The Issue Whether Respondent, L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. and its surety, Western Surety Company owes Petitioner $4,210.00 for East Palatka Holly Trees.
Findings Of Fact Petitioner A.D. Andrews, Inc. is a producer of agricultural products, pursuant to Section 604.15 (9), Florida Statutes. Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapes, Inc. is a dealer in agricultural products pursuant to Section 604.15 (2), Florida Statutes. Respondent’s surety is Western Surety Company Teal Pomeroy, a salesman for Petitioner, and Pat Tronzano, Purchasing Manager for Respondent, have a business history representing their respective principals. All previous dealings have been satisfactory, and they share a mutual respect. While at a trade show in Orlando, Florida, Teal and Tronzano entered into an oral agreement for the sale of 31 East Palatka Holly bushes/trees (30 at the rate of $135.00 each, and one for $160.00) at a total price of $4,210.00, due from Respondent to Petitioner. Neither participant in this arrangement testified to any oral terms covering “point of sale” or a guarantee of any condition of the hollies at a final destination. Neither participant testified that a standard course of business on these issues had arisen between them as a result of their prior transactions. On October 9, 2007, Mr. Tronzano sent a third party freighter (trucker) to pick-up the hollies at Petitioner's nursery in Chiefland, Florida, and transport them, at Respondent’s expense, to Selena, Texas, for planting and landscaping by Respondent. Mr. Tronzano did not accompany the third party freighter to Petitioner's nursery or on the subsequent trip to Texas. He never saw the hollies in question prior to loading or while they were still on the truck after loading. The trucker selected by Respondent was one specially skilled in the transport of landscape plants, and Respondent has successfully used him for prior purchases and transports. The third party freight truck arrived at Petitioner’s Chiefland, Florida, nursery at approximately 11:00 a.m. on October 9, 2007, before all the hollies had been dug up. However, the trees that were ready to load and those that had to be dug up were loaded by Petitioner, and by 2:00 p.m., the truck, fully loaded, left Petitioner’s property. Petitioner’s invoice clearly states: ATTENTION: If these trees are not in satisfactory condition when received, do not accept them. We do not replace trees. Please note any discrepancies or problems with materials. The invoice does not show the trucker noted any problems with the hollies. The trucker also signed the delivery ticket under the statement, “I acknowledge that trees were received in good condition.” Approximately 48 hours later, Mr. Tronzano received a report from Texas that when the freighter delivered the hollies to the Selena, Texas site, some hollies were dead and other were dying. Mr. Tronzano did not personally witness anything at the final destination. Respondent's photographs in evidence, the date of which has not been automatically printed on them, show some trees which had already been unloaded in Texas with dried- out root balls. They show no trees with dried-out root balls still on the truck. All photographs show intact root balls, although they are dusty and some trees are clearly dead or dying. One tree is dead in a pot. Although it had taken Respondent’s trucker approximately 48 hours to get the hollies to their ultimate destination in Texas, the normal driving time is 16-20 hours. Because federal regulations require a period of rest for commercial drivers every eight hours, Respondent put forth the theory that because there had been a delay of three hours at Petitioner’s nursery while some hollies were dug up and loaded, the delaying effect of three hours snowballed to a total delay of as much as 22-28 hours for the truck’s arrival time at the final destination. This theory is speculative and unsubstantiated by the evidence. Despite some earlier attempts, Respondent did not notify Petitioner of the condition of the hollies at the final destination until October 15, 2007. Respondent concedes that 11 of the 131 hollies were accepted in good condition. Whether one of the survivors was the single holly tree sold for $160.00, is not in evidence. Respondent has not paid Petitioner for any of the hollies. Mr. Tronzano has not had a dry-out problem like this one in ten years. Respondent's second theory of why the hollies arrived at the Texas destination in poor shape is an assertion that the way Petitioner processed and handled the harvesting of the hollies adversely affected their health. Respondent speculates that Petitioner’s digging and immediately loading the just-dug hollies onto the truck sent by Respondent resulted in shock to the hollies’ root systems so that the root systems dried out. Mr. Teal and Mr. Tronzano agree that previous trees (not necessarily East Palatka hollies) sold by Petitioner to Respondent had been "pre-dug" and "staged" by Petitioner in anticipation of the arrival of the freighter. “Staging” means that Petitioner dug up the trees, put them on a trailer, and took them to a centralized loading area at the nursery for Respondent’s pick-up. According to Mr. Teal, the foregoing “pre-dig and stage” method prevents "double-handling" of trees, but many trees are dug up only when a truck arrives at the nursery to take them away. Mr. Teal was not present at the nursery on October 9, 2007, but opined that if the hollies on this occasion had been pre-watered, they would be unlikely to die of shock, despite being dug up and loaded right away. Moreover, the particular trees sold to Respondent came out of a field that Petitioner irrigates, so "dry out" should not have been a problem. Mary Andrews works in Petitioner's business office. She did not know about Respondent's order until the truck arrived on October 9, 2007, but she managed the "dig and load" within three hours of the truck’s arrival. She testified that Petitioner digs trees throughout the year so that when a truck arrives, the trees have not been sitting dry in a field for lengthy periods of time. Petitioner sold 3500 similar trees in the previous year without any dry-out problems. Petitioner had admitted in evidence, without objection, Florida Division of Forestry rainfall records for three locations near Petitioner's nursery. All three official records show six inches of rainfall for the week immediately preceding October 9, 2007. Petitioner maintains that the trucker should have watered the hollies en route. Respondent believes the trucker did water them, but the trucker did not testify, so there is no direct evidence that the trucker watered the hollies en route. The parties have tried to work this situation out, but their respective offers of compromise are not admissible herein, pursuant to Section 90.408, Florida Statutes.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered that Respondent L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., shall pay Petitioner, A.D. Andrews Nursery, Inc., the sum of $4,210.00, and that if L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc., fails to pay Petitioner, A.D. Andrews Nursery, Inc., within 30 days of the final order, then Respondent, Western Surety Company, shall pay the Department as required by Section 604.21, Florida Statutes, and that the Department reimburse Petitioner in accordance with Section 604.21, Florida Statutes. DONE AND ENTERED this 3rd day of June, 2008, in Tallahassee, Leon County, Florida. S 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 3rd day of June, 2008. COPIES FURNISHED: Teal Pomeroy Qualified Representative A.D. Andrews Nursery, Inc. Post Office Box 1126 Chiefland, Florida 32644-1126 Pat Tronzano Qualified Representative L.M.I. East, Incorporated d/b/a L.M.I. Landscapers, Inc. 1437 Halsey Way Carrollton, Texas 75007-4410 Richard D. Tritschler, General Counsel Department of Agriculture and Consumer Services 407 South Calhoun Street, Suite 520 Tallahassee, Florida 32399-0800 Honorable Charles H. Bronson Commissioner of Agriculture Department of Agriculture and Consumer Services The Capitol, Plaza Level 10 Tallahassee, Florida 32399-0810 Western Surety Company Post Office Box 5077 Sioux Falls, South Dakota 57117-5077
Findings Of Fact Maribel Mackey is the sole proprietor of Petitioner Maribe1 Mackey Landscaping. As a woman of Hispanic heritage (Cuban), she falls into two of the presumptive categories of socially and economically disadvantaged individuals. Petitioner is a landscaping company started in April, 1990, by Maribel Mackey as its sole owner. The company does not itself perform either irrigation or sod work as was sworn to on its application; rather, it subcontracts those items of work when they are required under a contract. Petitioner conducts business out of the home of Maribel and Robert Mackey at 5032 S.W. 121 Avenue, Cooper City, Florida. Robert and Maribel Mackey were married in March, 1988. Maribel Mackey had no prior experience in the landscaping business prior to starting her business. Robert Mackey is the sole shareholder of a landscaping company known as Robert Mackey Landscaping, Inc., incorporated in 1988. Prior to the formation of that business entity, Robert Mackey was the sole proprietor of Robert Mackey Landscaping from approximately 1982 to 1988. In total, Robert Mackey has been in the landscaping business for approximately 17-18 years. Robert Mackey also conducts his 1andscaping business out of the home he shares with Maribel. Both businesses share the same office in the Mackey home and share the same office equipment, which includes: a desk, a phone (which doubles as their home phone), a file cabinet, a copying machine and a fax machine. Robert Mackey acts in more than an advisory capacity with Petitioner. Robert Mackey also assisits Maribel Mackey with bid estimating and in the supervision of field operations. Robert Mackey has also helped Maribel Mackey Landscaping to obtain credit for the purchase of landscaping supplies at nurseries and in the leasing of equipment used in the landscaping business. Robert Mackey performed and/or assisted Maribel Mackey in putting together a Proposal on the Kathcar Building. The original of this Proposal was done on a form of Robert Mackey Landscaping and was signed by Robert Mackey. The copy forwarded to the Department and admitted as an exhibit during the final hearing had been altered to reflect Petitioner's name and the signature of Maribel Mackey had been added to that of Robert. Robert and Maribel Mackey maintain a line of credit in the amount of $100,000. This line of credit is available to both of them for either personal or business purposes and requires both signatures. This line of credit is secured by a mortgage on the Mackeys' personal residence. Maribel and Robert Mackey have an informal, oral agreement not to compete with each other in the landscaping business. Maribel Mackey is prepared to forfeit substantial profits on behalf of Petitioner by referring potential landscaping jobs to her husband's company. Maribel and Robert Mackey, as part of this agreement, have agreed that Petitioner will concentrate exclusively on public or government projects, while Robert Mackey Landscaping will concentrate exclusively on private projects. Petitioner has, however, done private work, and Robert Mackey Landscaping has done public work and currently has a bid in on another public project. In addition, Maribel Mackey's business card states on its face that Petitioner performs "residentia1 and interior" work. Petitioner is currently certified as a Women's Business Enterprise and/or a Minority Business Enterprise with the following governmental entities: Broward County, The School Board of Broward County, and Palm Beach County. Broward County, in its evaluation of Petitioner's application to be certified as a WBE/MBE, did not visit Petitioner's place cf business to conduct an on-site interview with Maribel Mackey. Broward County, when it certified Petitioner as a WBE/MBE, did not know that Petitioner shared the same office space and equipment with Robert Mackey Landscaping. Broward County also did not know that Robert Mackey had his own landscaping business or that he had been in the landscaping business for approximately 17-18 years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner Maribel Mackey Landscaping certification as a Disadvantaged Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of January, 1991. LINDA M. RIGOT Hearing Officeer 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 January, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-5830 Petitioner's proposed findings of fact numbered 1-3 and 5 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4 and 6-8 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 9-11 have been rejected as not constituting findings of fact but rather as constituting argument. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. COPIES FURNISHED: William Peter Martin Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458 Maribel Mackey 5032 Southwest 121 Avenue Cooper City, Florida 33330 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street, M.S. #58 Tallahassee, Florida 32399-0458
Findings Of Fact Respondent, Robert W. Thomas, in August 1982 operated as a contractor under the trade name AA Custom Builders, Inc., at 2505 North Magnolia, Ocala, Florida. Respondent's Florida license as a registered general contractor expired on January 31, 1982. His license as a registered air conditioning contractor expired on June 30, 1976. His license as a registered roofing contractor expired on January 31, 1982, and his license as a registered mechanical contractor expired on January 31, 1982. All above dates are prior to the date of the offenses alleged in the Administrative Complaint. In late July or early August 1982, Mr. John J. Hicks, a resident of Belleview, Florida, answered Respondent's advertisement in the Marion Shopper. Respondent came to the home of Mr. Hicks and on August 3, 1982, acting under the name AA Custom Builders, Inc., submitted a proposal to Mr. Hicks, wherein he agreed to build an extra bedroom on the Hicks' home for a total of $3,700. Of this amount, $1,000 was to be paid when the material for construction was delivered, and the balance of $2,700 to be paid on September 5, 1982. Mr. Hicks accepted the proposal by affixing his signature the same date. Certain materials were delivered by Ferguson Lumber Company on August 9, 1982, and on that same date Mr. Hicks gave to Respondent a check in the amount of $1,000, payable to Robert Thomas, which was subsequently endorsed by Robert Thomas, d/b/a AA Custom Builders, and deposited to that account at Respondent's bank. Thereafter, Respondent prepared the foundation, laid the blocks, put down plywood flooring, and erected the walls up to the lineal height. No work was thereafter done for several days, during which it rained, after which Respondent one day advised Mr. Hicks he would not finish the job and that Mr. Hicks would have to pay the bill for materials. Just about that time, the lumber company, at the request of Mr. Secor, Respondent's partner/employee, to whose personal account at the lumber company the supplies for this project had been billed, came out and collected all unused materials. Thereafter, Ferguson Lumber Company sent Mr. Hicks a bill for the balance owing of $603. When Mr. Hicks received his bill, he called Respondent, who told him that he, Hicks, would have to pay it. Respondent came out to the Hicks' home on August 19, 1982, and asked Mr. Hicks for the original proposal they had signed. Hicks gave it to Respondent, who in return gave him a letter stating Respondent would not complete the project and including a breakdown of the expenditures of the $1,000 Hicks had previously showed. This breakdown reflects $132.37 paid for materials, $316.63 to Paul Cook, and $250 to Ed Secor. In his testimony at the hearing, Respondent indicated he had paid Cook $316, Secor $350, $113 for some materials, $400 to another laborer, and $1,002.90 for materials for the Hicks job. This last figure was to have been paid by check, but the cancelled check was not available, and there was no showing that the bill to Ferguson Lumber had been paid other than by Mr. Hicks and Mr. Secor, who Hicks called in to finish the job and with whom Hicks split the bill for $603. The total on the breakdown left with Hicks by the Respondent on August 19, 1982, was exactly $1,000--the amount of the deposit. However, the payments testified to by Respondent at the hearing come to far more than the amount paid, and there is substantial evidence that both sets of figures are in error. For example, Secor states that of the money he received from Respondent, only $100 was for the work on the Hicks property. Further, Mr. Hicks was present when Cook was paid with $200 in case--not the $316 or $317 Respondent said he paid. In light of the above, it is clear that Respondent does not know where the $1,000 he was paid by Hicks was spent, but that much of it was diverted to pay expenses for material and labor for other jobs. It was because Secor, to whose account the material for this construction was billed, pulled out of the relationship with Respondent and caused the unused materials to be repossessed by Ferguson Lumber Company, that Respondent was unable to continue with the construction. Though his inability to continue may not have been motivated by any improper motive, he did nonetheless abandon the contract without excuse or justification, and his conduct caused a loss to the innocent consumer, Mr. Hicks. AA Custom Builders, Inc., under which name Respondent contracted with Mr. Hicks, wasn't properly qualified with the licensing authorities of the State of Florida by Respondent or anyone acting in his behalf.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED: That Respondent, Robert W. Thomas, be reprimanded and that he be assessed an administrative fine of $1,000. However, it is further recommended that the administrative fine be reduced by whatever amount the Respondent pays in restitution to Mr. Hicks for the loss he occasioned up to the amount of $693 plus accrued interest. DONE AND ENTERED this 14th day of October 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1983. COPIES FURNISHED: Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Robert W. Thomas 2505 North Magnolia Ocala, Florida 32670 Mr. Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. James Linnan, Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32202
The Issue This case concerns the action brought by the Petitioner against the Respondent under the alleged authority found in Section 120.56, Florida Statutes, which attacks certain memoranda received by the Petitioner on July 24, 1980, directed to him by officials within the Respondent agency, the text of which purportedly caused the Petitioner's termination or dismissal from employment for reason that the Petitioner had failed to gain the permission of the Respondent to run for public office in the State of Florida. The proceeding is promoted as a rules challenge.
Findings Of Fact The Petitioner, George Nelson, was a permanent status Career Service employee on July 14, 1980, working for the State of Florida, Department of Agriculture and Consumer Services, Division of Forestry. His specific employment was a firefighter. On the subject date, by correspondence directed to an official within the Division of Forestry, namely, Larry Wood, the Petitioner notified the Respondent of his intention to run for a School Board Seat, District IV, in Wakulla County, Florida. A copy of that notification may be found as Petitioner's Exhibit No. 1, admitted into evidence. As stated in the correspondence, Nelson had made an attempt to determine the necessary steps to gain the approval of his agency before taking the oath of candidacy for the aforementioned position. (This request was made following a conversation with the same Larry Wood held on July 10, 1980, on the subject of Nelson's candidacy. On July 10, a letter was sent addressed only to "Larry" and at Mr. Wood's instigation the subsequent letter of July 14, 1980, was dispatched referring to Wood as "Mr. Larry Wood", for appearance sake.) As set forth in the Nelson correspondence, the last date for qualifying for the School Board position was July 22, 1980, at 12:00 Noon. Prior to that date, the Petitioner's request to run was forwarded through the decision-making channels within the Division of Forestry. At the time Nelson dispatched his letter of July 14, 1980, there was some concern expressed by Wood to the effect that there might be some scheduling conflict between Nelson's primary employment duties as a forest ranger and his duties as a School Board Member; however, Wood indicated that the scheduling matter could probably be accommodated. Wood offered no guarantee to the Petitioner that the request to run for office would be approved by the appropriate agency officials. On July 18, 1980, and again on July 21, 1980, officials with the Division of Forestry orally indicated to the Petitioner that he would not he allowed to run for the School Board. In view of the fact that the last day for qualifying was July 22, 1980, the Petitioner determined to offer his candidacy without the permission of his agency head and on that date he took the loyalty oath for public office for the School Board, District IV, Wakulla County, Florida, as may be seen by Petitioner's Exhibit No. 4, which is a copy of the Loyalty Oath and the Oath of Candidacy and Statement of Candidacy. On July 23, 1980, Larry Wood, District Forester and supervisor to the Petitioner, contacted the Petitioner to inquire why the Petitioner had offered his candidacy without permission of the agency. The Petitioner responded that he did so because he did not feel that there was any conflict between school board duties and that of forest ranger. Wood informed him that he would hear from the Division of Forestry on the subject. Following the conversation with Wood, on July 24, 1980, the Petitioner received two items in response to his request. One of those items was dated July 21, 1980, from John M. Bethea, Director, Division of Forestry, addressed to Larry Wood, in which the subject of the Petitioner's candidacy was discussed and the indication given that it would not be approved due to scheduling problems and conflict and controversies "that are generated by any local governmental political body". The memorandum went on to say, "These controversies might affect the Forestry Division's ability to carry out the responsibilities with the very segments of the public." A copy of this memorandum may be found as petitioner's Exhibit No. 2, admitted into evidence. The second item received by the Petitioner on July 24, 1980, was dated on that date, and addressed to George Nelson from Larry Wood, indicating a denial of the petitioner's request to run for public office. This correspondence may be found as Petitioner's Exhibit No. 3, a copy of which has been admitted into evidence. After the Petitioner had received the memoranda discussed herein, there ensued a series of meetings between the Petitioner and various officials within the agency in which the agency tried to persuade him to withdraw his candidacy in view of the fact that he had not gained their permission to run for the school Board. Throughout these discussions, the Petitioner continued to assert the conviction that unless some conflict of interest could be shown to him, he did not intend to withdraw as a candidate. In the discussions, the agency further stated that the choices open to the Petitioner were ones of resignation from his position as A Forest Ranger or withdrawal from the School Board race. They also stated that if he were caused to resign, there could be no rights to appeal beyond that point. In the course of the process, the Petitioner met with Director Bethea, who explained the Director's position on the Petitioner's right to run for office and reiterated his opposition, based upon his problems of scheduling to accommodate the needs of the Division of Forestry and the needs of the school Board of Wakulla County and also the concern of possible conflicts and controversies arising out of the necessity for forest rangers to go on the property of the citizens of the several counties in the State of Florida and the fact that this might create a problem in view of the nature of the functions of a school board member. Although the Director generally held the philosophy that employees in positions such as the Petitioner's should not normally be allowed to run for local office, he did not absolutely foreclose the possibility that someone might persuade him to the contrary and thereby cause him to allow them to seek a local office. Each case would be reviewed on its own merits. The matter was also presented before representatives of the Commissioner of Agriculture and Consumer Services, who took the same position as had been taken by the other authorities within the department, and again the Petitioner indicated that he would decline to withdraw as a candidate. Following the meeting with the Department officials, Wood made one other contact to ascertain if the Petitioner had changed his mind about withdrawing his name as a candidate and the Petitioner indicated that the had not. Subsequent to that latter conversation with Wood, the Petitioner was hand-delivered a letter dated August 12, 1980, which may be found as Petitioner's Exhibit No. 5. This letter informed the Petitioner that he was deemed to have resigned his position as Forest Ranger effective August 15, 1990, and offered as a statement of authority Subsection 110.233(4)(a), Florida Statutes. After August 15, 1980, the Petitioner was removed as a permanent party Career Service employee with the Respondent. Following his dismissal, the Petitioner through his counsel in the subject case has attacked the Joint Exhibit Nos. 2 and 3 pursuant to Section 120.56, Florida Statutes, by contending that those aforementioned exhibits constitute invalid rules for reason that they were not duly promulgated. The Petitioner continued to work beyond August 15, 1980, and was eventually reinstated as a probationary employee with the Division of Forestry and holds the position of probationary Forest Ranger at this time.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.
Findings Of Fact For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question. The allowable claim for back pay is therefore $52,805.89. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case. ENTERED on April 26, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 26, 1993. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 Michael M. Disler Trombley, Lobozzo, et al. 329 South Commerce Ave. Sebring, FL 33870
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of discrimination against the Petitioner on account of his sex (male). Embodied within that general issue are questions concerning whether the termination of the Petitioner from his job with the Respondent is an example of disparate discipline versus that meted out to female employees similarly situated; whether he was replaced by a person outside his protected class; and whether the Respondent's reasons for the termination were a pretext for intentional discrimination.
Findings Of Fact The Petitioner, at times pertinent hereto, was a male employee of the Respondent and was a "lead line operator" on a plywood manufacturing production line at the Respondent's plywood mill located in Hinson, Florida. The Petitioner claimed that he was subjected to a discriminatory employment practice on account of his sex (male), by being terminated based upon an altercation he got into with a female employee, who was not disciplined. The Respondent is a forest-products company producing lumber and plywood at its mill in Hinson, Gadsden County, Florida. The Respondent is an employer, an envisioned by Section 760.10, Florida Statutes, and the Petitioner at times pertinent hereto was its employee. On November 16, 1993, the Petitioner engaged in an altercation with another employee, Angela Brown, a female, the ultimate result of which was that he was terminated by the Respondent for threatening another employee. The Respondent has a "zero tolerance policy" for instances where employees threaten other employees. Pursuant to its written employee disciplinary policy, it can, in its discretion, immediately terminate such an employee, rather than engage in its four-step, gradual disciplinary procedure. No management personnel with employment disciplinary authority of the Respondent company witnessed the incident. The management with such decision-making authority gained its knowledge of the incident and made its decision based upon the results of the company's investigation of the matter, including conducting interviews with, and taking statements from, witnesses to the incident. The incident occurred approximately 6:15 a.m. on the "graveyard shift", which ran from 11:00 p.m. at night to 7:00 a.m. in the morning. The incident occurred when the Petitioner observed that the production line had stopped, with the stoppage appearing to occur at or near Angela Brown's work station. The Petitioner went to her work station to see what the problem was, suspecting that she was "sleeping on the job". After straightening the veneer sheets lying on the production line conveyor, the Petitioner set the production line in motion, at which point he was standing behind Ms. Brown, out of her eyesight. While helping her straighten the veneer on the production line, he had been standing directly to her right. When he re-activated the line, he had gone back to the area of the control box and was standing behind her where she was unable to see him. He did not tell her that he had moved to the position to her right rear, after straightening the veneer. During questioning by his counsel, the Petitioner stated that he was standing back by the control box after he turned the production line back on and immediately before Ms. Brown hit him with a piece of veneer. Later in his testimony, the Petitioner claimed that he was standing beside her at the point when she discarded the veneer. The preponderant evidence establishes that the Petitioner was standing to the right rear of Ms. Brown at the time she discarded the veneer in question. She believed that he had left her area and did not know that he was still standing behind her because her back was to him. She did not have time to check behind her to see if anyone was there before discarding the piece of plywood veneer because the production line moves at a rapid rate. She therefore had to concentrate and watch the plywood as it came by, in order to timely remove defective pieces of veneer. It is common practice for employees or managers to notify an employee at a work station that they are behind them, so that the employee will know not to throw defective sheets of plywood off the production line, thus, potentially hitting someone standing behind them. The Petitioner did not notify Ms. Brown that he was still behind her, and she did not know that he was there, thinking he had left her area. After he re-started the conveyor, and Ms. Brown believed that he had left her area, another defective sheet of veneer came down the production line. The trailing edge of the veneer was defective. When a trailing edge of a piece of veneer is defective, it is common practice for an employee to discard it to his or her right rear and throw it off the production line. If the leading edge of the veneer had been defective, it would have been discarded to the left rear of the employee removing it from the production line. When the sheet of veneer came down from the "sheet drop", and Ms. Brown noticed the trailing edge as defective, she started removing the wood from the production line. She pulled the sheet off to the right in the normal procedure for this sort of defect. The Petitioner maintained that she threw the wood at him intentionally, as evidenced by his view that she was not throwing the wood off on the correct side. However, Ms. Brown, as corroborated by witnesses Strickland and Jenkins' testimony, stated that it is common practice for employees to pull veneer off to the right when it is defective on its trailing edge. There was only one piece of veneer to be discarded by Ms. Brown. She picked the veneer up and had to fold it in order to handle it and get it out of her way. She folded the veneer and threw it to her right rear, striking the Petitioner on or about the nose. After she discarded the piece of veneer and struck the Petitioner with it, he immediately pushed her with his hands and raised a fist up as if to strike her. In his testimony, he stated his position that Ms. Brown remained stationary at the point when she allegedly hit him with a second piece of veneer. He denied that she had taken steps backward from her position towards the production line and away from the Petitioner. He maintained, instead, that she had taken aggressive steps toward him. Witness Chadwick Jenkins, however, who was located three to ten feet away during the incident, saw Ms. Brown take two steps backward towards the production line, retreating from the Petitioner. This was consistent with Ms. Brown's testimony that the Petitioner had pushed her backwards. The Petitioner testified that Ms. Brown hit him with two pieces of wood veneer. His testimony indicates that he claims that she folded the piece of veneer and started to throw it or "yank it around", but that, in effect, it broke into two pieces, and he was hit with the top piece which she had in her hands, the bottom half having fallen on the floor. Then, according to the Petitioner, she reached down, picked that other piece up, threw it, and hit him with it. Ms. Brown denies his claim that he was hit with two pieces of veneer. On direct examination, she was emphatic in saying that she did not throw two pieces of veneer, that the sheet was too big and that she had to fold it to remove it from the production line, and that only one sheet was involved. She had to act quickly in throwing it off the production line to keep the line clear and moving. The sheet did not split in half. The Petitioner also testified that Ms. Brown looked him "dead in the eye" when she allegedly threw two sheets of veneer at him. Ms. Brown denies this, stating that she did know that the Petitioner was even behind her, because she was looking at the production line and that it was necessary to look at the line in order to see the defective sheet of veneer and to be able to reach down and discard it before the line moved past her position. This testimony is corroborated by that of Mike Strickland, the "lay-up line superintendent", who testified to the effect that, in order to discard wood from the production line, one has to be looking at the line and facing the line with one's body so that one's hands and eyes coordinate, in effect, to remove the sheet of veneer from the production line. When this is done, because of time constraints, one must simply pick up the sheet, pull it around and discard it behind you in one quick motion, keeping eyes and body facing the production line. This testimony corroborates that of Ms. Brown to the effect that she was looking at the production line and did not realize that the Petitioner was behind her or realize that she had hit him with the wood until he forcibly pushed her. Additionally, the testimony of Chadwick Jenkins and Donald Cooper corroborates Ms. Brown's version of events. Mr. Jenkins testified that Ms. Brown folded the sheet up and grabbed it by the end to remove it, and he knew that this was the only sheet removed because he only had to replace one sheet of veneer to the production line. Mr. Cooper saw only one piece of veneer thrown or discarded. He had an unobstructed view of those events, and the Petitioner himself corroborated the fact that the view was clear from where Mr. Cooper was located at the far end of the line to the place where the incident occurred. The Petitioner testified that one can see all the way down the line while walking up and down the line. Mr. Cooper was in a position to see the incident because he was on a raised platform. Thus, the totality of credible, preponderant evidence establishes that Ms. Brown hit the Petitioner with only one piece of veneer. The evidence also establishes that Ms. Brown's striking of the Petitioner with the single piece of veneer was not intentional. After the piece of veneer inadvertently struck the Petitioner, he immediately shoved Ms. Brown and raised his fist as if to hit her. He testified that he was merely acting in self defense because he "just wanted her to quit coming up on me". The Petitioner's version of the events is that Ms. Brown walked into his outstretched hand. In fact, witness Jenkins stated that he saw the Petitioner with his fist up in the air and his other arm out straight. Mr. Jenkins further testified that when the Petitioner raised his fist in anger, he appeared to be in control of himself and to be aware of exactly what he was doing. Mr. Jenkins' observation of those events led him to interpret the situation to the effect that "it looked like he was fixing to hit her". Mr. Cooper saw the Petitioner as "Howard pushed her and he took his hand back and drew back to punch her". Mr. Cooper testified that when the Petitioner drew back as if to punch Ms. Brown, she looked as if she was in shock. Mr. Cooper saw no indication that Ms. Brown had advanced on the Petitioner and walked into his outstretched arm. Ms. Brown testified in a similar manner stating that when she inadvertently hit the Petitioner with the sheet of veneer, "He pushed me hard like this (indicating) and he told me that he would knock my 'm-f' off, and I told him he was 'f'ing' crazy. . . . Q: OK. Did you feel threatened at that point? A: Of course. As big as he is. Of course, I felt threatened. I thought he was going to knock me out. Q: What was your natural response at that point? A: I told him he was crazy. I got away from him. " The Petitioner claimed for the first time, during his closing statement made at the unemployment appeals hearing, that he felt threatened about falling into the production line conveyor chain. The testimony of both Mr. Jenkins and Mr. Cooper, however, belies the Petitioner's position in this regard. They established that the Petitioner was not pushed toward the chain and that Ms. Brown did not move toward him in an aggressive manner or move toward him at all. The Petitioner remained stationary during the incident and was never in a position so that he could have been in danger of falling on the production line chain. The specific opening which the Petitioner claimed he could have fallen into was protected by guardrails, as shown by witness Jenkins. Ms. Brown told the Petitioner that she was going to tell Earl Lee, their supervisor, about the incident. She walked to the end of the production line looking for her supervisor and saw Mr. Cooper, who directed her to Mr. Lee's location. Ms. Brown then went upstairs and found Mr. Strickland, the lay- up line supervisor, and Earl Lee to tell them about the incident. Although the Petitioner maintains that Ms. Brown was the aggressor in the incident and that he was only defending himself, the Petitioner never made an effort to notify anyone of the incident. Upon Ms. Brown's report of the incident, an investigation was commenced by the company to determine what had happened and who was at fault. The investigation began with Mr. Lee questioning Ms. Brown and the Petitioner about the incident. During the questioning, the Petitioner told Mr. Lee, Jim Stelbasky, and Mike Strickland, all supervisory personnel, that he would have hit Ms. Brown if she had been a male. Ms. Brown gave details of the incident to Mr. Lee, as well. She told Mr. Lee that she hit the Petitioner with some veneer but that it was accidental. Witnesses Jenkins and Cooper gave statements to Mr. Lee about the incident. Each claimed that they were witnesses to the incident in whole or in part. They gave statements concerning their observations regarding the incident to Mr. Lee, which are contained in Respondent's Exhibits 11 and 12, in evidence. Mr. Lee and other management personnel with decision-making authority in employment discipline matters did not observe the incident. Therefore, Mr. Lee, in making his investigation, relied upon the statements of Mr. Jenkins, Mr. Cooper, the Petitioner, and Ms. Brown and considered all of them in making a decision. The statements of Mr. Jenkins, Mr. Cooper, and Ms. Brown, along with Mr. Lee's belief that in this circumstance, the victim, not the aggressor, would be the one likely to report such an incident, were consistent and persuasive to the effect that the Petitioner was the instigator or aggressor in the incident. Therefore, in accordance with the results of Mr. Lee's investigation and pursuant to consistent company policy of terminating employees for threatening other employees, even for the first offense, the Respondent elected to terminate the Petitioner from employment. Mr. Lee, the decision-maker herein, believed Ms. Brown and the witnesses who corroborated her version of events. He determined that, in his mind, they were telling the truth. Mr. Lee thus believed that the Petitioner was threatening another employee and under the company policy, that was cause for termination. Consequently, he did so, although he testified that he did not terminate the Petitioner because he was a male and that his sex had nothing to do with his decision. It also had nothing to do with the decision that Ms. Brown should not be reprimanded. He did not reprimand Ms. Brown because he did not feel that she was at fault in the incident. He felt that the Petitioner was the aggressor, which is why the Petitioner was disciplined and Ms. Brown was not. The Respondent has a policy providing that when any employee makes any type of threat against another employee, the graduated disciplinary procedures are not applicable, rather, termination can be immediately meted out. It is noteworthy, in terms of establishing that this is a regularly-followed practice, and in refuting the Petitioner's claim that he was discriminated against because he is a male, that approximately two weeks prior to the Petitioner's termination, the Respondent terminated a female employee for fighting on the job. This substantiates that the Respondent has a consistent policy of not tolerating threats made against any other employees by an employee, regardless of that employee's gender. The testimony of Steve Hoffman, the Respondent's Human Resources Officer, shows that in his two and one-half years in that capacity or a related capacity with the company, in any case where an employee has been determined to have made threats against another employee, the company consistently terminates such an employee. The Petitioner has simply not established that he has been the victim of disparate treatment because he is a male. It was not demonstrated that upon his termination, the Petitioner was replaced by an employee of another class, i.e., a female, nor did the Petitioner demonstrate that the Respondent has meted out less severe discipline to such offending employees who are non-male. In fact, the Petitioner himself was replaced with a male employee. There has simply been no proof to establish that the employment decision herein, however harsh it may seem, was motivated by discriminatory intent to single out the Petitioner for disparate treatment because he is a male.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Commission on Human Relations which dismisses the Petition in its entirety. DONE AND ENTERED this 24th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4718 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6-18. Rejected, as not entirely in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 19-21. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as irrelevant and immaterial. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter based thereon. 24-25. Accepted, but not dispositive of the material issues presented. Accepted, only in the sense that there is not a written formal reprimand in the Petitioner's personnel file. The evidence reflects that he had been informally admonished or disciplined concerning acts related to his temper. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and for the reason that it was not necessarily a first offense since the Petitioner had been informally disciplined concerning his past inability to control his temper at times. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact, to the extent they are not inconsistent with the Hearing Officer's findings of fact, are accepted. To the extent that they are so inconsistent, they are rejected as not being supported by preponderant, credible evidence of record, as being immaterial, irrelevant, or unnecessary. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 Ms. Marilyn Strange Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
