The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact Raymond Howard Hildebrand, Jr., telephoned A. C. "Art" Murph in response to a newspaper ad, and, on November 17, 1981, signed an agreement with Mr. Murph under which, in exchange for title to and possession of the Hildebrands' 1979 Dodge Leisure Craft, Mr. Murph agreed to make specified monthly payments to Pen Air Federal Credit Union (PAFCU) until he could sell the recreation vehicle, and to satisfy the PAFCU lien with the sale proceeds, when it was sold. Under their agreement, Mr. Murph was to retain any sale proceeds in excess of what was needed to satisfy PAFCU's lien, as a commission on the sale. Mr. Hildebrand left the recreation vehicle with respondent on November 17, 1981. When the December payment on the loan PAFCU had made to the Hildebrands, the loan respondent had undertaken to repay, was overdue, Mr. Hildebrand got a notice to that effect. He got a similar notice in January. Respondent made these payments belatedly. On December 10, 1981, respondent sold the Hildebrands' vehicle to a third party who at that time paid respondent, in full, a price that exceeded the amount owed PAFCU by almost $2,000. Mr. Hildebrand happened to see the motor home parked at a neighbor's house on January 25, 1982, and, on inquiring, learned of the preceding month's sale. In a conversation with respondent on January 27, 1982, he was told everything would be straightened out in 10 to 14 days. Respondent told him somebody else had written respondent a bad check so that he needed the proceeds of the sale of the Hildebrands' motor home for some other purpose. Only after the Hildebrands engaged counsel and incurred legal fees did respondent pay PAFCU what was owed, more than a year later. It took that long for the new owner to receive title, as well. Sylvia Galloway's parents placed a motor home with respondent on consignment last May, and respondent sold it in June of 1982. Also in June, Ms. Galloway's parents received a check representing their agreed share of the sale proceeds. Only several months later, however, did the financing institution receive the moneys owed it, and it was Christmas before the new owners got title.
Recommendation It is, accordingly, RECOMMENDED: That petitioner find probable cause to institute judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 24th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 24th day of August, 1983. COPIES FURNISHED: William P. White, Jr. Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Art Murph and Art's Motor Homes 6813 Pine Forest Road Pensacola, Florida 32504 Curtis Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 September, 2008.
The Issue Whether the bid response of the Petitioner and/or the bid response of General Maintenance Corporation of Northwest Florida, Inc., was responsive to Invitation to Bid No. 88/89-027?
Findings Of Fact The Department issued Invitation to Bid No. DGS 88/89-027, titled "Exterior Repairs & Painting/Elliot Building/Tallahassee, Fl." (hereinafter referred to as the on September 9, 1988. No challenge to the specifications contained in the ITB was filed. Bids in response to the ITB were filed by the Petitioner, Professional Painting Services, Inc., and by General Maintenance Corporation of Northwest Florida, Inc. (hereinafter referred to as "General"), and others. When a bid response is received by the Department it stamps the time and date of receipt on the bid response. The time and date are used to determine whether a bid has been filed within the time specified in an invitation to bid. The time that a bid response is opened does not determine whether the bid response was filed within the time specified in an Invitation to bid. The bid responses in this case were to be opened at 2:00 p.m., October 26, 1988. Therefore, bid responses were required to be received by the Department before that time. The bid responses of the Petitioner and General were received by the Department before 2:00 p.m., October 26, 1988. The envelope in which the bid response filed by General was filed identified the Department and the Department's address, the title of the bid, the date the bid responses were to be opened and the time of the opening. The number of the ITB was not included on the envelope in which General's bid response was filed. Bid responses are generally filed by the Department by bid number, title and date. The bid responses to the ITB were filed in this manner. The Department does not consider the failure to include the number of a bid on a bid response to affect the responsiveness of the bid response. The bid response of General was misfiled by the Department. 11 The bid responses were opened by the Department on October 26, 1988, at 2:00 p.m. The bid response of General was not opened, however, because the Department had misfiled General's bid response. General's bid response was discovered later in the day on October 26, 1988. It was then opened by the Department. The Petitioner was notified by telephone that General's bid response had been misfiled and that it had been opened after the Department discovered its mistake. The winner of the bid on the ITB was not determined at the time when the bid responses were opened. The bid responses were evaluated first to determine who the winner was. The failure of the Department to open General's bid at 2:00 p.m. did not have any affect on the price bid by General. General was not able to modify or supplement its bid response as a result of the Department's error. Based upon the Department's evaluation of the bid responses it received on the ITB, the Department rejected the Petitioner's response as nonresponsive. The Petitioner's response was determined to be nonresponsive because the Petitioner had not submitted proof of automobile insurance as required by the ITB. Bidders were informed that General was the intended awardee of the ITB on November 2, 1988, by posting of a bid tabulation sheet. The ITB provided the following with regard to certain information to be provided concerning insurance (hereinafter referred to as the "Insurance Requirements"): NOTE BIDDER MUST SUBMIT WITH BID PACKAGE EVIDENCE OF THE FOLLOWING INSURANCE IN EFFECT, EQUAL TO OR EXCEEDING THE LIMITS REQUIRED BY THE BIDDING DOCUMENTS. PROOF OF INSURANCE TO BE ON STANDARD ACCORD FORM, AND IN THE CANCELLATION CLAUSE THE WORD ENDEAVOR MUST BE CHANGED TO SHALL: WORKER'S COMPENSATION INSURANCE CONTRACTOR'S COMPREHENSIVE GENERAL LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $300,000.00 Each Occurrence, Combined Single Limit AUTOMOBILE LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $100,000.00 Each Occurrence Combined Single Limit PLEASE READY [sic] CAREFULLY AND MAKE SURE TO COMPLY WITH ALL THE INSURANCE REQUIREMENTS OF BID DOCUMENTS. FAILURE TO COMPLY WITH THESE BID REQUIREMENTS WILL BE CAUSE FOR REJECTION OF YOUR BID. The Petitioner's bid response did not include proof of automobile insurance as specified in the Insurance Requirements. Subsequent to the date the bid was awarded, the Petitioner has attempted to provide proof of automobile insurance as specified in the Insurance Requirements. The information provided from the Petitioner indicates that insurance coverage was effective beginning on November 21, 1988, after the bid was awarded. The Petitioner has not provided proof that insurance in compliance with the Insurance Requirement was in effect as of time bid responses were due. The Department has rejected bid responses in other cases where bid responses did not comply with insurance requirements similar to the Insurance Requirements. Failing to provide proof of required insurance can affect the price of a bid and can give one bidder an advantage not enjoyed by other bidders. For example, a bidder that does not have insurance can wait until the bid responses are opened and, if the bidder does not want its bid accepted, for whatever reason, the bidder can refuse to acquire the required insurance. Or, if a bidder determines that it should go forward with its bid response, it can provide proof of insurance or even acquire the insurance. The Department will not be able to verify when insurance was required with an independent source. The ITB included an information questionnaire. Among other things not relevant to this proceeding, the information questionnaire requested the number of each bidder's current county occupational license number. The ITB did not require that a bidder have a current Leon County occupational license even though the job was to be performed in Leon County. General did not include its current county occupational license on the information questionnaire submitted with its bid response. The Department determined that General had a current county occupational license at the time it submitted its bid response by contacting the Okaloosa County Tax Collector's Office. The Department considers the failure to list a current county occupational license number to be a minor irregularity because the Department can verify whether a bidder has a county occupational license by checking with a Tax Collector's Office, a public entity. The Department has not rejected other bid responses for omission of a current county occupational license number. The ITB also required that the bid price submitted by any bidder was to be guaranteed for a period of sixty days. The ITB allowed the winning contractor forty-five days after the date stipulated in the purchase order to complete the contract. No credit was authorized by the ITB for bidders who indicated they would complete the contract in less than forty-five days. The Petitioner's bid response was not responsive to the ITB. General's bid response was responsive to the ITB. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987). Based upon the terms of the ITB involved in this proceeding, the Petitioner's bid response was not responsive. The ITB specifically requires that bid responses include evidence that the Insurance Requirements have been met. Bidders are warned that "[f]ailure to comply with [the insurance requirements] will be cause for rejection of your bid. Section 120.53(5), Florida Statutes, and Rule 13A- 1.006, Florida Administrative Code, provide the manner in which bid specifications may be challenged. The Petitioner has provided no evidence that it challenged the bid specifications quoted in finding of fact 18. The Petitioner has, therefore, waived any right it may have had to challenge the Insurance Requirements. Section 120.53(5), Florida Statutes; and Capeletti Bros., Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986). The Petitioner's failure to comply with the Insurance Requirements by the very terms of the ITB require that the Petitioner's bid response be rejected. Subsequent to the proposed award of a contract pursuant to the ITB, the Petitioner attempted to comply with the Insurance Requirements by providing additional information. Rule 13A- 1.001(13), Florida Administrative Code, provides the following definition of a "valid bid/proposal": A responsive offer in full compliance with the invitation to bid . . . by a responsible person or firm. The responsiveness of a bid . . . shall be determined based on the documents submitted with the bid . . . In order for the Petitioner's bid response to be considered a valid bid pursuant to Rule 13A-1.001(13), Florida Administrative Code, the response was required to be "in full compliance with the invitation to bid" based upon the "documents submitted with the bid." Since the Petitioner's bid response was not in full compliance with the ITB based upon the documents it submitted with its bid response, the Petitioner's bid response was not a valid bid. Because the determination of whether a bid response is valid is based upon documentation provided at the time a bid response is tiled, the Petitioner's bid response cannot be made a valid bid by filing required documentation after the deadline for filing bid responses. This conclusion is consistent with Rule 13A- 1.002(11), Florida Administrative Code, which specifically prohibits the modification of a bid response once bid responses have been opened. The rationale for not allowing modifications of bid responses was explained in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1978): [I]t is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. See also, Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982); Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, DOAH Case No. 88- 2211BID (June 28, 1988); and Tel Plus Florida, Inc. v. Department of General Services, DOAH Case No. 86-4701BID (May 6, 1987). The Petitioner's failure to meet the Insurance Requirements is not a minor irregularity which can be cured after the bid responses were opened. Nor is the Petitioner's failure to comply an irregularity which can be waived by the Department. Rule 13A-1.002(10), Florida Administrative Code, provides the following with regard to minor irregularities: The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid . . . . A minor irregularity is a variation from the invitation to bid . . . which does not affect the price of the bid . . . or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor cannot be waived. The court in Harry Pepper & Associates, discussed the waiver of minor irregularities: The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders. 352 So. 2d at 1193. The Petitioner's failure to meet the Insurance Requirements in this case is not a minor irregularity. The Petitioner's failure to meet the Insurance Requirements conceivably could have given it an unfair bidding advantage. If a bidder does not submit proof of insurance as required by an invitation to bid and is allowed to provide such proof after the bids are open, the bidder can decline to do so if the bidder determines that his or its bid is too low based upon the bids submitted by other bidders. Additionally, if a bidder decides to proceed with a bid, proof of insurance could then be provided or even obtained and the Department would not be able to verify with an independent source that the bidder had the insurance at the time bid responses were submitted. These possible situations would give a bidder an unfair competitive advantage. Although the Petitioner has not attempted to obtain such an advantage in this case, the potential for such an abuse was present when the aids were open. Based upon the foregoing, it is concluded that the Petitioner's failure to comply with the Insurance Requirements is not a minor irregularity. The Department cannot, therefore, waive the irregularity or allow the Petitioner to now supplement its bid response by providing proof that it meets the Insurance Requirements. Finally, even if the Petitioner's failure to meet the Insurance Requirements was a minor irregularity which could be corrected, the Petitioner has failed to meet its burden of proving at the formal hearing that it meets the Insurance Requirements. The failure of General to provide its county occupational license number does not render General's bid response nonresponsive. General's failure is a minor irregularity which can be waived by the Department. Unlike the Insurance Requirements, the Department can verify the existence of a County occupational license with a public entity, a tax collector's office. Bidder's are not able to obtain an occupational license after bid responses are open. Therefore, bidders who fail to provide a county occupational license number with their bid responses cannot gain a competitive advantage. While General may have a problem with Leon County because it may not have a Leon County occupational license, General's bid response was responsive to the ITB. Finally, the failure to open General's bid response at the same time other bids were opened should not affect General's right to an award of the contract for the ITB. Although General did not Include the number of the ITB on the envelope in which it submitted its bid response, it included sufficient information on the envelope for the Department to determine that the response was filed on the ITB at issue in this proceeding. The error in filing General's bid response was therefore the responsibility of the Department. General should not be disqualified for the Department's error. More importantly, the failure to open General's bid response when the other bid responses were opened did not give General any advantage over the other bidders. Therefore General's failure is a minor irregularity. Based upon the foregoing, it is concluded that the Petitioner's bid response was not response to the ITB and was properly rejected by the Department. It is also concluded that the Petitioner has failed to prove that the bid response of General should be rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by the Petitioner. DONE and ENTERED this 9th day of February, 1989, 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 9th day of February, 1989. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner failed to number the paragraph's of his proposed recommended order as instructed at the formal hearing. The "Proposed Finding of Fact Numbers" of the Petitioner referred to below correspond generally with the order in which each paragraph of the Petitioner's proposed recommended order appear. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page 1 1 See 7-9. See 23-24. The portion of this paragraph dealing with Leon County requirements is not relevant to this proceeding. Argument and quotation of testimony. 4 See 18-22. Page 2 1-2 Argument and quotation of testimony. Not supported by the weight of the evidence. Argument and quotation of testimony. Page 3 Continues with quotation of testimony. 1-2 Argument. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 18. 3 23. 4 27. 5 28. 6 11. 7 10-11. 8 6. 9 4. 10 13. 11 14. 12 8. 13 7. 14 15. 15 9. 16 15. 17 19. 18 16. 19 17. 20-22 20. 23-24 23. 25 24-25. 26 25-26. 27-28 26. 29 21. 30 2. 31-32 22. 33 29. 34 30. COPIES 35 FURNISHED TO: Not relevant to this proceeding. RONALD W. THOMAS, EXECUTIVE DIRECTOR DEPARTMENT OF GENERAL SERVICES 133 LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FL 32399-0955 JOHN A. TENNANT, PRESIDENT PROFESSIONAL SERVICES, INC. POST OFFICE BOX 20803 TALLAHASSEE, FLORIDA 32316 ROBERT D. STINSON, ESQUIRE OFFICE OF GENERAL COUNSEL DEPARTMENT OF GENERAL SERVICES ROOM 452, LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FLORIDA 32399-0955
The Issue The issue is whether Respondent, Higbee Company, d/b/a Dillard’s (“Dillard’s”), discriminated against Petitioner based upon his national origin or disability, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Dillard’s is an employer as that term is defined in section 760.02(7). Dillard’s is a department store chain. Petitioner, a Mexican male, was hired as a sales associate in the men’s department of Dillard’s store at Tallahassee’s Governor’s Square Mall on May 13, 2014. Petitioner’s job was to sell men’s fragrances directly to customers at the store. Allen Gustason was manager of the Dillard’s store at Governor’s Square Mall during the time Petitioner was employed there. Dee Thomas was the assistant store manager. Mark Kronenberger, who testified at the final hearing, was the men’s department sales manager and was Petitioner’s direct supervisor during the entire time that Petitioner worked at Dillard’s. Petitioner started at a salary of $12.00 per hour as a sales associate. His job performance and pay increases were assessed primarily on the basis of sales. On January 6, 2015, Petitioner received a raise to $12.60 per hour. On April 14, 2015, Petitioner was promoted to the position of fragrance specialist and received a raise to $14.50 per hour. Petitioner’s promotion did not change his basic duties, i.e., direct sales to customers. Petitioner’s employment at Dillard’s ended on November 28, 2015. Dillard’s did not dispute Petitioner’s testimony that he was a good and effective salesperson. Petitioner developed a regular clientele of Spanish-speaking customers who liked his ability to communicate with them in their native language. At the time of his hiring, Petitioner received, read, and agreed to abide by Dillard’s Associate Work Rules and General Policies, which among other things forbade insubordination by sales associates. “Insubordination” was defined to include failure to follow lawful instructions from a supervisor and engaging in contemptuous or taunting conduct that undermines the authority of management. As noted in the Preliminary Statement above, Petitioner claims that he is a Mexican male with a disability. The claimed disability is the human immunodeficiency virus (“HIV”). Dillard’s did not dispute that Petitioner has HIV. Petitioner claims that he was harassed by fellow employees because of his Mexican national origin. Petitioner claims that he complained to his supervisors, Mr. Kronenberger and Mr. Gustason, about the harassment. Petitioner claims that no effective action was taken to curb the harassment. Petitioner described a pervasive sense of discrimination at Dillard’s of which he became conscious only after about a year of working there. He testified that he is from California and had no real concept of being discriminated against because of his Mexican heritage. It took some time for him to realize and acknowledge to himself that it was happening. However, Petitioner was unable to describe many specific instances of discriminatory behavior by fellow employees. People were “mean,” or “picked on me,” or “didn’t like me,” but few of Petitioner’s complaints pointed toward racial discrimination as opposed to personal dislike. He complained that co-workers planned parties and get-togethers away from work but never asked him along, even for Mr. Kronenberger’s birthday party, but could only speculate as to the reason for his exclusion. Petitioner testified that he was an aggressive and successful salesperson. While its salespeople are assigned to specific departments, Dillard’s allows them to cross-sell in other departments. Several of the incidents described by Petitioner began when he took customers to other departments to sell them something. The undersigned infers that at least some of the bad feelings toward Petitioner were due to his perceived “poaching” of sales from other sections of the store. Petitioner testified that an employee named Carol would yell at him, apparently without provocation, so consistently that he went out of his way to avoid crossing her path. Petitioner stated that one day Carol screamed that he was good-for-nothing and was a “damn Mexican,” in front of customers and co-workers. Petitioner testified that he had no idea why she did this because he had done nothing to provoke her. He walked away, covering his ears from her abuse. Petitioner testified that he went upstairs and spoke to Mr. Gustason about the incident but that nothing was done. Petitioner stated that he returned to the sales floor. Other employees told him that Carol had worked for Dillard’s for many years and was a friend of Mr. Gustason and that he should not expect anything to be done about her behavior. Petitioner testified that an employee named Eric, who worked in the men’s department, made fun of his accent, particularly Petitioner’s difficulty in pronouncing “Saturday.” Petitioner testified that another fellow employee, a white woman named Amber who also worked in fragrance, was constantly rude and mean to him. In front of customers, Amber would say that she did not know why Petitioner was there, that he was only good for cleaning the counters. Petitioner repeatedly complained to Mr. Kronenberger about Amber. Mr. Kronenberger told him to continue doing a good job and not to focus on Amber. Petitioner stated that Mr. Kronenberger directed Amber to stay away from Petitioner’s counter, but she ignored the order and continued to harass him. Petitioner stated that matters came to a head when he was helping some female customers and went to Amber’s counter one day. He reached behind her to get the fragrance the customers wanted and Amber struck him with her elbow. The customers were aghast and complained to Dillard’s management despite Petitioner’s entreaties that they let the matter drop. Petitioner and Amber were called to the office to meet with Mr. Kronenberger and Yami Yao, the manager of women’s cosmetics. Amber denied everything. The supervisors told Petitioner and Amber to get along. They told Amber to stay away from Petitioner’s counter. Petitioner testified that Amber ignored the instruction and continued to harass him. Petitioner testified that on another day he was approached by a customer who wanted to pay Petitioner for a pair of shoes. Petitioner testified that he asked Mr. Kronenberger about it, because he did not want to steal a sale or anger anyone. Mr. Kronenberger told him that he was there to sell and that cross-selling was fine. As Petitioner was completing the sale, an older white man working in the shoe department threw a shoe at Petitioner and said, “You damn Mexican, I’m going to raise hell against you.” Petitioner testified about an altercation with Risa Autrey, a fragrance model who worked in Dillard’s and who Petitioner stated was another longtime friend of Mr. Gustason. One day, Ms. Autrey approached Petitioner--again, with zero provocation, according to Petitioner--and began berating him, saying that she had no idea why Dillard’s kept Petitioner around. This occurred in front of co-workers and customers. The customers went upstairs and complained to Mr. Gustason, who followed up by admonishing Petitioner to stop telling people to complain to him because nothing was going to come of it. Petitioner testified that a day or so after the incident with Ms. Autrey, he met with Mr. Gustason and Mr. Thomas.4/ During the course of this meeting, Petitioner disclosed his HIV status. Petitioner testified that Mr. Gustason’s attitude towards him changed immediately, and that Mr. Gustason had him fired two weeks later on a pretextual charge of stealing and insubordination. Petitioner testified that he got sick a few days before Black Friday, which in 2015 was on November 27. When he returned to work on November 25, he attempted to give Mr. Gustason a doctor’s note that would have entitled Petitioner to paid leave, but Mr. Gustason would not talk to him. Petitioner worked a long shift on Black Friday. On Saturday, November 28, 2015, he was called to Mr. Thomas’s office about an altercation he had on November 25 with Ms. Yao, the woman’s cosmetics manager. Mr. Kronenberger was also in the office. Petitioner testified that Mr. Thomas accused him of stealing, as well as insubordination to Ms. Yao, and fired him. Two mall security officers, the Dillard’s security officer, and Mr. Kronenberger escorted Petitioner out of the store. Petitioner testified that he was given no paperwork to memorialize his firing or the reasons therefor. Mr. Kronenberger testified at the final hearing. He testified that Petitioner constantly complained about someone not liking him or picking on him. Petitioner never gave him specifics as to what happened. Mr. Kronenberger stated that Petitioner never complained about racial slurs or that any of his alleged mistreatment had a discriminatory element. It was always, “This person doesn’t like me.” Petitioner had issues with tardiness and absenteeism throughout his employment with Dillard’s. Mr. Kronenberger testified that there would be days when Petitioner simply would not show up for work, or would send a text message to Mr. Kronenberger saying that he had things to do or someone he had to meet. Employment records submitted by Dillard’s supported the contention that Petitioner was frequently late for, or absent from, work. Mr. Kronenberger testified that Petitioner was erratic in his communications. Petitioner would send a text message saying he could not come in. Then he would send a text telling Mr. Kronenberger how happy he was to have the job. Mr. Kronenberger recalled once receiving a text from Petitioner at midnight that read, “I know I’ve been bad.” In November 2015, Petitioner had six unexcused absences, including four consecutive days from November 21 through 24. Mr. Kronenberger testified that Petitioner finally admitted that he needed to cut his hours in order to qualify for some form of public assistance. Mr. Gustason told Petitioner that something could be worked out to cut his hours, but that just not showing up for work was unfair to Mr. Kronenberger and the other employees. Mr. Kronenberger testified that Dillard’s would normally terminate an employee with six unexcused absences in one month under the heading of job abandonment. He stated that Mr. Gustason bent over backward to work with Petitioner and keep him on the job. When Petitioner was absent, Mr. Gustason would leave messages for him, asking him to call and let him know what was going on. During the string of November absences, Mr. Kronenberger phoned Petitioner, who said that he was afraid to come into work for fear that Mr. Gustason would fire him. Mr. Kronenberger assured Petitioner that Mr. Gustason had no such intent, but that in any event no one would have to fire him because he had not been to work in a week. Petitioner was effectively “firing himself” by abandoning his position. Petitioner showed up for work on November 25, 2015, at 4:50 p.m. He had been scheduled to come in at 9:45 a.m. Mr. Kronenberger testified that he was not present for Petitioner’s altercation with Ms. Yao, but that Ms. Yao reported she had attempted to counsel Petitioner about gifts with purchases. The promotional gifts were to be given away only with the purchase of certain items, but Petitioner was apparently disregarding that restriction and giving the gifts with non-qualifying purchases. Ms. Yao told Mr. Kronenberger that Petitioner quickly escalated the counseling into a shouting match in front of customers and co-workers. He yelled, “You’re not going to talk to me that way.” Ms. Yao told Petitioner that she worked in another department and did not have to deal with his antics. She told him that she was going to report the matter to Mr. Kronenberger and Mr. Thomas.5/ Mr. Kronenberger testified that his conversation with Ms. Yao was brief because there was no need to give many particulars. He was used to getting reports of employee run-ins with Petitioner and did not need much explanation to get the gist of what had happened. Mr. Kronenberger decided not to raise the issue with Petitioner on Black Friday, the busiest day of the year at the store. On the next day, November 28, Petitioner was called into the office to meet with Mr. Kronenberger and Mr. Thomas. Mr. Kronenberger testified that this meeting was not just about the incident with Ms. Yao but also Petitioner’s absences. In Mr. Kronenberger’s words, “[I]t was to follow up with the incident with Yami, and it was to follow up with, ‘Hey, you’ve just missed a week, you’ve been back a day, and you’re having this blow-up with a manager on the floor.’ Like, ‘What’s going on?’” Mr. Kronenberger testified that neither he nor Mr. Thomas went into this meeting with any intention of terminating Petitioner’s employment. However, two minutes into the conversation, Petitioner was on his feet, pointing fingers, and shouting that he knew what they were trying to do and he was not going to let them do it. He was quitting. Petitioner walked out of the office. Mr. Thomas asked Mr. Kronenberger to walk Petitioner out of the store so that there would be no incidents on the floor with the other employees. Mr. Kronenberger accompanied Petitioner to the fragrance area, where Petitioner retrieved some personal items, then walked him to the door. They shook hands and Petitioner left the store. Mr. Kronenberger was firm in his testimony that no security personnel were involved in removing Petitioner from the store. Petitioner was not accused of stealing. His parting with Mr. Kronenberger was as cordial as it could have been under the circumstances.6/ After Petitioner left his office, Mr. Thomas prepared a “Separation Data Form” confirming Petitioner’s dismissal for “violation of company work rules.” The specific ground stated for Petitioner’s dismissal was violation of the Associate Work Rule forbidding insubordination. Mr. Kronenberger testified that in his mind the “insubordination” included not just the scene with Ms. Yao, but the explosion Petitioner had in the meeting with Mr. Thomas. At the time of Petitioner’s dismissal, Mr. Kronenberger was unaware of Petitioner’s HIV status. Mr. Kronenberger credibly testified that Petitioner’s HIV status had nothing to do with his dismissal from employment at Dillard’s. Mr. Gustason, who apparently was aware of Petitioner’s HIV status, was not at work on November 28, 2015, and was not involved in the events leading to Petitioner’s dismissal. Mr. Thomas, the assistant store manager, made the decision to treat Petitioner’s situation as a dismissal for cause.7/ Mr. Kronenberger’s testimony is credited regarding the circumstances of Petitioner’s dismissal and as to the general tenor of Petitioner’s employment at Dillard’s. Petitioner was constantly in the middle of conflicts, but never alleged until after his termination that these conflicts were due to his national origin or disability. Petitioner’s demeanor at the hearing was extremely emotional. He cried frequently and seemed baffled that Mr. Kronenberger was disputing his testimony. The undersigned finds that Petitioner’s version of events was genuine in the sense that it conveyed Petitioner’s subjective experience of his employment as he recollected it. However, the undersigned must also find that Petitioner’s subjective experience did not conform to objective reality. However, Petitioner internalized the experiences, it is not plausible that Dillard’s employees were yelling at Petitioner without provocation, hitting him, throwing shoes at him, and calling him a “damn Mexican” in front of customers. It is not plausible that Petitioner’s superiors would ignore such flagrant discriminatory behavior when it was brought to their attention. Petitioner’s feelings about the motives of his co-workers and superiors cannot substitute for tangible evidence of unlawful discrimination. Petitioner offered the testimony of two Dillard’s customers, neither of whom saw behavior from Petitioner’s co- workers that could be attributed to anything beyond personal dislike or sales poaching. Santiago Garcia testified that he noted other Dillard’s employees rolling their eyes at Petitioner, but he thought the reason might be that Petitioner talked too loud. Mr. Garcia also saw “bad looks” from other employees and believed that the atmosphere among Dillard’s employees was “tense,” but did not offer a reason for the tension. Claudia Pimentel testified, through a Spanish language interpreter, that she always went directly to Petitioner because she speaks only Spanish and Petitioner was able to help her. Ms. Pimentel noted that a female Dillard’s employee got mad at Petitioner because he sold Ms. Pimentel a cream from her counter. During the years 2015 and 2016, the Dillard’s store in Governor’s Square Mall terminated two other sales associates for insubordination. Neither of these sales associates was Mexican. One was a black female and the other was a black male. Neither of these sales associates had a known disability at the time of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reason given by Dillard’s for his termination. Petitioner offered no credible evidence that Dillard’s stated reason for his termination was a pretext for discrimination based on Petitioner’s national origin or disability. Petitioner offered no credible evidence that Dillard’s discriminated against him because of his national origin or his disability in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Higbee Company, d/b/a Dillard’s, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 24th day of October, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of October 2017.
Findings Of Fact In March of 1983, Ms. Yvonne LeBerg purchased a green 1972 Pontiac Catalina from respondent MPG Economy Motors (MPG), after a conversation with respondent Leland A. Taylor. She told him she wanted to give her daughter and her family a car, and that her son-in-law could fix any minor problems. Mr. Taylor told her that the 1972 Pontiac (the car) had a hole in the trunk from rust; and there was some talk of "oil in the bottom"; but he assured her that the car was in "good running condition." Ms. Cardinale Williams, a friend of Ms. LeBerg who overheard discussions between Mr. Taylor and Ms. LeBerg, remembers Mr. Taylor's presentation that the car was in good running condition. Ms. LeBerg decided to buy the car, made a deposit against the purchase price, and left with Ms. Williams. Wallace Carter, who is married to Ms. LeBerg's daughter Suzanne, picked the car up and closed the transaction on March 12, 1983. Neither he nor Ms. LeBerg drove the car beforehand, although he did start the engine and suggest a test drive. Mr. Taylor said he wanted to get home to supper. As far as the evidence shows, Mr. Carter was aware at the time that the rear view mirror had come unattached and needed regluing. At no time did Mr. Taylor or anybody else disclaim any warranty in writing or otherwise. Boy scouts were in the car on an outing and Mrs. Suzanne Carter was driving, when the car caught fire; smoke billowed and everyone escaped unharmed. The fire is thought to have been caused by some electrical problem. The headlights have not worked since, and the car has hardly been driven since. About three months later, the Carters asked Mr. Wayne Sturdivant a "service advisor" at the local Pontiac dealer, to make a visual inspection of the car and estimate the cost of repair. The exhaust system needed replacement. A power steering hose leaked fluid, as did the transmission, which required a new front pump seal. Valve cover gaskets needed replacement. In addition, the air conditioning compressor was out, and, of course, the headlights did not work. According to Mr. Sturdivant's uncontroverted testimony, only the power steering and exhaust problems were serious enough to affect safety. The record does not establish the reasonable cost of repairs necessary to put the car in good running condition. The Carters brought their problems with the car to Mr. Taylor'S attention. They also complained of poor gas mileage and cracks at the edge of the windowshield that Mr. Carter uncovered when he removed some chrome trim. At one time Mr. Taylor offered to take the car back on consignment, do some repairs, and make the Carters whole (except for registration fees) if it could be sold for $100.00 more than Ms. LeBerg paid for it, and if Ms. LeBerg would withdraw her complaint. Negotiations faltered, however, and were eventually broken off, with Mr. Taylor declining to effect any repairs or rescind the sale. THE IMPALA The day the car she then had threw a rod, Ms. Barbara J. Blinz Wilson left it at the MPG lot, with Mr. Taylor's permission. On May 24, 1983, she bought a 1963 Chevrolet Impala from MPG, after a friend had looked the car over for her, and after a test drive. The sale documents include a form warranty disclaimer signed by Ms. Wilson and her daughter, which states: AS IS THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY, EITHER EXPRESSED OR IMPLIED. THE BUYER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT MAY PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. THE DEALER (SELLER) SHALL NOT HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL DAMAGES. DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS, OR INCOME OR ANY INCIDENTAL DAMAGES WITH RESPECT TO ANY DEFE [sic] OR MALFUNCTION OR UNFITNESS OR OTHER DEFICIENCY OF THIS VEHICLE. Petitioner's Exhibit No. 4. Ms. Wilson understood that she was buying the Chevrolet as is. Mr. Taylor did not know that such forms existed at the time he sold Ms. LeBerg the Pontiac. Three weeks after she purchased the car, Ms. Wilson spent $31 for a radiator repair, and a water hose sprung a leak the day before the hearing. She still used the car daily. Her principal complaint was that, until it was removed, the headliner tended to fall from the ceiling in swatches, obstructing her view.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2nd day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2nd day of November, 1983. COPIES FURNISHED: Leland A. Taylor 828 Michigan Avenue Pensacola, Florida 32505 William P. White, Jr. Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501
The Issue The issue for determination in this proceeding is whether Respondent committed an unlawful employment practice as alleged in the Petition For Relief.
Findings Of Fact Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is in Orlando, Florida. In 1982, Petitioner was employed by Respondent as a houseman at one of Respondent's hotels located at Marco Island, Florida. Respondent worked continuously in that location until he requested a transfer to the Orlando World hotel in 1986 and received his transfer in the same year. While employed at the Orlando World hotel, Petitioner refused to follow instructions, had excessive absences and was late to work repeatedly. Petitioner received the following disciplinary warnings which finally resulted in his termination on or about October 7, 1991: March 8, 1991 - Written Warning (refused to follow a reasonable job order) March 17, 1991 - Verbal Warning (reporting to work later on 3 occasions within a 90 day period), 2/27/91, 3/3/91, 3/17/91 May 15, 1991 - Written Warning (failure to follow Respondent's work policies) July 30, 1991 - Termination Recommendation (changed to a written warning) August 2, 1991 - Written document (explaining to Petitioner his problems with respect to attendance and tardiness) October 7, 1991 - Suspension and Termination Recommendation. Respondent's rules require employees to call in at least two hours in advance of their shift starting time to report a planned absence from work. Petitioner failed to comply with Respondent's rules by failing to give Respondent timely notice of his planned absence for October 7, 1991. On October 7, 1991, Petitioner called in to report his absence 15 minutes before 8:00 a.m. when his shift started. Petitioner failed to provide credible and persuasive evidence that the Respondent's disciplinary warnings were fraudulent or untruthful. Petitioner was replaced by Mr. Martin Gamey, an Hispanic male. Respondent did not conduct an unlawful employment practice in terminating Petitioner. Respondent did not act with any bias or animus against Petitioner. Petitioner's termination was based upon Petitioner's failure to satisfy his job requirements, failure to follow instructions, excessive absences, and failure to give timely notice for planned absences.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of unlawful discrimination. DONE AND ENTERED this 7th day of December, 1993, at Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1302 Respondent's paragraphs 3, 4 and 7 were rejected as irrelevant and immaterial. Respondent's paragraph 1, 2, 5 and 6-10 were accepted in substance. COPIES FURNISHED: Carlton J. Trosclair, Esquire Marriott Corporation One Marriott Drive, Department 923 Washington, D.C. 20058 Sharon Moultry, Clerk Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Nicolas Polanco 88-05 71st Street Apartment 1-K Jamaica, New York 11432
Recommendation The General Counsel's Motion for Summary Judgement is hereby granted. The Respondent shall cease and desist from refusing to bargain collectively with the Charging Party. The Respondent cease and desist from interfering with, restraining and coercing public employees in the exercise of their rights guaranteed under the Act. That Respondent post an appropriate notice on forms provided by PERC in conspicuous places. DONE AND ENTERED this 4th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue in this case is whether the Board of Opticianry should discipline Respondent, George Martin (Martin), for alleged fraudulent, false, deceptive or misleading advertising in violation of Rule 21P-10.05(2)(a), (b), (f) and (g), Florida Administrative Code, and Section 484.014(1)(e) and (g), Florida Statutes (1983). FINDINGS OF FACT 1/ Petitioner, Department of Professional Regulation (Department), is a state agency charged with regulating the practice of opticianry pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 484, Florida Statutes. Respondent, George Martin (Martin), is and has been at all times material a licensed optician in the State of Florida, having been issued license number DO 000945. In July of 1982, an advertisement was placed by Opti- Mart, an optical company, in the Sarasota Herald Tribune newspaper. A copy of this advertisement is attached and incorporated by reference as Exhibit A. At the time that the advertisement was published, Martin had no ownership or interest as an officer or a director in Opti- Mart, Inc. The advertisement was placed by the owner of Opti-Mart, Mr. Douglas W. Rankin. Prior to placing the ad, Douglas W. Rankin showed the advertisement to Martin, his licensed optician, for his approval. Martin approved the ad. Martin does not recall having seen or approved the subject's advertisement prior to publication, the ad having been placed by Opti-Mart, Inc., although Martin does not specifically deny having seen a copy of the ad prior to publication. At the time of the publication of the ad, Opti-Mart had made arrangements for a licensed optometrist to conduct eye examinations by appointment for persons who called in response to the ad. There was not evidence that any member of the public was actually deceived or misled by the wording of the ad. Any persons who called in response to the ad were informed that the eye examinations were performed by a licensed optometrist and not by Martin or any other optician. Martin did not intend to conduct any eye examination, nor would any such eye examinations be performed by him. Martin had no intention to deceive or mislead any members of the public as to who would be performing the eye examinations. Immediately upon receiving knowledge that there was a question concerning the text of the advertisement, Martin caused Opti-Mart to cease running the ad with Martin's name appearing in the ad.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Board of Opticianry enter a final order dismissing the Administrative Complaint in this case with prejudice. RECOMMENDED this 7th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 7th day of December, 1984.
The Issue The issue is whether the Respondent discriminated unlawfully against the Petitioner by discharging him because of a handicap contrary to Chapter 760, Florida Statutes, and, if so, the nature and extent of financial loss suffered by the Petitioner.
Findings Of Fact The Petitioner, Shannon M. Spence, was employed from March 1993 until May 1, 1993 by the Respondent. The Respondent is an employer as defined by Chapter 760, Florida Statutes. The Petitioner, who earned on average $125/week, was employed by the Respondent as a bouncer and "bar backer", a person who assisted the bartender. On or about April 29, 1993, the Petitioner suffered an on the job injury which was duly reported to the employer and for which the Petitioner was treated at a local hospital pursuant to arrangements made by the employer. The Petitioner's injury was determined to be a right inguinal hernia, and the Petitioner was cautioned against lifting more than 25 pounds and standing for long periods of time. The Petitioner reported for work the following day, and communicated to his supervisor his inability to lift and to stand for long periods of time. His supervisor, Jess Wall or J.W., placed the Petitioner on security detail for the parking lot and entrance. There were additional light duties available for security personnel within the employer's business in which the employee could have been placed. The Petitioner's employment was terminated later that evening. The testimony is conflicting regarding whether the Petitioner was discharged because he was dating another employee, or because he was injured, or quit in sympathy with Jess Wall, who was also terminated on that evening. The most credible evidence is that the Petitioner was discharged because of his injury, but was told it was because he was dating another employee. The prohibition against dating was a new rule, it was applied against the Petitioner without any prior warning, the female employee was not discharged, and the Petitioner was the only person discharged for this activity although there were others who dated employees. The alternative theory that Petitioner quit in sympathy with the head bouncer, Mr. Wall, is specifically rejected for lack of credibility of the various witnesses. The Petitioner subsequently settled his workman's compensation claim arising from this injury with the Respondent for $15,000. No details were received regarding the allocation of moneys for medical and wages. The Petitioner is entitled to back wages from his discharge until the hearing on April 27, 1995, less any mitigation, including any portion of the settlement of his workman's compensation claim attributable to lost wages, occurring after surgical repair of the hernia when the Petitioner was reemployed. The Petitioner is entitled to reasonable costs and attorneys fees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That the Commission find that the Petitioner was unlawfully discriminated against by the Respondent, and that the Respondent be ordered to pay the Petitioner his lost wages from May 1, 1993 until April 27, 1995 less any amounts the Petitioner earned during this period and any amounts included in the workman's compensation settlement specifically provided for wages; that the Commission retain jurisdiction for the award of damages and attorney's fees and costs; and the Commission remand the matter for a determination of the attorney's fees and costs and to permit the Respondent to present any evidence in mitigation of its damages. DONE and ENTERED this 20th day of June, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1995. APPENDIX The parties filed proposed findings which were read and considered. The following states which of their findings were adopted and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1,2 Subsumed in Paragraph 1 and 2. Paragraph 3-5 Subsumed in Paragraphs 3-5. Paragraph 6-8 Subsumed in Paragraphs 6-9. Paragraph 9 Subsumed in 3 and 11. Respondent's Recommended Order Findings Paragraphs 1-3 Paragraphs 1-3 Paragraph 4 Rejected because the date was April 29, 1993. Paragraph 5 Subsumed in Paragraphs 4,5. Paragraph 6,7 Rejected as contrary to more credible evidence. Paragraph 8,9 Subsumed in Paragraphs 10,11. COPIES FURNISHED: James P. Tarquin, Esquire Michael B. Staley, Esquire P.O. Box 906190 Ocala, FL 34478 John Daley, Esquire 201 E. Pine Street 15th Floor Orlando, FL 32801 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
