The Issue Whether Respondent, Sarasota County Government (County), violated section 760.10, Florida Statutes (2017),1 by discriminating against Petitioner, Lavender Suarez, based on her race (African-American) and gender (female), 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2017 codifications of the Florida Statutes and Florida Administrative Code. when it terminated her employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner is an African-American female who started her employment as a Manager II/Fiscal Manager with the Sarasota County Area Transit (SCAT) on November 30, 2015. She remained in that position until she was asked to resign in lieu of termination on August 17, 2017. Respondent, the County, oversees SCAT. SCAT provides public transportation services within Sarasota County via a fixed route bus system. SCAT has approximately 247 employees including administrative staff, bus operators, maintenance workers, and managerial staff. Rocky Burke, a white male, was the Director of SCAT during Petitioner's employment.3 Petitioner reported directly to Mr. Burke. In addition, during the relevant time period, there were four other managers who reported to Mr. Burke: Paratransit Operations Manager Gary Speidel, Fixed Route Operations Manager Ricardo Ferris, Transit Planning Manager Chris DeAnnuntis, and Fleet Maintenance Manager Jon Russo. Except for Ms. Suarez, all the managers were white males. The County's Human Resources Procedures and Guidelines Manual (P&G) provides the following policies regarding performance issues: Chapter III: Compensation and Status * * * (c) Performance appraisals shall be conducted as follows: 3 Mr. Burke resigned on September 5, 2017, less than a month after Petitioner left the County. * * * 3. Performance Improvement Plan (PIP) A performance Improvement Plan appraisal may be conducted at any time at the discretion of the immediate supervisor. Moreover, when an employee's performance is observed as needing improvement, the supervisor should conduct a performance appraisal for the employee as soon as possible. * * * Chapter IV: Discipline 4.03 Corrective Counseling Whenever an employee's performance or conduct falls below an acceptable level, the supervisor should inform the employee promptly of the deficiency and provide counsel, instruction and assistance to the employee. Michele Green, who oversees employee relations for the County, testified that—with the exception of theft or something extremely serious warranting immediate termination—the County makes every effort to advise employees in advance of shortcomings so they have an opportunity to improve prior to termination. The County, she explained, trains supervisors to counsel and coach their employees to help them succeed. MS. SUAREZ' JOB HISTORY AND DUTIES As SCAT's Fiscal Manager, Ms. Suarez was responsible for providing fiscal and budgetary project management, including grants analysis and oversight of federal and state financial requirements for compliance. She also managed a staff of four direct reports including Mary Goldaraz, who served as a Procurement and Contracts Coordinator; and Barbara Garrett, who served as an Information Technology (IT) professional. The unrefuted testimony establishes Mr. Burke treated Ms. Suarez differently than he treated the four white male managers. For example, Mr. Burke would come around Petitioner's desk several times a day asking what she was doing and monitoring her whereabouts; he did not do that with the other managers. Mr. Burke also had regular one-on-one meetings with the white male managers but did not have regular meetings with Ms. Suarez. If Ms. Suarez tried to meet with him, he would brush her off and tell her everything was fine. Whereas Mr. Burke sought input from the white male managers, if Ms. Suarez made a suggestion or recommendation he would dismiss it or not respond. Ms. Suarez also noted Mr. Burke allowed one of the other managers, Mr. Speidel, to belittle and berate her. Ms. Suarez testified she was afraid to go to Mr. Burke because she felt he would always take Mr. Speidel's side over hers. Ms. Goldaraz regularly heard Mr. Speidel yelling at Ms. Suarez and experienced this behavior from him herself. She felt that although this was unprofessional behavior, Mr. Burke allowed it in the workplace because he was grooming Mr. Speidel for the position of Director. At one point, Petitioner had a vacant position she needed to fill in her staff. Ms. Suarez wanted to hire a candidate who had been unanimously recommended by a selection committee. Mr. Burke refused to hire that candidate without any explanation. The candidate was an African American female. In contrast, when filling another position, the selection committee's recommended candidate had a felony conviction and other issues that became apparent after a background check. Mr. Burke told Ms. Suarez to hire that candidate despite his history. That candidate was a white male. Ms. Suarez testified about another incident where she was in her office with the door closed with a black supervisor who worked at SCAT. When Mr. Burke found out, he questioned Ms. Suarez and asked her what they were discussing. To her knowledge, he had never done that with any of the male managers who met with employees in their offices behind closed doors. Ms. Goldaraz corroborated Petitioner's testimony regarding Mr. Burke's negative attitude toward Petitioner, and women in general. Ms. Goldaraz worked next to Ms. Suarez' office and regularly witnessed the interactions between Mr. Burke and Ms. Suarez. She testified that Mr. Burke treated Ms. Suarez differently than he did the male managers. He discounted her suggestions and implemented a "good ole boy system" where he met regularly with the male managers, but not with Ms. Suarez. After Ms. Suarez was forced to resign, Ms. Goldaraz took her position. Ms. Goldaraz testified Mr. Burke was dismissive with her as well. He would not give her credit for her ideas and suggestions, but would give the male managers credit. The County put on no evidence contradicting the version of events or description of Mr. Burke's behavior credibly presented by Ms. Suarez and Ms. Goldaraz. LIBERTY PASS PROGRAM AND AUDITS Ms. Suarez also had responsibilities related to the Liberty Pass Program (Liberty Pass), which distributed 30-day transit passes for riders at discounted rates. The Liberty passes were offered by SCAT to low-income and/or homeless riders who provided appropriate documentation. The documentation to assess eligibility for Liberty Pass could be submitted at either the SCAT Administrative Office or one of 19 third-party agencies approved to distribute Liberty passes. Liberty Pass had its challenges. In May 2015, before Petitioner began working for the County, the County's Board of County Commissioners (BCC), authorized SCAT to discontinue Liberty Pass. The Federal Transit Administration required SCAT to perform a Fare Equity Analysis and SCAT hired a consultant to assess the impact of changes in the program on certain minority and low income populations. In September 2016, the County issued an audit report on SCAT's administration of Liberty Pass. The scope of this audit was from October 2014 (before Ms. Suarez was hired at the County) to June 8, 2016. The audit found there were problems with riders obtaining duplicate Liberty passes and with the third-party agencies not obtaining the necessary information before enrolling riders for the program. Eventually, SCAT eliminated the third- party distributors, and thereafter a Liberty pass could only be obtained at the SCAT headquarters or the County Health Department. According to Petitioner's yearly evaluation for 2016, given in January 2017, Mr. Burke rated her as either "Successful" or "Exceeds Expectations" in all five relevant categories. Related to Liberty Pass, the evaluation listed as accomplishments: (1) successfully completing the Liberty Pass Audit, (2) obtaining approval from the BCC in September 2016 for a "Liberty Pass Increase," and (3) collaborating with the consultant to finalize the Liberty Pass Fare Equity Analysis. Mr. Burke did not give Ms. Suarez the possible rating of "Needs Improvement," nor did he provide her with any negative or constructive comments.4 In response to the issues raised in the Liberty Pass Audit, Ms. Suarez had instructed Ms. Garrett, the IT professional on her staff, to prepare a spreadsheet to track the issuance of the Liberty passes. It is unclear whether Ms. Garrett completed the spreadsheet, but at some point Mr. Burke transferred Ms. Garrett (along with her IT position) and the spreadsheet tracking project from Ms. Suarez' oversight to Mr. Speidel. This spreadsheet was never submitted to the auditor. After the initial Liberty Pass Audit, Ms. Suarez was meeting regularly with Deborah Martin, the auditor, regarding the Liberty Pass issues, and other SCAT audits related to Bus Operations Cash Handling and Bus Pass Inventory and Reviews. At no time did Ms. Martin or anyone complain to Petitioner that she was not providing adequate information or that she was not addressing the issues for which she was responsible. There was no 4 Ms. Suarez also did not receive the other possible ratings of "Outstanding" (the highest rating), or "Unsatisfactory" (the lowest rating). evidence Ms. Martin or anyone else complained about Ms. Suarez' work on the SCAT audits. On August 15, 2017, Mr. Burke asked Ms. Suarez if she would resign from the Fiscal Manager position and take a lesser position. Ms. Suarez was surprised, and asked Mr. Burke for something specific in writing regarding her performance. Mr. Burke refused to put anything in writing. When she asked if his request was related to the audits, Mr. Burke stated it was not. Rather, he told her that other departments had lost confidence in her and he had as well. Two days later, on August 17, 2017, Mr. Burke advised Petitioner that if she did not resign she would be terminated. Under duress, Ms. Suarez signed and submitted a resignation letter that day. At the time of her forced resignation, Ms. Suarez was actively working on issues related to the audits. Ms. Goldaraz took over as the Fiscal Manager and completed the work related to the audits. Ms. Goldaraz was able to complete all the outstanding work that needed to be done. She stated there were a few standard things that needed to be finished up and she was able to do them quickly. There was nothing "major" left on the audit. Ms. Goldaraz "met with the auditors … and kind of wrapped it up. It wasn't really a huge deal." At the hearing, the County relied on an untitled spreadsheet and a follow-up audit report as grounds for Petitioner's termination.5 The spreadsheet purportedly was a list of audits, with columns for "Opportunities for Improvement," "Management Responses," and "Updated Responses." The spreadsheet had some portions highlighted. There was no explanation by the County as to who prepared the spreadsheet, whether it was accurate, whether it was the most recent version, what its purpose was, or why it was 5 The copy of the spreadsheet admitted into evidence is illegible due to its miniscule type and font. relevant. The undersigned finds the spreadsheet wholly unreliably and not credible evidence. The County also relies on a follow-up audit report issued December 2017, months after Ms. Suarez and Mr. Burke left the County's employment. Although this follow-up audit has numerous outstanding issues that remained "open," there is no proof Petitioner was responsible for the open items. Robert Lewis was the interim director of SCAT from October 2017 to January 4, 2020, coming in after Mr. Burke and Ms. Suarez had left. He did not work with either of them. Although he was aware of the audit, Mr. Lewis had no personal knowledge of SCAT operations prior to October 17, 2017. Furthermore, he had no knowledge of what had been provided to the auditor by SCAT, or how the SCAT audits were conducted. Mr. Lewis could not testify which department was responsible for the open items in the follow-up audit report, and admitted he was not aware of which manager was assigned to which open item. Mr. Lewis was not aware of what items may have been left open by the white male managers. Given there was no explanation of the December 2017 follow-up audit report, the undersigned finds it unreliable and not credible evidence. Because she was regularly meeting with the auditor, Ms. Suarez had personal knowledge of some of the open items listed in the follow-up audit report, even though she was not familiar with the report itself. The follow-up audit listed four open items and two partially open items. She was responsible for two of the items. The first dealt with managing the fare money on a daily basis. She testified she implemented a policy addressing this issue as there was not an existing policy when she was hired. The second open item for which she was responsible related to cash variances. Ms. Suarez testified she had finalized the reports reconciling the daily deposits; prior to her coming to SCAT, they were not done daily. She could not testify as to why these items remained listed as open or what had happened after her departure when Ms. Goldaraz began working with the auditors. The remaining open and partially open items related to "vault access" and "monitoring." Ms. Suarez testified she was not responsible for the vault or the security system that monitors the lock boxes and vault. Rather, these were items that were the responsibility of the maintenance and the bus operations departments, which were overseen by Mr. Ferris and Mr. Russo. Even though these two managers had open items in the follow-up audit report, they were not terminated. Ms. Suarez testified she received no indication from Mr. Burke, the auditor, or anyone else that there were problems with her handling of these open items. Prior to August 15, 2017, Mr. Burke gave her no indication he was disappointed in her performance or that she needed to improve or change. Similarly, Ms. Goldaraz' unrefuted testimony was that Ms. Suarez was totally capable as the Fiscal Manager, worked hard, and was very dedicated. There was no evidence of actual or perceived deficiencies in Ms. Suarez' performance. MR. DEANNUNTIS AS A COMPARATOR Like Petitioner, Mr. DeAnnuntis held the position of Manager II and reported to Mr. Burke. Mr. DeAnnuntis was hired at SCAT a few months before Petitioner was hired, at a similar (albeit slightly higher) salary as Petitioner. Mr. DeAnnuntis also managed a staff of three positions. Although he did not have the identical duties of Petitioner, as the Manager of Transit Planning he had similar compliance duties as he was responsible for SCAT's planning budget and compliance with federal, regional, and local transportation planning requirements. On December 29, 2016, Mr. DeAnnuntis was provided a two-page document titled "Performance Review Comments" (comments) from Mr. Burke. These comments outlined specific areas in which Mr. DeAnnuntis was to improve and suggestions as to how to make these improvements. Mr. Burke suggested that he and Mr. DeAnnuntis have daily in-person meetings. Mr. Burke also provided a list of outside resources to help Mr. DeAnnuntis. Ms. Suarez never received any similar comments from Mr. Burke. The comments document was not labeled a "Performance Improvement Plan" (PIP), nor did it set out a time frame for him to accomplish certain goals. It did not indicate that Mr. DeAnnuntis would suffer any repercussions if he did not take the advice given by Mr. Burke. As such, the undersigned does not find this document was a PIP. Rather the comments were consistent with those required by the County as described by Ms. Green and codified in P&G section 4.03 requiring supervisors counsel and coach an employee if his or her performance falls below an acceptable level. Almost three months after receiving the comments, on March 23, 2017, Mr. DeAnnuntis resigned. Unlike Ms. Suarez' forced resignation, there was no evidence Mr. DeAnnuntis was asked to resign after he was provided the comments or that his eventual resignation was in lieu of termination. Furthermore, the unrebutted evidence established no one had ever discussed poor performance or any other issues with Petitioner prior to her forced resignation. POST-RESIGNATION At the time of her forced resignation in lieu of termination, Ms. Suarez was earning a salary of approximately $71,427 a year at the County. After she left the County, Ms. Suarez immediately started applying for positions on various computer sites. While she attempted to find a permanent position, she worked for a temporary agency earning $10,557. On February 25, 2018, Ms. Suarez began permanent employment with Community Health, Inc., at a starting salary of $64,500. Her loss of earnings during the period from her forced resignation until she found this position was approximately $35,713. Ms. Suarez mitigated her damages. Subtracting out the amount she earned while temping, her interim losses total $25,156. Ms. Suarez received an annual increase a year later on February 4, 2019, raising her salary to approximately $68,275. Her annual salary for 2017 with the Respondent would have been $71,427, a difference of $6,927.18 annually for the first year (2018) and $3,152.64 annually thereafter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order: Finding the Sarasota County Government discriminated against Lavender Suarez based on her gender; Awarding Petitioner $36,550 in back pay; and Awarding reasonable attorney's fees as part of the costs. DONE AND ENTERED this 15th day of July, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 15th day of July, 2020. COPIES FURNISHED: Dusty Firm Aker, Esquire Aker Law Firm, P.A. 240 South Pineapple Avenue, Suite 803 Sarasota, Florida 34236 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Maria D. Korn, Esquire Sarasota County Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether the Respondent discriminated against the Petitioner in his employment on the basis of race and disability and/or retaliated against the Petitioner for exercising his rights under Sections 760.01-760.011, Florida Statutes (1999), and, if so, the appropriate remedy.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Hicks is an African-American. He was employed by Metro Dade Transit from approximately 1993 until May 13, 1999. During his employment, he worked in the Revenue Department as a Transit Revenue Collector. When Mr. Hicks first began working for Metro Dade Transit, he was assigned to work the night shift as a truck driver. He was responsible for going to different bus yards and either pulling cash boxes from the buses or reading the numbers on the bus's turnstiles and comparing those to the numbers on the cash boxes. In or around 1995, Mr. Hicks was assigned to the bus yard identified as Northeast 2. His job was to remove the cash boxes from the buses that came into the yard and to replace the full boxes with empty ones. He would then empty the cash boxes through a machine that would drop the money into the safe. In or around 1997, Mr. Hicks returned to his former assignment driving a truck to different bus yards. He worked the second shift and visited three different bus yards, where he would give each revenue collector assigned to the bus yards a 30-minute break during the rush hours. Terry Simonson, a Transit Revenue Collections Supervisor 2, hired Mr. Hicks as a revenue collector for Miami Dade Transit in 1993. Yfrahin Rodriguez was a Transit Revenue Collections Supervisor 1 from 1993 until May 1998, when he left his position to become a code enforcement officer for Miami-Dade County Team Metro. Mr. Hicks's employment with Metro Dade Transit terminated on May 13, 1999, for reasons that will be discussed below. Mr. Hicks received satisfactory employment evaluations for 1995, 1996, and 1997, and he was given merit salary increases in 1996, 1997, and 1998.6 In his evaluations for 1995 and 1996, which were completed by his then-supervisor Curtis Fullington in January 1996 and January 1997, respectively, Mr. Hicks was described as an employee who "cooperates reluctantly at times" and who "disregards some rules and procedures." In his evaluation for 1997, which was completed in January 1998 by Mr. Rodriguez, Mr. Hicks was described as an employee who "reluctantly cooperates with his peers, and has trouble accepting advice and counseling with his supervisors" and who "disregards some departmental rules and policies." In addition, several supervisors reported to Mr. Simonson that Mr. Hicks was "a little difficult" to deal with. Mr. Rodriguez was very professional in carrying out his duties as a supervisor and treated all of the employees he supervised, including African-American employees, fairly and with respect. Frantz Benoit, Douglas Fahie, Antomic Augustin, Darryl Clodfelter, and Greg West are current and former Miami Dade Transit Revenue Collectors who were supervised by Mr. Rodriguez and worked with Mr. Hicks. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. West are African-Americans. Mr. Rodriguez always acted very professionally in his dealings with Mr. Benoit, Mr. Fahie, and Mr. Augustin as their supervisor, and Mr. Rodriguez treated them fairly and with respect. Mr. Benoit, Mr. Fahie, Mr. Augustin, and Mr. Clodfelter did not ever observe Mr. Rodriguez treat Mr. Hicks with disrespect or in a derogatory manner, and none of these individuals ever heard Mr. Rodriguez call Mr. Hicks "boy" or harass him. Mr. Rodriguez and Mr. Hicks were involved in several confrontations over the years. Mr. Benoit observed Mr. Rodriguez and Mr. Hicks in a "heated discussion" at one time. Mr. Augustin observed Mr. Rodriguez and Mr. Hicks get into a "verbal confrontation" in May 1997, when Mr. Rodriguez asked Mr. Hicks a question related to Mr. Hicks's job; Mr. Augustin observed Mr. Hicks use profanity during the confrontation. Mr. Clodfelter observed an "exchange" between Mr. Rodriguez and Mr. Hicks when Mr. Rodriguez introduced Mr. Hicks to a new duty log that he wanted all the revenue collectors working as "UT-2's" to complete. Mr. Rodriguez gave both Mr. Hicks and Mr. Clodfelter a duty-log form that required entry of the time the employee arrived at a particular bus yard and the time the employee left the bus yard.7 Mr. Clodfelter discerned from the exchange between Mr. Hicks and Mr. Rodriguez that Mr. Hicks misunderstood the nature of the duty log and believed he was being singled out and was the only revenue collector required to complete the duty log. Mr. Clodfelter described Mr. Hicks as "very upset" and observed Mr. Hicks tell Mr. Rodriguez he would not complete the duty log. Mr. West is an African-American who worked as a Miami Dade Transit Revenue Collector from 1985 until he was terminated in 1997. Mr. West believes that Mr. Rodriguez harassed both him and Mr. Hicks because they spoke out about things they thought were wrong with Miami Dade Transit. Mr. Simonson was Mr. Rodriguez's supervisor during the time that Mr. Rodriguez was a Transit Revenue Collections Supervisor 1. Mr. Hicks complained to Mr. Simonson several times that he believed Mr. Rodriguez was harassing him, although Mr. Hicks never told Mr. Simonson that Mr. Rodriguez was making remarks to him related to his race. As a result of Mr. Hicks's complaints, Mr. Simonson met several times with Mr. Rodriguez and Mr. Hicks to discuss the difficulties they had working with one another. In Mr. Simonson's opinion, Mr. Rodriguez and Mr. Hicks had problems working together because Mr. Hicks gave Mr. Rodriguez "a hard time." At the end of each of the meetings, however, Mr. Rodriguez and Mr. Hicks shook hands and agreed to try to work together amicably. One of these meetings between Mr. Simonson, Mr. Rodriguez, and Mr. Hicks was also attended by Othan Gilbert, who was at the time the manager of Treasury Services for Miami Dade Transit and Mr. Simonson's supervisor. Neither Mr. Simonson nor Mr. Gilbert recalls Mr. Hicks saying anything about Mr. Rodriguez telling Mr. Hicks that all Blacks do is complain or that he was going to get rid of Mr. Hicks. Events leading to Mr. Hicks's termination. In 1998 and 1999, Omar Yoda was a Transit Revenue Processing Supervisor 1; Mr. Yoda did not supervise Mr. Hicks because the revenue processing section is distinct from the revenue collections section. In late December 1998 or early January 1999, Mr. Hicks approached Mr. Yoda and told Mr. Yoda that he had a job at the post office lined up and that he wanted to use up his accrued sick leave before he quit his job with Miami Dade Transit. Mr. Yoda told Mr. Hicks that he could not work another job while he was out on sick leave because it was not permitted by Miami Dade Transit's rules. Mr. Hicks protested that other employees were allowed to use their sick leave in this way. Mr. Hicks did not tell Mr. Yoda that he was sick or that he needed to be placed in a light duty assignment. On January 5, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated January 4, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would be able to return to work on February 11, 1999. No diagnosis was included on the certificate. On March 1, 1999, Mr. Hicks sent to Mr. Simonson by facsimile transmittal a Certificate for Return to Work issued by Andover Medical Group and dated March 1, 1999. It stated on the certificate, which was apparently signed by a medical doctor, that Mr. Hicks would not be able to return to work until April 9, 1999. No diagnosis was included on the certificate. Mr. Hicks submitted Requests for Leave for the periods extending from January 1 through 9, 1999; January 12 through 23, 1999; January 26 through February 6, 1999; February 9 through 21, 1999; February 24 through March 7, 1999, and March 8 through 17, 1999. Mr. Hicks claimed that he went on sick leave because he was under a lot of stress and had an abnormal heartbeat.8 Mr. Hicks never told Mr. Simonson that he was disabled, however, nor did Mr. Hicks provide Mr. Simonson with any medical documentation to support the requests for sick leave and the certificates Mr. Hicks submitted from his doctor. Mr. Hicks did, however, ask Mr. Simonson the procedure for requesting a light duty assignment; Mr. Simonson referred him to the Human Resources Department, but heard nothing more about a light duty assignment for Mr. Hicks. Mr. Hicks never told Mr. Rodriguez that he was disabled or requested a light duty assignment or any other accommodation.9 While he was out on sick leave, Mr. Hicks's supervisors received word that Mr. Hicks was working at another job. An investigation was initiated, and an employment verification inquiry was made to the United States Postal Service. The United States Postal Service provided Metro Dade Transit with an employment verification form referencing March 26, 1999, as the date of the request; the document confirmed that Mr. Hicks had been employed as a United States Postal Service career employee since January 16, 1999, with a base salary of $23,893.00 per year. Mr. Hicks worked at the Pembroke Pines Post Office in Broward County, Florida, as a custodian. He swept the floors and cleaned the restroom. Mr. Simonson prepared a formal Disciplinary Action Report dated March 30, 1999, detailing the results of the investigation into allegations that Mr. Hicks was working for the United States Postal Service during the time he was on sick leave from his job with Metro Dade Transit. Mr. Hicks was placed on administrative leave on March 19, 1999.10 The results of the investigation were discussed with Mr. Hicks at a disciplinary hearing that was held on April 23, 1999. In a letter dated April 27, 1999, Othan Gilbert, then the Manager of Treasury Services for Metro Dade Transit and Mr. Simonson's supervisor, advised Mr. Hicks that, after a management review of the circumstances detailed in the Disciplinary Action Report dated March 30, 1999, the decision had been made to recommend that he be terminated as an employee of Metro Dade Transit. Mr. Hicks was terminated from his employment with Miami Dade Transit effective May 13, 1999. Mr. Hicks was also terminated from his position with the United States Postal Service. Mr. Hicks filed his Charge of Discrimination with the FCHR on May 17, 1999, and the date on this document, handwritten next to Mr. Hicks's signature, was May 7, 1999. Mr. Hicks appealed the decision to terminate his employment with Metro Dade Transit, and at the final hearing on the appeal, Mr. Hicks entered into a stipulation with Miami-Dade County whereby he agreed to resign in lieu of being terminated and to withdraw a pending appeal of five-day suspension imposed in January 1998.11 Incidents Mr. Hicks considers discriminatory. Mr. Hicks complained that, when he was placed on administrative leave in late March 1999, Mr. Gilbert ordered him, "with a nasty attitude,"12 to turn in his badge at the Government Center. This required Mr. Hicks to drive all the way downtown, when, according to Mr. Hicks, he could have turned in his keys at the Northeast Bus Yard, which would have been more convenient for Mr. Hicks. Mr. Hicks also complained that Mr. Gilbert gave him an order to go directly home after he turned in his badge. Mr. Hicks interpreted this to mean that Mr. Gilbert had ordered him not to stop on the way home. Mr. Hicks complained that, as a result of Mr. Gilbert's order, Mr. Hicks was unable to stop to use the bathroom on the way to his house. Mr. Hicks also testified to a number of incidents that allegedly occurred in 1995, 1996, 1997, and early 1998, that he believes constituted harassment and created a hostile work environment: In January 1995, Mr. Hicks had an accident with a county vehicle and damaged the top of a truck he was driving to collect change machines from buses. Mr. Hicks reported the damage, but he received a record of counseling, which he thinks was a little extreme under the circumstances. On July 18, 1996, a computer technician went to the Northeast Bus Yard where Mr. Hicks was working; the computer technician shut down the computers so he could work on them. As a result, Mr. Hicks could not empty the fare boxes on the buses that came into the yard, so the buses left the yard with full fare boxes. Mr. Hicks feels aggrieved because Mr. Rodriguez wrote a memorandum dated July 19, 1996, to Mr. Simonson complaining of continuous problems at the Northeast Bus Yard and mentioning Mr. Hicks's failure to do his job as one cause of the problems.13 Mr. Hicks perceives this accusation as a great injustice because he worked the second shift, which was the hardest shift; he chose the hardest shift because he was "into the physical thing because I like to work hard."14 On February 19, 1997, Mr. Rodriguez walked over to him at the Northeast Bus Yard with a "silly grin" on his face and called Mr. Hicks "boy"; told Mr. Hicks he was tired of Mr. Hicks questioning him every time he gave him an order; told Mr. Hicks that "all you Black revenue collectors" do is complain, especially Mr. Hicks; and told Mr. Hicks that he was going to do his best to get Mr. Hicks fired. Mr. Rodriguez denied having made any of these statements. In May 1997, Mr. Hicks called to report that he was sick. Mr. Hicks spoke with a fellow employee, and asked him to give the message to the supervisor that he was taking a sick day. Mr. Rodriguez caused Mr. Hicks's pay to be docked for eight hours' work and told him that employees were supposed to speak with a supervisor when calling in sick. Mr. Hicks questioned Mr. Rodriguez's action and Mr. Rodriguez "got very, very nasty and we got into a yelling match."15 Although Mr. Hicks acknowledged that Mr. Rodriguez might be correct about the rule, Mr. Hicks knew of other employees who just gave a co- worker a message and were not docked any pay. Mr. Hicks claims that, before docking his pay, Metro Dade Transit should have sent around a memo stating the rule about reporting sick to a supervisor.16 In May 1997, Mr. Hicks heard rumors that "they" were going to fire him because he, or his attorney, filed a complaint with the Equal Employment Opportunity Commission.17 When he confronted Mr. Gilbert about the rumors, Mr. Gilbert claimed he did not know anything about it. On June 3, 1997, Mr. Hicks was not able to take a lunch break because it was impossible for him to keep the schedule that Mr. Rodriguez had established. On June 6, 1997, Mr. Hicks forgot to turn in his keys to a county vehicle, and they made a "big statement about it" being against the rules even though they never made a "big statement" when someone else forgot to turn in their keys.18 On June 6, 1997, Mr. Hicks perceived that things had gotten so bad on the job that he went to the Employee Assistance Program for help. He was so stressed that, for about six months, he did not report for work on weekends. Mr. Hicks claims he missed these days of work to avoid Mr. Rodriguez when neither Mr. Simonson nor Mr. Gilbert was working and could not witness what Mr. Rodriguez was doing to him. On June 18, 1997, Mr. Hicks was at the Central Bus Yard, where he was supposed to work from 7:30 p.m. to 9:00 p.m. At around 8:00 p.m., Mr. Rodriguez drove up, and Mr. Hicks asked Mr. Rodriguez if he had to stay at the bus yard until 9:00 p.m. Mr. Rodriguez told him that "all you Blacks do is complain" and that he would fire all "you people" if it was up to him. Mr. Rodriguez denied having made these statements.19 On December 31 of every year, Metro Dade Transit forced employees to work emergency overtime. Mr. Hicks, along with a number of other employees, was forced to work a 10-hour shift on December 31, 1997, when he was only supposed to work eight hours. Mr. Hicks always questioned the supervisor about this emergency overtime because he believed that only the county manager could call for emergency overtime and then only for an act of God. On January 20, 1998, Mr. Hicks was forced to "work out of class" when he was told to log buses into the computer. Mr. Hicks claims his job description did not include this type of work. Mr. Rodriguez and "a couple of other guys" prepared written statements attesting that Mr. Hicks threatened to kick Mr. Rodriguez's "posterior" during an altercation between Mr. Rodriguez and Mr. Hicks. Mr. Hicks denies having threatened Mr. Rodriguez on this occasion.20 Mr. Hicks called in sick for one day, and he was required to bring a doctor's letter even though the union contract provided that an employee did not need a doctor's letter unless taking three days' sick leave.21 During the time that he was assigned to Government Center, Mr. Rodriguez harassed him by ordering him to do assignments that no other truck driver would normally do. Mr. Hicks considered Mr. Rodriguez's harassment so serious that he went to the doctor, and he claimed that he was told he had developed ulcers. He also went to the Miami-Dade County Employee Assistance Program for help because he believed that his supervisors did not pay attention to him; Mr. Hicks went to a psychiatrist at the recommendation of a counselor at the Employee Assistance Program.22 Summary Mr. Hicks failed to present persuasive evidence that Mr. Rodriguez or anyone employed by Metro Dade Transit more likely than not harassed him or created a hostile work environment because Mr. Hicks is an African-American. It is apparent from the evidence presented by both Metro Dade Transit and Mr. Hicks that Mr. Hicks routinely questioned Mr. Rodriguez's authority to direct his activities on the job and that he sometimes responded to Mr. Rodriguez in a belligerent and defiant manner. This behavior by Mr. Hicks, rather than his race, was the cause of the friction between Mr. Rodriguez and Mr. Hicks. Mr. Hicks's attribution of racist remarks to Mr. Rodriguez is rejected as not credible given the testimony of three African-American employees of Metro Dade Transit that Mr. Rodriguez always treated them fairly and with respect. Even assuming that the various incidents that Mr. Hicks claims were discriminatory and tended to create a hostile work environment happened as Mr. Hicks described, the incidents were unrelated to Mr. Hicks's race; were, for the most part, simply the complaints of a disgruntled employee; and were not so severe or pervasive that the conditions of Mr. Hicks's employment were altered. Mr. Hicks failed to present persuasive evidence to establish that Metro Dade Transit more likely than not discriminated against him on the basis of handicap. Mr. Hicks provided no proof that he was either mentally or physically handicapped. Furthermore, even if Mr. Hicks had established that he was handicapped, the persuasive evidence establishes that the only accommodation he requested was extended sick leave from January through mid-March 1999, during which time he worked for the United States Postal Service. His termination was unrelated to any real or perceived handicap but was, rather, the result of his abuse of Metro Dade Transit's sick leave policy. Mr. Hicks failed to present any evidence that he was more likely than not the victim of retaliation by Metro Dade Transit. The only discrimination complaint that Mr. Hicks filed against Metro Dade Transit was signed and dated by Mr. Hicks after he learned that Mr. Gilbert was recommending that he be terminated, and the complaint was filed with the FCHR after Mr. Hicks was terminated from his employment. Mr. Hicks presented no evidence that Miami Dade Transit even had notice that he intended to file a discrimination complaint.
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 filed by Eugene Hicks against Treasure Service/Metro Dade Transit and Ron Jones. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 1st day of August, 2003.
The Issue Whether the Florida Department of Transportation should issue a permit for the installation of a public at-grade railroad crossing in the vicinity of the Georgia, Southern and Florida Railroad track, 1,027 feet North of Milepost 214 on the alignment of Baya Avenue, East of Lake City, Florida.
Findings Of Fact Having heard the testimony of witnesses for the petitioner and the arguments of counsel and those witnesses appearing for the Department of Transportation on the issues and considering the evidence presented in this cause, it is found as follows: Petitioner, Florida Department of Transportation, is duly authorized to establish and maintain a primary system of highways within the boundaries of the State of Florida. The Petitioner has heretofore filed an application with the appropriate division of the Department of Transportation of the State of Florida pursuant to Chapter 330.21 Florida Statutes, for Permission to establish a graded railroad crossing for Baya Avenue (U.S. 90) within the city limits of Lake City, Florida on the state primary highway system proposed to intersect the Respondent Railroad's tracks approximately 1,027 feet North of Milepost 214 of the Georgia, Southern and Florida Railroad. The Respondent Railroad Company did not appear although the record shows that Notice of Hearing was properly given and that plans of the project and proposed signalization were duly sent by letter dated October 8, 1975. There was uncontroverted testimony by Mr. Terry Crews, Assistant District Utilities Engineer for the Petitioner that Mr. R. A. Kelso, Chief Engineer, Design and Construction, Southern Railway System had discussed a portion of the project by telephone with Mr. Crews and no objections were raised. No letters of objection were filed. The Petitioner is in the process of constructing a new four-lane vehicular thoroughfare. This construction is necessary in the rerouting of vehicular traffic through Lake City, Florida (U.S. 90). As a part of this construction it is necessary to cross the railroad and State Road 100 which lie adjacent to each other. It will be a four-lane divided highway with a painted median, with curbs and gutters in the vicinity of the crossing. At the time of construction, the railroad will consist of single-line trackage that carries two (2) trains per day at speeds of approximately 20 miles per hour. It is estimated that approximately 20,000 vehicles per day will use this facility by 1984. Studies conducted by Department of Transportation personnel reveal that the crossing should be signalized with cantilevered flashing lights, ringing bells and pavement markings in accordance with the Manual on Uniform Traffic Control Devices. This signalization should be interconnected with vehicle traffic signalization located at State Road 100 to control vehicular traffic at the highway crossing as well as the railroad crossing. The applicant agrees to install and maintain such signalization. The Hearing officer further finds: The proposed crossing is necessary and desirable; The signalization is adequate as planned, to protect the public; The Petitioner needs the crossing; The Respondent has not opposed the crossing; The Petitioner, Florida Department of Transportation, will Install and maintain the crossing.
The Issue The issue is whether Respondent's employment should be terminated by Petitioner.
Findings Of Fact At all times material to this proceeding, the School Board was the constitutional entity authorized to operate, control, and supervise the public schools in Volusia County, Florida. Respondent, Tamika Whitaker, began working as a bus driver for the School Board in 2002. At all times relevant to the allegations in the Superintendent's Statement of Charges, Respondent was assigned to the bus route of Riverview Learning Center. In order to be employed as a school bus operator, Respondent had to undergo sixty hours of initial training, consisting of thirty-two hours of classroom training reviewing rules, policies, and procedures, and twenty-eight hours of training on the school bus. Respondent was also required to obtain a Class B commercial driver's license (CDL) with a passenger endorsement. This allows the bus operator to drive a bus that is approximately 40 feet long and 10 feet wide, weighs 24,000 to 26,000 pounds unloaded, and can carry approximately 77 passengers. School bus operators are required to know and abide by all federal and state laws, rules, and regulations pertaining to operating school buses, as well as all policies, practices, and procedures of the School Board. During her initial training, Respondent was provided a copy of the School Board's Student Transportation Services Procedural Manual and was trained regarding the procedures therein. Each time a change is made to the Manual, bus drivers are provided copies of the changes. In addition to her initial training, pursuant to Florida Department of Education rules, Respondent was required to complete eight hours of recertification training every year. The recertification training is designed to educate transportation staff on any new laws, rules, and regulations, and on policies, practices, and procedures of the School Board. At the March 2010 recertification training, changes to U.S. Department of Transportation's interpretation of federal regulations were discussed. Under the revised interpretation, texting while driving would be prohibited.1/ On May 4, 2010, Respondent's afternoon bus route was completed approximately 40 minutes later than usual. Because such a delay is unusual, the School Board investigated the delay pursuant to standard practices. This included review of the GPS report for the bus Respondent was driving, review of the video for the bus, and inquiry to the Student Transportation Services dispatch office. Greg Akin is the Director of Student Transportation Services for the School Board. He asked Patricia Rush, lead driver at the New Smyrna terminal, to review bus video of Respondent from her May 4, 2010, route to determine the cause for Respondent's delay. By accident, Ms. Rush watched a video from a different day, and saw actions of Respondent which Ms. Rush determined to be unsafe. Specifically, Ms. Rush described what she saw, "driving with no hands . . . driving with her elbows . . . using the cellular telephone . . . drinking out of a mug. There were students on board. I was just kind of shocked that she was doing that." Ms. Rush's concern regarding the use of the mug was that it was a large mug and appeared to Ms. Rush to block Respondent's face when she raised it to drink out of it while driving. Ms. Rush reported what she saw on the video to William Ralys, an area manager, who asked her to continue to review bus videos of Respondent and to archive what she saw. Ms. Rush reviewed the bus video of Respondent's routes on May 4, 2010, and observed Respondent pull over for a long period of time and use her cellular telephone. She also viewed the bus video of Respondent's routes on May 6, 2010, and observed Respondent using her cellular telephone while operating the bus with students on board. An internal investigation was conducted during which bus videos of several days of Respondent's routes were viewed by Mr. Akin, Assistant Director of Student Transportation Services Chip Kent, and by Mr. Ralys. Mr. Akin wrote a detailed chronology of what he observed Respondent doing while operating the school bus on April 30, 2010; May 3, 2010; and May 4, 2010. Bus video of Respondent's routes shows Respondent placing a call and talking on her cellular telephone while operating a school bus at approximately 4:00 p.m. on May 3, 2010. Respondent's cellular telephone records show she sent and received numerous text messages during her routes on that date.2/ Bus video of May 4, 2010 shows Respondent checking her cellular telephone, placing a call, and talking on the phone while operating the school bus. At approximately 3:32 p.m., the video shows Respondent talking on the phone regarding a personal matter. She told the person to whom she was speaking to "hold on, let me turn, hold on." Respondent then lowered her cellular telephone to her lap and waved out the window. Respondent then resumed her telephone conversation after turning. Also on May 4, 2010, the bus video of Respondent shows, and Respondent acknowledged, that she spent approximately 42 minutes stopped at a location, the library, which is not part of her route assignment. During this time, she again used her cell phone for talking and messaging for personal reasons. Students were not on the bus at this time, but Respondent was still "on the clock." Respondent's cellular telephone records for May 4, 2010, show that she sent and received numerous text messages while on her routes. Bus video for May 6, 2010, and her cellular telephone records, show Respondent using her cellular telephone to read and type text messages while operating the school bus with students on board, as well as to make phone calls. Bus video shows Respondent drinking from a large pink mug or container on multiple days while operating the school bus. Respondent has used this large mug for seven years and had not previously been disciplined for using it, nor had anyone told her to stop using it while driving her routes. Students on Respondent's bus were aware of her text messaging and complained to her about it. The bus video of May 6, 2010, shows Respondent holding her cellular phone in one hand while driving students. She appears to be reading incoming texts and texting while driving. She then pulls over to text message, at which time the students complain. One student said "We gotta pull over so you can text." He also said, "Oh, this is great, and "Drop me off . . . I can walk faster." Another student said to Respondent, "You can text and drive at the same time, I don't mind." The first student then offered to text message for Respondent, but she retorted, "You can't spell." Respondent presented evidence of another School Board employee, Sandra McDavid, a bus attendant, who was disciplined for not properly securing seat belts to wheel chair students and for talking on a cellular phone while operating the wheel chair lift while loading a wheel chair student. Ms. McDavid was suspended without pay for 20 days. Respondent argues that Ms. McDavid's case is similar to Respondent's, yet Respondent is receiving much harsher disciplinary action.3/ In a letter dated May 7, 2010, the Assistant Director of Student Transportation Services notified Respondent that her driving duties were temporarily suspended pending the outcome of an investigation. On June 17, 2010, Mr. Akin sent a letter to Respondent notifying her that she would be recommended for termination from employment. The letter was accompanied with the Statement of Charges signed by Superintendent Smith. At hearing, Mr. Akin noted that Respondent's case "is the first time [he] ever [saw] a case that involves this many issues on repeated days." On June 20, 2010, Respondent requested a hearing on her termination which gave rise to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Volusia County School Board enter a final order terminating Respondent's employment. DONE AND ENTERED this 3rd day of December, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 3rd day of December, 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that respondent certify petitioner Metro Signal Company, Inc. as a duly qualified Woman Business Enterprise. RECOMMENDED this 20th day of July, 1984, at Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 20th day of July, 1984.
The Issue The issue in this case is whether the Hillsborough Area Regional Transit Authority (Authority) acted in an arbitrary or capricious manner in proposing to award Bid Number 89-03-02, for a transit communication/data system, to Motorola Corporation (Motorola) instead of to Harris Corporation (Harris) since, according to Harris, Motorola's bid materially deviates from the requirements of the Invitation for Bid (IFB) issued by the Authority.
Findings Of Fact The Authority is a public corporation created pursuant to Section 163.567, Florida Statutes, and operates a mass transit system, using buses, within Hillsborough County, Florida. It is funded by the State of Florida, through the Department of Transportation, and also receives federal funds. On April 10, 1989, the Authority issued IFB 89-03-02 for a transit communication/data system, with automatic vehicle locating capability. The Authority sought, through this IFB, to obtain a radio communication system that would be able to provide two-way communication between its central base station, and buses operated by the Authority. It also sought automatic vehicle location and schedule monitoring through this system. In responding to the Authority's IFB, vendors were allowed to bid either a "sign post system" or a "Loran-C system". However, if a sign post system was bid, Section 3.5.1 of the IFB specified that it must be a system that could be converted to a Global Positioning Satellite System (GPSS), when that technology becomes available, with no more than a change out of the vehicular location equipment. A GPSS system locates objects by use of a constant transmission of signals carried on various earth orbiting satellites which are received by equipment placed on vehicles utilizing this technology. Geographic location is determined by measuring the strength of the signals received from multiple satellites. GPSS technology is not presently available for a land- based vehicle locator system, such as proposed by the Authority, since an insufficient number of satellites are in orbit to provide 24-hour coverage for Hillsborough County. A sign post system utilizes small radio transmitters which are placed at regular intervals along a bus route, and as a bus passes each sign post, it receives a transmitted signal from the sign post, and then retransmits that information back to the central dispatcher. Since the dispatcher knows the location of each sign post, the location of the bus can be determined as it passes each sign post and retransmits the signal it receives to the dispatcher. Under a Loran-C system, transmissions from existing Loran transmitter sites located in Jupiter, Florida, and Houston, Texas, are received by equipment located on each vehicle. Those signals are used to determine the geographic coordinates of a bus, and those coordinates are relayed to the central dispatch station by transmitting equipment on each bus. Harris responded to the Authority's IFB by proposing a Loran-C system, and Motorola responded by proposing a sign post system. These bids were timely received prior to June 15, 1989, and upon the opening of the bids, Motorola was determined to be the apparent low bidder. Prior to proposing an award on the IFB, the Authority conducted a technical review of the bids received, and in that process met with representatives of Harris, who expressed concerns about the Motorola bid. As a result of Harris' concerns, the Authority requested clarification from Motorola about two aspects of its bid, but this was done as an accommodation to Harris, and not from any concerns or questions which the Authority had about the Motorola bid. On June 20, 1989, the technical staff review of the Motorola bid concluded that it complied with the IFB, and on June 22, 1989, the Florida Department of Transportation authorized the Authority to award this contract to Motorola. The Authority's Board of Directors formally adopted Resolution 89-25 on July 27, 1989, awarding Bid No. 89-03-02 to Motorola. On August 7, 1989, Harris protested this award by letter which sets forth the specific grounds upon which Harris relies in this case, which are that: Motorola failed to propose a "GPSS-Capable" system as expressly required by the IFB; Motorola failed to submit a complete site block diagram as expressly required by the IFB; and Motorola failed to provide programming necessary to interface the proposed AVL (automatic vehicle locator) system with other (Authority) systems as expressly required by the IFB. The Motorola response the IFB, at Section 3.5(G) states: The Motorola signpost-type location system can be changed out (replaced) in the future by a Global Positioning Satellite System, (GPSS). The vehicular location equipment (i.e. signpost receiver and associated antenna) must be changed out (replaced) by a GPSS receiver and associated antenna that are compatible with the existing Metrocom bus mobile data unit's AVL interface. The existing signposts would be replaced by the GPSS satellites. Since there currently is no guaranty as to when GPSS satellite coverage will be available for Hillsborough County, a GPSS type AVL system cannot be proposed at this time. Contrary to the contention of Harris, the evidence received at hearing indicates that the above-quoted portion of the Motorola bid is responsive, and does not indicate that Motorola cannot bid a GPSS upgrade, as required by the Authority. The Motorola system can be GPSS capable with only a change out of the vehicular location equipment, which will necessarily also include both the signal receiver and associated antenna. Motorola has not conditioned or qualified its response to the IFB requirement that any system must be GPSS capable with only a simple change out or replacement of the vehicular location equipment, and therefore, its bid in this regard is responsive. Section 6.1 of the IFB also requires bidders to submit a site block diagram with their bids which shows gains and losses in decibels, cables, antennas, any necessary control logic, audio panels, as well as transmitters, receivers, combiners, and duplexers. This was intended to provide the Authority with a simplified system architecture diagram, enabling it to confirm that each bidder's proposal complied with the IFB requirements relating to system output. The site block diagram is a visual aid, and does not affect or represent any part of the cost of the system. Motorola's bid omitted that portion of the site block diagram which should have identified system gains and losses from transmitter to antenna. However, this information was included in, and determinable from, other portions of the Motorola bid, such as the technical data sheets, and equipment list with catalog numbers. The Authority's technical review committee concluded that the information which Motorola did provide was sufficient for system gains and losses to be calculated, and for performance capacity to be evaluated, particularly in light of Motorola's performance coverage contour maps. Staff of the Authority was able to calculate the output power in system gains and losses using the information supplied in the Motorola bid, and therefore, while there was a technical oversight in not including certain information on the site block diagram in the Motorola bid, that information was readily ascertainable from a review of the bid in its entirety. The Authority utilizes an existing computer system containing bus routing and scheduling information, as well as personnel information. Section 11.3.5(F) of the IFB provided that bidders must assume responsibility for the interface equipment necessary to allow transfer of data from the existing computer system to the new data transit communication system to be provided pursuant to this IFB. Harris contends that Motorola's bid was nonresponsive because it proposed that the Authority bear the cost of transferring data from the existing computer system to the new system. However, as acknowledged by Harris at hearing, the Motorola bid expressly states that the interface will be provided by Motorola. The Authority reasonably interpreted the Motorola bid as responsive on this point. Motorola was not required to, and did not, commit to pay for the cost of any reprogramming of the Authority's existing computer system, but it has agreed to supply the equipment necessary for an interface between its new system and the Authority's existing system, or to program that interface. There is no evidence in the record which would indicate that the Authority acted fraudulently, in an arbitrary or capricious manner, or out of bad faith in its evaluation of, and proposed award of, this IFB to Motorola. Additionally, there is no evidence that Motorola received any competitive advantage over Harris due to any aspect of the manner in which it submitted its bid, including specifically those three aspects challenged by Harris, or the manner by which it was evaluated by the Authority.
Recommendation Based on the foregoing, it is recommended that the Authority enter a Final Order dismissing Harris' protest of the award of IFB No. 89-03-02 to Motorola. DONE AND ENTERED this 13th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1989. APPENDIX DOAH CASE NO. 89-4410 BID Rulings on Harris' Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Findings of Fact 4, 6. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6, but Rejected in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected in Finding of Fact 11. 8-9. Adopted and Rejected in Finding of Fact 12. Rulings on Motorola's Proposed Findings of Fact, which have been joined in by the Authority: Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. 4-5. Adopted in Finding of Fact 2. Rejected as immaterial and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. 10-11. Adopted in Finding of Fact 6. 12-19. Adopted in Finding of Fact 7, but otherwise Rejected as unnecessary and immaterial. 20-26. Rejected as unnecessary and irrelevant. 27-30. Adopted in Finding of Fact 3. 31. Adopted in Finding of Fact 8. 32-34. Adopted in Finding of Fact 9, but otherwise Rejected as unnecessary and immaterial. 35-37. Adopted in Finding of Fact 10. 38. Rejected as unnecessary. 39-43. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary and immaterial. 44-56. Adopted in Finding of Fact 12, but otherwise Rejected as unnecessary and immaterial. COPIES FURNISHED: John W. Wilcox, Esquire Jesse L. Skipper, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602-5348 Stephen D. Marlowe, Esquire One Harbour Place P. O. Box 3239 Tampa, FL 33601 Michael S. Hooker, Esquire 1300 Ashley Tower 100 South Ashley Drive Tampa, FL 33601 Cliff Hayden, Jr. Executive Director Hillsborough Area Regional Transit Authority 4305 East 21st Avenue Tampa, FL 33605
The Issue The issue is whether Respondent, Todd Voigt, should be terminated from employment with the City of Clearwater (City) for violating City policies as alleged in the City's Termination and Dismissal Notice (Notice) dated August 3, 2016.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board make a determination that the charges in the Notice are sustained, and that Mr. Voigt be terminated as a City employee. DONE AND ENTERED this 7th day of December, 2016, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 7th day of December, 2016.
