Findings Of Fact Petitioner was employed as a waitress at the Kapok Tree Restaurant in October, 1983. She suffered a heart attack in August, 1985 and remained out of work until January, 1986 at which time she was rehired by Respondent as a hostess. From January, 1986 until June 3, 1986 Petitioner was employed by Respondent as a hostess, and her duties included greeting and seating customers. She also made sure customers' reservations were in order and that customers were equally distributed among the waiters and waitresses. While she was a hostess, Petitioner's supervisors were Scott Evans and Janice Kehoe. Respondent rehired Petitioner in January, 1986 as a hostess rather than a waitress because the duties of a hostess are less strenuous than those of a waitress, and Petitioner willingly accepted the position. She enjoyed her job as hostess very much, and had no medical limitations which in any way precluded or adversely affected her performance of a hostess' duties. While employed as a waitress Petitioner was counseled, and placed on one-week suspension without pay by her supervisor on April 30, 1984 for being rude to customers. She also received a disciplinary warning slip on May 26, 1985 for poor attitude and uncooperative response to job training and supervisor direction. After being rehired as a hostess, her performance was less than ideal and she became flustered and gruff with customers, according to Scott Evans and Janice Kehoe, her supervisors. She was counseled approximately five times about her performance as a hostess, and then was laid off on June 3, 1986 because business volume was down, and only the most outstanding employees could be retained. Since petitioner's performance was only satisfactory, but not as outstanding as others, she was selected to be laid-off. There is no competent substantial evidence that Petitioner's heart condition, or insurance expenses associated therewith, were in any way considered by, or factors in, Respondent's decision to lay-off Petitioner. Ten other employees were laid-off, or had their hours reduced, at approximately the same time as Petitioner's lay-off due to slow business volume. Respondent does currently employ handicapped workers. There is no evidence that Respondent discriminated against Petitioner in this case due to any handicap. Petitioner would not be considered for rehire by Respondent due to her performance as a hostess.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 16th day of June, 1987, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 1987. COPIES FURNISHED: Terry M. Broklehurst, Esquire 2420 Enterprise Road, Suite 204 Clearwater, Florida 33575 W. Reynolds Allen, Esquire Gail Goldman Holtzman, Esquire 609 West Horatio Street Tampa, Florida 33606 Ronald M. McElrath Post Office Box 4748 Clearwater, Florida 33518-4748 Miles Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518-4748
The Issue The issue for consideration in this hearing is whether the Petitioner, Lee C. Smith, was unlawfully discriminated against by the Respondent, Food Lion, Inc., on the basis of his marital status.
Findings Of Fact At all times in issue, Respondent, Food Lion, Inc., operated its food supermarket, No. 728, in Tampa, Florida. Petitioner, Lee C. Smith, was employed by Respondent as manager. Petitioner was discharged from employment with the Respondent on December 2, 1990. The "constructive advice memo" supporting the discharge indicated the action was being taken because of "dishonesty - fraud - reputation of manager." The background to the charge related that 9 checks, totalling $1,100.00 were cashed by Petitioner's wife and "possibly endorsed or OK'd by Mr. Smith." The memo went on to further state that the decision [to discharge] was based on current evidence "and also failure to maintain mgt. role." The memo further indicated that while in management training, Mr. Smith had a problem with returned checks and "was documented on same." The memo was signed by Mr. Legett and was also signed by the Petitioner on December 5, 1990. Petitioner claims that when he first learned of the check situation, during the period March through June, 1990, when he was a management trainee, on his own initiative and without prompting by anyone in authority, he notified his store manager and assistant manager of the situation and suggested they call in a tel-alert advising all Food Lion stores in the area not to cash any checks for his wife. He was not discharged at that time. He also claims that after he was promoted to manager, his wife again started passing bad checks without his knowledge. When he found out about them, in October and November, 1990, before he was discharged, he paid some of them off. He also instituted another tel-alert through the Dunedin store, where some of the checks had been written, but he did not alert the people in his own store not to cash them. Apparently, Mrs. Smith cashed some checks in Store 728 but only one was approved by Petitioner. An area-wide listing of dishonored checks shows some that were cashed by Mrs. Smith. This listing is sent to each store and probably came to Petitioner's store. Petitioner admits he may have seen it but most of the checks written by Mrs. Smith were approved by the assistant manager. Whenever he saw a check listing with his wife's name on it, he redeemed that check, but the listing he saw was for his store only. He claims not to have seen listings from other stores, but from time to time, the manager of other stores would call him to ask if they could take her checks. He claims always to have said no. None of the checks relied upon by Respondent in the discharge action were admitted in evidence. Petitioner claims that at the time in issue, he had no knowledge his wife was writing the bad checks. During this period, he and his wife were having domestic difficulties. Some of the time they were living together and some of the time they were separated. Even when they were separated, she continued to come into the store for purchases and to cash checks. Petitioner claims that as a result of his discharge by the Respondent he has been damaged in a total amount of between $452,122.55 and $518,122.55, including legal fees. These sums are based on his salary at the time of his discharge, modified by certain assumptions regarding sick pay, bonus, profit sharing and holiday pay. At the time of his discharge, Petitioner was earning $550.00 per week and claims he was due an increase to $610.00 per week. Therefore, he claims, his base salary for December, which he was not paid, would have been $2,440.00. Added to that, he claims is 2 percent for sick pay totalling $572.00, a 2 percent bonus of $572.00, a 15 percent profit sharing pay out of $4,290.00 and holiday pay for 6 days at $110.00 per day, for $660.00. This additional amount totals $6,094.00 which, when added to the base salary claimed due amounts to $8,534.00 for December, 1990, not paid to him because of his termination. His base salary of $610.00 per week for calendar year 1991, would have totaled $31,720.00 and his insurance benefit would have been an additional $1,242.60. This totals $32,962.60. Added to that, he claims are the bonuses, sick pay, profit sharing, profit forfeiture, holiday pay at $122.00 per day for 6 days, and two weeks vacation ($1,220.00) for a subtotal of $9,566.00. When this figure is added to his base for 1991, he claims his total income from Respondent would have been $42,528.60 for the year. However, when his actual earnings from Kash & Karry, with whom he found employment after he was discharged by Respondent, in the amount of $13,941.58 are deducted, his actual loss for calendar year 1991 is, he claims, $28,587.60. Following the same formula, using identical factors but with slightly different amounts for each due to a projected increase in weekly salary, the net loss to Petitioner is claimed to be $19,903.32 for calendar year 1992, and through March 5, 1993, the date of the hearing, his calendar year 1993 loss is claimed to be $6,474.39. The sum total of the yearly losses is $71,109.77 to which Petitioner has added a 1 percent per month interest figure which totals $19,910.73 for the 28 months in issue. The sum of these figures is $91,020.50. To this Petitioner has also added a 4 year loss of projected profit sharing pay outs had he stayed with Food Lion which he estimates at between $30,000.00 to $45,000.00 per year. At $30,000.00 the total would be $120,000 to which Petitioner has added an unexplained $200,000.00. Adding this to the $120,000.00, and the $91,020.50 amounts to $411,020.50 to which Petitioner has added 10 percent legal fees of $41,102.05 for a grand total of $452,122.55. Applying the same calculations to a loss of profit sharing figure of $45,000 per year for 4 years, and the unexplained $200,000.00 addition, with similar 10 percent legal fees and the actual claimed out of pocket loss described above, his claim amounts to $518,122.55. In support of his claim of Food Lion earnings, Petitioner submitted only one pay slip, for the period ending 12/01/90 which showed his regular earnings to be $1,100.00 and special earnings of $650.00 for the period. The evidence he presented is insufficient to support his monetary claim. His earnings at Kash and Karry are not questioned. Petitioner's wife's bad check activity first came to light when he was a manager trainee and he paid those checks off immediately. However, in the latter part of 1990, a loss prevention investigation was initiated into alleged cash shortages and bad checks at Petitioner's store. Mr. Satterfield, the Area Perishable Supervisor was told by the investigator that Petitioner was aware of his wife's passing of bad checks. Mr. Satterfield also talked to other employees. One of these, Mr. Koonce, cashed several checks for Mrs. Smith which had been approved by one of the managers. Petitioner was one of those approving managers on only one occasion. Based on that one approval, which he does not know to have been for a subsequently dishonored check, he merely assumed the Petitioner approved the others. An unsworn written statement to the investigator, Mr. Greer, by Kimberly Lantrip, an employee of another Food Lion store, indicates that Petitioner told the grocery manager it was OK to cash his wife's checks and hid the bad check register bearing his wife's name for several weeks when it came in. This evidence is clearly double and even triple hearsay evidence, however, and though admissible here, is of minimal probative value. Furthermore, neither were the checks themselves nor photocopies thereof were offered. Mrs. Smith, by sworn affidavit, also hearsay, indicated that at no time did Petitioner have any knowledge she had written checks in Food Lion stores, nor did he ever approve any for her or tell anyone else to cash them. This statement carries little evidentiary weight. Petitioner clearly had knowledge of his wife's prior check writing activity and, in fact, paid off several. He obviously failed to take appropriate action to correct her activity or to preclude her writing other checks at Food Lion stores. After the investigation, Satterfield met with Petitioner and other supervisors, and as a result of that meeting, where at least one supervisor recommended termination, Mr. Satterfield, who had observed Petitioner over the months in both training and as assistant manager and saw him do nothing wrong, nonetheless decided to put the Petitioner on indefinite suspension with pay pending further investigation. Mr. Satterfield then notified the Regional Supervisor and Mr. Legett, the Area Supervisor, of what he had done. The next he heard about it was when the constructive advice memo terminating Petitioner was issued. He thereafter had nothing more to do with the matter. Mr. Legett was satisfied at the way Petitioner took care of the first series of bad checks written by Petitioner's wife in the Spring of 1990. However, based on what he was told by Mr. Satterfield, and the information contained in the loss prevention investigation, he concluded that Petitioner was aware of the second series of bad checks his wife was writing and did not attempt to stop them. Based on this, which he found showed fraud and dishonesty on Petitioner's part, he decided to discharge Petitioner Before doing so, however, he discussed the matter with Food lion's Vice President for Personnel who agreed with the decision to discharge. While Petitioner's failure to take corrective action to preclude his wife from cashing any further checks at Food Lion stores reflects on his management ability and may support termination for that reason, absent a clear showing of his conspiracy with her, his encouragement of her actions, or his knowing acquiescence in her misconduct, it does not rise to the level of fraud or dishonesty. Regarding Petitioner's claim for damages, Mr. Legett indicates a proposed raise of $60.00 per week in 1990 is not justified. A maximum raise is $20.00 per 6 month increment based on performance. Not all managers get raises each year. In addition, continuing employees do not get paid for holidays they don't take off. If the time is not taken, it is lost. However, if a person is terminated, any unused accrued vacation time for that year is paid. By the same token, sick days are not compensated. Employees receive 2 percent of salary as a sick pay bonus at the end of the year unless too much sick leave is taken. In general, a sick day taken once a week results in a net loss, not earned bonus. Also, profit sharing is not a constant but varies year by year. In 1990 and 1991, the amount was 15 percent. The amount for 1992 had not been determined as of the hearing, but 15 percent is a maximum. In any case, employees do not become eligible to participate in the profit sharing plan until they have been with the company for 5 years. If the employee leaves before the five years are up, the accrued but unpaid profit sharing maintained in his name is forfeited and paid on a pro rata basis to other employees. The most Mr. Legett, an individual relatively high up in management, ever got was 2 percent. He has never received anywhere near 5 percent of his salary. Effective January 1, 1993, employees contribute $21.00 per month for insurance. Prior to that time, there was no contribution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Lee C. Smith's Petition for Relief from Unlawful Discrimination based on marital status, relating to his discharge from employment by Respondent, Food Lion, Inc., be dismissed. RECOMMENDED this 13th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 13th day of April, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6047 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: Respondent's counsel submitted Proposed Findings of Fact but failed to number them. They will be treated paragraph by paragraph, however, in this appendix. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and, except for references to hearsay evidence, incorporated herein. Mr. Koonce, the only individual interviewed by the investigator who appeared at hearing indicated he had seen Petitioner approve only one check for his wife and assumed from that, he had approved others. The balance of the hearsay evidence, though admissible for a limited purpose, is considered of minimal probative value. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Not a Finding of Fact but more a comment on the state of the evidence. Accepted only as to the showing that the issue of Petitioner's knowledge of his wife's check writing activities was a part of the related case involving discrimination based on race. Irrelevant to the issues herein. COPIES FURNISHED: Lee C. Smith P.O. Box 260922 Tampa, Florida 33685-0922 Steven C. Ellingson, Esquire Arnold & Anderson 1200 Peachtree Center Cain Tower 229 Peachtree Street, N.W. Atlanta, Georgia 30303 Margaret Jones Clerk Commission of 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
The Issue Whether the Respondent committed the violations alleged in the Second Amended Order of Penalty Assessment filed October 17, 2008, and, if so, the penalty that should be imposed.
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 Department is the state agency responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers in Florida secure workers' compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. Valou Enterprises is a Florida corporation located in Miami, Florida, which does business under the fictitious name of "Mr. Rooter Plumbing" ("Mr. Rooter"). Leslie McMillan is part- owner and the President of Valou Enterprises. Pedro Rolle is part-owner and the Treasurer of Valou Enterprises, and he is responsible for the business's day-to-day management. Welthial McMillan is part-owner and the Secretary of Valou Enterprises. Mr. Rooter is a franchise that engages in the business of providing plumbing services and repairs. According to franchise documents, among the services offered by Mr. Rooter are HydroScrubbing™ sewer lines to remove blockages; water heater installation; kitchen and bath installation and repairs, including faucets, sinks, tubs and toilets; and leak detection and water line repair and installation.2 On its website, Valou Enterprises advertises that Mr. Rooter provides full-service plumbing, including bath sinks, bathtubs and showers, drain pipes, faucets, floor drains, gas meters, gas vents, kitchen sinks, pipe repair, sewer lines, and water softeners.3 Mr. McMillan is a Florida-certified plumbing contractor, and he is the qualifier for Mr. Rooter. Mr. and Mrs. McMillan and Mr. Rolle, have elected, as officers of a corporation engaged in the construction industry, to be exempt from Florida's workers' compensation law, in accordance with the provisions of Sections 440.02(15)(b)2. and 440.05(3), Florida Statutes. Valou Enterprises hires plumbing technicians to provide plumbing services to Mr. Rooter's customers. These plumbing technicians are not licensed; rather, they work under Mr. McMillan's plumbing contractor's license. They do not receive a salary and do not have regular hours during which they must be at the Mr. Rooter office or at a jobsite. The plumbing technicians are paid commissions based on the work they perform, and they are required to supply their own tools. The plumbing technicians are on-call with Mr. Rooter at all times, but they only perform services for Mr. Rooter when actually dispatched to a job. When a plumbing technician is called and notified of a job, he is free either to accept or to reject the job. Mr. Rooter also dispatches plumbing helpers when a plumbing technician needs assistance. Valou Enterprises employs Catia Duque, who takes calls and dispatches plumbing technicians to Mr. Rooter jobs. Kenneth Mecure runs errands for Valou Enterprises part-time when needed, on a part-time basis. Late in the afternoon on Friday, June 27, 2008, a compliance investigator working for the Division of Workers' Compensation stopped at the Mr. Rooter office, which was located in a warehouse district. The visit was random, initiated when the investigator saw white vans parked in front of the office, with the name "Mr. Rooter Plumbing" and logo on the sides of the vans. When the investigator entered the office, she observed four men wearing shirts with the "Mr. Rooter Plumbing" logo. When the investigator requested information about Valou Enterprises's workers' compensation insurance coverage, Mr. Rolle referred her to Ms. Duque. Ms. Duque told the investigator that she would send whatever information she had regarding workers' compensation insurance coverage by facsimile transmittal, but the investigator did not receive any information from Ms. Duque. After her visit on June 27, 2008, the compliance investigator conducted research through the Coverage and Compliance Automated System database, which provides information on workers' compensation insurance coverage and exemptions. The investigator's research revealed that Mr. McMillan, Mrs. McMillan, and Mr. Rolle had exemptions from the workers' compensation law as officers of a corporation engaged in the construction industry and that none of the persons she observed in the Mr. Rooter office on June 27, 2008, were covered by a workers' compensation insurance policy. The investigator confirmed the lack of workers' compensation insurance coverage by consulting the website for the National Council on Compensation Insurance, Inc. ("NCCI"). The compliance investigator returned to the Mr. Rooter office on Monday, July 1, 2008, and spoke with Mr. McMillan. Mr. McMillan was unable to provide her with proof that Valou Enterprises had workers' compensation insurance coverage. The investigator then prepared a Stop-Work Order and an Order of Penalty Assessment, which she hand-delivered to Mr. McMillan on July 2, 2008, and posted at the Mr. Rooter office. At the same time, the investigator served Mr. McMillan with a Request for Production of Business Records for Penalty Assessment Calculations. The Stop-Work Order required Valou Enterprises to "cease all business operations for all worksites in the state." An Order of Penalty Assessment was included in the Stop-Work Order, in which Valou Enterprises was advised that a penalty would be assessed in an amount [e]qual to 1.5 times the amount the employer would have paid in premium when applying approved manual rates to the employer's payroll during periods for which it failed to secure the payment of workers' compensation required by this chapter within the preceding 3-year period, or $1,000, whichever is greater. Section 440.107(7)(d), F.S. In addition, the Order of Penalty Assessment also advised Valou Enterprises that a penalty of "[u]p to $5,000 for each employee who the Employer misclassified as an independent contractor" would be imposed pursuant to Sections 440.10(1)(f) and 440.107(7)(f), Florida Statutes. On July 3, 2008, the compliance investigator returned to the Mr. Rooter office. The office was closed, but she observed a white van turning out of the office parking lot. The van had the "Mr. Rooter Plumbing" name and logo on the side, and it was driven by Michael Dassell, a plumbing technician the investigator had met during her visit to the Mr. Rooter office on July 27, 2008. The investigator questioned Mr. Dassell, who told her that he was on-call that day. Mr. Dassell had not been dispatched on a job or called into the office but had gone to the office to pick up a commission check. Mr. Dassell had not been told that the Mr. Rooter office was closed on July 3, 2008. Mr. McMillan provided the compliance investigator the payroll and other records requested in the business records request. Based on these records, the compliance investigator calculated the penalty to be imposed on Valou Enterprises for its failure to have workers' compensation insurance coverage in the amount of $59,652.93. The investigator also imposed a penalty of $1,000.00 for a one-day violation of the Stop-Work Order and a penalty of $35,000.00 for "misrepresenting the status of the employee(s) as an independent contractor(s)." The total penalty of $95,652.93 was set forth in an Amended Order of Penalty Assessment that the investigator hand-delivered the order to Mr. McMillan on July 9, 2008. Valou Enterprises obtained workers' compensation insurance coverage effective July 4, 2008, and, on July 9, 2008, Mr. McMillan entered into a Payment Agreement Schedule for Periodic Payment of Penalty, remitting at the time a down payment of 10 percent of the penalty, or $9,566.00. As a result, an Order of Conditional Release from Stop-Work Order was entered on July 9, 2008. The compliance investigator subsequently recalculated the penalty assessment and prepared a 2nd Amended Order of Penalty Assessment dated October 17, 2008. The $35,000.00 penalty assessed for misclassifying employees as independent contractors was deleted for lack of evidence, and the final penalty assessment was in the amount of $60,652.93, which consisted of a $59,652.93 penalty for failure to secure workers' compensation insurance coverage for Valou Enterprises employees and a $1,000.00 penalty for violating the Stop-Work Order.4 The compliance investigator looked to the NCCI SCOPES Basic Manual of Classifications ("SCOPES Manual") for classification codes attributable to the various workplace operations of the persons working for Valou Enterprises. The classification code assigned by the compliance investigator to the plumbing technicians and plumbing helpers performing work for Valou Enterprises was Code 5183.5 According to the SCOPES Manual and to Florida Administrative Code Rule 69L-6.021(1)(r), Code 5183 is a code applicable to the construction industry and covers "Plumbing NOC and Drivers." The description of the scope of Code 5183 is stated in the SCOPES Manual in pertinent part as follows: Applicable to gas, steam, hot water or other types of pipe fitting. Includes house connections and shop operations. * * * Code 5183 is applicable to plumbing operations provided that the work performed is "not otherwise classified" (NOC). Insureds contemplated by Code 5183 may install, remove, or repair equipment that is used to direct gas or water supplies to a destination. This equipment includes but is not limited to piping and related fixtures, appliances, and accessories. No limits have been established as to the size of the pipe being repaired or installed. The operations contemplated by Code 5183 also include "the cleaning of building sewer connections using portable equipment" and "the installation or service of domestic water softener systems." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 5183 was $10.04 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 5183 was $8.13 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 5183 was $6.75 per $100.00 of payroll.6 The classification code found in the SCOPES Manual assigned to Ms. Duque and to Paul Anderson, who was a clerical worker in the Valou Enterprises office in 2006, was Code 8810. According to the SCOPES Manual, Code 8810 covers "Clerical Office Employees."7 The description of the scope of Code 8810 is stated in the SCOPES Manual in pertinent part as follows: "The duties of a clerical office employee include . . . telephone duties." The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 8810 was $.58 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 8810 was $.48 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 8810 was $.37 per $100.00 of payroll.8 The classification code assigned by the compliance investigator to Kevin Mecure, a part-time employee who ran errands for Valou Enterprises, was Code 7380.9 According to the SCOPES Manual, Code 7380 covers "Drivers, Chauffeurs & Their Helpers NOC - Commercial." The description of the scope of Code 7380 is stated in the SCOPES Manual in pertinent part as follows: "The term "drivers" refers to employees who engage in duties on or in connection with vehicles " The approved NCCI Manual rate in Florida effective January 1, 2006, for Code 7380 was $12.20 per $100.00 of payroll; the approved NCCI Manual rate in Florida effective January 1, 2007, for Code 7380 was $10.18 per $100.00 of payroll; and the approved NCCI Manual rate in Florida effective January 1, 2008, for Code 7380 was $8.74 per $100.00 of payroll.10 The compliance investigator calculated the total penalty attributable to Valou Enterprises's failure to provide workers' compensation insurance coverage for the plumbing technicians, clerical workers, and drivers using the Department's Penalty Worksheet. She obtained the names of each of the individuals included in her calculations and the amount of the gross payroll for each individual from the payroll information provided by Mr. McMillan in response to the business records request. The compliance investigator calculated the penalty as follows: She listed Valou Enterprises's employees on the Penalty Worksheet; assigned each employee a classification code based on the definitions of workplace operations that most closely described the work they performed for Valou Enterprises; set out the dates during which Valou Enterprises did not provide workers' compensation insurance coverage11; entered the annual or pro-rated gross payroll for each employee during the period of non-compliance; divided the gross payroll for each employee by 100; set out the approved manual rate for each employee during the period of non-compliance in accordance with his or her classification code; determined the premium that Valou Enterprises would have paid for workers' compensation insurance coverage for each employee during the period of non-compliance by multiplying the approved manual rate and one one-hundredth of the gross payroll for each employee; calculated the penalty attributable to each employee during the period of non- compliance by multiplying the premium for each employee by 1.5; and, finally, calculated the total penalty owed by Valou Enterprises attributable to its failure to secure workers' compensation insurance coverage for its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Valou Enterprises, Inc., d/b/a/ Mr. Rooter Plumbing, failed to secure workers' compensation insurance coverage for its employees in violation of Section 440.38(1), Florida Statutes, and imposing a penalty in the amount of $59,652.93 for the failure to provide the required workers' compensation insurance coverage. DONE AND ENTERED this 28th day of April, 2009, in Tallahassee, Leon County, Florida. 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 28th day of April, 2009.
The Issue Did Respondent, Commercial Concrete Systems, LLC (Commercial Concrete), discriminate against Petitioner, Bernard Maybin, because of his race or color?
Findings Of Fact Mr. Maybin was an employee of Commercial Concrete in 2019. Mr. Maybin is a dark-skinned African-American. In 2019, Commercial Concrete reprimanded Mr. Maybin for tardiness and absenteeism on January 18, April 15, and August 16, 2019. On November 8, 2019, Commercial Concrete terminated Mr. Maybin for being absent all of the preceding 30 days. This was consistent with its policy of terminating employees who were absent for thirty days without communicating with the company. During at least some of the days that he was absent, Mr. Maybin was recovering from an automobile accident. He advised Commercial Concrete of the accident. But he did not advise it which days he would be unable to work due to the accident or request leave. He also did not communicate with Commercial Concrete during the period of absenteeism, beyond advising it of the accident when it first occurred. There is no evidence that any non-African-Americans or light-skinned employees with attendance failings similar to Mr. Maybin's were treated differently than him. There is no evidence of statements by any manager or other employee of Commercial Concrete alluding to Mr. Maybin's race or color. There is no evidence that non-African-American or light-skinned employees were paid more than Mr. Maybin or received vacation pay that he did not, although his petition makes that allegation. When Commercial Concrete discharged Mr. Maybin, it was not aware that he had filed a complaint of discrimination with the Commission.
Recommendation Based on the preceding 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 of Petitioner Bernard Maybin. 2 Federal case law dealing with Title VII applies when interpreting chapter 760. School Bd. of Leon Cty. v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981). DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 9th day February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Peter Shoup Commercial Concrete Systems, LLC 6220 Taylor Road, Suite 101 Naples, Florida 34109 Bernard Maybin 290 Lowell Avenue North Fort Myers, Florida 33917 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
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
