NICASIO G. RAMOS, )
vs. ) CASE NO. 91-4385
Respondent. )
280. He referred to Mr. Ramos as a "gook," a "dago" (T.85) and "that Mexican." T.96.
A "long time before" (T.42) it happened, Billy Franklin Reynolds heard Mr. Ellis "say that he was going to get rid of Nick Ramos as soon as he got in a position to do that." T.42. Another co-worker, Harold Ross Daughtery, heard Mr. Ellis say that "whenever he got to be in charge . . . the first one he would fire would be Mr. Ramos." T.44. Harold Eugene Floyd heard Mr. Ellis say "if he ever got to be boss, he would run [Mr. Ramos] off." T.68, 74.
Mr. Curry, who heard Mr. Ellis make such remarks (T.77-8) four or five times (T.82), "didn't figure he was joking." T.83. Unlike Mr. Curry (or Mr. Floyd who was uncertain), Messrs. Reynolds and Daughtery testified that they did not take seriously Mr. Ellis' threat to get Mr. Ramos fired. But, in this regard, events proved Mr. Ellis' sincerity. 1/
Mr. Ellis' used racial or ethnic epithets repeatedly to refer to petitioner. Perhaps that is what led Mr. Ramos to ask him one day why he did not like him. When, in the course of the same conversation, Mr. Ramos asked Mr. Ellis whether he had "ever met any Mexicans that [he] like[d]," (T.256) Mr. Ellis answered abusively, in the negative.
If Mr. Ward left Mr. Ellis in charge of the landfill, many of the men loafed inside a shed while Mr. Ramos continued working, doing "the dirty stuff" (T.256) that Mr. Ellis assigned him. On such occasions, Mr. Ramos was often "the only one picking up papers or being in the pit, pulling tires out" (T.255) of garbage. T.86.
At hearing, nobody except Mr. Ellis had anything unfavorable to say about Mr. Ramos' job performance. In fact, Mr. Ramos did a good job despite the unfair treatment he received at Mr. Ellis' hands. Petitioner was never disciplined, counseled or warned about his work performance even by Mr. Ellis. T. 251.
Highly reliable, he "worked in the tire pit" (T.252) the day after the doctor drained his knee. On another occasion, to avoid infection, he wanted to follow his doctor's advice to take "a couple of days" (T.252) off after he had some "lumps" surgically excised. But, even though he arranged to swap shifts with Dewey Collinsworth, Mr. Ellis refused to allow the exchange, and Mr. Ramos reported for work.
Reduction In Force
In the summer of 1989, the Walton County Commission decided to reduce expenses by discharging County employees. T.11. It fell to Charles R. "Ronnie" Hudson who, as Walton County's public works director for the last three and a half years, reports directly to the Walton County Commission, and is responsible for (among other things) the County's landfill, to lay off landfill workers.
Mr. Hudson asked Mr. Ward, the landfill supervisor, to list four employees he could do without (T.151) and to "make an evaluation on the men . .
. [explaining] that there was going to probably be a layoff." T.91. The "next day probably," (T.216) Mr. Ward gave Mr. Hudson a written list and evaluation, Petitioner's Exhibit No. 2, and "told him [he] could get by with three men laid off, but . . . couldn't get by with any more than that." T.220.
They talked about the three men Mr. Ward had selected. When Mr. Ward handed Mr. Hudson the list and evaluation, he understood Mr. Hudson to agree
that "there needed to be three men laid off" (T.220) instead of four. On one page and a fraction of another (T.153) from a legal pad, Mr. Ward had written:
Clarence Hobbs Harold Daughtry
Earl Robinson NO COMPLAINT
Earl Griggs ON THESE MEN
John Mann KEEP THESE MEN Dewey Collinsworth
Nick Ramos
E.B. Phillips Billy Reynolds
Clarence Hobbs truck driver
Harold Daughtry operator
Earl Robinson operator
Earl Griggs clerk and signs maker Dewey Collinsworth clerk and sign maker John Mann operator
Nick Ramos operator
John Curry truck driver or Lee S. Campbell
I need to keep 8 of these men until something changes
need men [fo]r now Johnny Peters
E.B. Phillips night guards Billy Reynolds
I need to keep these men for now if I use another man to replace one of the Night Guards it will short me to[o] bad.
We can let 3 men go but any more than that will short me to[o] much when something change[s] I can get by with less men Harold Floyd - operator
Not dependable calls in sick a lot and has been siding around on roads and don't give notice until the day he is going to be off and won't do any thing unless we tell him to
do something and don't look after the equipment at all
John Curry - operator
a good worker but keeps confusion between the other men and that causes lot of trouble he has already got one complaint form turned in on him
Lawton Mathews - garbage truck
he is a good worker and reports to work but he is old enough to retire he is failing fast he works with Clarence Hobbs on Garbage truck
Petitioner's Exhibit No. 2. On what may have been the other part of the second or evaluation sheet of Petitioner's Exhibit No. 2, see Appendix A, 2/ Mr. Ward wrote:
Lee S. Campbell Garbage truck he has been parked at his house on truck when he was on job it takes him to[o] long to go from box to the other and don't see after his truck to[o]
good but he shows up to work good Johnny Peters - Night Guard
he has had one complaint form turned in on him becuase there was about 48 or 50 gallons of Fuel went missing out of the DU cat ? on the night he was there
Respondent's Exhibit No. 2. Whatever Respondent's Exhibit No. 2's origin, Mr. Ward did not give it to Mr. Hudson.
Mr. Ward did not and would not have recommended Mr. Ramos' layoff, even if convinced that four men had to be laid off. If Mr. Hudson had asked him to suggest a fourth candidate for a layoff, Mr. Ward would have suggested John Scott Mann, (T.214) or so he testified at hearing. 3/ Later on, when Mr. Ramos asked, Mr. Ward told him not to worry about being laid off.
Having "heard there was a layoff coming" (T.244), Mr. Ramos also spoke to Walton County Commissioner Wilson Holley, and asked him if there were vacancies on the road crew he supervises. Commissioner Holley, who had known Mr. Ramos for several years and had employed him on a road crew for about a week once, when over 16 inches of rain fell and "they needed some help," (T.242), told petitioner "that he had been checking up on [him], that [he] was doing good out there and not to worry about it." T.244.
Meanwhile, without discussing the matter with Mr. Ward, Mr. Ellis also prepared and furnished Mr. Hudson a list of names and evaluations. Three of the evaluations had a familiar ring but the fourth was all Mr. Ellis' work:
Harold Floyd:
Not dependable. Days out of work, and when he is out, he does so without notice. In my opinion when he is at work, he don't give 100%. His work ability if fair.
John Curry:
He keeps confusion among the men and also between the foreman and the asst. foreman. He has also been written up once concerning the matter. His work ability is good.
Nick Ramos:
Was hired on as a laborer, then transferred to chipping machine, then to sign machine. He's been on the sign machine four weeks now, and he's not catching on to it very fast. I
have tried him on the equipment, and he didn't catch on to it either. His work ability is fair.
Lawton Mathews:
He is eligible for retirement. He has talked about retiring. His work ability is fair.
We may talk to him about cutting back and he may go ahead and retire.
Petitioner's Exhibit No. 3. Mr. Hudson recommended that the Walton County Commission let all four men go. Mr. Ramos did not stop to pay for his coffee on his way out of the restaurant to see Ronnie Bell the morning the news broke.
Like other men who were fired, Mr. Ramos first learned about the decision when he read about it in the newspaper on July 12, 1991.
Not Rehired
Mr. Bell, Walton County's administrative supervisor, had nothing to do with the decision to discharge Mr. Ramos, and told him as much. Mr. Ramos then left Mr. Bell's office in the courthouse annex for the landfill where Mr. Ward assured him he had not recommended his layoff. When he tried to talk to Mr. Ellis about it, "he walked off and he mumbled something." T.247.
Mr. Ramos and the three other landfill employees laid off at the same time received official notification in letters dated July 13, 1989, that their employment would end on July 31, 1989. Mr. Mathews decided to retire. The letter to Mr. Ramos stated:
Please be advised that if any openings become available in the future for which you are qualified, you will be one of the first considered to fill that opening.
Petitioner's Exhibit No. 5. Mr. Ramos again sought out Commissioner Holley to ask for work, and also approached Commissioner W. F. "Rabbit" Miles, asking him if work was available.
Some weeks after the layoff, Commissioner Holley telephoned with news of an opening for a night guard at the landfill. The next day, petitioner spoke first to Mr. Bell then to Mr. Hudson, to whom Mr. Bell referred him, about the position. Mr. Hudson said he knew nothing about an opening, but suggested Mr. Ramos check back. Mr. Ramos returned that afternoon, the next morning and every morning thereafter "for about a week." T.161, 247.
Each time Mr. Hudson professed ignorance of the job vacancy, until the last time, when he told Mr. Ramos that "they had done hired Harold." T.249. Not only was Mr. Hudson in fact aware of the opening, he was actively recruiting to fill it. He offered the job to John Curry (T.184), who turned it down because he had found other, better-paying work. "Why don't you call Nick?" Mr. Curry asked Mr. Hudson at the time. "I wouldn't hire him back," was Mr. Hudson's answer. T.87. Harold Floyd got the job. T.163.
Complaint Filed
Mr. Ramos retained a lawyer who wrote the Walton County Commission on August 4, 1989, requesting petitioner's reinstatement, or in the alternative, a grievance hearing. Petitioner's Exhibit No. 9. (The request was never honored, although a like request by a non-Hispanic employee was.) Harold Burkett began work as a night guard on September 13, 1989. Petitioner's Exhibit No. 14. On November 8, 1989, Mr. Ramos filed a complaint with the Florida Commission on Human Relations.
The number of "personnel at the landfill now [not counting prisoners assigned to work there after County employees were laid off (T.270)] is roughly fifty per cent of what it was at the time of Nick and them's layoff." T.175 But Walton County has "replaced, . . . transferred . . . [and] hired," id., employees at the landfill since then, rehiring Harold Floyd temporarily and adding Harold Burkett, Danny Burgess, Timmy Ray Jones and Russell Floyd, all "white Americans" given jobs for which petitioner is qualified, or would have been (T.257) but for his wrongful termination.
Messrs. Burgess, Jones and Russell Floyd began work after County officials learned that Mr. Ramos had complained to the Florida Commission on Human Relations. Asked why petitioner was not offered the job given to Mr. Burgess, who was hired as an equipment operator, Mr. Hudson testified that there was no reason "that I know of, you know, other than - - well, no one ever said anything about Nick, you know, being interested . . . ." T.172. In fact, Mr. Hudson was well aware that petitioner wanted a job with Walton County government, as were Mr. Ellis, who succeeded Mr. Ward as landfill supervisor, Mr. Bell and more than one county commissioner.
Asked why petitioner was not offered the job Mr. Russell Floyd was given, Mr. Hudson said he knew of no reason. T.173. Commissioner Miles told Mr. Ramos 4/ that Commissioner Sam Pridgen "wouldn't hire [him] back . . . since [he] had filed a complaint against the County." T.284-5. Commissioner Holley testified, "Nick has a record of suing people that he's worked for and that weighs heavy on people's mind, I would imagine." T.310. (No Walton County Commissioner ever said anything to petitioner about his race. T.285.)
Lost Wages
County employees got a four percent raise on October 1, 1989, another four percent raise on October 1, 1990, and a three percent raise on October 1, 1991. The County made unspecified contributions to the Florida Retirement System at all pertinent times. For single employees, the County paid monthly insurance premiums of $120.10 in 1989, $123.66 in 1990 and $132.12 ($126.62 +
$5.50) in 1991. Petitioner's Exhibit No. 3. Assuming no promotions and only cost of living raises, if petitioner had continued working for the County in the same position through the date of the final hearing, he would have received pay and insurance benefits totalling $33,015.60.
Instead, after Mr. Ramos lost his job, he mowed grass, cut trees down, painted houses, washed cars and did other odd jobs to make what money he could. T.251, 282. He earned about $2,000 from such jobs in the last five months of 1989. His 1990 income was more than $2,800 but less than $2,900; and his 1991 income was "three thousand." T.282. He has been unable to find regular employment, but has "never been on food stamps or any kind of assistance." T.251.
Before the final hearing began, one of petitioner's two attorneys, Mary Koch Polson, had reasonably expended 14.95 hours, Petitioner's Exhibit No. 16, pursuing this claim, and costs aggregating $234.49 had reasonably been incurred. Petitioner's Exhibit No. 17. Ms. Polson bills her time at $125 an hour, and the reasonableness of this rate was not called into question. (Mr. Ramos paid his first attorney $1500, but the reasonableness of this fee was not stipulated and has not been established by evidence.) Aside from the first attorney's fees, prehearing costs and fees aggregate $1868.75.
CONCLUSIONS OF LAW
Since FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991) and Rule 22T-8.016, Florida Administrative Code, "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).
Florida law forbids any employer, defined as any person "employing 15 or more employees for each working day in each of 20 or more calendar weeks in
the current or preceding calendar year," Section 760.02(6), Florida Statutes (1991), to
discharge or to fail or refuse to hire any individual or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment, because of such individual's race, color . . . [or] national origin.
Section 760.10(1)(a), Florida Statutes (1991). Walton County is an employer, within the meaning of the Human Rights Act of 1977, as amended, 5/ just as a state agency is an employer for purposes of the Act. Department of Corrections
v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).
The County's original or preliminary decision to cut its work force or to substitute prisoners was the legitimate exercise of one of its "traditional management prerogatives," Steelworkers v. Weber, 443 U.S. 193, 207 (1979), and petitioner has not contended otherwise. Respondent asserted and the evidence showed that petitioner was one of four men whose employment was terminated with a view toward reducing County expenditures.
Unlawful Discharge
But respondent was not free, in selecting who would be allowed to keep his job and who would be discharged, to discriminate among County employees on the basis of race or national origin. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. E.g., Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA 1986).
Petitioner Ramos, like plaintiffs in Title VII actions, "bear[s] the burden of persuasion on the ultimate fact of discrimination." Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982). He met this burden initially by proving facts making out a prima facie case that he was discharged and otherwise discriminated against on account of race, color or national origin. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981); Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Petitioner made out a prima facie case of unlawful termination by proof that he belongs to a protected class, and that he lost his job while similarly situated persons not in the protected class kept theirs. Under the cases, respondent needed only to articulate a legitimate, nondiscriminatory reason for petitioner's termination, in order to place upon petitioner the burden of proving that the asserted reason was pretextual.
Assuming respondent can be said to have articulated a reason for petitioner's discharge, 6/ petitioner proved that "the proffered reason was not the true reason for the employment decision," Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981) to lay petitioner off; and went on to "satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision." Department of Corrections v. Chandler, 582 So.2d 1183, 1186 (Fla. 1st DCA 1991) (On Reh.)
Although the Walton County Commission voted for the layoff, authority to select petitioner for discharge was effectively delegated to James Ellis. Mr. Ellis "more likely than not" chose petitioner because of his prejudice against "Mexicans," which extended to native-born Americans of Mexican ancestry with petitioner's racial characteristics. Petitioner's job performance cannot account for the decision. Except for Mr. Ellis' discredited testimony, the evidence consistently portrayed Mr. Ramos as perhaps the most diligent County employee at the landfill.
Failure to Rehire
Petitioner alleges that the County's refusal to rehire him when positions came open after the layoff was both a product of prejudice against Mexican Americans and a reaction to his having hired a lawyer to seek redress for his unlawful discharge. It is "an unlawful employment practice for an employer . . . to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section
. . . " Section 760.10(7), Florida Statutes (1991).
Evaluation of petitioner's wrongful nonhire claim requires much the same analysis as the wrongful discharge claim requires. McDonnell Douglas Corp.
Green, 411 U.S. 792 (1973). The McDonnell Douglas Court held that a claimant could prove a prima facie case by showing
that he belongs to a racial minority;
that he applied for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.
411 U.S. at 802. Petitioner proved that he belonged to a protected class; that he took the necessary steps to be considered for rehire by the County for positions for which he was qualified (and, indeed, that the County informed him in writing that he would be considered); that, despite his qualifications, he was rejected; and that, after his rejection, the positions remained open until filled by applicants outside the class.
In order to prevail on the retaliation claim, petitioner has the burden, as set out in Canino v. Unites Stated Equal Employment Opportunity Commission, 707 F.2d 468 (11th Cir. 1983), to show that he
. . . had engaged in statutorily protected activity; (2) that the employer has take an adverse employment action; and (3) a causal connection exists between the two. Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980) cert. den. 450 U.S. 979, 101 S. Ct. 1513, 67 L. Ed. 2d 814 (1981).
707 F.2d at 471. Petitioner engaged in "statutorily protected activity" when he retained counsel to pursue his wrongful discharge claim and when he filed a complaint with the FCHR alleging discrimination in his discharge. The County took "adverse employment action" in failing to rehire him.
The Walton County Commission has final authority in hiring, and Commissioner Holley tried to help petitioner in his efforts to be rehired. But Mr. Hudson's recommendation was of paramount importance regarding jobs at the landfill, and the evidence established that Mr. Hudson decided early on that he would not recommend petitioner for rehire. Asked why, he claimed, in one instance, that he did not know petitioner was interested in the job, but this testimony was not credible.
In another instance, he said he knew of no reason why petitioner was not rehired. This falls short of the respondent's obligation to "clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff's rejection." Texas Department of Community Affairs v. Burdine, 450
U.S. at 255. In other instances, reasons were articulated, including a purported unwritten policy with regard to rehiring "that the ones that were hired the longest kind of gets the first shot at the job," (T.185) and, at least implicity, Mr. Ellis' assessment of petitioner's job performance, but these reasons were shown to be pretextual. Mr. Hudson decided that the County would not rehire petitioner, not that he would be rehired once Messrs. Curry and Harold Floyd had been offered jobs.
Relief
Petitioner is entitled to "affirmative relief," Section 760.10(13), Florida Statutes (1991), including reinstatement, and wages and benefits he lost on account of his wrongful discharge, offset by "interim earnings or amounts earnable with reasonable diligence." 42 U.S.C. s. 2000e-5(g). Marks v. Prattco, Inc., 633 F.2d 1122 (5th Cir. 1981); Sias v. City Demonstration Agency, 588 F.2d 692 (9th Cir. 1978); Sprogis v. United Airlines, 517 F.2d 387 (7th Cir. 1975).
If he had been hired to fill the slots Mr. Burgess or Mr. Russell Floyd filled, he would have earned even more than if he had continued in the position from which he was wrongfully discharged. But petitioner might never have applied for either of those positions if he had been able to keep the job he had; and he has not claimed these additional lost wages. Respondent did not prove that petitioner was less than reasonably diligent in mitigating lost wages.
Back pay amounts to liquidated damages, readily calculable, pay period by pay period. Under Florida law, interest should be computed on each increment from the date it would have been paid, if petitioner had not been wrongfully discharged. Argonaut Insurance Co. v. May Plumbing, 474 So.2d 212 (Fla. 1985); Department of Health and Rehabilitative Services v. Boyd, 525 So.2d 432 (Fla. 1st DCA 1988); Truck and Trailer Sales Corp. v. Carolina Freight Carriers Corp., 500 So.2d 177 (Fla. 1st DCA 1986).
Even if back pay were not viewed as liquidated damages, interest should be allowed. Florida Department of Insurance, Division of Risk Management
v. Tuveson, 543 So.2d 245 (Fla. 1st DCA 1989); Department of Health and Rehabilitative Services v. Boyd, 525 So.2d 432, 433 (Fla. 1st DCA 1988) ("interest . . . is a relief flowing naturally from a finding of liability and is necessary for complete compensation"). The federal cases also teach that prejudgment interest is an appropriate means for "fashioning of the most complete relief possible." Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975); Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1562 (11th Cir. 1986).
That the FCHR enter a final order (a) directing respondent to rehire petitioner as soon as an opening arises that he is qualified to fill that pays at least $5.95 an hour plus benefits; (b) awarding back wages (net of offsets) in the amount of twenty-five thousand, two hundred fifteen dollars and fifty- nine cents ($25,215.59) plus interest; (c) awarding costs and fees in the amount of eighteen hundred sixty-eight dollars and seventy-five cents ($18,868.75); and
(d) awarding such additional amounts as are necessary to compensate him for lost wages including interest until he returns to work with the County or spurns a suitable offer, plus attorney's fees and costs reasonably incurred since the final hearing began.
DONE and ENTERED this 24th day of April, 1992, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1992.
1/ Much of Mr. Ellis' testimony at hearing was unworthy of belief, however; and it has not been credited on several key points.
2/ Appendix A is nothing more than the juxtaposition of Petitioner's Exhibit No. 2 and Respondent's Exhibit No. 2.
3/ A person of obvious integrity, Mr. Ward was unable to remember every detail of what transpired. If Respondent's Exhibit No. 2 was originally a continuation of Petitioner's Exhibit No. 2, it suggests Johnnie Peters might have ranked fourth after Lee S. Campbell, an alternate for third. Mr. Hudson's testimony at
T.154 has not been credited.
4/ Commissioner Miles' testimony that he did not make this statement has not been credited.
5/ The Florida Civil Rights Act of 1992 "applies only to causes of action accruing on or after October 1, 1992." Chapter 92-177, s. 11, Laws of Florida (1992).
6/ The mere fact of the layoff does not explain why or how employees were selected to be laid off, and reasons articulated for the layoff did not purport to explain the selection. Although not sworn to by Mr. Ellis, arguably implicit
in the list of four employees he drew up, Petitioner's Exhibit No. 3, is the contention that these four employees were contributing least to the enterprise.
Petitioner's proposed findings of fact Nos. 1 through 15 have been adopted, in substance, insofar as material.
Respondent's proposed findings of fact Nos. 1, 10, 11, 12 and the last sentence of No. 14 have been adopted, in substance, insofar as material.
With respect to respondent's proposed findings of fact Nos. 5, 6 and 7, the evidence showed that petitioner gained substantial experience in operating all the machinery at the landfill, including the bulldozer. Respondent did show that petitioner's knowledge of the bulldozer was limited, but there was clear evidence that he know how to use it to cover garbage with dirt and that he had significant experience doing this. Nothing suggested that operating a bulldozer at the landfill required using more than three forward gears or operating the bulldozer at top speed, or that the equipment operator was responsible for maintenance.
Mr. Hudson, told Mr. Curry he would not hire petitioner even as a night watchman. When asked at hearing why petitioner was not offered the equipment operator's job Russell Floyd was given, Mr. Hudson could think of no reason. Petitioner testified he needed only another "couple of months" experience to gain the same proficiency other equipment operators he worked with had.
With respect to respondent's proposed finding of fact No. 8 the evidence showed that petitioner was the last hired of the four men laid off on July 31, 1989. Lawton Mathews, perhaps the first hired, retired and never sought reemployment. T.60. John Curry was offered reemployment, as was Harold Floyd, who accepted. T.163. Mr. Hudson decided that he would not rehire petitioner, not that he would rehire him last.
With respect to respondent's finding of fact No. 9, it was not clear when the "two other minorities" began work.
With respect to respondent's proposed finding of fact No. 12, John Curry's testimony has been credited.
The second sentence of respondent's proposed finding of fact No. 14 is rejected as unsupported by the evidence.
With respect to respondent's proposed finding of fact No. 15, see findings of fact Nos. 15, 16 and 17.
P.O. Box 96
ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.
