The Issue The issue to be considered in this matter is whether Petitioner meets the requisite qualifications for certification as a minority business enterprise (MBE).
Findings Of Fact Otto A. Lawrenz, a Native American, is the sole owner of Petitioner, Mechanical Air Products (MAP), located in Jacksonville, Florida. Petitioner was certified from December 12, 1992, through December 12, 1993, as a minority business enterprise (MBE). Recertification for Petitioner as an MBE for the period December 12, 1993 through December 12, 1994, occurred without incident following application by Petitioner. Petitioner is a business which specializes in provision of heating, ventilation and air conditioning equipment to its customers. Following application in December, 1994, Respondent denied Petitioner's request for recertification as an MBE by letter dated January 6, 1995. Respondent's denial of Petitioner's recertification resulted from amendments to Respondent's definition of "[r]egular dealer" as set forth in Rule 60A-2.001(10), Florida Administrative Code, and Respondent's determination that Petitioner did not meet that definition. Petitioner does not own, operate or maintain a store, warehouse or other establishment. As stated by Otto A. Lawrenz in correspondence to Respondent and reaffirmed by him at the final hearing, Petitioner is: manufacturer representative type of business that buys directly from various suppliers and factories I [Lawrenz] repre- sent. The products are purchased from this company and shipped direct to customers ship to address. I [Lawrenz] do not stock these products for inventory. Petitioner is presently provided some storage space free of charge by another, unaffiliated business, for storage of some products.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the application for certification as an MBE. DONE and ENTERED in Tallahassee, Florida, this 14th day of August, 1995. DON W. DAVIS, 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 14th day of August, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings Petitioner's post-hearing submittal consisted of documentation, not provided at the final hearing, dealing with Petitioner's heritage, and his arguments of the law relative to this case. Consequently, those matters are addressed as not relevant and argumentative for purposes of this proceeding. Petitioner may attack the rules applied to his case in a separate rule challenge proceeding. Respondent's Proposed Findings 1.-4. Accepted, but not verbatim. COPIES FURNISHED: Otto A. Lawrenz Mechanical Air Products P O Box 17746 Jacksonville, FL 32245 Joseph L. Shields, Esq. Commission On Minority Economic And Business Development 107 W Gaines St., 201 Collins Bldg. Tallahassee, FL 32399-2005 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development 107 W. Gaines St., 201 Collins Bldg. Tallahassee, FL 32399-2005
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
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 Petition for Relief. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent unlawfully terminated the employment of Petitioner, because of his age in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10, Florida Statutes. Whether Respondent retaliated against Petitioner by terminating him on October 3, 2005, after Petitioner filed a complaint with human resources alleging a hostile work environment.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Leviton Manufacturing Corporation manufactures electrical equipment and components. It is a New York corporation licensed to do business in the State of Florida. Inter allia, Respondent employs a sales force that covers the entire State of Florida. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 ("FCRA"). Respondent has implemented an employee handbook aimed at fostering a work environment that is free from harassment, discrimination and retaliation. Respondent's policies contain reporting and investigation procedures that encourage employees to report any and all incidents of perceived discrimination or harassment, and ensure that all reported incidents are investigated. Petitioner was employed with Respondent from June 1995 until November 2003, and from July 2004 through October 3, 2005. At the time of his termination, Petitioner was 49 years old. Petitioner first began working for Leviton in 1995 as a Service Representative. He received merit pay raises and promotions until November 2003, when Respondent laid-off 150 people in the retail division, including Petitioner. Petitioner was rehired in July 2004, as a Sales Representative. Upon rehire, Petitioner was supervised by District Manager Scott Robbins ("Robbins"). Petitioner presented the testimony of three of Respondent's managers, one retired, who supervised Petitioner for various periods of Petitioner's nine and one-half year career with Respondent. Each of them testified that Petitioner was dedicated and professional in which ever position he was assigned, including two assignments as a manager. Scott Robbins, Petitioner's supervisor immediately prior to Goodman, recommended Petitioner for re-hire as a Sales Representative following a lay-off, and was satisfied with his work in that position. Petitioner also presented the testimony of 12 customers of Respondent, in the territory that he covered between July 2004 and October 2005. Each of them expressed their opinion that Petitioner was an honest, diligent, and professional sales representative for his employer. Respondent presented the testimony of one customer who was not satisfied with Petitioner's performance as a sales representative. In January 2005, District Manager Warren Goodman ("Goodman") replaced Robbins and assumed his territories as well as his role as Petitioner's supervisor. At the time Petitioner was terminated, Goodman was 48 years old. Goodman supervised, and currently supervises, at least, 12 Sales Representatives, the majority of whom are over the age of 40, to wit: Name Age Name Age Roy Boykin 59 Mickey Ferrell 49 Don Yeager 59 Jose Monzon 40 Michael O'Reilly 56 Duane Bishop 38 Dave Lenoir 37 Kevin Bouton 34 Ken Davis 54 Paul Dube 41 Brad Taylor 10. When Goodman 52 took over as District Manager, it became readily apparent that Goodman's management style was distinctly different from Robbins. Goodman is demanding, blunt and aggressive, and closely manages his sales representatives. He expected prompt and accurate responses to his requests from his sales representatives. Petitioner was required to fulfill the same job expectations that were demanded of all other Sales Representatives. It included, but was not limited to, the timely submission of complete and accurate paperwork, client follow up, and travel to specific areas within his designated territory. Petitioner's area extended from Lakeland, Florida, to Thomasville, Georgia. Goodman expected Petitioner to visit customers in his territory at least every three weeks, staying at least two to three days on each trip at each location. Goodman's job as District Manager is to oversee his sales force and to enforce Leviton's guidelines, as he interprets them. Moreover, Goodman is charged with measuring his employees' compliance with Leviton's policies and procedures. Over the course of his tenure, Petitioner failed to abide by company rules and policies, as well as the terms of his employment, as understood by Goodman. On more than one occasion, Petitioner failed to provide expense reimbursements in an appropriate and timely manner. He also failed to travel with the frequency required by his sales position. Additionally, on numerous occasions, Petitioner failed to verify the accuracy of orders he placed for customers. On May 2, 2005, Goodman sent Petitioner an email addressing the importance of administrative responsibility and consistency. Goodman had just reviewed Petitioner's expense reports and noted that they covered a ten-week period, clearly in violation of the requirement that they be submitted within 30 days. Goodman also noted that the expense reports reflected no travel over a two-month period to the Thomasville/Tallahassee area, which composed a large portion of Petitioner's territory. Goodman requested that, thereafter, Petitioner forward his itinerary weekly, attaching as an example a copy of itineraries submitted by Petitioner's colleagues. Petitioner responded, apologizing for the late expenses. He attributed his tardiness in part to a change in his cellular telephone carrier. Petitioner set forth all his travel dates within the northern portion of his territory since his re-hire. The dates provided demonstrated that he was not in compliance with the travel requirements established for all Sales Representatives. Goodman responded and reminded Petitioner of the importance of adhering to guidelines for travel and paperwork submission. He encouraged Petitioner to improve his performance and to do what was necessary to satisfy Goodman's expectations of the proper skills necessary to do his job effectively. On May 9, 2005, Petitioner sent Goodman an email indicating his car was being repaired. The repair estimates attached to the email evidenced that Petitioner had been driving a 12-year-old vehicle, which was not within Respondent's car policy guidelines. Petitioner had reviewed and signed the car policy guidelines on January 12, 2005, and began receiving monthly payments (including retroactive payments), effective February 11, 2005. On May 18, 2005, Petitioner received and signed an Employee Warning. Significantly, Petitioner signed the Employee Warning indicating that he read and understood it. The Employee Warning cited violations for substandard job performance and violations of company policies or procedures, with specific reprimands for: (1) failure to timely submit expense reports; (2) failure to travel as specified and agreed to; (3) sloppy submission of paperwork; (4) lack of involvement with customer; and (5) failure to maintain a proper company vehicle in accordance with company policy. Shortly thereafter, Petitioner purchased a new truck for the purpose of meeting the company vehicle policy. On May 31, 2005, Goodman reviewed numerous quotes submitted by Petitioner for review and renewal. Goodman informed Petitioner that upon review, the quotes prepared by Petitioner were inaccurate and required various revisions and corrections. Some quotes were priced higher than stock; different prices were entered for the same item in a different color (when there should have been no price difference); there were items on quotes that were never purchased; and there was no increase in items ordered/quoted. In August 2005, Goodman advised Petitioner that his sales goals were not ambitious enough and that Petitioner needed to re-evaluate and re-consider his year-end goals. Petitioner indicated that he would do as instructed. In mid-August 2005, Petitioner once again submitted an incomplete quote to Goodman for approval. When brought to Petitioner's attention, he added the items missing from the quote, offering no explanation for this oversight. On August 30, 2005, Petitioner submitted order adjustments to Goodman's administrative assistant for completion. When the request was forwarded to Goodman, he immediately reminded Petitioner that all changes were required to be submitted to him, not his assistant. Moreover, the requested changes contained errors. Goodman requested that Petitioner review the complete order and re-submit it when it was accurate. Three days later, Petitioner still had not acknowledged or responded to Goodman's request. Goodman completed and submitted Petitioner's performance review on July 25, 2005. Due to the fact that no prior goals or skills development were accomplished by Petitioner, his review was deferred until the end of 2005. Based upon his seven-month assessment of Petitioner, Goodman felt that Petitioner only partially met expectations. Rather than precluding a merit increase in salary, Goodman gave Petitioner an opportunity to improve his performance by deferring his review for several months. Petitioner signed this July review, indicating that Goodman discussed the review and appraisal with him. On September 5, 2005, (Labor Day, a holiday) Goodman sent an email to all of his Sale Representatives, which required a response to specific inquiries no later than 5:00 p.m. Petitioner did not respond until September 7, 2005, at 4:15 p.m. This was clearly past the deadline. Goodman reprimanded Petitioner in his responsive email, specifically advising Petitioner that his continued employment was in jeopardy. He invited Petitioner to call Goodman the next day to discuss Petitioner's lack of diligence and timeliness. Only after a telephone call on the morning of September 9, 2005, did Petitioner, for the first time raise the issue of unfair treatment, but he did not raise age as a factor. Petitioner requested, via email, that Goodman assist Petitioner in filing a complaint against Goodman with Leviton's Human Resource Department for creating a hostile work environment. In this same email, Petitioner informed Goodman that Petitioner had involved clients in his grievance by requesting that the clients evaluate Petitioner's performance and provide their input to Respondent. Based upon the preceding client involvement, Goodman advised Petitioner on September 12, 2005, that he was suspended immediately, with pay, pending the outcome of Respondent's investigation regarding Petitioner's inappropriate conduct. Petitioner was therefore instructed to maintain contact with only the Human Resources Department (HR) until further notice. Thereafter, Petitioner corresponded, via email, with Shephard. On September 13, 2005, Petitioner forwarded his May 5, 2005, email exchange with Goodman to Kimberly Shephard, Respondent's Corporate Human Resource Manager. On that same day, Petitioner sent another email to Shephard containing a list of items that were still incomplete and required follow up. In forwarding this lengthy "to do" list, Petitioner demonstrated his inattention to detail and inability to complete administrative tasks. On September 16, 2005, Shephard drafted Petitioner's allegations in memorandum format, the accuracy of which Petitioner verified and signed on September 20, 2005. Goodman was given a copy of the allegations and provided a written response on September 19, 2005, refuting each of Petitioner's allegations. Meanwhile, HR conducted interviews with a random selection of Goodman's employees in the district and noted each employee's assessment of Goodman. Goodman was determined by each of the interviewed employees to provide equal treatment to all employees. The employees interviewed ranged in age from 35 to 58. On or about September 20, 2005, Shephard completed her investigation of Petitioner's complaint and determined that there was no basis that Goodman created an unlawful hostile work environment. Rather, it was determined that Goodman set the same standards for all of his employees; treated them all the same; and that accordingly, there was no basis to conclude Petitioner was singled out. Petitioner was ultimately terminated on October 3, 2005. The reasons cited by Respondent were based on Petitioner's unsatisfactory job performance. The specific reasons given for Petitioner's termination were: (1) his inability to perform the tasks associated with the Sales Representative position; (2) his failure to develop end-users sufficiently; (3) his administrative inadequacies; (4) his failure to meet deadlines and failure to follow instructions; and (5) his choosing to enlist customers in an internal company matter pertaining to Petitioner's poor job performance. Although Respondent determined that Petitioner's involvement of customer's in an internal dispute was grounds for immediate termination, Respondent determined it would investigate Petitioner's complaint prior to taking other action, since it occurred at the same time as the allegations of improper conduct by Goodman. At no time was Petitioner's age raised as a factor in any of the terms and conditions of his employment by Respondent. Nor was it a factor in any work related complaints regarding his deficiencies. Petitioner never informed any member of Respondent's management that he believed he was treated differently during his employment because of his age, or that he had been terminated due to his age. After Petitioner was terminated, Respondent did not hire anyone to replace him. Rather, Respondent re-assigned Petitioner's territory to existing salesmen. Paul Dube ("Dube"), aged 41, inherited the majority of Petitioner's territory. Goodman did not require that Dube travel to, or invest time in customers that only did a nominal amount of business with Respondent. Petitioner attempted to establish that he was unable to respond to several of Goodman's inquiries in a timely manner, or at all, because Petitioner's computer was being repaired by Respondent's IT department. Nevertheless, Petitioner had access to his work email via Respondent's webmail program during this period. Petitioner failed to prove by a preponderance of the evidence that he was terminated by Respondent because of his age. Respondent failed to prove by a preponderance of the evidence that he was subject to retaliation after he filed a hostile work environment complaint with Respondent's HR department.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is, hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order denying Petitioner's Petition for Relief and dismissing his charge with prejudice. DONE AND ENTERED this 13th day of August, 2007, in Tallahassee, Leon County, Florida. S 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 13th day of August, 2007.
The Issue Whether Petitioner should be granted certification as a Minority Business Enterprise.
Findings Of Fact Petitioner, Dora Industries, Inc. (Dora Industries), was started in 1989 by Sandra Roth (Roth), an American woman. Roth owns all of the company. Initially, Dora Industries bought janitorial and maintenance products from other companies and sold the products as a distributor. Roth graduated from Hunter College with a degree in graphic arts. From 1979 to 1985, she worked for Union Carbide in North Carolina doing research for the chemical division. She was later placed in charge of dealing with third world countries on ways to use chemicals in agriculture. In 1986, Roth went to work for Gold Coast Chemical Corporation (Gold Coast Corporation), which was owned by Eli Finkleberg. Her role at Gold Coast Corporation included doing the paperwork necessary for registering the chemicals manufactured by Gold Coast Corporations with the appropriate regulatory agency. In 1989, Roth formed Dora Industries and married Eli Finkleberg. Dora Industries purchased some of its products from Gold Coast Corporation. Due to ill health, Eli Finkleberg put Gold Coast Corporation up for sale in 1993. The company was advertised for sale in trade magazines. Using funds which Roth had acquired from the dissolution of a previous marriage, she purchased the manufacturing operations of Gold Coast Corporation in 1993. The purchase price was $96,000, which consisted of $47,091 in cash and the remainder in the assumption and payment of certain leases and contracts. In addition, Roth agreed to renegotiate the lease of the real property on which Gold Coast Corporation was housed to include the costs of clean up for hazardous materials which were found in the ground underneath the Gold Coast Corporation warehouse. The landlord attributed the presence of the hazardous materials to Gold Coast Corporation. The estimated cost of the clean up was not to exceed $200,000. The inventory of Gold Coast Corporation was not included in the sale. However, the inventory remained in the warehouse previously occupied by Gold Coast Corporation and was handled for Gold Coast Corporation by Dora Industries d/b/a Gold Coast Chemical Products (Gold Coast Products). After the inventory was sold Gold Coast Corporation no longer sold any products and has not actively sold chemicals for the last two years. Currently Dora Industries is manufacturing chemical cleaning products, distributing its own products and the products of other companies, and exporting products. Eli Finkleberg is the treasurer and a salaried employee of Dora Industries. His responsibilities include interviewing applicants for sales positions, running the sales division of the company, overseeing the sales manager, and supervising the office staff. His annual salary is approximately $35,000. Due to his poor health, he works between four and six hours a day. Jerome Berman is the general manager in charge of operations for Dora Industries. Mr. Berman owned and ran a chemical company for 23 years prior to coming to work for Dora Industries. His responsibilities include ordering all materials and supplies used in the production of and resale of industrial supplies, hiring and firing of all warehouse and distribution personnel, complying with governmental regulations, bidding, and supervising the warehouse and productions. Mr. Berman's annual salary is $57,000. Both Mr. Berman and Mr. Finkleberg have the authority to sign checks on the Dora Industries account. Mr. Berman's authority is limited to $5,000. Roth is responsible for making major purchases for the business such as a telephone system which she recently acquired. Roth employs a chemist who is responsible for the formulas used in the manufacture of the chemical products. This is the third chemist which Roth has employed since she started Dora Industries. Some of the formulas are given to Dora Industries by the suppliers of the raw materials, and some formulas are developed by the chemist. Roth does not have the expertise to develop formulas but she does have the expertise to manufacture a batch of products using a formula. Each day Roth discusses the sales and operations with Mr. Finkleberg and Mr. Berman, respectively. In the hiring of sales personnel, Roth meets the applicants which have been interviewed by Mr. Finkleberg and makes the final decision on who to hire. Roth has delegated the hiring of the hourly wage personnel in the warehouse to Mr. Berman. According to Berman, he advises Roth who he intends to hire in case she should have an objection. Mr. Berman has to report the reasons that he fires personnel to Roth. Roth did the bidding for the company before Mr. Berman was hired. Mr. Berman follows a set formula of cost plus a percentage of profit in the bidding process and requests permission from Roth before making any significant deviations from the formula. Eli Finkleberg owns Trout and Associates, which is a telemarketing firm selling cleaning chemicals to companies outside of Florida. Trout and Associates has one full-time employee and one part-time employee. The full-time employee is housed in an office in the building occupied by Dora Industries. Trout and Associates buys some of its products from Dora Industries for resale.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner certification as a minority business enterprise. DONE AND ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Lorenzo Ramunno, Esquire 1882 North University Drive Plantation, Florida 33322 Joseph L. Shields, Senior Attorney Office of the General Counsel Department of Labor and Employment Security, Division of Minority Business Advocacy and Assistance Office 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle Southeast 303 Hartman Building Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle Southeast 303 Hartman Building Tallahassee, Florida 32399-2152
Findings Of Fact Romulo Banos, officer, director, and sole stockholder of respondent was convicted, on his guilty plea, of a felony under federal law on August 27, 1980, viz., a violation of Title 21 USC 963, conspiracy to import marijuana.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner revoke respondent's license. DONE AND ENTERED this 18th day of June, 1981, 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 19th day of June, 1981. COPIES FURNISHED: Dennis E. LaRosa, Esquire 725 South Bronough Street Tallahassee, Florida 32301 Captain John Harris 1350 Northwest 12 Avenue Miami, Florida 33136 Rene Valdes 1710 Northwest 17 Street Miami, Florida 33125
Findings Of Fact The following findings of fact are made based upon a stipulation entered into by all parties on the record: S & L Property Managements, Inc., Intervenor, was the lowest bidder for lease number 590:1651 by between approximately $84,000 and $105,000, exclusive of moving costs, over the basic five year term of the lease. There is no evidence that Intervenor's facility (Howard Building) is structurally unsound, and in fact the Department of Health and Rehabilitative services, Respondent, procured an engineering report which showed Intervenor's facility to be structurally sound. Both Intervenor's and Southmark Management Corporation's, Petitioner's, bids on this lease met all bid requirements. Both were qualified bidders for award of this leased except for Petitioner's objection and contention that bidders were required to include present value calculations with their bids, which Petitioner did but Intervenor did not. Intervenor agreed with Respondent that if it received this award, it would renovate the leased space in its facility to meet Respondent's reasonable requirements. There is no issue regarding the conformity of Intervenor's bid with handicap design requirements. Preaward documents, memoranda and correspondence from Respondent only recommended that Petitioner be awarded this lease and did not advise Petitioner it had been awarded the lease. Robert Brady, Respondent's Director of General services, was the person who was to make the final decision concerning the award of this lease. Prior to the award of the lease to Intervenor, Brady determined that the Department of Corrections, present tenant in Intervenor's facility was satisfied with its occupancy, and also that the leased space would meet bid specifications. Petitioner chose to leave its bid open, even though it could have withdrawn its bid after the expiration of the thirty day period following the bid opening. Both Petitioner and Intervenor took actions and expended sums of money in the expectation of being awarded the lease. Intervenor acted after being advised it had been awarded this lease. There is no allegation by Petitioner that the award of this lease to Intervenor was made on the basis of any improper influence exerted upon or by Respondent by any of the bidders, or by any other person. Respondent delayed the award of this lease beyond thirty days after the bid opening. The following findings of fact are made based upon the evidence presented: Petitioner and Intervenor timely submitted bids in response to Respondent's Invitation to Bid on lease number 590:1651 which was for 12,312 square feet of space for the Office of Disability Determination in Tampa, Hillsborough County, Florida. The Office of Disability Determination had been a tenant in Petitioner's facility for six years, and continues to occupy space in Petitioner's facility until this bid protest is resolved. Since approximately October 1984 Respondent has not had a written lease with Petitioner for its present space despite repeated efforts by Petitioner to obtain an executed lease from Respondent. Bids which were received were evaluated by a three person committee composed of Respondent's employees familiar with the space needs of the Office of Disability Determination. The evaluation criteria, or award factors, were set forth in the Invitation to Bid. Rental rate over the basic term of the lease was weighted twice as heavily as any of the other eleven (11) criteria. Upon its initial review, the committee recommended that the award be made to Petitioner, and Leonard Polinsky, Property Manager for Petitioners was informed of this recommendation. Based upon a 100 point scaled Petitioner's initial evaluation was from .2 to 2 points higher than Intervenor's. Polinsky assumed that the actual award was a mere formality, and therefore expended approximately $700 for preliminary architectural sketches of lease space renovations. This initial evaluation committee recommendation was based, in part, on its concerns about the structural soundness and maintenance of Intervenor's facility. Petitioner did not know who would actually make the award on behalf of Respondent or what the authority of the evaluation committee was. Petitioner did not object to Respondent's delay of this award beyond the thirty-day time period called for in the Invitation to Bid, and suffered no harm as a result of this delay. The delay was caused by Respondent's investigation of the structural soundness of Intervenor's facility, as well as the experience of its present tenants. Following completion of this investigation, the evaluation committee met again, reevaluated the bids, and recommended Intervenor be awarded this lease. Respondent, through Robert Brady, determined that the award should be made to Intervenor after completing its investigation, reviewing the committee's reevaluation of bids, and being satisfied that this award would be in the best interests of the state. This decision was based primarily on the following factors: After investigation, no structural or maintenance problems were found to exist, which had been initial concerns of the committee. Intervenor was low bidder for the lease over the five year term of the lease. Both bids were responsive and met all bid requirements. Intervenor's facility was shown to be structurally sound and suitable for Respondent's needs. Intervenor's failure to include present value calculations of the rental rate in its bid did not disqualify it since bidders were not required to include these calculations. Respondent routinely did its own calculations of present value on each bid.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order awarding lease number 590:1651 to Intervenor. DONE and ENTERED this 15th day of November 1985, at Tallahassee Florida. Hearings Hearings DONALD D. CONN, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15day of November 1985. APPENDIX (DOAH Case No. 85-3158BID) Rulings on Petitioner's Proposed Findings of Fact: 1-2. Adopted in Finding of Fact 13. Rejected as a Finding of Fact but included in introductory material. Rejected as simply a statement of position. Adopted in part in Finding of Fact 14. Rejected as irrelevant and unnecessary. Adopted in Findings of Fact 9, 12, 16. 8-9. Adopted in part in Finding of Fact 13, otherwise rejected as irrelevant and unnecessary. 10-11. Adopted in part in Finding of Fact 14, otherwise rejected as irrelevant and not based on competent substantial evidence. Rejected as unnecessary and irrelevant. Adopted in part in Finding of Fact 14. 14-16. Rejected as simply a statement of position and argument in support of Petitioner's position. 17. Adopted in Finding of Fact 1. 18-19. Adopted in part in Finding of Fact 14, but rejected in part in Finding of Fact 17. Rejected as simply a statement of position and argument thereon. Rejected in Findings of Fact 14, 17 and otherwise not based on competent substantial evidence. Adopted in part in Findings of Fact 2, 8 but otherwise rejected as simply a statement of position and argument thereon. Rulings on Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 13. 2-3. Rejected as irrelevant and unnecessary in light of Findings of Fact 6, 7, 17. Adopted in Finding of Fact 14. Adopted in Finding of Fact 6. Adopted in Finding of Fact 14. Adopted in Finding of Fact 17. 8-12. Rejected as irrelevant, unnecessary and cumulative. 13. Adopted in part in Finding of Fact 14. 14. Adopted in Finding of Fact 1. 15. Adopted in Finding of Fact 2. 16. Adopted in Finding of Fact 3. 17. Adopted in Finding of Fact 4. 18. Adopted in Finding of Fact 5. 19. Adopted in Finding of Fact 6. 20. Adopted in Finding of Fact 7. 21. Adopted in Finding of Fact 8. 22. Adopted in Finding of Fact 9. 23. Adopted in Finding of Fact 10. 24. Adopted in Finding of Fact 11. 25. Adopted in Finding of Fact 12. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 18. Rulings on Intervenor's Proposed Findings of Fact: 1-2. Rejected as a conclusion of law and otherwise unnecessary. 3. Adopted, as to the first sentence; in Finding of Fact 17, otherwise rejected as simply a statement of position. 4-5. Rejected as simply a statement of position. Adopted in Findings of Fact 1-12 with the exception of proposed finding 6(k) which the transcript does not reflect as part of the stipulation, but which is adopted in Findings of Fact 14, 15, 17. Adopted in Finding of Fact 13. 8-10. Adopted in Finding of Fact 14. Rejected as simply a summary of testimony. Rejected as simply a summary of testimony, and otherwise cumulative and unnecessary. Adopted in Finding of Fact 18. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. 16-18. Adopted in Finding of Fact 16. 19. Rejected as irrelevant and unnecessary. 20-21. Adopted in part in Finding of Fact 17, but otherwise rejected as cumulative. 22-26. Rejected as cumulative and unnecessary. COPIES FURNISHED: William E. Powers, Jr., Esquire Post Office Box 11240 Tallahassee, Florida 32302 David P. Gauldin Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 Joseph A. O'Friel Esquire 100 Twiggs Street Tampa, Florida 33602 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against by being terminated, allegedly on account of her race, and in retaliation for filing a claim concerning discrimination.
Findings Of Fact Tammy King, the Petitioner, became employed by the Respondent in June of 2000. She was employed as an operations manager, supervising the cleaning service work for various customer accounts as well as the people employed to perform the cleaning service work for those accounts. She was employed by the Respondent for approximately one year. The owners of the Respondent company are Linda and Daniel Coley. On October 18, 2000, Ms. King was evaluated by her evaluator and supervisor Christopher Stettner and received an excellent evaluation, which was apparently co-extensive with the end of her probationary period. Gene Janushanis also was in a supervisory capacity over the Petitioner. Mr. Janushanis, in his supervisory role, is the primary focus of the Peititoner's complaint of discriminatory conduct concerning his conduct and attitude toward her. The Petitioner contends, in essence, that Mr. Janushanis refused to allow the Petitioner to discipline black employees and treated her more harshly, with harassment, including cursing at her, and otherwise interfered with her performance of her job. She stated that he treated black employees, including black supervisors in similar positions to the Petitioner, more favorably, as to disciplinary or job performance issues, than he treated the Petitioner. The Petitioner maintains that she had no problems, disciplinary or otherwise, in the performance of her job before Mr. Janushanis was hired as her supervisor and that their numerous altercations commenced shortly thereafter. However, she also developed a difficult relationship with Christopher Stettner, the supervisor who gave her the excellent evaluation at the end of her probationary period. Apparently, their relationship deteriorated soon thereafter and became quite hostile. In fact, Mr. Stettner filed an internal complaint or grievance against the Petitioner concerning alleged harassment of him by the Petitioner. This resulted in the Respondent's scheduling additional "anti-harassment training" for the Petitioner and other employees thereafter. Thus, a hostile relationship with abrasive arguments ensued between the Petitioner and Mr. Stettner, as well as between the Petitioner and Mr. Janushanis, starting in the late part of 2000 and through the first half of the year 2001. Cassey Clark, the Human Relations Director for Respondent, witnessed a number of "very harsh arguments" between Tammy King and office employees or supervisors Dwayne Coley, Chris Stettner, and Gene Janushanis. Both owners and employees witnessed very hostile, violent arguments between Mr. Janushanis and the Petitioner on a number of occasions, sometimes in the presence of customers of the company and generally in the presence of other employees or owners. These altercations included instances where the Petitioner refused to perform directions of her supervisor. Additionally, a substantial number of employees had verbal altercations with the Petitioner concerning receiving credit for, and payment for, the hours they had worked. On a repetitive basis the Petitioner failed to submit correct hours for the payroll and in one case got into a verbal altercation with an employee, Sonya Ross, chased the employee out in the parking lot, and refused to give her her last paycheck, telling her that she would mail the check to her, which was against company policy. The Petitioner exhibited a hostile, threatening attitude and conduct toward employees concerning hours worked and other aspects of her opinion of the way they were performing their jobs, as well as concerning payroll issues. Such instances occurred with at least nine employees. This hostile, threatening attitude and failure to comply with the payroll policies of the Respondent, as well as the several instances of the Petitioner failing to perform as directed by her supervisors, constituted misconduct under the regular policies of the Respondent. These instances of misconduct occurred on a frequent basis through the first half of 2001, including an instance where an employee called to state that she had to be out for two days because her baby was sick with a high fever. The employee followed company policy and provided documentation from the physician involved concerning her need to be off from work. She then called Tammy King to say that she had to go back to the hospital with her child, and Ms. King told her that she would be terminated. The employee then called the owner, Linda Coley, to inform her of the problem because she was afraid of losing her job. Ms. Coley then spoke with Ms. King and reminded her that it was against company policy to terminate an employee if he or she brought proper documentation from the physician or hospital, which was the case. This also was a clear violation of company policy concerning employees and supervisors. These instances of misconduct and the very hostile verbal altercations between the Petitioner and Mr. Janushanis, her branch manager, continued until June of 2001. The Respondent counseled with both the Petitioner and Mr. Janushanis about their conduct and attitude between themselves and toward other employees. Ultimately the decision was made in mid-June 2001 to terminate the Petitioner and Mr. Janushanis as well. On June 22, 2001, the Petitioner was terminated, as was Mr. Janushanis, on the same date. On June 20, 2001, the Petitioner had filed a complaint with the EEOC, by letter, and informed the Respondent of that fact. The decision to terminate the Petitioner, however, had been made prior to the filing of the complaint with the EEOC. The Petitioner has failed to establish that any actions taken by the Respondent toward her were related to her race. The supervisor complained of by the Petitioner was of the same race, white, and there is no persuasive evidence that shows any intent by the owners or management of the company to treat similarly-situated members of another race more favorably. In fact, there was preponderant and substantial evidence of misconduct on behalf of the Petitioner which established a legitimate, nondiscriminatory reason for her termination. Although her initial performance was rated as excellent in the initial months of her employment, the Petitioner failed to continue that level of performance. In fact, her misconduct on the job, including the instances enumerated in the above findings of fact shows that the Petitioner's conduct and performance had deteriorated so that she was not properly performing the various requirements of her employment position, when viewed in the context of regularly- adopted company policy. Upon the Respondent's becoming aware of these conduct shortcomings, and failure to properly perform in her position, as well as the improper conduct by her supervisor, the Respondent did not condone the Petitioner's level of conduct nor that of her supervisor, Mr. Janushanias. Rather, the Respondent sought to assist them in improving their conduct and performance. When these efforts were not successful, the Respondent ultimately terminated both of them.
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 Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 3rd day of December, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 2003. COPIES FURNISHED: K. Jeffrey Reynolds, Esquire 924 N. Palafox Street Pensacola, Florida 32501 Banks T. Smith, Esquire Hall, Smith & Jones Post Office Box 1748 Dothan, Alabama 36302 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Suite 100 Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her age and handicap contrary to Subsection 760.10(1), Florida Statutes (2003); and (b) whether Respondent committed an unlawful employment practice by retaliating against Petitioner contrary to Subsection 760.10(7), Florida Statutes (2003).
Findings Of Fact From March 30, 1998, until April 9, 2002, Respondent employed Petitioner as a payroll and billing clerk at Respondent’s Pensacola support center. The role of the support center is to process payroll checks and billing for 85 to 90 of Respondent’s field offices in five states. In January 1999, Petitioner applied for the team lead position in the payroll department. Jessica Pope, one of Petitioner’s co-workers, also applied for the position. Like Petitioner, Ms. Pope had worked at the support center for about a year. The role of the team lead is to handle questions and problems from other members of the team. The employee chosen to act as team lead must be adaptable and have leadership, teamwork, and communication skills. Sandi Hartzog, support center manager, and Kerri Golmon, payroll supervisor, selected Ms. Pope for the team lead position because they believed that Ms. Pope demonstrated better leadership and teamwork skills than Petitioner. Additionally, Ms. Pope had prior management experience. Ms. Pope’s performance appraisal for the relevant time period (June 1998 through May 1999) rated her teamwork skills as a "4," or "Above Expectations." Petitioner’s performance appraisal for that time period (April 1998 through March 1999) rated Petitioner’s teamwork skills as a "3," or "Meets Expectations." In or about June 1999, Petitioner informed Ms. Hartzog, that she suffered from allergies. Petitioner also informed Ms. Hartzog that her condition was exacerbated by scents. Petitioner requested that Ms. Hartzog prohibit all employees at the support center from wearing any scented substances, including perfumes and colognes. Ms. Hartzog informed Petitioner that she would not impose a scent-free environment but that she would request that support center employees voluntarily refrain from wearing strongly scented substances. Accordingly, Ms. Hartzog sent an e-mail to all support center employees on June 11, 1999, requesting that they voluntarily refrain from wearing perfume and cologne in the workplace. Ms. Hartzog also requested that Petitioner provide medical documentation regarding her health condition. In response to Ms. Hartzog’s request for medical information, Petitioner provided Ms. Hartzog with a memorandum dated June 22, 1999, from Tanya Hodge, nurse practitioner. The memorandum stated that Petitioner was "under the care" of the First Physicians Internal Medicine Group and that "she has been evaluated" for several conditions. The memorandum did not contain a medical diagnosis. In February 2000, Petitioner requested that Ms. Golmon send out another e-mail reminding her co-workers not to wear fragrances in the office. Ms. Golmon complied and sent a reminder to all employees at the support center asking them to refrain from wearing perfumes and colognes. In February 2001, Petitioner again requested that Ms. Golmon send out a reminder regarding fragrances in the office. Within a half-hour, Ms. Golmon sent out another reminder to all employees at the support center. In addition to sending out these periodic reminders concerning the wearing of fragrances, Ms. Golmon warned several employees concerning their wearing of fragrances in the office. Ms. Golmon threatened to discipline employees who continued to wear fragrances. Ms. Golmon attempted to police the wearing of fragrances in the workplace because Ms. Golmon knew fragrances bothered Petitioner. Ms. Golmon wanted to "keep some sort of peace" and "ease tension in the office." Despite Ms. Golmon’s efforts to prevent Petitioner’s co-workers from wearing fragrances, Petitioner confronted employees who were wearing fragrances on her own. These employees complained to Ms. Golmon that Petitioner was singling them out and ignoring other co-workers who were also wearing fragrances. Petitioner also complained to Dawn Adams, an employee relations representative at Respondent’s headquarters in Milwaukee, Wisconsin, about the wearing of fragrances at the support center. In an e-mail dated August 31, 2001, Petitioner told Ms. Adams that her supervisors were taking her condition lightly and suggested that Respondent adopt a policy for a mandatory "scent-free environment." In October 2001, Petitioner complained to Respondent concerning mold in the support center building. Because Respondent was only a tenant in the building, Ms. Hartzog contacted building management. The landlord subsequently remediated the mold damage. Ms. Hartzog permitted any employees who were bothered by the construction to leave the office early. Ms. Hartzog did not dock the pay of anyone who left work early. Petitioner took advantage of this opportunity. On October 3, 2001, Ms. Hartzog again requested medical documentation of Petitioner's health condition with respect to her request for an accommodation. Ms. Hartzog gave Petitioner a form/doctor's certificate for Petitioner's doctor to complete. A series of e-mails followed in which Petitioner stated that she had provided the form to her doctor and would provide it to Ms. Hartzog as soon as she received it. However, Petitioner never returned the completed form to Ms. Hartzog. On October 4, 2001, Petitioner sent an e-mail to Ms. Adams complaining about Respondent’s handling of the mold problem. Petitioner's e-mail included a reference to a prior inquiry from Ms. Adams, asking whether Respondent would pay employees who left early during the mold-removal construction. Petitioner copied this e-mail to, among other people, Respondent’s president, Jeffrey Joerres. In her October 4, 2001, e-mail, Petitioner mentioned that three of her co-workers, Ms. Pope, Joyce Hillig, and Mary Jordan, also suffered from allergies and breathing problems. Each of these co-workers were copied on the e-mail. Shortly thereafter, each of the co-workers complained to Petitioner’s supervisors and/or to Petitioner herself that they were upset for the following reasons: (a) Petitioner included them in her complaint; and (b) Petitioner disclosed their medical conditions to, among other people, Respondent’s president. Around that same time, Ms. Golmon learned about the complaint of another of Petitioner’s co-workers. Specifically, Felicia Myrick, complained to her supervisor about Petitioner's unannounced visit to Ms. Myrick's home to discuss Petitioner's concerns about mold and air quality in the support center building. Petitioner’s actions, such as involving co-workers in an e-mail to Respondent's president, caused tension in the office. Ms. Golmon was aware that the tension adversely affected the cohesiveness of the team. Petitioner received a verbal warning on October 8, 2001, for confronting co-workers regarding their use of cologne and for inappropriately discussing other employees’ medical conditions. Ms. Hartzog and Ms. Golmon also informed Petitioner in a meeting on October 8, 2001, that further such conduct could result in further disciplinary action, up to, and including, termination. After receiving the verbal warning, Petitioner continued to confront co-workers regarding fragrances in the workplace. She also conducted herself in other ways that made her co-workers feel threatened and uncomfortable. In October 2001, Tim Gainer was Respondent's payroll/billing clerk in charge of bridge error corrections. Petitioner was his assistant. When Mr. Gainer announced that he was resigning his position, Petitioner understood that she would replace Mr. Gainer and that Tracy Hughes, a temporary employee, would be Petitioner's assistant. However, Respondent subsequently trained Ms. Hughes and increased her pay equal to Petitioner's pay rate. Ms. Hughes' desk was placed next to Petitioner's desk so that they could share all books and paperwork pertaining to bridge error corrections. There is no competent evidence that Ms. Hughes, a younger person than Petitioner, was treated more favorably than Petitioner. On March 8, 2002, Petitioner confronted a co-worker, Tenisha Malden, at her desk. Petitioner handed Ms. Malden an e-mail about spraying air freshener in the women’s restroom. The e-mail erroneously implied that Ms. Malden was purposefully attempting to harm Petitioner by using air freshener. Ms. Malden was offended by Petitioner’s accusation. Ms. Malden also worried that Petitioner intended to report to management that Ms. Malden was attempting to harm Petitioner. Ms. Malden reported this incident to Ms. Golmon. On March 20, 2002, Petitioner called an attorney from her desk during work hours. During the telephone call, Petitioner inquired about filing a civil lawsuit against co-workers who were intentionally causing her harm. Petitioner spoke in a raised voice so that several of her co-workers, including Ms. Pope and Ms. Hughes, could hear her side of the conversation. Both Ms. Pope and Ms. Hughes felt threatened and anxious about Petitioner’s discussion of suing a co-worker. Ms. Pope reported this disruptive incident to Ms. Golmon. Both Ms. Pope and Ms. Hughes felt that Petitioner was "unapproachable." Ms. Pope and Ms. Hughes were concerned that any interaction with Petitioner could upset or offend her. Other employees also avoided approaching Petitioner's work area, because she created a "tense" and "uncomfortable" atmosphere in the office. Petitioner’s conduct left the team unable to work together as well as it should have. On March 27, 2002, Respondent gave Petitioner a written warning. The warning specifically referenced the incident with Ms. Malden and the telephone call to the attorney. In the warning, Respondent informed Petitioner that such conduct "negatively affect[ed] productivity, individual and team performance, and morale, as well as cause[d] conflict and fear"; and that Petitioner "must discontinue the inappropriate and confrontational behavior with coworkers as well as the abuse of company time, systems and equipment, etc." The written warning also stated, "If this behavior or any form of retaliatory action occurs, further disciplinary action up to and including termination, will occur." Ms. Hartzog and Ms. Golmon met with Petitioner on March 27, 2002, to discuss the written warning. On April 5, 2002, approximately ten days after receiving the written warning, Petitioner initiated a discussion with Ms. Hughes regarding her employment status. Petitioner stated that she was the reason Ms. Hughes could not become a permanent employee. Petitioner further told Ms. Hughes, "I like you but I don’t like you that much." Apparently, Petitioner believed that Respondent had not made Ms. Hughes a permanent employee due to Petitioner's complaints about Ms. Hughes receiving equal job responsibilities and rate of pay. Ms. Hughes was confused and bothered by the conversation, which implied that Petitioner had control over Ms. Hughes’ employment status and that Petitioner had a problem with Ms. Hughes. The conversation made Ms. Hughes apprehensive about approaching Petitioner. Ms. Hughes reported her conversation with Petitioner to Ms. Golmon. At Ms. Golmon’s request, Ms. Hughes sent her an e-mail on April 9, 2002, describing the situation. After learning of Petitioner’s inappropriate conversation with Ms. Hughes, Respondent decided to terminate Petitioner’s employment. The termination was necessary due to the stress and tension that Petitioner's conduct was causing in the workplace. Respondent's management did not believe that further warnings or other discipline would be effective in curbing this conduct because Petitioner disregarded two prior warnings. On April 9, 2002, Ms. Hartzog and Ms. Golmon met with Petitioner to inform her that she was terminated for violating the March 27, 2002, written warning. Specifically, Petitioner violated the written warning when she talked to Ms. Hughes concerning Ms. Hughes’ employment status.
Conclusions For Petitioner: Hazel M. Casler, pro se 6950 Frank Reeder Road Pensacola, Florida 32526 For Respondent: Michael R. Phillips, Esquire McGuireWoods, LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 28th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Hazel M. Casler 6950 Frank Reeder Road Pensacola, Florida 32526 Michael R. Phillips, Esquire McGuireWoods LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether the Petitioner was discharged for a pretextual reason.
Findings Of Fact David Law is a black male American. Respondent Deep South Products, Inc. is a Florida Corporation doing business in Orlando, Florida. Deep South Products, Inc. employs more than 15 persons and engages in an industry affecting commerce, i.e., manufacturer of food products. Respondent at all times pertinent to this action was the employer of the Petitioner within the contemplation of the Florida Human Rights Act of 1977, as amended, Chapter 23, Part IX, Florida Statutes 1981. Petitioner David Law was hired by Deep South Products, Inc. in June 1980, and was employed as a general laborer in the Chek Beverage Plant and was receiving $5.40 per hour at the time of his discharge on October 29, 1981. Petitioner received an employee handbook when he was employed by Respondent. Petitioner was considered a capable employee with good potential. On July 15, 1980, Petitioner was reprimanded about throwing full glass bottles into the dumpster and sitting down on the bottle rack. See Respondent's Exhibit 22. On September 17, 1980, Petitioner was counseled about his job performance and a lack of interest in doing a satisfactory job. See Respondent's Exhibit 22. On November 20, 1980, the Petitioner was reprimanded for not taking his lunch break when the relief person came around to give him his lunch break and not when he felt it was time. See Respondent's Exhibit 22. On December 16, 1980, Production Manager, Mr. Jerome Thomas rated the Petitioner's attitude as "indifferent" and stated "David has the ability to do his work well but at the present time shows little concern and this is what he needs to work on." See Petitioner's Exhibit 2 and Respondent's Exhibit 12. On January 30, 1981, the Petitioner was reprimanded about punching in and out for lunch or any other time when he was leaving the Plant. See Respondent's Exhibit 22. On April 15, 1981, the Petitioner was reprimanded for a time card violation. See Respondent's Exhibit 22. On May 5, 1981, the Petitioner was reprimanded in regard to the Company's policy about uniforms. See Respondent's Exhibit 22. In July 1981, during the Petitioner's regular annual counseling, he was told by Jerome Thomas that his attitude was "poor" and he "has the ability to run most everything on the line but the only drawback is his attitude, which I hope will change soon." See Petitioner's Exhibit 3 and Respondent's Exhibit 11. On August 13, 1981, the Petitioner was issued a written Employee Action because of his attitude and insubordination toward Company policies. See Respondent's Exhibit 15. On October 29, 1981, the Petitioner started work at approximately 6:00 A.M. with a crew of five (5) other employees, two (2) black and three (3) white. These employees were supervised by Production Supervisor, Mr. Steve Pocius, who had instructed them to clean the exterior of the stainless steel sugar holding tank. At approximately 8:00 A.M. the Petitioner and the other employees received their first 15 minute rest period. Around 9:45 A.M. Mr. Pocius accompanied by Supervisor Frank Beil, proceeded to the sugar tank to inform the employees involved that they were to relieve the can line employees so the latter employees could take their break. Messrs. Pocius and Beil checked the cleaning of the tank, during which time Mr. Pocius realized two employees were missing, the Petitioner and Ricky Street. He asked the other employees if they knew where the two employees were and they said they did not know where they were. Mr. Pocius and Mr. Beil searched for the two employees by walking through the production area and then one warehouse and another warehouse, then outside to the pallet yard and came back through another warehouse ending up in the cafeteria and still not finding either the Petitioner or Mr. Street. Then, Messrs. Pocius and Beil went upstairs to the locker room and the bathroom and they found the Petitioner sitting on a bench with a newspaper in front of him. Mr. Pocius asked the Petitioner if he was using the restroom or was he on break. The Petitioner said "no". Employee Claude Hickey, a black, who was on break was also in the locker room. Mr. Pocius then asked the Petitioner to go to Mr. Thomas' office. Mr. Pocius advised Mr. Thomas that the Petitioner had left his work area without permission and that he and Mr. Beil had looked for the Petitioner for at least 15 minutes throughout the plant and outside and finally found him reading the newspaper up in the locker room. Mr. Pocius also told Mr. Thomas that Mr. Street was not in his work area. Mr. Pocius advised Mr. Thomas that he had asked the Petitioner if he was using the restroom or was on break, and the Petitioner said "no". Mr. Thomas advised Mr. Pocius that because of the Petitioner's past record and the seriousness of the offense that Mr. Pocius was to write up the Petitioner's termination. Mr. Thomas went to look for Mr. Street and found him relieving a production line forklift driver while the driver was changing his battery. Mr. Pocius went into the office where Mr. Beil and the Petitioner were present. Mr. Pocius looked at the Petitioner's file and wrote up the Petitioner's termination. See Respondent's Exhibit 16. When they were in the office the Petitioner said he was in the locker room asking an individual if he could borrow some money. The Respondent's Employee Handbook on page thirteen stated, "All employees are expected to cooperate with and comply with directives issued by the supervisors or supervisor, if at all possible. Willful failure to comply will be cause for termination." In October 1981, the Company did not have a written formalized disciplinary policy. An employee was not entitled to a certain number of warnings or written employee actions before being terminated. Instead, the extent of the penalty depended on the severity of the offense and in the case of less serious offenses, the frequency of their occurrence and the employee's overall record. A formalized disciplinary policy was implemented in September 1982, at all the Company's manufacturing plants which had certain categories of offenses with certain prescribed penalties for each offense. This policy did not exist when the Petitioner was discharged. The Respondent's records show that during the period of May 1980 through October 29, 1981, there were fourteen (14) involuntary discharges in addition to the Petitioner's. Thirteen (13) were white and one (1) was black. The Respondent's records show that during the period of 1979 to 1984, there was a total of sixty-eight (68) involuntary terminations at its Plant. Fifty-nine (59) were white, and only nine (9), or 13.2%, were black. Respondent's records show both white and black employees (e.g., Ingram, Respondent's Exhibit 19) were disciplined and were not terminated for leaving their assigned work area prior to September 1982. Bobby Jolly, white, who left his assigned work area on July 12, 1983, was not terminated but rather disciplined in accordance with the Company's formalized policy after September 2, 1982, as it did not constitute his third employee action within a twelve (12) month period. Respondent's records show Terry Scoggins, white, was terminated on July 20, 1981, and prior to his termination he only had two employee action forms. See Respondent's Exhbits 23 and 24. It gas not demonstrated that the Petitioner was subjected to different treatment for misconduct under the same factual circumstances and work rules. The stated cause for Petitioner's discharge of "uncooperativeness" summarizes a history of minor to severe infractions over a significant period notwithstanding continued counseling and other disciplinary measures. A factor in the Petitioner's discharge was Petitioner's frequent assertions that he was being discriminated against when he was counseled for misconduct. There is no evidence that Petitioner was discriminated against on the basis of race.
Recommendation Having found that the Petitioner failed to show that the actions of the Respondent were discriminatory, it is recommended that the complaint be dismissed. DONE AND ORDERED this 8th day of January, 1985, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of January, 1985. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Post Office Box B Orlando, Florida 32802 Kenneth G. Mall, Esquire Deep South Products, Inc. Post Office Box B Jacksonville, Florida 32203 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
Findings Of Fact Jacqueline A. Irby was employed as an Allstate Insurance Agent from April 25, 1983 until her dismissal July 17, 1987. Respondent has a company policy prohibiting employees from bringing firearms into company offices or carrying them while on company business. Violation of this policy can result in termination. (Exhibit 6). Petitioner was aware of this policy when employed in 1983 (Exhibit 1). She was unsure the policy applied to her office which she rented in the building not otherwise used by Respondent. On April 14, 1987, Petitioner wrote a memo to her supervising sales manager, Randy Rouse, stating that she had witnessed Judith Gill walk into her office with a handgun and point it directly at Petitioner's client. Both Gill and Petitioner were Allstate Agents sharing office spaces if not actually partners. During the subsequent investigation of this incident, Petitioner acknowledged to Rouse that she kept a .357 Magnum in her office for her protection when she worked late at night. Both Gill and Petitioner were fired by Respondent as Allstate Agents on or about July 17, 1987. Petitioner presented Exhibits 2 through 5 representing disciplinary action taken by Respondent against male Allstate Agents. Although the maximum penalty authorized by Respondent's Policy Statements Manual (Exhibit 6) for their offenses was dismissal, each of these Agents received a lesser punishment. None of the offenses noted in Exhibits 2 through 5 involved a firearm violation. No evidence was presented regarding the Agent hired to replace Petitioner, if any, or the sex of such replacement.
