The Issue Whether petitioner's application for licensure as a detection of deception examiner should be denied on grounds that he lacks two years' experience as an investigator or detective.
Findings Of Fact The Department concedes that the applicant meets all criteria for licensure as a detection of deception examiner except for the Section 493.566(3) requirement of "two years experience as an investigator or detective." Id. This requirement applies when, as here, an applicant has a high school diploma but has not completed at least two years at a university, college, or a junior college approved by the Department. For the past four years, the applicant has been employed as a dispatcher for the Jupiter Police Department in Jupiter, Florida. During the past two and one-half years, he has also administered polygraph tests for the Jupiter Police Department. 2 He administered these polygraph examinations after 4:90 P.M.--while off-duty and on his own time--under the supervision of a licensed examiner. His subjects were new employees of the police department, or criminal suspects presented by his department or other police departments in the area. His supervisors report that he was a skillful and competent examiner. (R-1, P-1) The applicant, however, has failed to show that as a dispatcher, or an off-duty polygraph examiner, he performed investigative activities ordinarily - performed by investigators or detectives. His experience as a polygraph (or detection of deception) examiner simply does not equate to experience as an investigator or detective.
Recommendation Based on the foregoing, it is RECOMMENDED: That the applicant's application for licensure as a detection of deception examiner be denied for failure to satisfy the criteria of Section 493.566, Florida Statutes (1981). DONE and ENTERED this 13th day of January, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 1984. COPIES FURNISHED: Robert Powers 1881 1/2 Smith Drive Juno Beach, Florida 33458 Thomas G. Tomasello, Esquire Office of General Counsel Department of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of sex discrimination in employment.
Findings Of Fact Petitioner was born in Puerto Rico and lived there 11 years. She speaks English fluently with a Spanish accent. Respondent is a wholesale distributor of building materials. Four- fifths of its customers are retail outlets, and the remainder are building contractors. Respondent is the largest such distributor in the Southeast and is a mid- to large- size corporation. Respondent is an employer within the meaning of Chapter 760. Answering a want ad in the newspaper, Petitioner sent David Russell, who is Respondent's controller, a resume and letter of recommendation. She had two interviews with Mr. Russell and was hired. It is unclear whether Petitioner's Puerto Rican background came up during the interview. Evidently unknown to Petitioner at the time, each of four other interviewees was offered the job and refused it before it was offered to Petitioner. Petitioner began work with Respondent on May 21, 1989, as an invoicing clerk. Her responsibilities included invoicing, copying, mailing, filing, and microfilming. Petitioner began work at an hourly rate of $5.50, which was raised after the completion of a 90-day probationary period to $6.00. After one year, she received a raise to $6.50 per hour, which remained her hourly rate through her date of termination. The raise resulted from the favorable recommendation of Mr. Russell to the president of Respondent. Mr. Russell earlier gave Petitioner preferential treatment when he recommended to the president that Respondent lend her over $1000 for surgery. Normal company policies did not authorize such loans to new employees, which Petitioner was at the time. The loan was made and later repaid. An important part of Petitioner's duties was to learn how to operate a Burroughs L-9000, which is a dedicated, automated ledger machine. The L-9000 dates back to the early days of office automation. Invoices are run through the L-9000, which performs simple mathematical functions to extend total costs based on number of units and price per unit, total costs per invoice, and total invoiced costs per day and per month. Inputting data into the L-9000 is a time-consuming process. Corrections take even more time, as each incorrect entry has to be deleted and the correct entry added. The machine has other problems, such as the loss of data during power outages. When Petitioner joined Respondent, she knew nothing about the L-9000. At the time, Shirley Rehrig, who had been employed by Respondent since October, 1985, was operating the machine. Ms. Rehrig had joined the company as an invoice operator on the L-9000 and was, by May, 1989, supervisor of the Invoicing Department. The Invoicing Department works closely with the Pricing Department, which are both part of the Accounting Department. At the time, employees in the Pricing Department manually took prices for invoiced items from books and entered them in handwriting on invoices. The process was prone to error through mistranscriptions of quantity, price, or cost. Pricing errors were only one source of invoicing errors. Additional errors could arise in invoicing, such as by misreading the handwritten information provided by the Pricing Department or misentering the data. In May, 1989, there were two persons working in the Pricing Department and, counting Petitioner, two persons working in the Invoicing Department. Speed and accuracy were important characteristics for the L-9000 operator. Petitioner's early experience with the machine was frustrating for her, Ms. Rehrig, and Mr. Russell, who was in charge of the Accounting Department. Despite repeated demands from Ms. Rehrig and Mr. Russell that she work more slowly, Petitioner continually tried to operate the machine as fast as Ms. Rehrig could operate it. The result was that Petitioner's error rate was unacceptably high and thus her processing of invoices was relatively slow. Ms. Rehrig became very upset with Petitioner and several times complained about her to Mr. Russell. Perhaps recalling the difficulty he had had filling the position, Mr. Russell tried to calm Ms. Rehrig and continually counselled Petitioner to work more slowly. Mr. Russell is a mild-mannered man, who showed great patience with his employees. He tolerated a longtime employee in the Pricing Department who, partly due to poor health, was often volatile and one time threw invoices at Ms. Rehrig. Petitioner gradually began to gain competence with the L-9000. However, she was unable to erase completely the perception of her coworkers, but not Mr. Russell, that she was the source of more invoicing errors than for which she was in fact responsible. Petitioner's high error rate gave her one advantage, though. She knew how to correct errors, which were inevitable in the invoicing process, especially given the peculiarities of the L-9000. In July, 1990, Respondent hired Alice Sweet to work in the Invoicing Department. Petitioner trained Ms. Sweet in the use of the L-9000, and soon Petitioner and Ms. Sweet were alternating on the machine. Ms. Sweet was a very good worker who was able to concentrate on her work better than Petitioner could. However, she was more timid than Petitioner in trying to fix the mistakes that she did make and often required the assistance of Petitioner or Ms. Rehrig in making the corrections. When Ms. Sweet was hired, Ms. Rehrig was given a chance to learn pricing, while still supervising invoicing. The division between the Invoicing and Pricing Departments, which are really subdepartments, is not as clear as the line between Accounting and other true departments. When Ms. Rehrig told Mr. Russell in the summer of 1991 that she would be quitting, he asked her if Petitioner or Ms. Sweet should take Ms. Rehrig's position in pricing. Ms. Rehrig recommended Ms. Sweet because she was more focused and methodical than Petitioner, but also because Petitioner could handle the L-9000 on her own and Ms. Sweet could not. Mr. Russell made the changes that Ms. Rehrig had recommended after she left the company in November, 1991. Ms. Rehrig was not contacted subsequently about problems with the L-9000 as long as Petitioner remained with the company. In October, 1991, Felicia Jones, who is an African- American, was hired by Respondent through Kelly Temporary Services. Ms. Jones was assigned to the Invoicing Department where she reviewed invoices and Petitioner's output from the L-9000. After Ms. Rehrig's departure, Petitioner alone operated the L-9000. Although improved from her early days on the machine, Petitioner continued to make errors on the L-9000, and Mr. Russell continued to ask that she improve her performance on the machine. During this time, Respondent was undergoing difficult financial times. The depression in the construction industry sharply impacted Respondent's business. Total sales were down about 1 percent between fiscal years-end June 30, 1989, and June 30, 1990. Sales plummeted 14.4 percent between fiscal years- end 1990 and 1991, and slid 4.4 percent between fiscal years-end 1991 and 1992. Although still showing earnings, profits between fiscal years-end 1990 and 1991 were almost halved, and profits between fiscal years-end 1991 and 1992 slipped another 18 percent. By sometime in the first half of 1989, Respondent had been adopted cost-containment strategies to deal with poor market conditions. Examples of Respondent's efforts included controlling the purchasing of supplies, requiring bids on goods and services, and using inventory-control mechanisms. These strategies proved ineffective in the face of seriously deteriorating market conditions in 1991. Finally, Respondent turned to reductions in force. When voluntary attrition proved insufficient, Respondent implemented layoffs. Layoffs throughout the company in each of its offices throughout the state reduced employment from 131 persons to 94 persons from January, 1989, to December, 1992. The impact in the Accounting Department was a reduction in the average workforce of 12 persons from January, 1989, through January, 1992, to 10 persons in January, 1992, and 8 persons in December, 1992. After Ms. Rehrig's departure, the president of Respondent instructed Mr. Russell to identify an employee to layoff should the president decide to make layoffs. The most likely candidates were Petitioner and Ms. Sweet. Petitioner decided that he would lay off Petitioner because Ms. Sweet was trained in invoicing and pricing and could run the L-9000, even though she was less able to correct errors than could Petitioner. Mr. Russell decided not to lay off Ms. Jones, who remained employed with Respondent through Kelly Temporary Services. Even though Respondent paid Kelly Temporary Services $7.50 per hour for Ms. Jones, Respondent owed no benefits for her. Estimating that benefits cost $1.91 per hour, Mr. Russell figured that Petitioner, who was then receiving $6.50 per hour, was costing Respondent a total of about $8.41 per hour--almost one dollar more per hour than Ms. Jones cost. The Pricing and Invoicing Departments could withstand a reduction in force. After Ms. Rehrig's departure, there had been times that Petitioner had nothing to do in invoicing. When Petitioner was terminated in April, 1992, Ms. Sweet returned to operate the L-9000 for one year. During that time, she worked exclusively in the Invoicing Department, but only about four of five days a week were required for work on the L-9000. Ms. Sweet's former duties in pricing were covered by another employee. Sometime in the second quarter of 1992, Mr. Russell discussed with Ms. Jones the possibility of her permanent employment with Respondent, rather than through Kelly Temporary Services. Because Petitioner had already filed her Charge of Discrimination, Mr. Russell decided not to pursue fulltime permanent employment with Ms. Jones until the discrimination charges were resolved. Following Petitioner's departure in April, 1992, Ms. Sweet encountered problems with the L-9000 that she could not solve. She and Mr. Russell several times contacted Ms. Rehrig, and at least once Ms. Rehrig came to the office after finishing her other work for the day to fix the problem. Mr. Russell offered her a consultation contract, which Ms. Rehrig declined. Mr. Russell and Ms. Rehrig discussed the possibility of her returning to work with Respondent, but they could not agree on acceptable conditions. Ms. Rehrig testified that, on one occasion immediately after interviewing Petitioner, Mr. Russell referred to her as a "Puerto Rican" and alluded to the excitability of Puerto Ricans. This testimony is not credited. Ms. Rehrig was displeased with Respondent for undisclosed reasons when she quit, and she became more displeased when, after being badgered by Ms. Sweet and Mr. Russell concerning the L-9000, she and Mr. Russell could not agree on adequate conditions for her reemployment with Respondent. Called as a witness by Petitioner, Ms. Rehrig initially omitted mention of her early dissatisfaction with Petitioner's work, although she admitted that she had recommended to Mr. Russell that he assign Ms. Sweet, rather than Petitioner, to the Pricing Department after Ms. Rehrig quit. The only other evidence concerning Petitioner's national origin involves Petitioner's testimony that Ms. Sweet angrily called her a "Puerto Rican" one time, that coworkers routinely assumed that Petitioner had made all errors in invoicing even when she had not, and that Mr. Russell treated her in a diffident manner. There are problems with each of these items of proof. First, Petitioner admitted that Mr. Russell did not know that Ms. Sweet had referred to Petitioner's national origin in a derogatory way. Petitioner never told Mr. Russell about this remark, nor is she aware that anyone else did. Second, the coworkers who wrongly assumed that Petitioner was responsible for invoicing errors when she was not were understandably basing their assumption on Petitioner's history of a high number of mistakes, not on her national origin. More importantly, Mr. Russell did not misperceive Petitioner's error rate. Third, Mr. Russell was not especially close with a number of employees, including but not limited to Petitioner. But he resisted Ms. Rehrig's requests to fire Petitioner, showed patience with her high error rate, and gave her one raise. Petitioner has proved a prima facie case of discrimination. She is Puerto Rican. She was generally qualified for the invoicing job. And she was replaced by Ms. Sweet, who is a white person whose national origin evidently does not place her in a protected class. However, Respondent has shown a legitimate business reason for Petitioner's layoff. Business was poor and getting worse. Petitioner's competence was marginal. Ms. Sweet, whom Ms. Rehrig herself had named over Petitioner for what appears to have been a promotion, was cross-trained and thus, for that reason alone, more useful to Respondent. And Respondent's president justifiably believed that the Invoicing and Pricing Departments could continue to operate effectively with one less employee. The quick offer of fulltime permanent employment to the less experienced Ms. Jones did not mean that she was intended to replace Petitioner. Following Petitioner's termination, Ms. Sweet worked for one year on the L-9000 before Ms. Jones, who was not even trained on the machine until August, 1992, replaced her in April, 1993. Respondent in effect gave Ms. Jones a raise when she began to operate the L-9000 by increasing the pay to Kelly Temporary Services to $8.55 per hour. However, competence in 1992 with the L-9000 was of increasingly limited utility to Respondent, which, by the time of the final hearing, had replaced the obsolete device with modern automated office equipment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on January 13, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 13, 1994 APPENDIX Rulings on Petitioner's Proposed Findings 1-4: adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence. Petitioner failed to prove that the matter of her national origin arose during the interview. 6 and 8: rejected as unsupported by the appropriate weight of the evidence. 7: adopted or adopted in substance. 9-10: adopted or adopted in substance. 11: adopted or adopted in substance except that Petitioner continued to make a high rate of mistakes on the L-9000. 12: adopted or adopted in substance, although the reasons for Ms. Rehrig's recommendations go beyond those stated in the proposed finding. 13: rejected as subordinate. 14-17 (first sentence): rejected as unsupported by the appropriate weight of the evidence. (remainder): adopted or adopted in substance. (first two sentences): adopted or adopted in substance. 18 (remainder)-20: rejected as subordinate, irrelevant, and unsupported by the appropriate weight of the evidence. 21-22: rejected as unsupported by the appropriate weight of the evidence except for positions of Respondent. 23-25: rejected as unsupported by the appropriate weight of the evidence. Subsequent events led Mr. Russell to reassess his needs and the costs of meeting these needs. However, in April 1992, he did not have the advantage of this knowledge and made in good faith the personnel decisions that he made at the time. 26: adopted or adopted in substance, but see 23-25. 27: rejected as unsupported by the appropriate weight of the evidence. 28: adopted or adopted in substance. 29: rejected as unnecessary. 30: rejected as unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-16: adopted or adopted in substance. 17: rejected as subordinate and recitation of evidence except that Ms. Rehrig unhappily left her job with Booker. 18-19: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Craig P. Clendinen Stearns Weaver One Tampa City Center Suite 3300 Tampa, FL 33601 Michael D. Malfitano Macfarlane Ferguson 111 E. Madison St. Suite 2300 Tampa, FL 33601
The Issue The issue presented is whether Respondent City of Gainesville committed an unlawful employment practice when it terminated Petitioner's employment.
Findings Of Fact Petitioner is a white male. Petitioner's employment as a police officer was terminated by Respondent City of Gainesville on September 17, 2008. On the evening of June 26, 2008, Petitioner was voluntarily working an extra duty assignment at the Super Wal- Mart store on Northeast 12th Avenue in Gainesville. Wal-Mart had been experiencing problems with juveniles entering the store in large groups and causing disturbances and property damage. At approximately 11:15 p.m., Ms. Felicia Stallworth, a black female, pulled into a handicapped-parking space and hung her handicapped-parking decal from her rear-view mirror. She was accompanied by two children: her twelve-year-old son and her seven-year-old niece. At the time, Petitioner, who was in uniform and wearing his badge, was engaged in conversation with the occupants of a vehicle parked in another handicapped-parking space. Stallworth and the children exited her vehicle and began walking to the store's entrance. Because Stallworth was talking on her cell phone while she was walking, she heard Petitioner say something but did not know what he said. She stopped walking and asked him what he wanted. Petitioner rudely and loudly demanded to see her documentation to prove she was entitled to park in a handicapped-parking space. Stallworth complied by walking back to her vehicle, sitting in the driver's seat with the driver's door open, and retrieving her handicapped-parking registration from her glove compartment. While she was doing so, Petitioner, who was standing just outside the car door, was shining a flashlight into her car so that it was shining in her face. She told him several times to move the flashlight because she could not see, but he ignored her and continued to shine it in the same manner. Concerned for the safety of the children who were standing at the back of the car on the passenger side, she instructed the children to get back in the car so as to be out of the path of passing vehicles. Petitioner rudely and loudly told them to stand in front of the car instead. The children complied. Stallworth retrieved the registration and handed it to Petitioner. She also handed him her placard. She then attempted to get out of the car so she could put her purse on the hood of the car so she could find her driver's license. As she stood up, Petitioner crossed his arms in front of his chest in a blocking motion and, using them, shoved her forcefully against her car and then down into the driver's seat. Her glasses were knocked askew, and the side of her face and earlobe began to burn, likely from being scraped against the doorframe. After she was shoved back into her car, Stallworth was able to find her driver's license in her purse, and she handed it to Petitioner. When Petitioner finished examining her placard, her placard registration, and her driver's license, he handed the documents back to Stallworth and told her to have a nice day. Petitioner walked to the door of the store, turned and looked at Stallworth, and stood there, apparently laughing at her. Some of the numerous witnesses to this encounter between Petitioner and Stallworth came up to her, inquired as to how she was, and walked into the store with her. Petitioner followed Stallworth while she was in the store. When Stallworth left the store, she saw Petitioner walk behind her car, write down her license tag, and then get into his vehicle. Stallworth thought he was "running her tag" and became afraid of what he might do to her next. She called a relative who worked for the Alachua County Sheriff's Office and asked that person to come to Wal- Mart and watch her leave. After calling, she went back into the Wal-Mart to wait. When she came out again, she and Petitioner did not interact. Before Petitioner shoved her against and then into her vehicle, Stallworth had made no threatening remark or gesture that would cause Petitioner to have any concern for his safety. After Stallworth returned to her home, her back started hurting, and her face and earlobe still burned. She telephoned the City of Gainesville Police Department and complained about Petitioner's unacceptable treatment of her. The complaint was forwarded to Sergeant Lance Yarbrough, the Sergeant on the midnight shift. At 1:45 a.m., when he had "cleared" the matter he was working on, he called Stallworth. She described what had happened, including Petitioner's demeanor and her injuries. She told Yarbrough she had obtained the names and telephone numbers of some of the witnesses who had seen the entire encounter. After attending to some additional duties, Yarbrough arrived at the Wal-Mart at 3:00 a.m. to talk to Petitioner about his use of force on a disabled person. Petitioner's version of what had happened essentially matched Stallworth's, including admitting he had "pinned" her to her vehicle. By the end of their conversation, Petitioner had become confrontational about defending what he had done and demanded of Yarbrough, "Do you have a problem with that?" Yarbrough answered Petitioner in the affirmative. Yarbrough tried to obtain a copy of Wal-Mart's video surveillance tape, but a copy of the tape could not be made by Wal-Mart employees at that hour. After he left Petitioner, Yarbrough, a white male, completed an Administrative Investigation Referral Form regarding Petitioner's treatment of Stallworth, which he considered a violation of the City's Policies and Procedures Number 19, Rule 19. That Form is, essentially, a referral to the police department's internal affairs office. He filed that form on June 27, 2008, in his name and in Stallworth's name. Stallworth filed her own form on that same date. Wal-Mart has a policy of releasing copies of its video surveillance tapes only to law enforcement officers conducting official business. Internal Affairs investigator Sergeant Jorge Campos, a white male, contacted Wal-Mart and arranged to obtain a copy of the video of Wal-Mart's parking lot showing Petitioner's encounter with Stallworth. When he later called Wal-Mart to make sure the copy was ready, he was told that another police officer had come to pick it up, and the copy had been given to him. Campos requested an additional copy and when he went there to pick up that copy, the Wal-Mart loss prevention employees showed Campos the video and also a video of Petitioner picking up the copy of the video that had been made for Campos. Since Petitioner had come there in a police car and in uniform, they had assumed that Petitioner was obtaining the copy of the video for official purposes. In fact, Petitioner never reported to the police department that he was conducting an investigation and that he had obtained evidence of his encounter with Stallworth. Further, he never turned over to the police department his copy of the video so it could be preserved as evidence in the evidence room, as required by department policy. Petitioner did not obtain the video for law enforcement purposes, therefore, but rather for personal purposes. Campos watched the copy of the surveillance video he had obtained from Wal-Mart in conjunction with his investigation. He also interviewed and obtained sworn statements from Yarbrough, from Stallworth, and from all of the identified witnesses who were willing to speak with him about what they saw. During the course of the internal affairs investigation, it was discovered that Petitioner had also repeatedly contacted Stallworth's personal physician, allegedly in his capacity as a police officer, to ascertain what Stallworth's disability was that would have made her eligible for a handicapped placard. Eventually, Petitioner did speak with a doctor in that office who disclosed Stallworth's disability. Campos attempted to interview Petitioner, but Petitioner called in sick and did not appear for the scheduled appointment. Campos' further attempts to interview Petitioner were unsuccessful. At the conclusion of his investigation, Campos prepared his report and consulted with the Chief of Police as to an appropriate disposition of the matter. It was concluded that Petitioner had violated Rule 19 regarding his encounter with Stallworth by his (1) excessive use of force, (2) obtaining a video recording under the color of a law enforcement officer for personal use, and (3) obtaining medical information under the color of a law enforcement officer without proper legal service. It was determined that Petitioner's employment should be terminated. Policy 19, Rule 19 prohibits "[i]mmoral, unlawful, or improper conduct or indecency, whether on or off the job[,] which would tend to affect the employee's relationship to his/her job, fellow workers' reputations or goodwill in the community." The range of penalties for the first offense is from instruction plus 5 days' suspension up through dismissal, and for the second offense is dismissal. Petitioner exercised his right to file a grievance regarding his termination and participated in a multi-level grievance process within the City. His grievance was unsuccessful, and he was terminated from his employment as a police officer. At no time during Petitioner's conversation with Sergeant Yarbrough, during the internal affairs investigation, or during the City's grievance process did Petitioner raise any allegation of disparate or discriminatory treatment of him by the City due to his race or his sex. Sergeants Yarbrough and Campos are, like Petitioner, white males.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to meet his burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 16th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 16th day of July, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel M. Nee, Esquire City of Gainesville 200 East University Avenue, Suite 425 Gainesville, Florida 32601-5456 Jarrod Rappaport 402 Northwest 48th Boulevard Gainesville, Florida 32607 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
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 Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The applicant, Rita Marie Horton, has applied for licensure as a Deception Detection Examiner or intern. Her application reveals that she meets all the criteria stated for licensure as a Deception Detection Examiner with the exception of Sub-section 4, of Section 493.43, Florida Statutes. Horton was approximately four year /* a deception detection examiners with Wells Fargo /* St. Louis, Missouri. During her employment with /* provided Deception Detection services to various /* on a contract bases through Wells Fargo. In /* she did approximately eight to ten tests per /* involved in this work during her entire employment /* Horton's credentials are excellent /* she has conducted approximately 6,000 examinations /* employment with Wells Fargo. /*
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the applicant's application for licensure as an intern be approved and upon demonstrating that she has acquired an additional one years experience during which she has provided services to police departments similar to those provided during her employment with Wells Fargo, that she be licensed as a Deception Detection Examiner. DONE and ORDERED this 27th day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Rita Marie Horton c/o Lincoln M. Zion, Inc. 3050 Biscayne Boulevard Miami, Florida 33137 Gerald Curington, Esquire Department of State The Capitol Tallahassee, Florida 32304 Marvin Sirotowitz Division of Licensing The Capitol Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue in the case is whether the Petitioner should be permitted to take the examination for licensure as a real estate sales associate.
Findings Of Fact In September 2003, the Petitioner filed an application for licensure by the State of Florida as a real estate sales associate. In an application section titled "Background Information" question 1 asks in relevant part, "[h]ave you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere . . ." to which the Petitioner responded in the affirmative. "Background Information" question 4 in relevant part asks, "[h]as any license, registration, or permit to practice any regulated profession, occupation, vocation, or business been revoked, annulled, suspended, relinquished, surrendered, or withdrawn . . ." to which the Respondent replied in the affirmative. Question 1 directs an applicant who responds in the affirmative to disclose the full details of the incident(s) by completion of "form 0050-1." Question 4 directs an applicant who responds in the affirmative to disclose the full details of the termination(s) by completion of "form 0060-1." The disclosure forms completed by the Petitioner (if any) are not in the Respondent's files and are unavailable for review. The Petitioner's application package was presented to the Commission on December 16, 2003. After considering his presentation, the Commission denied his application and instructed him to return with additional information related to the disclosed charges. The Petitioner apparently sought reconsideration, and his application package was again presented to the Commission on March 17, 2004. After reconsidering the Petitioner's background, the Commission again denied his application. The Petitioner then sought an administrative hearing to challenge the denial of his application. On or about July 26, 2000, the Petitioner was arrested and charged with stalking. The Commission's records indicate that the Petitioner completed a pretrial program and was sentenced to 50 hours of community service. At the administrative hearing, the Petitioner testified that he was placed on probation for six months, and had to complete a six- month psychological evaluation. The stalking charge was nolle prossed. At the hearing, the Petitioner stated that at the time of the stalking charge, he was working at a retail establishment. The object of his attention was a 16-year-old female who was working in the vicinity. The Petitioner was approximately 36 years old. The Petitioner asserted that he did not know the female was 16 years old at the time. He denied that he "stalked" the female, but stated that he merely spoke to her a few times in person and attempted to contact her once by telephone. He continued to express surprise at the stalking charge. On or about June 6, 2001, the Petitioner was arrested and charged with burglary of an unoccupied conveyance, a felony, and criminal mischief. He was sentenced to two years of probation, six months of psychological evaluation, and was required to pay court costs. Adjudication of guilt was withheld. At the hearing, the Petitioner stated that he went to the home of an ex-girlfriend to collect a $500 debt she allegedly owed to him. He testified that he knocked on her door and got no response. As he left her residence, he saw that her automobile was unlocked. He opened the hood of the ex- girlfriend's vehicle and ripped out the spark plug cables. He asserted that he "didn't steal anything" because he threw the cables away and didn't keep them. On or about September 5, 2001, the Department of State, Division of Licensing, entered an order based on the Petitioner's stipulation, revoking his Class "D" Security Officer's License, based on the burglary charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 17th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 17th day of August, 2004. COPIES FURNISHED: Alfonso Santana, Esquire Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 801N Orlando, Florida 32801-1757 Fernando Freire 5242 Millenia Boulevard, No. 304 Orlando, Florida 32839 Leon Biegalski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Juana Watkins, Acting Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street, Suite 802 North Orlando, Florida 32808-1900
The Issue The issue for disposition is whether Petitioner, Mr. Franqui, is entitled to licensure as a real estate salesperson in the State of Florida.
Findings Of Fact Jose C. Franqui, a resident of Kissimmee, Florida, was previously licensed as a real estate broker in the State of New York until 1979. When the economy and interest rates slowed real estate sales, he moved back to his native Puerto Rico. Later, he returned to live in Florida and, on March 3, 1997, he applied to the Florida Real Estate Commission for licensure as a real estate salesperson. The application, signed by an affidavit by Mr. Franqui, includes question no. 9 which inquires whether the applicant " . . . [Has] ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld. . . ." In boldface print, the question on the application form warns that the answer will be checked against local, state, and federal records and that failure to answer accurately could cause denial of licensure. Mr. Franqui answered "no" to question No.9. In 1966 in New York, Mr. Franqui was charged and convicted of carrying concealed tear gas. He was fined $200. On May 14, 1978, also in New York, after an altercation with his wife, Mr. Franqui was arrested for assault. He spent a night in jail and was released. On August 11, 1978, he pled guilty to the lesser offense of harassment and received a "conditional discharge." Neither of these incidents was disclosed by Mr. Franqui on his application for licensure. Instead, he claims he did not remember the disposition of the assault charge and that he considered the tear gas charge too remote in time to be of any consequence. The explanations do not excuse Mr. Franqui's patent disregard of the terms of the question at issue. Nor does the testimony of Mr. Umpierre, a co-worker, that ". . . Franqui is a nice, honest person . . ." obviate the fact of Mr. Franqui's falsehood.
Recommendation Based on the foregoing, it is recommended that the agency enter its final order denying Jose C. Franqui's application for licensure as a real estate salesperson. DONE AND ENTERED this 8th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1998. COPIES FURNISHED: Jose C. Franqui, pro se 3511 Bonaire Boulevard Apartment 2401 Kissimmee, Florida 34741 Manuel E. Oliver, Assistant Attorney General Department of Legal Affairs Suite 107, South Tower 400 West Robinson Street Orlando, Florida 32801 Henry M. Solares, Director Division of Real estate Department of Business and Professional regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for determination in this proceeding is whether Respondent retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, based upon her complaints about a coworker’s conduct perceived by Petitioner to be sexual harassment.
Findings Of Fact Based on the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Petitioner, a female, was employed as a server with Respondent from May 6, 2011, through September 29, 2012. Respondent, Stavro's Pizza, Inc., is a restaurant located in New Smyrna Beach, Florida. Respondent employs more than 15 individuals at any given time and therefore is subject to the Florida Civil Rights Act of 1992. §§ 760.01-760.l1, Fla. Stat. Early on the morning of Friday, September 27, 2012, it was reported to Martha Trimble, long-time General Manager of Respondent, that a "weird conversation" took place between Petitioner and another employee, Brian Hayes, the previous evening.2/ During this conversation, Mr. Hayes allegedly told Petitioner that “he knew everything about her, including where she lived, and that her favorite color was blue.” Mr. Hayes also allegedly told Petitioner that he was soon to be the new manager of the restaurant. Ms. Trimble approached Petitioner later that day about the alleged incident with Mr. Hayes, and while Petitioner admitted she had had a strange conversation with Mr. Hayes, she denied that she was upset by it. Nonetheless, Ms. Trimble told Petitioner she would investigate the matter and that she took it seriously. Later that same day Ms. Trimble also questioned Mr. Hayes, who denied making the reported comments. And while Ms. Trimble was aware that Petitioner had voluntarily given Mr. Hayes her address,3/ out of caution, Ms. Trimble placed Mr. Hayes on leave while she continued her investigation. The following day, Saturday, September 28, 2012, there was a mandatory meeting for all employees of Respondent. The meeting was mandatory because Ms. Trimble had been made aware of horseplay among some employees, and was concerned that staff training had been inadequate. Notice of the meeting was conspicuously posted in the restaurant for two weeks prior to the meeting. The notice explained that the meeting was mandatory and that all employees were to attend unless they contacted Ms. Trimble prior to the meeting to be excused. Petitioner did not attend the Saturday meeting and was not excused in advance. Four other employees contacted Ms. Trimble ahead of time and explained that they would be unable to attend due to schedule conflicts. Those employees were excused. When Ms. Trimble contacted Petitioner later in the day, Petitioner told Ms. Trimble that she had been ill, and in bed all day. That evening Ms. Trimble also reviewed the security camera video of the one hour period the previous Thursday during which Petitioner and Mr. Hayes had been alone in the restaurant, and during which the suspect comments had reportedly been made. In reviewing the video, Ms. Trimble specifically watched for physical contact, lingering conversations, and body language. At hearing, Ms. Trimble related her observations from the restaurant video as follows: So I watched the tape. Brian basically stayed back in the kitchen. Uh, we have side work we do. We make garlic bread. We make boxes. We do little oil containers for to-go salads. And Brian was back doing that almost the entire time. Once I saw him go up to the waitress station and get a beverage and bring it back. Amanda basically was at the register. She would come back every once in a while, hang a ticket, kind of stand there and chitchat until, uh – until, uh, a salad was given to her or something like that. So, um, but mainly they were both in their own areas. I did not see anything that indicated that there was anything improper going on. Following her review of the surveillance video Ms. Trimble concluded that there was no basis to believe that Mr. Hayes had engaged in any form of sexual harassment against Petitioner. The following day, Sunday, September 29, 2012, Ms. Trimble met with Petitioner regarding her absence from the mandatory meeting the day before. At this meeting Ms. Trimble informed Petitioner that because she failed to attend the mandatory meeting without being excused, and had failed to even call Ms. Trimble to explain she was ill and would be unable to attend, her employment was terminated. A former employee of Respondent, Lindsey Yauch, testified on behalf of Petitioner. Ms. Yauch testified that she had once missed a mandatory meeting called by Ms. Trimble but had not been fired as a result. However, on cross-examination Ms. Yauch could not remember the purpose, date, or any other details surrounding the meeting. Ms. Trimble’s testimony regarding the meeting that Ms. Yauch missed was more precise. Ms. Trimble recalled that it was a “safe-staff meeting”, which is a food-handler’s course that all employees must take. Because all 27 of Respondent’s employees were required to take the class, it was offered on two separate dates, and employees were permitted to choose which session they would attend. Ms. Yaugh had chosen to attend the first session, but overslept and missed the class as a result. Since a second class offering was still available, Ms. Yaugh was permitted to attend the second session, which she did. There is no credible evidence in this record that Petitioner was treated differently than other similarly situated employees when she was terminated for missing a mandatory meeting. At hearing Ms. Trimble testified that Petitioner's termination had nothing to do with her gender or the alleged comments made by Brian Hayes. Rather, Petitioner’s termination was the result of her missing a mandatory staff meeting without excuse. This testimony is credible. To his credit, in his closing statement counsel for Petitioner candidly acknowledged that, even if true, the comments made by Mr. Hayes would not constitute sexual harassment.
