The Issue The issue in this proceeding is whether Petitioner is entitled to attorney’s fees and costs.
Findings Of Fact This case was filed by Petitioner on behalf of Ida Heaps pursuant to Section 760.35, Florida Statutes. The case alleged that Respondent discriminated against Petitioner, Heaps, based on race when Respondent did not lease a home to Petitioner Heaps. On July 22, 2004, in Tavares, Florida, a one-day hearing was held after which post-hearing recommended orders were filed. Based on the evidence a Recommended Order finding Respondent guilty of a discriminatory housing practice against Ms. Heaps in violation of Section 760.23(1), Florida Statutes, was entered on February 1, 2005. Petitioner was therefore the prevailing party in this matter. The Recommended Order also found that Petitioner was entitled to attorney’s fees and costs; and reserved jurisdiction to determine the amount of fees and costs in the event the parties were unable to agree on such an award. On January 31, 2005, the Commission issued its Final Order approving the Recommended Order. The time limit for appealing the Final Order has passed. Petitioner has not been able to resolve the amount of fees and costs incurred in this matter. As evidence of the amount of attorney’s fees, Petitioner, FCHR, submitted an affidavit outlining the hours and costs spent incurred in the underlying case by its attorney. The requested fees are limited to hours expended on Petitioner’s behalf in DOAH Case No. 04-1593, including time spent in travel and establishing a right to attorney’s fees and costs. Petitioner’s attorney spent a total of 53 hours on this case, which include 46 hours for legal services and seven hours for travel. The hours multiplied by the reasonable rate results in a total of $14,850.00 for attorney’s fees. The Commission’s direct costs total $453.70, which include the travel costs of Petitioner’s attorney and investigator to attend the hearing and the court reporter’s fee. The time spent on this case by the Petitioner’s attorney was reviewed by an outside expert. The expert has found the time to be reasonable and has recommended a reasonable hourly rate, arrived at independently of the Commission and its attorneys and without direction by Petitioner, based on the nature, novelty and complexity of the case, and the expertise of the Petitioner’s attorney in federal and Florida administrative and anti-discrimination law. The expert opined that a rate of $300.00 per hour legal services and $150.00 per hour for travel was reasonable. Respondent did not challenge the affidavit of Petitioner’s or the expert’s opinion. The amount of hours and costs reflected in the affidavit are reasonable for this type of case. Likewise, the hourly fees for such litigation are reasonable for this type of case and the long experience of Petitioner’s attorney. Therefore, Petitioner, FCHR, is entitled to an award of attorney’s fees and costs in the amount of $15,303.70.
Conclusions There is competent substantial evidence to support a conclusion that Miami-Dade County owed a duty of care that was breached when its bus driver ran a red traffic signal, directly and proximately causing the Claimant’s permanent and severe injuries. ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with Section 768.28(8), Florida Statutes, but not with Section 3 of this claim bill, Claimant’s attorney has submitted a closing statement affirming that the attorney’s fees are 25 percent of the amount of the award, and that the lobbyists' fees are an additional 6 percent. The Claimants have entered into an agreement to pay costs that was approved by the guardian and the court. Costs are expected to range between $25,783.29, the amount as of January 15, 2007, to $75,783.29 by the end of the claim bill process. LEGISLATIVE HISTORY: This is the first time that a claim bill has been filed to compensate Schneidine Theogene. RECOMMENDATIONS: For the reasons set forth in this report, I recommend that Senate Bill 56 (2008) be reported FAVORABLY. Respectfully submitted, cc: Senator Dave Aronberg Representative Carlos Lopez-Cantera Faye Blanton, Secretary of the Senate Eleanor M. Hunter Senate Special Master House Committee on Constitution and Civil Law Mark Kruse, House Special Master Counsel of Record
The Issue Whether the Respondent is in violation of Sections 479.07(1)(4)(6) and 479.11(1), Florida Statutes. Whether subject signs violate state and federal laws and should be removed.
Findings Of Fact The following described sign is located in an unzoned area and violates the set back requirements being closer than 660 feet from the nearest edge of the road right-of-way: Highway: I-10 Location: 6/10 of a mile west of State Road 81 south side of I-10 Copy: Fina Gas-Diesel-Exit 1/2 Mile then Left Notice of violation regarding subject sign was properly sent by the Department of Transportation and received by the Respondent. No application was made prior the the erection of the subject sign, and the sign has been refused a permit. Mr. Curtis A. Miller, Jr., the President and major stockholder of Curt Miller Oil Company, Inc. in good faith discussed the erection of the subject sign with the councilmen and Mayor of Ponce de Leon, Florida, and proceeded to erect his sign without first obtaining a permit from the Department of Transportation. The Respondent contends that the sign is needed, that he spent a large amount of money on the erection and that he thought the sign would be in a properly zoned area at the time the erection was completed. Respondent admits that the sign at the time of the hearing is in violation of the set back requirements of Chapter 479, Florida Statutes. The Petitioner contends that it refused to permit the sign inasmuch as the set back was less than 660 feet from the nearest edge of the right-of-way of an interstate highway.
The Issue The issue presented is whether Petitioner should dismiss Respondent from her employment as a bus driver for an eight-day absence from work that was allegedly unauthorized.
Findings Of Fact Petitioner employed Respondent as a substitute bus driver on November 18, 2002. From February 10, 2003, through the date of the hearing, Petitioner employed Respondent as a bus driver. A bus driver is an educational support employee. Respondent was absent from work for eight days from February 2 through 11, 2005. The absence was not authorized. The unauthorized absence from February 2 through 4, 2005, comprised three days of unauthorized absence within one pay period. The unauthorized absence from February 7 through 11, 2005, comprised five days of unauthorized absence within one pay period. The eight-day unauthorized absence occurred during the regular school session. Respondent's supervisor scheduled a substitute bus driver to drive Respondent's assigned bus route. Respondent was absent from work for a vacation cruise in Chile. The unauthorized absence was not needed for medical or family reasons or for some other emergency. The terms of Respondent's employment are prescribed in the Collective Bargaining Agreement (CBA) between Petitioner and the Service Employee's International Union (SEIU). The terms of employment are further explained in a document identified in the record as the Bus Driver Handbook. Respondent had actual knowledge that she was entitled to only four personal days off from work with prior approval from Petitioner. Sometime in August or September 2004, an SEIU representative advised Respondent, in response to her inquiry, that the CBA authorized a maximum of four personal days off upon approval of Petitioner. Respondent did not disclose that she intended to be absent from work for a vacation while school was in session. On January 3, 2005, Respondent asked the dispatcher to approve eight personal days off for a vacation. The dispatcher explained that his authority to approve or disapprove leave requests was limited to requests for up to four personal days. Only the compound supervisor had authority to approve a request for authorized personal days in excess of four days. The compound supervisor denied Respondent's request before Respondent left for her vacation, and Respondent had actual notice of the denial. The denial was based in part on the ground that Respondent had no contractually authorized personal days in excess of four days during the regular school session. Even if she were to have authorized personal days in excess of four, the compound supervisor needed all of his bus drivers because school was in session. There was a shortage of bus drivers. February was a busy period in the school year. It was imperative that students have transportation to their schools. Absences in excess of authorized personal days must be requested on a form entitled Request for Leave of Absence, identified in the record as PCS Form 3-137. Respondent never requested a leave of absence on PCS Form 3-137. Rather, Respondent utilized the form authorized for requesting up to four personal days for the purpose of requesting a leave of absence of eight days. A request for a leave of absence on Form 3-137 would have been submitted to the director of transportation for Petitioner. The director never received such a request. Several aggravating circumstances are evidenced in the record. Respondent did not take the unauthorized absence for medical or family reasons or for some other emergency. Respondent took the unauthorized absence for her own leisure. Bus drivers, including Respondent, are nine-month employees. Respondent had other opportunities during the school year for vacations, including summer, a week at Thanksgiving, two weeks during Christmas, and a week during spring break. When school is in session, Respondent had no contractual right to more than four paid personal days. Respondent took the unauthorized absence with knowledge that her action would adversely affect her employer during a busy time of the school year. Respondent knew that the unauthorized absence would result in disciplinary action. Prior to her vacation, Respondent's supervisor suggested Respondent may want to remove her personal items from her bus before leaving for her vacation because she probably would face disciplinary action when she returned. Petitioner has imposed previous discipline against Respondent. Petitioner issued a letter of reprimand to Respondent for segregating black and white students on her bus.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of committing the alleged violation and dismissing Respondent from her employment. DONE AND ENTERED this 3rd day of August, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2006. COPIES FURNISHED: Timberly S. McKenzie 446 Fifth Street, South Safety Harbor, Florida 34695 Laurie A. Dart, Esquire Pinellas County School Board 301 Fourth Street, Southwest Post Office Box 2942 Largo, Florida 33779-2942 Timberly McKenzie 125 Rhonda Drive Clayton, Georgia 30525 Dr. Clayton M. Wilcox, Superintendent Pinellas County School Board Post Office Box 2942 Largo, Florida 33779-2942 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
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 from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of November, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer would recommend that the agency head enter a final order permitting the voluntary removal of both signs to include the entire advertising structure within 30 days of the date of the agency head's final order, and directing employees of the Department of Transportation to remove the structures after the 30-day period without compensation to the owner. DONE and ORDERED this 31st day of October, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1980. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 James P. Appleman, Esquire 206 Market Street Post Office Box 385 Marianna, Florida 32446 Charles M. Wynn, Esquire 310 East Jackson Street Post Office Box 793 Marianna, Florida 32446
The Issue Whether the Petitioner, Micheline Verello, timely filed a Petition for Relief in connection with a claim filed with the Florida Commission on Human Relations.
Findings Of Fact On or about March 15, 2003, the Petitioner, Micheline Verello, submitted an Amended Employment Charge of Discrimination with the Florida Commission on Human Relations. Such complaint alleged that the Respondent, United States Cellular Corporation, had discriminated against the Petitioner in an employment action based upon the Petitioner's age. On April 21, 2004, the Florida Commission on Human Relations entered a Determination: No Cause regarding the Petitioner's claim. That determination set forth that there was "no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause was also entered and mailed to the Petitioner on April 21, 2004. The notice provided, in pertinent part: PLEASE TAKE NOTICE that a Determination has been made on the above referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with (sic) 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes. The Notice of Determination: No Cause was dated April 21, 2004. The Petitioner received the Notice of Determination: No Cause on April 26, 2004. Based upon the date stated on the face of the Determination: No Cause, the Petitioner was required to file a Petition for Relief not later than May 26, 2004. The Petitioner did not mail her Petition for Relief until June 1, 2004. The Florida Commission on Human Relations received the Petition for Relief on June 3, 2004. Thereafter, the matter was forwarded to the Division of Administrative Hearings and filed for formal proceedings on June 9, 2004.
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 claim filed by this Petitioner. DONE AND ENTERED this 29th day of July 2004, in Tallahassee, Leon County, Florida. S ___________________________________ 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 29th day of July 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Andrew DeGraffenreidt, III, Esquire Powers, McNalis & Torres Post Office Box 21289 West Palm Beach, Florida 33416 Adrianne Mazura, Esquire Piper Rudnick, LLP 203 North Lasalle Street, Suite 1800 Chicago, Illinois 60601-1293
Findings Of Fact The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it. Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991. 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134 Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16 and 18. Adopted in substance in Findings of Fact 16 and 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. Rejected as irrelevant and unnecessary. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25 and 26. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Daniel E. Jonas, Esquire Jonas & Jonas 300-71st Street Suite 630 P. O. Box 41-4242 Miami Beach, Florida 33141 David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza Charlotte, North Carolina 28280
Findings Of Fact The sign in question is located one mile west of State Road 79 on Interstate 10. Said sign was photographed by the Department of Transportation sign inspector, who identified and introduced two photographs which were received as Exhibits #1 and #2. Said sign does not bear a permit of the type issued pursuant to Section 479.07, Florida Statutes. Said sign is not located within an incorporated city or town. Said sign bears copy which can be read from the traveled way of Interstate 10. Said sign is located 15.5 feet from the right-of-way of Interstate 10. No substantial and competent evidence was introduced regarding the zoning of the area in which the sign is located or the ownership of the sign.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of Transportation take no action regarding the subject sign. DONE and ORDERED this 3rd day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank H. King, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Russell A Cole, Jr., Esquire 206 East Iowa Avenue Bonifay, Florida 32425 Phillip S. Bennet, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 John M. McNatt, Jr., Esquire 1500 American Heritage Life Building Jacksonville, Florida 322022
The Issue At issue is whether respondent committed the offense alleged in the petitioner's "notice of intent to impose administrative fine and to issue cease and desist order" and, if so, what administrative action should be taken.
Findings Of Fact Petitioner, Department of Agriculture and Consumer Services, is a state agency charged, inter alia, with administering and enforcing the provisions of Chapter 559, Part XI, Florida Statutes, regulating "sellers of travel." Here, petitioner has charged that respondent had operated as a "seller of travel" without being registered as required by Section 559.927(2), Florida Statutes. The only proof offered to support such contention at hearing was a written inspection report prepared by James Kelly, an inspector employed by petitioner. 1/ That report recited that Mr. Kelly performed an inspection of respondent's premises on November 4, 1994, that he met with Denise Arencibia (who was later identified as respondent's vice president), and that the following events transpired: Went in undercover and asked about weekend cruises. Denise gave me a brochure for the Seaward & gave me prices at $329 per person. She can make all arrangements. They will accept a cashier's check payable to Escape Travel Services. Mr. Kelly did not, however, appear at hearing or otherwise offer testimony in this case. Consequently, for the reasons discussed in the conclusions of law, there is no competent proof of record to support a finding that respondent operated as a "seller of travel" on the date of Mr. Kelly's inspection as contended by petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered dismissing the charges against respondent. DONE AND ENTERED this 12th day of September 1995 in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 12th day of September 1995.
