The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY 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 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
Findings Of Fact Petitioner was a member of the United State Army stationed in Korea from the Fall, 1983 until early 1984, having achieved the rank of E-5. In December, 1983 Petitioner overpurchased certain rationed items. Specifically, he purchased three months of rationed items, having accumulated allocations from prior months, although he was only authorized to utilize the ration allocation for the current month. Petitioner testified he did not know, and was not told, that unused allocations for rationed items could not be accumulated and utilized later. Petitioner plead guilty to the misdemeanor charge resulting from this overpurchase. He spent two months in confinement, was reduced in grade from E-5 to E-1, and forfeited $150 in pay for four months. As a result of his loss in grade, Petitioner understood that his pay would be reduced to that of E-1. However, upon receipt of his pay following his reduction in grade, he realized his pay had only been reduced the $150 per month he was to forfeit for four months, but had not been reduced to that of E-1. He allowed another month to go by, and when the adjustment still was not made he reported this to his commanding officer. Shortly thereafter, Petitioner was reassigned to duty within the United States, and he testified he reported the continued overpayment to his new commanding officer. A total of eight months elapsed after he was reduced in grade when he continued to receive E-5 pay. Thereafter, Petitioner was charged in December, 1984 with the misappropriation of government funds, a felony, and on February 26, 1985 he plead guilty to this charge. He was confined for six months, without pay, and given a misconduct discharge. On or about May 29, 1986 Petitioner applied for licensure as a real estate salesman in the State of Florida, and in response to Question 6 he fully disclosed his guilty pleas to the two offenses described above, the sentences imposed, and the fact that he had received a misconduct discharge. On or about September 11, 1986 Petitioner was notified on behalf of Respondent that his application for licensure would be denied based upon his answer to Question 6 and the offenses noted therein. Petitioner timely requested a hearing. Petitioner honestly disclosed his prior offenses occurring in 1983 and 1984 on his application for licensure. He offered the testimony of Andrew Carl Atkison, a friend and former business associate, in mitigation and to establish his honesty since his misconduct discharge.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, admissions made by Respondent, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant case, a licensed real estate broker in the State of Florida. He holds license number 0265883. In March of 1990, Ulrich Wingens, by and through his attorney, Charles Burns, entered into a written contract to purchase from Jupiter Bay Shoppes Ltd. (hereinafter referred to as "JBS") certain commercial property located in Palm Beach County. Respondent brokered the sale. The sale contract provided that JBS was responsible for payment of Respondent's broker's fee of $50,000.00 and that such compensation was to "[t]o be due and payable only if closing occur[red]." Respondent received a $20,000.00 earnest money deposit from Wingens in connection with the sale. The sale contract provided that the $20,000.00 was to be held in the Jim Towns Realty escrow account. The sale did not close. Litigation between Wingens and JBS ensued. During the pendency of the litigation, the parties instructed Respondent to continue to hold Wingens' $20,000.00 earnest money deposit in escrow until they advised him to do otherwise. Wingens and JBS settled their dispute before the case was scheduled to go to trial. On November 14, 1991, the judge assigned to the case, Palm Beach County Circuit Court Judge Edward H. Fine, entered an order directing Respondent "to immediately transfer to Fleming, Haile & Shaw, P.A. Trust Account the escrow deposit in the amount of $20,000.00 and any accrued interest thereon." Respondent did not comply with the order. He had appropriated the $20,000.00 for his own personal use and benefit and was not holding it in escrow. This was contrary to the instructions he had received from Wingens and JBS. At no time had Wingens or JBS authorized Respondent to take such action. Wingens' attorney, Burns, brought the matter to the attention of the Department. The Department assigned one of its investigators, Terry Giles, to the case. As part of her investigation, Giles interviewed Respondent. During the interview, Respondent admitted to Giles that he had closed his real estate office in October of 1991 and had not at any time prior to the interview notified the Department of the closure. At the time he closed his office, Respondent's real estate broker's license was still in active status.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is hereby recommended that the Commission enter a final order finding Respondent guilty of the violations alleged in Counts I, II, III and IV of the Administrative Complaint and revoking his real estate broker's license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of August, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE IN CASE NO. 93-1315 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its post-hearing submittal: Accepted as true and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. First sentence: Accepted as true and incorporated in substance; Second sentence: Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 3-13. Accepted as true and incorporated in substance. 14-15. Accepted as true, but not incorporated because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. Accepted as true, but not incorporated because it would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted as true and incorporated in substance. COPIES FURNISHED: Janine B. Myrick, Esquire Senior Attorney Department of Business and Professional Regulation, Division of Real Estate Legal Section, Suite N 308 Hurston Building, North Tower 400 West Robinson Street Orlando, Florida 32801-1772 Mr. James C. Towns 7101 Smoke Ranch Road #1007 Las Vegas, Nevada 89128 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Jack McRay, Esquire General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issues in this case are whether Respondent, Richard Lindley, committed the offenses alleged in a four-count Administrative Complaint filed with Petitioner, the Department of Business and Professional Regulation, on March 20, 2008, and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for, among other things, the licensure of individuals who wish to engage in contracting in the State of Florida; and the investigation and prosecution of complaints against individuals who have been so licensed. See Chs. 455 and 489, Fla. Stat. Respondent, Richard Lindley, is and has been at all times material hereto a certified building contractor in Florida, having been issued license number CB C060555. Mr. Lindley is also a Certified Roofing Contractor, having been issued license number CC C1326286. Both licenses were issued by the Construction Industry Licensing Board (hereinafter referred to as the “Board). At all times material, Mr. Lindley was the primary qualifying agent for HCL, Inc. (hereinafter referred to as “HCL”). HCL has a certificate of authority, QB number 20599. On or about June 8, 2005, Mr. Lindley, doing business as HCL, entered into a written contract (hereinafter referred to as the “Contract”) with Myra Love to re-roof her residence located at 765 Windermere Way, Palm Beach Gardens, Florida 33418 (hereinafter referred to as the “Subject Property”). Pursuant to the Contract, Ms. Love agreed to pay HCL a total of $8,125.00, as follows: $1,625.00 upon signing the Contract; $2,843.75 upon “roof dri in”; $2,843.75 upon “roof load”; and $812.50 upon “final inspection.” Consistent with the Contract, Ms. Love paid HCL $1,625.00 by check dated June 8, 2005, upon entering into the Contract. On June 9, 2005, Mr. Lindley applied for a building permit for the work to be performed pursuant to the Contract. The permit was issued, but expired for lack of final inspection. Ms. Love next paid HCL $2,843.75 by check dated October 20, 2005, upon being informed that the roof had been dried in. Despite having paid for the dry in of the roof, it continued to leak. After making the second payment to HCL in October 2005, no work was performed pursuant to the Contract and all efforts by Ms. Love to contact Mr. Lindley failed. On April 24, 2006, Ms. Love wrote to Mr. Lindley complaining about the condition of her roof and his lack of response to her telephone calls to him. This letter was delivered by certified mail, return receipt. Mr. Lindley did not respond to Ms. Love’s April 24, 2006, letter. No work was performed by Mr. Lindley through October 2006 on the Subject Property, at least a year after work on the Subject Property stopped. Therefore, Ms. Love sent a letter dated October 31, 2006, by certified mail, return receipt, to Mr. Lindley. Ms. Love stated in the letter that “since you abandoned the contract on 6/8/05, and failed to show up on the job, I consider the contract null and void because of your nonperformance. You and your employees are hereby notified to stay off my property.” On November 4, 2006, after informing Mr. Lindley that she considered the Contract null and void, Ms. Love contracted with Gold Coast Roofing to complete the re-roofing of the Subject Property. Ms. Love paid Gold Coast Roofing $14,900.00 for the completion of the re-roofing. Essentially, Gold Coast Roofing, due to the time that had expired since work was abandoned, had to essentially start over on the re-roofing of the Subject Property. The total investigative costs for this matter incurred by the Department, excluding costs associated with any attorney’s time, was $258.56.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Richard Lindley violated the provisions of Section 489.129(1)(j) and (m), Florida Statutes, as alleged in Counts II and IV of the Administrative Complaint; imposing a fine of $2,500.00 and placing Mr. Lindley’s licenses on probation for a period of four years conditioned upon his payment of the fines, restitution and the costs incurred by the Department, and any other conditions determined to be necessary by the Board, for the Count II violation; requiring that Mr. Lindley make restitution in the amount of $4,468.75 to Ms. Love; and requiring that Mr. Lindley pay the costs incurred by the Department in investigating and prosecuting this matter; and Dismissing Counts I and III of the Administrative Complaint. DONE AND ENTERED this 12th day of March, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 12th day of March, 2009. COPIES FURNISHED: Lisa A. Comingore, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Richard H. Lindley Richard H. Lindley, d/b/a HCL, Inc. 9146 Arrowhead Drive Greenacres, Florida 33467-1060 Kyle Christopher, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race, subjected Petitioner to a hostile work environment, or retaliated against Petitioner in violation of the Hillsborough County Human Rights Ordinance 00-37, Section 4(1)(a)(1).
Findings Of Fact Petitioner is an aggrieved person within the meaning of Hillsborough County Human Rights Ordinance 00-37, Section 16. Petitioner is an African-American female and filed a complaint with the Board alleging that Respondent engaged in race, color, and gender discrimination; retaliation; and the creation of a hostile work environment. Respondent is an employer within the meaning of Section 16. Respondent operates a car dealership and is in the business of selling and servicing new and used automobiles and trucks in several states, including Florida. Respondent was not Petitioner's employer. Petitioner was a temporary worker during the relevant period, and her employment contract was with an employment agency. No written employment contract existed between the parties to this proceeding. The employment agency paid Petitioner, and Respondent paid the employment agency. The employment agency assigned Petitioner to Respondent from January 13 through January 23, 2004. Other than Petitioner’s uncorroborated testimony, there is no written or other evidence that Respondent intended Petitioner’s temporary assignment either to become a permanent position or to last for six weeks. The fact-finder finds the testimony of Petitioner to be less than credible and persuasive. From January 13 until January 21, 2004, Petitioner worked at Respondent's Tampa office at Lexus of Tampa Bay located on North Dale Mabry Avenue, Tampa, Florida. Respondent transferred Petitioner to its office at Lexus of Clearwater, Florida, on January 21, 2004, and terminated the assignment from the employment agency on January 23, 2004. The termination of assignment occurred in Pinellas County, rather than Hillsborough County, Florida. Petitioner began her assignment at Lexus of Tampa Bay on January 13, 2004, as a receptionist. Respondent paired Petitioner with Ms. Mary Ann Browne, a full-time receptionist and Caucasian female. Respondent charged Ms. Browne with training Petitioner in the responsibilities of a receptionist. Petitioner alleges that Ms. Browne engaged in unprofessional conduct during the 10 days she trained Petitioner. The unprofessional conduct, according to Petitioner's testimony included "racial undertones." For example, Ms. Browne asked Petitioner why, "Black people are all family, cousins, sisters, brothers." Petitioner responded, "Don't ask me. I wouldn't be that black." Ms. Browne allegedly stated aloud that two female employees who hugged in greeting each other were lesbians. Ms. Browne allegedly called another African-American employee a "pimp" and referred to an Hispanic employee as a "macdaddy." The fact-finder does not know the meaning of the term "macdaddy," or even how to spell the term, and the record does not provide an adequate definition or spelling. Ms. Browne allegedly referred to homosexual customers as "flamers." Finally, Ms. Browne allegedly engaged in threatening physical behavior by tossing items at Petitioner across the reception desk. No one but Petitioner heard the alleged racial and sexist comments by Ms. Browne or witnessed the physically aggressive behavior. The preponderance of evidence does not establish a prima facie showing of discrimination or retaliation. Nor does the preponderance of evidence show that Respondent subjected Petitioner to a hostile work environment. Finally, a preponderance of the evidence does not show that Respondent engaged in a discriminatory practice. The evidence of Ms. Browne's conduct consists of Petitioner's testimony and a diary that Petitioner created contemporaneously with the acts Petitioner attributes to Ms. Browne. No other employees at Lexus of Tampa Bay witnessed the events evidenced in Petitioner's testimony and diary. Ms. Browne left her employment with Respondent in the fall of 2004 and did not testify. Ms. Toni Davis, now Ms. Toni Scotland, was a receptionist during part of the relevant time but was not present during the entire time because she was being promoted to a position in accounting. Ms. Scotland did not recall any improper behavior by Ms. Browne in 2004. The Investigative Report based its recommendation of a finding of cause on statements attributed in the Report to then Ms. Davis and the documentation of the disciplinary action taken by Respondent against Ms. Browne. However, Ms. Scotland testified that she did not recall being contacted by an investigator for the Board and denied making any statements to the investigator. The investigation took approximately 3.5 years to complete because the investigator is the only investigator for the Board and because the investigator suffered a heart attack during the investigation. At the hearing, the testimony of the investigator concerning statements he attributed to Ms. Scotland, also Ms. Davis, was vague and sparse and is less than credible and persuasive. A preponderance of the evidence does not show that Respondent is responsible for the acts Petitioner attributes to Ms. Browne. Petitioner complained to her employment agency about the conduct of Ms. Browne. The employment agency notified Respondent, and Ms. Helene Ott, the supervisor at the time, interviewed both Petitioner and Ms. Browne on January 19, 2004. The only complaint made by Petitioner to Ms. Ott on January 19, 2004, was that Ms. Browne went to the break room to bring back a drink in separate disposable drink cups for Ms. Browne and Petitioner. Upon returning with the drinks, Ms. Browne told Petitioner that Ms. Browne had spit in Petitioner's cup. Petitioner did not tell Ms. Ott that Petitioner witnessed Ms. Browne spit in the cup. Petitioner's version of events changed at the hearing. Petitioner testified that she saw Ms. Browne spit in Petitioner's cup. Petitioner testified that Ms. Browne offered to refill the cup Petitioner already had on the receptionist desk, grabbed the cup, stood, drew up a large volume of spit from deep in Ms. Browne's throat, and let the long volume of liquid drop into Petitioner's cup in full view of Petitioner. Petitioner further testified in tears that she stated repeatedly to Ms. Browne, "Give me back my cup!" The foregoing testimony of Petitioner is less than credible and persuasive. The fact-finder is not persuaded that any reasonable person would have wanted Ms. Browne to return the cup. The cup was a disposable cup from the vending area which was of no value to Petitioner. Petitioner did not relate this version of the events to Ms. Ott when Ms. Ott investigated Petitioner's complaints on January 19, 2004. The version of events that Petitioner related to Ms. Ott on January 19, 2004, is consistent with the contemporaneous account by Mr. Browne. When Ms. Ott interviewed Ms. Browne on January 19, 2004, Ms. Browne admitted that she told Petitioner she had spit in Petitioner's cup when Ms. Browne returned from the vending area to the reception desk with Petitioner's drink. Ms. Browne also admitted to engaging in offensive language, offensive commentary about customers, and unprofessional conduct. A preponderance of evidence does not show that Respondent created or fostered a work environment that was hostile toward Petitioner. On January 19, 2004, Ms. Ott issued a written counseling/final warning to Ms. Browne for her use of “offensive language, offensive commentary about customers, and unprofessional conduct.” The disciplinary action advised Ms. Browne that any further misconduct would result in the termination of her employment. On January 20, 2004, Ms. Ott interviewed Petitioner again concerning additional complaints from the employment agency. Petitioner told Ms. Ott that Ms. Browne used vulgar and unprofessional language, but Petitioner did not state to Ms. Ott that Ms. Browne made racial or sexist comments. On January 21, 2004, Ms. Ott needed to fill another temporary vacancy at Lexus of Clearwater. Ms. Ott asked Petitioner to go to Clearwater, and Petitioner went to the Clearwater office voluntarily. Respondent ended the employment agency assignment on January 23, 2004. Ms. Ott described Petitioner’s performance as “very good." On January 23, 2004, Ms. Ott offered to write a letter of reference for Petitioner. Ms. Ott told Petitioner that Ms. Ott would consider Petitioner for a position at Lexus of Tampa Bay or Lexus of Clearwater if the need arose.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the final order issued in this proceeding should find that Respondent is not guilty of the allegations made by Petitioner. DONE AND ENTERED this 7th day of August, 2008, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 7th day of August, 2008. COPIES FURNISHED: Leslie P. Stokes 4714 Pleasant Avenue Palm Harbor, Florida 34683 Gail P. Williams Hillsborough County Post Office Box 1110 Tampa, Florida 33601-1110 Andrew Froman, Esquire Alva L. Cross, Esquire Fisher & Phillips LLP 401 East Jackson Street, Suite 2525 Tampa, Florida 33602
The Issue Whether the Petitioner, Sheila A. Cunningham, was subject to an unlawful employment practice by Respondent, Florida Credit Union, on account of her race or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct testimony as to the number of persons employed by Respondent. However, given the testimony describing a large financial institution with multiple departments, including a data scanning department and a call center, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time. Petitioner was first hired by Respondent on November 20, 2007. On February 2, 2008, she was transferred to the position of Courtesy Pay Credit Advisor (CPCA), a position held until her termination on March 21, 2014. From 2012 through the time of her termination, Jennifer Perez was Petitioner’s direct supervisor. Ms. Perez reported to Mr. Colson, who supervised the credit advisor department. Over the years, Petitioner received a number of certificates and awards for good performance in her position. CPCAs are responsible for collections on delinquent accounts of members by bringing the account to a positive balance within 60 days of delinquency. If a credit union member’s account is delinquent for more than 60 days, it must be written off, resulting in a loss to Respondent. Failure to timely write-off a negative account can subject Respondent to fines and negative audit ratings. A common way of bringing an account current is to arrange a loan with Respondent to pay the delinquent balance. Loan types include a “bounce-free” loan and a “work-out loan.” Both are designed to allow for payment of the negative account in installment payments. The bounce-free loan has only the negative account balance involved, while the work-out loan combines the negative balance with another existing loan. CPCAs receive additional compensation for such loans, known as “incentives,” of $10 to $15, though the record suggests that a dispute over an incentive of $40 was a triggering cause of the adverse employment action in this case. CPCAs are also responsible for “packing” loans, which includes taking the loan paperwork to the optical department to input and image the documents into Respondent’s system. The optical department periodically provides reports on loans for which documentation has not been submitted for input and imaging. Petitioner testified credibly that the optical department would occasionally neglect to scan loans that were submitted. However, there was no evidence to suggest that to be a frequent or pervasive problem. Respondent routinely employs one or two CPCAs at any given time. The CPCAs are assigned a “queue,” which is an alphabetical assignment of member accounts. The evidence suggests that Petitioner served as the CPCA for all delinquent member accounts for a period of almost one year, a practice that ended when Vikki Martello was hired as a CPCA on February 27, 2012. Upon her hiring, Ms. Martello was assigned the accounts of members with last names beginning with the letters A through K, and Petitioner was assigned the accounts of members with last names beginning with the letters L through Z. Ms. Martello was transferred to another position on July 11, 2013. Jennifer Munyan was hired as a CPCA on May 20, 2013, and was assigned the A through K queue. Since Petitioner’s termination, Ms. Munyan has handled all delinquent accounts. Petitioner mentioned several incidents over the course of her employment that she believed to be evidence of her poor treatment by Respondent. These incidents appear to have occurred more than one year before Petitioner filed her employment complaint of discrimination. They are cited here for purposes of background. Petitioner testified that starting in 2010 or 2011, Respondent began to hire younger credit advisors on the basis of their friendship with management. The new employees engaged in childish activities such as throwing paper clips and blowing bubbles. Petitioner indicated that they were “written up” for those activities. There was no suggestion that either the hiring or the write-ups were based on race. For a period of time, Petitioner was assigned what she believed to be a disproportionate share of holiday weekend shifts. Mr. Colson “corrected that and then that was okay.” There was no suggestion that the issues with scheduling were based on race. Shortly after Ms. Martello was hired on February 27, 2012, she was asked to accompany Mr. Colson and Ms. Perez to a branch office to train employees. Petitioner felt “that was not right,” and that she was being excluded from performing certain job tasks. She testified that Respondent’s assignment of training and other duties to persons other than herself led to a sympathetic nick-name of “invisible credit advisor.” Petitioner admitted that, in her opinion, Ms. Martello was an excellent employee. Mr. Colson testified credibly that Petitioner was not asked to assist in the new hire training since she was already behind on managing her accounts, and that “[t]here’s no compensation or award or anything for training another employee, it's just additional work.” There was no suggestion that the decision to have Ms. Martello assist with training was based on race. Petitioner alleged that despite her requests, she was not allowed to shadow other employees, particularly in the call center, so that she could learn the responsibilities of the member service representative position. She testified that in response to her requests, Ms. Perez would say “okay, we'll see about it, but nothing never happened. And I asked like three or four times and it was always we'll see about it.” Petitioner did not claim in her testimony that she was denied these opportunities because of her race. Petitioner generally claimed she was denied promotional opportunities because she was not allowed to train as a back-up. However, she failed to present any evidence of an open and available position for which she had applied, or for which she was denied. Furthermore, there was no suggestion that race played a role in any such denial. Respondent’s employees are informed of work performance issues in several ways, including informal discussions, e-mail communication, individual or group meetings, coaching reports, and annual evaluations. On March 19, 2012, Petitioner received her annual performance review. Although Respondent was complementary of Petitioner’s improvements in her work, and spoke favorably of her interpersonal relationships and work ethic, the review noted a number of “improvement opportunities and development areas” to be implemented over the course of the following year. Deficiencies in job performance included Petitioner’s practice of making initial contact with a delinquent member by letter, rather than the more effective practice of a phone call; the failure to provide sufficiently descriptive account notations; the failure to “charge off” loans correctly resulting in errors for others to correct; the failure to close checking accounts after workout options or loans were complete resulting in further delinquencies; and the failure to set up loan distributions correctly, resulting in unwarranted loan delinquencies and resultant customer complaints. The performance review also cited issues with Petitioner’s negative accounts extending beyond the required time frame, which was noted in Respondent’s quarterly audit report. The deficiencies noted in the performance review resulted in higher than normal charge-offs, and losses to Respondent. Petitioner improved her performance in some areas, but only for short periods of time. Mr. Colson did not issue Petitioner any coaching reports in 2012 because he believed that Petitioner’s mistakes were not intentional, that she had a positive attitude, that she had no attendance issues, and that “she seemed to like her job a lot.” It was Mr. Colson’s belief that with additional training and a cooperative approach, Petitioner’s performance issues could be corrected. On February 27, 2013, Petitioner received her next annual performance review. Petitioner was again complemented on her interaction with members, her teamwork, and her general positive work ethic. It was noted that Petitioner had responded well to coaching such that she rarely made mistakes in setting up automatic loan payments. The review noted, however, a number of areas for improvement, including some that had not been resolved from the previous year’s review. Of particular concern was the high number of missing loan packets, some of which were months past due; the failure to meet consecutive deadlines for submitting completed work; and the failure to begin work on accounts in an appropriate and timely manner. Petitioner was again instructed to make initial contact with delinquent members by phone or email, rather than by letter; and was advised of several of her accounts that were charged-off after missing the 60-day deadline. Finally, Petitioner was provided with a printout of the 142 overdrawn checking accounts in her queue, only 40 of which (28 percent), had been worked in the previous 60 days. Although some early-stage overdraft accounts carried a “high self-cure rate,” the low number of accounts worked was deemed unacceptably low. After receiving her 2013 performance review, Petitioner improved in some areas of her performance, but again only for a short period of time. Beginning on July 15, 2013, Petitioner, Ms. Martello (until she completed her transfer from the collections department), and Ms. Munyan (upon her assignment to the collections department) were provided with periodic email updates from Ms. Perez on the number of loan packets for which each was responsible that had not been submitted to the optical department. The updates and related correspondence between Petitioner and Ms. Perez revealed the following: July 15, 2013 Petitioner - 37 missing loan packets Ms. Martello - 4 missing loan packets July 19, 2013 Petitioner - 36 missing loan packets Ms. Martello - 6 missing loan packets July 30, 2013 Petitioner - 34 missing loan packets Ms. Martello - 5 missing loan packets August 5, 2013 Petitioner - 29 missing loan packets Ms. Martello - 2 missing loan packets Ms. Munyan - 1 missing loan packet August 14, 2013 Petitioner - 31 missing loan packets Ms. Munyan - 2 missing loan packets August 19, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets August 27, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 4 missing loan packets September 3, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets September 10, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 5 missing loan packets September 16, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 4 missing loan packets On September 18, 2013, Ms. Perez sent an email to Petitioner and Ms. Munyan advising them that credit union auditors were scheduled to arrive on September 30, 2013. Thus, Petitioner and Ms. Munyan were instructed to “[m]ake sure all of your loan packets are up to date, so that no one comes to us requesting something that cannot be located.” October 1, 2013 (for loan packets through September 27) Petitioner - 38 missing loan packets Ms. Munyan - 3 missing loan packets The October 1, 2013, update further advised Petitioner and Ms. Munyan that “[t]he auditors are here for the next three weeks. If they review any of these loans, it will be a problem that we do not have them scanned yet and if we are missing documents. Please get these turned in this week!” On October 12, 2013, Petitioner sent Ms. Perez an email stating that “I worked on some loan packets on 10/12. Please don’t send email until I turn my loan packets in on 10/16.” October 25, 2013 Petitioner - 20 missing loan packets Ms. Munyan - 7 missing loan packets November 4, 2013 Petitioner - 28 missing loan packets Ms. Munyan - 4 missing loan packets November 12, 2013 Petitioner - 33 missing loan packets Ms. Munyan - 5 missing loan packets On November 15, 2013, Petitioner sent Ms. Perez an email stating that “Optical have some loan packets that were turned in today, please don’t send out list until after 11/18/13.” November 22, 2013 Petitioner - 35 missing loan packets Ms. Munyan - 7 missing loan packets December 11, 2013 Petitioner - 41 missing loan packets Ms. Munyan - 1 missing loan packet December 18, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 2 missing loan packets On October 9, 2013, Mr. Colson met with Petitioner and Ms. Munyan to discuss the results of an attorney audit that was critical of several collections practices. In particular, too many accounts were not being worked until the later stage of delinquency; too much time was allowed to elapse between contacts with the members; and workflow notations were not properly completed. A spreadsheet provided during the October 9, 2013, meeting revealed that Petitioner had 92 accounts in her queue, 57 of which had never been worked. Ms. Munyan had 90 accounts in her queue, 25 of which had never been worked. In November of 2013, Petitioner spoke with Ms. Perez regarding an incident in which Petitioner alleged that Ms. Munyan claimed one of her incentive credits. Ms. Perez advised Petitioner to come back to her if it occurred again. Ms. Perez discussed the incentive issue with Mr. Colson. They determined that, due to a high volume of negative accounts anticipated over the upcoming holidays, and in recognition of the priority on not missing an opportunity to resolve negative accounts, a policy for incentives when a CPCA had to handle incoming calls and loan requests from members who were not in the CPCA’s queue was warranted. On November 19, 2013, Ms. Perez sent an e-mail to Petitioner and Ms. Munyan setting out the policy for handling calls when the other CPCA was not available. Outgoing calls and loan initiation were limited to customers within the CPCA’s queue. However, if a CPCA was not in the office or was unavailable to handle a customer request, the other CPCA was instructed to accept incoming calls from members not in their queue. The CPCA who first entered notes of a customer contact prior to a loan being booked was to receive the incentive. On December 9, 2013, Ms. Munyan received a communication from a member with a negative account, entered the first notes of contact with the member into the workflow history, and sent loan paperwork for a bounce-free loan to the member. On December 10, 2013, Petitioner spoke with the customer and took additional application information over the phone. Later that same day, Petitioner went to Mr. Colson to approve a refinance loan for the customer. Mr. Colson approved Petitioner to proceed with the refinance loan based on the customer’s income, but did not know at the time that Ms. Munyan had already started the loan process. Since Ms. Munyan made the first contact with the customer, the incentive was credited to Ms. Munyan. Petitioner proceeded to make several entries on the workflow history asserting her claim to the incentive. Petitioner apparently discussed the matter within the office, leading to her testimony that “[t]he department was upset about it because I showed it to them.” In December 2013, having been made aware of the workflow history comments regarding the disputed incentive; having received complaints regarding Petitioner from the manager of Respondent’s contact center; and having continuing issues with Petitioner’s failure to submit loan documents to the optical department, Mr. Colson prepared a series of coaching reports to individually address the issues. It was decided to issue separate coaching reports for each issue of concern, rather than a single lengthy report, in order to keep the issues separate. Respondent has previously issued multiple coaching reports to employees under comparable circumstances. On December 20, 2013, Petitioner was called into a meeting with Mr. Colson. She thought the meeting was to discuss the disputed incentive. Instead, she was presented with the coaching reports. The first coaching report was issued for Petitioner’s notations into the workflow system related to her intent to claim the disputed incentive credit. Petitioner had previously received training on the information to be entered in the workflow system. During the training sessions, which were conducted periodically, and which included the distribution of printed materials, it was stressed that the workflow notes should not be editorial or contain side comments. Mr. Colson explained that, in the event of a legal dispute with a member regarding their account, the collection record, including the notations entered into the workflow system, would be made part of a court record. As applied to Petitioner’s notations, Mr. Colson was concerned about having to testify about notations in the collection record regarding incentives or commissions for working on a work-out request. Petitioner alleged that Ms. Martello and other unidentified credit advisors made similar notations in the workflow system without being written up, but provided no evidence to support her assertion. Mr. Colson knew of no other instance of a CPCA making notations in the workflow system related to an incentive dispute or other internal employee dispute. Mr. Colson believed that the notations made by Petitioner regarding the incentive dispute were not pertinent to the collection record, thus violating Respondent’s policy and warranting the issuance of the coaching report. Petitioner signed the first coaching report, with the comment that “I thought that I was doing the right thing on this acct.” The second coaching report addressed Petitioner’s act of taking a fee refund voucher to Respondent’s contact center department for approval. The contact center has staff on duty beyond Respondent’s normal 8:30 a.m. to 5:00 p.m. business hours. The fee refund had to be done on November 25, 2013, since that was the 60th day of the negative account, after which the account would have to be written off. The fee refund was for an amount that exceeded Petitioner’s approval authority. Despite the time frame involved, Petitioner did not get the fee refund voucher approved by the clerk of the collections department, which would be the normal course, before the 5:00 p.m. close of business. During the December 20, 2013, meeting, Mr. Colson discussed the practice of taking vouchers to the call center for processing after 5:00 p.m. Mr. Colson had been approached by the assistant vice president of the contact center regarding Petitioner’s multiple visits after 5:00 p.m. to his department “to have transactions done, fees refunded, things of that nature on members' accounts.” As a result, call center employees were being pulled away from their normal tasks to do transactions that were not a normal function of their job. Petitioner alleged that other credit advisors went to the call center to have such transactions processed, including Ms. Martello, Melonice Lindsey, and Howard Miller, but provided no evidence to support her assertion. Mr. Colson had no knowledge of other credit advisors who engaged in this activity, or any other improprieties regarding the processing of fee refunds. The second coaching report addressed additional issues related to the November 25, 2013, fee refund transaction, including the fact that Petitioner did not work on the sixty-day negative account when she arrived to work that morning, and that she did not enter any notation in the workflow history regarding the fee refund. Mr. Colson believed that the issues regarding the fee refund transaction warranted the issuance of the coaching report. Petitioner signed the second coaching report, with the comment that “I didn’t do this intentionally. I forgot to get voucher back from Katie to give to [Mr. Colson] to sign.” The third coaching report addressed the ongoing problem of Petitioner’s failure to provide loan documentation to the optical department for input and scanning, the details of which are set forth in paragraph 22 above. Petitioner signed the report with the comment that “[s]ome of these loans have been turned into optical. I will review this matter.” Petitioner alleged that other employees had fallen behind on submitting paperwork, but were not written up or terminated. Petitioner did not identify, by name or race, any of the allegedly comparable employees, or establish that they had a comparable history of failing to submit loan documentation. The only evidence adduced at the hearing established that Ms. Martello and Ms. Munyan were not comparable to Petitioner in the number or frequency of late-submitted loan packets. Petitioner stated that she had previously advised Ms. Perez of her intent to work on Saturday, December 21, 2013, to catch up on her loan paperwork. Mr. Colson was not aware of Petitioner’s intent to do so but, given the length of time that the problem continued to exist, would still have issued the coaching report to Petitioner. At some point after January 2, 2014, during Mr. Colson’s daily review of compliance reports, he noted an account that was over 60 days, requiring that it be written off. The account was assigned to Petitioner, and Mr. Colson saw from the workflow history that Petitioner did not begin work on the account until it was 58 days past due. Working her accounts earlier in the delinquency stage had been previously addressed with Petitioner. On January 6, 2014, Petitioner was given a coaching report and placed on a 60-day probation for deficient work performance related to the written-off account. Petitioner signed the January 6, 2014, coaching report with the comment that “voucher was paperclip to another voucher by mistake. I usually check these daily.” Petitioner testified that other employees failed to timely charge-off accounts but were not counseled, but provided no evidence to support her assertion. The only comparator for whom evidence was received was Khrissy Adams, a Caucasian woman, who was given a coaching report and placed on a 30-day probation for failing to timely write-off an account. There was no evidence of Ms. Adams having received previous coaching reports so as to warrant a lengthier period of probation, as was given to Petitioner. As part of the process established after the December 20, 2013, meeting and coaching reports, Petitioner was to submit her loan packets to either Ms. Perez or Mr. Colson for review before they were sent to be scanned. That review revealed that a large number of the loan packets contained significant errors in the consumer lending plan, which is the contract a member signs to obtain a loan. Many of the consumer lending plans had missing signatures, and some packets had no consumer lending plan at all. Furthermore, Petitioner indicated that some members elected to purchase loan insurance when the member had, in fact, declined insurance, resulting in unapproved charges to a member. The errors noted by Respondent were serious, potentially resulting in the loan contracts being invalid and unenforceable. The errors could have been violative of Regulation Z, which governs fair lending practices and, if there were a sufficient number of instances, resulted in a class action lawsuit against Respondent, exposing it to considerable cost. Due to the ongoing performance issues, as well as the severity of the issues related to Petitioner’s completed loan packets, the decision was made that termination of Petitioner’s employment was appropriate. Petitioner was thereafter terminated from employment on March 21, 2014. Petitioner identified no instance of any racially- disparaging comments directed at herself or any other employee by anyone affiliated with Respondent. There was no non-hearsay evidence of any employee outside of Petitioner’s protected class who engaged in conduct similar to that of Petitioner, but without consequence, upon which to support a finding that the employee was treated more favorably. Mr. Colson testified credibly that Petitioner’s race had no bearing on the decision to terminate her employment. Rather, Mr. Colson testified convincingly that the decision was based solely on Petitioner’s continuing and increasingly poor job performance. Mr. Colson felt Petitioner’s poor performance was not due to a lack of trying on Petitioner’s part; it was simply the result of a lack of ability on her part. Petitioner asserted that she was written up, placed on probation, and subsequently terminated from employment in retaliation for complaining that Ms. Munyan improperly claimed her incentive. In that regard, she testified that: I know that by me going to management . . . it really started all this, I think, because I’m thinking to myself, if I would have just kept my mouth shut, maybe I would have had my job, but other employees have went to Mr. Colson before with problems like that . . . . But my thing is, after I went to management I get written up out of retaliation. I got blind-sided. I didn’t know that was going to happen. And, to me, that’s retaliation. Petitioner does not claim that she was denied the incentive credit because or her race. Finally, Petitioner complained that some of her personal belonging were damaged or not returned to her after her employment was terminated, testifying that “[t]hey broke up all of my things and, to me, that was not right. To me, that was discriminative.” Even if there were some evidence that Petitioner’s belongings had been damaged on purpose -- which there was not -- there was no evidence that such damage was the result of racial animus. A review of the entire record of this proceeding reveals not a shred of evidence that any of the employment actions of which Petitioner complains were the result of racial bias or discrimination. The only testimony that can be reasonably read as suggesting some racial bias behind the employment actions at issue are Petitioner’s testimony as follows: and I know that discrimination do exist. I do know that’s a problem all across the board in America . . . [a]nd if I did not feel that I was discriminated against I would never have did all this . . . but my thing is I know there’s favorites at that credit union. I know that certain people get away with things. To me, I was discriminated against, I'm gonna say for the record, because of my race, because if I think that I know within my heart if the tables were turned, if I was white and went to management, I would still had a job because to me it just got blown out of proportion by me going to management. And as everyone can clearly see, it all started from there, because if it wasn't started from there, why would I have gotten written up in first place for my work that happened prior to, you know, that -- you know, that year? So, that's what started that. So my point is, is that if I wouldn't have never said anything, I would have probably still been working there. In the absence of some corroborative evidence, Petitioner’s statements alone cannot provide the support to sustain a charge of racial discrimination. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race. Rather, the decision was based on Petitioner’s performance in her job as reflected in the employee coaching reports. Furthermore, there was no competent, substantial evidence adduced at the hearing that persons who were not African-American were treated differently from Petitioner, or were subject to dissimilar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made in retaliation for Petitioner’s opposition to an unlawful employment practice. Rather, to the extent there was some retaliation involved, it was for bringing an internal employee complaint over a disputed incentive to management, a complaint that had no implication of race.
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 Respondent, Florida Credit Union, did not commit any unlawful employment practice as to Petitioner, Sheila A. Cunningham, and dismissing the Petition for Relief filed in FCHR No. 2014-00645. DONE AND ENTERED this 6th day of May, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 6th day of May, 2015. COPIES FURNISHED: Sheila Annette Cunningham 1835 Northwest 27th Avenue Ocala, Florida 34475 Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 R. Michelle Tatum, Esquire John E. Duvall, Esquire Ford and Harrison, LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether the Petitioner is entitled to an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes (2011).1/
Findings Of Fact By a three-count Administrative Complaint dated June 7, 2011, the Respondent charged the Petitioner with alleged violations of law related to the sale of certain products. The allegations of the Administrative Complaint were prosecuted in the disciplinary case. A final hearing in the disciplinary case was conducted on January 24 and 25, 2012. On April 18, 2012, the ALJ issued a Recommended Order determining that the products referenced in the Administrative Complaint were unregistered securities and that the Petitioner "violated section 626.611(16) [Florida Statutes,] by selling an unregistered security that was required to be registered pursuant to chapter 517." The Administrative Complaint also charged the Petitioner with additional violations of statute including a "[d]emonstrated lack of fitness or trustworthiness to engage in the business of insurance," in violation of section 626.611(7). As set forth in the Recommended Order, the ALJ determined that the evidence failed to establish the additional violations. Based on violation of section 626.611(16), the ALJ recommended that the Petitioner's license be suspended for a total of six months, two months for each product sale alleged in the three separate counts of the Administrative Complaint. On July 6, 2012, the Respondent issued a Final Order determining that in addition to the violation of section 626.611(16) found by the ALJ, the Petitioner had also violated section 626.611(7). Despite finding the additional violation, the Respondent adopted the penalty recommended by the ALJ. The Petitioner took an appeal of the Final Order to the District Court of Appeal for the Fifth District. The Court determined that the products sold by the Petitioner were not securities that required registration at the time they were sold by the Petitioner, and, on June 21, 2013, issued an order reversing the Final Order issued by the Respondent. The parties have stipulated that the Petitioner was the prevailing party in the disciplinary case and is a "small business party" as defined by section 57.111(3)(d).
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, 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 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Recommendation In consideration of the foregoing, it is recommended that the Petitioner enter its final order: Finding the Respondent guilty of Count One of the Administrative Complaint by (a) violating section 489.129(e), Fla. Stat. (1981), by aiding and abetting an uncertified and unregistered person to evade the licensing provisions of the Contracting Act, and (b) by violating section 489.129(1)(f), Fla. Stat. (1981), by knowingly combining and conspiring with an unregistered and unlicensed person with intent to evade the provisions of the Contracting Act. Finding the Respondent not guilty of the allegations in Count Two of the Administrative Complaint. For the violations of Count One, imposing a fine of five hundred dollars ($500). DONE and ENTERED this 10th day of May, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, 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 Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Martin F. Mann 2216 Bayshore Garden Parkway Bradenton, Florida 33507 Simon Rosin, Esquire Pflugner, Rosin & Hendricks Post Office Box 1918 Sarasota, Florida 33578 James Linnan, Executive Director Construction Industry Licensing Board P.O. Box 2 Jacksonville, Florida 32202 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee,, Florida 32301
