STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BEYERS, )

)

Petitioner, )

)

v. ) Case No. 99-5112

)

AERO CORPORATION, d/b/a )

TIMCO-LAKE CITY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case on April 21, 2000, by video teleconference, using video sites located in Tallahassee, Florida, and Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Suzanne F. Hood.

APPEARANCES

Petitioner: William Beyers, pro se

8415 Forge Place

Pensacola, Florida 32514

Respondent: Harley H. Jones, Esquire

Edwards, Ballard, Clark, Barrett & Carlson, P.A.

Post Office Box 1708

Winston-Salem, North Carolina 27102-1708 STATEMENT OF THE ISSUES

The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful

employment act against Petitioner contrary to Section 760.10,

Florida Statutes.

PRELIMINARY STATEMENT

On February 7, 1997, Petitioner William R. Beyers (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). Said charge alleged that Aero Corporation had refused to employ Petitioner based on his age.

In December of 1998, Aviation Sales, Inc. purchased Aero Corporation. Aero Corporation ceased to exist after being merged into Triad International Maintenance Corporation (TIMCO), a subsidiary of Aviation Sales, Inc. TIMCO defends this action as the successor in interest to Aero Corporation. Hereinafter, TIMCO shall be referred to as Respondent Aero Corporation, d/b/a TIMCO-Lake City (Respondent).

On October 29, 1999, FCHR issued a Determination: No Cause in this case. Petitioner filed a Petition for Relief with FCHR on November 30, 1999. FCHR issued a Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice on December 3, 1999. FCHR referred this matter to the Division of Administrative Hearings on December 6, 1999.

The Division of Administrative Hearings issued an Initial Order on December 9, 1999. An Amended Initial Order was issued on December 27, 1999, because Petitioner did not receive a copy

of the Initial Order. The parties did not file a response to the Amended Initial Order.

A Notice of Hearing by Video Teleconference dated January 27, 2000, advised the parties that a formal hearing would be held on April 21, 2000.

On March 24, 2000, Respondent filed a Motion to Show Good Cause for Delay in Filing Answer and Motion to Dismiss, Answer of Respondent Timco, and Motion for Recommended Order of Dismissal for Lack of Jurisdiction. Petitioner did not file responses to these pleadings. Respondent has shown good cause for failing to file a timely answer and motion to dismiss.

By order dated April 13, 2000, Respondent's Motion for Recommended Order of Dismissal for Lack of Jurisdiction was denied.

On April 17, 2000, Respondent filed a Motion to Appear Pro Hac Vice. That motion is hereby granted.

At the hearing on April 21, 2000, Petitioner testified on his own behalf and offered one exhibit, which is hereby accepted into evidence. A copy of Petitioner's exhibit is attached to the Transcript of the proceeding filed on April 26, 2000. It is accepted into evidence solely for the purpose of showing that, as late as August 27, 1999, Matthew B. Clement, Investigation Specialist with FCHR, was communicating with Petitioner regarding the processing of his complaint.

Respondent presented the testimony of one witness and offered four exhibits, which were accepted into evidence. Under cover of a letter dated April 21, 2000, the undersigned provided the parties with copies of Respondent's Exhibits R1-R4.

The court reporter filed a copy of the transcript on April 26, 2000.

On May 2, 2000, Petitioner filed a Proposed Recommended Order. Petitioner attached a copy of an unsigned letter dated April 8, 1999, to his proposed order. The letter purports to be addressed to Mr. Schnell and FCHR. It refers to a fact-finding meeting in Panama City, Florida, chaired by Robert Jones, during which Petitioner signed a paper giving him the right to sue and removing FCHR from handling the case. In the letter, Petitioner requested FDLE to cancel the paper giving him the right to sue.

There is no indication that Petitioner served Respondent with copies of his post-hearing submittals. Accordingly, notice is hereby given of ex parte written communications from Petitioner, copies of which are attached hereto.

On May 15, 2000, it became apparent that a copy of Respondent's Exhibit Number R1 was missing from the record. Respondent filed a copy of that exhibit on May 17, 2000, by facsimile transmission, at the request of the Division of Administrative Hearings. As stated above, Petitioner received a

copy of this exhibit, entitled Aero Corporation Plant Clearance, under cover of a letter dated April 21, 2000.

FINDINGS OF FACT

1. S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics.

2. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees.

3. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft.

4. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts

   researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee.

5. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time.

6. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters.

7. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts.

8. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job.

9. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the

   person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking.

10. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in

    March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site.

11. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance.

12. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996.

13. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner.

    At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T.

14. Competent evidence indicates as follows:

    
    

    (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins

    never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr.

    Perkins never made any statement relating to Petitioner's age;

    
    

    (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR.

15. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Sections 120.569, 120.57(1), and 760.11(4)(b), Florida Statutes.

17. The first issue is whether Petitioner's Petition for Relief is barred as untimely. Pursuant to Section 760.11(3), Florida Statues, FCHR has the duty to investigate complaints of discrimination and make a determination of cause or no cause within 180 days after the filing of the complaint. A complainant must request an administrative hearing within 35 days after FCHR makes a determination of cause or no cause. Sections 760.11(6) and 760.11(7), Florida Statutes. Under Section 760.11(8), Florida Statutes, a complainant may proceed as if FCHR had made a determination of cause when it fails to

    conciliate or determine cause within 180 days after the filing of the complaint.

18. Even though Section 760.11(3), Florida Statues, mandates that FCHR make its determination of cause or no cause within 180 days of the filing of the complaint, this time constraint is rarely met. FCHR usually does not make the determination until months or years after the 180 days has run. When FCHR makes the belated determination, it normally advises a complainant to file a Petition for Relief within 35 days after the determination or else the claim will be barred.

19. In light of the strict time constraints found in Sections 760.11(6) and 760.11(7), Florida Statutes, the question arises whether it is permissible to file a request for an administrative hearing (as opposed to the filing of a civil action) after FCHR makes a belated determination. The courts have not squarely addressed this issue. Arguably however, a complainant can request a hearing after FCHR issues a belated determination; otherwise, FCHR's failure to make a determination within the statutory time frames would foreclose relief to innocent victims who allow FCHR to process their complaints and, through no fault of their own, find their claims barred.

20. In this case, Petitioner filed his complaint on February 7, 1997. FCHR's 180-day period expired on August 6, 1997, without a determination of cause. Petitioner then had

    until September 10, 1997, to request an administrative hearing within the 35-day period. He did not file his request for a hearing until November 30, 1999, 810 days after the 35-day period expired and 32 days after FCHR issued its determination of no cause on October 29, 1999.

21. The April 8, 1999, letter attached to Petitioner's Proposed Recommended Order indicates that at some point in time, Petitioner may have elected to deprive FCHR of jurisdiction and to proceed with a civil suit or an administrative proceeding. However, the letter also indicates that Petitioner sought to rescind this decision. The record is clear that as late as August 27, 1999, FCHR was attempting to complete the processing of Petitioner's complaint.

22. At the hearing, Petitioner argued that he had repeatedly contacted FCHR, urging it to complete its investigation, and that FCHR would not return his calls or respond to his certified letter. According to Petitioner, FCHR did not complete its investigation and make a determination of cause until after he contacted his state legislator and his federal congressman.

23. Petitioner has failed to establish excusable neglect, which might, under some circumstances, excuse a delinquent filing. However, Petitioner has shown that he may have been lulled into inaction by his expectation that FCHR was processing

    his complaint and that he would have an opportunity to request an administrative hearing even after a belated determination. Therefore, Respondent's motion to dismiss should be denied.

24. Petitioner has not met his burden of proving that Respondent discriminated against him based on his age. Petitioner's allegations are based solely on double hearsay.

25. There is no competent evidence of the following:

    
    

    (a) that AAR ever offered Petitioner a job; (b) that Respondent's employee refused to issue Petitioner an identification card so that he could work for AAR on Respondent's property; (c) that Respondent's employee, Dick Perkins, told AAR's representative not to hire Petitioner because he was too old; (d) that AAR hired a younger person who was equally qualified for the position at issue; (e) that AAR hired an "outside applicant" as opposed to a current employee to fill the position of parts researcher during the "winding down" phase of the contract with Kitty Hawk.

26. Mr. Perkins denies that he ever made a discriminatory statement about Petitioner. The written statement of Keith Wild corroborates the testimony of Mr. Perkins.

27. Finally, Petitioner did not establish that AAR was related or affiliated with Respondent. To the contrary, persuasive evidence indicates that Respondent had no influence over AAR's decision to hire or not to hire Petitioner. There

was no causal connection between any alleged statement or action by Respondent and AAR's employment decision not to hire Petitioner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED

That Petitioner's Petition for Relief be dismissed. DONE AND ENTERED this 26th day of May, 2000, in

Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2000.

COPIES FURNISHED:

William Beyers 8415 Forge Place

Pensacola, Florida 32514

Harley H. Jones, Esquire Edwards, Ballard, Clark, Barrett

& Carlson, P.A. Post Office Box 1708

Winston-Salem, North Carolina 27102-1708

Dana A. Baird, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM BEYERS, )

)

Petitioner, ) CASE NO. 99-5112

) FCHR NO. 97-0795

V. )

) AEROCORPORATION, d/b/a ) TIMCO LAKE CITY, )

)

Respondent. )

)

PROPOSED RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before Judge Suzanne F. Hood, duly-designated Administrative law judge of the Division of Administrative Hearings, on March 24, 2000, Pensacola, Florida.

APPEARANCES

For Petitioner: WILLIAM BEYERS, ESQUIRE

8415 FORGE PLACE

PENSACOLA FL 32514

For Respondent: HARLEY H. JONES

N.C. STATE BAR No. 16172

EDWARDS,BALLARD,CLARK, BARRETT AND CARLSON,P.A.

P.O. Box 1708

WINSTON-SALEM, NC 27102-1708

Attorneys for Defendant STATEMENT OF THE ISSUES

Motion for recommended order of dismissal for lack of jurisdiction filed by Timco state by the 180th day from the filing of this charge, August 3, 1997, the FCHR had not issued a determination of cause or no cause on the charge filed by Petitioner. I had no control over this, all my files were at the Florida Commission on Human Relations I made repeated calls

and attempts to contact them but nothing was started until sometime in August, 1999. I filed right away but they just let it sit in their office in Tallahassee, F1. from November 1926 until August 1999. They started the investigation only after I contact my U.S. Senator, Connie Mack and Mr. Charles Serlando of the Florida Attorney Generals office and asked them to intervene on my behalf.

PRELIMINARY STATEMENT

My understanding is that I have transcript plus ten to file my Recommended Order and it was mailed at the Pensacola Jordan St. Post Office on May 1, 2000.

I would also like to submit as evidence a letter that I sent to FCHR on April 8, 1999 stating what happened after the fact finding in Panama City, F1. Also stated in that letter is my statement of how the Statement of Mr. Perkins and AreoCorp affected my physical and mental Health.

When the Investigator finally got around to start work on my case in April 1999, three years after I filed in 1996, they expected my witness, Mr. Doug Yarmouth to recall the exact time of the day and the exact words that were said. Mr. Yarmouth's statement that he overheard the remark "We don't want that OLD SON OF A BITCH at AeroCorp." is on file with FCHR. Mr. Yarmouth is a contract Airframe & Powerplant mechanic, he travels all over the world on short contracts and is sometimes hard to contact. However, I recently learned that he is employed full time at TIMCO in N.C.and fell nervous about testifying for fear of what might happen to his job with TIMCO.

FINDING THE FACT

I was flown to AAR in Chicago for an interview with Mr. Bob Sarentino (AAR Director of Sites) Upon leaving Mr. Sarentino's office I was given the folder for AAR retirement and health benefit program with enrollment cards. Within a week I was contacted by telephone by Mr. Bob Sonner from AAR Tech in Garden City, N.Y. and told to get in touch with Keith Wild and he would make all my reservations, hotel, car rental and gate pass. At this time Mr. Sonner said that Wild was at his home on Long Island and would handle everything from there. Later that day, as I had everything packed and was ready to get in my car, I was contacted by Mr. Sonner, by telephone who said he just got off the telephone with Area Corp (no names) and was told they would

not issue me a pass to enter Aero Corp. and my employment was terminated with AAR Tech.

When the call came into the Gate house (where the gate passes are issued) Mr. Doug Yarmouth was on hand along with R. Perkins. Mr. Yarmouth overheard the person on the telephone say my name and heard Mr. Perkins say "We don't want that OLD Son of a bitch at AreoCorp.

Another of my witnesses, Mr. Joe Archer, who was employed By AAR at the time heard from the Chicago office that I was coming to Lake City to work for AAR. I was to take the position in Lake City and Mr. Archer would be relocated to Timco in N.C. which was closer to his home.

CONCLUSIONS OF LAW

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is Recommended that

WILLIAM R. BEYERS

8415 Forge Place

Pensacola, F1. 32514

850,477-3263.

William R. Beyers 8415 Forge PL

Pensacola FL 32514-3814

April 08, 1999

Florida Commission ON Human Relations

325 John Knox Road, Suite 240, Building F Tallahassee FL 32303-4149

Attn. Ron Schnell Dear Mr. Schnell

This letter is in response to our telephone conversation about the events that happened during and after my attending the fact finding meeting in Panama City Court House, Chaired by Mr. Robert Jones,

During the meeting Mr. Jones Told me to sign a paper to give me the right to sue, and remove FCHR from handling my case.

Also I should go to Federal Court, because I would get more money in Federal than what I would get in State. Still to today I don't understand what was meant by me dropping FCHR. It has been going on three(3) years waiting for something to happen.

Now Mr. Jones thinks I should drop FCHR.

Mr. Jones told me to use a lawyer named C. Scoon in Panama City, and she would handle every thing for me, then I got in touch with Ms. Scoon's secretary, who told me before I could talk with Ms. Scoon there is a $55 consultant fee. They then waited until my check cleared before I could talk with Ms Scoon. When the day came for me to finally talk with Ms Scoon, I told her about my case, and she just went on about having 3 small children and don't travel to other cityies to handle cases. It really got me puzzled did Mr. Jones know this or not. Needless to say she. wouldn't handle me. She gave me the names of two lawyers in Gainesville to try, and I did, one was to busy and the other had her phone not working.

Since all this mess started with Aerocorp I have been under doctors care for depression. Being treated by the Pensacola Veterans Adm. Clinc. I figured after waiting nearly 3 years thing should be getting better, what I see is the case is going backwards to where the is no hope to getting this thing resolved some.

One last question that comes to my mine is FCHR responsible for setting up lawyers. And I want FCHR to pick up my case.

While I was at the meeting in Panama City I signed a paper for the right to sue, I do not want this release to go thru, I want it cancelled, I didn't under stand it at the time of signing and still don't understand it. Please Mr. Schneel help me get this all squared away.

Sincerely,

William R. Beyers FCHR #97-0795

Docket for Case No: 99-005112

Orders for Case No: 99-005112