Findings Of Fact Based on the record transmitted to the Division of Administrative Hearings by the Petitioner, the following are found as the relevant facts: The Respondent, Hinson Oil Company, owns four outdoor advertising signs in Gadsden County, Florida, located on the south side of I-10, in the proximity of County Road 270-A. On October 3, 1984, the Department of Transportation notified the Respondent in writing that these signs violated Section 479.11, Florida Statutes, in that they were alleged to be located in an area which is not a zoned or unzoned commercial or industrial area. The return receipt was signed by E. W. Hinson, Jr., on October 9, 1984. Paragraph 2 of the notices of violation served on October 3 and received on October 9, 1984, sets forth the following procedural requirements: You must comply with the applicable provisions of said Statute(s) and Cede(s) within thirty (30) days from the date of this notice, . . . or in the alternative, an administrative hearing under Section 120.57, Florida Statutes, must be requested by you within thirty (30) days of the date of this notice . . . E. W. Hinson, Jr., on behalf of the Respondent, requested an administrative hearing by letter dated November 16, 1984. This request was received by the Department of Transportation clerk on November 19, 1984.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order dismissing with prejudice the Respondent's request for an administrative hearing in each of these cases. THIS RECOMMENDED ORDER entered this 24th day of January, 1985, in Tallahassee, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 1985. COPIES FURNISHED: Philip S. Bennett, Esquire and Maxine Fay Ferguson, Esquire Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301-8064 E. W. Hinson, Jr. Hinson Oil Company P.O. Box 1168 Quincy, Florida 32351 John Curry, Esquire P.O. Drawer 391 Quincy, Florida 32351
The Issue The central issue in this case is whether Petitioner's employment with the Respondent was terminated in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based upon the documentary evidence received at the hearing, the following findings of fact are made: At all times material to the allegations of this case, Petitioner was an employee of FRSA. On or about September 26, 1989, Petitioner's employment with FRSA was terminated and the charges of discrimination were filed. Prior to termination, Petitioner's work performance with the company had been acceptable. In fact, for the performance review issued on January 31, 1989, Petitioner received a superior rating in eight of the eleven categories, a good rating in two categories, and an outstanding rating in one category. At the time of her termination with FRSA, Petitioner earned an annual salary of $35,000. Petitioner claims a total of $83,568 for the lost wages and benefits resulting from her termination with FRSA. At the time of her termination, Petitioner was pregnant.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the charge of discrimination filed by the Petitioner in this cause against the Respondent. DONE and ENTERED this 4th day of September, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 COPIES FURNISHED: Elizabeth Rubeis Reno Rubeis 4350 Wyndcliff Circle Orlando, Florida 32817 Susan McKenna Garwood & McKenna, P.A. 322 East Pine Street Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1992. Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
The Issue The issue is whether the time limit that would otherwise bar Petitioner’s claim of alleged discrimination in violation of Subsection 760.10(1), Florida Statutes (2006),1 is tolled by the doctrine of equitable tolling.
Findings Of Fact Respondent is a public university located in Gainesville, Florida. Petitioner was an employee of Respondent until October 11, 2006, when Respondent terminated Petitioner’s employment on the grounds that Petitioner had allegedly participated in the falsification of employee time records. Respondent deleted Petitioner’s name from the payroll records and stopped paying Petitioner. No continuing employment relationship existed after October 11, 2006. Respondent notified Petitioner of the proposed termination of employment by letter dated August 25, 2006. Respondent conducted two predetermination conferences on September 5 and October 5, 2006. Petitioner was represented by counsel in each predetermination conference.2 Shortly after the termination of Petitioner’s employment on October 11, 2006, Petitioner, through his attorney, filed a grievance against Respondent. The grievance was resolved against Petitioner in a final arbitration decision that was issued on October 3, 2007. Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (the Commission) on December 27, 2007, approximately 442 days after Respondent terminated Petitioner from his employment on October 11, 2006. Subsection 760.11 requires Petitioner to have filed the Charge of Discrimination within 365 days of the alleged unlawful employment practice that occurred on October 11, 2006. A preponderance of the evidence does not support a finding that the factual prerequisites for equitable tolling are present in this case. For the reasons stated hereinafter, a preponderance of the evidence does not show that Petitioner was misled or lulled into inaction, was in some extraordinary way prevented from asserting his rights, or timely asserted his rights mistakenly in the wrong forum. Petitioner did not mistakenly assert his claim of discrimination in the arbitration proceeding. The grievance decided by arbitration did not allege that Respondent discriminated against Petitioner. Nor did Petitioner allege discrimination at anytime prior to the termination of his employment, including the two predetermination conferences. Respondent did not mislead or lull Petitioner into inaction. Respondent did not represent to Petitioner that Petitioner had to wait until the conclusion of the arbitration proceeding before Petitioner could file a claim of discrimination. When Petitioner filed the grievance and participated in the arbitration, Petitioner was represented by counsel. At no time did either Petitioner or his attorney contact Respondent and ask if he could, or could not, file a claim of discrimination during the arbitration proceeding. Respondent did not, in some extraordinary way, prevent Petitioner from asserting his claim of discrimination. Respondent did not delay the arbitration unnecessarily. The delay in the arbitration was caused, in relevant part, by the unavailability of counsel for Petitioner. The first available date for all of the arbitrators was April 19, 2007. On April 17, 2007, one of the arbitrators cancelled the arbitration for medical reasons. The next available date for all of the arbitrators was August 31, 2007. The arbitration hearing occurred on August 31, 2007. The arbitrators issued the decision on October 3, 2007. The Charge of Discrimination which Petitioner filed with the Commission on December 27, 2007, does not raise any fact that was not known to Petitioner before the expiration of 365 days after the termination of employment on October 11, 2006. By July 19, 2006, Petitioner was aware of the facts on which Petitioner bases his claim of a hostile work environment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Charge of Discrimination as untimely for the reasons stated in this Recommended Order. DONE AND ENTERED this 20th day of July, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2009.
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
The Issue The issue is whether this case should be dismissed based on Petitioner's failure to appear at the hearing and apparent intent to withdraw her request for an administrative hearing.
Findings Of Fact The Notice of Hearing in this case was issued on May 22, 2012, setting the hearing for July 17, 2012, at 9:30 a.m., by video teleconference at sites in Tallahassee and Fort Myers, Florida. Also, on May 22, 2012, an Order of Pre-hearing Instructions was entered. Respondent timely complied with the pre-hearing requirements by filing a witness list and exhibit list and tendering its proposed exhibits, all of which were served on Petitioner. Petitioner did not file or exchange a witness list, exhibit list, or proposed exhibits. Petitioner spoke by telephone with a secretary at DOAH on July 16, 2012, the day before the scheduled hearing, and indicated that she had sent a letter withdrawing her hearing request; however, to this day, no such letter has been received. Petitioner was advised to send another written statement confirming that she was withdrawing her hearing request, and she indicated she would do so by facsimile that day. However, no such facsimile was received by DOAH. After hours on July 16, 2012, a typed, but unsigned letter, was sent by facsimile to counsel for Respondent. The letter appears to have been sent by Petitioner and states that she wished to cancel the hearing scheduled for July 17, 2012. Petitioner did not make an appearance at the scheduled hearing at the start time or within 25 minutes after the scheduled start time. While it would have been better practice for Petitioner to file a written, signed statement with DOAH to withdraw her hearing request, it is found that Petitioner intended to withdraw her hearing request, and that is why Petitioner did not appear at the scheduled hearing. Petitioner should have made her intentions clear sufficiently in advance of the scheduled hearing to avoid the inconvenience and expense of convening a hearing by video teleconference and assembling all of those who were prepared to go forward.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. DONE AND ENTERED this 3rd day of August, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 3rd day of August, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Todd Evan Studley, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 Natalie Goldenberg Post Office Box 7388 Fort Myers, Florida 33911
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, whose correct name is AIG Marketing, Inc. is a subsidiary of American International Group, Inc. ("AIG"). Respondent supplies marketing services for AIG. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent as an "insurance consultant" on April 22, 2003. Petitioner resigned her employment by letter dated February 17, 2004. Petitioner's last day at work for Respondent was March 2, 2004. Petitioner worked at Respondent's facility in Seminole County, Florida. An insurance consultant's primary job responsibility is to answer incoming telephone calls from prospective customers seeking information concerning automobile insurance. Respondent has an anti-discrimination and anti- retaliation policy. Respondent has a published policy specifically prohibiting discrimination and retaliation. The policy states that discrimination, including that based upon race and color "is strictly prohibited." The policy states that any employee found to have engaged in any form of discriminatory harassment will be subject to appropriate disciplinary action, up to and including termination. The policy states that Respondent will not tolerate any retaliation against any employee for making a complaint, bringing inappropriate conduct to the Respondent's attention, or for participating in an investigation of an alleged act of harassment. Respondent's management employees support and enforce its policies against discrimination and retaliation. After she was hired in April 2003, Petitioner received training for a period of approximately 10 weeks. Thereafter, on approximately July 1, 2003, she was placed on a "team" with other insurance consultants. The Petitioner's immediate supervisor was Melody Garcia-Muniz. While on Ms. Garcia-Muniz' team, Petitioner also received instruction, also called "coaching," from Nirmala Sookram. Ms. Garcia-Muniz is an Asian female. Ms. Sookram is an Indian female. Approximately one month after she was placed on Ms. Garcia-Muniz' team, on or about August 2, 2003, Petitioner had a confrontation with Ms. Sookram. Thereafter, by correspondence dated August 2, 2003, Petitioner wrote Respondent's Human Resources Office and Ms. Garcia-Muniz complaining of "the work condition, I have been experiencing with team leader Nirmala Sookram." As a result of Petitioner's August 2, 2003, letter, Respondent replaced Ms. Sookram as the team coach with another coach. Respondent also immediately investigated the allegations contained in Petitioner’s August 2, 2003, correspondence. This investigation was conducted by Ms. Garcia-Muniz and another management employee Dawn Bronwnlie. No evidence of discrimination was revealed. In approximately September or October 2003, Petitioner was transferred from Ms. Garcia-Muniz' team to a team supervised by Beverly Swanson. Ms. Swanson is a Caucasian female. This transfer was done pursuant to a reorganization of Respondent's shifts. Respondent had two business practices which are relevant to this matter and which are acknowledged by Petitioner. First, Respondent requires that its insurance consultants respond to in-bound calls from customers as soon as possible. Respondent has a policy prohibiting insurance consultants from making out-bound calls if there are in-bound calls waiting. Out-bound calls would typically be follow-up calls between an insurance consultant and a prospective customer. Second, Respondent has a policy prohibiting one insurance consultant from accessing an insurance quote being worked on by another insurance consultant. This policy is intended to prevent one insurance consultant from "stealing" a customer from another insurance consultant. Petitioner consistently violated Respondent's policy against making out-bound calls when in-bound calls were waiting. She was counseled with respect to this policy on August 5, 2003. Petitioner continued to violate this policy and received a verbal warning on September 19, 2003. The verbal warning confirmed Petitioner had been counseled in August with respect to this policy. The verbal warning confirms that for a 14-day period Petitioner made 649 out-bound calls while only receiving 444 in-bound calls. The verbal warning stated that at no time should Petitioner's out-bound calls exceed her in-bound calls. With respect to Respondent's policy prohibiting one insurance consultant from accessing a quote for a customer of another insurance consultant, Petitioner was advised on November 7, 2003, about the proper procedures to handle such situations. Though Petitioner claimed that she did not know accessing a quote for another insurance consultant's customer was inappropriate until November 7, 2003, she admits that on that date she was so advised and from that date forward knew that it was a violation of Respondent's policies. Nonetheless, on December 10, 2003, Petitioner's then supervisor Ms. Swanson was advised that Petitioner had accessed a quote for another insurance consultant's customer in violation of Respondent's policies. This occurred on December 9, 2003. Two days later on December 12, 2003, another insurance consultant, Steve Mintz advised Ms. Swanson that Petitioner had also accessed one of his insurance quotes. Ms. Swanson investigated and determined that Petitioner had, in fact, violated Respondent's policies by accessing the quote of another insurance consultant's customers. As part of that investigation, Ms. Swanson interviewed Petitioner and reviewed reports. Petitioner's statements were inconsistent with the reports, and Ms. Swanson ultimately determined that Petitioner had been untruthful with her during the investigation. As a result of Petitioner's violation of the policy, on December 16, 2003, Ms. Swanson issued Petitioner a written warning for inappropriate sales conduct. The written warning noted that Ms. Swanson had thoroughly investigated "several" complaints about Petitioner's sales conduct and confirmed that Petitioner had processed sales incorrectly despite several discussions with other supervisors as well as Ms. Swanson. The written warning also confirmed that Petitioner had been untruthful with Ms. Swanson during Ms. Swanson's investigation into this matter. As a result, Ms. Swanson placed Petitioner on a written warning which advised her that should her practices continue, her employment would be terminated. In accordance with Respondent's policies, Petitioner was ineligible to post for a position, switch shifts, or work overtime. Immediately after the December 16, 2003, meeting during which Ms. Swanson issued the written warning, Petitioner contacted Respondent's Human Resources department. As a result, Louisa Hewitt, Respondent's Human Resources professional, undertook an independent investigation to determine the accuracy or inaccuracy of Ms. Swanson's findings which formed the basis for the written warning. Ms. Hewitt is a Hispanic female. Ms. Hewitt's independent investigation determined that Petitioner had, in fact, improperly processed sales and inappropriately accessed quotes. Accordingly, Ms. Hewitt met with Petitioner on December 31, 2003. In attendance was another of Respondent's managers Patricia Brosious. During this meeting, Ms. Hewitt advised Petitioner that the written warning was appropriate. Despite the fact that the December 16, 2003, written warning prohibited Petitioner from switching shifts, Respondent allowed Petitioner to switch shifts in order to allow her to care for an ill relative. This request was received on or about December 21, 2003, and granted on December 22, 2003. Dawn Bronwnlie (one of the Respondent's assistant managers who investigated Petitioner's August 2003 complaint) requested the accommodation on Petitioner's behalf by e-mail dated December 21, 2003, sent to, among others, Petitioner's immediate supervisor Ms. Swanson. Petitioner and Respondent management employee Patricia Brosious were copied on the e-mail. Approximately one month later, Petitioner again requested a shift change. By e-mail dated January 26, 2004, Respondent's management employee Patricia Brosious informed Petitioner of all of the shifts that were open at that time to which a transfer was possible. Ms. Brosious copied Ms. Hewitt and Timothy Fenu on this e-mail. Mr. Fenu is the manager of Respondent's facility in Lake Mary, Florida, and the highest- ranking employee of Respondent at that facility. On January 27, 2004, Petitioner responded to Ms. Brosious' e-mail, which had advised Petitioner of the shifts that were available. In response, Mr. Fenu sent an e-mail to Petitioner advising her that the shifts offered to her were based on business need and current unit sizes. Mr. Fenu advised Petitioner that her response was inappropriate and requested her to advise Respondent if she desired to change shifts. After initially scheduling a meeting with Mr. Fenu, Petitioner canceled the meeting by e-mail dated February 10, 2004. Petitioner resigned her employment February 17, 2004. Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
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 Petitioner's Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cynthia McGee Post Office Box 550423 Orlando, Florida 32855 Daniel C. Johnson, Esquire Carlton Fields, P.A. Post Office Box 1171 Orlando, Florida 32802 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material to this case, the Respondent, Joseph Lawton, was licensed as a registered roofing contractor in the State of Florida, holding license number RC 0052537. At all times material to this case, the Respondent was the qualifying agent for All Florida Systems located in Fort Lauderdale, Florida. The Notice of Hearing was mailed to Respondent at his last known address. Ronald Klein lives at 8245 Northwest Ninety-fifth Avenue, Tamarac, Florida. A portion of the roof on Mr. Klein's residence is flat and a portion is pitched. In the middle of August, 1987, Respondent met with Mr. Klein at the Klein residence to discuss Mr. Klein's roofing needs. Respondent told Mr. Klein during their meeting that the flat portion of his roof needed to be re-roofed and quoted a price for the work that Mr. Klein found acceptable. This was the only meeting between Mr. Klein and Respondent and was the only time Mr. Klein has seen Respondent. There was no written contract between Respondent and Mr. Klein because Respondent did not mail to Mr. Klein a written contract as he had agreed to do. On Sunday, August 30, 1987, Earl Batten, one of All Florida System's workers, re-roofed the flat portion of Mr. Klein's roof. Mr. Klein paid Mr. Batten $1,575.00 for the work pursuant to the verbal agreement between Respondent and Mr. Klein. Mr. Klein made his check payable to Earl Batten because Respondent had told Mr. Klein to pay his worker when the work was completed. Mr. Klein noted on the check that the check was in payment of work done by All Florida Systems. Respondent did not obtain the permits required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the permits required by local law. Respondent did not obtain the inspections required by local law for the work done on the Klein residence. Because there was no agreement to the contrary, it would have been Respondent's responsibility to obtain the inspections required by local law. Mr. Klein's roof began leaking after Mr. Batten completed his work on August 30, 1987. In response to three weeks of repeated telephone calls from Mr. Klein, Respondent sent one of his supervisors to inspect Mr. Klein's roof. The supervisor told Mr. Klein that the work had to be redone because the work on the flat roof had not been properly tied into the remainder of the roofing system. Mr. Klein was further advised by the supervisor that Respondent would be in contact with Mr. Klein. After Respondent failed to respond further, Mr. Klein hired a second roofing contractor who corrected the deficient work in October of 1987 at a price of $1,377.00. Between the time Mr. Batten worked on his roof and the time the second contractor corrected the deficiencies, Mr. Klein sustained damages to his residence which required expenditures of over $1,500.00 to repair. Respondent was previously disciplined by the Construction Industry Licensing Board in Case No. 90265.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding Respondent guilty of having violated Sections 489.129(1)(d) and (m), Florida Statutes, and which imposes an administrative fine against Respondent in the amount of $5,000.00 and places Respondent on probation for a period of one year. DONE and ENTERED this 19th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 20, 22 are adopted in substance; insofar as material. The findings of fact contained in paragraphs 16, 17, 21 of Petitioner's proposed findings of fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Lawton 1000 South Ocean Boulevard Apartment 6C Pompano Beach, Florida 33062 Kenneth E. Easley, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Fred Seely, Executive Director Department of Professional Regulation Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201
The Issue The issue is whether respondent is guilty of an unlawful employment practice as alleged in the petition for relief filed on April 19, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, petitioner, Arthur R. Jones, alleges that in October 1993, when he was fifty-four years of age, he was unlawfully terminated from his position as a welder with respondent, Progress Rail Services, Inc. (PRS), on account of his age. After conducting a preliminary investigation of the claim, the Commission on Human Relations (Commission) concluded that there was no reasonable cause to believe that an unlawful employment practice occurred. Petitioner then filed his petition for relief realleging the same disparate treatment. Respondent is a Florida corporation engaged in the business of refurbishing railroad cars and is located in Green Cove Springs, Florida. Although there is no direct evidence as to the number of persons employed by PRS, through representation of its counsel in his opening statement, it can be inferred that PRS employed fifteen or more employees for each working day in each of twenty or more calendar weeks in the year when the alleged unlawful employment practice occurred, or in the preceding calendar year. After taking a welding test, petitioner began employment with PRS in April 1992. Initially, he worked as a carpenter, but he was later transferred to a "weld out" position. The latter position involved physically demanding work and required petitioner and a co-worker, working as a team, to weld steel tops onto railroad car frames. During petitioner's tenure as a PRS employee, PRS had a progressive discipline policy which provided that an employee would receive a verbal warning, followed by a written warning, which was then followed by placement on probation. The fourth and final step was termination of employment. PRS's absenteeism and tardy policy was based on a point system. Employees received one point for tardy or early leave, and two points for absences. When the employee reached eight points, a verbal warning was given in accordance with the progressive discipline policy. A total of twelve points resulted in a written warning while sixteen points resulted in a period of probation. Eighteen points resulted in termination. On November 17, 1992, petitioner was given his first verbal warning regarding absenteeism. On March 24, 1993, petitioner again received a verbal warning for failing to report to work on time. On the March 24 disciplinary action form, petitioner was admonished by his supervisor to "come to work on time." On May 12, 1993, petitioner was given a written warning for absenteeism. On the disciplinary action form, the supervisor noted that petitioner "need(ed) to improve on come (sic) to work all work day." As of May 24, 1992, petitioner had accumulated seventeen points, and thus he was placed on probation for excessive absenteeism. His supervisor again warned him in writing "not (to) be late or absent," and if he was, "(i)t will result in your termination at (PRS)." All of the foregoing disciplinary actions were taken by supervisor O'Bryant. Sometime after May 24, 1992, petitioner began working under a new supervisor, Thomas M. Martin. On December 12, 1992, petitioner was given a verbal warning by Martin for "not wearing safety shoes." The warning was justified since petitioner was not wearing lace-up safety shoes as required by company policy. In May 1993, petitioner was transferred to a "weld-out" position under the supervision of Randy Cochran. On September 3, 1993, Cochran gave petitioner a written warning for "not doing (the) job assign(ed) to him!" Petitioner had been instructed to clean out a storage boxcar but was found reading a newspaper. He was advised in writing that he "need's (sic) to perform the job assign(ed) to him!" On October 1, 1993, petitioner was placed on probation for poor "work performance" due to not meeting established time standards for a particular job. Specifically, he was charged with "taking too long to do the work" by "spend(ing) 5.0 hours on (a job that) should have taken 2.0 hours to complete." He was told in writing to "(d)o (his) job within the time standards," or face possible "termination." After observing petitioner continually failing to meet established time standards during the next few days, on October 6, 1993, Cochran verbally warned petitioner that unless he "made the time standard" on the job he was working that morning, he would be terminated. When Cochran later observed petitioner "way behind" on his job, petitioner was terminated for poor "work performance." According to the disciplinary action form, petitioner was "not able to complete work within time standards." These time standards were uniformly applied to all welders regardless of age, and the dismissal was in conformity with PRS's progressive discipline policy. There is no credible evidence that PRS was motivated by discriminatory animus when it made this employment decision. Whether petitioner was replaced by another person, and if so, the age of that person, is not of record. When an employee leaves employment with PRS, an exit interview is conducted to identify any problems with employment policies and procedures, including management practices. Complaints made by the employee regarding unfair treatment, such as discrimination, are recorded on the exit interview form. When petitioner was discharged, an exit interview was conducted. During the interview, petitioner made no complaints regarding suspected age discrimination. Petitioner was not employed from the time of his discharge until November 16, 1994. On that date, he began collecting Social Security disability benefits. During the years 1991 through 1994, PRS discharged eighty-one employees. Of those, twenty-four were age forty or over. In 1995, respondent had one hundred fifty-seven employees, of which sixty-one were age forty or older. At hearing, petitioner contended that Randy Cochran, his supervisor from May 1993 until his termination, made discriminatory comments regarding his age. Specifically, petitioner contended that, on more than one occasion, Cochran called him an "old man" and threatened to fire him on account of his age. These allegations, however, are not deemed to be credible and are hereby rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the the Commission on Human Relations enter a Final Order denying the petition for relief. DONE AND ENTERED this 1st day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1996. COPIES FURNISHED: Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Arthur R. Jones Post Office Box 8 Satsuma, Florida 32189 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593 Dana A. Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether disciplinary action should be taken against Respondent's contractor's license based upon the alleged violations of Sections 489.129(1)(h) and (m), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Based upon the oral and documentary evidence adduced at the hearing and the entire record in this proceeding, the following findings of fact are made. At all times pertinent to this proceeding, Respondent was licensed by the Construction Industry Licensing Board (the "Board") as a certified general contractor having been issued License No. CG C024612. Respondent has been a licensed contractor since 1983. On May 3, 1991, the Board filed a Final Order in Board Case Nos. 89-009986 and 89-013330 imposing a reprimand against Respondent. The Final Order was issued as part of the settlement of an amended administrative complaint filed against Respondent by Petitioner regarding certain unrelated transactions. Respondent was the qualifying agent for Willie William Construction Company, Inc. until October 1985. At that time, as a result of a corporate name change, Respondent became the qualified agent for Ashar Construction Company. On February 21, 1985, the Unsafe Structures Board of the Building and Zoning Department for Dade County advised Ruby Delancy that a hearing would be conducted on March 12, 1985 to determine whether a one story framed residence that Mrs. Delancy owned at 1005 NW 58th Street in Miami (the "House" or the "Property") should be demolished. The Notice indicated that the structure was "open, vacant, vandalized, filled with combustible materials; posing a serious fire hazard. Structure is a danger to human life and public welfare." The Notice estimated the present value of the building at $16,080 and the estimated cost of repairs at $51,120. The County's records indicate that a Notice of Violation regarding the Property had been issued to the owner on October 31, 1984. Facing imminent demolition of the House, Mrs. Delancy began to investigate possible ways to get the House repaired. She filed an application with the City of Miami for a low income, low interest loan that was funded through Federal HUD Community Development Funds. Her efforts to obtain funding to repair the House, delayed the proceedings that had been initiated to demolish the structure. In September of 1985, the City approved Mrs. Delancy for a grant of $10,000 and loan of $20,000 to repair the House. Mrs. Delancy has no other funds to pay for repairs to the Property other than the $30,000 she was obtaining through the City Program. Under the City's program, Mrs. Delancy was responsible for selecting a contractor. Mrs. Delancy contacted Respondent, who inspected the Property and prepared a construction estimate which was submitted to the City. Respondent entered into a contract (the "Contract") dated September 20, 1985 with Mrs. Delancy for home improvement work on the House. The total contract price was $29,870, which was to be paid in two installments: $10,835 on or before December 31, 1985 and a final payment of $19,035 on or before March 3, 1986. The evidence established that Respondent was initially reluctant to enter into the Contract and at least two other contractors refused to undertake the work given the limited funds available. However, Respondent agreed to take the job because of Mrs. Delancy's insistence and because of Respondent's sympathy for Mrs. Delancy's desperate situation in view of the imminent demolition of the House. The evidence also established that Mrs. Delancy requested Respondent to undertake additional work and/or services that were beyond the scope of the Contract. Among the extra items undertaken by Respondent was replacement of the floor in the family room. Additional expenses were also incurred because of unanticipated problems encountered during the renovation. For example one side of the house gave way during the renovation work. Upon investigation, it was discovered that there was no footing. Respondent was required to shore up that side of the House. In addition, the electrician was unable to get a meter because there was an outstanding electric bill for the Property. Respondent paid the old bill in order to get the meter connected. Similarly, she paid the gas company to get the stove hooked up. It does not appear Respondent received any additional compensation for the extra work. Except for $345 that Respondent paid for utilities on behalf of Mrs. Delancy, the evidence at the hearing was insufficient to place a dollar value on these extra services and expenses. The first installment under the Contract of $10,835 was paid to Respondent on or about December 31, 1985. In approximately January of 1986, Mrs. Delancy's son, Gerald Delancy, who had been living out of the state, returned to Miami and became involved in overseeing the construction on behalf of his mother. Gerald Delancy was not pleased with the quality of the construction and a great deal of tension developed between Gerald Delancy and Respondent. The final payment request form was submitted on February 20, 1986. Mrs. Delancy signed a document (the "Certificate of Completeness") indicating that the work was completed and the final payment was made to Respondent by the City on March 3, 1986. Gerald Delancy was present when his mother signed the Certificate of Completeness. She signed this Certificate against the advice of her son. At the time the document was signed, Respondent agreed in principal to complete any remaining work. The City Inspection Form which was posted on the project fails to indicate that a final inspection approval was obtained from the City. In addition, the evidence established that required roof inspections were not obtained prior to the final structural inspection. Gerald Delancy prepared a punch list of items which he felt were incomplete and submitted it to Respondent. It does not appear that this list was prepared until July of 1986. Because of the dispute between Respondent and Gerald Delancy as to what was required under the Contract, a copy of the punch list was also sent to the City. The punch list prepared by Gerald Delancy included a number of items which were beyond the scope of the Contract. For example, with respect to the plumbing, the complaints included the following: the water pressure was to low on the water line, the kitchen sink was too small, and the bathroom vanity was substandard. The Contract did not provide for a bathroom vanity. There were also complaints about ants and roaches and "missing shower rods and towel racks" even though these items were not specifically included within the Contract between Respondent and Mrs. Delancy. The City sent its estimator to the House to review the punch list items. The City's estimator felt that Respondent should provide another coat of paint and should complete some other minor repair work, but the estimator did not concur in many of Gerald Delancy's complaints. The City's rehabilitation estimator met with Respondent and Gerald Delancy at the House on July 15, 1986. At that meeting, Respondent agreed to correct certain matters and asked for one month to complete the work. On August 1, 1986, the work was not completed and Respondent requested an additional 30 days. On August 13, 1986, Respondent stated that she did not have the money to complete the work. According to the City's estimator, the cost to repair the construction deficiencies he noted would be approximately $2,500 to $3,000 as of the date of the hearing. During this period in August, Respondent did send some workers back to the house to complete some additional work. A dispute arose between those workers and Gerald Delancy. The exact nature and reasons for this dispute are not clear. Ultimately, Gerald Delancy refused to allow the workers to perform any work because he did not feel he received adequate answers to his inquiries as to the nature of the work they intended to perform. After the City refused to concur in all of his complaints, Gerald Delancy hired a building inspection company. He paid that company $534 and it rendered a report dated August 4, 1986 which detailed many other deficiencies in the construction. It is not clear whether this report was ever presented to Respondent. On or about November 3, 1986, Mrs. Delancy, at the urging of her son, filed a lawsuit against Respondent. On or about August 8, 1989, Mrs. Delancy obtained a final default judgement against Respondent in the amount of $65,000 plus costs of $102.50. Respondent claims that she was unaware of the lawsuit and the default final judgement until Petitioner's investigator questioned her about it on September 25, 1990. As of the date of the hearing in this case, Respondent has not appealed the judgement nor has she attempted to have it set aside or vacated. In addition to alleged construction defects, the default judgement included claims against Respondent for allegedly mishandling certain household goods and other property owned by Mrs. Delancy. The evidence presented in this case was confusing and inconclusive as to the nature and justification for these claims by the Delancys for property which Respondent was allegedly storing for Mrs. Delancy. Apparently, Respondent agreed to assist Mrs. Delancy by moving some of the furniture out of the house and placing it in storage during construction. The contract did not require Respondent to provide any moving or storage services and there is no evidence that Respondent was paid for this work. Some or all of the property that was moved out of the house was lost, stolen or destroyed. There is a dispute between the parties as to circumstances surrounding the loss of this property. The evidence presented in this case was insufficient to establish what happened to the property, who was responsible for it and/or how much it was worth. It does appear that the default judgement against Respondent includes a very high assessment for the property involved. However, as noted above, that judgement has not been vacated or appealed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Count I of the Administrative Complaint, finding the Respondent guilty of having violated Section 489.129(1)(m), Florida Statutes, as alleged in Count II of the Administrative Complaint, and imposing the following disciplinary action against the Respondent: Imposition of an administrative fine of $1,000. Suspension of the Respondent's license for a period of one year, followed by two years probation under such terms as may be imposed by the Board. DONE and ENTERED this 22nd day of August, 1994, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6438 Only Petitioner submitted a proposed recommended order. The following rulings are made with respect to the proposed findings of fact submitted by Petitioner. The Petitioner's Proposed Findings of Fact Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 7 and 8. Adopted in substance in Findings of Fact 4, 11, and 12. Adopted in substance in Findings of Fact 3 through 9. Adopted in substance in Findings of Fact 10. Subordinate to Findings of Fact 14 through 18. Subordinate to Findings of Fact 18. Subordinate to Findings of Fact 16 through 18. Subordinate to Findings of Fact 17. Adopted in substance in Findings of Fact 20. Subordinate to Findings of Fact 20. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 20. Rejected as unnecessary. Adopted in substance in Findings of Fact 21 and 22. Subordinate to Findings of Fact 21. Subordinate to Findings of Fact 22. Subordinate to Findings of Fact 21 and 22. Subordinate to Findings of Fact 21 and 22. Adopted in substance in Findings of Fact 1. COPIES FURNISHED: Theodore R. Gay, Esquire Dept. of Bus. and Prof. Reg. 401 NW 2nd Ave., Ste N-607 Miami, FL 33128 Agnes Sangster 9925 NW 25th Ave. Miami, FL 33147 Jack McRay Acting General Counsel Dept. of Bus. and Prof. Reg. 1940 N. Monroe St. Tallahassee, FL 32399-0792 Richard Hickok, Exec. Dir. Construction Industry Licensing 7960 Arlington Expressway, Ste 300 Jacksonville, FL 32211-7467
