuss the accusations of his claim with anyone. Respondent sought to resolve the matter without having the allegations discussed among employees before individual statements could be taken. Contrary to the directive, Petitioner discussed his complaint against Zahn and Grygier with at least one other employee. That employee (Barnett) e-mailed support for Petitioner to JoAnne Paul (Paul), Respondent’s human resources compliance manager. When Paul confronted Petitioner as to whether he had discussed his complaint with Barnett, Petitioner falsely denied knowing Barnett. Paul took Petitioner’s failure to maintain confidentiality regarding his complaint to Lane, Respondent’s director of quality assurance and internal evaluations. Together, Paul and Lane decided to terminate Petitioner. The basis for the termination was two-fold: the failure to follow a directive not to discuss the complaint; and the lack of truthfulness when asked about knowing Barnett. Petitioner maintains that his termination was in retaliation for his complaint against Zahn and Grygier and that the company wanted him out. Petitioner presented no evidence that after his termination he was replaced with a younger employee. Even though Petitioner did not establish the nature of his disability, Petitioner presented no evidence that he was replaced by a non-disabled person or that his handicap caused Respondent to terminate him. Further, Petitioner did not establish that any area of concern noted in his PIP related to his disability. Neither Zahn or Grygier had anything to do with Petitioner’s termination. Finally, Petitioner failed to present credible evidence that filing a complaint against Zahn and Grygier was the genesis for his termination. Petitioner was a long-time employee with the company. He had started in North Carolina and moved to Melbourne with the company. Had Respondent wanted to terminate him for any reason it could have done so prior to the move or after the move. Petitioner’s claim that his complaint against Zahn and Grygier caused the termination is not supported by the weight of persuasive evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 31st day of May, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 31st day of May, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Gabriel Gaudio 259 Abernathy Circle, Southeast Palm Bay, Florida 32909 Chelsie J. Flynn, Esquire Ford and Harrison, LLP Suite 1300 300 South Orange Avenue Orlando, Florida 32801 Michelle Wilson, Executive Director Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment discrimination practices alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is an African-American male. At all times pertinent to this case, Petitioner was employed by Respondent as an equipment operator in the golf course maintenance department. Respondent has been employed by Respondent for approximately 20 years. Respondent is a golf and country club.1/ Respondent's employment policies are contained in its "Employee Handbook."2/ The Employee Handbook provides that a "[v]iolation of any of the rules or policies set forth in this Handbook may lead to discipline, up to and including immediate discharge." Respondent's Employee Handbook contains a section on absenteeism and tardiness, which provides in pertinent part as follows: Excessive absenteeism or tardiness can result in discipline up to and including discharge. If you are going to be late or absent from work for any reason, you must personally notify your Supervisor as far in advance as possible (but no later than 2 hours before your scheduled start time) so proper arrangements can be made to handle your work during your absence. Of course, some situations may arise in which prior notice cannot be given. In those cases we expect you to notify your Supervisor as soon as possible. Leaving a message, sending a text, or having someone else call on your behalf, does not qualify as notifying your Supervisor- you must personally contact your Supervisor. If you are required to leave work early, you must also personally contact your Supervisor and obtain his/her permission. Absences of more than one day should be reported daily, unless you have made other arrangements with your Supervisor or the Human Resources Office. (emphasis in original). * * * Although an employee may be terminated at any time for failing to report to work without contacting the Club, if an employee fails to report for work or call in for three (3) consecutive calendar days they will be considered to have abandoned their job and will be terminated. Respondent's Employee Handbook also contains a provision concerning workplace violence. Employees are notified that, "[v]iolations of this policy may result in disciplinary action, up to and including termination of employment." The workplace violence policy provides in pertinent part: The Club has a zero tolerance policy regarding violent acts or threats of violence against our employees, applicants, members, vendors, or other third parties. We do not allow fighting or threatening words or conduct. We also do not allow the possession of weapons of any kind on the Club's premises, except as required by law. No employee should commit or threaten to commit any violent act against a co-worker, applicant, member, vendor, or other third party. This includes discussions of the use of the dangerous weapons, even in a joking manner. May 3, 2013, Incident On May 3, 2013, Petitioner was not at work, but rather, performing work for a resident in the community. Petitioner's vehicle was apparently parked on the wrong side of the road. Mike Jones, a security guard, advised Petitioner to move his vehicle or he was going to receive a ticket. Petitioner informed Mr. Jones that he was not going to receive a ticket, and followed Mr. Jones back to the guard gate. Thereafter, Petitioner and Mr. Jones became engaged in "some words." According to Petitioner, after the verbal altercation he left the guard gate. On May 4, 2013, Petitioner presented to work and performed his duties. The following day, May 5, 2013, Petitioner was arrested for the May 3, 2013, incident and charged with battery on a security officer. Petitioner testified that the arrest occurred in Mike Ballard's office.3/ Mr. Ballard was Petitioner's superintendent at some point in his employment. Beth Sandham, Respondent's Human Resources Director, was not present at the time of arrest. Petitioner remained in custody throughout May 6, 2013. When Petitioner did not appear for work on May 6, 2013, Ms. Sandham credibly testified that the Human Resources department, as well as his supervisors, attempted to contact Petitioner. After several attempts to reach him by phone, Respondent sent a letter to Petitioner via Federal Express.4/ Petitioner testified that he contacted his supervisor on May 6, 2013, and was advised that he had been terminated. Petitioner contends that his termination was racial in origin because Respondent did not obtain his account of the altercation prior to his termination. On this point, Petitioner testified as follows: That why I say this is a racist thing because they listen to what their two security guards say, but they never gave me the chance to explain myself. On May 6, 2013, Ms. Sandham terminated Petitioner's employment on the grounds of failing to report to work and the alleged violent behavior. As an additional basis for alleging racial discrimination, Petitioner testified that Mike Ballard was a racist. Specifically, Petitioner testified that on one occasion he overheard Mr. Ballard advise another employee, Jeff Beneclas, to "[t]ell that nigger mind his own f***en business." Petitioner explained that Mr. Ballard was referring to him. Mr. Beneclas was terminated on June 25, 2010. Addressing this allegation, Ms. Sandham explained that, if the alleged statement had been made over Respondent's radio system, said statement would have been heard by the tennis department, the golf professionals, facilities maintenance, the superintendents, and golf course maintenance. Ms. Sandham credibly testified that neither Petitioner nor any other employee notified her of such a statement or made a complaint. Additionally, Ms. Sandham credibly testified that Petitioner never made a complaint to her regarding Mr. Ballard.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief against Wycliffe Golf and Country Club. DONE AND ENTERED this 16th day of April, 2015, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE 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 April, 2015.
The Issue The issue is whether Respondent engaged in an unlawful employment practice by retaliating against Petitioner for filing a charge of discrimination.
Findings Of Fact Petitioner, Jacques Pierre (Petitioner or Mr. Pierre) is black and his national origin is Haitian. He has worked in the United States for 24 years. On or about January 25, 2006, Mr. Pierre filed with the Equal Employment Opportunity Commission (EEOC) a charge of discrimination against his employer, Respondent, SSA Security, Inc., a/k/a Security Services of America, a California Corporation (Respondent or SSA). SSA, under a subcontract with a federal government contractor, Alutiiq-Mele, provided security services for a federal building in Miami. SSA continued to employ Petitioner as a security guard when it took over the contract from his previous employer, Superior Protection. Contractors and managers changed, in the past, but the security guards stayed the same. On August 10, 2006, and August 15, 2006, first Mr. Pierre, then a representative for SSA signed an agreement to settle the EEOC complaint. With a letter dated August 23, 2006, Mr. Pierre received a settlement check in the amount of $1,257.04, and he was advised to report any future unlawful harassment or discrimination charges by use of a "Harassment Hotline and [to] speak with your local area manager, Barry Hirsch [sic]." Captain Barry Hersch was Mr. Pierre's immediate supervisor. The agreement was approved, in principle, by Kent Jurney, Sr., an SSA corporate officer. The language of the agreement is, in relevant part, as follows: Removal of all Disciplinary Notices in File. Company agrees to remove all writings related to disciplinary actions taken against Employee from Employee's personnel file maintained by the Company. Employee understands that the removal of said documents does not prevent the Company from issuing disciplinary notices and/or taking disciplinary action against Employee as necessary in the future should Employee violate the Company's rules of [sic] policies. * * * 4. Confidentiality Clause. The Employee and the Company agree to the following confidentiality and non-disclosure agreement: (a) The parties represent and agree that they will keep the terms and amount of this agreement completely confidential. The parties will not hereafter disclose any information concerning this agreement to anyone, including but not limited to, any past, present or prospective employee of the Company or any prospective employer of the Employee. On August 25, 2006, the federal government changed the requirements in the contract. No longer would security guards be allowed to take breaks at the start or end of their shifts, but only during the middle. Mr. Pierre was made aware of the change. In violation of the requirement, on September 1, 2006, Mr. Pierre took his break at the end of his shift. The federal government contract also prohibited security guards from being on the work premises more than 30 minutes before or after their shifts. On August 28, 2006, Mr. Pierre returned to his work site and entered the building more than 30 minutes after his shift to retrieve keys and a telephone charger. Mr. Pierre also got into a loud and profane argument with another worker during his unauthorized return to the building. Mr. Pierre admitted he had an incident where he got into an argument with and "fired back" at a supervisor in 1995 or 1996. Beginning on or about July 10, 2006, Petitioner began to request, but initially was denied, leave. Mr. Pierre was feeling threatened and harassed by his supervisors and was suffering physically as a result. On a form dated August 25, 2006, Mr. Pierre said he was requesting leave from September 11 to September 25, with a return date of September 27, 2006. Spaces on the form to indicate whether it was approved or disapproved, and by whom are blank. As the reason for the request, Mr. Pierre indicated "stress related: as a result of retaliation.” This time, Captain Hersch, approved the request and Mr. Pierre went on vacation in September 2006. On September 5, 2006, as instructed by Mr. Jurney, another Miami supervisor, Bill Graham, issued a memorandum to Mr. Pierre requiring him to attend a mandatory meeting "about several important issues and notifying him of his "temporary removal from the schedule until this meeting has taken place." Copies of the memorandum were sent to Mr. Jurney and Captain Hersch. The evidence is insufficient to determine if other security guards who violated the same rules were subjected to the same consequences, or if discipline was uniformly applied. Mr. Pierre requested, either through his supervisor, Captain Hersch, or directly to Mr. Graham, that the attorney who handled his EEOC complaint and settlement agreement be allowed to attend the meeting with him. Mr. Jurney denied the request. Because he never attended a meeting, Mr. Pierre remained "off the schedule." For the remainder of 2006 and in early 2007, he was working part-time only at his second job with the State Department of Corrections. Mr. Pierre's income was reduced from $15 an hour ($17 minus $2 for insurance) for 40-hour weeks with SSA, plus $1,000 every two weeks from Corrections to only his Corrections pay. The evidence is insufficient to determine how long Mr. Pierre was, or if he still has, a lower income and what, if any, efforts he has taken to secure alternate employment to mitigate damages. SSA supposedly notified Mr. Pierre, in a memorandum dated September 22, 2006, that he was suspended without pay for two weeks for his rule violations and his failure to attend the mandatory meeting. The authenticity of the memorandum was questioned, and no witnesses testified to sponsor it or to explain why it was necessary, given the fact that Mr. Pierre was already "off the schedule." On October 3, 2006, Mr. Pierre filed a charge of retaliation with the Florida Commission on Human Relations which, on July 2, 2008, found that reasonable cause existed to believe that an unlawful employment practice had occurred. In the fall of 2006, Mr. Pierre applied for a job with the Miami-Dade Corrections and Rehabilitation Department (Miami- Dade). It was his understanding that his background investigation had been successfully completed, but that SSA had not responded to a reference form. Mr. Pierre took the form to SSA. The form, dated October 4, 2006, was completed by Captain Hersch, who responded, in relevant part, as follows: Reason for termination (voluntary/fired)? NON APPLICABLE Describe the applicant's work performance. GENERALLY ACCEPTABLE Describe the applicant's attendance record. GOOD OVERALL Was the applicant ever disciplined for any reason? If YES, please explain. YES CONFIDENTIAL." Is applicant able to work well with others? YES Is applicant trustworthy? YES Describe applicant's work habits? KNOWS HIS JOB, AND DOES IT Is applicant eligible for re-employment? If NO, please explain why. STILL EMPLOYED There is no explanation why Captain Hersch mentioned the confidential agreement, but not the subsequent disciplinary actions that were the focus of concern to Mr. Jurney and Mr. Graham, which could have been disclosed without violating the agreement. Based on the earlier assurances from Miami-Dade, Mr. Pierre, having put "no" when asked about discipline of his job application, believes the contradictory response from SSA caused him not to get the job. He received a letter informing him, but without giving specific reasons, that he was not hired by Miami-Dade. He failed to prove the correctness of his belief. Mr. Pierre testified, but presented no supporting evidence, that he could have earned up to $120,000 a year with Miami-Dade. SSA received notice on the second anniversary of its contract, in October 2006, that the federal government contract would not be renewed. Some time in 2007, most likely in February, at Mr. Pierre's request, he met with Mr. Jurney. It was not until that meeting, Mr. Pierre remembered, that Mr. Jurney had someone remove pre-settlement discipline records from his personnel file. By that time, SSA no longer had a contract with the federal government and was transferring its personnel over to work for the next contractor, Alutiiq. Mr. Pierre asked to be transferred and Mr. Jurney testified that he contacted someone at Alutiiq and asked for Mr. Pierre to be interviewed, but the evidence is insufficient to support a finding that SSA attempted to transfer Mr. Pierre to Alutiiq, or what the routine procedures were for transferring security guards. When Mr. Pierre found out that the necessary paperwork was never sent from SSA to Alutiiq, he tried unsuccessfully for two or three weeks to contact SSA. It is reasonable to believe that SSA, while not allowing Mr. Pierre to work, would not help him transfer over to the next contractor. Mr. Pierre was not transferred and was not employed by Alutiiq. Mr. Jurney testified unconvincingly that he made non-federal contract job offers to Mr. Pierre and Mr. Pierre found the offers acceptable, “but he didn’t accept them.” It is inconceivable that Mr. Pierre, who has three children to support and a wife who works part-time, would have rejected any legitimate job offer at that time. Mr. Pierre and Mr. Jurney, a former highway patrol trooper and member of an advisory board for the Florida Highway Patrol, discussed Mr. Pierre’s desire to be a trooper. Mr. Jurney offered to assist him but that employment never materialized. As a corporate officer, Mr. Jurney was responsible for overseeing hundreds of contracts involving 1,500 employees. He was senior to Mr. Graham and Captain Hersch. Yet, once he authorized the EEOC settlement, he became directly involved in the decision-making concerning discipline and consequences for Mr. Pierre. There is no evidence that Mr. Pierre had ever come to his attention before he approved the settlement.
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 directing that Respondent cease the discriminatory employment practice evidenced in this case and awarding Petitioner back pay at the rate of $15.00 an hour for each normal 40-hour work week between September 5, 2006, and the date of the final order, offset by earnings from substitute employment, if any. DONE AND ENTERED this 27th day of January, 2010, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 27th day of January, 2010. COPIES FURNISHED: 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 Ronald G. Polly, Esquire Hawkins & Parnell, LLP 4000 SunTrust Plaza 303 Peachtree Street, Northeast Atlanta, Georgia 30308-3243 Jacques Pierre 19601 Northwest 12th Court Miami, Florida 33169 Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
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 CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on his race.
Findings Of Fact In February 2006, Respondent hired Petitioner, an African-American male, knowing that he had a criminal record. Respondent employed Petitioner as a porter. Respondent employed other African-American and Caucasian people as porters, housekeepers, and janitors. Initially, Respondent paid Petitioner $7.25 per hour. Respondent was impressed with Petitioner's enthusiasm and willingness to perform physically demanding work. Respondent gave Petitioner a reward for always being on time and not being absent. Respondent eventually raised Petitioner's salary to $10.00 per hour or $400 per week. Respondent gave Petitioner the promotion so that he and his wife could qualify for a mortgage. Respondent helped Petitioner pay off his wife's credit card debt for the same reason. After Petitioner and his family moved into their new home, Carol Collett, Respondent's Caucasian General Manager, helped Petitioner furnish the house. Ms. Collett also attended the christening of Petitioner's new baby. Ms. Collett tried to help Petitioner as much as she could because she believed that everyone deserves a second chance. At all times relevant here, Petitioner worked the night shift when there was no supervisor on the premises. Petitioner's position required Ms. Collett's trust because his duties included taking care of the front desk. From approximately June 2007 through November 2007, Petitioner worked an average of 62 hours per week with no overtime compensation. There is no persuasive evidence that the other porters, Caucasian and/or African-American, were paid more than Petitioner or for overtime work. Petitioner never requested a raise, but he did request to work as a janitor. However, Petitioner presented no evidence that a janitor's position was available. More importantly, Petitioner lacked the skills to perform janitorial/maintenance work for Respondent. In time, Ms. Collett noticed a change in Petitioner's behavior. On one occasion, Petitioner's wife informed Ms. Collett that Petitioner had not come home with his pay check. On or about November 3, 2007, Ms. Collett confronted Petitioner about his declining job performance and his suspicious activities involving hotel guests. Petitioner denied that he was using or selling drugs or that he brought hookers to the job site. During the conversation, Petitioner began to cry, stating that he had let Ms. Collett down. Petitioner said that he "would rather to go back jail where life was easier and he would not have the pressure of daily life." Ms. Collett did not have a chance to terminate Petitioner because he left voluntarily. Petitioner came back to the hotel one time to pick up his last pay check. At that time, Ms. Collett confronted Petitioner about some money that was missing from the front office. The office had been locked the night before, but someone had entered it through the ceiling from the adjoining room. Petitioner could not find another job. He is now in prison.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 27th day of May, 2009, 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 27th day of May, 2009. COPIES FURNISHED: Kenneth W. Johnson, DC #646344 Gulf Correctional Institution 699 Ike Steele Road Wewahitchka, Florida 32465 Jerome D. Mitchell, Esquire Riggio & Mitchell, P.A. 1326 South Ridgewood Avenue Suite 8 Daytona Beach, Florida 32114 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed one or more unlawful employment practices against Petitioner as alleged in the subject Petition for Relief.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was an employee of Respondent with permanent status in the state career service system. Petitioner began his employment with Respondent on February 26, 2001, and was assigned to the Lake Worth area until his employment was terminated on January 30, 2009. During his tenure with Respondent, Petitioner worked as a K-9 officer as the handler of a dog trained to detect drugs. Petitioner was frequently involved with high-risk traffic stops. Petitioner received a “meets standards rating” on his most recent performance evaluation. Prior to the events that led up to this proceeding, Petitioner had no history of being disciplined by Respondent. Dr. Richard Marques specializes in internal medicine and treats a broad spectrum of medical issues including endocrine problems. He has been Petitioner’s physician for eight years. Prior to September 2003, Petitioner began to experience fatigue, irritability, and low energy. Petitioner testified that he slept up to 16 hours some days. During that time, and at all times relevant to this proceeding, Petitioner was working his assigned duties. Those duties included a 40-hour shift plus occasional overtime, primarily on weekends. At the request of Dr. Marques, on September 12, 2003, Petitioner presented for blood work at LabCorp, an independent, reputable, testing lab. From the results of the testing, Dr. Marques determined that Petitioner suffered from low testosterone levels or a condition known as hypogonadism. Dr. Marques recommended that Petitioner seek treatment for his testosterone deficiency from a physician or facility specializing in problems of the endocrine system. Dr. Marques did not recommend a particular physician or facility to Petitioner. Instead, Dr. Marques left that decision to Petitioner. Dr. Marques contemplated at the time of his recommendation that Petitioner would be examined in a hospital or other medical facility by a doctor specializing in the endocrine system. Dr. Marques testified that there are two types of hypogonadism, with one type originating from the adrenal gland and the other originating from the pituitary gland. Testing of the type an endocrinologist would do in a testing facility such as a hospital is required to determine the source of the testosterone secretion. Dr. Marques referred Petitioner for further evaluation because he does not do the type of testing that an endocrinologist does. After reading an advertisement in a magazine for a facility named PowerMedica in January 2004, Petitioner sought treatment from that facility. After reviewing PowerMedica’s website, Petitioner concluded that it was a licensed medical facility and submitted a form medical history. In response to his submittal, someone purporting to be from PowerMedica instructed Petitioner to submit a blood sample for analysis by LabCorp. Petitioner complied with that request. Thereafter, Petitioner received a telephone call from someone at PowerMedica who purported to be a doctor. Following that telephone conversation, Petitioner received at his home via Federal Express a shipment that contained testosterone, which is an anabolic steroid. An anabolic steroid is, pursuant to the provisions of Section 893.03(3)(d), a Schedule III controlled substance. Section 893.13(6)(a), Florida Statutes, provides as follows: (6)(a) It is unlawful for any person to be in actual or constructive possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice or to be in actual or constructive possession of a controlled substance except as otherwise authorized by this chapter. Any person who violates this provision commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. At no time relevant to this proceeding did Petitioner enter the building that housed PowerMedica, nor was he physically examined by anyone associated by PowerMedica. Petitioner followed up with Dr. Marques while Petitioner was taking the anabolic steroids. Dr. Marques considered Petitioner’s treatment to be appropriate. Dr. Marques saw no signs that Petitioner was abusing the anabolic steroids, and noted that Petitioner’s condition improved. Petitioner stopped receiving anabolic steroids from PowerMedica in October 2004. Dr. Marques wrote a note on September 22, 2003, reflecting, in relevant part, the following: “. . . given the severity of his high viral titer,4 I have asked him to change his night shift duty to day time.” After Petitioner requested that he be reassigned to day-time duty and presented that note to his superiors, Respondent reassigned Petitioner to day duty. At all times relevant to this proceeding, Petitioner was able to perform his job duties. Other than the request for a change from the night shift to the day shift, Petitioner did not tell Respondent that he was having difficulties performing his duties. At no time prior to his interview on July 10, 2008, which will be discussed below, did Petitioner tell Respondent that he was taking anabolic steroids, that he suffered from low testosterone levels, or that he suffered from hypogonadism. At no time did Petitioner request that he be evaluated to determine whether he was fit for duty. In early 2005, it became public knowledge in south Florida that the U.S. Food and Drug Administration (USFDA), working in conjunction with the Broward County Sheriff’s Office (BCSO), was investigating PowerMedica based on allegations that it had unlawfully sold steroids and Human Growth Hormones. As part of its investigation, the USFDA seized records pertaining to PowerMedica’s customers. There was no evidence that any information seized by the BCSO or the USFDA was illegally seized. The joint investigation culminated in the closure of PowerMedica’s operations. In March 2008, a sergeant and a lieutenant employed by Respondent and assigned to its Professional Compliance Bureau met with a sergeant employed by BCSO. During that meeting, the BCSO sergeant showed Respondent’s employees a list containing PowerMedica’s customers. That list contained Petitioner’s name. At Respondent’s request, in April 2008, the USFDA provided copies of records to Respondent that had been seized from PowerMedica. That information provided details as to Petitioner’s dealings with PowerMedica. On July 10, 2008, Petitioner was subjected to a formal interview by representatives of the Respondent. In that interview, Petitioner admitted his dealings with PowerMedica and, while denying any wrongdoing, admitted the material facts set forth above pertaining to those dealings. Petitioner declined to divulge the underlying condition for which he sought treatment. Further, Petitioner acknowledged that Dr. Marques had informed him that his insurance company would likely not pay for his treatment from PowerMedica or for similar treatment. Specifically, Petitioner admitted that he obtained testosterone without being examined by a PowerMedica physician, he admitted that he knew about the investigation and subsequent closure of PowerMedica, and he admitted that he knew the reasons for the closure of PowerMedica. Petitioner admitted that he never volunteered to come forward to Respondent or any other law enforcement agency to discuss his dealings with PowerMedica. Petitioner referred to himself as a victim of PowerMedica’s fraudulent practices, but he admitted that he never advised Respondent prior to his interview that he had been a victim of PowerMedica. On September 9, 2008, Respondent assigned Petitioner to administrative duty that was to be served at Petitioner’s residence from 8:00 a.m. to 4:00 p.m. Monday through Friday. The letter advising Petitioner of this assignment and setting the parameters for the assignment, included the following, beginning at the second full paragraph: You will remain on administrative duty until further notice. This action is being taken based upon the fact you are under investigation by this agency. You are to turn in all of your assigned division equipment including uniforms, badges, firearms, any department identification, and other division property. Your approval to work off-duty police employment (ODPE) and/or any type of agency secondary employment has been withdrawn for the duration of the administrative duty. Your eligibility to resume OPDE/secondary employment will be reviewed by your troop commander at the conclusion of the administrative duty assignment. Your failure to comply with this directive will subject you to disciplinary action. On November 14, 2008, Petitioner filed his Complaint of Discrimination with the Florida Commission on Human Relations. After that date, but before his termination, Petitioner requested permission to be able to work as a driver for Federal Express during hours other than the hours he was serving his administrative duties. Respondent denied that request. While Petitioner asserts that the denial was in retaliation for his filing the Complaint of Discrimination, that assertion is based on supposition. Petitioner presented no direct evidence to support his assertion and any circumstantial evidence is insufficient to establish the assertion. By letter dated January 14, 2009, and received by Petitioner on January 20, 2009 (the termination letter), Respondent terminated Petitioner’s employment. Approximately 20 days after his termination, Respondent retrieved from Petitioner the dog that Petitioner had handled for approximately three years. Petitioner asserts that Respondent took his dog in retaliation for his amending his Complaint of Discrimination to include a claim of retaliation relating to the denial of the request to work part-time for Federal Express. Again, Petitioner’s assertion is based on supposition and is not supported by direct or circumstantial evidence. The termination letter, which is part of Petitioner’s Exhibit 11, sets forth extensive factual allegations pertaining to Petitioner’s dealings with PowerMedica as the basis for the termination. The letter also set forth the statute and policies that Petitioner had allegedly violated. The letter cited the following as “Aggravating Circumstances”: This case is aggravated because through your training, work experience, and knowledge of the law you are held to a higher standard of reasonableness and conduct. You should have been well aware of the stigma attached to the type controlled substances you purchased and used, especially Petitioner points to Respondent’s characterization of anabolic steroids as having a “stigma” as evidence that Respondent discriminated against him based on his disability. That argument is without merit. The greater weight of the credible evidence established that Respondent terminated Petitioner’s employment based on its determination that Petitioner had unlawfully obtained and consumed a Schedule III controlled substance without obtaining a lawful prescription and because he failed to come forward with information about PowerMedica after he knew that PowerMedica was being investigated by the USFDA and the BCSO. Petitioner did not establish that Respondent’s articulated reasons for its employment decision were pretexts for an unlawful employment practice. Indeed, there was no evidence that as of the date of the termination letter, Respondent knew the nature of Petitioner’s medical condition, or that it had any reason to perceive him as being disabled.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 23rd day of November, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue Whether Respondent terminated Petitioner's employment in violation of the Florida Civil Rights Act of 1992 (Florida Civil Rights Act or the Act).
Findings Of Fact Petitioner was employed by Respondent at various times beginning in February 1999 and ending in her termination effective September 30, 2004. Respondent is an employer within the meaning of the Florida Civil Rights Act. At all relevant times, Respondent is in the hotel business. Respondent provides related services and amenities to its guests and to the general public, including a restaurant and bar on the hotel premises. Petitioner commenced her employment with Respondent as a waitress and was eventually promoted to bartender. At all relevant times, she worked under the supervision of Kurt Pfister (Pfister). At no time prior to the commencement of her employment, nor at any time during her employment, did Petitioner advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Likewise, Petitioner never advised Respondent that she had ever been diagnosed, treated, or hospitalized for any medical condition or disability. In fact, as Petitioner herself admits, she first claimed to be disabled approximately two weeks after she was terminated. Petitioner, as well as all of Respondent's employees, were trained in and required at all times to follow all of Respondent's policies and procedures generally applicable in its workplace. Additionally, every employee was trained in and expected to comply at all times with all policies and procedures applicable to his or her particular job. Violation of any of Respondent's policies or procedures subjected an employee to disciplinary action ranging from counseling to termination. As a bartender, Petitioner was trained and responsible for taking food and beverage orders; to present patrons with their bill(s); and to collect an approved form of payment, including cash. With regard to cash, Petitioner was trained in Respondent's policies and procedures known as "cash control policies." Cash control policies included a specific process for reconciliation of cash and tips at the end of each shift and a process for making cash drops and filling out deposit logs. Petitioner and all similarly situated employees were required to comply with cash control policies and were subject to disciplinary action up to and including termination if they failed to do so. Petitioner was qualified for her bartending position, and from the beginning of her employment through September 16, 2004, Respondent was well satisfied with Petitioner's work. Petitioner was often called upon to train new bartenders with regard to Respondent's policies, including cash control policies. She did so very well. For her efforts, Petitioner achieved the status of Respondent's most senior bartender, and as a reward was given the best shifts. Respondent enforced a policy against smoking on its grounds, except that smoking was permitted in a small, outside area at the south end of the premises. Petitioner was well familiar with the smoking policy and to Respondent's knowledge, complied with it until September 16, 2004. On that date, Petitioner was discovered smoking in a liquor storage room located inside the hotel building. She was given a written reprimand. Apart from the smoking infraction, Petitioner's September 16, 2004, shift was uneventful. She gave no indication to her customers or supervisors that she was in distress or could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job. Yet, on that night, Petitioner failed to follow cash control policies at the end of her shift. Of most concern to Respondent was that Petitioner left work with her cash sales short for the evening in the amount of $97.64. On September 17, 2006, Pfister learned of the policy violations and the attendant cash shortage; he thereupon contacted Petitioner by telephone. Petitioner again did not indicate to Respondent that she could not perform her duties on account of disability or any other reason, nor that she required any type of accommodation(s) to perform her job and to comply with cash control policies. Petitioner conversed normally with Pfister and acknowledged that she had the $97.64 belonging to Respondent. Although she was not scheduled to work again until September 21st, she agreed to meet with Pfister and to return the money on September 19, 2004. Petitioner did not show up for the meeting. Neither did she return the money, or contact Pfister to advise when, or if, she would return the money. Respondent was entitled, at that point, to treat the matter as a theft; to terminate Petitioner's employment; and to seek law enforcement's assistance in recovering its money. Instead, Respondent exercised forbearance and gave Petitioner an indefinite suspension to afford her additional time to return the money and to explain to Pfister her reason(s) for failing to follow cash control policies on September 16, 2004. Respondent enforced a policy it called the no-call, no-show rule. Under the rule, employees are required to provide Respondent with four hours’ notice if for any reason they are unable to report on time for a scheduled shift. Absent extraordinary circumstances, which do not exist here, failure to provide the required notice is ground for disciplinary action. On September 21, 2004, and again the next day, Petitioner failed to report for her scheduled shift(s). She also failed to fulfill the four-hour notice requirement of the no call, no-show rule. For these two violations of the no-call, no-show policy, Petitioner was given a written warning. On September 23, 2004, Petitioner telephoned Pfister from an undisclosed location and advised she could not work previously scheduled shifts for the balance of the week. At first, Petitioner claimed she wanted time off on account of her “health.” Pfister offered her the opportunity to submit medical documentation in support of her request. At that point Petitioner stated that she was not seeing a doctor(s), and further stated that she was out of the state with her boyfriend. Petitioner added that she did not care about the hotel; that she was going to take care of herself first. Pfister responded that Petitioner should call him upon her return to town because the issue concerning the $97.64 could not remain unresolved. In the course of this conversation, Petitioner did not advise Respondent that she was disabled in any way, or that she required any type of accommodation(s) for any medical condition or disability in order to perform her job. Petitioner's next contact with Respondent was on September 29, 2004, when Petitioner called Pfister and said she was back in town and wanted to meet with him. It was agreed the meeting would take place the following day at 1:00 p.m. and would also be attended by Rick Reilly (Reilly), Respondent’s senior vice president. Petitioner did not arrive at the appointed time and did not call to explain her absence. Instead, she arrived at 2:10 P.M. Petitioner smelled of alcohol; she swayed, staggered, and slurred her speech. She was profane and belligerent. Petitioner again failed and refused to return Respondent's money or to explain why she took the money. As previously and repeatedly noted, Petitioner did not take this opportunity to advise Respondent that she was disabled in any way, or required any type of accommodation(s) for any medical condition or disability in order to perform her job. She did, however, state that she was "not coming back" and demanded a paycheck and vacation pay. Reilly asked her if she was resigning and she replied, "I guess so." Fearing that Petitioner would attempt to deny or to retract her ambiguous resignation when she sobered up, Pfister and Reilly made a reasonable determination, based upon legitimate non-discriminatory business reasons, to terminate her employment effective September 30, 2006. The termination was not pretextual. There was no evidence regarding who, if anyone, replaced Petitioner. There was no evidence Petitioner was, at any time, treated less favorably than any similarly situated co- worker on account of her membership in any protected class, or for any other reason. Petitioner did not dispute that Respondent had no reason, at any relevant time, to believe she needed accommodations of any sort to perform her job. On October 15, 2004, Pfister received a fax from Petitioner requesting a "leave of absence, medical reason." In apparent support thereof, Pfister also receive a fax purporting to be from a doctor and further purporting to provide a medical explanation for Petitioner's request for "leave of absence, medical reason." In the latter fax, a representation was made that Petitioner was presently hospitalized for "an undetermined amount of time" due to "depression symptoms for the last several month (sic) in context of stressors related to her job and impending hurricanes." This information, such as it was, was untimely and was insufficient to cast doubt upon the bona fides of Petitioner's termination. On November 1, 2004, Petitioner came to Pfister's office to pick up her check(s) and, at last, to return Respondent's money. She made no comment or complaint regarding any alleged disability; neither did she indicate in any way that she believed herself to be a victim of discrimination. In sum, Petitioner could have been terminated as early as September 16, 2004, for legitimate non-discriminatory business reasons. There is no persuasive evidence that disability played any role in Petitioner's termination. Indeed, there was no persuasive evidence that Petitioner was, at any time, disabled within the meaning of the Act, or within the meaning of any other state or federal law. There was no evidence that Petitioner was replaced by a non-disabled individual, nor that she was, at any time, treated less favorably than any similarly situated co-worker.
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 argument of the parties, it is RECOMMENDED that the FCHR issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of November, 2006, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 November, 2006.
