The Issue Whether the Appellee's suspension of Appellant was in compliance with Chapter 110, Florida Statutes, and Chapter 22A-7.10F and G(2), Florida Administrative Code. Whether the Appellee's suspension of Appellant should be sustained.
Findings Of Fact C. W. Mathis was on January 22, 1977, a state trooper, employed by Appellee, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol, in Orlando, Florida. By letter dated February 22, 1977, Trooper Mathis, the Appellant, was notified that he was being suspended for eight (8) hours without pay by the Appellee, Department of Highway Safety and Motor Vehicles, Florida Highway Patrol for: "Leaving the workstation without authori- zation and negligence, in violation of Department of Highway Safety and Motor Vehicles Personnel Rules and Regulations 2.lC, willful violation of statutory authority, rules, regulations or policies, and General Order 43, l.A.(4), pages 43-2 and 43-4, Florida Highway Patrol Manual." Trooper Mathis appealed this suspension which is the subject of the bearing. The Division of Administrative Hearings, Department of Administration, has jurisdiction of the cause. On January 22, 1977, Trooper Mathis was on State Road 400, out of his assigned authority, and running radar at approximately 8:50 A.M. He pursued and stopped a car which was clocked at speeding 75 miles per hour. Trooper Mathis asked the driver for a drivers license and when the driver stated he had none, Trooper Mathis told him to get out of the vehicle and asked the driver's name and proof of ownership of the vehicle. The driver indicated that his information was in the glove compartment and both Trooper Mathis and the driver obtained an instrument from the glove compartment of the driver's automobile. In the stopped vehicle was a white male passenger. Trooper Mathis returned to the patrol car and had the driver sit in the right front seat of the patrol car. Mathis then left the left front seat of the patrol car to obtain the vehicle identification number from the automobile and returned to the patrol car where the driver or violator was sitting. Mathis then called the radio dispatcher for a "check for wanted" personal (10-29). Trooper Mathis was looking down and when he looked up the automobile he had stopped was gone, driven obviously by the passenger who was left seated in the stopped vehicle. The driver of the automobile seated in the patrol car with Trooper Mathis told Trooper Mathis that he didn't see his car leave and that he had picked up the white male passenger hitchhiking on State Road 400 at the Turnpike. Trooper Mathis then proceeded west on State Road 400 in hopes of finding the car. He also called the station and asked radio operator Roundtree to copy a vehicle identification number without asking for a "check for wanted" 10-29. Radio operator Roundtree ran the first vehicle identification number (1Y27D 57106363) given by Trooper Mathis and it came back nothing on file. (The second vehicle identification number (1Y27D5T1O6367) later came back registered to the following: Eva Kuhn, 25 North Westview Avenue, Feasterville, Pennsylvania, on a 1975 Chevrolet, license number A02326.) Radio operator Roundtree then ran the tag number for 10-29 thinking that both vehicle identification numbers he had run were negative for wanted. The tag came back negative. After a search of the area and not locating the vehicle Trooper Mathis asked to meet with a deputy sheriff. The meeting with the deputy was for his passenger to make a "stolen car" report. When the violator finished his report with the deputy he advised Trooper Mathis that he had relatives visiting at Disney World and would like to be dropped off there. Trooper Mathis then brought him to Disney World and left him there. It was later found that the driver-violator had stolen the vehicle. Appellee, Department of Highway Safety and Motor Vehicles, contends: Trooper Mathis was negligent and should be Punished for (1) failing to ask for a proper 10-29 ("check for wanted") on the vehicle identification number; (2) failing to keep the stopped vehicle under surveilance so that the passenger was able to drive it away unnoticed; (3) failing to require identification from the violator-driver before believing the violator's story. Appellant, C. W. Mathis, contends: (l) that under the circumstances it was excuseable that he failed to immediately ask for a proper 10-29 "check for wanted"; (2) that the traffic was very heavy and he was obliged to go very fast if he were to properly find the violator and do the job for which he was paid; (3) that the radio operator was inexperienced and should have made the proper calls which would have notified Trooper. Mathis that the driver-violator was not the owner of the stopped vehicle.
Recommendation Dismiss appeal; the suspension was for just cause. DONE and ORDERED this 4th day of August, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Carlton Building, Room 530 Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 C. W. Mathis 1409 Lukay Street Ocoee, Florida 32761 Enoch J. Whitney, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkmam Building Tallahassee, Florida 32304
The Issue Whether the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, by using his official position to attempt to secure a special benefit for himself in terms of his own sexual gratification, and by misusing his official position to conceal a traffic ticket received by Suzanne Pridgeon?
Findings Of Fact GENERAL. The Respondent. The Respondent, Alfred Welch, is the Clerk of the Circuit Court (hereinafter referred to as the "Clerk") for Madison County, Florida. Mr. Welch has continuously served as the Clerk for the past eleven years. At all times relevant to this proceeding, Mr. Welch served as a public officer subject to Section 112.313(6), Florida Statutes. Clerk's Office Personnel. At the time that Mr. Welch took office as Clerk there were approximately six to seven employees employed in the Clerk's office. During the period of time since Mr. Welch took office as Clerk there have been as many as ten persons employed in the Clerk's office. Employees of the Clerk's office were hired by Mr. Welch, were subject to his supervision and could be fired by him. Mr. Welch's employees were all female because it was very rare that a male applied for a position in the Clerk's office. During the period of time at issue in this proceeding, the following individuals worked for Mr. Welch in the Clerk's office and were under his supervision and control: Cheri Williams Sims: Ms. Sims worked for Mr. Welch on three separate occasions: (1) She began work for Mr. Welch on a part-time basis while attending a community college; (2) She left to attend a four-year college and later returned to a full-time position; and (3) She left again, this time to join the Navy, and later returned full-time. Ms. Sims was known as Cheri Williams while she was employed in the Clerk's office. Madeline Ginn: Employed as a deputy clerk since 1973. Ramona Dickinson: Employed as a deputy clerk since 1979. Jeanette Carter: Employed as a deputy clerk for the past twenty years. Catherine Ann Reams: Employed from approximately March, 1986, until 1989. Rachel Bush: Employed as a deputy clerk from 1977 until June of 1986. Melinda Jan Mims: Employed in 1978 or 1979, left the Clerk's office and returned part-time in late 1982. She became a full-time employee of the Clerk's office from April, 1983, until approximately February or March, 1986. Ms. Mims was known as "Jan Rutherford" when she worked for the Clerk's office and as "Jan Oladell" after she left the Clerk's office until some time prior to the taking of her deposition testimony in this case. Judy James: Employed in the Clerk's office since February, 1984. She was formerly known as Judy Pride. Suzanne Pridgeon: Employed in the Clerk's office from 1983 until 1987. Barbara Hudson: Employed in the Clerk's office for approximately two to two and one-half years. She was employed part of the time that Ms. Mims worked for Mr. Welch. Mary Floyd: Employed in the Clerk's office for the past ten years. Joyce Wells: Employed in the Clerk's office since August, 1986. Prior to August, 1986, she worked for the County Commission in the courthouse where the Clerk's offices were located. Several other current employees of the Clerk's office testified: Donna Blair (began employment December, 1989); Vera Tombs; and Nancy Curl (began employment March, 1990). Their testimony, in large part, did not apply to the relevant period of time at issue in this proceeding. Several of the employees of the Clerk's office have been known by different names at different times relevant to this proceeding. Throughout this Recommended Order, references to individuals have been made using the individuals' name as of the date of the formal hearing. The Clerk's Offices. The Clerk's offices were, and still are, located in the Madison County courthouse in Madison, Madison County, Florida. The Clerk's offices consisted of two separate areas referred to generally as the north and south offices. A "vault" area was located in the south offices. Official records of the Clerk's office were kept in the vault area. There was a table in the middle of the vault and there were large sliding drawers around the walls of the vault where records were kept. The shelves would slide out into the room making the room even more cramped. The book in which traffic citations were indexed was kept in the vault. The entire area was very cramped. Downstairs from the Clerk's offices was a restroom which was used by all employees of the Clerk's office and others. It was not dedicated to any one sex; it was used at different times by males and females. Outside of the downstairs restroom there were file cabinets for Clerk's office records, a telephone and a County Commission office. Most areas of the Clerk's offices were very cramped. It was generally not possible for two persons to pass abreast of each other in most areas. It was also difficult in some areas for two people to turn sideways and pass each other without touching. Mr. Welch's Improper Treatment of Clerk's Office Employees. General. In making the findings of fact in this case, the undersigned has considered the fact that there was a tendency of many of the employees of the Clerk's office to gossip--to discuss matters concerning the activities of other employees of the Clerk's office, including rumors of romantic and sexual relationships. The length of time which has elapsed since the events described in this Recommended Order and the effect the passage of time has had on the witnesses has also been taken into account. In concluding that Mr. Welch was attempting through many of the actions described, infra, to obtain a special privilege or benefit for himself through his treatment of certain female employees of the Clerk's office, it has been recognized that the evidence failed to prove that Mr. Welch told employees that their jobs, pay, promotions or job duties would be affected in any specific way if they did not respond favorably to his actions. It has also been recognized that Mr. Welch did not specifically ask for sexual favors from his employees and, except for two instances, his inappropriate touching of employees was somewhat subtle. The conclusion that some of Mr. Welch's actions were taken to obtain a special privilege or benefit, however, is based upon the totality of the evidence, Mr. Welch's position of power over the employees involved in this matter and the inescapable conclusion that his ultimate reason for treating his employees in the inappropriate manner described in this Recommended Order was to obtain sexual gratification and favors. His actions were of a general sexual nature and constituted sexual harassment of female employees. Although Mr. Welch's employees, with one exception, did not respond favorably to Mr. Welch's inappropriate behavior, and although it was not reasonable to conclude that his efforts would be successful, his efforts were nonetheless intended to gain a special privilege or benefit: sexual gratification and favors. General Office Sexual Banter. As is probably common in many offices, some, but not all, of the employees of the Clerk's office would, at times, talk and joke about matters involving sex. Jokes that might be considered "off-color" or of a sexual nature would from time to time be told by some of the Clerk's office employees when Mr. Welch was present. There were also some employees who did not join in the talk about sexual matters or the telling of jokes with sexual overtones. There were also some employees who were not even aware of such talk or jokes. There were a number of cards and cartoons which were passed around the office at various times by employees. Of those that were offered into evidence, some, but not all, included curse words and direct or indirect sexual overtones. Mr. Welch's nickname is "Turkey." Many of his employees referred to Mr. Welch at times by his nickname. Most of the cards and cartoons offered into evidence were addressed to Mr. Welch as "Turkey." With one exception, the weight of the evidence failed to prove who actually gave the cards and cartoons offered into evidence to Mr. Welch or exactly when. Most were from the "office" and were given to him on or near various holidays. The one exception was Respondent's exhibit 5, a cartoon which Ms. Bush admitted she put on Mr. Welch's desk. Respondent's exhibit 5 was addressed "To Alfred" and was signed "From Rachel". The cartoon was a picture of a Peanuts comic strip character saying "Working here is like working in a whorehouse--the better you perform, the more you get screwed." The weight of the evidence failed to prove when Respondent's exhibit 5 was given to Mr. Welch. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking which went on in the Clerk's office were in anyway a violation of the law. The weight of the evidence failed to prove that the cards and cartoons given to Mr. Welch or the sexual banter and joking was intended by Mr. Welch to secure a special privilege or benefit for himself or others: sexual gratification and favors. At various times since Mr. Welch has been Clerk, he has made comments of a sexual nature in the presence of employees of the Clerk's office. The evidence failed to prove that any of the comments were made to any one employee; more than one employee was always present. In particular, Mr. Welch made the following statements of a sexual nature: "I never get enough"; "I have not done it in so long, I do not remember how"; "I had a dream and when I woke up I had a hard on"; "It was stuck up like a tent" in discussing another dream; and "My wife is not giving me any". The foregoing statements were made in the presence of Cheri Sims, Ramona Dickinson and Catherine Reams. Mr. Welch's denial that he made these statements is rejected because several witnesses testified that such comments were made and their testimony on this point was credible. The fact that not every person who worked in the Clerk's office or who may have had contact with the Clerk's office or Mr. Welch ever heard any comments from Mr. Welch of a similar nature was not sufficient to prove that no such statement was ever made. Nor was such testimony sufficient to conclude that the witnesses who indicted that the comments were made by Mr. Welch were not credible. The weight of the evidence proved that the sexual comments made by Mr. Welch quoted in finding of fact 29 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. The Fine Line Between a Compliment and a "Come-on". It was not uncommon for Mr. Welch to compliment Clerk's office employees concerning their appearance or the perfume or cologne they were wearing. Compliments of a similar nature were also paid to Mr. Welch by his employees. Ms. Bush indicated that Mr. Welch made comments to her almost daily that she "looked nice", had on "nice clothes" or that she "smelled nice". Mr. Welch's comments made Ms. Bush feel uncomfortable because of the "way he said it: he would look me up and down." Without more, it would be difficult to determine whether Mr. Welch's comments to Ms. Bush were simply the compliments of a considerate employer or were inappropriate come-ons or comments from a boss to an employee. As is discussed, infra, however, the evidence proved more: Mr. Welch's interest in Ms. Bush was not merely the interest of a considerate employer; Mr. Welch was interested in a romantic/sexual relationship with Ms. Bush. It is, therefore, concluded that Mr. Welch's comments to Ms. Bush concerning her appearance and her cologne/perfume were sexually motivated. Mr. Welch told Ms. Sims that she had "nice lungs". This comment was a reference to Ms. Sims' breast size. Mr. Welch's testimony concerning this comment was not credible. In a response dated April 9, 1990, to the Commission's investigative report, Mr. Welch denied making the comment. At the formal hearing Mr. Welch testified that he did not recall whether he made the comment. Mr. Welch then testified that Ms. Sims sang in a church choir and had a pretty voice. Therefore, Mr. Welch speculated that, if he did make such a comment, it might have been in reference to her singing ability. Mr. Welch's attempted explanation was, at best, naive. His comment was not a reference to Ms. Sims' ability to sing; it was a comment about her anatomy, which she recognized, and, consequently, felt uncomfortable about. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 33 and 35 were intended Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Invitations to "Have a Good Time". At some time during the 1980's Mr. Welch suggested to Ms. Dickinson that they "go off for the weekend." Mr. Welch told her "you need to go off with me and I'll show you a good time." On another occasion, Mr. Welch suggested that Ms. Bush needed to "go off" with him to a clerk's convention and that they would "have a good time." Mr. Welch suggested that if she did, she "would not want to go back to your husband." Mr. Welch travelled to conventions and seminars for the Clerks of Court in Florida on a regular basis. Some of the conventions and seminars included training which was beneficial to various employees in Mr. Welch's office. Consequently, Mr. Welch would take various employees to some of the conventions and seminars he attended so that they could participate in the training sessions. Although Mr. Welch admitted that he might have told employees when talking about going to conventions and seminars that they would "have a good time", nothing sexual was meant by such a comment. Mr. Welch indicated that such a comment was merely a statement of fact since the clerks did have a good time at the conventions and seminars they attended. Mr. Welch's suggestion that the comments to Ms. Dickinson and Ms. Bush described in findings of fact 37 and 38 were of the type of innocent comment described in finding of fact 40 is not credible and is rejected. During the early 1980's Ms. Bush had to take her daughter to Valdosta, Georgia, twice a week to receive allergy shots. Mr. Welch was aware of this fact. On at least two occasions, Mr. Welch, who traveled to Valdosta occasionally, suggested that they "meet for coffee" in Valdosta. Mr. Welch testified that he did some farming and that he often went to Valdosta to acquire materials needed for his farming. Mr. Welch also admitted that he probably had told Ms. Bush something like "if I see you in Valdosta, we'll stop for coffee." As was true of the compliments by Mr. Welch to Ms. Bush, it would be difficult to determine whether Mr. Welch's explanation of his comment to Ms. Bush about having coffee in Valdosta was simply an innocent invitation with no sexual overtone or was an inappropriate invitation with sexual innuendo from a boss to an employee. Based upon the fact, as is discussed, infra, that Mr. Welch's interest in Ms. Bush was in having a romantic/sexual relationship with her, it is concluded that his comment to Ms. Bush concerning having coffee was an invitation with sexual innuendo. That is how Ms. Bush interpreted the invitations and it made her feel uncomfortable. On another occasion, Mr. Welch requested that Ms. Sims give him a ride home because his pickup truck was in the shop and Ms. Sims' mother lived near Mr. Welch. Ms. Sims agreed to give Mr. Welch a ride. At some time during the ride, Mr. Welch asked Ms. Sims to come in for a drink when they got to his house and told her that they could "have a good time." Ms. Sims declined. Ms. Sims later told Ms. Ginn about this incident and Ms. Ginn told Mr. Welch that if it had happened it "was not right." Mr. Welch gave the following version of the ride home with Ms. Sims: Mr. Welch indeed needed a ride home and while talking to his wife about coming to get him, Ms. Sims walked by and he asked her if she would take him. She agreed. A discussion had taken place during the day about a drink which Mr. Welch described as a "shooter". On the way home that evening, Ms. Sims told Mr. Welch that she had never had a shooter and he offered to fix one for her when they arrived. There was nothing suggestive about the invitation because Ms. Welch was home. When Ms. Sims and Mr. Welch arrived at Mr. Welch's home, Ms. Welch was outside. Ms. Sims and Ms. Welch struck up a conversation while Mr. Welch went inside. Nothing more was said about the drink and Ms. Sims did not come inside. Mr. Welch's explanation of the incident is not credible. Although Ms. Welch verified some of Mr. Welch's explanation, Ms. Welch's recollection was in all likelihood based upon another incident. The weight of the evidence proved that the comments made by Mr. Welch described in findings of fact 46 were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification or favors. Personal Telephone Calls. On a number of occasions, Mr. Welch telephoned various employees of the Clerk's office at their homes after working hours. These telephone calls were made primarily for personal, as opposed to business, purposes. The calls were uninvited. During a two to three-month period Mr. Welch telephoned Ms. Reams a couple of times a week during the evening: The calls were uninvited and unwelcome by Ms. Reams. Mr. Welch and Ms. Reams discussed the office generally, and Suzanne Pridgeon and Ms. Bush. In particular, Mr. Welch told Ms. Reams that he was having a relationship with Ms. Pridgeon; that he "cared about Ms. Pridgeon but Ms. Bush was the one he loved." Mr. Welch told Ms. Reams that "he would have to stop calling because he was getting used to it." Ms. Reams quit answering her telephone because of Mr. Welch's calls. She worked out a code with a friend and her mother so that they could call her and she would know it was them and not Mr. Welch. Mr. Welch admitted telephoning Ms. Reams but indicated he was merely attempting to help her with a personal problem; she was trying to break off a relationship with a man she had been seeing and was not sure how to go about doing it. Mr. Welch indicted that he did not believe it would have been appropriate to discuss this problem at work and that is why he called her at home. This testimony was not credible when compared with Ms. Reams' testimony. Additionally, when explaining why he stopped to see Ms. Reams one evening, as discussed, infra, Mr. Welch indicated that he had been discussing her personal problems with her at work and stopped to see her because they had not finished their discussion that day. He obviously did not mind discussing her problems in or out of the office. Mr. Welch also telephoned Ms. James on at least one occasion and discussed Ms. Pridgeon. Mr. Welch telephoned Ms. Bush at least ten times, and maybe as many as twenty times, during the evening while she was employed at the Clerk's office. Mr. Welch's telephone calls were not requested by Ms. Bush and they made her feel uncomfortable. Mr. Welch telephoned Ms. Mims twice one night: During the first call, Mr. Welch told Ms. Mims, who had recently divorced, that his wife was out of town and he suggested that they meet for a drink. Ms. Mims declined. Mr. Welch also kept telling Ms. Mims that he could not come to her house because of her children and because her mother lived next door, and that she could not come to his house. Mr. Welch told Ms. Mims that he was lonely. During the second telephone call, Ms. Mims told Mr. Welch that she had tape recorded the first conversation and that he should not call her again. Ms. Mims did not, in fact, make such a recording. Mr. Welch admitted telephoning Ms. Mims but indicated that he did so because he had heard that she had told someone that he was having an affair with Ms. Pridgeon. Mr. Welch stated that he called Ms. Mims to request that she come over to discuss her comments. This testimony was not credible. In addition to other problems with Mr. Welch's testimony, it is unreasonable to believe that Mr. Welch would not deal with comments by one employee about her boss' alleged affair with another employee by speaking to the employee in the office. It was an office matter affecting office relationships and should have been dealt with as such in the office. It is not reasonable to believe that Mr. Welch would ask a recently divorced female employee over to his home at night to discuss such a matter. The day following Mr. Welch's telephone calls to Ms. Mims, Mr. Welch spoke to Ms. Mims in the office: Mr. Welch asked Ms. Mims not to say anything about the telephone calls. When Ms. Mims mentioned the alleged recording, Mr. Welch became angry and made statements which led Ms. Mims to be concerned about her job. Ms. Mims could not, however, remember exactly what Mr. Welch had said that caused her concern about her job. In Mr. Welch's April 9, 1990, response to the Commission, he indicated he did not recall any conversation with Ms. Mims after the telephone calls to her. During the formal hearing, Mr. Welch denied that the meeting took place. The weight of the evidence proved that the telephone calls Mr. Welch made to Ms. Reams, Ms. Bush and Ms. Mims described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Gifts. During the Christmas season, Mr. Welch gave gifts to his employees. These gifts were usually purchased and wrapped by Mr. Welch's wife. One Christmas Mr. Welch also gave small bottles of cologne, which he had been given during a Clerk's convention, to Ms. Bush and to Ms. Pridgeon. Mr. Welch also sent flowers to Ms. Bush both before and after she left employment with the Clerk's office. Mr. Welch sent flowers to Ms. Bush on her birthday and Secretaries' Day after she left the Clerk's office. Mr. Welch did not send flowers to any other current or former employees of the Clerk's office. The weight of the evidence proved that Mr. Welch's actions in giving Ms. Bush gifts as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. After-Hour Visit. On one occasion, Mr. Welch went to Ms. Reams' home at approximately 10:30 p.m. Mr. Welch blew the horn of his automobile and, when Ms. Reams came out, he asked her to turn off her porch light, which she did. Mr. Welch was on his way home from a club meeting when he stopped at Ms. Reams' house. Mr. Welch admitted that he stopped to see Ms. Reams and testified that he stopped to finish a conversation concerning her personal problem which they had started at the office, but had not had time to finish. Mr. Welch was apparently drunk, and was vulgar and rambling. At some point he got on the hood of his automobile. Mr. Welch did not make any advances to Ms. Reams or request anything from her during the visit to her house. Following this visit, which took place during the time that he was telephoning Ms. Reams at home at night, Mr. Welch quit calling Ms. Reams. The weight of the evidence proved that Mr. Welch's actions in visiting Ms. Reams as described, supra, was intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. Mr. Welch's Pass at Ms. Bush. There was an office in the courthouse for a circuit court judge who came to Madison periodically. This office was empty, however, much of the time. The circuit judge's office was used by Mr. Welch for private meetings and conversations from time to time. Clerk's office employees met with Mr. Welch in the circuit judge's office at times. Some time during the later part of 1985 or early 1986, Mr. Welch asked to see Ms. Bush in the circuit judge's office and Ms. Bush complied with Mr. Welch's request. After Ms. Bush entered the office, Mr. Welch grabbed Ms. Bush, attempted to kiss her and hold her in his arms and expressed "his strong feelings for her". Ms. Bush pulled away from Mr. Welch told Mr. Welch that he was confusing his dependence on her as an employee with love, and left. As a result of Mr. Welch's actions toward Ms. Bush in the circuit judge's office, Ms. Bush decided she had to find employment elsewhere. Ms. Bush resigned her position with the Clerk's office approximately six months after the incident. When Ms. Bush left employment with the Clerk's office she had been with the Clerk's office for almost ten years, the minimum period of time necessary to have any vested retirement benefits. By leaving when she did, she did not accrue any vested retirement benefits for her service with the State of Florida. Mr. Welch's actions with Ms. Bush were sexually motivated and intended to benefit himself. I. Accidental or Intentional Inappropriate Touching? The City of Madison is a relatively rural community with a relatively small population. It is the type of community where most people were born and raised in the community and, consequently, everybody knows everybody else. As a consequence of the nature of the community, it is not uncommon for many people, when they meet, to greet each other with a hand shake, a pat of the back or shoulder, or a hug. Mr. Welch has lived in Madison essentially all of his life. Additionally, he has been a "public figure" for a number of years. Consequently, Mr. Welch knows most of the residents of Madison. As a lifelong resident of Madison, it is common practice for Mr. Welch to greet people with a hand shake, a pat on the back or shoulder, or a hug. It was also common for Mr. Welch to pat his employees on the back or shoulder or to occasionally give them a hug or put his arm around an employee. Mr. Welch would also greet the employee or comment on their good work. A number of employees of the Clerk's office and other residents of Madison indicated that Mr. Welch had touched them in the manner described in findings of fact 82 and 83. They all indicated that they were not offended by such behavior and that they believed that there was nothing improper in the manner in which Mr. Welch had acted toward them or toward other persons they observed Mr. Welch with. Other employees and persons who observed Mr. Welch from time to time in the Clerk's office and elsewhere indicated that Mr. Welch never touched them and that they had never observed any improper touching by Mr. Welch. The evidence also proved that due to the fact that the Clerk's offices were cramped, it was not unusual for Mr. Welch and other employees to touch each other when they passed. There were times when it was almost impossible for one person to pass another person in the Clerk's office and not touch. When this occurred, however, it was the usual practice for the person attempting to pass to say "excuse me" or to otherwise let the person being passed or touched know that the person attempting to pass was going to pass and/or touch them. It was also common for a person to ask another to move so that he or she could pass. There were also times when employees of the Clerk's office were so busy that they would bump against another employee or touch another employee accidentally, and nothing would be said. Despite the foregoing, the weight of the evidence proved that Mr. Welch inappropriately touched employees of the Clerk's office. Mr. Welch was described by one former employee of the Clerk's office as a "toucher." This characterization of Mr. Welch is attributable, in part, to the manner in which some people in Madison greet and react to each other. The characterization of Mr. Welch as a "toucher", however, is also attributable to Mr. Welch's tendency to brush against or touch some female employees in an inappropriate sexual manner. Mr. Welch would at times pass some female employees (Ms. Bush, Ms. Sims, Ms. Dickinson and Ms. Mims) and touch his body to theirs in an inappropriate manner. It is, of course, often difficult to distinguish between a greeting, an innocent bump or touch and one that is sexually motivated. All of the witnesses who felt Mr. Welch touched them inappropriately and for sexual gratification had difficulty articulating how they distinguished an inappropriate touch from an appropriate touch. It has been concluded that Mr. Welch, at times, touched female employees inappropriately for sexual gratification largely based upon the following: The incidents described as inappropriate touching usually occurred when others were not present. Mr. Welch would not say "excuse me" or otherwise acknowledge that he had touched the employee. There were several female employees who concluded that they had been inappropriately touched. The degree to which Mr. Welch sometimes touched an employee was more than just a "bump" or just brushing past the employee. There were times when Mr. Welch's body, from his lower chest to his upper thighs, would touch an employee's body from her lower chest to her upper thighs. Sometimes Mr. Welch would be facing the employee's back and sometimes Mr. Welch and the employee would be facing each other when he would pass them. Mr. Welch's hands would brush Ms. Sims' "backside" when he passed her. There were times when Mr. Welch could have passed without touching and there were times when he should have asked the employee he passed to move to let him pass. On at least one occasion, Mr. Welch put his arm around a female employee, Ms. Sims, when she came out of the downstairs restroom. Mr. Welch said nothing to Ms. Sims. This type of contact is not consistent with the custom of people in Madison and was inappropriate. On another occasion, Mr. Welch walked up behind Ms. Carter and "goosed" or poked her below both of her armpits. Ms. Carter told Mr. Welch to "get his mind out of the gutter" and "don't do that again." While riding to the airport in Tallahassee, Florida, in Ms. Sims' small pickup truck, Mr. Welch put his hand on Ms. Sims' thigh. The weight of the evidence proved that Mr. Welch's actions in touching Ms. Bush, Ms. Dickinson, Ms. Sims and Ms. Carter as described, supra, were intended by Mr. Welch to secure a special privilege or benefit for himself: sexual gratification and favors. III. Mr. Welch's Involvement with Ms. Pridgeon. The Nature of Mr. Welch's Relationship with Ms. Pridgeon. Ms. Pridgeon was physically abused by her husband during the time that she worked at the Clerk's office. Mr. Welch and the other employees of the Clerk's office were aware of this problem. Mr. Welch was considerate of Ms. Pridgeon's situation and attempted to help her. Additionally, Mr. Welch and Ms. Pridgeon were paramours. This finding is based upon statements that Mr. Welch made to Ms. Reams (finding of fact 53) and the following incident: Ms. Sims went downstairs to the area where the downstairs restroom was located one day during office hours. Ms. Sims saw Mr. Welch and Ms. Pridgeon kissing and embracing. The meaning of Mr. Welch's admissions to Ms. Reams about his relationship with Ms. Pridgeon and the incident witnessed by Ms. Sims were explained and supplemented, at least in part, by statements which, although hearsay, Ms. Pridgeon made to Ms. Williams, Ms. Dickinson, Ms. Bush and Ms. Mims. See Section 120.58(1)(a), Florida Statutes. Ms. Pridgeon's Traffic Citation. On June 14, 1985, at approximately 6:40 p.m., Ms. Pridgeon was stopped by Florida Highway Patrol Trooper Rick Hurst. Trooper Hurst issued a Florida Uniform Traffic Citation to Ms. Pridgeon for travelling 91 MPH in a 55 MPH speed zone. Mr. Welch's home may be reached by travelling on Highway 6 in Madison County or another route not relevant to this proceeding. When stopped for speeding on June 14, 1985, Ms. Pridgeon was travelling on Highway 6 toward Madison and away from Mr. Welch's home. When stopped, Ms. Pridgeon tried to talk Trooper Hurst out of issuing the citation. When this failed, Ms. Pridgeon attempted to get Trooper Hurst to issue the citation inside the Madison city limits and not where he had stopped her. Trooper Hurst refused. Later during the evening on June 14, 1985, Ms. Pridgeon telephoned Mr. Welch's house. Mr. Welch had just come into the house and was taking a shower. Ms. Welch answered the telephone and took a message. Mr. Welch later returned Ms. Pridgeon's call. Ms. Pridgeon informed Mr. Welch that she had been issued a traffic citation on Highway 6. Mr. Welch told Ms. Pridgeon that he would go see the county court judge about the ticket to see what could be done. Both Ms. Pridgeon and Mr. Welch were concerned that the fact that she had been issued a citation would be printed in the local newspaper and Ms. Pridgeon's husband would see it and physically abuse her. Because of Mr. Welch's personal relationship with Ms. Pridgeon, it is concluded that Mr. Welch was also concerned that people would speculate, as they ultimately did, that Ms. Pridgeon had been coming from his house when she was stopped. Mr. Welch also wanted to assist Ms. Pridgeon simply because people who have a personal relationship try to help each other out in times of need. Finally, Mr. Welch wished to assist Ms. Pridgeon, if for no other reason, than because she was one of his employees. Following his telephone conversation with Ms. Pridgeon, Mr. Welch telephoned Ms. James. Ms. James was the deputy clerk at that time that handled traffic citation cases filed with the Clerk's office. Mr. Welch told Ms. James that Ms. Pridgeon had been issued a traffic citation and instructed her to look for the citation to come into the office. Mr. Welch told Ms. James that she was to do nothing with the citation when it came in except to notify him. When Ms. Pridgeon's traffic citation was filed in the Clerk's office, within a week or possibly two weeks after it was issued, Ms. James telephoned Mr. Welch and informed him. Mr. Welch instructed Ms. James to pull Ms. Pridgeon's citation out of the batch of citations that had been filed; that he would come get it. Ms. James put it in a blank envelope, referred to as a "shuck", and did not process it. Normally, traffic citations issued by the Florida Highway Patrol in Madison County were periodically filed in batches with the Clerk's office. Each citation was placed in an envelope referred to as a "shuck", was identified with a number and was "indexed" or recorded in the Clerk's office records. A separate book was kept to index or record traffic citations. Traffic citations indexed in the Clerk's office were reported in the local newspaper, thus disclosing the name of any person who was issued a citation. If a traffic citation was not indexed, there was no public record of the ticket in the Clerk's office and no way to determine in the Clerk's office that a citation had been issued. Eventually, after a traffic citation of the type issued to Ms. Pridgeon had been indexed, the person who received the citation would be required to appear before the county court judge and enter a plea. The county court judge ultimately rendered a decision regarding the citation which was recorded on the shuck. Eventually, the ultimate disposition of the citation was also noted on the shuck. By instructing Ms. James not to index Ms. Pridgeon's citation, Mr. Welch failed to follow the established procedure for handling traffic citations in Madison County. Mr. Welch failed to follow the established procedures for the reasons set out in finding of fact 101. Therefore, his failure to follow established procedures was inappropriate for a public officer such as Mr. Welch. After Ms. Pridgeon's traffic citation was filed in the Clerk's office, Mr. Welch went to see County Court Judge Wetzel Blair, a cousin of Ms. Pridgeon. Mr. Welch informed Judge Blair of the citation and asked him how she could be "helped" or "assisted." Judge Blair told Mr. Welch that he would allow Ms. Pridgeon to plead nolo contendere, attend driver's school and pay court costs. He also told Mr. Welch that he would reduce the speed to 79 MPH to reduce the "points" against her driver's license, continue the case for 6 months and, if she did not receive any additional citations, withhold adjudication. Mr. Welch also asked Judge Blair what could be done to prevent the newspaper from disclosing that Ms. Pridgeon had been issued a citation. Judge Blair told Mr. Welch that any such attempt would only make things worse; that it would move the story from the back of the newspaper to the front page. Judge Blair told Mr. Welch not to jeopardize his position over an employee's personal problems. Mr. Welch went to see Judge Blair on behalf of Ms. Pridgeon for the reasons set out in finding of fact 101. Other persons issued a traffic citation in Madison did not have the benefit of the Clerk speaking in private with the county court judge about the disposition of their citations. Mr. Welch's action was, therefore, inappropriate for a public officer such as Mr. Welch. Ms. Pridgeon did not enter a plea on the traffic citation and she did not immediately sign up for driver's school. Nor was the citation indexed immediately after the meeting between Judge Blair and Mr. Welch. About a week after Ms. James told Mr. Welch that the citation had arrived, Mr. Welch told her how Judge Blair had indicated he would handle the citation. Ms. James wrote on the shuck that she had put the citation in: 6-24-85 - hold for 6 months (12-24-85) per Judge Blair. If no other ticket rec'd w/h adj. There was a great deal of testimony and evidence concerning the use of the term "hold" on the shuck. That evidence was essentially irrelevant. At some time after the citation had been issued, Trooper Hurst came to the Clerk's office and asked Ms. Bush whether the citation he had issued to Ms. Pridgeon had been indexed. Ms. Bush checked the index book and was unable to find any record of the citation. After Trooper Hurst informed Ms. Bush about the citation and she was unable to find any record of it, she informed Judge Blair. Ms. Bush took this action because she believed that Mr. Welch and Ms. Pridgeon were romantically involved and, therefore, she was concerned about whether the citation was being handled properly. Judge Blair told Ms. Bush to wait and see if the citation showed up. This meeting probably took place in July, 1985. Judge Blair also believed that Mr. Welch and Ms. Pridgeon were romantically involved and, in light of the fact that Mr. Welch had approached him about helping Ms. Pridgeon, he also checked to see if the citation had been indexed. When he failed to find any record of the citation, he asked his secretary to look for it. Judge Blair's secretary also did not find any record of the citation. Judge Blair took his concerns to a circuit court judge. Judge Blair decided to continue to wait and see what happened. On approximately September 26, 1985, Ms. Bush confronted Mr. Welch and asked him where Ms. Pridgeon's citation was. Mr. Welch initially asked "what citation." Eventually, Mr. Welch pulled the citation from his desk drawer. He did not tell Ms. Bush that the citation had not been indexed because he was attempting to protect Ms. Pridgeon from her husband. Following this incident, Mr. Welch gave the citation to Ms. James and told her to index it. Ms. James indexed Ms. Pridgeon's citation on or about September 26, 1985, more than three months after it had been issued and only after Ms. Bush confronted Mr. Welch about it. Until the citation was indexed, there was no record of the citation to Ms. Pridgeon in the Clerk's office, Ms. Pridgeon had not entered a plea and Ms. Pridgeon had taken no action to pay court costs or sign up for driver's school. At some time after confronting Mr. Welch, Ms. Bush informed Judge Blair about the incident. Judge Blair spoke to the State Attorney's office about the matter and recorded a statement of his recollection of the events in the presence of Ms. Bush and Ms. James. On November 9, 1985, Ms. Pridgeon attended driver's school. She had to wait until November because that was the next time that the course was offered in Madison after the citation was finally indexed. On November 22, 1985, Ms. Pridgeon paid court costs for the citation. The citation was ultimately disposed of on December 24, 1985, in conformance with Judge Blair's sentence. Based upon the foregoing findings of fact, it is concluded Mr. Welch's treatment of Ms. Pridgeon's traffic citation was intended to secure a special privilege or benefit for himself: sexual gratification and favors. III. The Respondent's Attempts to Discredit His Accusers. General. The Respondent presented evidence intended to discredit the testimony of many of the witnesses who testified on behalf of the Advocate. The following facts were proved and considered in making all of the findings of fact in this case. These findings were not, however, sufficient to discredit the testimony and evidence which supports the findings of fact made, supra, in this Recommended Order: Ms. Bush made a comment in August, 1989, to Ms. Welch about coming back to work at the Clerk's office. The comment was an "offhand" remark not intended as a serious request to return to the Clerk's office. Ms. Sims, despite the incidents described in this Recommended Order she was involved in, assisted Mr. Welch in his campaign for re-election as Clerk in 1988 and sent him a congratulatory card after his re-election. Ms. Sims has known the Welch family all her life. Just as Ms. Pridgeon stayed in an abusive relationship for seventeen years, it is not unusual for people to do things in life which do not always seem to make sense to someone "on the outside looking in". Ms. Sims probably put up with the incidents she described because of family, work and community ties, until after Mr. Welch fired her. Once Mr. Welch fired Ms. Sims, she lost her reason for avoiding causing hard feelings, however. Mr. Poppell, a Madison County Commissioner, was involved in the decision of Ms. Mims to file the complaint against Mr. Welch with the Commission. Mr. Poppell spoke to other employees of the Clerk's office and asked them if they would also file a complaint. The evidence failed to prove that the facts which have been found in this Recommended Order are not true due to any involvement in the filing of the complaint by Mr. Poppell. The motives for the filing of the complaint in this case were essentially irrelevant. At issue is whether Mr. Welch violated the law and the weight of the evidence proved that he did regardless of why Ms. Mims filed her complaint and regardless of Mr. Poppell's involvement. Evidence concerning the fact that many of the employees did not confront Mr. Welch about his actions or ask him to stop some of his offensive conduct was also presented: It is true that very few of the employees who testified about inappropriate conduct by Mr. Welch ever questioned him about it. A few of them, however, did say something to him: Ms. Carter, for instance. Ms. Mims lied about the tape recording, jeopardizing her job, to stop Mr. Welch from telephoning her. Others handled the situation by joking about it. The failure to confront Mr. Welch is understandable, in part, because he was the "boss." He had the authority to determine whether they continued to have a job, their means of supporting themselves and their families. If they had told Mr. Welch that his conduct was not acceptable or that he should stop, they were not sure how he would react. Although it may be easy to decide what the right course of action a person should take may be, it is not always easy to actually take that action. Additionally, Mr. Welch's conduct was often subtle enough that the employees involved were probably not sure whether their perception of Mr. Welch's actions was correct. Most of the employees had known Mr. Welch and his family for years. Again, Madison is a small, close community. There was, therefore, a reluctance on the part of some employees to create "hard feelings", which ultimately have resulted anyway. Ms. Bush did take action to find other employment. Mr. Welch's pass at her was not subtle. Therefore, she immediately began to look for other employment and left even though she was close to having ten years of employment with the State. That it took her six months to leave after the incident was very reasonable and understandable in light of the fact that Madison is a relatively small community and in light of her apparent need, like most people, to have an income. By leaving when she did, Ms. Bush lost an opportunity to vest some retirement benefits. She obviously wanted out. Employees Who Were Terminated. The third time that Ms. Sims worked for the Clerk's office, she was fired by Mr. Welch while she was on probation, not too long after she had been hired. The evidence was inconclusive as to whether Mr. Welch was justified in firing Ms. Sims. More importantly, the evidence failed to prove that Ms. Sims' testimony was not credible. At best, the evidence proved that after Mr. Welch fired her, Ms. Sims had less reason to be concerned about creating "hard feelings." Ms. Mims was also fired by Mr. Welch: During the end of 1985 or early 1986, Ms. Mims' one-year old daughter broke her leg. Ms. Mims could not leave her at day-care and, therefore, she had to stay home with her daughter. While Ms. Mims was out of the office, several checks which she had written and cashed in the Clerk's office were returned for insufficient funds. The first check returned was never found. The weight of the evidence failed to prove what happened to it, however. The first returned checks discovered by Clerk's office personnel were received in early February, 1986. Ms. Ginn and Mr. Welch made several attempts to reach Ms. Mims over a period of, at most, seven working days. Ms. Mims was staying with a boyfriend and, therefore, the efforts to reach her were unsuccessful. Therefore, Mr. Welch telephoned Ms. Mims' mother and told her it was important that Ms. Mims contact him. On or about February 10, 1986, Mr. Welch telephoned the State Attorney, informed him that Ms. Mims had cashed checks in the Clerk's office which had been returned for insufficient funds and made a complaint against Ms. Mims. On February 13, 1986, an investigator for the State Attorney's office, Mr. Fisher, went to meet with Mr. Welch about the checks. While Mr. Fisher was meeting with Mr. Welch, Ms. Mims came to the office to see Mr. Welch. She met with Mr. Fisher, Mr. Welch and Ms. Ginn. Ms. Mims admitted that she had cashed the checks and made restitution of the amount of the checks ($165.00) that had been returned as of that date, including the missing check. She also told Mr. Welch that there were two other checks that would be returned. Ms. Mims ultimately also paid those checks. During the meeting with Mr. Fisher, Mr. Welch and Ms. Ginn, Ms. Mims asked what would happen if she made restitution. Mr. Fisher or Mr. Welch telephoned the State Attorney, Mr. Jerry Blair, to determine what action would be taken. Mr. Blair, because of a prior incident in the Clerk's office involving public funds and because of the fact that public funds were involved, indicated that he would have to prosecute the matter even if she made restitution. Ms. Mims was informed of this conversation. During the February 13, 1986, meeting Mr. Welch informed Ms. Mims that she was suspended. It was apparent to Ms. Mims that Mr. Welch intended to terminate her because of the returned checks. Ms. Mims was very upset and threatened to get even with Mr. Welch. Ms. Mims was informed that she was terminated by letter dated March 14, 1986. Ms. Mims ultimately pled guilty to several counts of violating Section 832.05(4), Florida Statutes, as a result of cashing the checks and was sentenced to six months of unsupervised probation. Adjudication was withheld. Ms. Mims had deposited a check in payment of child support from a former husband which would have been enough to pay the checks she had cashed with Clerk's office funds. The check she deposited was returned for insufficient funds, however, and therefore the checks she cashed in the Clerk's office were also returned for insufficient funds. Although Ms. Mims had threatened Mr. Welch during the February 13, 1986, meeting, she admitted in her deposition testimony that he had the right to fire her because of the incident with the checks. Regardless of Ms. Mims' motives for filing the complaint which instituted this proceeding, the weight of the evidence failed to prove that the charges against Mr. Welch were not true.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that the Respondent, Alfred Welch, violated Section 112.313(6), Florida Statutes, as alleged in Complaint No. 90-51. It is further RECOMMENDED that Mr. Welch be subjected to public censure and reprimand and that the Governor of the State of Florida suspend Mr. Welch from office as the Clerk of the Circuit Court of Madison County, Florida, for a period of at least sixty days. DONE and ENTERED this 10th day of December, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 10th day of December, 1991. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Lorence Bielby, Esquire Post Office Box 1838 Tallahassee, Florida 32302 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
The Issue The issues to be resolved in this proceeding concern whether the Respondent, P.A.T. Auto Transport, Inc., committed the violations alleged in the relevant Stop-Work Order and the Fourth Amended Order of Penalty Assessment, and, if so, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with the responsibility of enforcing the Workers' Compensation coverage requirements embodied in Section 440.107, Florida Statutes (2008), whereby Florida employers must secure the payment of workers' compensation insurance coverage and benefits for their employees. See § 440.107(3), Fla. Stat. The Respondent, P.A.T., is a corporation conducting a trucking business, headquartered in Pensacola, Florida. The Respondent's services include transporting motor vehicles using a fleet of some 61 highway tractors and associated auto transport trailers. Michelle Newcomer is an investigator employed by the Petitioner. Her duties include conducting inspections and investigations of businesses who may be workers' compensation employers, to determine if they are required to have workers' compensation coverage under Florida law, and the extent and compliance of that coverage. Ms. Newcomer conducted an inspection of the Respondent at 6732 Rambler Drive in Pensacola, Florida, on March 18, 2009. She determined that two companies, or businesses, operated at that address, the Respondent and MNT Enterprises (MNT). MNT had a workers' compensation policy covering its employees and was statutorily compliant. Ms. Newcomer also investigated the Respondent and learned that the principal stockholder, George Hedges, was exempt from coverage. She inquired about the status of the truck drivers working for the company and was told by Tracie Hedges that they were independent contractors. She was unable to witness any violations occurring at that time and concluded the investigation. Later, in April 2009, she received information that led her to believe that the Respondent's truck drivers were employees and not independent contractors. She had an opportunity to see a pay stub for a truck driver who had worked for the company who had been injured and had a workers' compensation issue. She noticed that the pay stub reflected that Federal Income Tax withholding had been deducted, along with various other deductions, such as Social Security and Medicare. She felt this might be indicative of an employee relationship, rather than the drivers being independent contractors. She returned to the Respondent's address later that month and issued a written Request for Production of Business Records to the Respondent and to an associated company called TK131. She issued a Stop-Work Order for the Respondent due to its purported failure to comply with workers' compensation coverage requirements for employees. The Respondent did provide the required business records. She reviewed the records provided to her and was able to ascertain that the Respondent employed more than four employees. Additionally, she learned that, although the Respondent, through a leasing arrangement for its office employees, had workers' compensation coverage for them, the 59 drivers and corporate officers did not appear to be covered by workers' compensation insurance. Thereafter, the Stop-Work Order was amended to include the purported failure to secure payment of workers' compensation coverage as required by Chapter 440, Florida Statutes. That resulted in a Stop-Work Order and Penalty Assessment. The Department also issued a Stop-Work Order and Penalty Assessment to DTS, LLC, which included the predecessor company, Darts Transport. The Stop-Work Order and Penalty Assessment issued to DTS was later revoked, however. The Department takes the position that the Respondent, P.A.T., paid its drivers through the entity known as "DTS", or directly with P.A.T. checks during the audit period, and that the number of drivers paid for their services was more than four employees and closer to 59 drivers for the 61 tractor-trailers owned by the Respondent. The Department does concede that a small number of the drivers were clearly owner-operators and no longer contends that they were employees. The Department thus contends that at no time pertinent hereto did the Respondent have a workers' compensation policy or an employee leasing arrangement in place by which workers' compensation coverage was provided for the drivers. The original Order of Penalty Assessment covered the period April 22, 2006, through April 22, 2009. The 4th Amended Order of Penalty Assessments for those dates, which is at issue in this case, also included a $108,000 fine for the Respondent's working in violation of a Stop-Work Order. The total fine assessed and sought by the Petitioner is $1,564,707.91. The Department maintains that the drivers working for the company are employees and therefore should have been covered with workers' compensation insurance, but the Respondent disputes that claim, asserting that the drivers are independent contractors and therefore do not need to be covered by workers' compensation insurance. The Petitioner maintains that office workers employed by the Respondent were required to be covered by workers' compensation insurance as well. The Respondent maintains that these were covered through coverage obtained from an employee leasing company, through an employee leasing program. The Department also maintains that three employees, as corporate officers, were not properly qualified to be exempt. The Respondent maintains that the required Exemption Request forms were properly delivered to the Department and therefore it complied with the law in obtaining exemptions from workers' compensation coverage. Finally, the Department maintains that certain named individuals were employees of the Respondent and should have been covered by workers' compensation coverage or insurance, but the Respondent maintains that these employees, who essentially performed incidental, non-recurring tasks for the Respondent, were not employees and did not have to be covered by such insurance. Moreover, the Respondent claims that it has a contingent liability insurance policy in place which served as a policy of workers' compensation insurance and for this reason it is compliant also. The parties agree that Florida Administrative Code Rule 69L-6.035 defines "payroll" as the basis for calculating a penalty. Payroll can include any of ten variations of payments from or through an employer to or on behalf of an employee. These include the payment of traditional wages and also bonuses, un-repaid loans to employees, expense reimbursements that are not documented on the employer's business records, payments binding an employer to a third party on behalf of an employee for services rendered by the employee, among others. Investigator Newcomer relied on Florida Administrative Code Rule 69L-6.035(1)(a) to define payroll for the office workers and truck drivers paid directly from the Respondent's account. The drivers were paid from the P.A.T. account from July 16, 2008, through April 22, 2009. Investigator Newcomer opined that the drivers' payroll prior to July 16, 2008, could not be included on the Penalty Worksheet based upon Rule 69L- 6.035(1)(a), but rather was based on Rule 69L-6.035(1)(i). Ms. Newcomer did not rely on Rule 69L.6.035(1)(b),(d),(e),(f),(h), or (j) to define P.A.T.'s payroll. The Department included payments to various child support enforcement agencies, made on behalf of drivers, on the Penalty Worksheet, by authority of Florida Administrative Code Rule 69L-6.035(1)(c), defined as payments made to a third party on behalf of the employer for services rendered to the employer by the employee. The Department also included as payroll on the Penalty Worksheet loans made to drivers, maintaining that these have not been repaid and should be deemed as part of payroll under Rule 69L-6.035(1)(g). There is no proof that this is the case, however, because neither Ms. Newcomer nor Ms. Hedges offered any evidence to establish that there is proof that some or all of the loans remained unpaid. The Petitioner, through the testimony of Investigator Newcomer, takes the position that payments made by P.A.T. to Darts Transports or DTS,LLC are properly included on the Penalty Worksheet by authority of Florida Administrative Code Rule 69L.- 6.035(1)(i). Those payments were made prior to July 16, 2008, before P.A.T. began making payments directly to drivers. The Rule provision in question, concerns payments made to an alleged non-compliant employer who has contracted with the customer, if the contract includes payment for labor and materials. If it is impossible to segregate the cost of materials from the employee payroll in such a contract, then under this Rule provision, 80 percent of the total contract price shall be presumed to be the employer's payroll, with regard to that customer and contract. The unrefuted evidence, however, establishes that the drivers in this situation were paid a flat 25 percent commission of the hauling fee charged by P.A.T., after deduction of the cost of fuel for the trucks. P.A.T.'s customers paid the fuel surcharge to P.A.T. There is no evidence that P.A.T. provided customers with any materials. Its business operation involves solely and simply the transportation of customer-owned vehicles. The Department also maintains that corporate officers Bradley Hedges and Gregory A. Hedges, as well as Teri Kimberly Forret, corporate officers of P.A.T., are non-exempt employees. It contends that under Rule 69L-6.035(2) their compensation constitutes "payroll," under the default formula in that Rule provision, for defining payroll to a corporate officer, if the ten factors under sub-section(1) of that Rule do not address the means of compensation received by those corporate officers. The quintessential question in this case, however, concerns whether the drivers are independent contractors or employees. If they are independent contractors, then there is no obligation on the part of the Respondent to ensure payment of workers' compensation benefits for them. This would mean that the Respondent cannot be adjudicated non-compliant by the Petitioner Department and payments to the drivers would not constitute payroll and would be stricken from the Penalty Worksheet calculation. Independent contractor status is defined in Section 440.02(15)(d)1.a.(I)-(VI) and b.(I)-(VII), Florida Statutes (2008). Under the former statutory provision, four of the six criteria must be met for independent contractor status to be established. Under the latter provision, any of the seven conditions named in that provision may be satisfied and independent contractor status thus established. With regard to the criteria in Section 440.02(15)(d)1.a.(I)-(VI), the preponderant weight of the evidence shows that some of the truck drivers are independent contractors with federal employer identification numbers and some are sole proprietors who are therefore not required to obtain a federal employer identification number under pertinent state or federal regulations. § 440.02(15)(d)1.a.(II), Fla. Stat. The evidence also shows, for purposes of Subsection(15)(d)1a.(V) of this statutory provision, that the drivers are permitted to work or perform work for other entities or companies needing their services, in addition to the Respondent, at the election of the driver. There is no showing that an employment application must be completed to perform such tasks for other unrelated entities. The drivers must use the unrelated company's truck for work assigned to them by such other companies or entities. They are not permitted to use P.A.T. trucks for non-P.A.T. transportation work (driving) they have agreed to perform. Moreover, all the drivers are compensated for completion of a task or set of tasks according to a flat 25 percent commission of the hauling charge imposed by P.A.T. There is no evidence that clearly shows a contractual agreement which expressly states that an employment relationship exists between the drivers and P.A.T. Even if the status and operations of the drivers referenced above does not meet four of the criteria listed in sub-subparagraph a. Subsection 440.02(d)1., they may still be presumed to be independent contractors and not employees, based upon a full consideration of the nature of their individual situation with regard to satisfying any of the conditions or criteria referenced in Section 440.02(15)(d)1.b.(I)-(VII). With regard to the first criteria under that provision, the drivers perform the services of driving for a specific amount of money in the form of a 25 percent commission. They control a substantial amount of the means of performing the services or work. The driver is asked to deliver vehicles from point A to point B for that commission. He gets paid that commission whether it takes one day or six days to accomplish the task. The driver determines the route to be driven. The driver, within the limits of the Department of Transportation rules, determines when to begin driving and when to pull over to sleep. The driver is free to decline to accept a hauling job. There is no detrimental action taken against a driver for declining to accept a given hauling job, unless it happens too frequently for satisfactory conduct of P.A.T.'s operations. The driver must provide the incidental tools and equipment, such as binding chains and maintenance tools to operate the truck and securely transport the load of vehicles he is required to transport. The driver is responsible for maintaining current driver's license qualifications and DOT physical examination requirements. The driver is responsible for paying for any necessary badges authorizing entry at maritime ports, a frequent occurrence in the transportation of foreign-manufactured vehicles. The Respondent, P.A.T., either owns or leases the trucks used by the drivers and pays for the insurance policies for the trucks. P.A.T. also pays for routine maintenance of the truck. If the driver causes damage of any sort to the truck, the driver must bear the financial responsibility for repair of the damage. The driver must also bear responsibility for any damage to the vehicles being transported on the trucks. It can thus be seen that both the Respondent and the drivers control a substantial portion, respectively, of the means of performing the services or work. Clearly, the unrefuted evidence shows that the drivers receive compensation for the work or services performed (driving services, incidental loading and unloading and protection responsibilities, with regard to the vehicular cargo), for a commission or per job basis and not on any other basis. Therefore criterion number IV, cited last above, is clearly met. Concerning criterion (II) under the last-referenced provision cited above, the drivers incur expenses for costs of their commercial driver's license, repair costs for any vehicle damage to the truck or to the vehicles which are being transported by the truck; any DOT fines incurred by the drivers; any badge expenses, as port entry and exit fees, must be borne by the drivers; lodging and meal expenses on the road during a haul must be borne by the drivers, without reimbursement. Concerning criterion (III), the driver is responsible for the satisfactory completion of the work or services that he or she agrees to perform, in the operational sense, in that the driver will not be paid if the delivery of the vehicles ordered to be transported is not satisfactorily accomplished. The privity of contract, however, for a given hauling job runs between the customer and P.A.T., the Respondent, who the customer actually contracts with to have the vehicles transported. The drivers, for purposes of criteria (V), (VI), (VII), of the last-referenced statutory provision, as established by the unrefuted testimony of Ms. Hedges, stand to realize a profit, or suffer a loss, in connection with performing the transportation driving services. They have continuing or recurring business liabilities or obligations aside from the expense of owning or leasing the truck, insuring the truck, or the fuel expense which they do not bear. They do, however, have recurring or continuing business liabilities or obligations which have a direct effect on whether they realize any net gain from a commission on a given hauling job. The success or failure of their business, even as sole proprietors, depends on the relationship of their receipts, under their 25 percent commission arrangement, and their expenditures for each hauling job for which they earn that commission. Drivers often complain of losing money due to vehicle repair bills, fines, towing charges, etc. Additionally, as referenced above, although when transporting loads for P.A.T., the drivers must use P.A.T. owned or leased trucks, the drivers are free, under their arrangement, to engage in hauling for other companies or customers, if they are not currently engaged in the middle of a hauling job for P.A.T. They may do so for other companies using other trucks, so long as they do not engage in such transportation services for other entities with P.A.T.'s truck. This factual arrangement tends to also militate in favor of the drivers not being employees. Many of the drivers have the standard federal tax withholdings deducted from their commission payments, as well as, in some cases, court-ordered child support payments. While this might be deemed to militate in favor of an employer/employee relationship, the unrefuted testimony of Ms. Hedges establishes that this is a service that drivers have come to P.A.T.'s management and requested, because in view of their many hours and days spent on the road, and for other reasons, involving their business management abilities, it is an assistance to them to have the tax liabilities simply withheld from their commission payments. This helps to avoid personal difficulties involving arrearages to the Internal Revenue Service. Status of Non-Driver P.A.T. Workers and Corporate Officers Persuasive testimony offered by Tracie Hedges, established that Regina Davis, Robin Hand, Stanley Warren, William Bertelsen, Cecil Hannah, Chipley Atkinson, Kristene Viverios, Katherine Flores, Laura Dunn, Amber Taylor, Amy Murphy, and Ms. Hedges herself, are office workers of P.A.T. They are covered by a policy of workers' compensation insurance through AES Leasing, a worker leasing company. Apparently the Petitioner no longer disputes this. Ms. Hedges reviewed, in her testimony, the final Penalty Worksheet concerning the status of various named persons who the Petitioner contends were employees, not covered by workers' compensation coverage. Ms. Hedges established with persuasive testimony that Arthur Nicolas was not a P.A.T. employee, but did some improvements on the office building (i.e. in the nature of carpentry). Alex Sibbach and Witt Davis did not ever work as employees for P.A.T. They may have performed some yard work or sold some equipment to P.A.T., but were never employees. She also established that Richard Burrson and Robert Marra were dump truck drivers for a company by the name of MNT Enterprises and had never been P.A.T. employees. Bradley and Gregory A. Hedges and Kimberly Forret are officers of P.A.T., or were at times pertinent to this case. The Petitioner contends that they had not established an exemption from the requirement of being covered under a policy of workers' compensation insurance. This is because of the Petitioner's contention that no corporate officer exemption had been filed or made effective. Bradley Hedges and Gregory A. Hedges are children of owners Greg and Tracie Hedges. Kimberly Forret is Tracie Hedges' sister. Ms. Forret is an office worker at P.A.T. and both Bradley and Gregory A. Hedges work at P.A.T. on a part-time basis while attending school. Ms. Hedges completed exemption forms for all three of them and delivered them to Investigator Newcomer's office on Burgess Road in Pensacola, Florida. Investigator Newcomer took the position that the exemptions for these people had not been established or filed based on her examination of agency computer records. The computer program or site failed to establish to her that the three individuals in question had established exemptions. Exemption status is triggered by compliance with Section 440.05, Florida Statutes (2008).1/ Tracie Hedges established with persuasive testimony that the exemption applications for the named three officers had been hand-delivered to the Burgess Road office of the Department of Financial Services. Janice Evers is a staff worker at that office. She testified that her research could neither confirm nor deny that the exemption applications were delivered to her office, but acknowledges their receipt by the Department. It must be concluded that the applications were delivered to the office on Burgess Road but were never forwarded to the Tallahassee office by Ms. Newcomer's or Ms.' Evers staff. Investigator Newcomer's business address is 610 East Burgess Road in Pensacola, the location where Ms. Hedges testified that the exemption applications were delivered. When the Department made a Discovery Request for Production of the Business Records of the Respondent, it required that those records be produced at that same business address in Pensacola, Florida. It is thus "an office of the Department" for purposes of Section 440.05(c), Florida Statutes (2008). Ms. Hedges established that the exemption applications were delivered during the 2005 calendar year although she was unable to provide an exact date of delivery. Ms. Evers acknowledges that fact in her testimony. The Stop-Work Order at issue in this case by statute can only date back as early as April 22, 2006. Even if the applications were delivered on December 31, 2005, the three officers in question would be exempt from workers' compensation coverage requirements prior to April 22, 2006, when the time period, or audit period, related to the Stop-Work Order began. It is determined that at least by January 30, 2006, exemptions had been established, by delivery at least 30 days prior thereto, for Bradley Hedges, Gregory Hedges, and Terri Kimberly Forret. It is found that the exemptions were shown by persuasive evidence to have been delivered during the 2005 calendar year. Inasmuch as they were "received" by the Department in 2005, then they would have become effective, by operation of law, on or before January 30, 2006, well before the effective date of the Penalty Assessment of April 22, 2006.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, dismissing the Stop-Work Order and Fourth Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 29th day of January, 2010.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner, Jerry McCoy, is an African American and is a member of a class protected by Chapter 760, Florida Statutes. Petitioner worked as a tanker truck driver for Florida Rock from 1980 until October, 1993. During his employment, he was assigned to Florida Rock's terminal in Panama City, Florida. Respondent, Florida Rock & Tank Lines, Inc., is a transportation company engaged in the hauling of liquid and dry bulk commodities throughout the United States. Respondent transports gasoline, diesel fuel, asphalt, chemicals and other hazardous and corrosive materials. Respondent is an employer within the meaning of Section 760.02(7), Florida Statutes. Petitioner, during his 13-year employment with Florida Rock, was generally considered a good truck driver. Over the years, Petitioner received several compliments from customers, safety bonuses and emblems, and a set of his and her watches after 10 years of maintaining a good safety record. On the other hand, Petitioner also received several customer complaints, committed some safety violations, and was banned from two customers' terminals. The trucking industry is heavily regulated. As such, Respondent must obey federal, state, county and city traffic, and transportation laws. In addition, Respondent must follow federal and state environmental laws and regulations because it transports toxic and hazardous substances. The transportation and environmental laws and regulations are strictly enforced. Minor violations can result in substantial penalties. Respondent or the driver, or both, can be fined for violations of any of these laws. To ensure compliance with the federal, state, county, and city laws, and to satisfy requirements of its customers, Respondent established a safety program. Respondent's safety policies were developed as a result of experience in tank truck transportation and, when followed by drivers, have resulted in safe loading, transportation, and unloading of products that Respondent transports. To enforce the safety program, Respondent adopted a points system. Under the points system, a driver is assessed points for preventable violations of a safety policy or procedure. A driver who accumulates 24 points within one year is automatically terminated. On a driver's anniversary date, all points assessed during the previous year are removed from the driver's record and the driver begins the year with a clean company driving record. The rules, policies, and procedures of the safety program are contained in the driver's safety manual. All drivers receive a copy of the safety manual when hired. All drivers also receive safety training before being allowed to operate a truck transporting hazardous materials. In addition, to maintain driver awareness of safety rules and regulations, Respondent conducts monthly safety meetings at each terminal. The meetings are conducted by the terminal manager or safety supervisor, or both, and consist of a review of safety rules, policies, procedures, and equipment and recent changes in relevant laws. The safety program is administered by the safety department of Respondent. Luc Cleyman, Director of Safety, directs the daily operations of the safety department. When a spill, mixture, or other violation of the safety program occurs, the driver's terminal manager initiates a review of the incident to determine whether it was preventable or non-preventable. If the terminal manager determines that the violation was preventable, the driver is assessed points and/or subjected to other discipline based on the type and severity of the violation. A driver is not assessed points for a non- preventable violation of safety rules and procedures. In certain situations, Mr. Cleyman may instruct the terminal manager to assess a number of points greater or less than the amount specified in the safety manual, and to administer further disciplinary action for safety violations. Under the safety program, management has the authority to administer further disciplinary action for a safety violation, if in their opinion it is warranted. In addition, management has the authority to impose less discipline than that which is set forth in the safety manual. The safety department reviews all citations issued to verify that the correct number of points was assessed. An employee's race is not referenced in the files maintained by the safety department. Consequently, in disciplinary actions, management does not know the race of an employee unless the individual in management knows that particular employee. In this case, unlike most terminal managers, Nancy Dinnes, the terminal manager at the Panama City Terminal, always consulted with the safety department before her initial assessment of points against a driver for a safety violation. Respondent's safety program includes an appeal procedure by which a driver may appeal the determination that an incident was preventable and/or the assessment of points. The safety manual provides: The driver has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the driver receives his/her notification. Once the appeal is received in the Safety Office, the incident facts will be reviewed by the Accident Review committee and/or the Violation Review Committee. Each committee will be comprised of the Vice President, Division Vice President, and the Director of Safety. The Committee's decision regarding work- related injury claims and spillages, mixtures, and contaminations will be final in all cases. In the event a driver does not agree with the committee's decision regarding a traffic accident, then he/she must submit, in writing, his/her disfavor to the Safety Department within ten (10) days after his/her receipt of the committee's decision. The accident facts will then be submitted to the National Safety Council Accident Review Committee for their review and decision. Their determination will be final in all cases. To encourage drivers to follow the safety program's policies and procedures, Respondent pays substantial quarterly and annual safety bonuses to eligible drivers. An eligible driver receives a quarterly safety bonus of four percent of his previous quarter's earnings and an annual safety bonus of two percent of his previous annual earnings. A driver is eligible to receive a quarterly safety bonus unless he or she is assessed six or more points during the quarter. A driver who accumulates 21 or more points during the year is not eligible to receive an annual safety bonus. Quarterly bonuses are paid in the month following the end of the quarter. Annual safety bonuses are paid in January of the following year. The amount of quarterly and annual safety bonuses is substantial. Drivers always know when they are due a bonus and whether that bonus has been paid. If a driver does not receive a quarterly or annual safety bonus he or she has a right of appeal. The safety manual provides: It is Florida Rock and Tank Lines, Inc.'s desire to pay all earned Quarterly and Annual Safety Bonuses. Any driver that does not qualify for the quarterly or annual bonus has the right of appeal, without prejudice. The appeal must be made to the Safety Department, in writing, within ten working days after the quarter in question has ended or the year in question has ended. Once the appeal is received in the Safety Office, the case will be reviewed by the Bonus Review Committee. The Bonus Review Committee consists of the Vice President, Division Vice President, and Director of Safety. Their findings and recommendations will be final. Petitioner was hired as a driver of tractor-trailer trucks at Respondent's Panama City Terminal on February 28, 1980. His duties included loading petroleum products at distribution terminals and transporting them to gas stations and other facilities in the southeastern part of the United States where he would unload the product into storage tanks. Petitioner was aware of the company's safety policies and procedures. In particular Petitioner was aware of the safety policies and procedures involved in this action. On April 13, 1993, Petitioner delivered resin, a very thick material, to the Georgia-Pacific facility in Albany, Georgia. The hose used for unloading resin is two inches in diameter. The hose was in bad shape. It's end blew off while Petitioner was pumping resin into the storage tank. A spill, which is a potential violation of the company's safety policy, occurred. The violation carries an assessment of twelve points. Petitioner brought the failed hose back to the terminal and showed it to Nancy Dinnes. Upon investigation, Mr. Cleyman was told by a representative of Georgia-Pacific that Petitioner was pumping the resin too fast and blew the end of the hose off. The same Georgia-Pacific representative also complimented Petitioner for his help in containing and cleaning up the spill. Both Ms. Dinnes and Mr. Cleyman were of the opinion that hoses did not fail unless Petitioner was forcing too much product into the hose by pumping the product too fast. However, both conceded that Petitioner's claim that the hose failed while he was properly unloading the resin could have occurred. Both gave Petitioner the benefit of the doubt. Therefore, no points were assessed against Petitioner since the spill was deemed unpreventable due to the unpredicted failure of the hose. On April 28, 1993, Petitioner was dispatched to deliver ethanol no-lead regular fuel to Sunshine Jr. Store No. 28 in Springfield, Florida. When he arrived at the store, Petitioner testified that he was unable to determine into which tank to dispense the ethanol unleaded regular fuel because the storage tanks were not properly marked for ethanol fuel. Likewise, the pumps were not marked for ethanol fuel because the store had not sold ethanol fuel for several months. There were separate storage tanks marked for regular unleaded fuel, mid- grade fuel and premium fuel. Because he was unable to determine the correct tank into which to drop his load, he asked the store manager to identify the correct tank. The store manager did not know and called Sunshine Jr.'s corporate offices. After the store manager contacted someone at the corporate office, the store manager told Petitioner to unload the no-lead regular fuel into the premium fuel tank. Without calling the terminal, Petitioner unloaded regular gasoline in with premium gasoline causing a mixture of the two fuels and downgrading the premium fuel to a lesser octane fuel. Petitioner did not draw a diagram of the storage tanks with their markings on the Bill of Lading for the delivery. In instances where the storage tanks are not clearly marked, a driver is required to diagram the location of the storage tanks and the type product each contains so that the information will be on record at the terminal. Petitioner admits that he was aware of the requirement of a diagram under such circumstances. His failure to diagram the storage tanks at Sunshine, Jr. Store No. 28 demonstrates that Petitioner was not confused by the markings on the storage tanks. Indeed he had been disciplined for unloading fuel into the wrong storage tank the previous year at Rice's Grocery. The mixture resulted in the loss of over 1,500 gallons of fuel and caused a hazardous situation. Eventually, the fuel was removed and transported to another location. Because of the dangers to the public from a mixture of hazardous materials and the substantial penalties resulting from such a violation of environmental laws and regulations pertaining to the transportation of petroleum products, Respondent's safety program includes a policy imposing 12 points, or further discipline up to discharge, for preventable mixtures of fuel and other hazardous materials. Respondent's load/unload procedures in the driver's safety manual require a driver before unloading to: Check the fill pipe identifications to be sure they are labeled properly and indicate the same product you intend to unload. Do not depend on identification by others. If fill pipes are not properly identified and you are unable to personally identify the contents of the tank, call your terminal for instructions. Failure to do so may endanger lives, property and the environment. Thus, a driver who cannot determine the correct tank in which to unload may not rely on others for identification of the proper storage tank, but must contact the terminal manager for instructions. A driver who contacts the terminal for instructions does not violate safety rules and procedures if a mixture results. As indicated, Petitioner did not call the terminal for instructions. Petitioner's very confusing testimony to the contrary is not credible. Petitioner admits the above procedure is correct. On April 29, 1993, the day after Petitioner's delivery, Sunshine Jr., Stores contacted terminal manager Dinnes to inform her that Petitioner had unloaded ethanol unleaded fuel into the premium fuel storage tank causing a mixture of the two fuels. Ms. Dinnes investigated the report. As part of her investigation, Respondent sent Fernando Berrios, mechanic, to the site to conduct a visual inspection of the storage tanks. Mr. Berrios found that the tanks were properly marked. Additionally, a diagram identifying the layout of the store's storage tanks with their markings was displayed in the store's window. Mr. Berrios drew a diagram showing the layout of the storage tanks with their markings at Sunshine Jr. Store No. 28 on the face of the Truck Bill of Lading pursuant to which Petitioner had delivered the fuel. After her investigation, Ms. Dinnes contacted the safety department and informed Mr. Cleyman that Sunshine Jr. Stores had reported a mixture and to discuss the appropriate discipline. Mr. Cleyman and Ms. Dinnes determined that Petitioner had failed to follow written company procedures pertaining to the unloading of products and mixed two different fuels together by unloading one fuel into the incorrect storage tank. Specifically, they concluded that Petitioner failed to follow written company safety procedures requiring a driver to contact the terminal if the driver is uncertain about which storage tank to unload into or the storage tanks are not properly marked and deliberately mixing two different grades of gasoline together. The mixture was clearly preventable. The points schedule in the safety manual provided that a driver who mixes product should receive twelve points. Accordingly, Mr. Cleyman instructed Ms. Dinnes to assess 12 points against Petitioner's driving record in accordance with the schedule contained in the safety manual. As a result of this violation, Petitioner did not receive his quarterly safety bonus. Petitioner did not appeal the assessment of points on his record or the disqualification for a quarterly safety bonus. Petitioner's claim that he did not receive the Sunshine, Jr. citation is not credible. Moreover, this fact is irrelevant since there was no evidence that the incident was contrived or that Petitioner was harmed if he had not received the Sunshine, Jr. citation. Petitioner admits that contacting the terminal manager is the procedure he should have followed. He did not follow that procedure. Petitioner, also admits he mixed two different grades of fuel. On October 6, 1993, Petitioner delivered diesel fuel to Diamond Sand Company at Mossy Head, Florida. Petitioner returned to the terminal with 510 gallons of diesel fuel in his trailer. Petitioner did not notify the terminal of the left- over fuel. The next day, the tanker trailer containing the diesel fuel was assigned to another driver, David Wood (white), who loaded gasoline into the tank containing the diesel fuel resulting in a mixture of petroleum products. Admittedly, Wood violated Company safety policy by failing to check his trailer for fuel prior to loading it. However, relevant to Petitioner, Respondent's safety policy also required Petitioner to verify that all product had been unloaded from his tanker. A tanker like the one involved here unloads from the bottom of the compartment. Even if the product is not being pumped, gravity causes the product to flow out of the tanker. To determine whether product remains in a tank after unloading, a driver is trained not to open the trailer dome lids, but to open the valve of a tank slightly and to drain the tank's contents into a bucket. If the tank is empty, little or no product will drain into the bucket. If the tank contains product, it will continue to drain into the bucket and the driver will have to close the tank's valve to cut-off the flow. The process is known as the bucket test. If the tank is not empty, the driver is required to contact the terminal to obtain further instructions regarding the disposal of the remaining product. The bucket test is not part of a driver's pre- or post-inspection. The pre-or post-inspection is a term of art which refers to a particular type of DOT required inspection. Petitioner testified that he performed the bucket test, drained the diesel fuel in a bucket until the flow stopped. He gave the fuel to a man in charge of unloading to pour into the storage tank. Petitioner also testified that a man on top of the tanker told him the compartment was empty. Petitioner did not reference this other man in his appeal letter or his FCHR affidavit. Ms. Dinnes did not recall Petitioner telling her about the man on top of the tanker. The safety manual provides that a driver must always call [the terminal] for instructions when a customer cannot take all of the load or does not want all of the load the customer has ordered and owns. Respondent instituted this policy because an extremely hazardous situation is created when petroleum products are stored in a tanker trailer at the terminal without the implementation of appropriate safety precautions. In addition, management needs to be informed about the presence of the product in a tanker trailer, so the next driver using the tanker can be informed to minimize the chance of a mixture. On October 7, 1993, during loading, Mr. Wood discovered that the tank he was loading gasoline into was not empty when the pump cut-off before depositing the amount of gasoline he had entered into the system. He immediately contacted the terminal manager, Ms. Dinnes, to report the mixture. Ms. Dinnes was also contacted by D & H Oil Company and informed the customer did not receive all of the fuel it had ordered. Ms. Dinnes contacted the safety department and informed Mr. Cleyman of the facts and circumstances surrounding the incident. Petitioner failed to notify the terminal that he did not unload 510 gallons of diesel fuel at Mossy Head, Florida. If Petitioner had reported to the terminal that he had leftover product, the terminal manager or dispatcher would have provided instructions to Petitioner for its distribution or recorded its presence in the tanker trailer so that the next driver using the tanker would be informed of its presence thereby preventing a mixture. Mr. Cleyman and Ms. Dinnes concluded that Petitioner violated written company safety policy by failing to notify the terminal that diesel fuel remained in the tanker trailer after his last delivery which created a hazardous situation at the terminal and contributed to the creation of a mixture by the next driver to be given the truck to drive. They also concluded that Mr. Wood violated safety rules by failing to check the tanker trailer to verify it was empty before loading gasoline into it. Mr. Cleyman instructed Ms. Dinnes to assess twelve points against both Petitioner and Mr. Wood in accordance with the safety manual. The contaminated product was sold by Respondent to Davis Oil Company in Dothan, Alabama. Respondent lost an estimated $1,988.56 as a result of the safety violations by Petitioner and Mr. Wood. Importantly, using the same tanker trailer that Petitioner used to transport the diesel fuel, Mr. Wood delivered the product to Davis Oil Company without any malfunction of the tanker trailer's equipment, including its emergency and unloading valves. These were the same valves which would have had to malfunction to cause Petitioner to believe the tanker was empty when he allegedly performed the bucket test at Mossy Head. After Petitioner received a Notice of Termination, Petitioner appealed to Respondent's safety review committee the assessment of points for the Sunshine, Jr. store and the Mossy Head violations. In his appeal letter, Petitioner contended that he did not violate safety policy because he did not "stick the tank before and after" unloading since "it was unsafe for [him] to climb on top of [the trailer] and there are no guard rails." "Sticking the tank" is where a driver inserts a measuring stick into a compartment to see if any product is left or to measure the amount of product remaining. Petitioner further contended that he was directed by Respondent not to open the trailer dome lids because someone had been killed in an explosion by doing so. Irrespective of the issue of climbing on the tanker to check to see if it was empty, the evidence was uncontroverted that the valves involved in unloading the tanker and performing the bucket test do not malfunction intermittently, but continue to malfunction until repaired. If the valves had not been working, the valves would not have been functioning when the mixture was later unloaded by Mr. Wood. The only conclusion is that Respondent either did not perform the bucket test or performed it improperly. Both conditions violate the company's safety policy. The returned product and the resultant mixture were clearly preventable. Pursuant to Respondent's policy, an investigation of the incident based on Petitioner's appeal letter by the safety review committee was initiated. After review of the incident and all contentions made by Petitioner in his appeal letter, the safety review committee upheld the point assessment against Petitioner. It was reasonable for Respondent to rely on the functioning of valves in analyzing the veracity of Petitioner's appeal. Petitioner was discharged on October 8, 1993, for violations of Respondent's safety program. Respondent's safety program specifies that the accumulation of 24 points in one year by an employee results in the dismissal of the employee. In 1993, Petitioner violated the company's safety policies on two separate occasions. The two violations caused Petitioner to accumulate 24 points within one year. The safety policies Petitioner violated were: (1) mixture of petroleum products on April 28, 1993; and (2) failure to notify the terminal of undelivered product left in the tanker trailer he brought back to the terminal after his last delivery which later resulted in a mixture on October 7, 1993. Each violation of the safety program was reported by Nancy Dinnes, Terminal Manager, to Luc Cleyman, Director of the company's safety department. The safety department reviewed the facts of each infraction as given to them by the terminal manager. In each case the infractions were preventable. In each case, the point assessment against Petitioner's driving record was in accordance with the point schedule contained in the driver's safety manual. In each case, the number of assessed points was reasonable. However, Petitioner contends that white drivers were treated differently than black drivers. Much of Petitioner's accusations are based on rumor. For instance, Petitioner contends in his Affidavit that Clayton Vaughn (white) had a major spill at Sunshine Jr. Store No. 214, cleaned up by Dave Garner, that was not reported. Petitioner testified that he had no evidence to support this allegation or first-hand knowledge of this incident. He stated that he learned of it through "driver talk," although he could not remember the name of the driver he had heard it from. Mr. Vaughn, Ms. Dinnes, and Ms. Cleyman each state that no such incident occurred and that Petitioner's claim is not true. Petitioner also contends that in July 1991, Lane Corbin (white)and Tommy Jordan (white) could not pass a random drug test, so Ms. Dinnes told them to purchase a bottle of Murine eye drops to put into the urine specimen bottle. Again Petitioner admits that he has no evidence, only hearsay, to support this allegation. Ms. Dinnes denies Petitioner's allegation. Mr. Cleyman states that the drug testing of urine specimens utilized by Respondent would have detected an adulterated specimen, therefore, Murine eye drops would not have concealed the use of illicit substances by a test subject. In his Affidavit, Petitioner contends that Tommy Jordan was assessed six points instead of 12 points for a mixture. The citation referred to by Petitioner clearly indicates that 12 points were assessed against Mr. Jordan's driving record. In his Affidavit, Petitioner asserts that Mr. Vaughn had a spill at Citgo. Again, Petitioner has no evidence, only hearsay, to support this assertion. Mr. Vaughn, Ms. Dinnes, Mr. Cleyman, and Gail Williams (dispatcher) state that no such incident took place. Petitioner contends in his Affidavit that Mr. Vaughn tried to load 1,500 gallons of gas into a 1,000 gallon tank, which caused a spill. Petitioner admittedly has only hearsay to support this contention. Mr. Vaughn, Ms. Dinnes and Mr. Cleyman state that no such incident occurred. In his Affidavit, Petitioner states that Mr. Vaughn and Dave Oyler (white) received speeding citations and were not assessed points. Petitioner testified that he had no first-hand knowledge of this allegation. Ms. Dinnes and Mr. Cleyman state that they are unaware of any instance where Mr. Vaughn or Mr. Oyler received points for speeding violations. Moreover, each year, Respondent obtains a Division of Motor Vehicle (DMV) report on all drivers and other employees who operate company vehicles. The DMV report does not list infractions. Petitioner also asserts that in November 1992, Tommy Jordan, in violation of company rules, drove through a tunnel in Mobile, Alabama with a placarded trailer. Ms. Dinnes and Mr. Cleyman state that the incident referred to by Petitioner was thoroughly investigated by the safety department and determined to be nonpreventable. The investigation showed that the exit ramp for trucks carrying hazardous materials was not properly marked. As a consequence, Jordan did not have sufficient notice to safely exit the roadway before entering the tunnel. Therefore, the incident was determined to be nonpreventable. Petitioner contends in his Affidavit that Tommy Jordan delivered product to the wrong location which caused a mixture. Petitioner has only hearsay to support this contention. No evidence exists showing that such an incident occurred. Petitioner contends that Mr. Vaughn had a large spill at A.W. Herndon Convenience Store. Petitioner has no first-hand knowledge of this incident. Mr. Vaughn, Mr. Fernando, Mr. Berrios, Ms. Dinnes, and Mr. Cleyman state that a spill occurred; however, the amount spilled was not large, only two gallons. After a thorough investigation of this incident, the safety department determined that the spill was nonpreventable. The investigation showed that the spill was caused by a malfunctioning lock-down fitting, and that the size and severity of the spill was minimized by Mr. Vaughn's quick response. At hearing Petitioner presented evidence of some racial slurs in the workplace. In February, 1993, Petitioner testified that Ms. Dinnes told Tommy Jordan that she had to fire that nigger J.J. (John Jordan) because he is influencing that nigger Sheffield and that nigger McCoy. Again, Petitioner testified that he had no first-hand knowledge of this alleged incident. Petitioner learned of the comment from John Jordan. Ms. Dinnes and Tommy Jordan both state that no such statement was made by Mr. Dinnes. John Jordan testified that he overheard the statement. The statement was raised in John Jordan's charge of racial discrimination to FCHR against Respondent. However, the evidence showed that John Jordan was legitimately discharged for deliberately dumping hazardous material at the terminal. Around December 18, 1992, Tommy Jordan delivered product to Tyndall Air Force Base. A black sergeant had instructed Mr. Jordan to deliver the product differently than had been done before. After the sergeant walked away, Mr. Jordan stated in front of a white airman, "Who does that nigger think he is?" The airman informed the sergeant of Mr. Jordan's comment. Ms. Dinnes received a telephone call from the Air Force sergeant. He informed her of Tommy Jordan's conduct. Ms. Dinnes informed the sergeant that Mr. Jordan would be terminated immediately. The sergeant told Ms. Dinnes that he did not want Mr. Jordan to be discharged, but would be satisfied if he was never assigned to deliver product to the base again. Ms. Dinnes called Florida Rock's main office and believes she spoke with Bob Jackson, then president of Florida Rock. She informed him of the incident and the sergeant's desire. Both took the sergeant's request into consideration when making a decision regarding disciplinary action. Ms. Dinnes confronted Tommy Jordan about his conduct. He admitted he made the statement. She told him that he would be terminated immediately if he ever made such a comment again. Ms. Dinnes also told him that if it were not for the sergeant's request that he not be fired, he would have been discharged. Mr. Jordan did not use another racial slur in the workplace again. Mr. Jordan was not assigned to haul another load to Tyndall Air Force Base. Tommy Jordan was later terminated for accumulating too many points for safety violations. Numerous other minority and non-minority employees employed at the Panama City Terminal during 1991 through 1993 testified that they had never heard Ms. Dinnes or any other of Respondent's manager or supervisor make a derogatory comment based upon race. Mr. Harrison, a black driver, testified that the only derogatory comments relating to race he heard at the terminal from any employee of Respondent were made by Petitioner. Every time Petitioner "got a chance to get close to Harrison" since 1985, Mr. Harrison testified that he called him an "Uncle Tom" and a "bootie kisser" because Harrison refused to get "up in the white folks' face." Mr. Miller a black driver also testified that the only derogatory comments relating to race he heard at the terminal from Respondent's employee were made by Petitioner. Mr. Miller testified that Petitioner called him an "Uncle Tom," a "suck ass," and a "suck butt" because Petitioner said he "liked white people." When Mr. Miller asked Petitioner to stop calling him these names, Petitioner told Mr. Miller that he would "get a gun and shoot [him]." The record clearly indicates that use of racial slurs in the workplace were few and far between. Respondent's policy was to attempt to prohibit such conduct. The company president, Mr. Mabbett, personally investigated Petitioner's claims. In this case, the sporadic racial slurs which occurred are not a sufficient basis to infer an intent to discriminate against Respondent. The terminal manager of Whitaker Oil Company (Whitaker), Jerry Watkins, testified that he barred Petitioner for over two years beginning in late 1990 from hauling loads for Whitaker. Mr. Watkins decided to bar Petitioner after Petitioner said that he could deliver Whitaker loads any time he wanted. Mr. Watkins believed that Petitioner's attitude jeopardized Whitaker's reputation with its customers. Mr. Watkins testified that Whitaker's reputation was its most important asset. He also testified that Petitioner's race had nothing to do with his decision. Three drivers (all white) other than Petitioner also were barred by Mr. Watkins from hauling Whitaker loads during the more than 15 years he has been Whitaker's terminal manager. Only one of these three drivers was employed by Respondent. Pud Parker, a white driver, was barred by Mr. Watkins because he refused to clean his truck. During the time Mr. Parker was barred, Ms. Dinnes did not call Mr. Watkins attempting to have the prohibition lifted as she did for Petitioner. During the time Petitioner was barred, Ms. Dinnes contacted Mr. Watkins repeatedly asking him to allow Petitioner to haul Whitaker loads again. Mr. Watkins refused Ms. Dinnes' request. In defiance of Mr. Watkins' orders, Ms. Dinnes formulated a plan to permit Petitioner to haul Whitaker loads without Mr. Watkins' knowledge. Ms. Dinnes arranged to have Mr. Berrios and other drivers load tanker trailers for Petitioner. Mr. Berrios would go to the Whitaker terminal, load the tanker trailer, and bring it back to the Panama City Terminal where Petitioner would take over the transportation duties. Ms. Dinnes instituted this plan to permit Petitioner to earn a living during a time when business was slow. He had complained to her about not being able to make enough money to support his family. This practice continued until Mr. Watkins discovered that Petitioner was hauling Whitaker loads without his permission. When he found out, Mr. Watkins contacted Ms. Dinnes who admitted to him that she had arranged for Petitioner to haul Whitaker loads clandestinely. He directed Ms. Dinnes that Petitioner was barred from transporting any Whitaker loads until further notice. After approximately two years, Mr. Watkins decided to lift the ban. Petitioner had also been barred from hauling loads from the Chevron terminal. Again, Ms. Dinnes repeatedly attempted to have the prohibition lifted. After approximately two years, Petitioner was permitted to transport Chevron loads. Reports pertaining to the compensation of drivers at Respondent's Panama City Terminal from 1991 through 1996 show no discrimination toward black drivers in the area of compensation or load assignments. The compensation reports show that the drivers receiving the most compensation in 1991 were Petitioner and Michael Davis, both black drivers. For 1992, 1993 and 1994, Mr. Davis was the second most highly compensated driver. For 1995 and 1996, Mr. Davis was the most highly compensated driver. As discussed below with respect to Petitioner's disparate impact claim, an evaluation of driver discharges from 1990 to August 1997, shows no adverse effect on black drivers in terminations for safety violations. During this period, 18.7 percent of the drivers employed by Tank Lines were black and 74.4 percent were white. Of the drivers discharged for safety violations 18.9 percent were black and 77.5 percent were white. The percentage of white drivers terminated for safety violations actually exceeded the percentage of white drivers employed by the company. In comparison, the percentage of black drivers discharged for safety violations was nearly identical to the percentage of black drivers employed by Respondent. The undisputed evidence establishes that Respondent applied its safety policies equally to all drivers regardless of their race. A total of 20 white drivers were identified in the discovery process, where according to the safety manual, they could have received 12 points but received less points for creating or contributing to mixtures. With the exception of Roderick Miller, a black driver, all drivers receiving six points for a mixture. For each white driver that was assessed less than the minimum 12 points for the mixture, an explanation of "extenuating circumstances" was offered by Florida Rock to justify the assessment. The white drivers assessed less than the minimum 12 points for a mixture and the explanation for "extenuating circumstances" that justified the assessment of less points as testified to by Luc Cleyman, the safety director, is as follows: Dan Butow, a white driver at the Panama City terminal, along with James "Pud" Parker received six points on January 10, 1991. The citation issued described the incident as failed to check trailer and loaded on top. The safety department determined that extenuating circumstances existed. The investigation of the incident established that it was caused by a faulty internal valve which failed to open when the handle was pulled. Consequently, the drivers thought that the tanker trailer was empty because when they pulled the handle to open the valve to determine whether the tank was empty, no product came out of the pipe. The bucket test was performed. The tanker trailer used by Parker and Butow had to be repaired before it could be used to transport product again. Ms. Dinnes was directed by the safety department to assess six points against the driving records of Parker and Butow because it was felt the drivers should have recognized the odd feel of the cable when it was pulled and should have known something was wrong. However, it was not clear if the cable felt strange when it was pulled. James Parker, a white driver at the Panama City terminal, received six points. The citation issued described the incident as failed to check trailer and loaded on top. This is the same incident described above. Lane Corbin, a white driver at the Panama City terminal, failed to unload number 3 compartment of supreme gas and loaded 96 gallons of no lead gas on top of it in 1989. Mr. Cleyman advised he had no knowledge of any extenuating circumstances since it was prior to his time as safety director. Archie Trull, a white driver at the Panama City terminal, downgraded a product and blended mid-grade in August, 1991. He was given six points. The "extenuating circumstances" justifying the six points was because it was a blending error constituting driver error, not a mixture. The evidence showed that there is a difference between mixing or blending products to purposefully obtain a certain grade of product and the mixtures involved in this case. There is no category in the safety manual specifically referring to blending errors. The error falls in the general or other category of safety violations. A blending error typically results in the assessment of six points. Daniel Webb, a white driver at the Panama City terminal, received six points for a mixture on March 24, 1990. The "extenuating circumstances" justifying Mr. Webb receiving six points was because this was a training situation. Webb removed the tags which identified the product, the trainee mixed the product, and because there was some comparative negligence with him and the trainee, Roderick Miller (black), only six points were assessed. The incident occurred five days after Miller was hired. Miller was being trained by Webb at the time of the incident. Because Miller was a new driver in training at the time of the mixture, the safety department directed Ms. Dinnes to assess six points against both drivers. William White, a white driver at the Panama City terminal, brought back 595 gallons to the yard and did not completely unload the no-lead product in October, 1990. Six points were assessed because there was no indication of a mixture. Kenneth Albritton, a white driver at another terminal, received zero points for a spill. The original point assessment was voided. The "extenuating circumstances" justifying assessing zero points is unknown. Mr. Cleyman testified that to void points it must be deemed unpreventable. Barry Sanders, a white driver at another terminal, had a spill. The cause of the spill was an equipment malfunction because the drop pipe coupling was egg-shaped and did not fit the hose. Ricky Brannen, a white driver at another terminal, received six points for a mixture where he brought product back on the trailer and then loaded other product on top (no- lead on top of premium). Brannen four months earlier had a spill which was deemed preventable in which he got 12 points. If Brannen would have received 12 points for the mixture he would have been terminated. Mr. Cleyman was on vacation and did not have sufficient knowledge regarding the assessment. Rosemary Crossman, a white driver at another terminal, had a spill which was voided. The "extenuating circumstances" justifying zero points was because she was not properly trained and therefore, not able to "pump off". Lou Dostal, a white driver at the Atlanta terminal, was given 12 points for a spill in 1991. Ultimately, the 12 points were reduced to six points by Cleyman. However, Mr. Cleyman did not know the reasons for the reduction. James Garner, a white driver at the Ocoee terminal, had a mixture and received six points in 1991. The mixture resulted in an upgrade of fuel to a higher octane. There is no rationale set forth in the file. Cleyman believes that he spoke with the terminal manager or had some reason to give six points instead of 12. However, he could not recall the reason for the point assessment. Dennis Lee Hall, a white driver at the Albany terminal received six points for a mixture around July 1993. The six points was [sic] issued for failing to follow procedure which is less harsh than mixture. The point assessment was based on a conversation between Cleyman and the terminal manager. The terminal manager felt that no points should be assessed. The mixture occurred at a tank farm with confusing tanks and pipes. The driver simply hooked to the pipe he thought correct. However, he had traced the wrong connection. Ronnie Harrison, a white driver at the Tampa terminal, who initially received 12 points for a spill in November 1995. In January of 1996, Cleyman removed the points. Steve Cassell, regional manager, requested Cleyman take action on behalf of the driver based on a deceased terminal manager's alleged agreement. Before he died, Fred Tatum, the terminal manager, gave Mr. Harrison three days off, when no pay can be earned, and 12 points, but according to the driver, he intended that he would still get his safety bonus. In trying to honor the deceased terminal manager's alleged arrangements, Cleyman, two months after the incident, removed the 12 points and gave Harrison his safety bonus. Additionally, the tanks were not properly marked and the delivery was made to a commercial private account which controlled the delivery. Robert Holland, a white driver at the Tampa terminal, received three days off and six points for failure to unload all of the product at the site. No mixture was involved. Cleyman did not recall the incident in detail. Ray E. Kersey, a white driver at the Tampa terminal, received six points for a spill in March 1990. Cleyman cannot recall the reason for the six-point assessment because it was a difficult drop process at Respondent's terminal and Mr. Kersey could have received zero points. If Cleyman did not believe Kersey, he could have given him 12 points. Cleyman did not totally believe the narrative written by the driver accurately reflected what happened, but gave him the benefit of the doubt. Michael Koester, a white driver at the Atlanta terminal, received six points for a mixture in 1991. Chevron assumed responsibility for the occurrence because the tag and identification cover did not match. The tag was under muddy water and could not be seen. Mr. Mabbett and Cleyman deemed it unpreventable but still assessed six points. Kee Wayne Laurendine, a white driver at the Jacksonville terminal, received six points for a mixture in 1994. He dropped premium into no-lead fuel. Also, he cross-dropped a kerosene tank with diesel and received 12 points. On July 4th, thousands of people who had been watching fireworks, began to converge on the gas station where the driver was loading product. The people were flipping cigarettes, shooting off fireworks and sparklers, etc. Mr. Laurendine became excited, confused, tense and scared that he was going to be blown up. He made an error. Robert Remillard, a white driver at the Atlanta terminal, received six points for a mixture. Luc Cleyman stated that the "extenuating circumstances" were that unloading paint thinner in a tank containing only alcohol residue was not a mixture. Remillard received six points because he was supposed to check and see if the tank was clean and he failed to do so. He had been told the tank was clean. On August 15, 1990, Mr. Remillard wrote a narrative describing spilling product on the grass. Luc Cleyman offered no "extenuating circumstances". Elvin Roe, a white driver at the Ocoee terminal, received six points for a mixture in September 1990. Mr. Higgins, a vice president, was sent a memorandum to review the incident on September 23, 1990, for Mr. Roe. Mr. Bob Jackson and Mr Higgins agreed Roe should get six points rather than 12 points and Cleyman issued six points. An alternative disciplinary approach was proposed which included suspension, probation, and forfeiture of a yearly bonus. David Trimmel, a white driver at the Tampa terminal, received six points for failure to unload. There was no mixture. Trimmel also received only 12 points for a spill that he did not report, clean up, notify DEP or the fire department. Mr. Trimmel quit before he could be terminated by the terminal manager. After reviewing all of the above records, the record shows that each case turned on facts different from those of Mr. McCoy. Some were treated more harshly than hindsight would have warranted. Some were not. Insufficient facts were presented to show that the facts and circumstances were similar to those of Petitioner. No expert testimony was offered as to the validity of the sampling of employees or that these employees constituted a statistically significant group. Indeed if the exercise of judgment by management is the objectionable policy of Petitioner, then a larger sample constituting the entire safety program would be appropriate since the exercise of judgment is present throughout the company's disciplinary process. The only evidence presented in this regard was the statistical evidence presented by Respondent. That evidence did not demonstrate an adverse impact or treatment of Petitioner or other minorities. Petitioner's statistical evidence was not shown to be reliable or sufficiently valid. Therefore, the sample referenced above cannot form the basis for an inference of discriminatory intent or disparate impact. At the time of his termination on October 8, 1993, McCoy had earned $26,291.99 for approximately 40 weeks of work in 1993. Therefore, McCoy's annualized earnings in 1993 would have been approximately $34,000. In 1992, McCoy earned $30,254.28 from Florida Rock. In 1991, McCoy earned $26,549.38 from Florida Rock. Based on these earnings, McCoy's gross wages from Florida Rock increased in 1992 by 14 percent and in 1993 by 12.3 percent. Therefore, based on McCoy's increase from 1991-1993 and the exemplary models above, it is more than reasonable to assume that McCoy's earnings as a driver at Florida Rock would have continued to increase at a minimum of five percent per year. Florida Rock also provides significant fringe benefits to its employees that include health benefits, life, and accidental death insurance, dental insurance, profit sharing, a 401K deferred earning plan, disability benefits, holiday, and vacation days, a flexible spending account plan, and payroll taxes. According to Florida Rock, these employee benefits represent an "additional 40 percent of compensation" to Florida Rock's employees. Florida Rock's benefit plan is significantly better than the typical employer. At the time of his termination, Petitioner was 50 years of age. After Petitioner was terminated, he could not find comparable employment and filed for and received unemployment benefits. The State of Florida, Department of Labor, required Petitioner to make a "thorough and continued effort to obtain work" in order to receive unemployment compensation benefits. The Petitioner's family goal regarding his re- employment was for him to get a job in the Panama City area. Petitioner continued to look for employment with out- of-town employers that hired in the Panama City area so he would not be away from his family at night. He either was not hired by these employers, or in order to be considered for the positions, he was told he would have to relocate out of state. Petitioner's educational background was limited to high school and he had never received any specific education or training on job searches or job placement. Petitioner attempted to get retrained at Haney Vocational Technical School; however, the company, JTPA, went out of business. Despite not having the background or this knowledge, McCoy attended job fairs and sought training in the communications field from a friend (Robert Alford) who had been in the business for 18 years. Since Petitioner could not locate a truck-driving job similar to or of a like nature with his Florida Rock position, he decided after approximately five to six months to start his own lawn care and telephone communications business. Petitioner reasonably believed that both businesses could be very successful in the Panama City area. Because Petitioner had limited income after being terminated, he used his pension money from his Florida Rock 401K plan both for living expenses and for capital to start his businesses. Petitioner withdrew $102,556 of his 401K savings during this time. Petitioner's telephone communications business was very successful in the beginning. His first bid was accepted and a lucrative contract was obtained to install the phone system for a new hotel in Panama City. At the same time, while the communications business was just starting Petitioner continued to operate a lawn care business after having observed the financial success of others, including family members. Margie McCoy took care of all of the bills and invoices associated with the businesses, as well as provided the information to the accountant for the preparation of the income tax returns. At times, Petitioner's lawn care business was seasonal, but for each season, McCoy would provide different types of services for his client as opposed to not working at all. There was at lease one six-month period in which McCoy could not work because he had a stroke on March 21, 1995. There was no credible evidence that Petitioner's stroke or high blood pressure was caused by his termination from Florida Rock. Petitioner's high blood pressure did contribute to his stroke. However, Petitioner demonstrated symptoms of elevated blood pressure prior to his discharge from Florida Rock. Notwithstanding his health restrictions, Petitioner continued to try to make his lawn care and telephone businesses successful. Petitioner would work in the sun trying to make the lawn care business successful in violation of his doctor's orders. Petitioner's earnings/losses from his communications and lawn care businesses are as follows: 1994 - $878; 1995 - $6,722; 1996 - $7,055; 1997 - $739; 1998 - $1,689. Petitioner currently works for the Bay County School Board driving a school bus. He was hired in 1998. He continues to work his lawn care and communications businesses. He took a night class to become certified as a bus driver, while at the same time operating his lawn care business during the day. The evidence did not show that Petitioner is currently physically able to work for Florida Rock because his blood pressure was not under control as late as January 2000. Therefore reinstatement would not be appropriate. Petitioner earned $7,086 as a school bus driver in 1998, and $12,554.89 in 1999. Based on the circumstances presented to Petitioner after he was terminated from Florida Rock in October 1993, Petitioner used reasonable efforts to seek employment of a like nature compared to his driver's position at Florida Rock. Also, he used reasonable efforts to earn income by starting his own businesses. Following his stroke, McCoy continued to use reasonable efforts to obtain a bus driver position with the Bay County School Board that provided insurance benefits, while at the same time, continuing to operate his lawn care business. There is no indication that Petitioner failed to use reasonable efforts to earn income following his termination from Florida Rock. Moreover, Petitioner's pension/401K savings of $102,556 that was lost and used to start the businesses and for living expenses (as well as additional amounts that would have been contributed to the 401K plan), would have continued to grow and compound during this period. Petitioner's damages from lost earnings and benefits, lost earnings on his 401K plan (assuming 10 percent simple interest), and total back pay damages less mitigated earning from October 1993 to the present is as follows: Date Lost Wages Lost Benefits (40%) Lost Earnings To 401K2 Less Mitigated Earnings Total Loss Oct. 93- Dec 93 $8,000 $3,200 $10,255 $11,200 1994 $35,700 $14,280 $10,255 <$4,250> (unemploy -ment) $55,985 1995 $37,485 $14,994 $10,255 0 $62,734 1996 $39,359 $15,743 $10,255 0 $65,357 1997 $41,327 $16,530 $10,255 <$739> $67,373 1998 $43,393 $17,357 $10,255 <$7,086> $63,919 1999 $45,562 $18,224 $10,255 <$12,554> $61,487 Jan. 00- Sept. 00 $35,880 $14,352 $7,691 <$9,415> $48,508 401K Withdrawal $102,556 Total Back Pay Damages $539,119 However, Petitioner's damages would have terminated upon his stroke in March 1995. At that time, Petitioner was no longer qualified for employment with Respondent due to his uncontrolled high blood pressure. However, Petitioner would have received $5500.00 in disability benefits because of his stroke.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order finding Respondent not guilty of committing an unlawful employment practice and dismissing the Petition For Relief. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 9th day of November, 2000. COPIES FURNISHED: Davisson F. Dunlap, Jr., Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 John P. McAdams, Esquire Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A. Post Office Box 3239 Tampa, Florida 33601 Harriett W. Williams Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Williams, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Respondent Agency is a Florida-licensed (Class "A" license number A88- 00297 private investigative agency. Respondent Foreman is the owner of the Agency. He is a Florida-licensed (Class "C" license number C00-02486) private investigator. He has been licensed for approximately the past 20 years. At no time during the period of his licensure has the Department taken any disciplinary action against him. At around 10:00 a.m. on the morning of September 30, 1994, Foreman interrupted his work schedule to drive a male tenant living in an apartment that he owned (hereinafter referred to as the "Tenant") to the Henderson Mental Health Clinic, an outpatient mental health facility located in Broward County, Florida. The Tenant needed to receive treatment at the clinic. After parking his vehicle, Foreman escorted the Tenant to the reception area of the facility. Foreman was wearing a gun belt and a holster. A loaded firearm was encased in the holster. It was a warm day and Foreman did not have on a jacket. 2/ Consequently, the holstered firearm was in plain view. At the time, Foreman had a Department-issued Class "W" Concealed Weapon or Firearm License, but he did not have a Class "G" Statewide Firearm Permit. 3/ Detective Joel Maney of the Fort Lauderdale Police Department was working a uniformed off-duty security detail at Henderson Mental Health Clinic that morning. From his position behind the reception counter, Detective Maney observed Foreman enter the reception area with the Tenant and noticed that Foreman was carrying a firearm. Not wanting to cause a disturbance inside the facility, Detective Maney did not immediately confront Foreman. He did, however, monitor Foreman's activity. After informing the receptionist that the Tenant had arrived and was waiting to be seen, Foreman left the facility. Detective Maney followed Foreman outside. As Foreman was walking on the sidewalk toward his vehicle, Detective Maney approached him and asked for identification. Foreman responded to the request by stating that he was a detective/investigator and that he did not have time to talk inasmuch as he was in the middle of an investigation. Eventually, Foreman produced his Florida driver license, his Class "C" Private Investigator License, and his Class "W" Concealed Weapon or Firearm License for Detective Maney. He also showed Detective Maney a five-pointed, star-shaped badge. In the center of the badge was a replica of the Great Seal of the State of Florida. The words, "Special Investigator Foreman Investigative," were inscribed around the seal. When Detective Maney first saw the badge, he thought it was a Broward County deputy sheriff's badge because of its shape and because it bore the Great Seal of the State of Florida. Unlike a Broward County deputy sheriff's badge, however, Foreman's badge did not have a map of Florida superimposed on the seal. Moreover, the written inscription on the badge was different than that found on a Broward County deputy sheriff's badge. Throughout the period that he has been licensed, Foreman has used this badge as a means of identifying himself in connection with the performance of his duties as a private investigator.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding the evidence sufficient to establish that Respondent Foreman committed the violations alleged in Counts II and II of the Amended Administrative Complaint, disciplining Respondent Foreman him for having committed these violations by imposing an administrative fine in the amount of $500.00, and (3) dismissing the remaining counts of the Amended Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of October, 1995. STUART M. LERNER 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 12th day of October, 1995.
The Issue Whether the non-renewal of Petitioner's annual employment contract as a school bus driver at the end of the 1993-94 school year was due to discrimination against her, on the basis of her race (African American) or disability (depression), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a school bus driver from October 17, 1983, until June 8, 1994, when her annual employment contract was not renewed. Throughout her employment, Petitioner exhibited problems with tardiness and excessive absenteeism. Her performance appraisals noted that her attendance with either unsatisfactory or needed improvement. In 1990, Petitioner had 13 occurrences of absenteeism or tardiness. In 1991, Petitioner had 11 occurrences of absenteeism or tardiness. In 1992, she was given an evaluation of "Unsatisfactory" and placed on notice for possible non-reappointment. As of April 1993, Petitioner had 17 occurrences of absenteeism and tardiness and was advised by the Director of Transportation that continued excessive absenteeism might affect her chances of continued employment. On May 13, 1993, Joseph Wise (Wise), Director of Transportation, advised Petitioner that he recommended to Paul J. Hagerty, Superintendent (Superintendent), that Petitioner be suspended without pay for being tardy on August 24, 1992, September 3, 1992, September 11, 1992, and May 13, 1993. After a fourth offense, as provided in Article VIII, Section 15, "Tardiness" in the official Agreement between the School Board and the Seminole County School Board Bus Driver's Association, suspension is the authorized disciplinary punishment. On May 17, 1993, the Superintendent informed Petitioner that he would act upon the Acting Director's recommendation and recommend to the School Board that Petitioner be suspended for one day, effective September 1, 1993. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed the claim that she violated the tardy policy. The School Board approved Petitioner's suspension on June 15, 1993. On September 23, 1993, a conference was held with Petitioner and the Director of Transportation Services regarding Petitioner's absences on August 26, 1993, September 3, 1993, and September 15, 1993. Also discussed were Petitioner's tardiness on July 22, 1993, August 23, 1993, and August 24, 1993. Subsequent to the conference, the Director of Transportation Services wrote a letter of directive of Petitioner stating that he expected her regular attendance at work and that, for the remainder of the 1993-94 school year, Petitioner was directed to submit a doctor's statement and/or written explanation of the nature of any absence. Petitioner was also advised that failure to follow the directive or failure to achieve regular attendance at work could lead to further disciplinary action, including termination of employment. Petitioner was absent on October 28, 1993, November 9, 1993, November 16, 1993, and December 17, 1993. Petitioner was absent from work on January 3, 1994, to see her dentist. The dentist gave her a few days' worth of medication for dental pain. Petitioner's boyfriend was killed on or about January 7 or 8, 1994. She took a leave of absence from January 10, 1994, until January 30, 1994. On February 15, 1994, Julie Green, Area Supervisor, recommended to the Superintendent that Petitioner be suspended without pay for one day for having been absent without leave on February 15, 1994. Petitioner was tardy on February 24, 1994. On February 28, 1994, the Superintendent informed Petitioner that he intended to act upon Green's prior recommendation and recommended to the School Board that Petitioner be suspended without pay, effective April 6, 1994. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed that she was absent without approved leave. The School Board approved Petitioner's suspension on March 2, 1994. Petitioner had a doctor's excuse for being absent on March 17, 1994. The doctor's note states that she is able to return to work. Petitioner had an absence excuse from her dentist for April 8, 1994. She had to take medication for dental pain for a few days. On April 6, 1994, the five area supervisors met with Wise to discuss reappointments and non-reappointments of school bus drivers. Julie Green was one of the area supervisors at the meeting. The management team discussed a group of school bus drivers who were borderline in terms of performance. The group was comprised of persons from different ethnic and racial groups. The management team also discussed a group of school bus drivers who had problems with extreme absenteeism. The group of school bus drivers who had problems with extreme absenteeism was comprised of both African American and white individuals. Petitioner was among this group. Carla Green, a white non-handicapped female was also among this group. The absenteeism of school bus drivers creates a safety problem. The buses do not run on time. Inexperienced office staff have to drive the buses, so children may be left standing on the side of the road for a long time waiting for a bus to pick them up. School bus drivers who have a doctor's excuse for their absence still can be found to have excessive absenteeism. Some of the individuals with absenteeism problems were reappointed. Carla Green was among those who were reappointed. Carla Green's attendance problems were determined to be less severe than Petitioner's, and unlike Petitioner, Carla Green's attendance improved during the course of the 1993-94 school year. The group of school bus drivers, whose contracts were not renewed because of absenteeism, was comprised of black and white, male and female individuals. In total, 12 school bus drivers were not reappointed. Of this group, eight were white and four were African American. None was disabled. Two of the white women who were not re-appointed had been employed as school bus drivers as long as or longer than Petitioner. In the past, Julie Green had directly supervised Petitioner but had never supervised Carla Green. Petitioner was absent again on April 13, 1994, because she took her daughter to the doctor. By letter dated April 25, 1994, Wise notified Petitioner of his recommendation that her contract not be renewed at the end of the school year. Petitioner had a doctor's excuse for being absent on May 2 and 3, 1994. The doctor's note states that Petitioner can return to work with no limitations. Petitioner was absent from work on May 9, 1994, until May 12, 1994. The doctor's note states she can return to work on May 12, 1994, with no limitations. Petitioner had a doctor's note dated May 11, 1994, which states that Petitioner has been depressed since her boyfriend was killed. Petitioner had some trouble adjusting to medication which she was given for this condition. Petitioner requested and was seen by a counselor with The Allen Group, the Employee Assistance Program for the School Board, on four occasions in early 1994. On January 26, 1994, Petitioner reported feeling angry and depressed because her boyfriend had been shot and killed. She had learned at his funeral that her boyfriend had several other girlfriends during this time, one of whom was pregnant. Petitioner consulted with a counselor on March 7 and March 10, 1994. On March 21, 1994, Petitioner reported to her counselor that she was feeling better. Petitioner's last visit with her counselor was on May 11, 1994, when she reported that her job was in jeopardy because of too many absences. By letter dated May 15, 1994, the Superintendent advised Petitioner that he would be recommending to the School Board that her employment as a school bus driver be terminated. He also advised her of her right to a hearing prior to her termination pursuant to Section 120.57, Florida Statutes. Petitioner did not request a hearing. Petitioner did not request a review or discussion concerning any alleged disability. By letter dated June 16, 1994, Petitioner was informed that the School Board terminated her employment, effective June 8, 1994. Petitioner pursued the grievance procedure through Step II, available to her under the terms of the contract between the school bus drivers and the School Board. Petitioner argued that her termination was not justified because she does not believe that excessive absenteeism constitutes just cause, and that Respondent's actions were motivated by unlawful discriminatory conduct based on her race and disability (depression). Petitioner failed to prove her allegations of discrimination by a preponderance of evidence.
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 which denies the Petition for Relief. DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida. _____________________________________ DANIEL M. KILBRIDE 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 29th day of February, 2000. COPIES FURNISHED: Ned N. Julian, Jr., Esquire School Board of Seminole County 400 East Lake Boulevard Sanford, Florida 32773-7127 Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Oaks Circle Tampa, Florida 33687 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers were Relford Cooper (black male) and Steve Smith (white male). One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to do. Scott spoke directly with Petitioner and explained to him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male). For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them. Of the 54 drivers employed by Respondent, 15 are black.
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 dismissing the complaint and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied. DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1986. COPIES FURNISHED: Wayne L. Helsby, Esguire 201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280 Willie Hudson, Jr. 11705 Park Orchard Circle Apartment #3 Tampa, Florida 33612 Affiliated of Florida, Inc. 1102 N. 28th Street Tampa, Florida 33605 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303 APPENDIX Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Findings of Fact 12, 13 and 14. Adopted in Findings of Fact 14, 15, 16 and 17. Adopted in Findings of Fact 17, and 18.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005.
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
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 dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
Findings Of Fact Respondent was initially licensed as a commercial driving instructor in November, 1980, for Autosa International, Inc., a driving school in Miami, Florida. His current license, which is due to expire in November, 1982, is with Fajardo Driving School. As a commercial driving instructor, Respondent's responsibilities include teaching applicants how to drive in order to become licensed drivers in Florida. Florida drivers are not required to speak English. The Petitioner's Florida Driver's Handbook, which contains all of the rules and driving procedures, is, accordingly, issued in both English and in Spanish. In order to ensure knowledge of the Handbook, applicants are required, among other things, to take a written, multiple-choice, rules- of-the-road and road-sign test for licensure. The written examination is given both in English and in Spanish. Petitioner uses four different examinations on a random basis. The clientele of Autosa International are primarily Spanish speaking. The Florida Driver's Handbook contains many questions for the reader's benefit in verifying his or her understanding of the contents of that handbook. The questions are general in nature, and no answers are provided. On Page 77 of the Handbook, one sample question is given with multiple-choice answers and the correct answer being checked. This sample question is provided in order to illustrate the form of question given on the written examination. When Respondent began his employment with Autosa International, Inc., driving school, he was assigned a 1980 Spirit automobile. When an instructor at Autosa is assigned an automobile, he is permitted to take that automobile home, but is required to assume responsibility for having the automobile maintained and serviced. Acting upon information given to him, Ardo Mesa, president of Autosa International, searched the automobile assigned to Respondent when Respondent was not present. In the trunk of that automobile, in the space between the spare tire and the cover for the spare tire, Mesa found a copy of one of the Petitioner's Spanish examinations and a second set of papers which is a composite of questions from the four Spanish examinations given by the Petitioner. The questions on both sets of documents are followed by multiple- choice answers with the correct answer being marked. When Mesa realized that these documents were the actual Spanish examinations given by the Petitioner, he returned the documents to the space under the spare-tire cover and began watching the Respondent for the next several days in order to determine why Respondent possessed those documents. After seeing Respondent take the papers out of his trunk and give them to students, Mesa confronted Respondent on March 5, 1982. With Respondent present, Mesa opened the trunk, took out the documents, and ripped them into several pieces. Respondent acknowledged to Mesa that the documents were his. Mesa threw the torn documents into the trunk of Respondent's car and terminated Respondent's employment with Autosa driving school. Mesa later retrieved the torn documents from the trunk of the car, taped them back together, placed them in an envelope in his office, and contacted Petitioner to report Respondent's possession of copies of Petitioner's examinations. Respondent had been employed by Autosa International and had possession of the 1980 Spirit for approximately three months before his employment was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT: A final order be entered permanently revoking the commercial driving instructor's certificate of Respondent, Juan Crespo. RECOMMENDED this 26th day of July, 1982, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1982. COPIES FURNISHED: Judson M. Chapman, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Alan Goldfarb, Esquire 12th Floor, Roberts Building 28 West Flagler Street Miami, Florida 33130 Mr. Chester F. Blakemore Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301
