The Issue The stipulated issue1 is whether Respondent discriminated against Petitioner on the basis of her race by denying Petitioner equal pay in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2007).2
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is an African- American female and filed a complaint of race discrimination, with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is the Office of the Sheriff for Brevard County, Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination. Nor does the evidence prove that Petitioner received unequal pay. Respondent first employed Petitioner sometime in October 2002. Petitioner voluntarily resigned her position of employment with Respondent on May 30, 2008, for a higher-paying position with another employer.3 On July 29, 2006, Respondent transferred Petitioner from the position of payroll specialist, in the accounting department, to a position of personnel officer in the personnel department. The transfer was a promotion, and Petitioner received a 10 percent increase in pay. Ms. Bridget Bauer replaced Petitioner in the accounting department. The supervisor in the personnel office was Ms. Imogene Mullins. Ms. Mullins supported the transfer of Petitioner and considered Petitioner to be a valuable asset due to Petitioner's varied experience, including experience in human resources. On April 3, 2008, Ms. Bauer transferred from the accounting department to another position within Respondent's organization. Ms. Denise Postlethweight, the supervisor of the accounting department, asked Petitioner to temporarily assist the accounting department until the department could replace Ms. Bauer, to train the replacement for Ms. Bauer, and to assist in interviewing applicants to replace Ms. Bauer. Petitioner agreed to perform these temporary duties. Respondent, Ms. Postlethweight, and Ms. Mullins did not promise Petitioner she would receive additional compensation for performing these temporary duties in the accounting department until the accounting department replaced Ms. Bauer. Respondent's administrative policy does not authorize compensation for temporary duties. Ms. Mullins attempted to obtain authorization for increased compensation for the temporary duties performed by Petitioner without success. No pay increase was approved because Petitioner was performing equivalent supervisory duties in the accounting and personnel departments on a temporary basis. One alleged comparator relied on by Petitioner is not a comparator. Ms. Lisa Gillis performed equivalent supervisory duties as the special projects coordinator and sheriff's assistant. However, Ms. Gillis performed equivalent supervisory duties on a permanent basis rather than a temporary basis. Respondent's administrative policy authorizes additional compensation for dual duties performed on a permanent basis. Petitioner spent much of her time during the hearing attempting to show that Ms. Mullins promised additional compensation to Petitioner as an inducement for Petitioner's agreement to perform dual duties on a temporary basis. As previously found, the fact-finder does not find that evidence to be persuasive, and, if it were, the evidence does not rise to the level of a preponderance of the evidence. Moreover, evidence of an offer and acceptance of additional compensation between Ms. Mullins and Petitioner as an inducement for the performance of dual duties is relevant to an action for breach of contract rather than discrimination. Jurisdiction for an action for breach of contract is in circuit court rather than DOAH.
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 finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 15th day of June, 2010.
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
The Issue Whether the bid response of the Petitioner and/or the bid response of General Maintenance Corporation of Northwest Florida, Inc., was responsive to Invitation to Bid No. 88/89-027?
Findings Of Fact The Department issued Invitation to Bid No. DGS 88/89-027, titled "Exterior Repairs & Painting/Elliot Building/Tallahassee, Fl." (hereinafter referred to as the on September 9, 1988. No challenge to the specifications contained in the ITB was filed. Bids in response to the ITB were filed by the Petitioner, Professional Painting Services, Inc., and by General Maintenance Corporation of Northwest Florida, Inc. (hereinafter referred to as "General"), and others. When a bid response is received by the Department it stamps the time and date of receipt on the bid response. The time and date are used to determine whether a bid has been filed within the time specified in an invitation to bid. The time that a bid response is opened does not determine whether the bid response was filed within the time specified in an Invitation to bid. The bid responses in this case were to be opened at 2:00 p.m., October 26, 1988. Therefore, bid responses were required to be received by the Department before that time. The bid responses of the Petitioner and General were received by the Department before 2:00 p.m., October 26, 1988. The envelope in which the bid response filed by General was filed identified the Department and the Department's address, the title of the bid, the date the bid responses were to be opened and the time of the opening. The number of the ITB was not included on the envelope in which General's bid response was filed. Bid responses are generally filed by the Department by bid number, title and date. The bid responses to the ITB were filed in this manner. The Department does not consider the failure to include the number of a bid on a bid response to affect the responsiveness of the bid response. The bid response of General was misfiled by the Department. 11 The bid responses were opened by the Department on October 26, 1988, at 2:00 p.m. The bid response of General was not opened, however, because the Department had misfiled General's bid response. General's bid response was discovered later in the day on October 26, 1988. It was then opened by the Department. The Petitioner was notified by telephone that General's bid response had been misfiled and that it had been opened after the Department discovered its mistake. The winner of the bid on the ITB was not determined at the time when the bid responses were opened. The bid responses were evaluated first to determine who the winner was. The failure of the Department to open General's bid at 2:00 p.m. did not have any affect on the price bid by General. General was not able to modify or supplement its bid response as a result of the Department's error. Based upon the Department's evaluation of the bid responses it received on the ITB, the Department rejected the Petitioner's response as nonresponsive. The Petitioner's response was determined to be nonresponsive because the Petitioner had not submitted proof of automobile insurance as required by the ITB. Bidders were informed that General was the intended awardee of the ITB on November 2, 1988, by posting of a bid tabulation sheet. The ITB provided the following with regard to certain information to be provided concerning insurance (hereinafter referred to as the "Insurance Requirements"): NOTE BIDDER MUST SUBMIT WITH BID PACKAGE EVIDENCE OF THE FOLLOWING INSURANCE IN EFFECT, EQUAL TO OR EXCEEDING THE LIMITS REQUIRED BY THE BIDDING DOCUMENTS. PROOF OF INSURANCE TO BE ON STANDARD ACCORD FORM, AND IN THE CANCELLATION CLAUSE THE WORD ENDEAVOR MUST BE CHANGED TO SHALL: WORKER'S COMPENSATION INSURANCE CONTRACTOR'S COMPREHENSIVE GENERAL LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $300,000.00 Each Occurrence, Combined Single Limit AUTOMOBILE LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $100,000.00 Each Occurrence Combined Single Limit PLEASE READY [sic] CAREFULLY AND MAKE SURE TO COMPLY WITH ALL THE INSURANCE REQUIREMENTS OF BID DOCUMENTS. FAILURE TO COMPLY WITH THESE BID REQUIREMENTS WILL BE CAUSE FOR REJECTION OF YOUR BID. The Petitioner's bid response did not include proof of automobile insurance as specified in the Insurance Requirements. Subsequent to the date the bid was awarded, the Petitioner has attempted to provide proof of automobile insurance as specified in the Insurance Requirements. The information provided from the Petitioner indicates that insurance coverage was effective beginning on November 21, 1988, after the bid was awarded. The Petitioner has not provided proof that insurance in compliance with the Insurance Requirement was in effect as of time bid responses were due. The Department has rejected bid responses in other cases where bid responses did not comply with insurance requirements similar to the Insurance Requirements. Failing to provide proof of required insurance can affect the price of a bid and can give one bidder an advantage not enjoyed by other bidders. For example, a bidder that does not have insurance can wait until the bid responses are opened and, if the bidder does not want its bid accepted, for whatever reason, the bidder can refuse to acquire the required insurance. Or, if a bidder determines that it should go forward with its bid response, it can provide proof of insurance or even acquire the insurance. The Department will not be able to verify when insurance was required with an independent source. The ITB included an information questionnaire. Among other things not relevant to this proceeding, the information questionnaire requested the number of each bidder's current county occupational license number. The ITB did not require that a bidder have a current Leon County occupational license even though the job was to be performed in Leon County. General did not include its current county occupational license on the information questionnaire submitted with its bid response. The Department determined that General had a current county occupational license at the time it submitted its bid response by contacting the Okaloosa County Tax Collector's Office. The Department considers the failure to list a current county occupational license number to be a minor irregularity because the Department can verify whether a bidder has a county occupational license by checking with a Tax Collector's Office, a public entity. The Department has not rejected other bid responses for omission of a current county occupational license number. The ITB also required that the bid price submitted by any bidder was to be guaranteed for a period of sixty days. The ITB allowed the winning contractor forty-five days after the date stipulated in the purchase order to complete the contract. No credit was authorized by the ITB for bidders who indicated they would complete the contract in less than forty-five days. The Petitioner's bid response was not responsive to the ITB. General's bid response was responsive to the ITB. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987). Based upon the terms of the ITB involved in this proceeding, the Petitioner's bid response was not responsive. The ITB specifically requires that bid responses include evidence that the Insurance Requirements have been met. Bidders are warned that "[f]ailure to comply with [the insurance requirements] will be cause for rejection of your bid. Section 120.53(5), Florida Statutes, and Rule 13A- 1.006, Florida Administrative Code, provide the manner in which bid specifications may be challenged. The Petitioner has provided no evidence that it challenged the bid specifications quoted in finding of fact 18. The Petitioner has, therefore, waived any right it may have had to challenge the Insurance Requirements. Section 120.53(5), Florida Statutes; and Capeletti Bros., Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986). The Petitioner's failure to comply with the Insurance Requirements by the very terms of the ITB require that the Petitioner's bid response be rejected. Subsequent to the proposed award of a contract pursuant to the ITB, the Petitioner attempted to comply with the Insurance Requirements by providing additional information. Rule 13A- 1.001(13), Florida Administrative Code, provides the following definition of a "valid bid/proposal": A responsive offer in full compliance with the invitation to bid . . . by a responsible person or firm. The responsiveness of a bid . . . shall be determined based on the documents submitted with the bid . . . In order for the Petitioner's bid response to be considered a valid bid pursuant to Rule 13A-1.001(13), Florida Administrative Code, the response was required to be "in full compliance with the invitation to bid" based upon the "documents submitted with the bid." Since the Petitioner's bid response was not in full compliance with the ITB based upon the documents it submitted with its bid response, the Petitioner's bid response was not a valid bid. Because the determination of whether a bid response is valid is based upon documentation provided at the time a bid response is tiled, the Petitioner's bid response cannot be made a valid bid by filing required documentation after the deadline for filing bid responses. This conclusion is consistent with Rule 13A- 1.002(11), Florida Administrative Code, which specifically prohibits the modification of a bid response once bid responses have been opened. The rationale for not allowing modifications of bid responses was explained in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1978): [I]t is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. See also, Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982); Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, DOAH Case No. 88- 2211BID (June 28, 1988); and Tel Plus Florida, Inc. v. Department of General Services, DOAH Case No. 86-4701BID (May 6, 1987). The Petitioner's failure to meet the Insurance Requirements is not a minor irregularity which can be cured after the bid responses were opened. Nor is the Petitioner's failure to comply an irregularity which can be waived by the Department. Rule 13A-1.002(10), Florida Administrative Code, provides the following with regard to minor irregularities: The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid . . . . A minor irregularity is a variation from the invitation to bid . . . which does not affect the price of the bid . . . or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor cannot be waived. The court in Harry Pepper & Associates, discussed the waiver of minor irregularities: The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders. 352 So. 2d at 1193. The Petitioner's failure to meet the Insurance Requirements in this case is not a minor irregularity. The Petitioner's failure to meet the Insurance Requirements conceivably could have given it an unfair bidding advantage. If a bidder does not submit proof of insurance as required by an invitation to bid and is allowed to provide such proof after the bids are open, the bidder can decline to do so if the bidder determines that his or its bid is too low based upon the bids submitted by other bidders. Additionally, if a bidder decides to proceed with a bid, proof of insurance could then be provided or even obtained and the Department would not be able to verify with an independent source that the bidder had the insurance at the time bid responses were submitted. These possible situations would give a bidder an unfair competitive advantage. Although the Petitioner has not attempted to obtain such an advantage in this case, the potential for such an abuse was present when the aids were open. Based upon the foregoing, it is concluded that the Petitioner's failure to comply with the Insurance Requirements is not a minor irregularity. The Department cannot, therefore, waive the irregularity or allow the Petitioner to now supplement its bid response by providing proof that it meets the Insurance Requirements. Finally, even if the Petitioner's failure to meet the Insurance Requirements was a minor irregularity which could be corrected, the Petitioner has failed to meet its burden of proving at the formal hearing that it meets the Insurance Requirements. The failure of General to provide its county occupational license number does not render General's bid response nonresponsive. General's failure is a minor irregularity which can be waived by the Department. Unlike the Insurance Requirements, the Department can verify the existence of a County occupational license with a public entity, a tax collector's office. Bidder's are not able to obtain an occupational license after bid responses are open. Therefore, bidders who fail to provide a county occupational license number with their bid responses cannot gain a competitive advantage. While General may have a problem with Leon County because it may not have a Leon County occupational license, General's bid response was responsive to the ITB. Finally, the failure to open General's bid response at the same time other bids were opened should not affect General's right to an award of the contract for the ITB. Although General did not Include the number of the ITB on the envelope in which it submitted its bid response, it included sufficient information on the envelope for the Department to determine that the response was filed on the ITB at issue in this proceeding. The error in filing General's bid response was therefore the responsibility of the Department. General should not be disqualified for the Department's error. More importantly, the failure to open General's bid response when the other bid responses were opened did not give General any advantage over the other bidders. Therefore General's failure is a minor irregularity. Based upon the foregoing, it is concluded that the Petitioner's bid response was not response to the ITB and was properly rejected by the Department. It is also concluded that the Petitioner has failed to prove that the bid response of General should be rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by the Petitioner. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1989. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner failed to number the paragraph's of his proposed recommended order as instructed at the formal hearing. The "Proposed Finding of Fact Numbers" of the Petitioner referred to below correspond generally with the order in which each paragraph of the Petitioner's proposed recommended order appear. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page 1 1 See 7-9. See 23-24. The portion of this paragraph dealing with Leon County requirements is not relevant to this proceeding. Argument and quotation of testimony. 4 See 18-22. Page 2 1-2 Argument and quotation of testimony. Not supported by the weight of the evidence. Argument and quotation of testimony. Page 3 Continues with quotation of testimony. 1-2 Argument. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 18. 3 23. 4 27. 5 28. 6 11. 7 10-11. 8 6. 9 4. 10 13. 11 14. 12 8. 13 7. 14 15. 15 9. 16 15. 17 19. 18 16. 19 17. 20-22 20. 23-24 23. 25 24-25. 26 25-26. 27-28 26. 29 21. 30 2. 31-32 22. 33 29. 34 30. COPIES 35 FURNISHED TO: Not relevant to this proceeding. RONALD W. THOMAS, EXECUTIVE DIRECTOR DEPARTMENT OF GENERAL SERVICES 133 LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FL 32399-0955 JOHN A. TENNANT, PRESIDENT PROFESSIONAL SERVICES, INC. POST OFFICE BOX 20803 TALLAHASSEE, FLORIDA 32316 ROBERT D. STINSON, ESQUIRE OFFICE OF GENERAL COUNSEL DEPARTMENT OF GENERAL SERVICES ROOM 452, LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FLORIDA 32399-0955
Findings Of Fact J.D. Bligh Construction, Inc. (Petitioner), was incorporated and began doing business on or about February 18, 1974. Petitioner engaged in the construction business; erecting, repairing and remodeling buildings and structures; and performing public works. The majority of Petitioner's work is subcontracted out. At Petitioner's inception, Jack D. Bligh and his wife, Carol E. Bligh, were co-owners with each possessing 50 percent of the stock in the business. Jack Bligh was the President and the only Director. Petitioner was started as a family business. At all times material hereto, Jack Bligh was licensed as a certified Management contractor by the State of Florida, Department of Professional Regulation, Construction Industry Licensing Board. Petitioner is authorized by the State of Florida to engage in the construction business under his license. Petitioner had no employees other than Jack and Carol Bligh and subcontracted out work for which contracts were awarded or agreements entered into. All proposals for work and contract agreements on behalf of Petitioner were accepted and executed by Jack Bligh. Jack Bligh was the guarantor on behalf of Petitioner. For example, he was the guarantor for Petitioner's lease agreement for the site location of its business, dated June 15, 1988. Carol Bligh's duties with Petitioner were clerical and administrative, such as determining draw requests, ordering supplies and banking. She had no experience in the construction industry whether it was Management contracting or actual field experience. Jack Bligh, her husband, was responsible for the actual running of the business and handling the day-to-day operations of the business, such as contracting, estimating, bidding and hiring and firing subcontractors. On or about August 22, 1985, Jack and Carol Bligh formed J. D. Bligh Airport Construction, Inc., with Jack Bligh as the sole director and President, owning 49 percent of the stock, and Carol Bligh as Secretary, owning 51 percent of the stock. It was a wholly owned subsidiary and formed on the advice of their insurance agent and accountant for liability insurance purposes regarding a contract for work at the Fort Lauderdale International Airport, which at that time was a big project for Jack and Carol Bligh. In September 1988, Petitioner, as contractor, contracted with the Boca Raton Airport, Inc., d/b/a Boca Aviation to perform work at the airport at a cost of approximately $533,000. The subsidiary corporation, J. D. Bligh Airport Construction, Inc., was not used for this job. In July 1990, Petitioner entered into a contract as subcontractor to perform work at the Opa-Locka Airport at a cost of approximately $65,000. The subsidiary, J. D. Bligh Airport Construction, Inc., was also not used for this job. On or about August 8, 1990, J. D. Bligh Airport Construction, Inc., was changed to J. D. Bligh Caribbean Construction, Inc. The purpose of the name change was again for liability insurance purposes in order to perform work in St. Thomas, U.S. Virgin Islands. The Blighs were rebuilding apartments damaged by Hurricane Hugo. Also, in September 1992, Petitioner again contracted with Boca Raton Airport to perform work at a cost of approximately $272,000. Carol Bligh executed the contract and the performance bond. For 17 years, Jack Bligh remained Petitioner's President until on or about January 15, 1991, at which time Carol Bligh became President. She was gratuitously given additional stock in the business by her husband for her long years of service and dedication to Petitioner. With this additional stock, Carol Bligh also became the minority/majority stockholder. When Carol Bligh became President of Petitioner and minority/majority owner with 51 percent in January 1991, her main duties and responsibilities did not change. She continued with the clerical and administrative aspect of Petitioner's Management contracting business. However, her duties and responsibilities also expanded to include dealing with bonding, securing lines of credit and insurance, setting-up workers compensation, assisting in policy- making, financial planning and operational procedures, and contract negotiations. On or about October 3, 1991, Carol Bligh's duties and responsibilities relating to hiring and firing were officially increased by Petitioner's directors to include hiring and firing of all personnel, including office and field personnel. In 1990, Carol and Jack Bligh's daughter, Janice Bligh, joined the business. Using his more than 17 years experience in the construction business, Jack Bligh began training her in Petitioner's contracting business, which included taking her to job sites for observation of the work being performed. Around mid-1991, Janice Bligh was placed in control of field supervision, estimating and bidding. For the past year and a half, Jack Bligh performed these functions only when she was unable to do so. Janice Bligh received her training as a field supervisor from her father, Jack Bligh, through observing him and the subcontractors. His supervision extends over the subcontractors since the majority of Petitioner's work is subcontracted out. Janice Bligh is taking courses in contracting and has completed three; one in estimating, one in plan reading and one in the South Florida Building Code. She is not currently licensed in the construction industry but eventually wants to take the State licensing examination to become a Management contractor but that is 2 1/2 to 3 years away. She has limited knowledge of the statutory requirements placed upon a Management contractor in terms of authorized scope of work and required liability coverage. Since Carol Bligh became Petitioner's President, proposals and agreements or contracts have been signed by either Janice Bligh or Carol Bligh. Also, bonding documents have been signed by Carol Bligh. Authorized signers and users on Petitioner's bank account are Carol, Jack and Janice Bligh, individually, with either one of them being authorized to execute bank documents on behalf of Petitioner. When Petitioner needed funds for operating expenses, they came from Carol and Jack Bligh. A promissory note dated April 15, 1992, from Petitioner to Carol Bligh was signed by Carol Bligh, as President, and came from funds in Carol and Jack Bligh's joint account. However, another promissory note dated June 30, 1992, involved funds loaned to the businesses from a business owned by Jack Bligh's father. Additionally, a promissory note dated April 15, 1993, was from Petitioner to Carol and Jack Bligh, equally. On or about December 1, 1992, Janice Bligh became a shareholder and officer of Petitioner's business, acquiring 2 percent of the stock from Jack Bligh, thereby leaving him with 47 percent of the stock. Carol Bligh retained 51 percent of the stock. Even though Janice Bligh was a shareholder and part owner of Petitioner, an indemnity agreement with a bonding surety dated February 23, 1993, was signed by Carol and Jack Bligh only. Also, the agreement reflected no differentiation of liability. As to wages, Petitioner's quarterly wage report dated April 17, 1991, reflects Jack Bligh's salary as $3,650, Carol Bligh's salary as $7,250, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,209 and Lawrence Massey's salary as $4,093.76. Jill Bligh is another daughter of Carol and Jack Bligh. She performs office work, run errands and answers the telephone. She is neither an officer nor a director. Petitioner's quarterly wage report dated July 12, 1991, reflects Jack Bligh's salary as $650, Carol Bligh's salary as $650, Janice Bligh's salary as $5,200, Jill Bligh's salary as $1,698 and Lawrence Massey's salary as $1,593.77. Petitioner's quarterly wage report dated October 15, 1991, reflects Jack Bligh's salary as $440, Carol Bligh's salary as $600, Janice Bligh's salary as $5,200 and Jill Bligh's salary as $1,804.50. Petitioner's quarterly wage report dated January 27, 1992, reflects Jack Bligh's salary as $390, Carol Bligh's salary as $300, Janice Bligh's salary as $2,400 and Jill Bligh's salary as $1,522.50. Carol Bligh testified that she and Jack Bligh reduced their salary to aid the business economically in the bad economic times of the construction industry. However, her testimony is not credible in light of the salary paid their daughter Jill Bligh in relationship to the work she performed. Petitioner applied for certification by Respondent as a minority business enterprise (MBE) on March 24, 1992. An initial review of the documentation provided by Petitioner indicated that Petitioner did not meet the criteria for MBE status; however, questions remained so a telephone interview with Carol Bligh was held in July 1992. Based on the documentation provided and the telephone interview, Petitioner was denied MBE status and notified by certified letter, dated July 14, 1992. Petitioner has been certified as a MBE by local governments.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order denying J. D. Bligh Construction, Inc., certification as a Minority Business Enterprise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of February 1994. ERROL H. POWELL 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 21st day of February 1994.
The Issue The issue is whether Respondent, Soler and Palau USA Ventilation Systems, LLC (“Soler & Palau”), discriminated against Petitioner based upon his race or color, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Soler & Palau is an employer as that term is defined in section 760.02(7). Soler & Palau is mainly in the business of manufacturing and supplying fans and other recovery ventilators to various industries, including residential, commercial, industrial, and institutional buildings. Petitioner, a black male, was hired at Soler & Palau as a Crater I in the distribution department at the company’s B-2 warehouse facility on July 21, 2014. Petitioner was interviewed and hired by Soler & Palau’s warehouse distribution manager, Tracy Noble, who is a white female. As a Crater I, Petitioner was responsible for fabricating wooden crates or boxes, using woodworking hand tools and power tools, around the items (mostly industrial fans and accessories) to be shipped. Crater I was the entry level position at Soler & Palau’s warehouse. Petitioner was the only Crater I at the B-2 facility, but most, if not all, of the other employees at B-2 had started at the Crater I position and understood its duties and job requirements. Eight employees worked under Ms. Noble at the B-2 facility. Six of those employees were black and two were white. Ms. Noble testified that training as a Crater I normally takes about 90 days, and that Petitioner was fully trained. She testified that, although it is an entry level position, Crater I is very important because Soler & Palau’s customers order fans specific to their needs and the crater is responsible for making sure the right fan goes in the crate. Many Soler & Palau customers are restaurants that cannot open if the correct equipment is not in place. Some building codes require specific fans. Each Soler & Palau fan has a specific drive pack that provides the horsepower to move a specific amount of air. Two fans may look the same but have very different capabilities. One fan may meet code for a specific purpose and one may not. It was Petitioner’s responsibility to review the orders, which listed everything that should go into the package by part number. Petitioner would pull the corresponding fan, and any accessories (such as a damper or speed controls), and place them on a pallet. Petitioner would then build the crate around the fan. He would weigh the order, record the weight and dimensions of the package, and turn that information over to the shipping clerk, who would print the shipping documents and labels for Petitioner to affix to the package. Petitioner would place the labels on the fan, again making sure that all numbers matched and that he had the correct fan. Petitioner would then send out the order. On May 19, 2015, nearly 10 months after his hiring, Petitioner pulled and shipped the wrong product to a customer. On June 2, 2015, Petitioner again shipped the wrong product to a customer. The product was needed by another customer immediately. At its own expense, Soler & Palau rushed another order to that customer. As a consequence of his errors, Petitioner received an informal warning from Ms. Noble on June 8, 2015. On the same date, Ms. Noble sent an email to human resources administrator Krissy Velleca (née Carter) requesting that the informal warning be noted in Petitioner’s employee file. Ms. Noble wrote that the company was going through a transition to new fans that were very similar to the old ones, and that she counseled Petitioner “to double-check and triple-check himself until the transition is complete.” She wrote that Petitioner agreed to watch his work more closely and that she had asked a couple of other employees to check behind him “until we are all used to the changes.” Finally, Ms. Noble wrote that she did not want to issue a formal warning to Petitioner because of all the recent changes and that she would watch Petitioner to make sure the problem did not repeat itself. Ms. Noble testified that she had three different people attempt to retrain Petitioner, out of concern that he was not catching on to the job because of the manner of his original training. On June 19, 2015, Petitioner again made a mistake on an order by placing the wrong part number and wrong order identification on the shipment. Soler & Palau incurred additional freight and expedited UPS charges in correcting Petitioner’s mistake. The company also had to deal with a disappointed customer who had been mistakenly informed that their shipment was in transit. On June 22, 2015, Ms. Noble issued a formal written warning to Petitioner for the June 19 incident. The warning statement read as follows: This statement will serve as a verbal warning for Poor Workmanship in accordance with Section 3.26 of the Employee Handbook. Gus[3/] is required to always verify that the fan tag matches the order acknowledgement with both the order and part number. Both of these orders were entered 06/19/15 with a “same day” shipping request that did put additional workload and time pressures on the crew, but this is one step that cannot be skipped. In accordance with the company handbook, any future occurrences of this same offense can result in a written warning, (3) days suspension and/or termination. Petitioner signed the statement, acknowledging that he had read and understood the formal written warning. Ms. Noble testified that Petitioner was again provided additional training. On July 20, 2015, Ms. Noble completed Petitioner’s annual performance review. She noted that Petitioner needed improvement in the quality of his work and in his knowledge of the technical aspects of his job. She further noted that Petitioner’s attendance and punctuality verged on an “unsatisfactory” rating. In spite of Petitioner’s spotty evaluation, Ms. Noble recommended him for the full three percent raise available to Soler & Palau employees upon their annual reviews. In an email to Ms. Velleca and vice president of operations, Greg Johnson, Ms. Noble explained her rationale as follows: Please see attached for Gus’ annual review. You may question why I am giving him the full 3% when I didn’t give him a great review. All of his attendance issues have stemmed from transportation issues as far as I remember. I know it must be hard to do anything about that situation when he is barely making enough to live on. I’m hoping it will make a difference in what he is able to do to remedy his attendance problems. I don’t think there would have been these issues if there were bus service offered here, but that is not currently available. Please let me know if this seems out of line. He is currently at the minimum for his position, so it is not an overly generous move. Please let me know if you see anything else that needs to be clarified or changed. Mr. Johnson responded, “I am fine with your decision and reasoning.” At the hearing, Ms. Noble testified that she knew Petitioner had trouble getting to work. She thought that if he were making enough money to get his truck repaired, his attendance issues would stop and he would feel less stress and make fewer mistakes on the job. Ms. Noble stated that she does not like firing people because it causes disruption to the operation and means that she has to hire and train a new person, who may or may not turn out to be a good employee. She was willing to do everything she could to improve Petitioner’s deficiencies because he did a good job most of the time. On September 3, 2015, while Ms. Noble was on vacation, Mr. Johnson discovered that Petitioner had once again shipped the wrong product to a customer. Mr. Johnson sent an email to Ms. Velleca inquiring about Petitioner’s hiring date and job responsibilities. He wrote, “I ask because he just made a significant mistake in pulling 2 fans for shipment. I need to dig into how he was trained, are we asking him to do something outside his expected responsibilities, etc.” Ms. Velleca testified that she investigated to make sure that Petitioner was on the job when the error occurred and that a fill-in had not made the mistake. She stated that she and Mr. Johnson did not want to take action against Petitioner if the error was not his fault. She ultimately determined that Petitioner had made the error. Ms. Velleca testified that the B-2 facility had historically been graded as 100 percent efficient and 99 percent error-free by the parent company in Spain. Petitioner’s errors were affecting B-2’s overall performance. The parent company was starting to notice a falloff in customer orders and the additional freight costs attributable to correcting Petitioner’s errors. Upon returning to work, Ms. Noble began her own investigation of the mistake, which involved Petitioner’s mixing up two fans for shipment. On the same day, Ms. Noble caught Petitioner making yet another error by placing the wrong tags on a fan. Though she caught this mistake on the warehouse floor before the fan shipped, Ms. Noble decided that Petitioner had made too many mistakes and that he should be terminated from employment with Soler & Palau. On September 18, 2015, Petitioner was called to Ms. Noble’s office and provided with a separation notice from Soler & Palau. The stated reason for his discharge was unacceptable performance of his job duties. At the hearing, Petitioner testified that he believed he was fired because he did not volunteer for overtime work. He believed that the errors of which he was accused were the fault of other employees and constituted a pretext for his dismissal. Specifically, Petitioner blamed two delivery truck drivers for the erroneous deliveries. They were Gevon Campbell, who was black, and a white driver whom Petitioner knew only as Mike. Petitioner claimed that these drivers were charged with checking the orders and ensuring that they are correct. Aside from his claim, Petitioner offered no evidence that the delivery drivers were responsible for checking the orders. Ms. Noble persuasively described Petitioner’s Crater I job as inclusive of ensuring that the correct items go into the crates. Petitioner also alleged that a wiring technician named Dave Boyin told him that when he worked as a crater, he made many mistakes on the job but was nonetheless promoted to a higher position. Mr. Boyin is white. He did not testify at the hearing. Ms. Noble testified that she promoted Mr. Boyin to wiring technician because he was doing a good job as a crater. She stated that Mr. Boyin made errors during his 90-day training period, as does any trainee, but that he made no mistakes as a crater after his training period was over. Ms. Noble’s testimony was persuasive. At the hearing, Petitioner’s testimony was mostly directed toward making a case of wrongful termination, not racial discrimination. At the conclusion of Petitioner’s testimony, the undersigned counseled Petitioner that the jurisdiction of this tribunal was limited to his discrimination claim. In response, Petitioner stated, “I don’t think it was race. I don’t really think it was race, you know what I’m saying?” Petitioner continued to insist that he was fired for refusing to work overtime. Even if Petitioner’s insistence on this point were credited, it would not establish that he had been discriminated against because of his race or color.4/ Petitioner offered no credible evidence that Soler & Palau discriminated against him because of his race or color in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Soler and Palau USA Ventilation Systems, LLC, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 21st day of March, 2017, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2017.
The Issue Whether Petitioner, Rusty Santangelo, was subject to an unlawful employment practice by Respondent, Owens Facility Services (Owens), based on his disability, in violation of the Florida Civil Rights Act; and, if so, what remedy is appropriate.
Findings Of Fact Owens provides maintenance and custodial services to multiple public facilities in Orange County, Florida. Owens does not own any of the facilities, but oversees the conversions of the facilities from one event to the next. Owens secures services from various staffing companies to fulfill its obligations. In order to accommodate its staffing requirements, Owens will contact a subcontractor, discuss the event specifics, determine how many laborers are necessary, and how many laborers the subcontractor can provide. Once a verbal agreement is reached, Owens issues an initial purchase order to the subcontractor requesting the necessary staff for an event. Thereafter, the subcontractor notifies Owens of the specific laborers, their shift schedules and where those laborers will report. Once the event is completed, the laborers complete a timekeeping report, and the hours are reviewed. The subcontractor generates an invoice and Owens then pays the subcontractor. The subcontractor then pays the laborers. The entire process may take 90 days for payment to be issued to the laborers. Ace Staffing (Ace) was one of the subcontracting companies that provided day laborers to Owens. Mr. Santangelo was an employee of Ace. Ace could send Mr. Santangelo to various locations to work. Mr. Santangelo preferred to work for Owens, and specifically wanted to work during the basketball season at the Amway Center. It is undisputed that Ace set the pay scale for Mr. Santangelo, and that Mr. Santangelo received his paychecks from Ace. Owens does not have any ownership interest in Ace. Owens is not responsible for any hiring decisions by Ace. Owens has the ability to review the background checks performed on Ace employees who are sent to work for Owens, but Owens does not hire or evaluate those workers. Owens has the ability to ask that certain Ace employees not return to work for Owens, but does not have the ability to fire or terminate an Ace employee. Mr. Santangelo attempted to resolve a perceived discrepancy in his pay. Mr. Santangelo brought the pay issue to the attention of Mr. Lichtarski, who in turn brought the pay issue to an Ace employee. Communication between Owens, Ace and Mr. Santangelo deteriorated. Mr. Santangelo was paid, but his employment by Ace ended. Mr. Santangelo was not employed by Owens. He was, at all times, employed by Ace. Mr. Santangelo failed to present any credible evidence that Respondent discriminated against him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Mr. Santangelo in its entirety. DONE AND ENTERED this 8th day of November, 2017, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 8th day of November, 2017.
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 The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Republic Parking System, Inc., operates paid parking lots and facilities at a variety of public and private locations. One of its locations is at the Northwest Florida Beaches International Airport in Panama City, Florida. As part of its operations, Republic maintains an equal- employment opportunity, anti-sexual harassment and non- discrimination policy. The policy also prohibits harassment at work by anyone, including supervisors, co-workers or customers. The evidence showed that the policy is disseminated to its employees in its Employee Handbook and is consistently enforced by the company. Under its Employee Handbook the company generally follows a progressive-disciplinary policy for violations of company policy, with increasing penalties ranging from reprimands to dismissal. However, certain violations of policy, such as use of abusive language or being discourteous to customers, supervisors or fellow employees, may result in immediate dismissal. In October of 2010, Petitioner, Joni Barkley, an African-American, was employed by Respondent as a parking booth cashier at the international airport in Panama City. Upon employment, Ms. Barkley received a copy of Republic Parking System, Inc.’s Employee Handbook and signed an acknowledgement of her receipt of that handbook. She was aware of the company’s policy regarding discrimination and harassment. During her tenure and prior to the end of December 2013 or early 2014, Ms. Barkley had no complaints of racial discrimination or harassment towards her. On the other hand, she had been verbally counseled about a remark she made that co- employees had interpreted as racially motivated. Respondent also had been disciplined for repeated tardiness. Additionally, during her employment, Ms. Barkley was known for misinterpreting statements of others and believing innocent statements or actions by others were directed at her. Towards the end of December 2013 or early January of 2014, one of Ms. Barkley’s co-workers, Eva Bishop, a Caucasian, showed her co-workers, including Ms. Barkley, several photographs and a video of her trip to Alaska. Among the photos she showed to everyone was a picture of a Ketchikan Native American clan house. The picture depicts a rustic blue wooden structure with several Alaskan Native American symbols painted on it to form a face with an open mouth for the front entry. Three large Native American totem poles dominate the front of the structure and are placed at the front corners and in the middle over the front entry way to the structure. When Ms. Barkley was informed that the photo was of a clan house, she mistakenly believed that the photo was related to the Ku Klux Klan and thought Ms. Bishop was referring to a “Klan” house. Unfortunately, Ms. Barkley maintained the correctness of her mistaken belief even though several co- workers who had seen the same picture tried to explain the picture to her. Through January of 2014, Ms. Barkley and Ms. Bishop had several arguments and animated discussions. Ms. Barkley insisted that Ms. Bishop was a member of the Ku Klux Klan and accused her of the same, with her rank in the Klan growing from member to president of the local chapter. She also insisted that the picture Ms. Bishop had shown Petitioner was related to the Ku Klux Klan. Due to her mistaken beliefs, Ms. Barkley became very anxious and fearful of Ms. Bishop. On February 5, 2014, Ms. Barkley first reluctantly complained about Ms. Bishop to Kim Hall, Republic’s Assistant Manager and Ms. Barkley’s immediate supervisor. She complained that Ms. Bishop had used racial slurs in talking with her and had discussed with her the Ku Klux Klan. Ms. Hall immediately took Ms. Barkley to Kelly Blum, Republic’s General Manager at the Panama City airport. Ms. Barkley made the same complaint, but indicated that she “loved” Ms. Bishop and did not want to see her fired. Shortly thereafter, Ms. Blum met with Ms. Barkley and Ms. Bishop together, and told them that they could not fight with each other at work. At the conclusion of the meeting, Ms. Barkley and Ms. Bishop hugged, apologized to each other, said they loved each other and told Ms. Blum they could work together. There was no evidence that demonstrated the manner in which Ms. Blum investigated or handled Ms. Barkley’s complaint was intimidating, harassing or discriminatory. Ms. Blum also stated that she would try to avoid scheduling Ms. Barkley and Ms. Bishop on the same shift. However, due to limitations in personnel, Ms. Blum could not ensure that the two employees would not be on the same shift. Unfortunately, sometime after this conversation, Ms. Barkley worked two hours with Ms. Bishop because Ms. Bishop’s replacement for the next shift was late or couldn’t make it in to work due to bad weather. The manager that day offered to stay with Ms. Barkley, but Ms. Barkley said it would be alright and that she could work with Ms. Bishop present. The evidence did not demonstrate that the one-time, unanticipated shift overlap was in retaliation for Ms. Barkley’s earlier complaint. Over the next several days and notwithstanding their mutual apologies, Ms. Barkley and Ms. Bishop continued to argue with each other, create a hostile work environment and use abusive, profane language. Eventually, Ms. Barkley called the F.B.I. and continued to accuse Ms. Bishop of being a racist and a member of the Ku Klux Klan. At some point, Ms. Barkley insisted on showing Ms. Bishop some books about the Ku Klux Klan, again accused Ms. Bishop of being a member of the Ku Klux Klan, and indicated that Ms. Bishop’s connection to the Klan scared her. Ms. Bishop told Ms. Barkley, in essence, that the KKK hung niggers, and asked why Ms. Barkley thought she would take a similar action. Ms. Barkley responded and, in essence, referred to Ms. Bishop as a white cracker bitch who would hang niggers from trees and that she better hang her with her pearls on. As a consequence, Ms. Blum looked into the continued behavior and reported her concerns about Ms. Barkley’s and Ms. Bishop’s behavior to her supervisor, Regional Manager Linda Kelleher. Ms. Kelleher requested that Republic’s human resources department investigate the matter. Again, there was no evidence that demonstrated this inquiry was intimidating, harassing or discriminatory towards Ms. Barkley. Jan Veal, Republic Parking System, Inc.’s Director of Human Resources, interviewed all witnesses, including Ms. Barkley, Ms. Bishop, Ms. Williams, Ms. Hall, Ms. Blum, and Ms. Kelleher. During the investigation, Ms. Bishop admitted using racial epithets towards Ms. Barkley. Based upon Ms. Bishop’s admission, Ms. Bishop was suspended, with pay, pending the conclusion of the investigation. Shortly thereafter, following Ms. Veal’s interview with Ms. Barkley and the other witnesses’ report of the racial remarks of Ms. Barkley, Ms. Barkley also was suspended with pay, pending the conclusion of the investigation. Such actions were reasonable since both Ms. Bishop and Petitioner were at fault in their behavior towards each other. On February 25, 2014, Republic Parking Systems, Inc., terminated Ms. Barkley’s employment, having concluded that she used offensive and threatening language of a racial nature including the use of profanities and creation of a hostile work environment in violation of company policies. Republic Parking System, Inc., terminated Ms. Bishop’s employment on the same day for the same reasons. As such, the evidence was clear that both employees engaged in similar behavior and were disciplined in the same manner. Both were terminated. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on race or retaliation when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 4th day of August, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 4th day of August, 2015. COPIES FURNISHED: Joni Marie Barkley 15221 Banks Drive Southport, Florida 32409 (eServed) Jan Veal Republic Parking System, Inc. Suite 2000 633 Chestnut Street Chattanooga, Tennessee 37450 James Scott McDearman, Esquire Grant Konvalinka and Harrison, P.C. 633 Chestnut Street Chattanooga, Tennessee 37450 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue At issue in this case is the question of whether the Respondent discriminated against the Petitioner by discharging the Petitioner because of his race and/or a handicap?
Findings Of Fact The Respondent, General Parcel Service of Florida, Inc., is in the business of shipping, receiving and delivering goods, primarily small packages. The Respondent's headquarters are located in Jacksonville, Florida, and it has a branch operation in Tallahassee, Florida. The Petitioner, Robert L. Johnson, was hired by the Respondent as a driver in late February or early March, 1989. Mr. Johnson worked out of the Tallahassee branch operation. Mr. Johnson was employed by the Respondent until October 24, 1989. Mr. Johnson is a black male. Between February, 1989, and June, 1989, Mr. Johnson's work was satisfactory. In July, 1989, Mr. Johnson injured his back. As a result of this back injury, Mr. Johnson was absent from work until approximately July 10, 1989. Mr. Johnson worked for approximately three weeks after returning to work in July, 1989, but was absent because of his back injury from the end of July, 1989, until approximately September 7, 1989. When Mr. Johnson returned to work in July and in September, 1989, his physician had ordered that he not lift anything which weighed more than 25 pounds. The weight limitation was the only limitation placed by Mr. Johnson's physician on the duties Mr. Johnson could perform. There was no medical restriction placed on Mr. Johnson's duty to report to work or to report on time. Beginning in June, 1989, the Tallahassee terminal manager, and Mr. Johnson's supervisor, was Harry LaNoue. The first day after Mr. Johnson returned to work in July, 1989, Mr. LaNoue had Mr. Johnson answering the telephone and doing paperwork. The second day Mr. LaNoue had Mr. Johnson washing trucks, cleaning around the premises and picking up trucks. On the third day after returning to work, in addition to the duties Mr. Johnson began performing on the second day, Mr. Johnson also began delivering packages. After Mr. Johnson's back injury, Mr. LaNoue personally selected the packages Mr. Johnson delivered. Mr. LaNoue attempted to insure that no package was given to Mr. Johnson which weighed more than 25 pounds. Mr. LaNoue also instructed Mr. Johnson that he was not to attempt to lift any package which weighed more than 25 pounds and that he should bring any packages which weighed more than 25 pounds back to the terminal. Mr. LaNoue also told Mr. Johnson that he was to keep all appointments with his physician and to return any packages which he could not deliver before any such appointment. Although Mr. Johnson testified that Mr. LaNoue tried to pressure him into performing duties which he believed he should not be performing because of his back injury, the weight of the evidence failed to support this testimony. Mr. Johnson gave no examples of such pressure which were contrary to his physician's instructions and he contradicted his testimony by admitting that Mr. LaNoue took the actions reflected in finding of fact 10. After Mr. Johnson injured his back, a couple of incidents involving Mr. Johnson's attendance occurred. Those incidents are described in Finding of Facts 13, 14 and 15. At some time after Mr. Johnson returned to work Mr. Johnson's wife telephoned and told Mr. LaNoue that Mr. Johnson would miss work because his back was sore. Mr. LaNoue asked to speak to Mr. Johnson but was told that Mr. Johnson was not available. Mr. LaNoue asked Ms. Johnson to have Mr. Johnson telephone him within an hour. Mr. Johnson did not call Mr. LaNoue. About an hour later Mr. LaNoue telephoned and spoke with Mr. Johnson. Mr. LaNoue told Mr. Johnson to go to see his physician. Mr. Johnson refused. Mr. LaNoue then told Mr. Johnson to report to work. Mr. Johnson refused. Mr. LaNoue told Mr. Johnson that it was important that he be dependable and report to work. On approximately September 14, 1989, Mr. LaNoue selected five or six packages he intended for Mr. Johnson to deliver. The packages weighed less than 25 pounds. When Mr. Johnson reported to work he told Mr. LaNoue that his back was sore. Mr. LaNoue instructed Mr. Johnson to go to see his physician. Mr. Johnson said no and walked out of the building. Mr. LaNoue telephoned the Respondent's personnel director, Ann Beeman, and reported the incident. Following this telephone call, Ms. Beeman received a telephone call from Mr. Johnson complaining about his back. She instructed Mr. Johnson to go to see his physician. Ms. Beeman informed Mr. LaNoue of her instructions to Mr. Johnson. Mr. Johnson went to see his physician, telephoned Mr. LaNoue and told him that he had been told to return to work. No additional restrictions on Mr. Johnson's work were imposed by the physician. After seeing his physician, Mr. Johnson returned to work. The packages that had been selected for him to deliver had already been delivered. Therefore Mr. Johnson performed other duties. In October, 1989, Mr. Johnson proposed to Mr. LaNoue and Scott Douglas Paul, driver supervisor/assistant terminal manager, that he be allowed to drive a route to Valdosta, Georgia. The route involved picking up packages from a drug company located in Valdosta. The company was an important client of the Respondent. Mr. LaNoue indicated that he would give the route to Mr. Johnson. Mr. LaNoue explained to Mr. Johnson how important the client was to the Respondent and told Mr. Johnson that he must be on time and be dependable. Mr. Johnson was also reminded that it was very important that Mr. Johnson comply with the Respondent's policy that drivers call at least one hour before their assigned departure time if they would not be able to report to work on time. The departure time for the Valdosta run assigned to Mr. Johnson was 5:00 p.m. On October 24, 1989, the second day after the Valdosta run had been assigned to Mr. Johnson, Mr. Johnson called the Respondent's offices between approximately 4:30 p.m. and 4:45 p.m. Mr. Johnson spoke to Mr. Paul. Mr. Johnson told Mr. Paul that he had "family problems" but refused to tell Mr. Paul specifically what the problem was. Mr. LaNoue was in the same room with Mr. Paul during his telephone conversation with Mr. Johnson. Based upon hand signals between Mr. LaNoue and Mr. Paul, Mr. Paul told Mr. Johnson that, if he did not report to work that day, he need not bother coming to work again. Between June, 1989, when Mr. LaNoue became the Tallahassee terminal manager, and November 1, 1989, eight individuals, including Mr. Johnson, were fired by Mr. LaNoue. Four of those individuals were black (including Mr. Johnson) and four were white. The individuals fired between June, 1989, and November 1, 1989, their race and the race of the individuals, if any, who were hired to replace them are as follows: Terminated Employee Race Race of Replacement William Rodriquez White No Replacement Tom Arnold White White Randy Wansley White Black Larry Hargrove Black White Elmer McCoy Black Black John Constant White Black Robert Johnson Black Black Lester Kelly Black White Mr. Johnson is a member of two classes protected under Chapter 760, Florida Statutes: race (black) and handicapped (back injury). Mr. Johnson was replaced by a member of one of the protected classes: race. The weight of the evidence failed to prove whether Mr. Johnson's replacement was a member of the other protected class Mr. Johnson is a member of: handicapped. The Respondent had a nondiscriminatory, rational and business-related basis for discharging Mr. Johnson: Mr. Johnson was not dependable. Mr. Johnson failed to prove that the Respondent's reason for discharging him was a pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Relations issue a Final Order finding that there is no cause to conclude that the Respondent discriminated against Robert L. Johnson and dismissing Mr. Johnson's Petition. DONE and ENTERED this 20th day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file any proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 7. 5 6-7. 6 9. 7 9-10. 8 7 and 10. 9 12-13. 10 14. Not relevant to this proceeding. 14. The last sentence is hearsay and no finding of fact based on this hearsay has been made. 13 14. 14 14-15. 15 16. 16 16-17. 17 16. 18 18. 19 11. 20 Hereby accepted. 21-22 19-20 and hereby accepted. 23 Hereby accepted. COPIES FURNISHED: Robert L. Johnson 3250 West Tennessee Street Lot 209 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 =================================================================
