The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged by Petitioner.
Findings Of Fact Age Discrimination Petitioner, Ila Sharpe, was employed by FCHR from June 28, 2002, until February 6, 2006. Regina Owens is the housing investigations manager for FCHR. In approximately May 2004, Ms. Owens hired Petitioner into the housing unit upon the suggestion of the deputy director, Nina Singleton. Ms. Owens placed Petitioner in a vacant Senior Clerk position under her supervision in the housing unit. At the time, Ms. Owens became Petitioner’s supervisor, Ms. Owens was 51 years old. Petitioner was approximately 50 years old at that time. After Petitioner was in the Senior Clerk position for six or seven months, Ms. Owens promoted Petitioner to the position of Investigation Specialist I. Ms. Owens waived the requirements of a college degree and investigative writing experience for this new position, because Petitioner already worked for FCHR and had expressed an interest in moving up. The Investigator Specialist I position is a Selected Exempt Service position which included investigating cases, as well as “intake” duties. Ms. Owens explained to Petitioner that she would be doing investigations after about four months on the job. Petitioner was promoted to this position in January 2005. Ms. Owens sent Petitioner to Washington D.C. for training on three occasions in 2005: February, June, and December. Each training session lasted about a week and was conducted by the National Fair Housing Training Academy. After attending the February week-long training session, Petitioner continued to perform solely “intake” duties. Following the February training, Ms. Owens asked Petitioner if she was ready to take on an investigative caseload. Petitioner indicated that she was not ready to do so at that time. After Petitioner attended the June 2005, training session, Ms. Owens again spoke to Petitioner and determined that Petitioner was still not ready to take on investigative duties, although she had been in the position more than four months. In September 2005, Ms. Owens had e-mail communications with Petitioner, which gave her cause for concern that Petitioner might not know the answers to matters on which she had received training. In particular, Ms. Owens was concerned that Petitioner’s e-mail responses to her indicated that Petitioner was confused as to whom an investigator should be dealing with in a particular situation. Petitioner attended the third week-long training session in December 2005. After a discussion with Petitioner, Ms. Owens was still concerned about Petitioner’s reluctance to take on investigative duties despite her training and length of time on the job. Petitioner had been in the investigator specialist position for nearly a year but never investigated a case. In late December 2005, Ms. Owens developed a test for employees of the housing unit. The purpose of the test was to test employees’ working knowledge of the HUD manual and research skills in using the manual, specifically regarding the intake process. The “Housing Unit Intake Test” was based on the HUD manual, which is the book that all investigators have and use. The test was similar to the test the investigators had to take in Washington during training. The test developed by Ms. Owens is now given to all new investigators during their training. On January 5, 2006, Petitioner was first given the test using a “closed book” administration. The test pertained to the HUD manual materials, and Petitioner was given an hour to complete the closed book test. The purpose of the closed book administration was to assess the employee’s working knowledge of the subject matter. Petitioner scored ten correct answers out of 34 test questions. On January 6, 2006, Ms. Owens again gave Petitioner the same test questions. However, this second administration of the test was “open book” with two hours allowed to take the test. The open book administration was designed to assess the employee’s ability to do research, find the answers in the HUD manual, and to answer the questions correctly. Petitioner scored 11 correct answers out of 34 test questions. Also on January 6, 2006, Ms. Owens administered the same test to investigation specialist Julina Dolce. Ms. Dolce’s score on the closed book test is unclear from the record. However, on the open book test, Ms. Dolce received a score of 27 correct answers out of 34 test questions. After taking the test, Petitioner spoke to Ms. Dolce about what was on the test. However, there is no evidence in the record that Ms. Owens was aware that Ms. Dolce had a “heads up” on the test content prior to taking the test. The test was also given to Marshetta Smith on January 6, 2006. At the time she took the test, Ms. Smith was a senior clerk who did not do much intake work, and was approximately 30 years old at the time. While not an investigator, Ms. Smith was given the test to assess her working knowledge and research skills for potential upward mobility. Ms. Smith had 11 correct answers out of 34 test questions. Ms. Smith has since been terminated from employment with Respondent. About two weeks after administering the first test, Ms. Owens administered a different test, the “55+ exam”, which pertained to housing regulations for older persons. Petitioner scored 14 correct answers out of 20 test questions on the closed book administration and 16 correct answers out of 20 test questions on the open book administration of the test. Based upon her reluctance to take on an investigative caseload and upon her poor performance on the intake test, it was determined that Petitioner would be demoted to a senior clerk position. A meeting was held on January 26, 2006, with Ms. Owens, Petitioner, and the human resources manager, informing Petitioner of the intended demotion to be effective February 10, 2006. On January 30, 2006, Petitioner submitted her letter of resignation to Ms. Owens effective February 6, 2006. Her resignation was accepted, effective the close of business February 6, 2006. Consequently, the demotion did not take place as Petitioner resigned from employment with Respondent prior to the effective date of the intended demotion. After Petitioner’s resignation, Respondent moved Ms. Dolce into Petitioner’s position of investigation specialist. At that time, Ms. Dolce was 31 years old. While making a vague assertion that Ms. Owens made innuendos regarding younger people “some time ago”, Petitioner acknowledged that Ms. Owens never said anything derogatory to Petitioner about her age. Sherry Taylor began working at FCHR in 1999 as a senior clerk. She moved into an investigator position in April 2000. When Ms. Owens came into the housing unit in 2004, Ms. Taylor was an investigator II. Ms. Taylor was demoted in the fall of 2006 to an investigator I because the quality of her work “went downhill." At the time of her demotion, Ms. Taylor was 30 years old. There is no competent evidence that FCHR used age as a criterion in its decision to demote Petitioner. Timeliness Petitioner sent a document entitled “Technical Assistance Questionnaire for Employment Complaints” to the EEO Office, which alleged that she had been discriminated against by FCHR on the basis of her age. The fax cover sheet shows a date of January 19, 2007, but no “received” stamp appears on the document. The document included a request from Petitioner that the “complaint” not be forwarded to FCHR for investigation. Despite this request, the EEO office forwarded the completed questionnaire to FCHR on January 31, 2007. This date is confirmed by the date stamp indicating receipt, as well as the fax transmittal notation at the top of each page. However, the investigation was conducted by the EEO Office. The Determination: No Cause dated July 30, 2007, issued by FCHR to Petitioner states in part that “the timeliness and all jurisdictional requirements have been met.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of June, 2008, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 11th day of June, 2008.
The Issue The issues proposed by Respondent, and adopted here, are: Whether the Petitioners timely filed a proper petition with all required attachments stating whether the Respondent's actions were substantially unjustified and whether circumstances exist that would make the award unjust, pursuant to Rules 22I- 6.035(1), (2)(e) and (3), Florida Administrative Code. Whether the Respondent was substantially justified in bringing this action, or that special circumstances exist which would make an award of attorney's fees unjust, pursuant to Section 57.111, Florida Statutes (1985). The Respondent has not contested the Petitioners' allegations of standing as a "prevailing small business party" nor the reasonableness of the fees and costs claimed by the Petitioners.
Findings Of Fact On January 20, 1986, Elizabeth Yerkes and Pilar Montes, comprising the Probable Cause Panel of the Florida Real Estate Commission (FREC), found probable cause that the Respondents violated the real estate law. They recommended that an administrative complaint be filed. In the record before me, the only evidence of the panel's decision is a four-page transcript of the January 20, 1986, proceeding. Any written materials which may have been considered by the panel are not included. The entire proceeding consisted of a brief exchange, wherein counsel for the panel was assured that the members had the opportunity to review the agenda material, and the following: MR. WILSEN [Counsel for DPR]: Item 6 concerns a broker and a corporate broker. The Respondents have failed to pay a cooperating broker a real estate commission in the amount of thirty-seven thousand dollars. Additionally, the Respondents have failed to keep the thirty-seven thousand dollars in their trust account. The final judgement in the amount of thirty-seven thousand-dollars was obtained against the company in December of 1984. Therefore, the Respondents are charged with failure to account and deliver a share of a commission and failure to keep the share of commission in their real estate brokerage trust account. Therefore, recommend [sic] this Administrative Complaint be filed. MS. YERKES [Panel Member]: After reviewing the file, I find probable cause to exist in ... is it four counts. Okay. MS. MONTES [Panel Member]: I find probable cause, too, in four counts. (Respondent's Exhibit 4, Pgs. 3, 4) The Administrative Complaint was filed on February 11, 1986, alleging violations of subsections 475.25(1)(d) and (e), F.S. and Rule 21V-14.13 Florida Administrative Code, for failing to account for and deliver a real estate commission to a cooperating broker, and failing to place and maintain the funds in escrow. On May 20, 1986, the Florida Real Estate Commission rejected a stipulation providing for revocation of the corporate respondent's license and reprimand of the individual respondent. The proposed stipulation included these oddly conflicting provisions: Respondents neither admit nor deny the allegations contained in the Administrative Complaint. Respondents admit that the stipulated facts contained in the Administrative Complaint support a finding of a violation of the Real Estate Practice Act as follows: failed to account and deliver a real estate commission as to Respondent Real Estate Services, Inc., and failed to properly supervise the activities of the corporation as to Respondent Charles A. Alario, Sr. (Respondent's Exhibit 5, pp. 1-2) The cover letter from counsel for Respondents accompanying the stipulation informed counsel for DPR that the client was entering the stipulation to save the expense of proving his innocence. (Respondent's Exhibit 5) The final hearing was held in Sarasota, Florida on July 21, 1986. Each party presented only one witness. A substantial portion of Petitioner's case consisted of the complaint and judgement in a civil case wherein the Respondents were sued for share of a commission. The Recommended Order, dated October 6, 1986, provided, in pertinent part: Findings of Fact The parties' pre-hearing stipulation filed on July 18, 1986, establishes the following: Respondent Charles A. Alario, Sr. is now and was at all times material hereto a licensed real estate broker in Florida having been issued license number 0229080. Respondent Real Estate Services Unlimited, Inc. is now and was at all times material hereto a corporation licensed as a `real estate broker in Florida having been issued license number 0209707. Respondent Real Estate Services Unlimited, Inc.'s broker license is currently "in limbo". At all times material hereto, Respondent Alario was officer of and qualifying broker for Respondent Real Estate Services, Inc. [sic] That a judgement was entered on December 14, 1984. That the judgement has not been satisfied. That the Respondents failed to maintain $37,000.00 of the money or any part thereof in their real estate brokerage trust account without the prior knowledge or consent of Rider, Opitz and Seale Realty, Inc. [This sub-paragraph reflects the parties' amendment on the record at hearing. T-24,25] Phyllis Bell was a real estate salesperson at Rider and Opitz, Inc. [previously called Rider, Opitz and Seale] from January, 1979 through August, 1980. (T- 19). In early 1980, Ms. Bell had some dealings with Charles Alario and made some arrangements for a meeting regarding the listing of Palm Island, a property located in Charlotte County. (T-32-34). Charles Alario and Real Estate Services Unlimited represented a group of persons interested in purchasing this property. (T-31, 32). On June 19, 1980, an agreement for sale and purchase of Palm Island was entered between Palm Island Partners, Ltd. seller, and Buck Creek Development Corporation, buyer. (Respondent's Exhibit Number 8) Respondents did not have a co-buyer* agreement with Rider and Opitz nor with Ms. Bell. (T-20, 40, 41) Charles Alario offered Phyllis Bell referral fee to be paid to her broker of record. (T-41, Respondent's Exhibit Number 6). This offer was refused and Rider, Opitz and Seale Realty demanded half the Palm Island sales commission: $145,100.00. (T-18, 20, 21, Respondent's Exhibit Number 1 and Number 9) Rider, Opitz and Seale filed a civil action for the commission in 1982. Defendants were Real Estate Services Unlimited, Inc., Charles A. Alario and Knight Island Associates, Limited. (T-17, Petitioner's Exhibits Number 4 and Number 5). A judgement was entered on December 14, 1984, dismissing Charles A. Alario and confirming the, jury verdict of $37,000.00 against Real Estate Services, Unlimited, Inc. (Petitioner's Exhibit Number 6). Real Estate Services Unlimited, Inc. has lawsuits for commissions against Buck Creek Development Corporation, whom it represented in sales other than the Palm Island Associates, to whom the Palm Island contract for sale and purchase was assigned. (T-52- 54). *The context suggests this term was intended to be "co-broker". The Recommended Conclusions of Law noted that the exhibits from the civil suit were not competent evidence, in and of themselves, of violations of subsections 475.25(1)(d) and (e), F.S.: It is not possible to extrapolate from the complaints and the very briefly-worded judgement that the essential elements of those subsections were proven. The involuntary dismissal of Charles Alario and the jury award of $37,000.00 damages bear little resemblance to the relief sought and allegations made by the Plaintiff, Rider, Opitz, and Seale, Realty, Inc. Further, it was noted that the stricter standard of proof in a license proceeding effectively precluded reliance on a prior civil judgement for evidence of a license statute violation. The Department of Professional Regulation never proved an essential element of the alleged violations, that Respondents actually received their commission from the sale. Respondents were in the process of suing for that commission, a fact duly noted by counsel for DPR in his presentation of the proposed stipulation to the Commission. (Respondent's Exhibit Number 6, p. 3) On December 2, 1986, the Florida Real Estate Commission voted 3-2 to adopted the Recommended Order dismissing the charges. The members were obviously troubled by the existence of a civil judgement against the corporation that had not been satisfied. Counsel for DPR conceded, however, that the alleged violations were not failure to pay a judgement, but rather, failure to pay a commission to a real estate broker. (Respondent's Exhibit Number 7, p. 17) This distinction was also noted by Marguerite Schlitt, the Vice-chairperson. (Respondent's Exhibit Number 7, p. 20) Another member noted that he could not find, in his reading, anything specifically where the commission was paid. (Respondent' Exhibit Number 7, p. 18) As part of his argument to the Commission, counsel for DPR again made clear the essence of the case against these Respondents: [by James Mitchell, DPR staff attorney]: I think we have got to give that civil judgement some credence, some credibility, and you can do that by overruling the Hearing Officer's recommendations and going essentially with what the civil Court has done. I don't think it is necessary for us, in these proceedings, to retry a civil trial all over again. I think it is our position that the final judgement, complaint and final judgement, are sufficient to establish, in situations such as this, that a stipulation has occurred, rather than, in fact, a case like this where the judgement had to be anticipated. I think you can do that by overruling the Hearing Officer's Recommended Order. (Respondent's Exhibit Number 7, p. 15) The Commission's Final Order adopting and incorporating by reference the Recommended Order was filed on December 11, 1986. The Department of Professional Regulation appealed to the Fifth District Court of Appeal. The Final Order was affirmed, per curiam, without an opinion, on July 21, 1987. Petition for Rehearing was denied on August 17, 1987, and the appellate court's Mandate was issued on September 3, 1987. To defend against the agency action, Petitioner incurred attorney's fees and costs in the total amount of $9,190.68. This amount is not contested by Respondent.
Findings Of Fact Petitioner Robert Landers was employed by Broward County from February 10, 1987, until August 4, 1987, as a probationary employee in the County's Utilities Division. His job classification was Engineering Inspector II. Prior to his employment, he submitted a resume to Broward County. That resume represented that his health was "excellent". On the Broward County employment application form he represented that he had "fully recovered" from an automobile accident in 1963. He successfully passed Broward County's standard pre- employment physical examination. Petitioner is proud of the fact that he possesses a Broward County Master Plumber Certificate. The position of Engineering Inspector II in the Broward County Utilities Division does not require such a certificate. Petitioner served his six-month probationary period under the successive supervision of three field supervisors -- Robert Harper, John Graham, and Patrick Sweet. At the end of his probationary period each of these three supervisors individually evaluated Petitioner's job performance as unsatisfactory. At the midpoint of his probationary period, Petitioner was counseled regarding his performance and was advised that he needed to get along with people better, that he needed to get out of his vehicle in order to make inspections at the job sites, and that he needed to use the required Broward County Specifications Manual rather than relying on his past knowledge of various plumbing codes. Petitioner's job required use of engineering code concepts, and Petitioner did not gain sufficient familiarity with the Broward County Specifications Manual to properly perform his job. During the six-month probationary period, Petitioner failed to follow proper procedures and failed to properly perform his job duties on several occasions. He went home without permission; he allowed a contractor to lay defective piping; he verbalized his reluctance to utilize the Broward County Specifications Manual and took the position that his way of doing things was better; he obtained permission to go to a medical appointment in advance and then changed the appointment time without notifying anyone that he would be going at a time other than a time for which he had permission so that no other employee covered his duties while he was absent; he complained about specific assignments and questioned the necessity of doing tasks assigned to him; he kept his paper work in the wrong location; and his claims for overtime overstated the actual amount of overtime worked on two occasions. Petitioner was terminated from his employment with Broward County at the end of his probationary period for his failure to meet minimum requirements for his job classification. Petitioner has not applied for any other employment positions with Broward County following his termination. During his probationary period, Petitioner was diagnosed as having diabetes. Petitioner does not walk with an observable limp.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED that a Final Order be entered finding that Respondent Broward County has not committed an unlawful employment practice against Petitioner and dismissing the Petition for Relief from an Unlawful Employment Practice filed in this cause. DONE and ENTERED this 22nd day of August, 1989, at Tallahassee, Florida. LINDA M. RIGOT 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 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN DOA NO. 88-4908 Petitioner's Proposed Findings of Fact numbered 1-3, 5, and 7 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's Proposed Findings of Fact numbered 4 and 10 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Petitioner's Proposed Findings of Fact numbered 6, 8, and 9 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's Proposed Findings of Fact numbered 1-8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's Proposed Finding of Fact numbered 9 has been rejected as not constituting a finding a fact but rather as constituting conclusions of law. COPIES FURNISHED: James Thomas, Esquire Governmental Center Suite 423 115 South Andrews Fort Lauderdale, FL 33301 Robin L. Kozin, Esquire 8101 Biscayne Boulevard Suite 500 Miami, FL 33138 Donald A. Griffin, Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
Findings Of Fact Petitioner, Alan D. Katz, filed an application for licensure as a real estate salesman on April 10, 1981, with Respondent, Department of Professional Regulation, Hoard of Real Estate. Question six of the application requires the applicant to answer whether he had ever been arrested without regard to whether he was convicted, sentenced, pardoned or paroled. Petitioner responded in the affirmative and attached a list of six prior arrests. All arrests occurred between the years 1958 and 1969. They included possession of marijuana (less than one gram) -1958; attempted petty larceny (misdemeanor) -1962; vagrancy- 1964; embezzlement and larceny-1965; flight to avoid prosecution-1965; and improperly filling out an application for a work card-1969. All charges were dismissed or dropped except the possession of marijuana and attempted petty larceny. For these offenses Katz was fined $50 and placed on probation, respectively. Petitioner has had no arrests since 1969. 1/ After reviewing the application, Respondent concluded that by virtue of the response to question six Petitioner had failed to demonstrate that be was "honest, truthful, trustworthy and of good character, and (had) a good reputation for fair dealing." It denied the application by letter dated July 23, 1981. The denial precipitated the instant hearing. Petitioner, 46-years old, is currently unemployed. He now considers Hallandale, Florida, to be his permanent home. He has worked in various phases of the real estate business since 1964. For the last eight years, his specialty has been vacation time sharing. Most recently, he was employed in Europe by Royal Aloha Vacation Club where he was responsible for investing 100,000 pounds (approximately $225,000 U.S. currency) on behalf of his employer to establish its European time-sharing operations, and in "setting-up" sales for its broker. Prior to that he was employed in Las Vegas, Nevada, by Passport to Pleasure in the unit acquistion phase of its operations. In that capacity, he was entrusted with dealing in small amounts of cash (less than $5,000) and making deposits on behalf of his employer. Before that, he worked in real estate sales for one of Nevada's largest developers. If the application is granted, Petitioner will associate with a broker and specialize in resort time sharing. He has been offered other real estate employment opportunities (e.g., General Development Corporation) but wishes to restrict his activities to the time-sharing field. Letters offered into evidence as Petitioner's Composite Exhibit 1 attest to Katz's honesty, integrity and ability. Although Petitioner has been arrested on at least six occasions, all cases were dismissed except for two minor misdemeanor charges, the last occurring in 1963. He attributes those arrests to immaturity during the early part of his adulthood. His conduct since 1969 is unblemished and sufficient time has lapsed to rehabilitate himself and gain the necessary maturity to operate successfully and honestly in the real estate profession.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Alan D. Katz for licensure as a real estate salesman be GRANTED. DONE and ENTERED this 22nd day of February, 1982, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1982
The Issue The issue is whether the Petition for Relief should be dismissed as untimely because it was received by the Florida Commission on Human Relations more than 35 days after the date of the Commission's "no cause" determination.
Findings Of Fact Based upon the pleadings (as supplemented by Petitioner's response to the August 2, 2002, Order to Show Cause and his representations at the August 23, 2002, telephonic hearing), the following findings are made: On August 16, 2001, Petitioner filed a charge of discrimination against Respondent with the Commission. The charge of discrimination alleged that Respondent committed an unlawful employment practice in September 2000 when it fired Petitioner based upon his race.1 The address for the Commission listed on the charge of discrimination form was 325 John Knox Road, Suite 240, Building F, Tallahassee, Florida 32399. The charge of discrimination was investigated by the Commission staff, and based upon the results of the investigation, the Executive Director of the Commission determined that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The date of the determination was May 8, 2002. On that same date, notice of the determination (Notice) was provided to Petitioner by U.S. Mail. The Notice stated: NOTICE OF DETERMINATION: NO CAUSE PLEASE TAKE NOTICE that a Determination has been made in the above-referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. [Petitioner] may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. * * * If [Petitioner] fails to request an administrative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). (Emphasis supplied). Petitioner received the Notice four or five days after it was mailed, which would have been May 13, 2002, at the latest. The address for the Commission listed on the Notice was 2009 Apalachee Parkway, Suite 100, Tallahassee, Florida 32301. Included with the Notice was a blank petition for relief form. Petitioner filled out the form and mailed it to the Commission. Consistent with the charge of discrimination, the Petition alleges that Petitioner was fired by Respondent based upon his race and that the reasons asserted by Respondent for his firing were pretextual. The Petition was post-marked in Orlando on June 13, 2002 (36 days after the Notice, and at least 31 days after Petitioner's receipt of the Notice). Petitioner's delay in completing and mailing the Petition was due to his "inability to obtain counsel." Despite the Commission's new address being printed at the top of the Notice, Petitioner mailed the Petition to the Commission at its old address on John Knox Road. The Petition was not received by the Commission until July 9, 20022 (62 days after the Notice, and at least 57 days after Petitioner's receipt of the Notice). The envelope in which the Petition was received by the Commission includes a forwarding sticker affixed by the postal service. Thus, it appears that the 26 days that it took for the postal service to deliver the Petition from Orlando to Tallahassee is attributable to the postal service's mail forwarding process.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief as untimely. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. 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 5th day of September, 2002.
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination against Respondent on the basis of her age and gender (female).
Findings Of Fact Petitioner is female. Petitioner initiated her retirement from Respondent employer in February 2005 at age 65. No evidence was presented at the disputed-fact hearing to establish the number of persons employed by Respondent at any material period of time. However, because Respondent has acknowledged in its Proposed Findings of Fact that Petitioner is an "aggrieved person," as that term is defined in Section 760.02(10), Florida Statutes, and has further acknowledged that at all times material to this cause, Respondent was an "employer" as that term is defined in Section 760.02(7), Florida Statutes, and Respondent is hereby found to be a statutory employer under Chapter 760, Florida Statutes. Petitioner began part-time employment as an Order Entry/Mail Clerk with Respondent in July 1983. At the same time, and dating from May 30, 1983, Petitioner was also employed part-time with Sears, Roebuck and Company (Sears). In 1984, Petitioner accepted full-time commission sales employment with Sears and continued to work part-time for Respondent Employer. She worked full-time for Sears and part- time for Respondent until July 1996. Between 1983 and 1996, Jack Barber, president and CEO of Respondent Employer, repeatedly asked Petitioner to come to work full-time for Respondent. In July of 1996, Petitioner accepted full-time employment as Chief Finance Officer/Human Relations Director of Respondent Employer. At the time of her transition to her new, full-time position with Respondent, Petitioner was doing accounts receivable, accounts payable, payroll, and general ledger bookkeeping. Petitioner was qualified for all positions she held while employed by Respondent. At all times material, Petitioner was an exemplary employee. Petitioner testified that, as an inducement to give up her full-time Sears employment with its vested pension and excellent pay and benefits, Mr. Barber "guaranteed [her] in writing a five percent yearly increase in salary with no end date." It was Petitioner's position that between July 1996 and February 2005, when she retired, Respondent had a written employment contract with her, which contract had been negotiated in July of 1996, and that this contract provided for Petitioner to receive a raise equivalent to five percent of her base pay; one week of vacation in 1996; three weeks of vacation in 1997 and 1998; three days compensatory time (personal holidays) in 1996; six days of compensatory time (personal holidays) in 1997 and 100 percent medical insurance. The document she represented as her contract of employment was admitted in evidence as Petitioner's Exhibit One. Petitioner's Exhibit One is not dated. It also states no ending date and does not contain the signature of either Petitioner or Mr. Barber. It resembles arithmetic computations without setting out in sentences either Petitioner's or Respondent's obligations one to the other. It only lists the years 1996, 1997, 1998, and 1999, with regard to salary; only 1996, 1997 and 1998, as to vacation; and only 1996 and 1997 as to "comp. time." It bears the expression: "$150,000.00 + - 5 yrs." Furthermore, Petitioner testified that the exhibit does not encompass the whole of the parties' oral understanding at that point-in-time, because she believes that Mr. Barber also orally assured her that the five percent annual salary increases would continue as long as she was employed by Respondent, that vacation time and personal holiday time would accrue annually based upon Petitioner's original date of hire in 1983; and that Respondent company would institute a retirement plan in the near future. Mr. Barber testified that he had intended his notes and computations in 1996 on Petitioner's Exhibit One to only show that he anticipated if Petitioner came to work for Respondent in 1996: that he would guarantee Petitioner a term of employment up to at least five years; that there would be at least three years (1997, 1998, and 1999) with a five percent increase for her each year; and that, based on the foregoing prognosis, Petitioner could expect to earn at least $150,000.00 over a five-year period. Mr. Barber never intended Petitioner's Exhibit One to be a contract of employment. Petitioner candidly admitted that Respondent granted her five percent pay increases in January 1997, 1998, and 1999. Petitioner calculated that, without bonuses, she was paid half of $27,300.00 in 1996 because she started in July; $28,665.00 in 1997; $30,097.60 in 1998; and $31,720.00 in 1999. Petitioner accepted Respondent's figures that her annual W-2 compensation 1999 (including bonuses) was as follows: $33,635 2000 $31,720 2001 $32,830 2002 $33,015 2003 $32,330 2004 $31,720 Therefore, Petitioner's income without bonuses from Respondent for her first five years of employment (1996-2000) may have been less than $150,000.00. It was Petitioner's further position that the Respondent Employer had "contracts" similar to Petitioner's Exhibit One with other employees, specifically Greg Barber and Rob Humphrey (both younger male employees), which were honored by Respondent and that Petitioner's "contract" was not honored by Respondent. Petitioner claimed that Jack Barber's honoring the younger men's contracts, and not hers, constituted the acts of age and gender discrimination she complains of here. No contract between Respondent Employer and Greg Barber was presented for comparison with Petitioner's Exhibit One. No contract between Respondent employer and Rob Humphrey was presented for comparison with Petitioner's Exhibit One. Petitioner maintained that she "performed many of the same duties as Barber and Humphrey who were younger than she was at all times material and that she received less compensation." Greg Barber is the son of President/CEO Jack Barber. Since March 1985, Greg Barber has been the company's general manager and sales manager. Greg Barber also acts as co-CEO with his father. At all times material, he received a base salary plus commission based on total company sales. Greg Barber's responsibilities also included overseeing order entry personnel, accounts receivable/payable personnel, purchasing/inventory control personnel, mailroom personnel, shipping/warehouse personnel, service department personnel, and the receptionist. He also answered customer service calls and took phone orders. Rob Humphrey is the salesman responsible for Respondent's United States and Canadian sales. At all times material, he was paid a base salary plus commission based on Respondent's sales in the United States and Canada. Mr. Humphrey's responsibilities included training and overseeing a staff of two or three phone order entry/customer service personnel while also taking phone orders himself. At all times material, Petitioner was a salaried, non- commission employee. Petitioner claims that she performed many duties outside her job description. Specifically, she contends that she assisted both Rob Humphrey and Greg Barber in doing their jobs. Specifically, she described sharing responsibility with Greg Barber for making decisions regarding copy writing, marketing, in-putting of advertising materials, and direct marketing mailings. No witness corroborated Petitioner's assessment of her assistance to Greg Barber or Rob Humphrey, but at most, Petitioner only irregularly assisted these commissioned salesmen with their clerical or office tasks. She did not sell product. Despite Petitioner's contention that she performed some of the same services that Greg Barber and Ron Humphrey performed, it appears that the majority of the services she performed for Respondent were very different from theirs. It further appears that Humphrey and Barber performed services that were different from each other. Greg Barber had far more authority and responsibility than either Mr. Humphrey or Petitioner, and because of his position, Greg Barber received a commission out of Rob Humphrey's commission. In other words, as Mr. Humphrey's sales manager, Greg Barber received a percentage commission of all sales by whomever the sale was made and this increased Greg Barber's overall income. Likewise, Mr. Humphrey's responsibilities, particularly the necessity for him to deal with Canadian sales and marketing problems, varied greatly from Petitioner's responsibilities, which were primarily clerical or financial and home office based, and differed from Greg Barber's responsibilities, which were concentrated on home office management and sales in the United States. Petitioner maintained that other employees received raises when she did not. However, Respondent demonstrated that the annual base wage for Petitioner from 1999 through and including 2004, was $31,720.00; for Mr. Humphrey was $13,000.00; and for Mr. Barber was $47,840.00. Respondent further demonstrated that the base wages for all three employees remained constant from 1999 through 2004, and that Messrs. Barber and Humphrey, the commissioned employees, had fluctuations in their total gross wages during the five years from 1999 through 2004, due to fluctuations in the company sales and their resultant commissions. Rob Humphrey's W-2 compensation was below Petitioner's W-2 compensation from 1999 to 2001 and slightly exceeded hers from 2002 through 2004. Greg Barber's W-2 compensation exceeded Petitioner's W-2 compensation consistently from 1999 through 2004. Respondent demonstrated that in the year 2003, Respondent company suffered substantial losses, which affected the salesmen's commissions, and thus their overall income, but Petitioner's and everyone else's base wages remained the same, regardless of business conditions. How bonuses were calculated is unclear from the evidence, but in 1999, Petitioner's bonus was higher than either Mr. Humphrey's or Greg Barber's bonus. In 2000, no one got a bonus. In 2001, Greg Barber's bonus was $2,360.00; Mr. Humphrey's bonus was $540.00; and Petitioner's bonus was $1,110.00. In 2002, Greg Barber's bonus was $2,500.00; Mr. Humphrey's bonus was $665.00; and Petitioner's bonus was $1,295.00. No one received a bonus from 2003-2004. One of Petitioner's responsibilities while employed by Respondent was to assist Greg and Jack Barber in writing an employee handbook. This handbook clearly states that all of Respondent's employees are "at will" employees. That means that no guarantee of continued employment existed for any employee. Petitioner acknowledged that she had read that part of the handbook. The handbook also provides a reasonable procedure for someone, who believes that he or she is being discriminated against, to report that allegedly discriminatory treatment. Petitioner acknowledged that she never complained of sex discrimination or age discrimination while employed by Respondent. Petitioner also was aware she could file an Equal Employment Opportunity Commission complaint. She never did this either. Petitioner did complain to Jack Barber that her job was of greater importance than that of Greg Barber or Rob Humphrey, and she did repeatedly lodge her concerns with Jack Barber that her pay in comparison to theirs was inappropriate. Although denied by Mr. Barber, Petitioner is more credible that she asked for a five percent increase each year. In response to one of her complaints, Jack Barber "evened out" a bonus for her. In early 2005, Petitioner again approached Jack Barber regarding what she considered to be her "promised five percent annual increases." Petitioner and Jack Barber met several times during the months of April and May 2005. When their negotiations were not fruitful, Petitioner gave notice of retirement and left Respondent's employ on June 3, 2005, at age It had been her prior intent to continue working full-time for Respondent through the end of the year 2005. She hoped to continue working for Respondent part-time for several years beyond 2005. Petitioner testified that all employees received a retirement plan in 2001, but that she was not granted the promised yearly five percent increase in January 2000 and was not provided any reason or explanation for the decline in her base pay after that. She calculated that if the five percent per year increase had been given her, she would have received an additional $63,798.47, provided she had worked to the end of 2005, as she had intended.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 2nd day of August, 2006. COPIES FURNISHED: Kay F. Kelley Post Office Box 559 Center Hill, Florida 33514 Timothy Shea, Esquire 800 North Ferncreek Avenue, Suite 9 Orlando, Florida 32803 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Did Respondent Barbara S. Jones deny Petitioner Lynda Dianne McCloud housing because of her race (black) in violation of the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Petitioner is an African-American (black) female who alleges that Respondent denied her housing because of race (black) in violation of the Fair Housing Act, Sections 760.20 through 760.37, Florida Statutes. Respondent is the owner of nine rental duplexes located on Scottsdale Court, in Zephrhills, Florida, which Respondent built in 1982. Since owning and managing these units, Respondent has never previously been accused of violating the Fair Housing Act. Respondent derives her primary income from the rental of the units located on Scottsdale Court. When vacancies occur in the apartments on Scottsdale Court, Respondent regularly advertises the availability in the Pasco Shopper. In February 1997, Petitioner, in response to an advertisement in the Pasco Shopper, first contacted Respondent about an apartment. Respondent advised Petitioner that there were no apartments currently available but that one would probably become available later. On or about February 26, 1997, Respondent advertised the availability of a two-bedroom, one-bath apartment located at 38547 Scottsdale Court. On Saturday, March 1, 1997, Petitioner contacted Respondent by leaving a telephone message in response to the advertisement in the Pasco Shopper for the apartment located at 38547 Scottsdale Court. On Saturday, March 1, 1997, Respondent returned the telephone call to Petitioner, discussed the apartment located at 38547 Scottsdale Court, and set an appointment for 2:00 p.m. the next day to personally show the unit to Petitioner. On Sunday, March 2, 1997, when Respondent returned home from church, she received a telephone message from Petitioner advising Respondent that Petitioner would not be able to make the meeting scheduled for 2:00 p.m. that day and asking that Respondent call Petitioner. On Sunday, March 2, 1997, at approximately 1:30 p.m., Respondent returned the call to Petitioner and rescheduled the appointment for 7:00 p.m. that evening. On Sunday, March 2, 1997, Respondent traveled from her home in Dade City, Florida, to the apartment in Zephyrhills, Florida, to attend the meeting to show Petitioner the apartment at 38547 Scottsdale Court. Petitioner failed to attend that meeting. At approximately 8:00 a.m. the next morning, Monday, March 3, 1997, Respondent received a telephone call from Petitioner advising that Petitioner had missed the appointment because she had to take someone to the emergency room at East Pasco Medical Center for treatment. Petitioner expressed her continued interest in the apartment and an appointment to see the unit was rescheduled for 10:15 a.m. that morning. On Monday, March 3, 1997, Respondent showed the apartment located at 38547 Scottsdale Court to Petitioner. After showing Petitioner the apartment, Respondent verbally explained the details regarding the rental rate and deposits, and confirmed those details in writing on a document provided to Petitioner. Petitioner offered no objection to the manner in which Respondent required payment of rent and security deposits. The manner in which Respondent described the payment of rent and security deposits for the apartment located at 38547 Scottsdale Court to Petitioner is the same manner in which Respondent requires the payment of rent and security deposits on other units. It is also the same manner in which Respondent required payment for the apartment located at 38547 Scottsdale Court when rented to the current tenant, Deanna Stamper. On the morning of March 3, 1997, Respondent also provided Petitioner with a tenant application. This tenant application was the same form used by Respondent for all of the units at Scottsdale Court. Petitioner did not complete the tenant application or provide any deposit to Respondent on March 3, 1997, while meeting with Respondent. Respondent advised Petitioner that she did not hold apartments for any prospective tenant until he or she had completed an application and returned it to Respondent with a deposit. Despite these instructions, Petitioner advised Respondent that Petitioner would take the application with her, complete it at home, and return the application by mail with a deposit. When Respondent returned to her home after showing the apartment to Petitioner, she received a telephone message from another prospective tenant, Deanna Stamper, requesting an opportunity to see the apartment. Respondent returned to the apartment at approximately 12:15 p.m. on Monday, March 3, 1997, and showed the apartment to Deanna Stamper. Respondent provided Deanna Stamper with a tenant application which Deanna Stamper completed while at the apartment, and provided Respondent with a deposit. Respondent returned to her home after showing the apartment to Deanna Stamper, verified the information provided on her application, and approved Deanna Stamper as the tenant for apartment located at 38547 Scottsdale Court. At the time Respondent approved Deanna Stamper as the tenant for the apartment, Respondent had received neither a completed application nor a deposit from Petitioner. After approving Deanna Stamper as the tenant for the apartment located at 38547 Scottsdale Court, Respondent telephoned Petitioner at approximately 3:00 p.m. on Monday, March 3, 1997, to advise Petitioner that the unit at 38547 Scottsdale Court was no longer available but that another unit two doors away, at 38553 Scottsdale Court, would become available in the near future but Respondent was not sure of the date that it would be available. When Respondent advised Petitioner that the apartment was no longer available, Petitioner hung up the telephone. Later that afternoon, Petitioner called Respondent back by telephone, and was verbally abusive toward Respondent, and claimed that Respondent had discriminated against her because she was black. In the rental application process, Respondent uses the same application form for all tenants and all apartments. Respondent provided the same information regarding payment of rent and deposits to Petitioner that she provides to all other prospective tenants. Respondent uses the same method of processing and approving all applications for prospective tenants. Prior to showing the apartment to Petitioner, Respondent had approved other African-American tenants. Currently, Respondent has African-American tenants. Based on Petitioner's past history and her record, it is clear that Petitioner would not have qualified to rent the apartment at 38547 Scottsdale Court even if she had filed the application with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a final order dismissing Petitioner's Petition For Relief and denying Respondent's request for attorney's fees. DONE AND ENTERED this 26th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1998. COPIES FURNISHED: Lynda Dianne McCloud Post Office Box 2050 Zephyrhills, Florida 33539-2050 William A. Kebler, Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. Post Office Box 210 St. Petersburg, Florida 33731 Laura Jones, Esquire Hill, Ward and Henderson, P.A. Post Office Box 2231 Tampa, Florida 33601 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
