The Issue The issue in this case is whether Banknote Corporation Of America, Inc.'s challenge to the Department of Highway Safety and Motor Vehicle's proposed award of a contract to American Banknote Company pursuant to Invitation to Bid No. 84- 91 should be upheld. Necessarily involved in the resolution of this issue is a determination of whether the bid proposal submitted by Banknote Corporation of America should be rejected as non-responsive.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On February 11, 1991, the Department of Highway Safety and Motor Vehicles (the "Department") released Invitation to Bid 084-91 (the "ITB") seeking bids for the printing of certain motor vehicle title certificate forms. The ITB was promulgated by the Division of Purchasing of the Department of General Services ("DGS") after the Department received an authorized request for a purchase order from the Department's Division of Motor Vehicles. The request for a purchase order contained certain specifications indicating how the Division of Motor Vehicles wanted the title certificates to be manufactured. The title documents which are the subject of the ITB are used in Florida as proof of ownership of a motor vehicle or mobile home. The Florida Statutes require the Department to provide a secure title document to protect the public from counterfeiting and to provide some confidence in the title documents for lenders and others who rely upon the documents as proof of ownership. See, Section 319.23(10), Florida Statutes. The Department has been issuing a "secure" title or banknote type title since approximately 1982. The basic specifications for the contract for printing these documents have been virtually unchanged since that time. The company to whom the Department proposes to award the contract, ABC, has held the contract for the production of automobile title certificates in Florida since 1982, with the exception of one year when the award went to United States Banknote Company. United States Banknote Company has subsequently merged with ABC and is now the holding company for ABC. ABC is the second largest security printing company in the world and the largest in North America. ABC produces secure documents for the federal government, including U.S. Treasury checks, as well as all other checks issued by the United States Government, Social Security Cards, postage stamps and food stamps. The company also prints gas rationing coupons for NATO Forces in Europe, travelers checks for major issuers around the world such as American Express, stocks and bonds, foreign currency and other documents that require high security in their production. ABC produces motor vehicle title certificates in at least twenty one states. The company was founded in the late 1700's and has been continuously involved in the printing of government documents and high security documents since that time. It is one of only a few high security printing companies in the world. The unique characteristics of the security printing industry are discussed in more detail below. The form of the ITB had been used by the Division of Purchasing of DGS on at least two occasions in the past. The evidence did not establish how many responsive bids had been received in previous years when the contract for printing title certificates was let out for bid. The Department's procedure for issuing a title are highly automated and require the use of a continuous form document. The items of bid specified by the ITB are two series of motor vehicle title forms, denominated "A" and "B". Both of these items are to be "One part; regular pin-feed marginal punched continuous strip". To authorize the release of the ITB, the Department checked the availability of funding with the Department's Bureau of Budget to determine which fiscal year would qualify for the additional printing of title certificates within the budget. Advertising was purchased in the Florida Administrative Weekly and a bidders' list was obtained from the Division of Purchasing. BCA was not on the list of registered bidders obtained from the Division of Purchasing. At the hearing, BCA's absence from the State Vendor Data Base was cited by the Department's representatives as an additional reason for the disqualification of BCA's bid. It does not appear that BCA's absence from this list was known and/or considered at the time the Department decided to disqualify BCA's bid. 1/ Paragraph 23 of the General Conditions of the ITB provided as follows: PUBLIC PRINTING: A bidder must have at the time of the bid opening a manufacturing plant in operation which is capable of producing the items of the bid, and so certify upon the request of the agency. * * * CONTRACTS NOT TO BE SUBLET: In accordance with Class B Printing Laws and Regulations printing contracts cannot be sublet. General Condition 23 of the ITB is part of the form document prepared by DGS and applies to all public printing contracts that are set out for bid in the state. It is clear that this General Condition does not take into account the very unique characteristics of high security printing industry which are discussed in more detail below. The second paragraph of the Special Condition of the ITB entitled "Security Markings" provided: All bidders must submit with their bid a letter stating that they will insert their own secret markings and will be able to prove titles were produced in their own plant. (emphasis added.) General Condition 8 of the ITB provided as follows: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any actual or prospective bidder who disputes the reasonableness, necessity or competitiveness of the terms and conditions of the Invitation to Bid, bid selection or contract award recommendation, shall file such protest in form of a petition in compliance with Rule 13A-1.006, Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. A separate paragraph of the Special Conditions entitled "Interpretations/Disputes" provided as follows: In addition to General Condition 8, the following shall prevail. Failure to challenge the specifications of the Invitation to Bid within the time prescribed in Section 120.53(5), Florida Statutes (1985),[sic] and Rule 15-2.003(2)(b), [sic] Florida Administrative Code, will constitute a waiver of proceedings under Section 120, Florida Statutes. The 1985 version of Section 120.53(5) did not specifically address the deadline for filing a protest of the specifications in an invitation to bid. However, in 1990 the legislature amended the statute to clearly state that a protest of the specifications had to be filed within 72 hours after receipt of the specifications. No questions regarding the specifications or general conditions were received by the Department within the time frame set forth in General Condition 8. No formal protest of those conditions was filed within the timeframe set forth in Section 120.53(5), Florida Statutes (1990 Supp.). The ITB contained the following Special Conditions: Security Due to the nature of these forms, the successful bidder must maintain strict security on the premises by a recognized security force. The minimum in-plant security must be maintained while producing forms and until turned over to the common carrier. The following minimum security shall prevail: 24 hour guard service must be maintained by a certified security firm approved by this Department. Said security can be of vendor's employees or outside security force, but must be approved by the Department. If bidder uses a type of security system other than guard service, this should be outlined in an affidavit and if satisfactory with the Department will be approved. Each production run must be made under close supervision and initialed by supervisor. All press pull-ins, trim and waste must be shredded immediately in an electric shredder at press. All negatives and plates must be maintained under lock and key by plant supervisor when not in use. Unauthorized personnel must not be permitted in "Restricted Areas" within the plant. Upon expiration of contract, plates must be destroyed. This will be done in the presence of a representative from this Department if we make prior request. This Department reserves the right to spot check the running of the forms to see if proper security is being carried out. EACH BID MUST CONTAIN AN OUTLINE OF SECURITY BIDDER PROPOSES TO FURNISH. THIS MUST BE IN AFFIDAVIT FORM ON VENDOR'S LETTERHEAD, SIGNED WITH SIGNATURE NOTARIZED. LOCATION OF PRINTING PLANT MUST BE INCLUDED IN THIS CERTIFICATION. (Emphasis and capitalization in original) * * * Bid Award. It is anticipated award will be made to the responsive lowest bidder on an "all or none" basis. The Department of Highway Safety and Motor Vehicles reserves the right to reject any or all bids and to waiver [sic] any minor irregularity or technicality in bids received. * * * Minor Bid Exceptions. This Department reserves the right to waive minor deviations or exceptions in bids providing such action is in the best interest of the State of Florida. Minor deviations/exceptions are defined as those that have no adverse effect upon the State's interest and would not affect the amount of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders. Thirteen Bidder Acknowledgments were returned to the Department in response to the ITB, but only two actual bids were received. Those two bids were submitted by BCA and ABC. At least seven of the other eleven companies that returned Bidder Acknowledgments indicated the reason they did not submit a bid was their inability to manufacture the title documents in accordance with the specifications. Each of the bids included a certification that the bidder "agree[s] to abide by all conditions of this bid... and that the bidder is in compliance with all requirements of the Invitation to Bid, including but not limited to certification requirements in submitting a bid to an agency for the State of Florida. ..." Each bidder had to submit a bid bond and be prepared to provide a performance bond upon award of the contract. BCA's bid was in the amount of $429,502.08. ABC's bid was in the amount of $451,000.00. At the bid opening on March 5, 1991, the Department was notified by ABC that BCA did not have the ability to manufacture the items of bid at its own plant. As a result, ABC suggested that BCA was not in compliance with the requirements of the ITB and BCA's bid should be deemed non-responsive. Mr. Rothman of the Department telephoned BCA and spoke with Philip Hurwitz, a Vice President of Manufacturing and the person who signed the Bidder Acknowledgment on behalf of BCA. Mr. Hurwitz informed Mr. Rothman that while BCA had the ability to produce the required printing plates, BCA did not presently have the in-house ability to print the items of bid in the form required. After learning these facts, the Department issued its Notice of Intended Award and Bid Tabulation, naming ABC as the successful bidder. BCA filed a Notice of Protest on March 5, 1991 and a Formal Written Protest on March 11, 1991. In order to properly evaluate the evidence in this case, it is important to understand certain characteristics of the security printing business. The creation of a "secure" document requires highly specialized personnel and elaborate security measures. There are very few security printing companies in the world. The objective of creating a "secure" document is to make it as difficult as possible for that document to be counterfeited. The intaglio method of printing is used because of the difficulty of creating intaglio printing plates. An intaglio document is a document that when printed has a raised or embossed surface. The engraving or creation of intaglio plates is the key to security printing. Without the intaglio plate, a security document cannot be produced. In order to create "secure" documents such as the Series A and Series B motor vehicle certificates requested by the ITB, a security printer first creates the artwork, then creates an intaglio printing plate, then produces the offset printing plates. All these plates are then used with an intaglio press to produce a high security document. There are two types of output by intaglio printers (in other words, two types of intaglio documents,) sheet intaglio and web intaglio. Sheet intaglio are documents printed in separate sheets. Web intaglio is when a document is printed in a continuous form. Since the ITB calls for a continuous form document, web intaglio printing is required. There are very few web intaglio printing presses in the world. While there is apparently one other company in the United States that has such a press, that company, Midwest Banknote, only recently acquired its web intaglio press and did not bid on this project. Other than ABC, no other company with web intaglio printing capabilities bid on this project. In fact, the evidence indicates that there only a couple of other companies in the world that have web intaglio presses. Because of the highly technical processes necessary for security printing and the costly and specialized equipment involved, it is very common in the security printing business for security printers to work with each other. This cooperation has been accomplished without any compromising of security. For example, ABC has worked with BCA and Canadian Banknote Company Ltd. ("Canadian Banknote") often in the past. BCA is a Delaware corporation which began its operations upon taking control of an old ABC plant, called the Ramapo Plant, in Suffern, Rockland County, New York, on April 19, 1990. BCA was created when, in the Fall of 1989, the United States Department of Justice required the creation of a stand-alone security printer as a condition to approval of the merger between United States Banknote and ABC. A stand-alone security printer means a security printer that is capable of producing all items of high security printing. BCA was specifically established to maintain competition in the security printing industry. BCA is a full fledged stand-alone security printer, with both origination capability and production capability. Origination capability is the ability to create or manufacture intaglio printing plates from which intaglio documents can be printed. BCA does not currently have a web intaglio press. Therefore, it contracts with another high security printer when web intaglio documents are required. BCA has printed and continues to print high security documents using the intaglio process and has produced, among other things, stocks and bonds, gift certificates, automobile titles, and certificates of origin. BCA has also done work for the United States Department of State on visas as well as work on consular birth certificates. BCA has printed automobile titles at its Suffern, New York Ramapo Plant for the State of New Hampshire and has recently been awarded a three year printing contract for automobile titles for the State of Kansas. The automobile titles for Kansas will be continuous form documents and Canadian Banknote will do the actual printing of the certificates based upon plates produced by BCA. BCA is capable of creating the artwork as well as the intaglio plates from which the Series A and Series B title certificates would be printed. All of this work would be done at its Suffern, New York plant. The security provided at BCA's Ramapo plant in Suffern, New York, conforms to the security requirements contained in the ITB. The Department has inspected the Ramapo Plant and found security conditions there were acceptable. Under BCA's proposal, the Series A and Series B title certificates would be printed by Canadian Banknote from intaglio plates created by BCA. Canadian Banknote has one of the few web intaglio presses in North America. BCA's intent to have the printing of the title certificates done by Canadian Banknote was not set forth in its response to the ITB. Canadian Banknote's name, address, qualifications and abilities were not included as part of BCA's response and BCA did not submit any affidavits or statements from Canadian Banknote regarding security. No written contract exists between BCA and Canadian Banknote for the printing of the motor vehicle title certificates in the event that BCA is awarded the bid. In its response to the ITB, BCA provided a description of the security system at its Suffern, New York plant. No explanation or details were given regarding security at Canadian Banknote. At the hearing in this cause, a representative of Canadian Banknote testified. He confirmed the unique characteristics of the high security printing business. He also provided information indicating that Canadian Banknote can meet the security requirements necessary to produce secure documents. However, that evidence was not presented to the Department as part of BCA's response to the ITB and, therefore, is an improper supplement to BCA's bid proposal. At the time of the submission of a response to the ITB by BCA, Canadian Banknote was unaware that BCA was submitting a proposal. No requests had been made of Canadian Banknote to supply details regarding the security of its plant for purposes of the ITB. Canadian Banknote never reviewed the plan of security that was part of the response to the ITB submitted by BCA nor was Canadian Banknote consulted concerning the plan of security prior to the submission of a price by BCA. If Canadian Banknote undertook to print the title certificates for BCA, it is conceivable that Canadian Banknote would subcontract some of nonsecurity aspects of the printing from BCA to other printing companies. BCA's intention to have the title certificates printed by Canadian Banknote is contrary to the provisions of General Condition 23 of the ITB and the Special Condition entitled "Security Markings". Canadian Banknote was formed in 1897 and has been in operation almost 100 years. The Canadian Banknote plant used to be owned by ABC. Canadian Banknote was affiliated with ABC until 1976. Canadian Banknote is a high security printer and has in place the surveillance, employment standards, and physical security that are typical of the high security printing business. In addition, high security is provided in the accountability of documents. Canadian Banknote produces banknotes, passports, traveler's checks, bonds, stock certificates, vital statistic documents and a variety of other documents where security is required. Canadian Banknote has printed banknotes for the Central Bank of Canada for many years. The evidence established that BCA can arrange for secure shipment of the plates to Canadian Banknote in a sealed crate by either dedicated or bonded courier. The offset and intaglio plates would be sent separately. This method of transporting plates is in keeping with industry standards. BCA has contracted with at least one other state for the printing of automobile title certificates using continuous form (web intaglio) printing where the plates are prepared by BCA and the printing is done by Canadian Banknote. There is no indication of any security problems in this arrangement. The Department contends that in order to meet the conditions of the ITB, a bidder must own the plant where the certificates are to be printed. The Department also contends that the terms of the ITB prevent the subletting of any portion of the contract. The evidence demonstrates that, aside from ABC, none of the other companies from whom bids were solicited could comply with these conditions. In fact, there is at most one other company in the United States and only a couple of companies in the entire world who could possibly produce the intaglio plates and print continuous form (web) intaglio certificates. None of the other companies with that capability were solicited to submit a bid on this project. The ITB requirements that a bidder have a plant capable of producing the items of bid and that no portion of the contract can be sublet have been included as conditions in the ITB since at least 1982. It was not until sometime after the bid opening in March of 1991 that the Department's representatives became aware that only ABC and perhaps one other company in the United States had the in-house capability to print web intaglio documents. After BCA's bid proposal was determined to be non-responsive, the only responsive bid to the ITB was from ABC. ABC's bid proposal anticipates that ABC would do all of the work. If subletting of the contract were allowed, ABC may have been able to reduce the amount of its bid proposal by subletting the continuous form web lithographic printing (the first part of the production of motor vehicle title certificates) to a non-security printer that had lower overhead costs. ABC did not explore such possibilities prior to submitting its proposal because of the provisions of General Condition 23 in the ITB. ABC actually prints the automobile title certificates at a location that is different from the site where the plates are engraved. Therefore, when new plates are prepared, they must be transported and appropriate security is arranged for the transportation of the plates to the printing plant. Such transportation is in accordance with industry standards and does not violate the security provisions of the ITB. After BCA was disqualified and the Department determined that only one responsive bid was received, the Department requested permission from DGS to award the bid to the one responsive bidder, ABC. DGS halted their evaluation of the request when BCA filed its Notice of Intent to Protest. DGS has indicated that it will not take any further action on the request until the protest is resolved. While the Department contends that it examined the reasons why only one responsive bid was received, no formal report was prepared. The evidence at the hearing in this cause established that the reason why only one responsive bid was received is because of the extremely limited number of high security printing companies and the even fewer number of companies with the ability to print web intaglio documents in-house. The Department is concerned that permitting any portions of the contract to be sublet could compromise the security of the title documents and/or reduce the accountability of the successful bidder. When a contract is issued for the production of title certificates, the Department inspects the plates and places its markings on the documents involved. If printing of the documents was allowed to be sublet, the Department would also have to inspect the security of the company doing the printing and verify the security of the transportation methods. The evidence established that the security of the title documents could be maintained even if a bidder were permitted to sublet the actual printing of the documents to another high security printer.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a Final Order finding the bid submitted by BCA to be non-responsive to the ITB and assessing costs in the amount of $440.00 against Petitioner. In addition, the Department should seek approval from DGS to enter into negotiations with ABC regarding the award of the contract. In the absence of a favorable negotiation, the Department should enter a Final Order rejecting all bids and opening the contract up for new bids under terms and conditions that will encourage competitive bids from several sources. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 11th day of June, 1991. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1991.
The Issue Whether Respondent has incurred and failed to pay Petitioner's surcharge tax in the amount of $12,746.97, including statutory interest and statutory penalty, in violation of Section 561.501, Florida Statutes (2005), and Florida Administrative Code Rule 61A-4.063(8).
Findings Of Fact Based upon observation of the witnesses' demeanor while testifying, character of the testimony, internal consistency, and recall ability; documentary materials received in evidence; stipulations by the parties; and evidentiary rulings during the proceedings, the following relevant and material facts are determined: Petitioner, Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco (Division), is the state agency charged with the responsibility of administering and enforcing the beverage law in Florida. Chapters 561 through 568, Florida Statutes (2005). In this disciplinary action, the Division seeks to impose sanctions on the license of Respondent, Beer: 30 Grill & Pub, Inc., d/b/a Beer: 30 Grill & Pub, on the grounds that Respondent failed to pay to the State of Florida the surcharge tax owed for on- premise sales of alcoholic beverages made during the period February 2000 through March 2003. Respondent denied the charge and requested a final hearing to contest this allegation. Respondent is subject to the regulatory jurisdiction of the Division, having been issued beverage license number 69- 02225, 4-COP, by the Division. That license allows Respondent to make sales of beer, wine, and liquor for consumption on premises at the restaurant located at 1602 West Airport Boulevard, Sanford, Florida 32771. At all times material to this proceeding, Respondent, by its corporate officer John Aitcheson, applied for and was holding license number 69-02225, 4-COP. In Florida, a licensee must keep records of all purchases and other acquisitions and sales of alcoholic beverages for a period of three years to comply with Section 561.501, Florida Statutes (2005). This requirement applies to any beverage license holder in Florida. In addition to selling alcoholic beverages for on- premise consumption, Respondent also sells packaged alcoholic beverage for off-site consumption. Surcharge tax in the amount of $0.14 per gallon of beer, $1.07 per gallon of wine, and $4.28 per gallon of liquor is assessed for each and every drink sold by Respondent for on- premise consumption, but no such surcharge tax is owed for off- premise package sales. The surcharge tax is paid by the on-premise consumers (patrons) to the state, and the vendor only collects and remits this surcharge to the state. As a reward for their effort to timely report and remit the surcharge to the state, the vendors are allowed to keep monthly, as an allowance, one percent of the total surcharge owed for the alcoholic beverages sold during that month. Respondent testified that he has a very simple method of keeping sales records. He makes handwritten records of each and every off-premise sale and also collects and keeps the distributors' invoices for the purchase of his alcohol supplies. Every month, Respondent subtracts the off-premise sold alcoholic beverages from the total quantity bought as reflected by the invoices from distributors, obtaining through this indirect method the total on-premise sales. Then Respondent multiplies the resulting quantity of alcohol sold on-premise that month with the applicable tax rate, obtaining thus his surcharge liability for that particular month. Respondent provided the Division with handwritten off- premise sales records. With the exception of the records mentioned above, the Division does not have in the file any other records submitted by Respondent. As well, Respondent did not offer any evidence to substantiate his claim that he indeed provided the Division with any additional records. However, Respondent testified that he neither maintained on-premise sales records, as required by Section 561.501, Florida Statutes (2005), nor was he able at the hearing to offer any proof whatsoever that would corroborate his claim that during the audited period he actually made more off-premise sales than reflected in his handwritten records. To enforce the surcharge tax provisions, the Division performs periodic audits of all licensees who sell alcoholic beverages for on-premise consumption. As part of the audit process, the Auditing Bureau of the Division requests and receives monthly reports from alcohol distributors detailing all the sales made by each distributor to each particular licensee. An exception to the automatic monthly distributor reporting procedure is made for the Schenk Company, a beer distributor, which reports its sales to different vendors only when expressly requested by the Division. After receiving all the sales data concerning a particular vendor from the distributors, the Auditing Bureau uses a computer program to calculate the gross surcharge liability of that particular licensee. Special deductions are then allowed for off-premise sales, employee drinks, etc. The burden is on the holder of the license to demonstrate that such person qualifies for a deduction by providing accurate records of off-premise sales, giving employee drinks, etc. Fla. Admin. Code R. 61A-4.063(4) - 61A-4.063(9). It is each licensee’s obligation to accurately report all on-premise monthly sales and to pay the tax collected from customers. There is a penalty and interest surcharge for late reporting and late paying. In addition to the penalty and interest mentioned above, the Division is statutorily required to assess interest and penalties for any underreporting and/or underpayment of the tax due for the period of the audit. If underreporting/underpayment penalties and interest are assessed, they are applied only to the period of the audit. No penalty or interest is applied to any period over the end of the audit. In the present case, the Auditing Bureau calculated Respondent’s surcharge liability based on the data provided by the distributors. The audit allowed Respondent deductions for all off-premise sales recorded in Respondent's handwritten off- premise sales records. At no material time did Respondent request any other deductions nor did he provide any evidence that he would be entitled to any other deductions. It is incumbent to Respondent to carefully keep records of all sales that would entitle him to receive deductions. The Division cannot allow surcharge tax deductions that are not corroborated by any records. Fla. Admin. Code R. 61A-4.063(9). Moreover, Respondent did not even advance any amount of any additional deduction; his position being only that he should have been allowed more deductions because he made more off-premise sales. Absent evidence that more alcoholic beverages were sold off-premise than recorded in the records already taken into consideration by the audit, no additional deductions may be allowed to Respondent. Fla. Admin. Code R. 61A-4.063(9). The audit found that Respondent understated his tax reports and underpaid $7,433.66 in surcharge tax. For the failure to timely report and remit the entire surcharge tax due for the period February 1, 2000, through February 28, 2003, the Division assessed statutory interest of $1,693.85 and a statutory penalty of $3,619.46 for a total surcharge liability of $12,746.97.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Alcoholic Beverages and Tobacco, enter a final order finding Respondent liable and ordering payment for the surcharge tax principal of $7,433.66, plus interest of $1,693.85 and a statutory penalty of $3,619.46 for a total surcharge liability of $12,746.97. DONE AND ENTERED this 24th day of January, 2006, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 24th day of January, 2006.
The Issue Whether respondent's license as a real estate salesman should be revoked or otherwise disciplined on the ground that she is guilty of misrepresentation, false promises, false pretenses, dishonest dealing, culpable negligence, and breach of trust in a business transaction in violation of Section 475.25(1) (b), Florida Statutes (1979).
Findings Of Fact At all times material to the charges, respondent Margaret Perry was a licensed Florida real estate salesman holding license No. 0147966. Her business address is Key Place Realty, 513 West Vine Street, Kissimmee, Florida. (Stipulation of Parties.) I. The Offer On December 12 and 13, 1980, Perry W. Ripple, Jr., and Carol C. Ripple, his wife, signed a contract to purchase a 5-acre tract, with residence, located on Hickory Tree Road, Osceola County, Florida. The contract was prepared by respondent, who had previously shown the property to the Ripples. (Testimony of Perry, P. Ripple, C. Ripple; Joint Exhibit No. 1.) On Saturday, December 13, 1980, the contract constituted only a written offer to purchase the property since Novie P. Cleveland and Pamela A. Cleveland- -the owners of the property--had not yet accepted the offer by signing the contract. Pursuant to the contract, the offer was accompanied by a $1,000 earnest money deposit and an assignment of a certificate of deposit. (Testimony of P. Ripple, Perry.) On Saturday, December 13, 1980, when respondent received the signed offer, with earnest money deposit and certificate of deposit assignment, she mailed a copy to the American Title Insurance Company and ordered title insurance. Before mailing the contract offer to the title insurance company, she typed two dates above the contract signature lines: "December 13, 1980" as the date it was signed by the buyers; 3/ and "December 15, 1980" as the date it would be signed by the sellers (the sellers had not yet signed the contract; she inserted December 15, 1980, in anticipation of their signing on that date). She used December 15, 1980, because, under the terms of the contract, that was the last day the offer could be accepted by the sellers. (Testimony of Perry, Carlyon; P-1.) II. The Acceptance At approximately 6:00 p.m. on Sunday, December 14, 1980, respondent telephoned the sellers, Novie P. and Pamela A. Cleveland, and arranged for them to meet her at Mr. Cleveland's office and accept the offer by signing the contract. Respondent expedited the signing of the contract because the Ripples were in a hurry to close the transaction. (Testimony of N. Cleveland, P. Cleveland, Perry.) A few minutes later, the Clevelands met respondent at the designated place and signed the contract. Although they signed the contract on December 14, 1980, respondent inadvertently failed to correct the December 15, 1980, date which she had earlier placed in the contract as the date of execution by the sellers. (Testimony of Perry, N. Cleveland, P. Cleveland; Joint Exhibit No. 1.) III. Buyers' Attempt to Withdraw Offer Later on that evening--between 8:00 p.m. and 9:00 p.m. on December 14, 1980--Mr. Ripple telephoned respondent at her home. He questioned her about the boundaries and size of the property and, for reasons not material here, told her that he no longer wanted to buy the property, that he wanted the earnest money deposit returned. The conversation was abrupt and heated; both parties became upset with each other. The subject of whether the contract had been accepted and signed by the sellers was not mentioned. (Testimony of Perry, C. Ripple, P. Ripple.) The critical dispute in this case is the time of Mr. Ripple's telephone call to respondent. The Ripples testified it was between 5 p.m. and 6 p.m.; respondent testified it was between 8 p.m. and 9 p.m. If the Ripples' testimony is accepted, then respondent presented an offer to the sellers for acceptance after the buyers had told her they wanted to withdraw the offer and not proceed with the contract; this is the essence of respondent's alleged misconduct. If respondent's testimony is accepted, the buyers did not notify her that they wanted to withdraw their offer until after the offer was accepted by the sellers; under such circumstances, her conduct was clearly proper. Respondent's testimony on the timing of the Ripples' telephone call is accepted as persuasive; (see paragraph 7 above) the Ripples' testimony concerning the time of the call is rejected. In earlier testimony, Mr. Ripple's memory of the events in question was shown to be unreliable: [Respondent's Counsel] Q: You say you signed the contract on December the 13th, on a Saturday. [Mr. Ripple] A: Yes. Q: Isn't it true that you signed the contract at the Sun Bank in St. Cloud on Friday, December 12th, on the hood of your car or Marge's car? That's possible, yes. Q: So you were mistaken when you said you signed it on Saturday. A: Yes, I was. I probably was. (Tr. 23.) More importantly, if the Ripples' testimony is correct, respondent deliberately presented an offer for acceptance which the purchasers no longer wished to make. Assuming such conduct occurred, it is inconceivable that she would inadvertently fail to correct the date on the contract to indicate that the sellers signed on December 14, 1980 (the same day the Ripples attempted to withdraw), not December 15, 1980. The events occurred close together and timing was critical. By not changing the date, she allowed the contract to incorrectly reflect that the sellers signed the contract a day later than they actually did: the time between the buyers' attempt to withdraw and the sellers' acceptance becomes greater than it was and even more difficult for her to explain. In short, her failure to correct the date of the sellers' signing of the contract is not a mistake she would have made if, as the Department alleges, she knowingly presented an offer and completed a contract against the expressed wishes of the buyers. IV. No Damage to Parties Involved On Monday, December 15, 1980, the Ripples stopped payment on their earnest money deposit check. The sellers did not pursue any legal rights or remedies they may have had against the Ripples. Eventually, the property in question was sold to another party. There is no evidence that the Ripples or Clevelands were financially harmed as a result of the events in question. (Testimony of Perry, C. Ripple, P. Ripple, N. Cleveland.)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department's administrative complaint dated October 20, 1981, be dismissed. DONE AND RECOMMENDED this 26th day of March, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer 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 26th day of March, 1982.
The Issue Whether Petitioner, Michele Edwards, was subject to an unlawful employment practice by Respondent, Publix Supermarket, based on her race, 1 All statutory references are to Florida Statutes (2019), unless otherwise noted. color, sex, and national origin, as well as by retaliation, in violation of the Florida Civil Rights Act.
Findings Of Fact Publix is a supermarket chain and food retailer with over 800 locations in the State of Florida. Publix hired Petitioner on September 23, 2014. Petitioner resigned on January 11, 2019. Petitioner spent all but the last month of her Publix career working at Store No. 1215, located in Venice, Florida. Petitioner is of East Indian (Asian) descent. She also has a dark complexion. Publix initially hired Petitioner as a part-time cashier working up to 35 hours a week. As a part-time cashier, Petitioner asserts that she delivered premier customer service. Publix does not dispute that Petitioner consistently provided quality services to its customers. After serving as a cashier for approximately six months, Petitioner’s responsibilities expanded to include working a few hours a week at the “Apron’s” station. The Apron’s is a small kiosk, with a counter, situated inside the store. There, a Meals Clerk cooks, prepares, and presents dining 2 By requesting a deadline for filing post-hearing submissions beyond ten days after the final hearing, the 30-day time period for filing the Recommended Order was waived. See Fla. Admin. Code R. 28-106.216(2). 3 Petitioner also filed a number of post-hearing exhibits, which were not accepted into evidence and were not considered when drafting the Recommended Order. The undersigned’s factual findings are based solely on the evidence and testimony admitted during the final hearing. and meal samples for Publix customers. The Apron’s for Store No. 1215 is equipped with two refrigerated cases, a microwave, and an oven. Petitioner started working at the Apron’s by filling in for and supporting the Apron’s full-time Meals Clerk, Eileen Williford. Only one Publix associate worked at the Apron’s at a time. Therefore, Ms. Williford and Petitioner never occupied the Apron’s during the same hours. Because Apron’s associates never worked at the same time, they communicated with each other through handwritten notes left between shifts. These notes typically concerned the preparation of Apron’s recipes, as well as the Apron’s station’s food supplies, organization, and the condition of the Apron’s appliances and cutlery. As described by Petitioner, the note taking/leaving system with Ms. Williford did not go well. At the final hearing, Petitioner presented photocopies of a number of handwritten notes she received during her time in the Apron’s. Petitioner did not care for the context or implications from several of Ms. Williford’s messages. Between October 2017 and April 2018, Ms. Williford commented on the lack of cleanliness of the microwave and oven due to Petitioner’s alleged inattentiveness, as well as on Petitioner’s inferior cooking and preparation techniques. Ms. Williford also instructed Petitioner how to set up the kiosk. Petitioner found Ms. Williford’s notes condescending and rude. They made her feel “belittled” and “like an idiot.” Petitioner further believed that Ms. Williford falsely accused her of leaving the Apron’s in a messy condition. (Petitioner also left notes for Ms. Williford complaining that she found the Apron’s in an ill-kept condition when she assumed her shift.) The notes Ms. Williford and Petitioner exchanged did not relate to Petitioner’s race, color, or national origin. Towards the end of 2017, Petitioner informed Wayne Bargdill, the Store Manager for Publix Store No. 1215, of the communication issues she was experiencing with Ms. Williford. Mr. Bargdill became the Store Manager of Store No. 1215 around April 2016. He remained the Store Manager until Petitioner departed the store in December 2018. Petitioner reported to Mr. Bargdill that she did not appreciate Ms. Williford’s “unwelcomed” comments. Petitioner further expressed that the note-leaving process was very stressful, and she did not wish to continue the practice. Petitioner also placed the blame on Ms. Williford for leaving the Apron’s space in a disorderly condition. Following Petitioner’s complaints, Mr. Bargdill recognized that Petitioner and Ms. Williford were not getting along. Mr. Bargdill characterized the dispute as two employees “bickering” about the cleanliness of appliances and dishes. To address the situation, Mr. Bargdill expressly directed Petitioner and Ms. Williford to cease all note passing. In addition to the note issues, Petitioner alleged that between October 2016 and March 2018, she heard Ms. Williford direct several offensive statements at Publix customers. Petitioner accused Ms. Williford of referring to one Middle Eastern customer as a “Dot-head,” and that another customer “reeked of curry.” Petitioner further testified that she had heard from another person in the store (but did not witness) that Ms. Williford told an Asian customer that the Apron’s “is not a buffet.” At the final hearing, Petitioner claimed that Ms. Williford made at least five such comments about Publix’s customers. On April 25, 2018, Petitioner met with Mr. Bargdill to discuss Ms. Williford’s insulting comments about Indian and Asian customers. Petitioner expressed that she found these remarks offensive because of her own Asian background. Mr. Bargdill confronted Ms. Williford about Petitioner’s allegations. Ms. Williford denied making any such disparaging statements to or about Publix customers. Nevertheless, Mr. Bargdill took the opportunity to instruct Ms. Williford not to make any comments that could be interpreted as racially derogatory or inflammatory. Mr. Bargdill also located and spoke to Vickie Va, an alleged target of one of Ms. Williford’s comments. He apologized for any untoward treatment by store employees. Petitioner called Ms. Va to testify at the final hearing. Ms. Va, however, hastily and repeatedly voiced that she “did not recall” hearing any such statements. Also during the April 25, 2018, meeting, Mr. Bargdill took the opportunity to speak with Petitioner about her interest in promotion opportunities. At that time, Mr. Bargdill believed that the store’s Deli Department offered Petitioner the best chance to obtain full-time employment. Therefore, Mr. Bargdill suggested that Petitioner consider transferring to a current opening in the Deli. Mr. Bargdill explained to Petitioner that the transition into a full-time job with Publix would require her to submit a Registration of Interest form (“ROI”). In April 2018, Petitioner was still classified as a part-time cashier. Consequently, Petitioner had to transfer into a full-time position, in order to work a full-time schedule. At the final hearing, Mr. Bargdill relayed that completing the ROI process takes approximately four weeks. After the associate fills in the ROI, the store manager (Mr. Bargdill) forwards it to the store’s district manager and requests a change in the associate’s job classification. Once the ROI is approved, the associate is authorized to move to a full-time position. Petitioner, however, was reluctant to accept Mr. Bargdill’s proposal. She was uncertain that she wanted to take on a full-time schedule. Consequently, Petitioner told Mr. Bargdill that she was not interested in pursuing the Deli position at that time. On the other hand, Petitioner expressed that she enjoyed working in Apron’s and would consider becoming a full-time Apron’s Meals Clerk. Mr. Bargdill informed her, however, that Store No. 1215 did not have an opening for another full-time Apron’s employee. Nevertheless, following her discussion with Mr. Bargdill, Petitioner decided to complete an ROI for a Deli Clerk position. She filled out an ROI during the April 25, 2018, meeting. Mr. Bargdill subsequently forwarded her ROI to the district manager. Petitioner’s ROI became effective on May 26, 2018, at which point Mr. Bargdill was able to formally offer Petitioner a path to full-time employment in the Deli Department. On April 11, 2018, while Petitioner struggled in working with Ms. Williford, Petitioner also received her Associate Performance Evaluation for the period of October 2017 through February 2018. (Publix prepares an evaluation for each associate every six months.) Petitioner’s Performance Evaluation scored her on 13 factors. Her supervisor also commented on each score. In the Publix evaluation rating scheme, Role Model is the top level, followed by Exceeds Expectations, Meets Expectations/Successful, Needs Improvement, and then Unacceptable. For this evaluation, Petitioner graded out as Exceeds Expectations. Petitioner was disappointed that she did not receive the top rating of Role Model, which she scored in her previous Performance Evaluation. Petitioner’s supervisor, Desmond James, completed her evaluation. At Petitioner’s request, Mr. Bargdill and Mr. James met with her to review her evaluation. During their meeting, Petitioner expressed that that she disagreed with two comments that Mr. James wrote regarding her performance. Petitioner objected to the sentence in the “Associate Relations” factor that she should “[w]ork on dealing with conflict calmly, directly, and effectively.” Petitioner was also bothered by a line Mr. James included in the “Work Space Organization” factor which stated, “just make sure there is no room for other [sic] to have to pick up left over slack [at the Apron’s counter].” Petitioner believed that these statements made her look like a bad employee and implied that she needed to work on handling confrontation in a more effective manner. After hearing her objections, Mr. Bargdill agreed to amend Petitioner’s Performance Evaluation by marking through the line “just make sure there is no room for other [sic] to have to pick up left over slack.” Mr. Bargdill wrote next to it, “This last line should not have been put in the evaluation.” Petitioner then requested that Mr. Bargdill submit her amended Performance Evaluation to Publix corporate to be included in her official record. Mr. Bargdill responded that, because his strikethrough did not change her overall rating of Exceeds Expectations, he was not inclined to forward the revised evaluation to Publix corporate. Instead, he intended to maintain her Performance Evaluation in her “local” personnel records at Store No. 1215. Petitioner was not satisfied with Mr. Bargdill’s decision. Despite her reduced rating, however, at the bottom of her evaluation she wrote, “thank you for everything!” Petitioner explained that she wanted Publix to know that she was grateful for her employment opportunity. Based on her Exceeds Expectations rating, Petitioner received a $.25 increase in her hourly wage to $12.25 an hour. Her raise became effective on March 24, 2018. Also during that time, on or about April 20, 2018, Petitioner emailed a formal complaint alleging “Racial Harassment and Discrimination” at the hands of Ms. Williford and two other Publix associates, to Neil Vafeas, a Publix Retail Associate Specialist. In his role, Mr. Vafeas serves as a human resources investigator or specialist. He is the human resources contact person for Publix’s territory from Bradenton to North Fort Myers, which includes Store No. 1215. As part of his responsibilities, Mr. Vafeas serves as the contact person for Publix associates should they ever feel mistreated, harassed, discriminated against, or have concerns or questions related to their employment. Petitioner followed her email with a phone call to Mr. Vafeas on or about April 23, 2018. During her call, Petitioner reported the offensive statements she heard from Ms. Williford. Petitioner specifically told Mr. Vafeas that Ms. Williford call a customer a "Dot head" and declared that another customer "reeked of curry." Petitioner also conveyed her displeasure with her 2018 Performance Evaluation. Mr. Vafeas was very concerned with Petitioner’s complaints. After receiving Petitioner’s phone call, Mr. Vafeas contacted Mr. Bargdill. Mr. Vafeas instructed Mr. Bargdill to speak with Ms. Williford regarding Petitioner’s complaints, and then set up a separate, in person, meeting between Mr. Bargdill, himself, and Petitioner. On May 17, 2018, Petitioner met with Mr. Bargdill and Mr. Vafeas. At the final hearing, Mr. Vafeas explained that his primary goal entering the meeting was to discuss: 1) Petitioner’s complaints about her Performance Evaluation from April 2018; 2) Petitioner’s conflict with Ms. Williford, and 3) full-time job opportunities available for Petitioner at Publix. In addition to these issues, Mr. Vafeas recalled that during their meeting, Petitioner raised further concerns, including disparaging comments Petitioner heard Ms. Williford make about Publix customers, and a comment another Publix employee made about Petitioner’s dog. Regarding Petitioner’s Performance Evaluation, Mr. Vafeas remembered that Petitioner believed that she was being held accountable for Ms. Williford’s messes at the Apron’s. Mr. Vafeas testified, however, that Petitioner’s evaluation scores were very close to those she received in her prior evaluation in November 2017. (In her November 2017 evaluation, Petitioner earned the top “Role Model” rating by one point.) Mr. Vafeas further reflected that Petitioner’s April 2018 evaluation scores were justified, and no score appeared improper. Mr. Vafeas also explained that Petitioner’s rating of Exceeds Expectations (as opposed to Role Model) did not impact her current or prospective rate of pay. Regarding the exchanging of notes at the Apron’s, Mr. Vafeas got the impression that Mr. Bargdill’s decision to cease all note passing resolved the matter. He also understood that Mr. Bargdill had counseled Ms. Williford about her alleged use of offensive language. Mr. Vafeas urged Petitioner to report any further conflicts to Mr. Bargdill. Finally, Mr. Vafeas recounted that the three discussed, at length, the full-time openings available at Store No. 1215. Petitioner repeated her desire to remain an Apron’s Meals Clerk. However, because the store did not have a full-time opening in that position, Mr. Vafeas and Mr. Bargdill informed Petitioner that they could look at other stores for a position as a full-time Apron’s specialist. If they found an opening, Petitioner could request a transfer. Mr. Vafeas and Mr. Bargdill reiterated to Petitioner that the best full- time opportunity at Store No. 1215 was in the Deli Department. Petitioner remained noncommittal. She was concerned about the time commitment required to work a full-time schedule. Therefore, they concluded the meeting by leaving Petitioner to consider her next move. Petitioner remained in her part-time cashier/Apron’s position. At the same time that Petitioner was pondering her future with Publix, another associate at Store No. 1215, Debbie Bartels, a white female, approached Mr. Bargdill inquiring about full-time positions. Mr. Bargdill offered Ms. Bartels the same guidance and opportunity that he provided to Petitioner, that a full-time job was open in the Deli Department. Ms. Bartels jumped on the offer and quickly completed an ROI. In June 2018, Ms. Bartels began receiving the required training to transfer to a full-time Deli position. From June through August 2018, Ms. Bartels slowly accrued more training hours in the Deli. In September 2018, she officially became a part-time Deli clerk. Ms. Bartels transitioned to a full-time Deli associate on December 8, 2018. Also in June 2018, about a week after Ms. Bartels began training as a Deli Clerk, Petitioner informed Mr. Bargdill that she had decided to accept the opportunity to work in the Deli. Because Petitioner’s ROI was approved on May 26, 2018, Mr. Bargdill promptly arranged for Petitioner to receive the training required to assume a full-time Deli position. Mr. Bargdill explained that the Deli is the most demanding department in the store because of the large volume of responsibilities that must be managed on a day-to-day basis. Consequently, Publix requires Deli Clerks to undergo extensive training. Once an associate completes the training, if they are productive and handle the Deli environment well, Publix will look to promote them to a full-time Deli Clerk. Training for the Deli Department required Petitioner (and Ms. Bartels) to complete a computer-based course to learn Deli procedures. She was also scheduled time to familiarize herself with the different Deli sections and services. This training included slicing cheeses and meats, as well as working in the sub shop, the kitchen, and the back of the Deli. Over the summer of 2018, Petitioner continued her assignment as a part-time cashier, while also working several hours a week in the Deli Department to gain experience. Finally, on August 11, 2018, Petitioner officially moved into a part-time Deli position. Based on the progress of her training, Petitioner was scheduled to become a full-time Deli Clerk in December 2018 (the same schedule as Ms. Bartels). In October 2018, Petitioner received another six-month Associate Performance Evaluation covering the period of April 1 through September 30, 2018. Petitioner’s rating category, which included her time as a Deli Clerk in training, dropped from Exceeds Expectations to Meets Expectations/Successful. Petitioner’s inexperience working in the Deli was reflected in the “Tracking & Balancing Inventory” and “Merchandizing” factors, with explanations that Petitioner “[s]hows only a basic or limited understanding of tools and sometimes cannot apply information to work activities. Still in training.” Petitioner was given a 3 out of 9 rating in this factor. For the “Associate Relations” factor, the evaluation recorded that Petitioner was “[f]riendly and considerate of other associates. Gets along with most associates. Shows willingness to assist others in accomplishing work and serving customers when needed.” Petitioner received a 5 out of 9 rating in this factor. Even with a Meets Expectations/Successful rating, Petitioner received a pay raise of $.50 an hour up to $12.75. Her raise became effective on October 20, 2018. In September 2018, Mr. Bargdill became aware of a conflict in the Deli Department between Petitioner and Lisa Stewart, another Deli associate. Ms. Stewart had worked in the Deli for approximately three years prior to Petitioner’s transition. She had been assigned to help train Petitioner on Deli procedures. Petitioner complained to Mr. Bargdill that Ms. Stewart had bullied her and refused to train her. At the final hearing, Mr. Bargdill confessed that Ms. Stewart can be “difficult” to work with. It became clear to him that Petitioner and Ms. Stewart had a tense working relationship that had created issues during Petitioner’s training. He counselled both Petitioner and Ms. Stewart about their personality conflict, and he removed Ms. Stewart as Petitioner’s Deli trainer. On November 20, 2018, however, another conflict erupted between Petitioner and Ms. Stewart. This time, Petitioner alleged that Ms. Stewart pushed her. Petitioner immediately reported the encounter to Mr. Bargdill. She explained to him that that morning, she had heard Ms. Stewart loudly complain about the smell in the Deli. Petitioner believed that Ms. Stewart’s comment was specifically aimed at her. The two women exchanged words. Shortly thereafter, Petitioner claimed that Ms. Stewart pushed her aside as she walked past. Mr. Bargdill promptly investigated the incident. He found both women visibly upset, as if they had just endured a heated encounter. He confronted Ms. Stewart and counseled her regarding Petitioner’s accusations. Then, to defuse the situation, Mr. Bargdill sent both Petitioner and Ms. Stewart home for the rest of the day. At that point, Mr. Bargdill considered the situation resolved. Petitioner, however, was not ready to let the matter go. She felt that Mr. Bargdill treated her unfairly because Ms. Stewart had started the dispute. On her way home, Petitioner called the Sarasota County Sheriff’s Office and reported that Ms. Stewart had committed a battery. The next day when Ms. Stewart returned to work, Mr. Bargdill called her into his office. He informed her that a sheriff’s officer had appeared at the store to investigate the incident. (Ultimately, the sheriff’s officer concluded that, “There is not [sic] probable cause a battery occurred” because Petitioner “did not have any injuries to show a battery occurred.”) Afterwards, Mr. Bargdill took steps to avoid any future issues between Ms. Stewart and Petitioner. He allowed Petitioner to remain in the Deli Department, but he moved Ms. Stewart and stationed her in the Apron’s. Ms. Stewart never returned to the Deli while Petitioner remained at the store. Neither did she have any further encounters with Petitioner. According to Ms. Stewart, who testified at the final hearing, it was Petitioner who initiated the confrontation by approaching her and declaring that Ms. Stewart had insulted her. Ms. Stewart denied making any offensive statements to Petitioner. She also denied making any physical contact with Petitioner. While Mr. Bargdill may have resolved the issue between Petitioner and Ms. Stewart, the situation appears symptomatic of a larger conflict between Petitioner and the rest of the Deli staff. At the final hearing, Mr. Bargdill testified that the Deli Department maintained a very collegial working environment prior to Petitioner’s arrival. However, following her transfer, the entire demeanor of the Deli changed. Mr. Bargdill recounted that morale in the Deli slowly deteriorated in October and November 2018. During this time, he testified that he received a number of complaints from Deli associates about Petitioner’s conduct. Mr. Bargdill stated that as many as seven Deli associates approached him bemoaning Petitioner’s behavior. Specifically, Mr. Bargdill described the following: Tracey Ranallo complained to him that Petitioner was treating associates rudely and brought down the overall morale of the Deli. Ms. Bartels relayed to him that Petitioner was inquiring about other associates’ personal information and was looking into their backgrounds. Ms. Bartels also declared that Petitioner called her a derogatory name, bullied her, and made her cry. Anna Forino also informed him that Petitioner was asking for background information on other associates. Ms. Forino further asserted that Petitioner made her fear for her safety. On November 29, 2018, Ms. Forino made a formal discrimination and harassment complaint against Petitioner, which Mr. Bargdill forwarded to Mr. Vafeas. Tony Howard submitted a written complaint describing the overall dynamic of the Deli Department. Mr. Howard felt that Petitioner was rude to fellow associates. He also alleged that Petitioner called an associate (Ms. Bartels) a derogatory name. Mr. Howard further chronicled another incident from November 2018, when Petitioner overheard two Deli Clerks discussing a movie that depicted the violent death of a woman. Petitioner apparently envisioned herself as the subject of the discussion, and then complained to Publix management that she feared for her personal safety. Mr. Howard also contacted Mr. Vafeas around November 29, 2018, about Petitioner’s behavior. Mr. Howard represented that he was complaining on behalf of the entire Deli Department. Mr. Bargdill investigated each complaint. Mr. Bargdill ultimately determined that the morale in the Deli had fallen “unbelievably” off track, and the Deli associates were no longer working as a harmonious team. When Petitioner was scheduled, the other Deli associates felt like they were “walking on pins and needles,” and they did not trust her. Based on his investigation, Mr. Bargdill believed that he had verified that Petitioner was asking other Deli associates for their personal information, which made them feel tense and uncomfortable. In addition, he found that several employees (Ms. Stewart and Ms. Bartels) credibly stated that Petitioner had made offensive comments while working in the Deli. Mr. Bargdill concluded that Petitioner was the source of the conflict in the Deli Department. At the final hearing, he testified that he never received these types of complaints in the Deli prior to Petitioner’s time there. Mr. Vafeas testified that he also received complaints about Petitioner’s behavior in November 2018. Although not produced at the final hearing, Mr. Vafeas credibly attested that he received written statements from two of Petitioner’s co-workers. Mr. Vafeas confirmed that Mr. Howard contacted him about Petitioner. After reading Mr. Howard’s complaint, Mr. Vafeas was concerned that Petitioner was making the Deli environment confrontational and a hostile place to work. Mr. Vafeas further relayed that Ms. Forino reported to him that Petitioner felt that people of different sizes and colors were repulsive. In addition, she repeated what she told Mr. Bargdill, that Petitioner was gathering information to conduct background checks on Deli associates. Mr. Vafeas concluded that Store No. 1215 Deli associates felt that Petitioner was mean to them, and that some were afraid for their safety. Mr. Vafeas spoke to Mr. Bargdill about the complaints. Thereafter, in early December 2018, Mr. Vafeas, Mr. Bargdill, and the Deli Manager, Bruce Fowler, prepared a Counseling Statement for Petitioner summarizing the complaints from Petitioner’s co-workers. The Counseling Statement recorded that “multiple [Deli] associates have lodged complaints with management and HR regarding [Petitioner].” The Counseling Statement further reported that Publix management had received information that Petitioner “called an associate a bitch,” “twists the truth in order to get associates in trouble,” and made derisive comments about “people of different sizes and color.” In addition, the Counseling Statement stated that Petitioner was “rude,” “cause[d] unnecessary conflict,” and that her “daily interaction with her coworkers has caused them to feel uncomfortable and has disrupted the harmony and positive work environment which the Deli enjoyed prior to her arrival.” The Counseling Statement included an “Improvement Required” section which stated that Petitioner “must treat all of her coworkers with dignity and respect and avoid creating unnecessary or destructive conflict.” The document also warned Petitioner in the “Failure to Improve” section that if she “continues to create unnecessary or destructive conflict and treat coworkers improperly it will result in disciplinary action up to an including suspension or discharge.” On December 13, 2018, Mr. Bargdill met with Petitioner and read to her the allegations contained in the Counseling Statement. Mr. Bargdill hoped that the counseling session would help Petitioner build and maintain positive working relationships with her Publix co-workers going forward. At the final hearing, Petitioner vehemently denied any of the wrongful conduct alleged in the Counseling Statement. Petitioner also strongly objected to, and disavowed, the implication that she was a racist. Petitioner further declared that the Counseling Statement was based on unverified statements, and the complaints from other Deli associates were “fabricated nonsense.” Petitioner also expressed that she was devastated when she received the Counseling Statement. She declared that the statement caused her “emotional damage” and “ruined her life.” Petitioner believed that the Counseling Statement would create a black mark on her record that would have a disastrous impact on all her future employment opportunities. Prior to serving Petitioner with the Counseling Statement, Mr. Vafeas and Mr. Bargdill discussed the best way to handle the numerous complaints from the other Publix associates. Mr. Vafeas was concerned that the conflict could not be remedied if Petitioner remained at Store No. 1215. Therefore, he determined that the most appropriate response to relieve the tension in the Deli Department was to transfer Petitioner to another Publix store. Mr. Bargdill agreed. Neither Mr. Vafeas nor Mr. Bargdill believed that Petitioner would change her behavior, and they felt that the situation had escalated beyond the point where the conflict could be eliminated. They also thought that a move would provide Petitioner the opportunity for a fresh, hopefully successful, start, and allow her to form positive relationships with new co-workers. On December 13, 2018, Publix transferred Petitioner from Store No. 1215 to Store No. 384. Store No. 384 is located three to four miles from Store No. 1215. Petitioner was given the same position (part-time Deli associate) with no loss of work hours (34 to 35 hours a week), pay ($12.75 an hour), benefits, promotion opportunities, or status. Petitioner firmly objected to the transfer. She did not want to leave Store No. 1215. Petitioner claimed that she had to drive farther to work. At the final hearing, however, Petitioner relayed that her home is actually closer to Store No. 384. Petitioner worked approximately 35 hours (a part-time schedule) during her first week at Store No. 384. Mr. Bargdill did not have any involvement with Petitioner’s career after she was transferred out of Store No. 1215. On January 11, 2019, Petitioner resigned from Publix to take another job. Petitioner explained that in November 2018, she applied for a job with another local business. Petitioner testified that part of her motivation to seek new employment was that she believed her days at Publix were numbered following her November 2018 confrontation with Ms. Stewart. Petitioner interviewed for her new job on December 6, 2018. She received a job offer on January 10, 2019, and resigned from Publix the next day. Petitioner expressed that she makes more money in her new place of employment. Based on her testimony at the final hearing, Petitioner raises several causes of action in her discrimination complaint. First, Petitioner contends that Publix, through Mr. Bargdill, discriminated against her, based on her protected class, when she expressed an interest in working full-time. The testimony establishes that Mr. Bargdill offered Petitioner a full-time position in the Deli Department during their meeting on April 25, 2018. Petitioner alleges that Mr. Bargdill rescinded this offer in May or June 2018, and instead filled the position with a white employee (Ms. Bartels). Petitioner further complains that Mr. Bargdill “looked the other way” when Ms. Williford, Ms. Stewart, and other co-workers abused and harassed her. (Ms. Williford and Ms. Stewart are also white.) Petitioner also asserts that Mr. Bargdill retaliated against her based on her pursuit of a charge of discrimination with the Commission. On August 6, 2018, in light of Mr. Bargdill’s invitation to Ms. Bartels to transfer to the Deli the previous June, Petitioner filed a formal Employment Complaint of Discrimination with the Commission. In her complaint, Petitioner charged that she was “a dark skinned, East Indian, and Asian, female” who had been “discriminated against based on race, color, national origin, sex, and retaliation.” Petitioner claims that, following her Complaint of Discrimination, Publix took several adverse employment actions against her. These actions included, 1) her Performance Evaluation issued on October 11, 2018, in which she was rated as Meets Expectations/Successful, instead of Role Model or Exceeds Expectations, 2) the Counseling Statement in December 2018, and 3) the decision to transfer her to another Publix store. Finally, Petitioner alleges that Publix created a hostile work environment. Petitioner charges that Publix management did not sufficiently address or prevent the disparaging comments and harassment aimed at her by other associates. Petitioner also complains that the Store No. 1215 management allowed her Publix co-workers to learn about her personal affairs without her consent. Petitioner is particularly upset that Publix personnel may have heard about her discrimination complaint to the human resources department, as well as her complaint about being pushed to the Sarasota County Sheriff’s Office. In response to Petitioner’s claims of discrimination, Mr. Bargdill persuasively testified that he never rescinded his offer for Petitioner to transfer to a full-time Deli position. On the contrary, Mr. Bargdill convincingly attested that the Deli position remained open until Petitioner requested the job in June 2018. Mr. Bargdill further credibly refuted Petitioner’s accusation that he selected Ms. Bartels for the Deli instead of Petitioner, or that Ms. Bartels filled the only Deli opening. Mr. Bargdill cogently explained that Ms. Bartels applied for the Deli position at the same time as Petitioner, and both women were equally allowed to transfer into the Deli Department at the time each accepted the offer. Further, Mr. Bargdill credibly voiced that after Petitioner left his store’s Deli Department, the working environment changed for the better. As he described it, he observed the Deli associates laughing and helping each other, and the camaraderie noticeably improved. Eileen Williford testified at the final hearing and described her time working at the Apron’s with Petitioner. Ms. Williford readily acknowledged that she did not care for Petitioner. She stated that their conflict centered on the Apron’s cleanliness. Ms. Williford asserted that daily she would receive “petty” notes from Petitioner regarding the condition of the Apron’s station, its appliances, and supplies. Ms. Williford was also aware that Petitioner reported her to Mr. Bargdill. She recounted that she refused to speak with Mr. Bargdill about Petitioner’s complaints because she found the situation too stressful. Ms. Williford agreed that all note passing ceased between her and Petitioner after Mr. Bargdill intervened. She denied that Publix (Mr. Bargdill) ever formally disciplined her regarding the incident. Regarding Petitioner’s other complaints, Ms. Williford denied telling a Publix customer that the Apron’s “is not a buffet.” She further disputed that she voiced that a customer “reeked of curry.” Finally, Ms. Williford denied that she ever made any statement to Petitioner regarding her race, national origin, gender, or the color of her skin. To support her case, Petitioner called several witnesses. Her first witness, Philippe Canlers, testified that during his time with Publix, he also had a personality conflict with Ms. Williford. Mr. Canlers described Ms. Williford as a “bully” who intimidated her co-workers. He relayed that Ms. Williford visited him occasionally while he worked at the Apron’s or in the meat department, and she would give him a “rough time.” He was also familiar with her habit of leaving “nasty” notes. Mr. Canlers stated that he talked to the store managers about Ms. Williford’s offensive conduct. But, he never saw Publix address any of his complaints. He felt that management was just willing to accept her behavior. Mr. Canlers also described an incident in May 2018 when a store manager announced that a Publix Regional Director was coming to investigate Petitioner’s complaint about Ms. Williford. Mr. Canlers declared that this manager publicly discussed the existence of this investigation in the presence of Publix employees and customers. Mr. Canlers expressed that he believed that Petitioner’s complaint was her “personal affair” and should not have been disclosed to people who did not need to know. Danielle Goldman worked with Petitioner at Publix. They became friends. Ms. Goldman heard Christina Zito, a Store No. 1215 customer service manager, imply that Petitioner had a drinking problem. Ms. Goldman was also aware that Petitioner had an issue with Ms. Stewart when she worked in the Deli Department. Petitioner called Ms. Zito to the final hearing to address her role in Petitioner’s ill-treatment. Ms. Zito transferred to Store No. 1215 in May 2018. She supervised Petitioner when Petitioner worked as a part-time cashier. Ms. Zito testified that she initially found Petitioner very talkative and “bubbly.” However, she soon noticed a change in her attitude. Petitioner gradually became less approachable. Ms. Zito learned of the incident between Petitioner and Ms. Stewart in November 2018 when she participated in the follow-up meetings between Mr. Bargdill and both Petitioner and Ms. Stewart. Ms. Zito explained that Mr. Bargdill met first with Ms. Stewart, during which he informed her of Petitioner’s assault accusation. Upon hearing the allegation, Ms. Zito recounted that Ms. Stewart became visibly upset. Ms. Stewart adamantly denied that she pushed Petitioner. Ms. Zito also provided a statement to the sheriff who investigated Petitioner’s complaint. The sheriff recorded in the Incident Report that Ms. Zito advised that Petitioner “has a history of falsely accusing co-workers of things that did not happen, and does not get along with most other employees.” Ms. Zito explained that she made the statement because she was aware of Petitioner’s past dispute with an Apron’s employee, as well as her ongoing issues with Deli associates and cashiers. Finally, Ms. Zito discussed the conversation with Ms. Goldman during which she mentioned Petitioner’s possible issue with drinking. Ms. Zito admitted that she commented on Petitioner’s use of alcohol. However, Ms. Zito expressed that she simply wanted to make sure Petitioner was doing alright. (At the final hearing, Petitioner steadfastly declared that she does not drink.) Desmond James served as Petitioner’s team leader and department manager in the Customer Service Department in the spring of 2018. He also supervised the Apron’s team. In addition, Mr. James authored Petitioner’s April 2018 Associate Performance Evaluation. At the final hearing, Mr. James did not recall meeting with Petitioner and Mr. Bargdill to review the evaluation. Neither did he remember ever discussing in front of a Publix customer Petitioner’s personal information or discussing the fact that Petitioner had submitted a complaint to the Publix human resources department. On the other hand, Mr. James confirmed that Ms. Williford did leave the Apron’s counter and sink in a messy condition. Finally, Petitioner called Brooke Treat with whom she had a good working relationship at Publix. Ms. Treat testified about a time when she overheard Ms. Williford announce that Petitioner did not clean the dishes at the Apron’s. Ms. Treat recounted that Petitioner calmly handled the situation. Ms. Treat was also aware of the incident that occurred on November 20, 2018, between Petitioner and Ms. Stewart. Ms. Treat was not in the store at the time. However, she communicated (texted) with Petitioner just after Petitioner was sent home. Ms. Treat recalled that Petitioner was shaken up by the episode. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Publix discriminated against Petitioner based on her race, age, national origin, or sex, or in retaliation for her complaint of discrimination. Accordingly, Petitioner failed to meet her burden of proving that Publix 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, Michele J. Edwards, did not prove that Respondent, Publix, committed an unlawful employment practice against her; and dismissing her Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 24th day of March, 2020, 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 24th day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) John Bateman, Esquire Publix Supermarket, Inc. Post Office Box 407 Lakeland, Florida 33802 Michele Judith Edwards 3131 Galiot Road Venice, Florida 34293 (eServed) Christine E. Howard, Esquire Fisher & Phillips LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Brett Purcell Owens, Esquire Fisher & Phillips, LLP Suite 2350 101 East Kennedy Boulevard Tampa, Florida 33602 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
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
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/
