Findings Of Fact Billy F. Killingsworth is a licensed pest control operator in the State of Florida. He has been so licensed since 1967. He holds a degree in entomology and agriculture with minors in toxicology and soils. He is a highly qualified expert in the field of pest control. Mr. Killingsworth is the owner and operator of Killingsworth Pest Control Company, Inc., located in Pensacola, Florida. Killingsworth Pest Control engages in the business of the control and eradication of insects and rodents. Mr. Killingsworth and Killingsworth Pest Control employ Respondent, Richard L. Grimmel. Mr. Grimmel is a Pest Control Special Identification cardholder. The cardholder status enables Mr. Grimmel to administer chemicals and other pest control agents and otherwise conduct inspections of property to determine whether a structure is infested with pests. Mr. Grimmel performs his duties under the supervision of Mr. Killingsworth and Killingsworth Pest Control Co., Inc. About two years ago, Mr. Killingsworth purchased an Insecta-scope II Detector (Insecta-scope). An Insecta-scope is a device which enables an operator to listen to various types of insects while the insects are inside the wood of a structure. The main use of an Insecta-scope is to detect wood boring pests while they are still in a structure's wood, but before any evidence of the infestation appears on the outside of the wood. Different types of wood boring insects make different noises and, therefore, an Insecta-scope operator can determine what type of insect may be present in the wood. The Insecta-scope is on the forefront of technology in the detection of wood-destroying pests. If the operator is properly trained, the machine does what it is advertised to do, i.e., serve as a listening device for the detection of wood boring insects. Other than the Insecta-scope, current methods of detection involve a hammer, a flashlight, and a metal probe. Current methods of detection are limited to determining the presence of wood-boring pests after the insects begin to emerge from the wood. With certain types of insects, considerable damage can occur to the wood of a structure before any damage is noticeable on the exterior of the wood. Powder post beetles/old house wood borers have a life cycle of 10 to 15 years. In general, these insects lay their eggs in the pores of wood. The insects eventually hatch and begin eating the wood in which they live from the inside out. The insects do not reach adulthood for about 10 to 15 years. Once they reach adulthood, they chew their way to the outside of the wood, forming an exit hole. The hole generally has a sawdust-like material associated with it known as frass. Old exit holes are dark, and fresh exit holes are of a lighter color. Once the adult insects have exited the wood, it is highly probable that they will lay their eggs in the pores of the wood they have exited and reinfest the same wood. If left untreated, the insects would continuously be exiting the wood. If treated, the exiting would stop, however, the eggs inside the wood would not be affected. The infestation would appear when new exit holes begin to form 10 to 15 years later. In the meantime, the immature insects would be dieting on the wood in which they live. On February 13, 1989, Mr. Grimmel was called by Scott Mudge to inspect a house located at 3812 West Cervantes Street, Pensacola, Florida. The inspection was required in order to sell the house. The house to be inspected was at least 20 to 25 years old and was located close to the water. The house appeared to have a moisture problem. The conditions in the house were very good for powder post beetles/old house wood borers to infest the house, eating the wooden parts from the inside out. In the attic area of the house there was evidence of an old infestation of powder post beetles/old house wood borers. Reinfestation from the old infestation was highly probable. Mr. Grimmel arrived at the house and conducted an inspection of the premises. In the attic, he saw a few fresh exit holes with frass coming out of the holes. When he placed the Insecta-scope on the area of the frass and fresh exit holes, he knocked what little frass there was off of the beam or impacted the frass into the exit holes. Through the Insecta- scope, Mr. Grimmel could hear powder post beetles/old house wood borers inside the beam. Other than the few fresh exit holes and frass Mr. Grimmel saw, there was very little exterior evidence that the infestation was currently exiting the wood. The infestation was reported to Mr. Mudge and an inspection report was given to Mr. Mudge. Mr. Grimmel also posted a notice of inspection adjacent to the crawl space of the house. Mr. Mudge requested that Mr. Grimmel give him an estimate for treatment of the infestation. The estimate was around $975. Due to the treatment's cost, Mr. Mudge desired to get a second estimate for treatment of the infestation found by Mr. Grimmel. He obtained a second inspection of his house from Fireman's Termite & Pest Control (Fireman's). Fireman's inspector inspected the property either the same day as Mr. Grimmel or the next day. The inspector used the current method of inspecting by looking at the wood with a flashlight and tapping on the wood. Insufficient time had elapsed for new exit holes or frass to have formed; therefore, Fireman's found no evidence of an active infestation of wood borers or power post beetles in the structure. Mr. Mudge then filed a complaint with HRS against Respondents. Upon Mr. Mudge's complaint, HRS initiated an investigation and requested Mr. Killingsworth to file HRS Form 1145, Wood Destroying Organisms inspection report. The report includes information on evidence of whether an infestation was discovered and whether notice of the inspection was posted. Mr. Killingsworth reported that evidence of a live infestation had been observed, but inadvertently failed to properly fill in the information regarding the posting of the notice. 1/ The form submitted by Mr. Killingsworth indicated that a notice of inspection had been posted "in person", but failed to indicate where the notice had been posted. None of the information on either HRS Form 1145 or the inspection report to Mr. Mudge was false or incorrect. The failure of Mr. Killingsworth to fill in the information about the notice of inspection was at best a miniscule violation of Chapter 482, Florida Statutes, since the notice was actually posted and the notice information was not relevant to the complaint of Mr. Mudge. Respondents cooperated in every respect with the Department's investigator. The Department's investigator, using the same techniques as Fireman's, did not find any evidence of an active live infestation i.e. he did not see any fresh exit holes or frass. However, as with Fireman's inspection, the Department's inspection occurred too close to the inspection by Mr. Grimmel for new exit holes or frass to form. 1/ Later, on June 13, 1990, Mr. Killingsworth along with Mr. Grimmel, re- inspected the property. Mr. Killingsworth viewed the area of the attic where Mr. Grimmel had reported the infestation. He saw a few fresh exit holes and some frass. Mr. Killingsworth had Mr. Grimmel place the Insecta-scope on the wood. They heard and simultaneously recorded wood borers/powder post beetles chewing inside the wood. The tape recording was presented at the hearing. It is very unlikely that the infestation or the evidence of the infestation had substantially changed in the time period from the initial February inspection to the present inspection. Based on the above facts, neither Respondent made a false report to Mr. Mudge or the Department. While Respondents' methodology may be in dispute, there was clear evidence on which a reasonable person could rely that Mr. Mudge's house was infested with wood borers/powder post beetles. Neither Respondents relied solely on the sounds from the Insecta-scope to make their determination. The evidence demonstrated that the Respondents' methodology comported with the standard practice in the Pensacola area. Therefore, neither Respondents is guilty of filing a false report.
Recommendation That the Department enter a Final Order dismissing the administrative complaint against Respondent, Grimmel, and finding Respondent, Killingsworth, guilty of violating Section 482.161(1)(a), Florida Statutes, and issuing a letter of guidance to Respondent Killingsworth. DONE and ENTERED this 17th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 1991.
The Issue Whether Respondent's working conditions or termination of Petitioner as its employee on July 12, 1996, constitutes unlawful employment practices based on Petitioner's race (African-American)?
Findings Of Fact Petitioner is a Black male.2 Petitioner's Charge of Discrimination before the Florida Commission on Human Relations is not before the undersigned because it was not included in the referral package nor admitted in evidence. The Petition for Relief vaguely alleged "harassment" and clearly asserted termination on the basis of race - "Black." 3 Petitioner was employed by Respondent in its Quincy, Florida, furniture manufacturing plant from January 25, 1983, to July 12, 1996, when he was terminated. Most, but not all, of Respondent's employees are Black. Petitioner was replaced by another Black male, William Baker. The decision to terminate Petitioner, as well as the decision to promote Mr. Baker into the position vacated by Petitioner, was made by Hershel Shepard, plant manager. Mr. Shepard, who died before the evidentiary hearing, was white. The plant manager is the highest-ranking person in the factory. Petitioner was initially hired in 1983 as a double- ended tendon (D.E.T.) machine operator. A D.E.T. machine is a wood-working machine which cuts off two opposite ends of a board at the same time. It requires pre-setting, and it throws out debris and sawdust which is hazardous to employees' eyes. The factory also utilizes other types of wood-working equipment, all of which throw out debris and sawdust which are hazardous to employees' eyes. On January 25, 1983, his hiring date, Petitioner received written safety rules requiring him to wear safety glasses at all times. On May 1, 1986, he signed for an updated set of similar rules. In 1988, Petitioner was promoted to D.E.T. "lead hand," with two or three employees subordinate to him. Petitioner was uniquely valuable to Respondent because he was the only person in the factory who knew how to adjust the D.E.T. machine. That is, he was the only person who knew how to set it up to do specific tasks. However, other employees could run the D.E.T. machine after Petitioner had, in essence, "programmed" it. In 1991, Petitioner hurt his back and was required by his orthopedic physician to wear a back support belt when lifting. He did not go out on workers' compensation leave/pay, but continued to report for work and was given time off to go to therapy. At some point, Petitioner and Mr. Shepard had a dispute about how the belt was supposed to be worn, and Mr. Shepard threatened to "write-up" Petitioner. There is no evidence that Petitioner was, in fact, "written-up" for this. On May 5, 1991, after his back injury, Petitioner was evaluated by Mr. Shepard to the following effect: that he could do the job, but perhaps not as fast as it should be done; that he had a problem keeping his machines running and coordinating loads; that he did "okay" on instructions, but that he had lost his initiative to get the job done and to take an interest in new products; and that he needed to improve his work habits. Mark Maxwell, a white male, supervised Petitioner for two to three months immediately prior to Petitioner's next promotion in 1993. Mr. Maxwell could not get Petitioner to produce the furniture parts from the D.E.T. machine when they were needed. According to Mr. Maxwell, Petitioner's cooperation and/or output fluctuated. Sometimes, Mr. Maxwell ordered Petitioner to run certain parts and the parts were not run. On one occasion, he had ordered Petitioner to run drawer fronts, and Petitioner set up to do another type of piece. Nonetheless, Petitioner was promoted to D.E.T. supervisor in approximately 1993. As such, Petitioner regularly supervised four employees. Mr. Shepard may or may not have had input as to Petitioner's first promotion in 1988, but it was solely his decision to promote Petitioner in 1993. Petitioner was promoted at that time, despite the unfavorable aspects in his employment record. Petitioner continued to have disciplinary problems with management after his 1993 promotion. On October 2, 1995, Mr. Maxwell, by then a middle- manager, wrote-up Petitioner because, knowing a particular type of pine chest of drawers was to go on the assembly line the next day, Petitioner allowed his crew to go home at the regular quitting time of 4:00 p.m., showing very little regard or devotion to Respondent employer. Employees often were required to work overtime on short notice in order to set up for the next day. Petitioner's failure to have the furniture parts ready from the D.E.T. machine the night before would cause several employees to stand around, drawing pay, with no assembly line work to do the next morning. Mr. Maxwell, who personally has worked overtime on short notice, considered working overtime on short notice to be part of the furniture-making business, and he expected that commitment from all Respondent's employees, including Petitioner and Petitioner's subordinates. Mr. Sheperd approved the write-up. Sometime in 1995, Petitioner was suspended without pay for three days as the result of damaging a bookcase and not repairing it. Petitioner contended at hearing that he had repaired the bookcase's top. At hearing, Petitioner acknowledged receiving two written warnings concerning his repeated failure to wear safety glasses on the job. One warning was undated. The other was dated March 25, 1996, and signed by Mr. Shepard. It specified that Petitioner had previously been warned in writing on September 18, 1995, October 2-3, 1995, and November 17, 1995, and that Mr. Shepard had warned Petitioner orally on each of the six consecutive days immediately preceding the March 25, 1996, written warning. At hearing, Petitioner did not refute the accuracy of the March 25, 1996, warning or claim its content was untrue. He also acknowledged that he was supposed to wear safety glasses at all times on the job and that as D.E.T. supervisor, he was supposed to be an example to his subordinates. Petitioner claimed to have seen white employees not wearing safety glasses, but there was no corroborative evidence that this was so. Petitioner also claimed that white employees who did not wear safety glasses were never written-up, but there was no corroborative evidence that this was so or any explanation of how Petitioner would know if any other employee had been warned or written-up for any reason, including but not limited to wearing safety glasses. In 1996, Petitioner's job as D.E.T. supervisor was basically to report to work, receive a list specifying the furniture parts (such as drawers or front rails) which he was to "run" on his machine(s), and run/create those listed parts. Sometimes, Petitioner disagreed with the order of parts as listed by his supervisors because, in his opinion, the list could have been better organized to ensure maximum efficiency at subsequent points on the furniture assembly line. Petitioner blamed the list and felt he was unfairly blamed by his supervisors when assemblers ran out of all parts they needed or they ran out of Part A pieces before they ran out of Part B pieces. Other recurring job problems from Petitioner's point of view were that the night crew broke his machine and/or would not set-up so that he could immediately start work when he came on the premises with the day crew each morning and that his FT01 machine was old and its settings would slide, making mistakes on cutting or forming wooden furniture parts out of round or in slightly flawed lengths and shapes. Mr. Maxwell confirmed only that some machines were old and that sometimes it was hard to get parts for the machines. He reiterated that Petitioner's conduct and output fluctuated. Management viewed it as Petitioner's job duty to run the correct furniture parts to the correct specifications, in the correct order, so that the correct size and shape of the correct type of part arrived at the next stage of the assembly line in sufficient quantities, at the right time, without delay. According to Petitioner, his troubles with Mr. Shepard began on an unspecified date when Petitioner had been ordered to run some impounds. Because he was short-handed due to two absentees, Petitioner requested help, and the machine room foreman promised to send Petitioner two helpers as soon as he could. Mr. Shepard saw that Petitioner was not working and demanded to know why Petitioner was not running the impounds. Petitioner explained that he was waiting for two more laborers. Then Mr. Shepard demanded, "Bubba, why you not running the machine?" Petitioner replied, "Herschel, you know, I would appreciate it if you wouldn't call me Bubba. My name is Lonnie." Mr. Shepard walked off without a word. Petitioner contended that thereafter, Mr. Shepard "harassed" him; however, Petitioner conceded that Mr. Shepard never again addressed him as "Bubba."4 Petitioner was terminated with abusive and profane language by Mr. Shepard on July 12, 1996. Mr. Shepard stated on Petitioner's termination papers that Petitioner had cut an entire run of bases one inch shorter than the 22-3/8 inches they were supposed to have been cut and that there was no more rough lumber in the plant with which to run more bases. In testimony, Petitioner stated that he believed he had correctly set his machine to cut the bases the correct length and that he had run about 200 bases correctly and someone else ran 900 incorrectly. However, he could not "remember whether I had run just enough to get them started that morning or someone else ran the load." He conjectured that the night shift might have run the incorrect bases, but he could not remember either way whether there had been, or had not been, a night shift in 1996. Petitioner also believed there had been available enough rough lumber to run a new load. Mr. Maxwell acknowledged the possibility that someone other than Petitioner could have run the useless bases, but he testified that he knew there had been no night shift in July 1996. Therefore, the night shift could not have been responsible for running the useless bases. Although Petitioner did not know whether or not he had personally cut the load short, he conceded that as D.E.T. supervisor, he was responsible for overseeing his suborindates' work on the machine. Petitioner's brother, Benjamin, also worked for Respondent in 1996, the year Petitioner was terminated, and for some unspecified period of time before that. In Petitioner's and his brother's opinions, working conditions in Respondent's factory were those of a "concentration camp," because of poor wages, because people were spoken to "as if they were not human," and because no one was given a day off. However, Benjamin McMillon described being let off early when he requested it, and both Petitioner and Mr. Maxwell described an incentive pay plan based on being paid more money for producing more product. Benjamin McMillon described employees, including one white woman, who feared Hershel Shepard's power over them and who feared that Hershel Shepard might terminate them. The following exchange, at pages 36-37 of the Transcript, sums up Petitioner's testimony as to the effect of his race on conditions at Respondent's factory: Q: You don't have any evidence that anything that happened between you and Mr. Hershel Shepard happened because you were black; is that right? A: No, but I know he was harassing me.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying all claims and dismissing the Petition for Relief. DONE AND ENTERED this 9th day of April, 2001, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2001.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the portion of State road 314 in question be transferred to Marion County by the Department of Transportation. DONE and ORDERED this 24th day of August, 1979, 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 24th day of August, 1979. COPIES FURNISHED: Philip S. Bennett, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Preston T. Everett, Jr., Esquire County Attorney, Marion County Post Office Box 1030 Ocala, Florida 32670
Findings Of Fact James Dale Cooley, Respondent herein, is a certified pest control operator doing business as Tropical Pest Control and Closing Inspection Services Company. On December 6, 1990, Respondent inspected a residential property located at 1222 Stimson Street, Jacksonville, Florida, and issued a Wood- Destroying Organisms Inspection Report, HRS Form 1145. That report indicated that wood fungi was present in the subfloor and was caused by a moisture condition in the crawl space. The block under "Report of Findings" on that report for "visible evidence of wood-destroying organisms observed" was marked, "Yes." Under "comments," Respondent stated "Mature home; minor deterioration bottom of siding and trim of detached utility." Subsequently, Respondent issued a second Wood-Destroying Organisms Inspection Report for the same residence, bearing an inspection date of December 7, 1990. The second report indicated that no visible evidence of wood destroying organisms was observed. The "comments" portion was modified to read, "mature home has moisture condition in crawl space, common problem may be considered minor." The issuance of the second report clearly contradicted the first report as to existence of damage from wood-destroying organisms. The property was subsequently purchased based on the report of findings dated December 7, 1990. Mrs. Robinson, the realtor who commissioned the Respondent's inspection and report, testified that this second report was seen by the buyers and co-signer, and probably by the mortgagor, but that the earlier one was not. Eleven months later and after an above-average period of rainfall, on November 25, 1991, an HRS inspector visited the subject property and determined that evidence of damage caused by wood decay fungi was present in the substructure area. The primary cause of wood-destroying fungus growth is moisture. During this on-site investigation, Respondent was cooperative with the HRS inspector and provided him with a copy of his December 6, 1990 report. Receipt of a copy of the earlier report signalled to the department that there had been possible fraud in the sale of the house. Departmental personnel reached that conclusion because the first report had stated that there were wood-decaying organisms present, one day later the second report indicated that there were not such organisms present, and eleven months later wood- decaying organisms were found to be present. According to Respondent, when he made his inspection on December 6, 1990, he had observed only mold, mildew, and moisture stains, but no wood destroying organisms. Respondent's explanation for issuing two reports totally contrary to each other was that he intentionally made out a "very objectionable report" on December 6, 1990 showing that "wood fungi" and "wood destroying organisms" were present because he wanted the buyers to be fully informed about what was really wrong with the house and because he felt the "very objectinable report" would induce the buyers or the realtor to phone him, personally. His explanation for why he wrote in "wood fungi" on the first inspection report was that he was trying to signify only "wood fungi" but not "wood destroying fungi" or "wood destroying organisms." Respondent's testimony on this score is contradicted by the first inspection report itself whereon he had checked the box indicating that he had observed "wood destroying organisms." Respondent also had no plausible explanation for why he did not simply make a full and accurate explanation in the "comments" section of the first report. Also, according to Respondent, he filled out the new report not on December 7, 1990 but sometime thereafter around December 10 after receiving assurances from Mrs. Robinson that the buyers had been informed by somebody else of the true condition of the house. Respondent testified that he made out the second inspection report to reflect the truth of what he had seen on December 6th, not to defraud anyone by substituting a "good" report for the previous "bad" report. Nonetheless, Respondent charged $55.00 for the inspection and what he called a false report on December 6 and $25.00 for the "update" which he called a true report bearing the December 7 date. He admittedly did not re-inspect the premises. According Respondent every benefit of the doubt, it is clear from his own testimony that he intentionally falsified one report which ultimately resulted in an unnecessary fee of $25.00 which someone had to bear when the sale of the property was closed. Competent expert and lay testimony are in accord that mildew and mold are not fungi; neither organism is a wood decay fungus; neither organism metamorphoses into a wood decay fungus when exposed to prolonged moisture, and neither organism is an algae. Mr. Phillip Helseth testified competently and credibility that it is commonly understood that if one cites "wood fungi" as the Respondent did on the first wood-destroying organisms report it is commonly understood within the inspection industry to mean "wood decaying fungi." Mr. Helseth's testimony is also credible to the effect that there would be no reason to report "wood fungi" which is not decaying/destroying on such a report. Moreover, the HRS form utilized for both reports explicitly defines "wood-destroying organism" as, "arthropod or plant life which damages a structure, namely termites, powder-post beetles, wood-boring beetles, wood-boring wasps, carpenter bees and wood- decaying fungi." Mr. Helspeth also testified competently and credibly that "wood decaying fungi" constitutes a "wood destroying organism" and that to call mildew and mold "wood fungi" is inaccurate and falls below the standards of the profession. The competent credible evidence as a whole supports a finding that Respondent issued a false report which was not in accordance with good industry practice and standards. Having made that finding of fact, the undersigned may consider his prior disciplinary record (three cases) and has done so for purposes of penalty, only.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order finding Respondent guilty of the statutory violations charged in the administrative complaint, and suspending Respondent's Pest Control Certificate No. 2236 in the category of "Termite and Other Wood-Destroying Organism Control" for a period of three months. DONE and RECOMMENDED this 11th day of September, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 1992. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 92-1055 The following constitute specific rulings, pursuant to S120.59 (2), F.S., upon the parties' respective proposed findings of fact (PFOF) Petitioner's PFOF: 1-8 Accepted 9-10 Accepted as modified to reflect the greater weight of the admissible evidence. Penalty matters are relegated to the conclusions of law. Respondent's PFOF: 1 Rejected as a conclusion of law. 2, 4-12 Accepted except as to unnecessary, subordinate, and cumulative material. 3 Rejected as not suppported by the record. 13-15 Rejected as mere legal argument and not dispositive of the material issues in the case. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Scott D. Leemis Assistant District Legal Counsel P. O. Box 2417 Jacksonville, Florida 32231-0083 Griffin Helwig, Esquire 3030 Harley Road #190 Jacksonville, Florida 32257
The Issue Did Respondent discriminate against Petitioner because of his alleged handicap of dyslexia?
Findings Of Fact Bruce A. Kress is a white male approximately 33 years of age. Wenco, Inc., is a Florida corporation operating several Wendy's fast food restaurants in Panama City, Florida. Petitioner was employed by Wenco, Inc., for several months during 1992, as a member of the restaurant staff or "crew." He voluntarily quit his job in or around October 1992. In December 1992, Petitioner spoke with Danny Strickland of Wenco, Inc., about becoming a manager trainee. In January of 1993, Petitioner was hired in their training store as a manager trainee. A manager trainee is assigned to perform all the duties in a crew to learn the procedures for running a store. Phillip Cady was the manager of the training store where Petitioner was employed as a manager trainee. When hired, Petitioner filled out an application and medical history statement or questionnaire. Neither the medical questionnaire nor application reveal Petitioner's alleged disability. Petitioner's supervisor denies knowledge of Petitioner's alleged disability. Petitioner's evidence in support of his alleged disability is a letter from David H. Winkle to Mrs. Allen Corless, Petitioner's parent or guardian, stating that Petitioner was obtaining educational help in a federally funded program. Neither the letter nor its attachment state a diagnosis, assuming the hearsay nature of the letter is overlooked. Phillip Cady testified. He was Petitioner's immediate supervisor while Petitioner was a manager trainee. Cady had cautioned Petitioner that he would have to rigidly adhere to the procedural manual for operating the store. Cady warned Petitioner that if Petitioner didn't follow the procedural manual that Petitioner would be terminated. After warning, Petitioner was discharged by Cady when Petitioner did not scoop ice into drink cups with the ice scoop and when Petitioner removed fries from the cooker before they were fully cooked. Petitioner introduced no evidence to show the reason offered by Respondent for discharging him was pretextual or discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the agency find that Respondent did not discriminate against Petitioner. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3310 On February 3, 1994 Respondent filed a post hearing brief. The following states which of the findings proposed by Respondent were adopted, and which were rejected and why: 1-2 Irrelevant. 3-4 Adopted. 5 Irrelevant COPIES FURNISHED: Bruce A. Kress 2601 West 19th Street Panama City, Florida 32405 Danny R. Strickland Wenco of Panama City 2110 West 23rd Street Suite C Panama City, FL 32405 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
