The Issue Whether Petitioner, Donna M. Cyrus, was subject to an unlawful employment practice by Respondent, Express Scripts, based on her race in violation of the Florida Civil Rights Act.
Findings Of Fact Express Scripts is a prescription benefit management company. Express Scripts provides pharmaceutical home delivery services, pharmacy claims processing, and benefit plan management for its patient clients. Petitioner, a Black woman, began working for Express Scripts in January 2013. Petitioner was hired as a nurse clinician. Petitioner explained that she acted as a telephonic nurse. Her job was to perform clinical assessments for new and existing medical patients regarding their medications. Thereafter, she would provide Express Scripts customers with drug specific counselling and education. Petitioner’s work was primarily done with a computer and over the telephone. Beginning in December 2014, Petitioner worked exclusively from her home. As required for her job, Petitioner held an active nursing license with the State of Florida. By all accounts, Petitioner was a consistent and reliable worker with no marked deficiencies in her job performance. However, by the fall of 2013, Petitioner became increasingly disenchanted by what she perceived to be discriminatory harassment by her supervisors. In or about October 2013, Petitioner e-mailed her direct supervisor, Robin Morris, to complain about several negative assessments she had received. Petitioner felt like she was being judged more harshly because she was Black. Petitioner also commented about how she believed that Express Scripts was treating a white employee better than her. Petitioner relayed that she felt the white employee was provided more lenience in meeting his job responsibilities and in being granted time off from work. In addition, Petitioner testified that around this time she formally reported to Express Scripts the discrimination she alleged to have experienced in her workplace. Petitioner explained that she contacted the Express Scripts compliance hotline which was a phone number listed in the Equal Employment Opportunity section of the Express Scripts employee policy handbook. However, Petitioner did not disclose to either Ms. Morris or the Express Scripts human resources department that she had called the hotline. After her phone call to the hotline, Petitioner asserts that she began to experience “subtle,” but persistent, discrimination. Petitioner endured what she described as Express Scripts’ abusive, offensive, and unfair treatment based upon her race, as well as retaliation for her complaint of discrimination. Specific instances in which Petitioner asserts Express Scripts subjected her to different terms and conditions from her (white) co-workers, include the following: Denied Requested Time Off Petitioner claims that she was denied requested time off from work based on her race. Petitioner described an incident in October 2013 when she asked for two hours off for personal leave. She inputted her request into the Express Scripts computer program as required. However, five minutes later, she observed that her request had been deleted in the system. She reentered her request. Less than an hour later, she discovered that the computer program had deleted her request for a second time. She did not know how or why she was not allowed to take the leave hours she requested. Petitioner asserted that other non-black employees were authorized to take personal leave of their choice. Petitioner specifically identified another nurse clinician named Jonathon Guyette, a white male, who was freely granted his requests for time off. Petitioner also identified Nicole Deverling, another nurse clinician and a white female, who was regularly given time off. Petitioner felt that Linda Hampson, who was not her immediate supervisor but supervised all nurse clinicians, showed favoritism in granting or denying personal leave time. Petitioner concluded that, particularly in light of Petitioner’s seniority over Ms. Deverling, that Ms. Hampson personally denied her leave because of her race. Harassment Following an On-the-job Injury In December 2015, Petitioner began to experience pain in her right wrist. Petitioner attributed her injury to the overuse of her computer during her job. Petitioner was ultimately diagnosed with DeQuervain’s disease. Petitioner reported her injury to Ms. Morris. However, she felt that Express Scripts was grossly unsympathetic about her injury. Then, in June 2016, Petitioner’s left wrist began to ache. Petitioner described the pain as a constant burning and tingling sensation, as well as numbness. Petitioner was eventually diagnosed with tendinitis and carpel tunnel syndrome. Petitioner needed multiple surgeries on her left and right wrists. Petitioner expressed that Ms. Morris harassed her about the medical care and treatment she sought for her wrist pain. Petitioner maintained that Ms. Morris’ callous reaction to her injuries effectively prevented her from using the same employee benefits as her co-workers. For instance, Ms. Morris demanded that Petitioner provide written documentation recording the dates and times of her doctors’ appointments. Petitioner declared that Ms. Morris unfairly wrote her up in 2015 and 2016 for violating the Express Scripts’ medical leave policy for being absent without authorization. Petitioner claimed that the days she took off were legitimately due to her medical appointments. Petitioner also accused Ms. Morris and her workers’ compensation caseworker (Sarah Reichert) of forcing her to overuse her left hand to type while her right hand was recuperating. Petitioner felt that not only was she wrongfully harassed and rushed, but her work conditions exacerbated (if not caused) the injury to her left wrist. Finally, Petitioner testified that Express Scripts unjustifiably interfered with her ability to obtain medical care for her injuries. Petitioner relayed that Ms. Reichert determined what of Petitioner’s medical treatments was compensable under Express Scripts’ workers’ compensation coverage. Petitioner complained that Ms. Reichert unfairly denied certain medical procedures Petitioner required. Not Given Work Schedule Preference Petitioner accuses Express Scripts of not allowing her to work her preferred work schedule. Instead, Express Scripts permitted white employees to work during the shift she desired. Specifically, in May 2015, Express Scripts offered its nurse clinicians the opportunity to work an alternative schedule of 4 days a week/10 hours a day (as opposed to 5 days a week/8 hours a day). Petitioner did not accept the flex schedule. Instead, Petitioner e-mailed her supervisor, Ms. Morris, that she “would prefer to work 8hr shifts only, 8-4:30pm if possible.” Several months later, however, Petitioner expressed to Express Scripts that she would like to work the 4-day/10-hour work week. Express Scripts did not approve her request. On the other hand, Petitioner represented that a white employee (Mr. Guyette) was allowed to work the flex schedule. Not Equal Acknowledgment of Workplace Accomplishments In December 2014, Express Scripts did not include Petitioner on an e-mail that congratulated two nurse clinicians on their two-year anniversary with the company. Petitioner was hired at the same time as these employees. Upon learning of the oversight from Petitioner, Express Scripts issued a separate, company-wide e-mail in January 2015 congratulating Petitioner on her two-year anniversary. Neither was Petitioner’s picture ever featured on the office wall. Petitioner was devastated. She felt that both omissions were intentional and based on her race. Denied Workplace Privileges Petitioner generally complained that Express Scripts did not promote her or provide her special jobs or privileges as it did for other (white) nurse clinicians. Petitioner also asserted that her bonus was lower than her co-workers. In addition, Petitioner proclaimed that her co-workers and supervisors intentionally acted in a way to intimidate her and force her to resign from the company. Finally, Petitioner conveyed that she received many groundless verbal “write-ups.” However, at the final hearing, Petitioner did not provide evidence supporting any of these claims outside of her own testimony. Robin Morris, Petitioner’s direct supervisor at Express Scripts, testified at the final hearing. Ms. Morris managed approximately 14 nurse clinicians. Ms. Morris commented that Petitioner was a solid employee and generally met all job expectations. Although Petitioner accumulated several attendance “points” for unexcused absences, she never received any disciplinary action during her employment. On the converse, Petitioner was given merit pay increases every year she worked for Express Scripts. Concerning Petitioner’s complaint that Express Scripts was less than helpful regarding her use of leave time for her injuries, Ms. Morris explained that Express Scripts required all employees to provide medical documentation to justify medical time off. Therefore, any frustration Petitioner experienced regarding her medical leave was based on the lack of documentation that Petitioner produced confirming her medical visits. Ms. Morris recalled that, at least on one occasion, she gave Petitioner a verbal coaching about her failure to provide a doctor’s note recording the times she arrived and left her doctor’s office. Ms. Morris further explained that Sarah Reichert was not an Express Scripts employee. Instead, she was a contract worker for Express Script’s workers’ compensation insurer, Traveler’s Insurance. Ms. Reichert managed Petitioner’s workers’ compensation claims. Ms. Morris testified that she did not have any input into how Traveler’s administered or authorized Petitioner’s medical treatment or doctor’s visits. Ms. Morris denied that she, or any other Express Scripts supervisor, showed any favoritism in approving personal time off for the nurse clinicians. Ms. Morris testified that all Express Scripts employees requested leave hours/days through an automated computer program that automatically approved or denied leave requests. Leave was granted on a first come, first serve basis. Ms. Morris further added that Express Scripts’ leave policy allowed only 10 percent of a company section off of work at any one time. This policy effectively allowed only one nurse clinician a day to take leave. Consequently, Ms. Morris explained that if Petitioner’s personal leave requests were denied, then another nurse clinician had asked for that particular date/time off first. Ms. Morris refuted Petitioner’s allegation that Express Scripts ever refused to allow her to take personal leave based on her race. After she filed her Employment Complaint of Discrimination with the Commission in February 2017, Petitioner continued to work for Express Scripts. Karina Ward, Express Scripts’ Senior Human Resources Advisor, testified regarding Express Scripts’ reaction to Petitioner’s complaint. After learning of Petitioner’s complaint, Ms. Ward opened an internal investigation. Ms. Ward’s first step was to contact Petitioner to discuss her concerns about fair treatment in the workplace. Ms. Ward called Petitioner on or about February 13, 2017. During their phone call, Petitioner described the incidents of discrimination she experienced. At the end of their conversation, Ms. Ward told Petitioner that she would call her the following day to review Petitioner’s desired outcome. When Ms. Ward called on February 14, 2017, however, Petitioner did not answer. Neither was Ms. Ward able to reach Petitioner when she called her on February 16 and 22, 2017. Despite not speaking further with Petitioner about her allegations, Ms. Ward continued to investigate Petitioner’s claim of discrimination. Ms. Ward contacted Petitioner’s co-workers to explore any additional concerns regarding disparate or unfair treatment. Ms. Ward did not uncover any information substantiating Petitioner’s allegations of discrimination. With no further communication from Petitioner, Ms. Ward closed her investigation on March 6, 2017. Regarding Petitioner’s testimony that she called a compliance hotline in 2013 to report discrimination, Ms. Ward relayed that, at that time, Express Scripts did not have a central phone number for employees to report workplace disputes such as discrimination. Instead, the complaint hotline which Petitioner called was administered by a third-party vender. Ms. Ward testified that she was not aware of, nor had she ever received any information regarding, Petitioner’s report of discrimination in 2013. Neither could she find any evidence of Petitioner’s complaint in the Express Scripts’ human resources records. (Ms. Morris also denied any knowledge of Petitioner’s 2013 phone call.) At the final hearing, Ms. Ward also responded to Petitioner’s complaint that Express Scripts did not allow her to work alternate hours. Ms. Ward explained that Express Scripts had offered Petitioner the option of working a 4-day a week/10- hour a day schedule, just as it offered to every nurse clinician. Petitioner, however, declined to take advantage of the opportunity when it was offered. Ms. Ward recalled that Petitioner then contacted Express Scripts approximately six months later requesting the alternate work hours. But, by that time, Express Scripts had determined not to offer the flex schedule to any employee. Ms. Ward further explained that the white employee Petitioner identified (Mr. Guyette) was allowed to work the 4-day/10-hour work week based on a medical accommodation. Mr. Guyette was the only Express Scripts employee who was authorized to work an alternate schedule. (Ms. Morris echoed Ms. Ward’s testimony that Petitioner declined the initial opportunity to work a flex schedule. Ms. Morris also repeated that Mr. Guyette was allowed to work a 4-day work week to accommodate a medical issue.) After her complaint to the Commission in February 2017, Petitioner regularly asked for medical leave based on her recurring health issues. Finally, in May 2017, Petitioner stopped reporting in for work, citing her medical condition. In July 2017, however, Ms. Ward learned from the Traveler’s workers’ compensation department that on May 31, 2017, Petitioner had been medically cleared to return to work with no restrictions. Therefore, Ms. Ward contacted Petitioner and asked her to produce medical documentation supporting her recent leave requests. Petitioner responded that, on the contrary, her doctor told her that she had not been medically cleared to work. However, Petitioner did not provide Ms. Ward any additional documentation substantiating either the days she had taken medical leave or her need for future medical treatment. On July 14, 2017, Ms. Ward spoke with Petitioner, and notified her that Express Scripts considered her in an unapproved leave of absence status. Express Scripts received no communication from Petitioner after that date. Therefore, on July 27, 2017, Ms. Ward concluded that Petitioner had voluntarily resigned her job. Express Scripts terminated Petitioner’s employment due to “job abandonment.”2/ At the final hearing, Petitioner claimed that all the days that she was absent from work were related to medical care she received for her wrist injuries. Petitioner also represented that she had applied for short-term disability in order to take time off to care for her various health issues. Ms. Ward denied that Express Script disapproved any request for leave days based on Petitioner’s race or in retaliation for a complaint of discrimination. Neither was Express Script’s decision to terminate Petitioner’s employment based on Petitioner’s race or her participation in an activity protected by the FCRA. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Express Scripts discriminated against Petitioner based on her race or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Express Scripts committed an unlawful employment action against her in violation of the FCRA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Donna M. Cyrus, did not prove that Respondent, Express Scripts, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 27th day of February, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of February, 2018.
The Issue The issue for consideration in this hearing is whether Respondent’s license as a real estate broker/salesperson in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Division of Real Estate was the state agency in Florida responsible for the licensing of real estate salespersons and brokers in this state and the regulation of the real estate profession. Respondent’s pertinent license as a broker- salesperson was issued on April 5, 1993, and remained valid at least through June 19, 1998. She is still licensed as a broker- salesperson with Geiger Real Estate/Century 21, in Apollo Beach, Florida. Respondent has been licensed as a salesperson for fifteen years and as a broker for between ten and twelve years. Since her initial licensing, she has repeatedly been cited as a million-dollar producer. Respondent first met Mr. Gilliam, the owner of the property in issue sometime in 1995. She recalls him at that time as an already older man who was hard to talk with and who often forgot portions of conversations she had with him. At the beginning of their relationship, however, he signed a sales listing agreement with Respondent for the sale of several acres of property he owned which had on it both a house and a mobile home. The property did not sell readily. Mr. Gilliam admits to extending the listing agreement several times through the use of a Listing Status Report form. On the several occasions this form was used; sometimes Mr. Gilliam would sign it himself, but, according to Respondent, on other occasions she would call him by telephone and get his verbal authority to sign it for him. It was important to file a report of this nature so that the property listing would not be dropped from the multiple listing service operated by the local real estate association. Respondent asserts that Mr. Gilliam never objected to this procedure, but he claims he always came into the office and signed the form himself. In late 1996, the listing expired, and when she submitted an extension form to the multiple listing service, it was rejected. Therefore, on November 25, 1996, to get the property back into the multiple listing system, she signed Mr. Gilliam’s name to a new listing agreement, not merely a status report extension, which extended the listing until May 31, 1997. She contends he was out of the state at the time, but acknowledges she did not try to contact Gilliam by phone or mail before signing the listing agreement, nor did she ever think to obtain a power of attorney from him to facilitate matters since he was out of state so much. Mr. Gilliam, on the other hand, contends he had agreed to an extension until December 31, 1996, but no longer. In October 1997, the then current listing was due to expire. Respondent claims she called Mr. Gilliam and asked for permission to extend the listing and he agreed, but noted this would be the last time. Respondent suggested he lower his asking price for the property, and he agreed. She, therefore, advertised the property at the reduced price. The property was ultimately sold through this advertisement, but through another agent in her office because, at the request of Mr. Gilliam and his sister, the listing was taken away from Respondent. Respondent claims she was never told why this was done. Mr. Gilliam did not sign the listing contract dated November 26, 1995, nor did he specifically give Respondent authority to do so. Based on the prior practice of his authorizing extensions which were later ratified by the owner, Respondent may reasonably have believed she had the authority to sign the new listing agreement. There is no evidence that the Respondent’s signing Mr. Gilliam’s name to the listing agreement dated November 25, 1996, in any way resulted in any loss to the property owner or anyone else.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Real Estate enter a final order in this case placing Respondent’s license as a broker-salesperson on probation for a period of one year, under such terms and conditions of continuing education and supervision as the Florida Real Estate Commission shall deem appropriate; and imposing a reprimand. DONE AND ENTERED this 28th day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2000. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 David P. Rankin, Esquire Law Offices of David P. Rankin, P.A. 3837 Northdale Boulevard PMB 332 Tampa, Florida 33624 Barbara D. Auger, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, N-308 Orlando, Florida 32802-1900
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent is an express package delivery and courier service. It operates both nationally and internationally. Important to its service is the ability of the company and its customers to accurately track packages throughout Respondent's delivery system and to maintain timely delivery of those packages. Petitioner is an African-American male. As an African- American, Petitioner is a protected person under chapter 760, Florida Statutes. Petitioner also served in the military and testified that he has been diagnosed with post-traumatic stress disorder (PTSD). However, while Petitioner was employed by Respondent, his supervisors had no knowledge of Petitioner's PTSD diagnosis or alleged disability. Similarly, they did not consider him to be disabled. Other than his testimony of having a diagnosis of PTSD, Petitioner offered no evidence of his condition and no evidence that Petitioner?s PTSD is a disability or handicap as defined under the ADA or chapter 760. Given this lack of evidence, Petitioner failed to demonstrate that he is a protected person for purposes of handicap and the allegations of the Petition for Relief related thereto should be dismissed. In 1996, Petitioner was employed by Respondent as a courier in Respondent?s Pensacola station. In 2008 and 2009, Petitioner was supervised by Pat Gaal, an Operations Manager at the Pensacola station. Mr. Gaal was supervised by Senior Manager Doug Nash who was stationed in Mobile, Alabama. Mr. Nash, in turn, was supervised by Randy King, Managing Director of Respondent?s River District. Mr. King's office was located in New Orleans, Louisiana. As a courier, returning on time to the station is important so that the trucks, which move packages on the next leg of their journey, can leave the station on time. Any delays in loading these trucks and leaving on time can have a domino effect down Respondent's delivery system. For that reason, the courier is required to notify dispatch or call the station regarding an anticipated late return. Additionally, a very important part of Petitioner?s job was to “scan[] packages according to prescribed procedures. . . .” “Scanning packages” refers to the practice of couriers scanning bar codes on packages assigned by Respondent?s system with a device called a “Power Pad.” The bar code allows Respondent to collect and process data regarding the location and status of those packages for use by Respondent and its customers. This tracking information and its accuracy is a very important component of Respondent's service to its customers and can become vital if mailing or delivery of a package is at issue when legal rights are in dispute. Because of this importance, Respondent has established a strict policy with severe penalties for employees who falsify data they put into the company's package tracking and processing system. Such falsification includes picking up packages and scanning them at a later time so that the pick-up time is inaccurate. Policy 2-5 of Respondent?s Acceptable Conduct Policy states that “an employee normally will be dismissed upon completion of an investigation confirming violations related to . . . [d]eliberate falsification of Company documents including but not limited to . . . delivery records. . . .” Additionally, the Employee Handbook lists “[d]eliberate falsification of company documents including but not limited to . . . delivery records . . .” as a discharge offense. As part of his employment with Respondent, Petitioner received an employee handbook. Petitioner also was trained by Respondent with regard to the Respondent?s falsification policy and with regard to the fact that falsification was a terminable offense. As recently as February 8, 2008, Petitioner signed a memorandum from Respondent?s Vice President, Ted Merida, explaining that falsification would result in termination. The memo stated, in part, that the “consequence of falsifying a document is termination, your management team has NO discretion or ability to deviate from the action required by policy, regardless of your tenure, . . . or whether your intentions were to serve the customer.” Additionally, on November 3, 2008, Petitioner signed a memorandum from Respondent?s vice president, Dave Leech, which reemphasized the Respondent's policy that falsification violations would result in termination. Couriers are generally assigned routes. Some routes are delivery or pick up routes only. Some routes combine these functions. On combined routes, the same driver delivers and picks up packages at the same location. In combined routing, deliveries and pickups are scheduled separately with deliveries generally occurring in the morning and pickups in the afternoon. Occasionally, a package might be available for pick up early when the courier is at a location making a delivery. Likewise, a package that was not scheduled for pick up might be available for pick up when the courier is at a location making a delivery. When packages are available early, the courier has the option to pick up the package when the courier is at the package location rather than returning later to the same location to pick up the package. However, these early pickups are required to be scanned when they are picked up so that the information on Respondent's tracking system is accurate. In the months preceding January 2009, Petitioner was assigned the downtown Pensacola route, denoted as the “528” Route. He typically worked four ten-hour shifts per week. On the days when Petitioner was not working, “swing drivers” would cover the 528 route. The 528 route was a “higher density” route compared to other routes because it was in a downtown area where deliveries and pick-ups at various locations are very close together. Because of the combined route and density, the 528 route often had packages that could be picked up earlier than their scheduled pick up time. Additionally, a package that was not scheduled to be picked up might be available for the driver to take when they were delivering packages to a given location. Petitioner was trained on the 528 route by Derrick McCrary, an African-American courier. When Mr. McCrary trained Petitioner, he instructed him that packages were required to be scanned immediately upon pick-up or within a few minutes of package pickup. Indeed, during this time, neither individual employed a practice of picking up packages in the morning and scanning them at a significantly later time. Once Petitioner became the regular driver on the 528 route, performance goals were established according to Petitioner?s performance on that route. Courier performance goals are tracked and reported package by package and stop by stop on FAMIS 129 reports. These reports include individual courier summary reports and "Planet Station" reports that chronologically track delivery and pick up information for a specific route. In December 2008, Petitioner returned late to the station on multiple occasions. The courier who had Petitioner?s route prior to Petitioner and swing couriers who covered Petitioner?s route on Petitioner?s days off did not have the same problem returning late to the station. Additionally, for the month of December 2008, Petitioner had the lowest on-road productivity numbers of any courier in the Pensacola station at 88.21 percent. Swing couriers, including Mr. McCrary, who covered Petitioner?s route on Petitioner?s days off did not have the same low productivity numbers as Petitioner. Petitioner called Synethia Bell and Adrian Simmons as witnesses. Both Ms. Bell and Mr. Simmons are African-American individuals who currently work as couriers in Respondent?s Pensacola station. Both Ms. Bell and Mr. Simmons testified that they are not aware of management at Respondent?s Pensacola station showing favoritism based on race, that they have not experienced any racially-discriminatory treatment by management, and that they did not witness Petitioner receiving any racially- discriminatory treatment by management. Petitioner's other witnesses were long-time past employees whose testimony was not relevant as to the facts or the time period of this case. Petitioner received a non-disciplinary online counseling from Pat Gaal stating that Petitioner?s on-road performance was “unacceptable” and “the lowest in the station.” Mr. Gaal also expressed concern regarding Petitioner?s repeated late returns to the station without notifying the proper person, as he was required to do. There was no evidence that Respondent's online counseling was not based in fact or was based on Petitioner's race. In January 2009, Pat Gaal was on vacation. Operation Managers Kurt Martin and Eric Perdue noticed during their routine review of the daily productivity reports that Petitioner had abnormally high and unachievable productivity numbers during the afternoon portion of his route. Additionally, they noted that pick-ups at different addresses were being shown as being only a minute apart. Such rapidity in pickups was also an impossible achievement given the locations for those pickups. When Pat Gaal returned from vacation, Mr. Martin and Mr. Perdue brought these daily productivity reports to Mr. Gaal's attention. Mr. Gaal analyzed FAMIS 129 reports and noted that Petitioner on sixty-one occasions between January 6, 2009 and January 14, 2009, had scanned packages in the afternoon that he had picked up in the morning. The reports did not show that any other courier was scanning packages in the afternoon that had been picked up in the morning. Indeed, contrary to Petitioner's assertion that late scanning was routinely practiced by other couriers, the testimony from all of Respondent's current employees was that they did not scan packages late and such practice was prohibited. In this case, the evidence was clear that Petitioner's action was a serious violation of Respondent's package processing policy and constituted falsification of records under that policy. Indeed, the amount of falsification by Respondent was the worst violation of the policy that Respondent had seen. Mr. Gaal asked Petitioner if he was scanning packages late. To his credit, Petitioner admitted to Mr. Gaal that he was picking up packages early in the day but not scanning them until hours later in the day. Petitioner also confirmed his admission in a written statement on the matter. On January 19, 2009, Petitioner was placed on investigative suspension. He was terminated by Mr. Gaal on January 21, 2009, for regular falsification of records in violation of Respondent?s Acceptable Conduct Policy. There was no substantive evidence that Petitioner?s race played a part in Pat Gaal?s treatment of Petitioner while he was employed by Respondent. Respondent?s employee policy provides a multi-step procedure for employees to challenge disciplinary actions with which they disagree. This policy is known as the Guaranteed Fair Treatment Procedure (GFT). Respondent's policy also provides a process to handle complaints of discriminatory treatment known as the Internal Equal Employment Procedure (IEEP). Both of these policies are posted at the Pensacola station, along with a poster entitled “Equal Employment Opportunity is the Law.” Petitioner was familiar with both of these processes. However, Petitioner never submitted an IEEP complaint to Respondent. Instead, Petitioner filed a GFT complaint in January 2009, to challenge his termination. Petitioner's GFT complaint did not include any allegations of discrimination. The GFT process provides an employee with three levels of review. Step 1 of the GFT process involves the decision of a Managing Director after consultation with the managers involved in the discipline, the complainant and applicable witnesses. In this case, Managing Director Randy King conducted a telephonic hearing with Petitioner and other witnesses. Again, Petitioner admitted to Mr. King that he employed a practice of making pickups early in the day but not scanning the packages until later in the day to help boost his productivity. Petitioner did not make any allegations of discrimination during the Step 1 review. After the Step 1 hearing, Mr. King reviewed a summary of a review of daily reports for every courier in Respondent?s Pensacola station. He did not find any other couriers employing Petitioner?s falsification practices. Mr. King upheld Petitioner's termination at Step 1 of the GFT process. There was no evidence that race played any part in Mr. King?s decision to uphold Petitioner?s termination at Step 1 of the GFT process. Petitioner elected to have his termination reviewed in Step 2 of the GFT process. Step 2 of the GFT process involves the review and decision by a Vice President or Senior Vice President of the company. Petitioner?s termination was upheld at Step 2 of the GFT process by Vice President David Leech. Again, there was no evidence that race played any part in Mr. Leech?s decision to uphold Petitioner?s termination at Step 2 of the GFT process. Petitioner then elected to have his termination reviewed in Step 3 of the GFT process. Step 3 of the GFT process, involves a review by the Appeals Board. The Appeals Board consists of a rotating group of Respondent?s senior officers who review the case based on the documents provided to them by Respondent?s Human Relations Compliance department. With regard to Petitioner?s Step 3 GFT appeal, the Appeals Board was not provided with any information regarding Petitioner?s race or disability status. Petitioner?s termination was upheld by the Appeals Board at Step 3. As with the other steps in the GFT process, there was no evidence that race played any part in the Appeal Board?s decision to uphold Petitioner?s termination at Step 3 of the GFT process. Petitioner contends that Ron Reaves, a white male formerly employed as a courier for Respondent, is a comparator for purposes of proving his discrimination claim. However, the evidence did not demonstrate that Reaves is a similarly-situated employee to Petitioner and the facts of this case. The evidence showed that Reaves had an exceptional "nearly spotless" employment record with Respondent and committed a single act of falsification on January 7, 2008, when he manually entered a tracking number into his Power Pad for a delivered package. Reaves? act bypassed the requirement that the recipient sign for the package. Pat Gaal terminated Reaves for this single instance of falsification and Reaves filed a GFT complaint opposing his termination. Reaves? termination was upheld by Managing Director Randy King at Step 1 of the GFT process. Mr. King saw Reaves? termination for falsification as being a “one-time event,” yet he upheld Reaves? termination. Likewise, Reaves? termination was upheld at Step 2 by Vice President David Leech. However, Reaves appealed the Step 2 GFT decision to Step 3, and the Appeals Board reinstated Reaves. The Appeals Board was not provided any information as to Reaves? race or disability status. Upon reinstatement, Reaves was issued a Warning Letter dated March 17, 2008, for the instance of falsification, stating that he had “improperly applied a Dex 2 residential release to a package requiring direct signature.” In January of 2006, Petitioner committed a falsification violation, almost identical to that committed by Reaves, when he manually entered a residential release, releasing the package without a signature when a direct signature was required. However, Petitioner was not terminated but received a Performance Reminder, which is comparable to a Warning Letter, from Manager Charles Marshall, dated January 25, 2006, stating that he had “used the approved FedEx Resi Release number” on a customer package when the package was clearly marked “Direct Signature Only.” Importantly, Respondent received more favorable treatment than Reaves since he was not terminated in 2006. On the other hand, the quantity and pattern of falsification for which Petitioner was terminated in 2009 was a more blatant violation of Respondent?s falsification policy than the instance of falsification for which Reaves was terminated and later reinstated by the Appeals Board. In fact, Petitioner's 2009 violation was not sufficiently similar in scope as to be comparable to Reaves? violation. No other comparative evidence was offered by Petitioner. Given these facts, the evidence does not demonstrate that Petitioner was the subject of an unlawful employment practice based on his race when he was terminated by Respondent, and the Petition for relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of February, 2011, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2011. COPIES FURNISHED: Patricia Batts Federal Express Corporation 3660 Hacks Cross Road Memphis, Tennessee 38125 Floyd Middleton, Jr. 820 Maplewoods Drive Pensacola, Florida 32534 R. Clinton Saxton, Esquire Federal Express Corporation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125 Ben J. Scott, Esquire Staff Attorney, Legal/Litigation 3620 Hacks Cross Road Building B, Third Floor Memphis, Tennessee 38125 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the Respondent is guilty of misrepresentation, fraud, dishonest dealing, culpable negligence, or breach of trust in a business transaction contrary to Section 475.25(1)(b), Florida Statutes; and Whether, if the above allegations are proven, the Respondent is so incompetent, negligent, dishonest or untruthful that the money, property transactions and rights of investors or others with whom he may sustain a confidential relation may not be entrusted to him by virtue of a second violation of Chapter 475, Florida Statutes, contrary to Section 475.42(1)(o), Florida Statutes.
Findings Of Fact The Respondent, Robert E. McMillan, III, is and was at all times material to the administrative complaint a licensed real estate broker holding license number 0317361. The Commission is charged under Chapter 475, Florida Statutes, with regulation of real estate brokers and salesmen. The Respondent was previously disciplined by the Commission by a Final Order dated September 2, 1992 in which the Commission found the Respondent guilty of violation of Sections 475.25(1)(b),(e),(k), and 475.42(1)(e), Florida Statutes. Dr. Manuel S. Couto and his wife desired to have a home built on Block 2, Lot 12 Marineland Acres, 1st Addition, Plat Book 5, page 50. They approached Respondent's business, which was a construction and real estate development concern, and spoke with Randy Joyner, a salesman employed by the Respondent and the brother of the Respondent's late wife, who had sold the Coutos the lot. The Respondent offered to build a particular house for the Coutos for $50,000. The Coutos counteroffered to purchase the house for $30,000 cash and to convey to the Respondent two lots described in the contract as: Section 29A, Block 7, Lot 4, Palm Coast, Florida, and Section 29A, Block 7, Lot 5, Palm Coast, Florida. Dr. Couto bought Lot 4 for $3,900, and Lot 5 for $4,900; however, he paid a total, including interest, of $15,264.80 for the two lots. Palm Coast is a real estate development located in the western portion of Flagler County in which the Respondent's business was located, and he was not particularly familiar with the area in which the Coutos' lots were located. The Respondent accepted the counteroffer, above, upon the recommendation of Joyner. The Respondent believed the lots in question to be valued at $10,000 each. The Coutos paid the Respondent $30,000, and the Respondent began construction. Shortly after commencement of the project, it was determined that the Respondent would have to do considerable site work in order to install a septic tank. The costs of this work, $5,400, was paid by the Respondent, and Dr. Couto wrote the Respondent an additional check in the amount of $1,900. In addition, Dr. Couto made numerous changes to the plans which raised the costs of the construction for which he was obligated to pay under the contract. Work progressed on the project until the Respondent became aware that the lots which were to be transferred were not valued at $10,000. A dispute arose between the Respondent and the Coutos regarding the Coutos paying the difference between the value of the lots and $20,000. When the dispute went unresolved, the Respondent ceased work on the project. Thereafter, the Respondent again began work on the project because of Dr. Couto constant badgering; however, the underlying disagreement about the value of the lots was unresolved. The Respondent finished the house at a cost to him of $55,004.82, and the Coutos paid him $38,425. When the second lot at Palm Coast was to be transferred, it was arranged to have the Coutos transfer the lot directly to the new purchasers, with the money, $4,690.37, due to the Respondent to be held in escrow pending payment of the subcontractors and materialmen building the Coutos' house. Dr. Couto prepared an affidavit that all the contractors had been paid for the Respondent to sign. It is this affidavit dated January 16, 1992, which purports to bear the signature of the Respondent notarized by Martha B. Bennett, Notary Public. The Respondent denies that the document bears his signature, and asserts that Dr. Couto signed the affidavit. Dr. Couto states that he saw the Respondent sign it, and the Respondent's secretary notarize it. The authenticity of this document was put in question by Respondent's answer to the administrative complaint, and the notary was not called as a witness. Dr. Couto and his attorney had attempted unsuccessfully to obtain similar affidavits from the Respondent, who had refused to sign them. At the time the affidavit was prepared, Dr. Couto was aware that materialmen had not be paid. The purported purpose of the affidavit was to release the funds retained by the title company. However, it was Dr. Couto who prepared the affidavit, and it was not presented to the title company to obtain the release of the funds. The affidavit was retained by Dr. Couto, and presented to the title company in June 1992, by Dr. Couto together with letters from Respondent stating that he was not going to pay the subcontractors. Upon the affidavit and letters, the title company paid the $4,690.37 to Dr. Couto. Given the background of the affidavit, the contradictory testimony about its execution, and the absence of additional authentication, the signature of the Respondent is not accepted as genuine. In spring 1992, various materialmen and subcontractors filed liens on the house being built for the Coutos. In order to clear the title to his home, Dr. Couto had to settle with the lienholders and pay them $14,878.18. As stated above, Dr. Couto received the proceeds from the sale of the second lot, $4,690.37. Subsequently, the matter was brought to the attention of the state's attorney. The Respondent paid the Coutos $3,000 in cash, and the state's attorney dropped the case against the Respondent after handwriting analysis was completed on the affidavit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the administrative complaint be dismissed. DONE and ENTERED this 29th day of November, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 29th day of November, 1994. APPENDIX The Petitioner submitted proposed findings which were read and considered. The following states which of the findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 1 Paragraph 3 Paragraph 4 Paragraph 4 Paragraph 9 Paragraph 5,6 Paragraph 8,9,10 Paragraph 7 Rejected as contrary to better evidence, See Paragraph 13 Paragraph 8 Paragraph 15 Paragraph 9 Paragraph 16 COPIES FURNISHED: Steven W. Johnson, Senior Attorney Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Clifford A. Taylor, Esquire 507 East Moody Boulevard Bunnell, Florida 32110 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact On May 31, 1990, G.T. Williams applied to the Department of Environmental Regulation (Department) for an air pollution source permit. He sought the permit in order to have authorization to construct a biological waste incinerator in Gadsden County, Florida. The permit application was subsequently amended to provide that the incinerator would be constructed as part of the expansion of an existing biomedical incineration facility in Leon County, Florida. On September 7, 1990, the Department issued its Order of Intent to Issue the air pollution source permit to Mr. Williams. The Order of Intent to Issue provides, in relevant part, as follows: Pursuant to Section 403.815, Florida Statues, and DER Rule 17-103.150, F.A.C., you (the applicant) are required to publish at your own expense the enclosed Notice of Intent to Issue Permit. The notice shall be published one time only within 30 days, in the legal ad section of a newspaper of general circulation in the area affected. For the purpose of this rule, "publication in a newspaper of general circulation in the area affected" means; publi- cation in a newspaper meeting the requirements of Section 50.011 and 50.031, F.S., in the county where the activity is to take place. The applicant shall provide proof of publica- tion to the Department, at the Northwest District, 160 Governmental Center, Pensacola, Florida 32501-5794 within seven days of publication. Failure to publish the notice and provide proof of publication within the allotted time may result in the denial of the permit. (emphasis added). Prior to publication of the Intent to Issue, the Department did not advise the Petitioner which newspaper to publish the notice in and, in fact, neither Chapter 403 nor any of the provisions of Title 17, Florida Administrative Code, grant the Department authority to designate a newspaper for publication use. On October 4, 1990, Bio-Tech published the Department's Notice of Intent to Issue Permit in the Leon County News. On October 17, 1990, the Department approved transfer of the permit from G.T. Williams to Bio-Tech. The Leon County News is a weekly newspaper. It has been continuously published in Leon County, Florida, since 1980. At least 25 percent of the words in the Leon County News are in the English language and it is entered as second class mail at the Woodville Post Office in Leon County, Florida. The Leon County News is available for purchase by the general public by mail subscription. It is also available for sale to the general public at newspaper racks located at the following locations: Gary's IGA, 363 Woodville Highway, Woodville, Florida; Publix Super Market Store #113, 1719 Apalachee Parkway, Tallahassee, Florida; and Publix Super Market Store #2150, 1940 North Monroe Street, Tallahassee, Florida. The general public is encouraged to purchase legal and other advertisements and notices in the Leon County News, and the newspaper regularly contains help wanted ads, ads for services, business advertising, real estate ads, and public service ads. The Leon County News also contains national, state, and local news stories and features as well as nationally syndicated columns of interest to the general public. Its published matter is not characterized by narrowly focused published materials of interest to only an isolated trade group, profession or narrow segment of the public. A number of state and local government agencies, including the Department of Highway Safety and Motor Vehicles, the Department of State, the Department of Agriculture, Division of Forestry, the Department of Professional Regulation, and the Leon County Circuit Court publish statutorily-mandated legal notices in the Leon County News. A review of the editions of the Leon County News from October 4, 1990 (the publication date at issue), through the hearing date indicates that these legal notices include notices of complaints filed against professional licenses, constructive service of process, notices of administration of estates, notices of foreclosure sales, notices of petitions for forfeiture, notices of claims of lien, and notices of fictitious name registrations. Many of the notices published by the courts and these governmental agencies involve notices of actions pending which involve potential loss or forfeiture of valuable property or legal rights. Charlotte James is the Secretary of the Bio-Tech Corporation. On October 4, 1990, she prepared a letter transmitting a copy of the notarized proof of publication of the Notice of Intent to Issue Permit, as well as an October 3, 1990, newspaper article concerning the facility to the Department. This was in order to respond to the admonition contained in the Notice of Intent to Issue Permit directing that proof of publication of the Notice of Intent to Issue be provided the Department within seven days of publication. The envelope containing that transmittal letter, proof of publication, and the accompanying newspaper article was properly addressed and posted and was mailed to Mr. Jack Preece of the Department's Northwest District Office from the U.S. Post Office on Woodward Avenue, located near Florida State University, in Tallahassee, Florida. Ms. James took the letter to that post office, hand delivered it to the postal clerk, watched the postal clerk cancel the letter and place it in a receptacle for mailing to the Department's Northwest District office and Mr. Jack Preece on October 4, 1990. It subsequently developed that the Department's personnel could not locate the proof of publication in the permitting file in the Northwest District office in Pensacola, which had been mailed by Bio-Tech on October 4, 1990. The Department's Office of General Counsel in Tallahassee did receive a copy of the proof of publication sometime before October 25, 1990. The Department's personnel have been unable to determine when the Office of General Counsel actually received the proof of publication. In any event, the Department's Northwest District office received a copy of the proof of publication by telefacsimile on October 25, 1990, prior to the issuance of the Notice of Permit Denial. Thereafter, on the next day, October 26, 1990, the Department issued its Notice of Permit Denial to Bio-Tech on the basis that Bio-Tech allegedly failed to publish the notice of the original intent to grant the permit "in a newspaper of general circulation in the area affected;" and that the applicant failed to provide proof of publication to the Department within seven days of that publication. On November 29, 1990, Bio-Tech filed its petition for formal administrative hearing alleging that the Leon County News is a newspaper of general circulation in the area affected and that proof of publication of the Notice of Intent to Issue was timely provided the Department. Alternatively, Bio-Tech pleads that failure to provide the Department with a copy of the proof of publication within seven days of the date of publication is not a valid basis for permit denial but rather is harmless error.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleading and arguments of the parties it is, therefore, recommended that a final order be entered by the Department of Environmental Regulation granting the application of Bio-Tech Tracking Systems, Inc., for an air pollution source permit. RECOMMENDED in Tallahassee, Leon County, Florida, this 3rd day of April 1991. 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 3rd day of April 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7760 Petitioner's proposed findings of fact: 1-17. Accepted. Respondent's proposed findings of fact: 1-8. Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter and not proved by the preponderant weight of the evidence. The evidence does not show that the publication was not received by the Department before October 25, 1990, even if one accepts that it did not reach the appropriate office until that date. Accepted, although that does not establish that that was the only copy of the proof of publication ever received by the Department's Northwest District office. Accepted, but immaterial to the findings of fact and conclusions of law made on the proof of publication issue herein. Accepted and, as concluded herein, the proper posting of the proof of publication constituted the provision of proof of publication to the Northwest District office. Accepted. Accepted, but not itself materially dispositive of the issues in dispute. 15-18. Accepted. 19-21. Accepted. Accepted, but immaterial and irrelevant. Accepted, but immaterial and irrelevant. Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law. Accepted, but not in itself materially dispositive of the issues in dispute for the reasons asserted in the above findings of fact and conclusions of law. Accepted in terms of this indication of what the Department's Notice of Intended Agency Action was which resulted in the petition which engendered this proceeding. But not in the sense that that notice of intended agency action was based upon found facts in this proceeding. This is a de novo proceeding and no facts were found until the issuance of this recommended order. Accepted. COPIES FURNISHED: William E. Williams, Esquire Robert D. Fingar, Esquire Huey, Guilday, Kursteiner and Tucker, P.A. 106 East College Avenue Suite 900 Post Office Box 1794 Tallahassee, Florida 32302 Michael P. Donaldson, Esquire Carol Forthman, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Room 654 Tallahassee, Florida 32399-2400 Carol Browner, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Respondent was required to report and to pay to Petitioner the proceeds of the uncashed check that is the subject of this proceeding under the provisions of Chapter 717, Florida Statutes; whether Respondent's failure to do so violated said provisions; and the penalties, if any, that should be imposed.
Findings Of Fact Respondent, Humana Inc., d/b/a Humana Hospital Biscayne (hereinafter Humana), was and is incorporated under the laws of the State of Delaware and is doing business in the State of Florida as a hospital. Humana is located at 20900 Biscayne Boulevard, Miami, Florida, 33180. Petitioner, State of Florida Department of Banking and Finance, Division of Finance (hereinafter Department) is authorized and directed to administer Chapter 717, Florida Statutes. On or about November 23, 1982, Humana issued Check number 02529040 to payee, Foster Crum, in the amount of $183.00 (hereinafter Crum Check). The Crum Check was issued as it appeared from the books and records of Humana that Foster Crum, as a former patient of Humana, was owed a refund of $183.00. It is the usual practice of Humana to issue refund checks to persons who, from the books and records of Humana, appear to be owed money by Humana. On or about November 23, 1982, the Crum Check was sent by First Class Mail, Certified, Return Receipt Requested, to 3113 Lawton Road, Orlando, Florida 32814, which was the last known address of Foster Crum as shown on the books and records of Humana. Humana received by return mail the certified receipt referred to in Paragraph 6 showing delivery of the Crum Check to Mr. Crum's last known address as shown on the books and records of Humana. However, from the books and records of Humana, it is not possible to determine who signed said return receipt. The Crum Check was not returned to Humana. The Crum Check has not been reported or paid to the Department as unclaimed or abandoned property.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which requires Humana to remit to it the sum of $183.00 as the proceeds of the Crum Check and which assesses an administrative fine against Humana in the sum of $250.00 for its failure to report and to remit to the Department the proceeds of the Crum Check as required by Chapter 717, Florida Statutes. RECOMMENDED in Tallahassee, Leon County, Florida, this 20th day of February, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1991. COPIES FURNISHED: Glenn D. Bossmeyer Donna M. Coleman Humana, Inc. Post Office Box 1538 Louisville, Kentucky 40201-1438 Paul C. Stadler, Jr., Esquire Department of Banking and Finance Legal Section, The Capitol Tallahassee, Florida 32399-0350 Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32399-0350 William Reeves General Counsel The Capitol Plaza Level, Room 1302 Tallahassee, Florida 32399-0350
The Issue Whether Respondent engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
Findings Of Fact Allied Universal provides security officers to various locations. It currently employs Hawkins as a sergeant (and formerly, as a security professional). Allied Universal has assigned Hawkins to serve at the Florida Department of Revenue’s (DOR), offices in Tallahassee, Florida. Her duties include maintaining access control, performing regular surveillance patrols, and providing security over persons and property. Previously, Hawkins served as a security professional for Universal Protection Services, LP, at the DOR location. In August 2016, Universal Protection Services, LP, merged with AlliedBarton Security Services, LLC, to form Allied Universal. In May 2016 (prior to the merger), Bobby Owens (Owens), an operations manager for Universal Protection Services, LP, and now Allied Universal, recommended to Tallahassee Branch Manager James Goodman (Goodman) that Hawkins be promoted to Sergeant and receive a raise in pay. Goodman, who did not have the authority to do so, requested approval from higher-level managers. Universal Protection Services, LP, promoted Hawkins to Sergeant, and increased her wages from $8.35 to $8.50 per hour, effective May 13, 2016. Hawkins, Owens, and Goodman remained in their positions with Allied Universal after the merger. Goodman testified that in 2017, he met, via conference call, with a regional vice president and southeast president of Allied Universal, concerning “market erosion.” Goodman explained that “market erosion” was “profit loss that we were losing based on officers that were working at a higher pay rate than what was contracted with individual clients.” Goodman’s superiors tasked him with identifying any employees who were being paid “out of profile,” i.e., higher than the contracted rate, and reducing their wages accordingly. Goodman testified that he reviewed the salaries of over 375 officers under his supervision, and identified 17 who he determined were “out of profile.” Hawkins was one of those officers he determined was “out of profile.” Goodman testified that these 17 “out of profile” officers included individuals who were white, African American, male, female, over the age of 40, and under the age of 40. Goodman testified that Allied Universal reduced the salaries of these 17 officers, including Hawkins. Allied Universal reduced Hawkins’s salary from $8.50 per hour to her previous salary of $8.35 per hour ($0.15 per hour), effective December 2017. Goodman noted that other officers received a greater reduction in pay than Hawkins. In November 2017, Allied Universal issued Hawkins a “Coaching – Counseling – Disciplinary Notice” for failure to follow Allied Universal’s attendance policy. Hawkins reported to work two-and-a-half hours late. She testified that she informed a DOR employee, Sam Omeke, that she had a doctor’s appointment that morning, but did not inform anyone with Allied Universal. In December 2017, Hawkins requested that Allied Universal provide or assist her with “hurricane relief” pay for the week in September 2017, that the State of Florida closed her worksite because of Hurricane Irma. She testified that she was not sure if Allied Universal offered such a program, and further testified that she ultimately never applied for any type of compensation lost as a result of Hurricane Irma. Later in December 2017, Allied Universal implemented Hawkins’s pay reduction. Thereafter, in January 2018, Hawkins sent an e-mail to several employees with Allied Universal, stating her concerns about the pay decrease. Owens testified that he received the e-mail, which was encrypted, and called Hawkins to discuss, but she did not answer her phone. They spoke the next day, and Owens directed Hawkins to speak with another Allied Universal employee to discuss the pay decrease. In early 2018, Allied Universal implemented a new timekeeping system for its employees called “Team Time,” which required employees to record their time via telephone. Owens testified that because multiple sites encountered difficulties with “Team Time” on its first day, he called all of the worksites he supervised to determine whether those employees had experienced issues with it. Owens testified that he called Hawkins more than one time that day, and that she did not answer. Owens testified that, on two separate occasions, he visited Hawkins’s worksite and asked her to sign Allied Universal documents, including the “Employee Handbook Receipt and Acknowledgement,” and the “Job Safety Analysis Acknowledgement.” Owens testified that on these two separate visits, Hawkins refused to sign them. Hawkins was the only Allied Universal employee in Tallahassee who refused to sign these documents. Allied Universal did not discipline Hawkins for her refusal to sign these documents. In her Charge of Discrimination, Petition for Relief, and at the final hearing, Hawkins contends that the actions detailed in paragraphs 7 through 12, above, constituted retaliation. Prior to filing the Charge of Discrimination with FCHR in February 2018, Hawkins never complained to Allied Universal about retaliation, harassment, or discrimination. Hawkins remains an employee of Allied Universal at the DOR location in Tallahassee. Hawkins presented no persuasive evidence that Allied discriminated against her because she opposed an unlawful employment practice, or because she made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under the FCRA. There is no competent, persuasive evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Petitioner, Lucinda Hawkins, did not prove that Respondent, Allied Universal Security Services, committed unlawful employment practices, or retaliated against her, and dismissing her Petition for Relief from unlawful employment practices. DONE AND ENTERED this 25th day of January, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of January, 2019.
The Issue The issue is whether the four "unwritten policy statements" challenged by Petitioner are rules that have not been adopted through the formal rulemaking procedures.
Findings Of Fact Petitioner is an insurance salesperson licensed under Chapter 626, Florida Statutes. Petitioner is the subject of an Administrative Complaint filed by the Department charging him with violations of various provisions of Chapter 626, Florida Statutes, in connection with his sale of viatical settlement contracts (viaticals) in 2002 and 2003. A final hearing in that case, DOAH Case No. 07-4701PL, was held on February 20, 2008, before Administrative Law Judge Chad C. Adams. The petition in this case challenges four "agency statements relating to an administrative complaint filed against [Petitioner] (and in complaints against others similarly situated) as applied by the Department " The challenged statements are summarized in the petition as follows: An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are securities. An unwritten policy statement that ownership interests in viatical settlement contracts sold in 2002 and 2003 are required to be registered pursuant to Section 517.07, Florida Statutes. An unwritten policy statement that the Department defers to the Office of Financial Regulation in making decisions regarding whether viatical ownership interests are securities under Chapter 517, Florida Statutes. An unwritten policy statement that the Department will defers [sic] to another State of Florida agency, the Office of Financial Regulation, in deciding issues regarding viatical interests as securities under Chapter 517, Florida Statutes. The first two challenged statements are materially indistinguishable from statements challenged by Petitioner in DOAH Case No. 07-4746RU. The only difference is the addition of the words "[a]n unwritten policy statement that." The other two challenged agency statements were not challenged in DOAH Case No. 07-4746RU. According to the petition in this case, Petitioner first learned of these statements during the deposition of Barry Lanier. That deposition was taken in DOAH Case No. 07-4746RU on January 9, 2008. On January 25, 2008, Judge Adams entered a Summary Final Order in DOAH Case No. 07-4746RU, concluding that the statements challenged in that case are not rules because they were "pleadings within the Administrative Complaint intended to explain the interpretation provided by the agency concerning the meaning of provisions within Chapters 517 and 626, Florida Statutes, in effect when the alleged misconduct took place as described in the Administrative Complaint." The Summary Final Order explained that Petitioner would have the opportunity in DOAH Case No. 07-4701PL to pursue claims concerning the agency statements under Section 120.57(1)(e), Florida Statutes. On the same date that the Summary Final Order was entered, Judge Adams entered an Order striking the Third Affirmative Defense raised by Petitioner in DOAH Case No. 07-4701PL. That defense alleged that "[t]he Department's complaint is based in whole or part, upon 'agency statements' in violation of section 120.56(4), Florida Statutes, which have not been lawfully adopted pursuant to Section 120.54, Florida Statutes." The Order stated that it was entered "[w]ithout reference to Section 120.57(1)(e), Florida Statutes," because that statute was not mentioned in the affirmative defense, and the Order only precluded Petitioner from presenting the Third Affirmative Defense "as stated." Petitioner appealed the Summary Final Order in DOAH Case No. 07-4746RU to the First District Court of Appeal. The appeal is pending as Case No. 1D08-0581. The Department does not make the determination as to whether something is a security on its own; it defers to OFR when making the determination because OFR is the state agency responsible for regulatory activities relating to the securities industry. OFR and the Department make the determination as to whether something is a security on a case-by-case basis.4/
The Issue Case No. 81-2421: Whether Petitioner's bid for contractual services to attach labels and mail" The Florida Market Bulletin" should be accepted. Case No. 81-2481: Whether Petitioner's bid for contractual services to attach labels and mail "The Senior Consumer Monthly" should be accepted. These consolidated cases involve the claim of Petitioner Modern Copy Service, Inc., d/b/a Modern Mailers, that Respondent Department of Agriculture and Consumer Services should award it two contracts for attaching labels and mailing copies of two separate publications of the agency. Petitioner claims that even though it did not submit the low bid on either of the two contracts, Respondent did not follow proper bidding procedures under Chapter 287, Florida Statutes, and Chapter 13A-1, Florida Administrative Code, not specifying criteria in the invitation for bids which would be used in determining the acceptability of a bid, as required by Rule 13A-1.16, F.A.C. The two contract cases were consolidated pursuant to Rule 28-5.106, F.A.C. upon request of the Respondent. A motion for 1eave to intervene in the proceedings by Direct Mail Specialists, Inc., based on its claim to be the low bidder in both procurements, was granted. At the hearing, Petitioner called three witnesses and submitted the deposition testimony of two other witnesses, plus another deposition of a witness who was called in its case in chief. (Petitioner's Exhibits 1-3) Respondent called no witnesses but submitted two exhibits in evidence consisting of the bid files (Respondent's Exhibit 1) and a late-filed copy of Chapter 13A- 1, F.A.C., of which official recognition was taken (Respondent's Exhibit 2). In a post-hearing letter, Petitioner submitted another copy of Chapter 13A-1, which contained the prior version of Rule 13A-1.06 concerning timeliness of petitions challenging bidding procedures. Official recognition is taken also of this former rule. The Intervenor called one witness. Petitioner's Proposed Findings of Fact and Conclusions of Law, and Intervenor's Proposed Findings of Fact have been fully considered, and those portions not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent did not file a proposed order or brief. The parties agreed that the Hearing Officer would have until January 20, 1982 in which to file his Recommended Orders in these matters.
Findings Of Fact Petitioner, Modern Copy Services, Inc. d/b/a Modern Mailers, Tallahassee, Florida, is a firm which provides mail processing services and, for the past several years, provided such services to Respondent Department of Agriculture and Consumer Services with respect to three of the agency publications, including The Florida Market Bulletin, and The Senior Consumer. The past work of the firm has been satisfactory to the Department. (Testimony of Giroux, Harrison, Varick, Petitioner's Exhibits 2,3, Respondent's Exhibit 1). By public notice, dated September 2, 1981, Respondent announced that sealed bids would be received until September 15, 1981 for "Labeling and Mailing 'The Senior Consumer Newspaper'". A similar notice was published on September 8, 1981 calling for sealed bids until September 22, 1981 for "Labeling and Mailing the 'Florida Market Bulletin'". These procurements were conducted by formal advertising due to a change in the law which required contractual service contracts to be handled in the same-manner as had commodities in the past. The services in question needed to be advertised and bid because they each exceeded $2,500.00 in amount. (Testimony of Harrison (Petitioner's Exhibit 3) Respondent's Exhibit 1). Invitations to bid for services concerning "The Senior Consumer" were mailed on August 27th to three Tallahassee firms, including Petitioner, Canon Graphics, and Intervenor Direct Mail Specialists, Inc. The bid package consisted of a Request for Quotation, a standard Invitation to Bid Form PUR2043 containing standard General Conditions, and the bid specifications. The Request for Quotations showed that the services required were attaching labels and mailing approximately 51,000 copies of The Senior Consumer Monthly from October, 1981 through September, 1982, and called for bids on a price per thousand. The specifications provided that the bids would be subject to Rule 13A-1.16, F.A.C., and set forth a more detailed description of the services required, the number of editions, circulation details, scheduling, penalties for delaying mailing, and information concerning Respondent's option to renew the award. Among the requirements included in the specifications were that the vendor must pick up the labels supplied by Respondent, fulfill all requirements for mailing second class publications by the postal service, and delivery of the publications to the Post Office within a stated period after receiving copies from the printer. (Respondent's Exhibit 1). In response to the invitation, Petitioner and Intervenor submitted timely bids. Petitioner's bid was $9.50 per thousand and Intervenor's bid was $8.95-per thousand. In order to determine whether the low bidder, Intervenor Direct Mail Specialists, Inc., was a qualified and responsible firm, Respondent's purchasing agent, Grace Harrison, and another employee, Lester Brinson, visited its place of business, viewed the firm's equipment, and talked to the manager concerning the firm's experience in providing similar services for Rose Printing Company and The Florida Bar. As a result of their visit, Respondent's personnel determined that the Intervenor possessed adequate equipment and sufficient experience to render the required services in a satisfactory manner. No subsequent inquiry was made by Respondent with respect to the Intervenor's record of performance in its contracts with Rose Printing Company and The Florida Bar, or to compare the respective abilities of Petitioner and Intervenor to provide the requisite services. In fact, Intervenor had experienced some difficulties on its previous jobs with regard to sorting problems, and timeliness of its services. However, no contracts were lost by Intervenor as a result of these difficulties and Petitioner has had various problems with Post Office procedures itself in the past. (Testimony of Harrison, Brinson, Schwartz, Chambers, (Petitioner's Exhibits 1,3), Respondent's Exhibit 1) Subsequent to the visit of Respondent's purchasing personnel to the Intervenor's place of business, award of the contract was made to that firm by the issuance of a purchase order on October 8, 1981. Respondent's purchasing agent Harrison, together with personnel of Respondent's Division of Consumer Services had recommended award of the contract to Intervenor based upon the fact that it was qualified and had submitted the low bid. (Testimony of Harrison, Petitioner's Exhibit 3, Respondent's Exhibit 1, supplemented by testimony of Varick (Petitioner's Exhibit 2) Respondent mailed Request for Quotation for attaching labels and mailing approximately 46,900 copies of The Florida Market Bulletin semi-monthly October, 1981 through September, 1982, to the same three bidders as in the previous procurement. Timely bids were received again from Petitioner and Intervenor. Petitioner submitted a bid price per thousand of $8.50 and Intervenor a bid price of $8.45. The bid package was similar to that sent out for the Senior Consumer publication. The specifications similarly provided for the vendor to fulfill all postal requirements as to second class publications, and delivering the bulletins to the Post Office within seventy-two hours from notification that the Bulletin and labels were ready for pickup. (Testimony of Harrison, Petitioner's Exhibit 3, Respondent's Exhibit 1) On September 22, 1981, the day of bid opening on the Florida Market Bulletin procurement, Jim Giroux, the owner of Petitioner firm inquired of Ms. Harrison as to the criteria to be used in making awards on both procurements. She informed him that price alone was the criteria for such award, and that if the low bidder met the specifications, there was no reason not to make the award to such bidder. A "Requisition on Purchasing Agent", dated September 28, 1981, was issued by Respondent in which the contract on the Florida Market Bulletin was awarded to the low bidder, Intervenor Direct Mail Specialist, Inc. At the time of hearing, Intervenor had performed services under the Senior Consumer contract for two months without any problems. However, the award to the Intervenor on the Florida Market Bulletin contract has been held in abeyance pending disposition of these proceedings. (Testimony of Harrison, Giroux, Schwartz, Brooks, Petitioner's Exhibit 3, Respondent's Exhibit 1).
Recommendation It is recommended that the relief sought by Petitioner Modern Copy Services, Inc., d/b/a Modern Mailers, in these cases be denied; that the award to the Intervenor Direct Mail Specialists, Inc. in Case No. 81-2421 be confirmed, and that award be made to the Intervenor in Case No. 81-2481. DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982. COPIES FURNISHED: Robert L. Hinkle, Esquire HINKLE & BATTAGLIA Post Office Box 10448 Tallahassee, Florida 32302 Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John G. Wood, Jr., Esquire 424 East Call Street Tallahassee, Florida 32301 Department of Agriculture and Consumer Services ATTENTION: Leslie McLeod, Jr., Esquire Mayo Building Tallahassee, Florida 32301
The Issue Whether the Petition for Formal Administrative Hearing that initiated this proceeding was timely filed?
Findings Of Fact On January 12, 2004, the Department of Environmental Protection issued a letter (the "Letter of Consent") to the Ellenthals that stated the following: "Ira & Judith Ellenthal are hereby authorized to proceed with the repair of approximately 674 sq. ft. of an existing dock and install two (2) boat lifts within the Bay of Florida." Department Ex. 7. The Letter of Consent proclaimed that it constituted "sovereign lands authorization," id., and referenced: Monroe County - ERP File No. 44-0223322-001 Florida Keys Ecosystem Management Area. Id. The Letter of Consent also shows the location of the activity it authorized as offshore of Lot 16, Block 6 of the Buccaneer Point Subdivision located on Bounty Lane in Key Largo. Page 5 of the Letter of Consent provides to parties whose substantial interests are affected by the Department's action a notice of their rights, in pertinent part, as follows: A person whose substantial interests are affected by the Department's action may petition for an administrative proceeding (hearing) under section 120.569 and 120.57 of the Florida Statutes. * * * In accordance with rules 28-106.111(2) and 62-110.106(3)(a)(4), petitions for an administrative hearing must be filed within 21 days of publication of the notice or receipt of written notice, whichever occurs first. Under rule 62-110.106(4) of the Florida Administrative Code, a person whose substantial interests are affected by the Department's action may also request an extension of time to file a petition for an administrative hearing. The Department may for good cause shown, grant the request for an extension of time. * * * A timely request for an extension of time shall toll the running of the time period for filing a petition until the request is acted upon. Upon motion by the requesting party showing that the failure to file a request for an extension of time before the deadline was the result of excusable Id. at 5. neglect, the Department may also grant the requested extension of time. Prior to the issuance of the letter, Petitioner Potter had not requested that the Department give him notice of the Department's decision on the Ellenthal's application. Tr. 19. Petitioner Potter's house is two houses to the south of the Ellenthal property. The distance between the Ellenthal dock and Mr. Potter's dock is between 130 and 131 feet by Mr. Potter's estimation. Mr. Potter sees the Ellenthal property on average "more than one time daily." Tr. 40. Mr. Potter requested and was provided access to the file maintained by the Department on the Ellenthal property (the "Ellenthal File") on at least four separate occasions: January 25, 2009; April 30, 2009; April 9, 2010; and July 28, 2010. The Letter of Consent should be present in the Ellenthal File in the normal course of business. The Department's witness, an administrative assistant, whose position requires her to maintain the Ellenthal File and who provided the file to him several times had no reason to believe that the file was not provided to him in its entirety every time he requested it. Documents that reflect agency action in 2004, like the Letter of Consent, remain in the agency file even when the agency action is maintained in the Department's computer system. Nonetheless, Mr. Potter maintains that he did not see the Letter of Consent on any of the times he reviewed the file until the last time, July 28, 2010, when there is no question in his mind that he received the "whole file," tr. 89, including the Letter of Consent. Mr. Potter's purpose in reviewing the Ellenthal File was to obtain information about riparian lines that related to another case in which he was involved. He did not examine the file for any documents that related to anything other than the riparian lines issue. Mr. Potter recalled that on January 25, 2009, there was only one page in the Ellenthal File and it was not the Letter of Consent. It was a document "from the State Bureau of Mapping and Surveying." Tr. 27-28. On the two times in the month of April in both 2009 and 2010 that he requested and reviewed the Ellenthal File looking for information about riparian lines, Mr. Potter was unable to recall what documents were in the file. On the April 9, 2010, visit to the Department's offices, Mr. Potter copied aerial photographs from the Ellenthal File. In answer to the question what other documents were in the file at that time, Mr. Potter responded: I don't recall . . . I wasn't looking for anything other than . . . a photograph . . . overhead riparian line drawings. That's it. That's all I looked at. I wasn't looking at anything with words on it. Tr. 88 (emphasis added). On August 11, 2010, fourteen days after reviewing the file on July 28, 2011, Mr. Potter requested an extension of time to file a petition for an administrative hearing. The request was granted. The Order granting the extension allowed Mr. Potter to file a petition until September 27, 2010. But the order warned: "This Order does not constitute a determination that the request for an extension of time is timely or that a petition for an administrative hearing regarding Department File No. 44-0223322-001 filed on or before September 27, 2010, is or will be considered timely." Mr. Potter filed the petition for formal administrative hearing on September 27, 2010, within the time allowed by the Department's order granting the extension of time for its filing. The Department filed a motion to bifurcate the hearing so that the single issue of whether the petition is timely or not could be considered separately from the merits of the petition. The motion was granted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a Final Order that dismisses the Petition for Formal Administrative Hearing that initiated this case. DONE AND ENTERED this 14th day of October, 2011 in Tallahassee, Leon County, Florida. S DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 2011. COPIES FURNISHED: Brynna J. Ross, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 James Michael Porter, Esquire James M. Porter, P.A. 1 Southeast 3rd Avenue, Suite 2950 Miami, Florida 33131 Harry E. Geissinger, III, Esquire Harry Geissinger Law Office Post Office Box 2218 Palm Beach, Florida 33480 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Tom Beason, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
