Findings Of Fact On January 2, 1992, Petitioner commenced an action in federal district court pursuant to the federal Age Discrimination in Employment Action ("ADEA"), 29 U.S.C. 621, et seq. The summons and complaint were not served upon Respondent until May, 1992. By statute, the filing of said federal action stayed the matter pending before the Florida Commission on Human Relations. 29 U.S.C. Section 633(a). Petitioner could have but did not bring an age discrimination claim under Chapter 760, Florida Statutes, in his federal court case. On February 23, 1993, the United States District Court for the Middle District of Florida entered an order granting summary judgment for Respondent, Grumman Aerospace Corporation against Petitioner George E. Stolworthy. The district court held that "there is simply no evidence that Plaintiff's termination was motivated by a discriminatory intent on the part of the Defendant. Petitioner appealed the decision of the District Court to the Eleventh Circuit Court of Appeal. On or about February 14, 1994, the Eleventh Circuit affirmed the District Court's order of summary judgment. Mr. Stolworthy's claim of age discrimination before the Florida Commission on Human Relations arises out of the same common nucleus of operative facts as his age discrimination claim in federal court. Both cases allege age discrimination in the termination of Petitioner's employment. All of the issues in this case were decided in favor of Respondent by the United States District Court, Middle District of Florida, on February 23, 1993. The district court held that Respondent did not discriminate against Petitioner. The district court's decision was affirmed by the Eleventh Circuit Court of Appeal on February 14, 1994. That decision effectively resolves this matter either through the doctrine of res Judicata or collateral estoppel. Therefore, the Petition for Relief should be dismissed and jurisdiction relinquished to the commission for entry of the appropriate final order. Finally, Petitioner was aware that he commenced an action against the Respondent herein in federal district court alleging violations of the ADEA and involving the same set of operative facts before the administrative hearing was held in February 13, 1992. At the time of the hearing, Respondent's counsel was unaware that Petitioner had commenced the aforementioned lawsuit. Additionally, neither Petitioner nor his counsel advised the Florida Commission on Human Relations or the Hearing Officer of the initiation of the federal lawsuit. Rather, Petitioner, through his counsel, continued to file documents with the Division in violation of Section 120.57(1)(b), Florida Statutes. Specifically, Petitioner pursued the instant action for an improper purpose knowing full well that the agency's jurisdiction should have been suspended, and could only have intended to improperly harass Respondent; to improperly utilize the Divisions hearing process for either discovery for the federal case or a trial run for the federal case; to improperly cause needless increase in the cost of the litigation to Respondent; and to improperly waste this agency's time. Respondent incurred attorney's fees and costs and expenses in the amount of $13,506.39 dollars. Moreover, after review of the transcript and evidence in this case it is clear that this action had no basis in fact or law and was therefore frivolous in nature. Therefore Respondent is entitled to an award of attorneys fees and costs in the amount of $13,506.39.
The Issue Whether the Respondent committed the violations set forth in the Administrative Complaint dated June 6, 2000, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Education Practices Commission is the entity responsible for imposing discipline against an educator's certificate, and the Commissioner is charged with the responsibility for filing and prosecuting a complaint against a person holding a Florida educator's certificate. Section 231.262, Florida Statutes. Ms. Tate holds Florida Educator's Certificate number 452586, covering the area of physical education; the certificate is valid through June 30, 2004. At all times material to this proceeding, Ms. Tate was employed as a Driver's Education teacher at Miami Jackson, where she had taught since the late 1970's. She is currently assigned as a teacher to Horace Mann Middle School ("Horace Mann"), where she has been teaching for four years. Ms. Tate enjoyed a good relationship with the staff, faculty, and students at Miami Jackson, and she has a reputation at Miami Jackson as a good teacher. Ms. Tate also enjoys an exceptionally good relationship with her students at Horace Mann and works well with parents. At the times material to this proceeding, Louis Robinson was 18 years old and a senior at Miami Jackson. Mr. Robinson had been a student in Ms. Tate's class two or three years prior to the incident leading to the filing of the Administrative Complaint at issue herein. On April 29, 1997, Ms. Tate led her class into the area of the school where the auto repair and auto body shops are located. At the time, two instructors, Mr. Joyner and Mr. Jackson supervised that area; Mr. Joyner supervised the actual shop areas, and Mr. Jackson supervised the students in the adjoining classroom. Mr. Jackson also coached the Miami Jackson track team, and, when he had to leave the classroom early to prepare for a track meet, Ms. Tate sometimes took her class to the classroom adjoining the shop area and supervised both her students and the shop students in the classroom. It was for this purpose that she took her class to the area of the auto shops on April 29, 1997. Mr. Robinson was sanding an automobile in the auto body shop with two classmates when Ms. Tate passed close to him as she led her class through the auto shops to the classroom. Mr. Robinson had smoked marijuana with two other students during the lunch hour, and he was high at the time. Ms. Tate left her class, walked a few feet to where Mr. Robinson was working, and said a few words to him. Apparently without provocation, Mr. Robinson spit in Ms. Tate's face, and she responded by kicking out at him.6 Ms. Tate then turned away, but Mr. Robinson grabbed her from behind and began choking her. Mr. Jackson, who saw the incident, rushed over and pulled Mr. Robinson off of Ms. Tate. Ms. Tate refused to report the incident and left the immediate area of the auto body shop. Mr. Robinson returned to sanding the automobile. Mr. Robinson attacked Ms. Tate a second time a few minutes later, as she was leaving the auto-shop area with her students. During the second attack, Mr. Robinson hit Ms. Tate at least once with his fist and knocked her down onto the floor. Mr. Jackson again pulled Mr. Robinson off of Ms. Tate, who was shocked and confused by the assault. At some point after the altercation, Ms. Tate was summoned to the principal's office. Mr. Allen, the principal of Miami Jackson, and Ms. Lewis, an assistant principal, testified at the final hearing that Ms. Tate was very distraught. They further testified that Ms. Tate admitted to them that she had had a sexual relationship with Mr. Robinson and that Ms. Tate told them she was five months pregnant. Both Mr. Allen and Ms. Lewis deny ever talking with Mr. Robinson about the altercation or the existence of a sexual relationship between him and Ms. Tate, although Mr. Robinson recalls being taken to the office immediately after the altercation and speaking with both of them. Mr. Robinson testified that Mr. Allen asked if there was "anything going on" between him and Ms. Tate, that he told them, "Yes," and that no details were discussed. According to Mr. Robinson, this was the extent of his conversation with Mr. Allen and Ms. Lewis that afternoon. The next morning, Mr. Allen met with Mr. Robinson's parents, and, after the conversation, Mr. Robinson was transferred to another high school for the remainder of his senior year. Mr. Robinson's parents did not make any mention to him of the alleged sexual relationship between him and Ms. Tate. Based on the report submitted by Mr. Allen, the Miami- Dade County School Board ("School Board") conducted an investigation to determine whether Ms. Tate and Mr. Robinson had been involved in a sexual relationship. During an interview with the School Board investigator on May 9, 1997, Mr. Robinson stated that he and Ms. Tate had been involved in a sexual relationship between August 1996 and March 1997 and had engaged in sexual intercourse four times. In or about March 2000, Mr. Robinson ran into a classmate, who told him that Ms. Tate was still in trouble with the school system as a result of his statement that they had been involved in a sexual relationship. Mr. Robinson telephoned Ms. Tate and apologized for lying about their relationship and getting her into trouble. During his testimony at the final hearing, Mr. Robinson recanted the statement he had made to the School Board investigator, and he testified that nothing he said in the statement was true and that he had never had a sexual relationship with Ms. Tate. Ms. Tate testified at the final hearing that she was accused by Mr. Allen and Ms. Lewis of being pregnant and of having a sexual relationship with Mr. Robinson, to which accusations she replied, "Whatever you say." Ms. Tate testified at the final hearing that she never had a sexual relationship with Mr. Robinson and that she would not have told Mr. Allen and Ms. Lewis that she was five months pregnant because she had a hysterectomy in 1981. The School Board took disciplinary action against Ms. Tate.7 She was transferred from Miami Jackson to Horace Mann; she was placed on prescription, which she successfully completed in four months; and her step pay increase was temporarily frozen. Summary The evidence presented by the Commissioner is not sufficient to establish that Ms. Tate committed any wrongdoing whatsoever with respect to the physical altercation involving Mr. Robinson that is referred to in the Administrative Complaint.8 It is undisputed that Mr. Robinson attacked Ms. Tate twice. Although Ms. Tate kicked out at Mr. Robinson after he spit in her face, she did not further strike out at Mr. Robinson even though he hit and choked her and knocked her to the ground. In the Administrative Complaint, the Commissioner has alleged that Ms. Tate engaged in an inappropriate romantic relationship with Mr. Robinson and that she and Mr. Robinson had sexual intercourse on several occasions. Having considered the totality of the evidence presented in this case and the permissible inferences that can be drawn from the evidence, and having assessed the credibility of the witnesses, it is not possible to make a finding of fact with any degree of certainty as to whether Ms. Tate and Mr. Robinson did or did not engage in a sexual relationship as alleged in the Administrative Complaint. The testimony of Mr. Allen and of Ms. Lewis has been carefully considered, as has the testimony of Ms. Tate and of Mr. Robinson; in the absence of any corroborating evidence of a sexual relationship between Ms. Tate and Mr. Robinson, there is nothing in either the testimony or in the demeanor of these witnesses which offers a cogent reason to accept the testimony of Mr. Allen and Ms. Lewis over that of Ms. Tate and Mr. Robinson. It is clear, however, that the evidence presented by the Commissioner is not sufficient to establish clearly and convincingly that Ms. Tate engaged in a sexual relationship with Mr. Robinson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing all charges against Althea E. Tate. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 2001.
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 this 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
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 1st day of November, 2004, 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 1st day of November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 4th day of February, 2005.
Findings Of Fact Jennifer Morales-Allison is Hispanic-American and qualifies as a minority as defined in Section 278.012(9), Florida Statutes (1989) (Ex. 6). TSI was incorporated with the intent to obtain certification as a Disadvantaged Business Enterprise (DBE). In carrying out this intent Ms. Allison owns 510 shares of the 1000 shares issued in TSI which constitutes 51% of the stock of TSI. Richard Alberts, the non-minority shareholder of TSI, owns 490 shares or 49% of the stock of TSI. Alberts is president of TSI. TSI is primarily an environmental planning consultant and contracts generally with governments to provide environmental consulting involving road and airport construction. Accordingly, the work performed is technical in nature. Richard Alberts has some 22 years experience in environmental consulting primarily under contracts with the Federal Aviation Administration involving environmental effects of airport construction and state road departments involving environmental effects of highway construction. Prior to the incorporation of TSI Alberts worked at Greiner, an engineering firm doing extensive environmental consulting work, for some eight years. Ms. Allison also worked at Greiner during the time Alberts was employed there. She started out as a word processor-typist, moved up through secretary to office manager. During her eight years at Greiner she worked as secretary for Alberts and later as his administrative assistant. Her working experience was predominantly administrative such as in the preparation of contracts as opposed to technical. She has never served as a project manager or been involved with carrying out environmental contracts other than seeing that the proper personnel were assigned to the project and the agency was properly billed for the services. Although the evidence indicates Ms. Allison contributed $19,876 (51%) and Alberts contributed $19,092.32 (49%) as start up capital for TSI, Ms. Allison's contribution was obtained as a loan from Alberts for which promissory notes were signed. These notes were intended to be repaid from profits of the corporation, although the promissory notes are not so conditioned. Alberts' salary is set at $60,000 per year and Ms. Allison's salary at $40,000. Prior to leaving Greiner Alberts' salary was $80,000 and Ms. Allison's salary was $28,000. The bylaws of TSI (Ex. 5) provide that the president of the corporation shall be the principal executive officer of the corporation and, subject to the control of the board of directors, shall in general supervise and control as manager of technology all of the business and affairs of the corporation. Both Alberts and Allison testified that it was their intent that Alberts supervise the technical aspects of the corporation and Allison would supervise the business aspects of the corporation, and, if necessary, the bylaws of the corporation would be redrawn to express that intent. Both incorporators, Allison and Alberts, testified that Allison made final decisions for the corporation and as 51% owner controlled the vote of the board of directors comprised of Allison and Alberts. As such she had the authority to hire and fire employees, including Alberts. Without Alberts' expertise the corporation could not have successfully commenced operations. He is the incorporator with the knowledge and experience to bid on projects and carry out environmental consulting contracts once obtained. He is also the person who provided all necessary working capital for TSI to commence operations. Finally, he holds the necessary licenses and is qualifying officer for the company's projects. Evidence was submitted that Allison signs checks and contracts on behalf of TSI, that she hires and fires employees, and that she has the final say in all corporate decisions. This evidence is not credible with respect to her having final say in all corporate decisions. If Allison attempted to fire Alberts he could move out with the remaining capital he provided and forthwith start another company similar to TSI; and, if he did so, TSI would undoubtedly fail.
Recommendation It is, RECOMMENDED: That the application of Transportation Solutions, Inc. for certification as a Disadvantaged Business Enterprise be disapproved. DONE and ENTERED this 9th day of September, 1991, in Tallahassee, Florida. K. N. AYERS 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 this 9th day of September, 1991. APPENDIX Proposed findings submitted by Petitioner are generally accepted as testimony of the witnesses but, insofar as this testimony is that Ms. Allison controls the operation of TSI, those findings are rejected. Petitioner filed no findings of fact separate from conclusions of law; accordingly, without assigning a number to each paragraph, a ruling on Petitioner's proposed findings cannot be made. Nevertheless, the ultimate paragraph, starting at the bottom of page 6 of the proposed Order, is rejected insofar as it concludes that Ms. Allison has the requisite control to qualify TSI as a minority business enterprise. Proposed findings submitted by Respondent are accepted and are generally included in the Hearing Officer's findings of fact. COPIES FURNISHED: Mark M. Schabacker, Esquire P.O. Box 3391 Tampa, FL 33601-3391 Harry R. Bishop, Esquire 605 Suwanee Street Tallahassee, FL 32399-0458 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, FL 32399-0458
The Issue Whether Respondent committed the unlawful employment practices alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR") and, if so, what relief should Petitioner be granted.
Findings Of Fact At all times relevant to this proceeding, Petitioner, an African-American male, was employed by Respondent as a truck driver. In or around 1997, Respondent hired Petitioner as a forklift operator, a position he voluntarily abandoned (after roughly one year) to pursue other opportunities. Some six years later, in 2004, Petitioner returned to Respondent's employ as a truck driver. This second stint of employment continued until June of 2011, at which time Petitioner resigned his position——again, voluntarily——in order to "cash out" his 401K account. Tellingly, in his resignation letter, Petitioner thanked Respondent "for the opportunities [it] had provided [him] during the years," and noted that he "really enjoyed working for Mullins Lumber." Several months later, Respondent approached Petitioner about returning to his former truck-driver position. Petitioner agreed and resumed his employment with Respondent in August of 2011. For all that appears, Petitioner discharged his obligations suitably until the afternoon of August 14, 2012. On that occasion, Petitioner used a forklift to load materials onto his tractor trailer, a task he had performed numerous times. After the loading process was complete, Petitioner drove the forklift around the back of his truck and in the direction of the forklift shed. At one point along the way, it was necessary for Petitioner to make a blind turn around a truck belonging to a colleague, Wes Walker. Needless to say, such a maneuver presents a substantial danger to any person who might be nearby; for that reason, Respondent's forklift operator workbook, whose terms Petitioner was obliged to follow,2/ provides that drivers must: Slow down at cross isles [sic], exits, and blind corners; sound horn at once upon approaching any of these situations. (Emphasis in original).3/ Of the mistaken assumption that no other workers were in the immediate area because of inclement weather (a light rain was falling), Petitioner neither sounded the forklift's horn nor slowed to an appropriate speed as he negotiated the blind corner.4/ As a consequence, Petitioner accidentally collided with Respondent's vice president, Scott Mullins, who was conversing with Mr. Walker at the rear of the truck.5/ The evidence is undisputed that Scott Mullins suffered a broken tibia and fibula, injuries that required surgery and months of physical therapy to correct. Within hours of the accident, one of Respondent's owners and officers, Clarke Mullins, suggested to Petitioner (who was noticeably distraught) that he take the rest of the week off and return to work the following Monday. Petitioner agreed and departed the worksite shortly thereafter. Over the next several days, Clarke Mullins conducted a brief, yet adequate, investigation of the events of August 14, 2012. The investigation included an interview of Mr. Walker, an African-American, who confirmed that Petitioner's operation of the forklift was lacking. Upon the completion of his investigation, Clarke Mullins concluded that the accident of August 14 warranted the termination of Petitioner's employment.6/ Petitioner was thereafter replaced by an African-American driver some three years and seven months his junior.7/ During the final hearing in this cause, Petitioner offered no direct evidence in support of his claim of age discrimination. Although the age disparity between Petitioner and his replacement is sufficient to raise an initial inference of impropriety, Petitioner has failed to prove that Respondent's proffered reason for the firing——the accident——is a mere pretext for age discrimination. On the contrary, the undersigned credits Clarke Mullins' testimony that the accident was the sole basis for Petitioner's termination.8/ The charge of race discrimination fares no better. Petitioner's conclusory assertions notwithstanding, the record is devoid of any evidence, direct or otherwise, suggesting that Petitioner's termination was motivated by racial considerations. Quite the opposite, in fact: Petitioner was replaced by a member of his own race; and, as noted above, the undersigned credited Clarke Mullins' testimony that Petitioner was fired for the accident alone.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. Further, it is RECOMMENDED that the final order dismiss the Petition for Relief. DONE AND ENTERED this 14th day of August, 2014, in Tallahassee, Leon County, Florida. S Edward T. Bauer 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 14th day of August, 2014.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. 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 26th day of March, 1996.
The Issue Whether or not the Petitioner, Conduces Club, Inc., is entitled to the issuance of a Series 11-C alcoholic beverage license.
Findings Of Fact The Petitioner, Conduces Club, Inc., a nonprofit corporation incorporated in the State of Florida, has applied to the Respondent, State of Florida, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco, for the issuance of a series 11-C alcoholic beverage license. This license is described in Rule 7A-1.13, Florida Administrative Code, as a club license to sell to members and nonresident guests only. The terms and conditions for the issuance of such a license are as set forth in Subsection 561.20(7)(a), Florida Statutes, and Subsection 565.02(4), Florida Statutes. The Director of the Division of Alcoholic Beverages and Tobacco has denied the application of the Petitioner premised upon the assertion that the Petitioner has failed to meet the requirements set out in the aforementioned sections of the Florida Statutes. The Petitioner has disagreed with that interpretation and a Section 120.57, Florida Statutes, hearing was scheduled and held on April 10, 1979. The crucial language to be considered in determining whether or not the Petitioner should be extended the privilege of operating under a Series 11-C alcoholic beverage license is found in the Subsection 561.20(7)(a), Florida Statutes, which reads as follows: "(7)(a) There shall be no limitation as to the number of licenses issued pursuant to 565.02(4). However, any licenses issued under this section shall be limited to: Subordinate lodges or clubs of national fraternal or benevolent associations; Golf clubs and tennis clubs municipally or privately owned or leased; Nonprofit corporations or clubs devoted to promoting community, municipal, or county development or any phase of community, muni- cipal, or county development; Clubs fostering and promoting the general welfare and prosperity of members of showmen and amusement enterprises; Clubs assisting, promoting, and de- veloping subordinate lodges or clubs of national fraternal or benevolent associa- tions; and Clubs promoting, developing, and main- taining cultural relations of people of the same nationality." (Although the introductory phrase in the above-quoted Subsection makes reference to Subsection 565.02(4), Florida Statutes, as being involved in the process of issuing a license, Subsection 565.02(4), Florida Statutes, true function is the establishment of the requirement that chartered or unincorporated clubs pay an annual state license tax of $400.00, and it is this Subsection 561.20(7)(a), -- Florida Statutes, which establishes those categories of candidates who may receive a Series 11-C alcoholic beverage license.) Of the possible categories for licensure, the one which appears to be the focal point of the controversy is that provision found in Subsection 561.20(7)(a)3., Florida Statutes. In support of its request, the Petitioner presented certain witnesses and items of evidence. Among those items was the testimony of Mrs. E. R. Atwater, Social worker Supervisor with the United States Department of Housing and Urban Development, Housing Management Division, assigned to the Blodgett Community in Jacksonville, Florida. The Blodgett Community is a housing development of some 53 acres which contains 628 housing units with a breakdown of that population containing 301 senior citizens and 1,069 juveniles, with cost of the heads of the households being female. Those persons living in the Blodgett development are described as having a poor economic circumstance. Mrs. Atwater indicated that the Conduces Club, Inc., had on occasion sponsored girls softball teams and boys basketball teams for those young persons living in the Blodgett Community and she had expressed her appreciation in the form of correspondence of January 17, 1979, which is the Petitioner's Exhibit No. 1 admitted into evidence. In addition, Mrs. Atwater indicated that the Conduces Club, Inc., had provided transportation for a trip for the residents of the Blodgett Community to Six Gun Territory located near Ocala, Florida. Arrangements were made for three busses; two of the busses which transported residents on July 16, 1977, and the third bus transported them on August 11, 1977. The trips involved both young people and adults as participants. The letters requesting the assistance of the Conduces Club, Inc., and the confirmation of that request may be found as Petitioner's Exhibits Nos. 2 and 3, admitted into evidence consecutively. The president of the Conduces Club, Inc., Mr. Cornell Tarver, testified in support of the petition. He indicated that the club had been originally formed as the Pacesetter Club but its name was changed in September, 1976, because of a conflict concerning the utilization of the name, which had been preempted by another club. The club was chartered as a nonprofit corporation by the State of Florida on September 22, 1976, under the name, "Conduces Club, Inc." A copy of the Articles of Incorporation may be found as Respondent's Exhibit No. 1 admitted into evidence. Mr. Tarver indicated that the purpose of the club was to help the youth and senior citizens and principally the kids of the Blodgett Community, to include organizing softball and baseball and providing uniforms. He also testified that a certain banquet was hold for these young persons and the parents of those children were invited to attend, and enough food was prepared to food cost of the individuals who reside in the Blodgett Community. He produced certain plaques and trophies awarded to the club. The plague was given by the mothers of the children in the sports programs and the trophy was presented by an unaffiliated club that the Conduces Club had helped to organize. The witness, Tarver, indicated that the club was financed by functions such as dances, fish fries, food sales in their club house, dues of the members and fines. The club itself has twenty-seven members. Other projects the club has participated in, were the contribution of money to local churches and the donation of an organ to one of those churches. On December 16, 1977, the club contributed $500.00 to the National Association for the Advancement of Colored People. The club house is open every day and there are certain activities through the week, to include club meetings and entertainment for the benefit of club members. The members run the club without compensation and the club does not maintain any regular employees. The official statement of the club's purposes may be found in the Respondent's Exhibit No. 2 admitted into evidence. This is a composite exhibit which contains part of the application for the license and a copy of the Bylaws. The objectives of the corporation may be found in Article II of the Bylaws and the activities of the corporation may be found in Article VIII of the Bylaws. Article II states: "The objectives of this organization shall be as follows: To unite fraternally all persons who the membership may from time to time take into the club. To promote brotherhood, sportsmanship, friendship and charity for the membership and their families. To strive at all times to promote and protect the welfare of every member. To promote a spirit of cooperation between its members and the public. To honor outstanding individuals in the City of Jacksonville for their achievement. To do anything necessary, including, but not limited to, the ownership of property, real and personal, for the accomplishment of the foregoing objectives, or those which may be recognized as proper and legal objectives of this club, all of which shall be consistent with the laws, the public interest and the interest of its mergers. To sue or to be sued as a natural person. To bear a seal to be placed on all of the club's official correspondence." Article VIII states: "COMMITTEES Section 1. The following standing committees and such other committees as the directors may, from time to time deem necessary, shall be appointed by the president of the association. Social Committee Athletic Committee Scholarship Committee The duties of the standing committee shall include the following, which shall not, however, prelude other activities by such committees. Section 2. The social committee shall be composed of six members. It shall be the duty of this canted to supervise the use of club room and to plan such club meetings of a purely social nature as it may deem necessary. These may include parties, picnics, and other such social or athletic events sponsored by the organization. Section 3. The athletic committee shall be composed of three members. It shall be the duty of this committee to supervise and manage all athletic activities for the association, including but not limited to management of various athletic teams sponsored by the club. Section 4. The scholarships committee shall be composed of six members. It shall be the duty of this committee to screen applicants for scholarships and deserving students in Duval County, Florida, and to make recommendations to the general membership of its findings of worthwhile recipients of scholarships, or awards." It can be seen that the Petitioner's members have a commendable concern for the community in which the club has its principal base of operation and this concern has been expressed through the activities of the club members which have been described in the course of this Recommended Order; however, it appears from an examination of the testimony in this hearing and the official statement, that is, the Bylaws of this corporation, that the principal purpose of the club is as stated by the Article II B. of the Bylaws, which language states, "To promote brotherhood, sportsmanship, friendship and charity for the membership and their families," and this attitude carries over to foster good relations between those members and the members of the general public. Therefore, the Petitioner is not perceived as being a club which meets the criterion, "devoted to promoting community, municipal or county development or any phase of community, municipal or county development." See Subsection 561.20(7)(a)3., Florida Statutes. This conclusion is reached in examining the definition of the word "devoted," as found in Webster's New World Dictionary of the American Language, College Edition. That definition states that to be devoted one must be, "1. vowed; dedicated; consecrated. 2. very loyal; faithful." and although the community concern of the Petitioner is very high, it does not reach the level of devotion. Consequently, the Director of the Division of Alcoholic Beverages and Tobacco was correct in denying the application for a Series 11-C alcoholic beverage license.
Recommendation It is recommended that the Director of the Division of Alcoholic Beverages and Tobacco deny the Petitioner, Conduces Club, Inc.'s request for a Series 11-C alcoholic beverage license. DONE AND ENTERED this 30th day of April, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building MAILING ADDRESS 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jennings H. Best, Esquire 3410 North Myrtle Avenue Jacksonville, Florida 32209 Francis Bayley, Esquire Staff Attorney Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301 J. M. Ogonowski Richard P. Daniel Building, Room 514 111 East Coast Line Drive Jacksonville, Florida 32202
Findings Of Fact Petitioner, Helen T. Cook, (formerly Griffin), started working for the Respondent, St. Petersburg Motor Club as Personnel Director on May 15, 1979. In that capacity, she reported to the Chief Executive Officer who was, at the time, Mr. James Hendry. Mrs. Cook remained as Personnel Director until August, 1984, when she was promoted to the position of Managing Director for Personnel, and made a part of senior management. As the Managing Director for Personnel, she was the senior personnel officer within the organization and was required, among other duties, to interview applicants for employment; counsel employees and conduct exit interviews; implement approved company policies; research employee benefits and administer them; serve on the pension committee responding to the Board of Directors; work out personnel solutions with supervisors and employees; maintain legal personnel files on all staff; and represent the Club on all compliance hearings regarding worker's compensation, unemployment compensation, and equal employment opportunity. She reported to the Executive Vice President of the Club. When Mrs. Cook first went to work for the Club, the organization had no rule regarding nepotism. However, in August, 1984, in order to correct a situation then existing involving numerous instances of nepotism among Club employees, the Board of Directors promulgated a rule which was implemented in January, 1985 and which prohibited employment of individuals related to Club employees. When the rule was enacted, incumbent employees related to other employees were grandfathered, but non-related incumbent employees who later married other Club employees were to be covered by the policy. At the time of it's implementation, Mrs. Cook opposed it. Mrs. Cook's husband, Richard, was already employed by the Club when she was hired. They were not married at the time. Mr. Cook was Director of the Club's service center and in her job as director of personnel, she presented potential future employees to him for hire. Mr. Cook was not in her direct line of authority. He worked for the Managing Director of Services, Mr. Schatzman. At the time the problem here came about, Mrs. Cook was the Managing Director of Personnel and on a parallel with her husband's boss. Mrs. Cook and Mr. Cook started dating in April, 1985, approximately one month after the death of his wife. Mrs. Cook immediately notified the Club management of this fact. In her opinion, management seemed delighted because of their affection for both parties. No one attempted to dissuade them from continuing the relationship, nor did anyone ever suggest that the relationship was detrimental to the Club. In her opinion, the matter was so well handled that no one could tell they were dating. Mr. and Mrs. Cook were married on July 14, 1985. At the time, both parties knew that the policy against nepotism was in effect. In June, 1985, before the marriage, Mrs. Cook informed Mr. White, then either Executive Vice President or President and Chief Executive, of their plans. He asked her to hold up on any action while the Board looked into the policy to see if it would be applied to her. Nonetheless, they married and after the marriage she again approached Mr. White, to determine if the anti-nepotism policy would apply to her. At this time, she hoped he could convince the Board to make an exception to the policy for the Cooks. He asked her to hold off on any resignation action to allow the Board to look into the policy in an effort to determine if it was legal and if it would be applied to her. There was never any question in Mrs. Cook's mind that if the rule were to be enforced against them, she, not her husband, would submit a resignation and she informed Mr. White of this prior to the final decision the Board to invoke the policy. A special meeting of the Board was held on November 14, 1985 at which the Board decided that the policy would be applied and enforced in this case. Mr. White was not present at this Board meeting but was informed of it either that day or the next morning by Mr. Harris, Vice Chairman of the Board. That same day, or the next day, Mr. White informed Mrs. Cook of the Board's decision. He appeared to be upset by it and so was she. However, she suggested to Mr. White that a memorandum be sent out by him to advise employes of her departure and the reason therefor. This memo was dated November 20, 1985. The minutes of the Board meeting of November 19, 1985 reflect Mrs. Cook had already elected to resign. Consequently, it is found she was advised of the Board's decision on or before November 19, 1985. Her complaint of discrimination was filed with the Commission on May 19 1986, no less than 181 days after she received notice of the action complained of. Her resignation was effective in January, 1986. From the time she and her husband started dating the relationship, Mrs. Cook believes, never created any problem for the Club. She would not have left her employment but for the Club's policy. In her opinion, problems could have been avoided by taking her out of the loop relating to actions regarding her husband. This would not, however, have avoided the appearance of impropriety, regardless that no actual impropriety existed. In her position as Managing Director of Personnel, Mrs. Cook had access to all personnel files for the more then 300 employees of the Club. She was a policy maker and a member of the top management team. She was aware of all employees' salaries and evaluations and attended evaluation meetings with the Chief Executive Officer and managing directors concerning the evaluations of all directors under them. Though she did not rate any personnel except those who were in her immediate division, nor did she have any say on salaries outside her division, she was aware of them and was a part of the management team which controlled the day to day operation of the Club. Managing directors got together at least twice a day in informal meetings to discuss Club business and at those meetings, such things as evaluations, assignments, and promotions were discussed. Therefore, though she did not rate or direct her husband, she could have had a substantial impact on his career by virtue of her relationship with other managing directors. This is not to say, however, and it must be recognized, that there was any evidence that at any time Mrs. Cook interfered in her husband's career. By her own admission, however, she was a valuable employee and her position was sensitive. On December 31, 1984, prior to her marriage, she executed an Employment at Will statement which acknowledged that her employment could be terminated by either herself or the employer at any time. When Mr. White first learned that the Cooks had developed a personal relationship, it presented no problem for him. He did not believe it would be detrimental to the Club and, in fact, he received no complaints about it from anyone. He was aware of the Club's policy regarding nepotism. When he first became aware of the policy, he requested that the Board reconsider its decision because he felt that it might be illegal. Nonetheless, at no time did he bring the matter up with the Cooks because, to his knowledge, Mrs. Cook was fully aware of it nor did he indicate to her that the Board would not apply it to her. He believed, however, that both Mr. and Mrs. Cook should be allowed to remain as employees even after their marriage and made that recommendation to the Board. Nonetheless, the Board chose to implement the policy. According to Mr. Gregory, a member of the Club's Board, because of a situation regarding the former president, Mr. Henry's hiring of several family members under circumstances incompatible with good morale and discipline within the Club staff, and because of the growing number of Club employees married to other Club employees, (approximately 45 employees were involved), the Board implemented the rule against nepotism. A committee had discussed several alternatives before recommending the anti-nepotism policy and the Board was unanimously in favor of its implementation except for Mr. Henry who, at the time, was still on the Board. When the Board was made aware that the Cooks intended to marry, members were concerned because of Mrs. Cook's position and the image that might be created in the eyes of other employees. As a result, the Board felt compelled, as a business necessity, to enforce the policy notwithstanding Mr. White's urging that Mrs. Cook be kept on because of her value to the Club. The decision to invoke the rule was made reluctantly. It was acknowledged she was a good and valuable employee. However, because of the circumstances, and because of Mrs. Cook's position as Managing Director of Personnel, the Board felt compelled to enforce it. Had it not been for the sensitivity of Mrs. Cook's position, and given Mr. White's desire to keep her, the Board might have been able to look at the situation differently. Under the circumstances, however, it could do nothing else. The decision in no way reflected Board dissatisfaction with Mrs. Cook's performance or any animosity toward her or her husband. The problem was that her position, when considered against the apparent potential for abuse, was the most sensitive of all jobs related to Club personnel. This factor differentiated her situation from other situations involving nepotism and necessitated her departure. This was an appropriate decision under the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be issued by the Florida Commission of Human Relations dismissing Petitioner's charge of discrimination against the Respondent. RECOMMENDED this 30th day of September, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2095 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes on all of the Proposed Findings of Fact submitted by the parties to this case. For the Petitioner: Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the last sentence which has not been proven but is a matter of opinion. Accepted. Accepted as indicating a perception for possibility of abuse, not that Mrs. Cook was guilty of any breach of trust. Accepted and incorporated herein. For the Respondent: Accepted and incorporated herein. Accepted and incorporated herein. Accepted but not controlling. 4 - 5. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein except for the testimony quoted which is not a Finding of Fact but a recitation of testimony. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not being a proper Finding of Fact relative to the issues of fact herein. COPIES FURNISHED: Robert F. McKee, Esquire 1724 East 7th Avenue Post Office Box 75638 Tampa, Florida 33675-0638 Michael K. Houtz, Esquire Post Office Drawer 1441 St. Petersburg, Florida 33731-1441 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Margaret Agerton, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 =================================================================
