The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2004),1/ by discriminating against Petitioner based on her age, race, and/or national origin.
Findings Of Fact The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner's race is black and her nation of origin is Jamaica. She was born on January 12, 1933. Petitioner completed a State of Florida employment application on August 7, 2002, for the position of Human Services Worker II at the Department's Gulf Coast Center in Fort Myers. The state employment application does not require an applicant to list her age or date of birth. All applicants for the Human Services Worker II position were required to sign a "willingness survey" indicating the applicant's willingness to work beyond the hours of a normal shift and/or willingness to work on an assigned day off, if such was required, in order for the facility to meet its minimum staffing requirements. Petitioner read and signed the willingness survey. The Department hired Petitioner for the Human Services Worker II position on September 13, 2002. Her letter of appointment informed Petitioner that she was required to complete a 12-month probationary period before attaining permanent status. Petitioner is a certified nursing assistant ("CNA"), and the job for which she was hired involved the provision of direct care, supervision, and assistance to residents of the Gulf Coast Center. Gulf Coast Center is a 24-hour licensed intermediate care facility for the developmentally disabled, primarily the mentally retarded. Gulf Coast Center's license requires that a minimum number of direct care staff be present and on duty 24 hours per-day, every day of the year, for each residential unit. See 42 C.F.R. § 483.430(d)(3). Petitioner was assigned to the second shift (2:30 p.m. to 11:00 p.m.), with Mondays and Tuesdays as her days off. She worked in the Madison Cottage, which houses 16 profoundly retarded adult females exhibiting a variety of extreme behaviors, including self-injury and aggression towards facility staff. The third shift in Madison Cottage began at 10:45 p.m. and ended at 6:45 a.m. The minimum staff required for the second shift was six persons. The minimum staff required for the third shift was three persons. To ensure that the minimum staff requirements were met, Gulf Coast Center promulgated a "holdover policy," which was in effect at the time Petitioner was hired and throughout her employment. The policy provided that staff persons on one shift could not leave the facility until the next shift met the minimum staffing requirement. In practice, the holdover policy was most commonly invoked when an employee from an incoming shift called in sick. The supervisor of the outgoing shift would first invoke the "pull policy," contacting other cottages in Gulf Coast Center to ascertain whether they could pull an employee from their incoming shifts to fill the slot of the absent employee. If no one was available from another unit, the supervisor would then seek a volunteer from her own cottage to work the incoming shift. If no one volunteered, the supervisor was then required to "hold over" an employee from the current shift. Having signed the "willingness survey," this employee was required to work the extra shift, later receiving compensatory leave to ensure that she did not work more than 40 hours in a given week. Employees were given the opportunity to choose which day of the week they would be available for holdover. If the employee failed to choose a day, then her supervisor would assign a day. Petitioner failed to choose a day and was assigned Wednesday as her holdover day. Prior to May 21, 2003, Petitioner had worked at least one holdover shift without incident. On Wednesday, May 21, 2003, Laurie Whidden was the acting supervisor of Madison Cottage for the second shift. She was informed that a third-shift employee had called in sick. Ms. Whidden attempted to pull an employee from another cottage to cover the shortage, but no one was available. She asked for volunteers to work the third shift, but received no response. Ms. Whidden then informed Petitioner that she would be required to hold over and work the third shift. Petitioner responded that she could not work the third shift, because she could not leave her sick husband at home alone for 16 hours. Petitioner's husband suffered from heart disease, and at that time, his condition was precarious. Petitioner testified that she frequently had to take her husband to the emergency room. However, Petitioner gave Gulf Coast Center no prior notice that she could no longer work a holdover shift, nor did she make any arrangements for the care of her husband on Wednesday, which she knew was her potential holdover day. On May 21, 2003, Petitioner made no effort to ask a fellow second-shift employee to cover for her that night. Petitioner simply went home at the end of the second shift. There was some dispute as to whether Petitioner answered, "Hell, no," when Ms. Whidden asked her to hold over for the third shift. The weight of the evidence supports Petitioner's assertion that her statement was directed at another employee's remark that Petitioner could sue the state if she came home after working the third shift and found her husband dead on the floor. Petitioner was indicating to the other employee that she wanted her husband alive, not money from the state. Petitioner and Beverly Morgan, another second-shift employee, testified that another employee was sent over from another cottage to work the third shift on May 21, 2003, meaning that Petitioner's refusal to stay had no real impact on the staffing of Madison Cottage. Ms. Whidden testified that no one came from another cottage to cover the shortage and that Ms. Whidden herself stayed to work the third shift. Ms. Whidden's testimony is credited on this point. Ms. Whidden informed Colette Fritts, the residential services supervisor of Madison Cottage, that Petitioner refused to hold over for the third shift on May 21, 2003. Ms. Fritts forwarded the report to Gulf Coast Center's human resources division with a recommendation for disciplinary action against Petitioner. The superintendent of Gulf Coast Center terminated Petitioner's employment. Petitioner produced no credible evidence that her age was a factor in the decision to terminate her employment. Ms. Morgan claimed that one night she overheard Ms. Whidden and Leoncia Trevino, another Human Services Worker II in Madison Cottage, discussing Petitioner's age, saying that if she was too old to hold over, she should quit. Given that Petitioner only once refused to hold over, on the night of May 21, 2003, this testimony is not credible. Further, the evidence established that in March and June 2003, probationary employees in their twenties were terminated for refusing to hold over at the end of their shifts. Petitioner produced no credible evidence that her national origin played a role in the decision to terminate her employment. Petitioner, Ms. Morgan, and Carmel Henry, another Madison Cottage employee, all testified that Ms. Whidden, the acting supervisor, wanted to "get rid" of the Jamaican employees in Madison Cottage before the regular supervisor, Monica Franks, herself a Jamaican, returned from sick leave. However, none of them could point to any action by Ms. Whidden to put such a plan into effect or even any statement by Ms. Whidden that would indicate an animus toward Jamaicans. Ms. Whidden testified that at the time of the events at issue, she knew Petitioner was from an island, but didn't know which one. The source of the rumors regarding Ms. Whidden's intention to get rid of the Jamaicans appears to have been Leoncia Trevino. The other workers in Madison Cottage believed that Ms. Trevino had the ear of management. Ms. Whidden credibly testified that she had no special friendship with Ms. Trevino, who was moved out of Madison Cottage on June 24, 2003, after a confrontation with Ms. Henry, and then resigned her employment at Gulf Coast Center the next day. Petitioner produced no evidence that her race played any part in the decision to terminate her employment. Petitioner was still a probationary employee at the time of her dismissal, meaning that she could be dismissed "at will." See Fla. Admin. Code R. 60L-36.005(3). At the time of her hiring, Petitioner received a copy of the Department's Employee Handbook, which informed her that she could be dismissed at will as a probationary employee. Petitioner was aware of the holdover policy and consented to abide by that policy at the time of her employment. On May 21, 2003, Petitioner refused the lawful order of her duly-delegated supervisor to hold over. This refusal constituted insubordination, which would provide cause for dismissal even for a permanent career service employee. See Fla. Admin. Code R. 60L-36.005(3)(d). The evidence produced at hearing demonstrated that the sole reason for Petitioner's termination was her direct refusal to follow the lawful order of her supervisor.
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 the Department of Children and Family Services did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 12th day of May, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2005.
The Issue What amount of attorney's fees is to be paid to Petitioner pursuant to the award of fees in the Final Order Awarding Affirmative Relief from Unlawful Public Accommodation Discrimination. What amount of costs is to be paid to Petitioner pursuant to the award of costs in the Recommended Order and Final Order.
Findings Of Fact A Recommended Order was entered by Daniel M. Kilbride, Administrative Law Judge, on October 17, 2002, awarding affirmative relief as follows: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a Cease and Desist Order prohibiting Respondent from repeating this practice in the future; and Awarding a reasonable attorney's fee as part of the costs. Respondent filed Exceptions to the Administrative Law Judge's Recommended Order, but did not file a transcript of the hearing as required in administrative proceedings. As a result of the failure, FCHR ordered the Exceptions stricken. FCHR's Final Order adopted the Recommended Order's Findings of Facts, Conclusions of Law, and remedies for the discrimination. No appeal was filed by Respondent. Respondent filed statement of defenses to the Motion for Hearing on Attorney's Fees and Costs in which Respondent denied that its action in the underlying proceeding was not justified and contended that the award requested by Petitioner would be unjust. The amount of reasonable attorney's fees and costs was sought pursuant to Section 509.092, Florida Statutes (2003), unfair discrimination by the operator of a public lodging establishment. Section 509.092, Florida Statutes (2003), which establishes a right of action pursuant to Section 760.11, Florida Statutes (2003), specifically states that an award of attorney's fees should be interpreted in a manner consistent with federal case law involving a Title VII action. Petitioner testified in the prior hearing that she was badly hurt by the treatment received at the Sleep Inn. When she was discriminated against, she threatened a suit against the hotel that night because she wanted them to give her a room. When she did not receive a room, she felt she had been treated in a humiliating fashion and was emotionally injured. She sought counseling professionally, then continued counseling with her sister, who was a licensed psychologist. Petitioner determined that the Sleep Inn was not going to apologize to her or do anything except back-up its staff member. She felt she had to leave it to legal remedies to secure relief for herself and others. When an offer was received from Respondent's attorney in a letter dated January 28, 2002, offering a sum to save costs of litigation, but denying any liability on the part of Respondent, Petitioner wanted to go forward with the matter to receive public acknowledgement that she had been discriminated against by Sleep Inn. Thus, Petitioner was satisfied with the Recommended Order and the Final Order of FCHR, even though the dollar amount awarded to Petitioner was only $500.00. Petitioner was aware that there were financial differences in damages for filing an administrative proceeding versus a civil action in circuit court. Petitioner understood that monetary damage for pain and suffering could not be awarded in the administrative procedures. Only documented economic damages could be awarded to Petitioner along with affirmative relief declaring that she was discriminated against and directing Respondent to stop condoning discriminating acts. Petitioner retained Tricia A. Madden, Esquire, on June 13, 2000, to represent her in seeking relief from the discriminatory act and signed a contingency contract. The contract states that Petitioner's attorney will be paid the greater of a reasonable attorney's fee awarded through the administrative process or a percentage fee from the total recovery. The contract further states that if the client prevails or if the contract is terminated, the client must pay the costs listed on the contract to include all costs in investigation, research, and litigating the claim, including, but not limited to, telephone charges, copying costs, postage, and transportation charges. A charge of discrimination was filed on October 18, 2000, with FCHR. When the charge could not be quickly identified as received by FCHR, a second charge was filed on May 23, 2001. Determination of Cause in favor of Petitioner was received after an investigation was conducted by FCHR. Respondent continued to deny liability and made no offers to accept liability or provide any relief to Petitioner. Thereafter, Petitioner's Petition for Relief was timely filed. An attorney appeared for Respondent and filed a Motion to Dismiss. It was withdrawn after discussions with Petitioner's counsel when Respondent's counsel was made aware that the specific motion was inapplicable to a public lodging discrimination case. Stephen F. Baker, Esquire, was substituted as counsel for Respondent on January 6, 2002. He filed a Motion for Summary Judgment on grounds which were not applicable to a public lodging establishment case and outside the jurisdiction of the Administrative Law Judge. The Motion for Summary Judgment was denied by the Administrative Law Judge. Petitioner's counsel has practiced law for 20 years and has practiced in the area of discrimination law in various types of cases, including public lodging establishment cases, employment discrimination cases, Americans with Disabilities Act cases, and education cases for disabled children in civil court and in administrative proceedings. She regularly takes such cases on a contingency basis, believing it is necessary in order to give Petitioner access to the courts. Petitioner's counsel said that although she had a very capable paralegal and staff to assist her in other cases, her paralegal and staff were not qualified to provide more than secretarial assistance in handling discrimination cases; and she has never been able to find a paralegal who was knowledgeable in discrimination cases. Therefore, all of the legal work, including directing the investigation, contact with witnesses, and all pleadings were handled by her in discrimination cases. Her time on the case covered three and a-half years, when the Final Order was entered, and Mr. Indest was attorney-of-record for 13 months. Mr. Indest testified on behalf of Petitioner as an expert on attorney's fees and costs and provided his curriculum vitae. Mr. Indest testified to extensive experience in teaching seminars and classes and writing publications on the subject of attorney's fees and the law, standards, and method of determining the reasonable amount of fees and costs. Mr. Indest is familiar with Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990); and the Rule Regulating Florida Bar 4-1.5 and testified to each factor identified in the rule. Mr. Indest had a previous opportunity to observe Ms. Madden's skills when they were opposing counsel in a nursing home case and when Ms. Madden testified for him as an expert witness on issues, not attorney's fees, in an administrative hearing case where he represented a Petitioner versus the Department of Children and Family Services. He testified that Ms. Madden had a reputation in the community of being a very skilled and aggressive attorney with 20 years' experience representing plaintiffs and petitioners. He further testified she was the only attorney that he was aware of who took discrimination cases on a contingency basis and one of only three attorneys he knew that regularly took discrimination cases on behalf of an employee. Mr. Indest testified he had specifically surveyed other attorneys in the Orlando area as to the fees charged in administrative proceedings and discrimination cases. He testified the range of fees for handling discrimination cases and administrative cases in the Orlando metropolitan area is from $250.00 to $450.00 per hour for one attorney who had only 15 years of experience and from $400.00 to $500.00 for one attorney with 30 years of experience. Other attorneys with 20 years of experience charge fees from $300.00 to $450.00 per hour. Mr. Indest charges $350.00 per hour and is raising his fee as of January 1, 2005, to $400.00 per hour. Mr. Indest said Ms. Madden had only requested $300.00 per hour in this case and should raise her fees to be commensurate with her skills, knowledge of the area of law, and the fees usually charged in the Central Florida area. It was his opinion that $300.00 per hour was a very reasonable fee in the local market for this case. Mr. Indest reviewed the taxable costs submitted on the amended costs list and said that with exception of the Westlaw figures, which Ms. Madden had withdrawn, all costs were reasonable and had to be paid by Petitioner. They were less than he and others would have charged, were applicable, and should be awarded to Petitioner. Mr. Indest testified he had spent eight hours prior to the day of hearing and approximately two more hours before the hearing reviewing the file on the Vanessa Brown case and asking questions on the case and proceedings. He stated he had reviewed the file, but had not read the depositions in detail, although he had scanned the six depositions. He noted Ms. Madden's time for preparation and attendance included travel time, depositions, research, investigation of the witnesses, and the trial of the case. He had read the Recommended Order and, in his opinion, the necessary testimony to support the case was detailed. It was his opinion that it took a high level of skill to prosecute the case successfully. He stated the 122 hours claimed by Petitioner's counsel were very reasonable and that he would have probably had to spend closer to 200 hours preparing the case. He said Petitioner's counsel demonstrated her expertise and efficiency in handling the case by the fact that she prepared for and tried the case at hearing with successful results of her client with only 122 hours of work. Mr. Indest noted Respondent's counsel billed no preparation time for depositions and hearings. He found that unusual and puzzling, and stated that preparation time was certainly necessary for a petitioner's counsel. He said Petitioner had to carry the burden of proof and had to marshall the evidence and witnesses. Mr. Indest stated he could accept that Ms. Madden put in 11 hours or more on any given day at times on this case since he often had to work more than 11 hours a day. Mr. Indest observed that the Proposed Order prepared by Petitioner's counsel was well prepared. Respondent's attorney testified he had been an attorney since 1976 and had been retained by Respondent sometime in December 2001. Respondent's attorney said he felt the case was always a money case from his initial involvement. In the Proposed Recommended Order, Petitioner had asked for $15,000.00 as a monetary consideration. However, the monetary award was only $500.00. He agreed that the court costs claimed were reasonable. He would have discussed an apology if that was what Petitioner wanted with his client, who was a businessman. However, contrary to this suggestion that his client would have admitted liability, settlements normally do not admit liability or fault on the part of the defendant. Respondent's attorney said he spent 44 hours on this case with six depositions and two witnesses at trial. He argued that Petitioner's counsel claimed that she had 140 other active cases and could not possibly have spent three weeks' preparation time on this case. Mr. Young testified that he has practiced since 1976 and has handled a variety of cases. He said he has been involved in discrimination cases as the attorney for the City of Davenport and later the City of Winter Haven. He stated on cross-examination that he has not gone to trial on a discrimination case; that they were always settled before litigation. He reviewed Respondent's file to prepare his Affidavit for an hour and a-half. He spent another hour and a- half the day of the hearing to review Respondent's file to refresh his memory and review Petitioner's counsel's hours. He testified that the outcome of the case should have been apparent from the first, and it was a routine case. He did not read the depositions, but he read the Recommended Order and felt it was a simple case of limited complexity. He said in his opinion the case could have been done in five days of work altogether, with one-half day for all pleadings and one day to both prepare and try the case. It was a straight-forward presentation and story, and the fee should only be $200.00 per hour. He had not surveyed any other attorneys who had litigated discrimination cases or who represented plaintiffs/petitioners in discrimination cases. He said in Central Florida, fees are all over the block; and they had attorneys in Winter Haven who charged up to $450.00 per hour. He said litigation should be a last resort, and it was a public interest case with no monetary recovery. He was of the opinion that 40 hours at $200.00 was reasonable, and he had reduced the fee to $6,000 based on results obtained. The expert witness for Respondent alleged that the delay in response to interrogatories and a Request to Produce were demonstrations that Petitioner's attorney had not performed her role efficiently, had wasted the time of Respondent's counsel, and time for such actions should not be billed or awarded to Petitioner. Respondent wasted Petitioner's counsel time also with two erroneous motions, but Respondent's counsel billed his client for his motion as noted in his time statement. Urging clients to complete discovery is a known time requirement of attorneys, and the delay was caused by Petitioner's personal problems, not by Petitioner's counsel. Ms. Madden voluntarily withdrew the entry of eight hours on her item slips listed as time spent proofing the attorney's fees time delineation. Entitlement to attorney's fees and costs had already been established by this tribunal in the Recommended Order and Final Order. Petitioner's counsel also voluntarily deleted $356.35 for Westlaw research, as a cost not chargeable to Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered: Awarding attorney's fees to Petitioner in the sum of $54,900.00; and Awarding costs to Petitioner in the sum of $8,315.79, which includes $4,200.00 to be paid to Petitioner for payment of Petitioner's expert witness, George F. Indest, III, Esquire. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street, South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact John Joseph Christ (Petitioner) on May 22, 1990 filed his application for licensure as a real estate salesman with the Florida Real Estate Commission (FREC). Question #7 of the application states "Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld?" Petitioner responded affirmatively and included an attachment setting forth information related to five separate offenses, identified as follows: In July or August of 1963, at the age of 17, Petitioner and friends traveled away from home to Pikeville, Kentucky. While in Pikeville, the group discovered a burning debris pile which contained scrap copper wiring. The youths later returned and stole the copper for resale. Petitioner was apprehended and charged with possession of stolen property. He was convicted and paid a fine of $50 plus court costs. In 1967 or 1968, Petitioner was gambling in an apparently unlawful Detroit, Michigan gambling facility. While on the premises, law enforcement officials raided the facility and issued citations to the occupants for loitering in an illegal establishment. Petitioner paid a $62 fine. In 1967 or 1968 at Dearborn, Michigan, Petitioner, attempting to return a defective power tool to the place of purchase, became involved in an altercation with a clerk, knocked over a display counter, and was charged with malicious destruction of property valued under $100. Petitioner was convicted, ordered to pay restitution and court costs, and sentenced to six months probation. The Petitioner also disclosed that he had been arrested while in his car with friends and charged with possession of a firearm, but that the charges were dropped. On April 2, 1985, Petitioner was charged in Naples, Florida, with driving under the influence. He was convicted and fined $450. In addition his license was suspended for nine months and he was required to perform 50 hours of community service. Question 8(a) of the application states "Has any judgement or decree of a court been entered against you in this state or any other state...in which you were charged...with any fraudulent or dishonest dealing?" In response, Petitioner directed attention to another attachment. The attachment discloses that a judgement of $25,000 plus court costs was entered against his former company, the result of civil litigation initiated by the parties to a real estate transaction arranged by Petitioner. The seller, whose property had been previously offered for sale at $42,000, agreed to sell the house to Petitioner on or about November 29, 1980, for $29,500. Petitioner agreed to send a written purchase agreement to the owner for execution. By December 10, 1991, Petitioner had not received the executed purchase agreement and contacted the Owner, who indicated that, rather than handle the transaction by mail, he would travel to Michigan and sign the purchase agreement just prior to the scheduled December 23, 1990 closing. Petitioner immediately thereafter contacted his associates and informed them that the property was available for sale at an asking price of $42,000. On December 11, 1980, an associate of the Petitioner contacted prospective buyers who suggested a willingness to purchase the property for a sales price in the mid-thirties. The associate relayed the offer to his office, and then told the prospective buyers that a $39,000 offer had been previously rejected, and that the Petitioner had since purchased the property. On December 13, 1990, the buyers offered the $42,000 asking price. 1/ The Petitioner accepted the offer. The closing was scheduled for December 23, 1980. At the time the buyers executed their contract to purchase, the Petitioner had no written agreement to purchase the property, and had no other legal interest in the house. Neither the owner nor the buyers were aware of each other. Petitioner did not disclose to the buyers the fact that he had no title to the property. Shortly after the closing the buyers discovered that Petitioner had purchased the property for $29,500 and sold it for $41,000, that Petitioner did not have a legal interest in the property at the time the agreement to purchase had been executed, and felt deceived by the Petitioner's nondisclosure of the situation. The parties filed a civil lawsuit and a complaint with the State of Michigan, Department of Licensing and Regulation, Board of Real Estate Brokers and Salespersons. The Petitioner does not believe the judgement to have resulted from fraudulent or dishonest dealing. The judgement remains unsatisfied. Question 14 of the application states "Have you ever been denied, or is there now pending a proceeding to deny your application for a license, registration, or permit to practice any regulated profession, occupation or vocation, or have you withdrawn an application for such a license, in this or any other state, province, district, territory, possession or nation, because of alleged fraudulent or dishonest dealing or violation of the law?" Question 15(a) of the application states "Has any license, registration, or permit to practice any regulated profession, occupation, or vocation been revoked, annulled or suspended in this or any other state, province, district, territory, possession or nation, upon grounds of fraudulent or dishonest dealing or violations of law, or is any proceeding now pending?" In response Petitioner directed attention to an attachment. The attachment is not included in the certified copy of the Respondent's files, admitted as Respondent's exhibit #1. At hearing, Petitioner identified the matter as that disclosed in response to question 8(a), which resulted in the civil judgement against the Petitioner. As a result of the complaint filed by the parties to the transaction described above, The Michigan Real Estate Commission, on the March 7, 1984, entered a Final Order imposing a fine of $10,000 payable within 30 days, and requiring a $5,000 bond be posted for three years. The Order provided that payment of the fine and posting of the bond would result in Petitioner being placed on probation for three years and that noncompliance would result in suspension of the license. The Petitioner has failed to pay the fine or post the required bond. Although Petitioner claims to have contacted Michigan authorities to determine whether a payment schedule could be arranged, there is no documentary evidence supporting the claim. For the past two years, Petitioner has been employed as a manufactured home salesman with Alligold Corporation/Landmark Estates. Petitioner is responsible for meeting with prospective buyers, determining their needs, selling the manufactured homes, writing contracts, receiving deposits and delivery of said deposits to the company accounting office. Kyle Shinbaum, vice president and general manager of Alligold Corporation testified on behalf of Petitioner. Mr. Shinbaum stated that Petitioner is an excellent salesperson and that he should receive his real estate sales license. Although Mr. Shinbaum was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. Alligold Corporation is undertaking development of a manufactured home park in which lots will be sold. Were Petitioner a licensed real estate salesman, he could sell the lots for Alligold Corporation. David S. Lundgren also testified on behalf of Petitioner. Mr. Lundgren has known Petitioner since late 1865 or early 1986, when Mr. Lundgren, working for a financial services company and prospecting for business, met Petitioner through the manufactured home sales business. Mr. Lundgren is now a mortgage broker and owner of Lundgren & Associates Mortgage Brokers. Mr. Lundgren recommended Petitioner for licensure. Although Mr. Lundgren was generally aware of the Petitioner's legal problems, he lacked detailed knowledge of the incidents. He stated that he believed Petitioner to have been "acquitted" of the Michigan charges.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Real Estate Commission enter a Final Order DENYING Petitioner John Joseph Christ's application for licensure as a real estate salesman. DONE and RECOMMENDED this 16th day of October, 1991, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1991.
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of an unlawful employment practice based on his age.
Findings Of Fact Currently, Petitioner is a retired, 68-year-old male. He retired from Respondent at the age of 66. Petitioner began his employment with Respondent as a truck driver. The position of truck driver, involves many long hours of driving (sometimes over 56 hours) various interstate and intrastate truck routes, along with some lifting and exposure to diesel fumes. Petitioner attributed a variety of illnesses and health problems to his work as a truck driver. Some of the illnesses and health problems are hypertension and heart blockage and failure, which resulted in the implantation of a pacemaker, carpal tunnel syndrome, polyneuropathy, muscular and autonomic system problems and pathological hyper-insomnia. Petitioner offered no evidence that any of these conditions resulted from his employment with Respondent. Prior to September 9 or 10, 2000, at the age of 64, Petitioner was hospitalized for heart problems. Around September 9 or 10, 2000, Petitioner was released from the hospital. Upon his return to work, he gave his employer a physician’s note indicating that his work duties be limited to 40 hours a week. Petitioner met with Respondent’s transportation manager regarding whether less lengthy routes were available or whether his schedule or work duties could be adjusted. The employer did not have the ability to adjust the length of the routes, but added a second driver to ride and help with the driving on any route that Petitioner drove. Petitioner inquired about office work and was told that if he was interested in such work he needed to apply at the main office to see what was available. In part, because Petitioner liked driving and in part because the lesser number of hours involved in office work would cause Petitioner to earn less, Petitioner elected not to pursue and did not apply for such office work. No adverse employment action was taken against Petitioner, and Petitioner continued to work for Respondent. At some point during this meeting, Petitioner alleges that the transportation manager said, “Why don’t you just retire.” Petitioner offered no specific context for this statement other than it was a general conversation about his health and closeness to retirement age relative to the adjustments that could be made to his driving duties. One isolated statement such as the one above does not demonstrate any intent to discriminate on Respondent’s part based on Petitioner’s age, especially since no adverse employment action was taken against Petitioner and Petitioner continued to work for Respondent. Around January 1, 2001, for medical reasons, Respondent approved a Leave of Absence with pay for Petitioner. In June or July, 2002, Petitioner filed his first workers compensation claim with Respondent. Petitioner’s claim was turned over to Respondent’s workers' compensation insurer, Kemper Insurance Company. Petitioner did not offer any evidence that Kemper was under the direction or control of Respondent in any decisions Kemper made regarding paying or litigating Petitioner’s claim. In any event, Petitioner’s claim was contested. The main reason the claim was contested was that Kemper alleged that Petitioner’s “injuries” were not work-related. Over the years, Petitioner has amended his claim to include, among other health claims, the health problems listed above. Kemper has maintained its defense. During a mediation session on December 11, 2002, at which the employer was not present and in response to an inquiry regarding Kemper’s defense, Kemper’s representative stated that except for the carpal tunnel claim, all of Petitioner’s medical conditions were due to the natural aging process. Petitioner claims this statement demonstrates an intent on his employer’s part to discriminate against him based on his age. Such an isolated statement does not demonstrate such an intent especially since such conditions can be age related, there was no expert medical evidence demonstrating the cause of Petitioner’s health problems, the statement did not come from the employer, and there was no evidence that the insurer was under the direction or control of the employer regarding decisions to litigate or the factual basis for the defenses that the insurer would raise. The workers' compensation litigation continues to date. In the interim, Petitioner remained on a leave of absence with pay until January 1, 2003. He retired thereafter. There was no evidence that Respondent discriminated against Petitioner or that Petitioner suffered any adverse employment action based on his age. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 14th day of April, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relation 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32303-4149 Glynda Copeland Qualified Representative Tree of Life, Inc. Post Office Box 410 St. Augustine, Florida 32095-0410 Robert C. Johnson 560 Florida Club Boulevard, Suite 112 St. Augustine, Florida 32084
The Issue The issues are whether Respondent violated Chapter 440, Florida Statutes (2009), by failing to secure the payment of workers' compensation, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that Florida employers secure the payment of workers' compensation for the benefit of their employees. See § 440.107(3), Fla. Stat. Respondent is a Florida for-profit corporation providing pharmacy services. Respondent has business locations at 842 West Plymouth Avenue, Deland, Florida, and 112 East First Avenue, Pierson, Florida. Respondent's Pierson business site sells a small amount of food like bubble gum and other sundries. Activities at the Pierson location include filling prescriptions, compounding and blending drugs, and dispensing drugs or medicine to walk-in customers and patients. The patients are referred from a health care clinic known as Northeast Florida Health Services (NEFHS). The patients are federally qualified as indigent pursuant to a federal poverty calculation. Respondent's Deland location deals solely with prescription drug transactions to indigent patients who are referred by NEFHS. The Deland business site is very small and has no walk-in customers or food or other sundries for sale. At the end of the month, Respondent sends a bill to NEFHS for the prescriptions dispensed by Respondent at both locations. NEFHS than reimburses Respondent for its services. Respondent pays its employees at both locations out of a single checking account. Only one tax identification number is used for both business locations. On October 27, 2009, Hector Beauchamp, one of Petitioner's workers' compensation compliance investigators, received a referral, indicating that Respondent was operating without workers' compensation insurance coverage for its employees. After receiving the referral, Mr. Beauchamp used the website of the Department of State, Division of Corporations, to obtain Respondent's federal employer identification number. The Department of State website showed that Respondent became Pierson Community Pharmacy, Inc., on March 3, 2005. The website also indicated that Respondent had two corporate officers, John Eidt and Hanan Francis. Next, Mr. Beauchamp contacted Samantha Nixon, one of Petitioner’s penalty calculators, to research Respondent's unemployment compensation tax information on the Department of Revenue's website. Ms. Nixon's research revealed that Respondent employed in excess of four employees for each quarter in the past three years. Mr. Beauchamp also consulted Petitioner's Coverage and Compliance Automated System (CCAS) database. The CCAS database lists the workers' compensation insurance policy information for Florida employers together with any workers' compensation exemptions for corporate officers. The CCAS database accurately revealed that Respondent had no workers' compensation insurance policy in place for its employees and no workers' compensation exemptions for either Mr. Eidt or Ms. Francis as corporate officers. This was true from October 29, 2006, through October 28, 2009. Additionally, the CCAS database did not reveal any utilization of employee leasing by Respondent. Mr. Beauchamp also researched the National Council on Compensation Insurance, Inc. (NCCI) on-line database. Using Respondent's name and federal employer identification number, the database showed no record of a Florida workers' compensation insurance policy for Respondent. On October 28, 2009, Mr. Beauchamp visited both of Respondent's business locations. At the Pierson location, Mr. Beauchamp observed five individuals working behind a Plexiglas partition filling prescriptions. Mr. Beauchamp spoke with Mr. and Mrs. Francis. They confirmed that Respondent did not have workers' compensation insurance in place. Mr. Beauchamp then issued and served a Stop-Work Order. He also issued and served a records request. On October 29, 2010, Respondent provided Petitioner with the following records: (a) corporate tax records for 2007 and 2008; (b) a workers' compensation insurance application submitted after the issuance of the Stop-Work Order; and (c) payroll summaries for October 2006 through October 2009. The records confirmed that Respondent had employed more than four employees for the prior three years. On October 30, 2009, Petitioner issued and served the Amended Order of Penalty Assessment. That order was followed by the Second Amended Order of Penalty Assessment on March 15, 2010. Ms. Nixon calculated the gross payroll for Respondent's employees for the relevant time period. The gross payroll amounts for Ms. Francis from January 1, 2008, through December 31, 2008, and April 1, 2009, through June 30, 2009, were limited to the average weekly wage in effect at the time the Stop-Work Order was issued, multiplied by 1.5 for those periods pursuant to Florida Administrative Code Rule 69L- 6.035(2). As a corporate officer, Ms. Francis' actual earnings were in excess of these amounts. However, Florida Administrative Code Rule 69L-6.035(2) limits the amount of a corporate officer's income upon which workers' compensation penalties may be assessed to 1.5 times the average weekly wage in effect at the time a Stop-Work Order is issued or actual earnings, whichever is less. Using the classification codes in the NCCI Scopes® Manual, Petitioner accurately assigned the occupation classification code 8045, which corresponds to "Store: Drug Retail." Classification code 8045 is "applicable to store locations where the employer's books of accounts reflect at least 40 percent gross receipts in prescription sales and less than 50 percent gross receipts in the service of food." Prescription sales intended for the patients of health care facilities are included even though the facility is billed instead of the individual patient. Ms. Nixon then divided the payroll for each year by 100 and multiplied that figure by the approved manual rates adopted by the Florida Office of Insurance Regulation for 2006, 2007, 2008, and 2009 for classification code 8045. That product was then multiplied by 1.5 to find the penalty for the period for the three-year period. The total penalty is $13,996.60.
Recommendation Based on the foregoing Findings of Facts and Conclusion of Law, it is RECOMMENDED: That the Department of Financial Services, Division of Workers' Compensation, issue a final order affirming the Stop- Work Order and Second Amended order of Penalty Assessment in the amount of $13,996.60. DONE AND ENTERED this 26th day of April, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2010. COPIES FURNISHED: John C. Eidt Pierson Community Pharmacy Inc. 112 East 1st Avenue Pierson, Florida 32180 Justin H. Faulkner, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Julie Jones, CRP, FP Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
Findings Of Fact All three Petitioners have made claims for unemployment benefits. Petitioners Garcia and Ward have appeals pending in the District Court of Appeals and Smith has a pending appeal before the Unemployment Appeals Commission. If unsuccessful before the Commission, Smith's next appeal is to the District Court of Appeals. All Petitioners have standing to contest this proposed rule. Public notice of Respondent's intent to adopt proposed Rule 38E-3.009, Florida Administrative Code, was published in the June 27, 1986 Florida Administrative Weekly and Petitioners timely filed their challenge. In procedures followed by the Unemployment Appeals Commission, the fact finding hearing before the Appeals Referee is taped and upon appeal from that decision to the Commission, the tape itself, rather than a transcript thereof, is forwarded to the Commission which reviews the tape before rendering their decision. Thereafter, if the applicant for benefits loses and takes an appeal to the Court of Appeals, the Commission, prior to the promulgation of proposed Rule 38E-3.009, Florida Administrative Code, provided the appellant a transcript of the proceedings before the Appeals Referee at no cost while preparing the record on appeal. Proposed Rule 38E-3.009, Florida Administrative Code, would require the appellant to pay the cost of obtaining a transcript of the proceedings in perfecting his appeal to the District Court of Appeals. In pertinent part, Rule 38E-3.009, Florida Administrative Code, provides: * * * (3) Within 10 days of filing of the notice, the appellant shall designate those portions of the proceedings for transcription and inclusion in the record. Within 20 days of filing of the notice, the appellee may designate additional portions of the proceed- ings. Copies of designations shall be served on the Clerk of the Commission along with a request that the Clerk provide a duplicate of the tape recorded record of the proceedings for transcription by a court reporter. Within 30 days of a designation, the designating party shall insure that the court report shall transcribe and deliver to the Clerk of the Commission the designated proceedings. In the alternative; the designated party may request that the Clerk of the commission arrange transcription of the designated pro- ceedings by the clerk's staff or other qualified person. The Clerk shall charge no more than actual costs for duplication of the tape recording of the proceedings. Costs shall be borne initially by the designating party, subject to taxation of costs as pre- scribed by Florida Rule of appellate Procedure 9.400.
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 Is the Petitioner handicapped? Was the Petitioner capable of performing her duties satisfactorily? Did Respondent take adverse personnel actions against the Respondent? Were the adverse personnel actions which were taken against the Petitioner based upon her disability? Did the Respondent have a legitimate nondiscriminatory basis for taking the adverse actions against Petitioner? Were the reasons articulated by the Respondent pretextual? Did the Respondent provide reasonable accommodations for the Petitioner? To what relief is the Petitioner entitled if she prevails? Are the Petitioner's rights limited by her status as a non-tenured employee on annual contract status? Is the Petitioner entitled to costs and reasonable attorneys fees?
Findings Of Fact Dr. Tony Mason was employed by the School Board of Leon County, Florida, as the Coordinator for Diagnostic Services on January 2, 1986. As is done with all employees of the School Board, she was recommended for employment by the board by her immediate supervisor, Dr. Ruth Mitchell. Dr. Mitchell supervised from four to six coordinators of units similar to the Diagnostic Services during Petitioner's tenure with the Respondent. Each of these units was headed by an individual who was not handicapped and who had an educational background similar to that of the Petitioner. The position requirements for the position of Coordinator for Diagnosis Services were a background in physiology, social work, or a related field as well as educational and administrative background or experience. Dr. Mason holds the following degrees: Bachelor of Arts and Social Studies, English and Speech, Masters Degree in Counselling and Physiology, a doctorate in Administration and Supervision, and an Educational Specialist degree. She was employed by the U. S. Department of Education for several years in an administrative capacity. The Petitioner was well qualified for the position of Coordinator of Diagnostic Services Unit. At the time the Petitioner was hired she was handicapped. Her primary impairment is cerebral palsy. The Petitioner has suffered from this condition since the age of three. This condition is readily apparent from talking with and observing the Petitioner. The Petitioner also has had a partial gastrectomy. This latter condition is not observable. During her employment, she advised her supervisor, Dr. Mitchell, of the nature, symptoms, and problems associated with both conditions. Both impairments significantly limit Petitioner's major life activities. Cerebral palsy, a neuromuscular disease, impedes Petitioner's ability to walk, and causes her to speak slowly. In addition, her speech is distorted although very understandable. A partial gastrectomy is a surgical removal of a portion of one's stomach. Both of the Petitioner's disabilities are negatively impacted by extreme stress. Extreme stress causes the Petitioner's muscles to contract and lock causing intense pain. Inordinate stress causes the Petitioner to "dump" requiring her to go to the nearest restroom as quickly as she can. Both the Petitioner's disabilities are not affected by normal, everyday stress. There was no evidence presented that the Petitioner's disabilities in any way impaired her intellectual capacity or mental abilities. The Petitioner had never been terminated or asked to resign from any position prior to working for the Respondent. While working for the Federal Department of Education and completing her doctorate in 13 months, both of which are stressful activities, the Petitioner did not suffer stress induced impacts on her disabilities. The Petitioner performed the duties of Coordinator for Diagnostic Services for almost two years without difficulty. As Coordinator for Diagnostic Services, Dr. Mason was responsible for the administration of this unit which employed eight social workers and ten physiologists. They were responsible for testing students within the school district and preparing reports based upon their testing to determine the eligibility of the students for participation in various educational programs. The Diagnosis Services Unit (DSU) also employed two secretaries and, at various times during the Petitioner's employment, additional interns and part-time employees. The Petitioner was also responsible for preparing staff papers on matters related to Diagnosis Services for presentation to the School Board together with budget requests, schedules, preparations of grants, and other special reports which were from time to time requested by the Superintendent, Deputy Superintendent, or Petitioner's immediate supervisor. To assist her in the preparation of these reports, the Petitioner was initially assigned a secretary. This secretary also filed the unit's paperwork and generally assisted the Petitioner. The work load of the DSU was consistently high as the unit was responsible for evaluating approximately 2,000 students each year. There has been a steady increase in the work load of the DSU since 1976, and the work load continued to increase through the period of the Petitioner's tenure at the DSU and thereafter. The DSU had suffered from high work load and limited resources prior to and during the Petitioner's employment in the unit. A psychologist working in the unit testified that she suffered severe depression as a result of the stress created by the workload in the Unit. For assistance in preparing reports, the DSU could send draft reports to the word processing unit. However, the word processing unit was slow and not suited to the particular needs of the DSU because the word processing personnel were not familiar with the technical terminology used in the psychological and social work reports, and did not accurately transcribe the material which the DSU sent to them. This resulted in reports having to be returned to the word processing center for corrections. Because the Petitioner's unit was only third in order of priority for using the word processing center, the DSU's turn-around time was lengthy. One school psychologist had to wait an entire summer to receive materials she had sent to the word processing center, and then found it necessary to return them for corrections. The lack of adequate secretarial support adversely impacted the work of the DSU and the Petitioner's personal performance. Dr. Mitchell, the Petitioner's immediate supervisor, forbade the Petitioner to use her secretary for typing Petitioner's written reports because of the backlog in the unit. The Petitioner was forced to print her own work by hand. This was slow and adversely affected by her disability. Because the Petitioner could not use the secretaries who were assigned to and physically located in her unit, the Petitioner had to walk to the word processing center, where obstructions and uneven steps in the area of the unit's office made Petitioner's walking more difficult. This caused further delay. The practice of assigning short suspense projects made the absence of adequate secretarial support worse. The Petitioner paid for secretarial services to prepare various reports for the Respondent paying in one year over $900.00 for secretarial support to meet the demands of her job. The Petitioner made verbal requests for a secretary to her supervisor, Dr. Mitchell, and these requests were denied. The Petitioner made requests to the Superintendent and other members of the School Board Staff, and caused a letter to be written by her physician to the Board explaining the need for secretarial assistance as a reasonable accommodation for her disability. Although the Respondent denies that Petitioner made a request for a secretary as a reasonable accommodation for her disability, Petitioner's Exhibit No. 2, a memorandum to William Wolley from the Petitioner dated May 4, 1989, which specifically addressed other issues references the aforementioned physician's letter as follows: There is also a letter from a physician earlier relative to that issue in requesting some reasonable accommodation in terms of secretarial assistance that was an attempt to get my Secretary III reinstated . . . [.] The Respondent never assigned a secretary to assist the Petitioner in doing her work although the timeliness of the Petitioner's work was the primary complaint regarding the Petitioner. The school board's yearly payroll was in excess of $110 million. The salary for a secretary varied between $15,000 and $20,000 a year. At the time of Petitioner's employment, the Petitioner walked without the use of a walker although she walked slowly and with some difficulty. The Petitioner wanted to postpone using a walker to assist her in walking because use of a walker causes certain muscles to become dysfunctional and atrophied. Although the Petitioner had a walker in her office restroom and in her car, she avoided use of a walker wherever possible because, as stated above, they can cause the muscles to become dysfunctional, and because they can cause the individual to trip by catching on the uneven surfaces. In late spring or summer of 1988, Dr. Mitchell, the Petitioner's supervisor, told the Petitioner that she wanted the Petitioner to use a walker around the office complex. Dr. Mitchell made the Petitioner's use of a walker a condition of continued employment after Petitioner fell outside the Board's offices when she tripped over an uneven joint in the sidewalk and landed on a piece of broken curbing. A coworker, who is an R.N., was aware of how Petitioner felt about being asked to use a walker and explained to Dr. Mitchell that victims of cerebral palsy strive to maintain the maximum independence and postpone the use of such devices. Dr. Mitchell advised the coworker that if Petitioner wanted to work for the Respondent that she would have to use the walker. The Petitioner felt that Dr. Mitchell's demand was unwarranted, improper, not in her best interest, and refused to use a walker in the absence of a physician's recommendation. The Respondent never referred Petitioner to a physician for evaluation. Subsequent to Dr. Mitchell's demands that the Petitioner use a walker and Petitioner's refusal, Dr. Mitchell made derogatory comments to staff about how slow Petitioner walked. At this time, the professional relationship between Dr. Mitchell and the Petitioner became strained. Dr. Mitchell arranged to have a study done in early 1988 by Case Management Services Inc. Dr. Mitchell requested that Dr. Mason participate in this study which was presented to Dr. Mason as an assessment of the work environment of the board offices; however, the report prepared by the consultant appears to address not the work area, but Dr. Mason personally. The purpose of this report was to support Dr. Mitchell's demand that Dr. Mason use a walker. Notwithstanding the findings by the consultant that there were architectural and facilities maintenance problems which posed a danger to the handicapped, the consultant's first recommendation primarily addressed Dr. Mason's use of a quad-cane (walker). The second recommendation, "occupational therapy evaluation to determine means for enhanced functioning among campus architectural problems," appears to be limited to the Petitioner. In the spring of 1989, Dr. Mitchell gave Petitioner her first unsatisfactory annual performance evaluation. In addition, Dr. Mitchell only extended Dr. Mason's service contract for three months beyond the existing contract and denied Dr. Mason an increase in salary. Dr. Mason appealed Dr. Mitchell's evaluation and Dr. Mitchell reevaluated Dr. Mason's performance as satisfactory. Dr. Mitchell told Dr. Mason that this was the last time she would amend her evaluation of Petitioner pursuant to an appeal. Although not readily apparent from the file, Dr. Mason's employment contract was extended for an entire year and pursuant to that contract she was evaluated again in June of 1990. At that time, Dr. Mitchell evaluated Dr. Mason as unsatisfactory and extended her contract for only three months. During the year 1989-90, Dr. Mitchell documented every instance in which Dr. Mason appears to have departed from school board procedure or failed in any way to meet Dr. Mitchell's expectations. Dr. Mitchell contacted other supervisors of other activities within the school system and requested that they provide her with any information related to the failure of DSU to meet their expectations. See the memorandum of Dr. Mitchell to Beverly Blanton dated June 19, 1989. Dr. Mitchell required Dr. Mason to perform additional work unrelating to any specific program or project, and announced her intention to attend Dr. Mason's staff meetings, to hold weekly meetings to review Dr. Mason's logs and summaries of activities, and to work with Dr. Mason on staff development. (See memorandum Dr. Mitchell to Dr. Mason dated April 10, 1989, subject: Suggestions for improvement in evaluation.) These requirements, placed upon Dr. Mason under the guise of improving her performance, formed the basis for additional criticism of Dr. Mason while at the same time taking up more of her time and undercutting Dr. Mason's authority with her subordinates. Dr. Mitchell also requested access to Dr. Mason's medical records, a request she did not make of any other employee. Dr. Mitchell demonstrated an amazing lack of tact with Dr. Mason. Dr. Mitchell advised Dr. Mason on one occasion when Dr. Mason was hospitalized for burns suffered in an accident while on school business that Dr. Mason had picked an extremely bad time to be injured, and when Dr. Mason was recuperating at home from a severe fall, Dr. Mitchell threatened to bring a television crew to Dr. Mason's house for an interview if Dr. Mason could not come to work. One of the major complaints against Petitioner by Dr. Mitchell was the quality of the reports provided by Dr. Mason's unit to Ray King. A complete file of these reports was provided to Dr. Mitchell by Mr. King's staff as a result of a memorandum from Dr. Mitchell. (See Tab 6, Respondent's Exhibit 3.) The first of these 103 reports is dated May 18, 1988 and the last of these dated December 15, 1989. There were 97 reports returned from Mr. Ray's to Dr. Mason's section between 5-18-88 and 4-20-89. There were six reports returned from Mr. Ray's section after 4-20-89. Contrary to the assertions made by Respondent, the number of reports kicked back by Mr. King during the period following Dr. Mason's initial unsatisfactory evaluation were significantly reduced. The Respondent attempted to justify its denial of a secretary as a reasonable accommodation to Dr. Mason by stating that it was having fiscal problems, and by providing Dr. Mitchell with a computer. Because of Dr. Mason's handicap, she is unable to utilize a computer to prepare her own work. Further, notwithstanding Dr. Mason's inability to use a computer, Dr. Mitchell required her to be conversant in the operation of a computer so she could utilize the computerized data base. Contrary to the Respondent's assertion that Dr. Mason was only required to be knowledgeable about the computer's capabilities, Dr. Mitchell required Dr. Mason to demonstrate use of the computer to her secretary, and was harshly critical of Dr. Mason's inability to do so. Although additional memoranda purportedly documenting additional failings on the part of Dr. Mason and the DSU were introduced, Dr. Mason's explanations are adequate, and these secondary reasons for the adverse personnel action are not meritorious. Because of budgetary constraints in 1990, Dr. Mason's requests for authorization to fly to St. Petersburg to make a presentation at an educational conference was denied. Dr. Mason was told to drive to the conference or not to attend because attendance at the conference was not a part of her normal duties and responsibilities. Presentations at such conferences are considered professionally beneficial both to the individual and to the board. However, Dr. Mason admitted that she had not requested air travel as reasonable accommodation due to her handicap which makes long trips by car very painful and debilitating. On September 22, 1990, the Petitioner received a memorandum from Dr. Mitchell that her contract would not be renewed, and that Petitioner should leave all records in her office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: The Respondent reinstate the Petitioner to a position comparable to the position from which she was terminated (or in which the Respondent denied the Petitioner employment), The Respondent pay the Petitioner backpay, to include insurance and retirement benefits less $25,241, in accordance with this order, The Respondent pay the Petitioner's reasonable attorney fees and costs, and The Respondent be enjoined from further discrimination against the Petitioner. DONE and ENTERED this 19th day of July, 1993, in Tallahassee, Florida. STEPHEN F. DEAN 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 19th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-6043 Proposed findings of both parties were read and considered. The following states which of those findings were adopted, and which were rejected and why: Petitioner's Findings: Para 1-9 Adopted. Para 10 Irrelevant. Para 11-14 (1st sentence) Adopted. Para 14 (2d sentence) Contrary to best evidence. Para 15,16 Adopted. Para 17 Irrelevant. Para 18-42 Adopted. Para 43 Subsumed in 44. Para 44-45 Irrelevant. Para 49-54 Adopted. Para 55 Irrelevant. Para 56-80,82 Adopted or Subsumed. Para 81 Irrelevant. Para 83-92 Irrelevant. Para 93-99 Adopted. Para 100-118 Adopted. Respondent's Findings: Para 1-3 Adopted. Para 4-5 Irrelevant. Para 6 Contrary to best evidence. Para 7-11 Irrelevant. Para 12-13 Contrary to best evidence. Para 14 Irrelevant. Para 15 Contrary to best evidence. Para 16-17 Irrelevant. Para 18,19 Contrary to best evidence. Para 20, 21 The letter was not considered. Para 22-24 Contrary to best evidence. Para 25-27 Adopted. COPIES FURNISHED: Kathryn Hathaway, Esquire 924 North Gadsden Street Tallahassee, Florida 32303 Leslie Holland, Esquire Suite 800 2800 Biscayne Boulevard Miami, Florida 33167 Deborah J. Stephens, Esquire Graham C. Carothers, Esquire 227 South Calhoun Street Post Office Box 391 Tallahassee, Florida 32301 Richard Merrick, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304-2907 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent committed the unlawful employment practice alleged in the employment discrimination complaint Petitioner filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a software engineer with almost 30 years of experience in the industry. From 2001 until August of 2006, Petitioner was employed by ITT Industries (ITT). Petitioner's employment with ITT came to an end when he was involuntarily terminated. Following his termination, Petitioner filed an employment discrimination complaint with the federal Equal Employment Opportunity Commission (EEOC) alleging that ITT had discriminated against him because he suffered from Tourette's syndrome (which caused him to have vocal tics and to stutter). Petitioner did not take any action to pursue these allegations of employment discrimination beyond filing this complaint against ITT with the EEOC. Petitioner has been unable to obtain a "permanent job" as a software engineer since his termination by ITT. Respondent is a defense contractor that "make[s] [military] simulation and training equipment." In early 2008, Respondent was looking to fill a temporary software engineer position. Edge Dynamics was one of the outside employment agencies that Respondent used to assist it in the hiring process. On January 9, 2008, Edge Dynamics provided Petitioner's resume to Edward Kaprocki, a senior principal software engineer with Respondent. Mr. Kaprocki was responsible for interviewing applicants for the position and making hiring/rejection recommendations. After reviewing Petitioner's resume, Mr. Kaprocki "thought [it] looked interesting enough where it would worth talking to [Petitioner]," and he so advised Sandra Asavedo, his "point of contact" at Edge Dynamics. Ms. Asavedo made the necessary arrangements to set up a face-to-face interview between Mr. Kaprocki and Petitioner. The interview took place in Mr. Kaprocki's office on January 14, 2008. It lasted about 45 minutes to an hour. Petitioner seemed to Mr. Kaprocki to be "a little bit nervous," but Petitioner did not do or say anything to cause Mr. Kaprocki to believe that Petitioner suffered from any disability. During the course of the interview, Petitioner showed Mr. Kaprocki his personal website, which contained information about and pictures of "some of the projects that [Petitioner] had worked on." Based on the interview, Mr. Kaprocki determined that Petitioner did not have the skill-set that was needed for the position Respondent was seeking to fill. Immediately following the interview, Mr. Kaprocki went to his supervisor, Steve Preston, whose office was "right down the hall," and recommended that Petitioner not be hired to fill the position. Mr. Kaprocki then telephoned Ms. Asavedo to let her know that Petitioner was not going to be hired so that she could inform Petitioner. Mr. Kaprocki's decision to recommend against hiring Petitioner had nothing to do with Petitioner's suffering from Tourette's syndrome or his having filed an EEOC complaint against ITT. Indeed, at the time he made his decision, Mr. Kaprocki did not even know that Petitioner had Tourette's syndrome or had filed an EEOC complaint against ITT. Mr. Kaprocki first learned of these matters only after Petitioner had filed his Complaint in the instant case. After being told that he would not be hired for the position, Petitioner telephoned Mr. Kaprocki several times, pleading with Mr. Kaprocki to "reconsider hiring him." Mr. Kaprocki told Petitioner "that the decision had been made" and would not be reconsidered. Mr. Kaprocki felt that Petitioner, by making these telephone calls, was "badgering and harassing him." To satisfy his own personal curiosity (and for no other reason), Mr. Kaprocki looked online to find out more about the person who was subjecting him to this "badgering and harass[ment]."2 Mr. Kaprocki did not discover, as a result of his online search, that Petitioner had Tourette's syndrome or that Petitioner had filed an EEOC complaint against ITT. His search, however, did reveal certain comments Petitioner had made in an online forum that Mr. Kaprocki considered to be "extremely unprofessional." After reading these comments, Mr. Kaprocki was even more confident than he had been before he began his search that he had made the right decision in not recommending Petitioner for employment. Petitioner was never offered a position with Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of any unlawful employment practice alleged by Petitioner and dismissing Petitioner's employment discrimination complaint. DONE AND ENTERED this 14th day of May, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 14th day of May, 2009.
