The Issue Whether American Airlines committed the unlawful employment practices alleged in the employment discrimination charges filed by Petitioners and, if so, what relief should Petitioners be granted by the Florida Commission on Human Relations.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the extensive factual stipulations set forth in the parties' February 23, 2006, Corrected Joint Prehearing Stipulation2: Petitioners are both Hispanic. Hispanics represent a substantial portion of the workforce in American's maintenance department at Miami International Airport (MIA). Among these Hispanic employees in the maintenance department are those who occupy supervisory positions. American’s Vice-President for Maintenance, Danny Martinez, is Hispanic. As aviation maintenance technicians for American, Petitioners' job duties, as set forth in the written job description for the position, were as follows: In addition to the work specified for the Junior Aviation Maintenance Technician, an Aviation Maintenance Technician's responsibility also includes the following: troubleshooting, individually or with Crew Chief, management or professional direction, disassembly, checking and cleaning, repairing, replacing, testing, adjusting, assembling, installing, servicing, fabricating, taxing or towing airplanes and/or run-up engines, de-icing aircraft, required to maintain the airworthiness of aircraft and all their components while in service or while undergoing overhaul and/or modification. Certifies for quality of own workmanship, including signing mechanical flight releases for all work done on field work. In those work positions where stock chasers are not utilized and/or available at the time may chase own parts. May have other Mechanic personnel assigned to assist him/her in completing an assignment. Works according to FAA and Company regulations and procedures and instructions from Crew Chief or supervisor. Completes forms connected with work assignments according to established procedures and communicates with other Company personnel as required in a manner designated by the Company. Performs the following duties as assigned: cleaning of aircraft windshields; connection/removing ground power and ground start units; pushing out/towing of aircraft and related guideman functions, fueling/defueling, de-icing of aircraft. At all times material to the instant cases, Petitioners were members of a collective bargaining unit represented by the Transport Workers Union of America (TWU) and covered by a collective bargaining agreement between American and the TWU (TWU Contract), which contained the following provisions, among others: ARTICLE 28- NO DISCRIMINATION, AND RECOGNITION OF RIGHTS AND COMPLIANCE The Company and the Union agree to make it a matter of record in this Agreement that in accordance with the established policy of the Company and the Union, the provisions of this Agreement will apply equally to all employees regardless of sex, color, race, creed, age, religious preferences, status as a veteran or military reservist, disability, or national origin. The Union recognizes that the Company will have sole jurisdiction of the management and operation of its business, the direction of its working force, the right to maintain discipline and efficiency in its hangars, stations, shops, or other places of employment, and the right of the Company to hire, discipline, and discharge employees for just cause, subject to the provisions of this Agreement. It is agreed that the rights of management not enumerated in this Article will not be deemed to exclude other preexisting rights of management not enumerated which do not conflict with other provisions of the Agreement. * * * Copies of the Peak Performance Through Commitment (PPC) Program will be available to all employees upon request. Any changes to the PPC Program will be provided and explained to the TWU prior to implementation. ARTICLE 29- REPRESENTATION * * * The Union does not question the right of the Company supervisors to manage and supervise the work force and make reasonable inquiries of employees, individually or collectively, in the normal course of work. In meetings for the purpose of investigation of any matter which may eventuate in the application of discipline or dismissal, or when written statements may be required, or of sufficient importance for the Company to have witnesses present, or to necessitate the presence of more than the Company supervisor, or during reasonable cause or post accident drug/alcohol testing as provided in Article 29(h), the Company will inform the employee of his right to have Union representation present. If the employee refuses representation, the supervisor's record will reflect this refusal. At the start of a meeting under the provisions of Article 29(f), the Company will, except in rare and unusual circumstances, indicate the reason that causes the meeting and then provide an opportunity for the employee and his Union representative to confer for a reasonable period of time. Following that period, the 29(f) meeting will be reconvened and continue until concluded by the supervisor. Before written notification of discipline or dismissal is given, an employee will be afforded the opportunity to discuss the matter with his supervisor. If he desires, he will have a Union representative in the discussion. . . . * * * ARTICLE 30- DISMISSAL An employee who has passed his probationary period will not be dismissed from the service of the Company without written notification of that action. The notification will include the reason or reasons for his dismissal. Appeal from dismissal will be made, in writing, by the employee within seven (7) calendar days after receiving the notification and will be addressed to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and render a written decision as soon as possible, but not later than twelve (12) calendar days following his receipt of the appeal, unless mutually agreed otherwise. A copy of the written decision will be provided to the Union. * * * If the decision of the Chief Operating Officer is not satisfactory to the employee, the dismissal and decision will be appealed in accordance with Article 30(c), provided, however, the appeal must be submitted within twenty (20) calendar days of receipt of the decision rendered by the Chief Operating Officer. An appeal from the decision of the Chief Operating Officer will be submitted to the appropriate Area Board of Adjustment in accordance with Article 32. . . . * * * ARTICLE 31- GRIEVANCE PROCEDURE An employee who believes that he has been unjustly dealt with, or that any provision of this Agreement has not been properly applied or interpreted, or against whom the Company has issued written disciplinary action, may submit his grievance in person or through his representatives within seven (7) calendar days. The grievance will be presented to his immediate supervisor, who will evaluate the grievance or complaint and render a written decision as soon as possible, but not later than seven (7) calendar days following his receipt of the grievance. . . . If the written decision of the immediate supervisor is not satisfactory to the employee whose grievance is being considered, it may be appealed within ten (10) calendar to the Chief Operating Officer, with a copy to the appropriate Human Resources Office. The Chief Operating Officer will fully investigate the matter and will render a written decision as soon as possible, but not later than twelve (12) calendar days, unless mutually agreed otherwise, following his receipt of the appeal. . . . If the decision of the Chief Operating Officer is not satisfactory to the employee, the grievance and the decision may be appealed to the System Board of Adjustment, as provided for in Article 32. * * * ARTICLE 32- BOARD OF ADJUSTMENT * * * Area Board of Adjustment, Discipline and Dismissal Cases * * * (2) Each Area Board will be composed on one member appointed by the Company, one member appointed by the Union, and a neutral referee acting as Chairman. . . . * * * Procedures Generally Applicable to the Boards * * * Employees and the Company may be represented at Board hearing by such person or persons as they may choose and designate. Evidence may be presented either orally or in writing, or both. The advocates will exchange all documents they may enter and the names of witnesses they may call in their direct case not later than ten (10) calendar days prior to the date set for hearing. Nothing in this paragraph will require either advocate to present the documents or the witnesses provided above during the course of the hearing. The advocates will not be restricted from entering documents or calling witnesses that become known subsequent to the ten (10) ten calendar day exchange, provided a minimum of forty-eight (48) hours notice is provided to the other party and a copies are submitted to the other party prior to the presentation of the direct case. The party receiving the late document or witness has the option to postpone the hearing in light of the new document or witness. Upon the request of either party to the dispute, or of two (2) Board members, the neutral referee will summon witnesses to testify at Board hearing. The Company will cooperate to ensure that all witnesses summoned by the board will appear in a timely fashion. Reasonable requests by the Union for employee witnesses will be honored. The requests for witnesses will normally not be greater than the number, which can be spared without interference with the service of the Company. Disputes arising from this provision will be immediately referred to the Director of the Air Transport Division and the Vice President-Employee Relations, or their respective designees, for resolution. A majority of all members of a Board will be sufficient to make a finding or a decision with respect to any dispute properly before it, and such finding or decision will be final and binding upon the parties to such dispute. . . . * * * ARTICLE 36- MEAL PERIODS Meal periods will be thirty minutes, except when a longer period is agreed upon between the parties. Meal periods will be scheduled to begin not earlier than three (3) hours after commencement of work that day and not later than five hours after commencement of work that day. The commencement of work is from the start of the employee's regular shift. If an employee is not scheduled for a meal period within the foregoing time span, the meal period will be provided immediately before or after it. In the event that a meal period has not been provided in accordance with the foregoing, the employee is then free, if he so desires, to take his meal period. At all times material to the instant cases, American had Rules of Conduct for its employees that (as permitted by Article 28(b) of the TWU Contract) were applicable to TWU- represented bargaining unit members, including Petitioners. These Rules of Conduct provided, in pertinent part, as follows: As an American Airlines employee, you can expect a safe and productive workplace that ensures your ability to succeed and grow with your job. The rules listed below represent the guidelines and principles that all employees work by at American. Attendance * * * During your tour of duty, remain in the area necessary for the efficient performance of your work. Remain at work until your tour of duty ends unless you are authorized to leave early. * * * 17. Work carefully. Observe posted or published regulations. * * * Personal Conduct * * * 34. Dishonesty of any kind in relations with the company, such as theft or pilferage of company property, the property of other employees or property of others entrusted to the company, or misrepresentation in obtaining employee benefits or privileges, will be grounds for dismissal and where the facts warrant, prosecution to the fullest extent of the law. Employees charged with a criminal offense, on or off duty, may immediately be withheld from service. Any action constituting a criminal offense, whether committed on duty or off duty, will be grounds for dismissal. (Revision of this rule, April 10, 1984) * * * Violations of any of the American Airlines Rules of Conduct (listed above) . . . could be grounds for immediate termination depending of the severity of the incident or offense and the employee's record. . . . At all times material to the instant cases, American had a Peak Performance Through Commitment Policy (PPC Policy) to deal with employee performance and disciplinary problems. The policy, which (as permitted by Article 28(b) of the TWU Contract) was applicable to TWU-represented bargaining unit members, including Petitioners, provided, in pertinent part, as follows: Peak Performance Through Commitment (PPC) is a program that fosters ongoing communication between managers and employees. It encourages managers . . . to regularly recognize outstanding performance and to work together with employees to address and correct performance issues fairly. For the few employees whose performance does not respond to regular coaching and counseling, the following steps advise them that continued performance problems have serious consequences, ultimately leading to termination: -First Advisory for employees with problem performance or conduct who do not respond to coaching or counseling. -Second Advisory for employees whose performance fails to respond to initial corrective steps. -Career Decision Advisory for employees whose problem performance or conduct warrants termination. They are given a paid Career Decision Day away from work to consider their future and continued employment with American Airlines. -Final Advisory for employees whose problem performance or conduct requires termination, or those who have failed to honor the Letter of Commitment signed after their Career Decision Day. Please note that steps can sometimes be skipped, in instances where the nature of the conduct is very serious. It is your responsibility as an employee to know the company's rules of conduct and performance standards for your job, and to consistently meet or exceed those standards. In the event that your performance does not measure up to the company's expectations, your manager will work with you to identify the problem and outline steps to correct it. * * * SERIOUS INCIDENTS OR OFFENSES Some violations of our guiding principles and rules of conduct will result in immediate termination. For example, insubordination, violating our alcohol and drug policy, abusing travel privileges, aircraft damage, violations of the work environment policy, and job actions could be grounds for immediate termination, depending on the severity of the incident and the employee's record. Hate-related conduct and dishonesty will always result in termination. In cases when immediate termination may be appropriate but additional information is needed, the employee may be withheld from service while an investigation is conducted. At all times material to the instant case, Petitioners' regular shifts were eight and a half hours, including an unpaid, thirty minute "meal period" (to which TWU-represented bargaining unit members were entitled under Article 36 of the TWU Contract). Although they were paid to perform eight hours of work during their eight and a half hour shifts, TWU-represented bargaining unit members, including Petitioners, were, in practice, allowed to take up to an hour for their meals, without penalty. TWU-represented bargaining unit members "clocked in" at the beginning of their shift and "clocked out" at the end of their shift. They were expected to remain "on the clock" during their "meal periods" (which, as noted above, were to be no longer than one hour). During his eight and a half hour shift which began on July 30, 2004, Petitioner Castellanos was assigned to perform a "routine 'A' [safety] check" on a Boeing 757 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" approximately four hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Castellanos was two hours and 15 minutes into his shift. During his eight and a half hour shift which began on July 30, 2004, Petitioner Pena was assigned to perform "PS checks" on two Boeing 737 aircraft, an assignment it should have taken a "well qualified [aviation maintenance technician] working quickly but carefully" at least six hours to complete. At the time he left MIA that evening to go to the Quench nightclub, Mr. Pena was three hours and 45 minutes into his shift. Walter Philbrick, an investigator in American's corporate security department, covertly followed Petitioners when they left MIA that evening and kept them under surveillance until their return almost four hours later. Petitioners did not clock out until following the end of their shifts on July 31, 2004. In so doing, they effectively claimed full pay for the shifts, notwithstanding that, during the shifts, they had been off the worksite, engaged in non-work- related activity, for well in excess of the one hour they were allowed for "meal periods." Mr. Philbrick prepared and submitted a report detailing what he had observed as to Petitioners' movements and conduct during the time that they had been under his surveillance. Mike Smith is American's maintenance department station manager at MIA. He is "responsible for the entire [American] maintenance operation in Miami." Mr. Smith assigned his subordinate, Anthony DeGrazia, a day shift production manager at MIA, the task of looking into, and taking the appropriate action on behalf of management in response to, the matters described in Mr. Philbrick's report. Neither Mr. Smith nor Mr. DeGrazia is Hispanic. Mr. DeGrazia met separately with both Mr. Pena and Mr. Castellanos. The meetings were held in accordance with the provisions of Article 29(f) of the TWU Contract. Before conducting the meetings, Mr. DeGrazia had reviewed Mr. Philbrick's report. Mr. Castellanos stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was trying to complete his assignment as fast as possible because he wanted to have an alcoholic beverage; that evening, he was "away from work" for approximately four hours, which he knew was wrong; and he and Mr. Pena had engaged in similar activity on perhaps six or seven previous occasions. Mr. Pena stated, among other things, the following in his meeting with Mr. DeGrazia: on the evening in question, he was "off the field" for three to four hours, which he knew was not "okay"; this was something he had done "sometimes" in the past; and American was a "great company" to work for. Based on his review of Mr. Philbrick's report and the information he had obtained from Petitioners, Mr. DeGrazia concluded that Petitioners had committed "time clock fraud" in violation of Rule 34 of American's Rules of Conduct and that they therefore, in accordance with American's policy that "dishonesty will always result in termination" (as expressed in the PPC Policy), should be terminated. Before taking such action, Mr. DeGrazia consulted with Mr. Smith and "someone" from American's human resources department, who both "concurred" with Mr. DeGrazia that termination was the appropriate action to take against Petitioners. On August 12, 2004, Mr. DeGrazia issued Final Advisories terminating Petitioners' employment. The Final Advisory given to Mr. Castellanos read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2230-0700. During your scheduled shift you were assigned to complete an A-check on a 757 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when asked how it was possible for you to complete your assignment in such a short amount of time you stated that you were, "trying to complete the job as fast as I can because I was getting the urge of getting a drink." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, 17, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * The Final Advisory given to Mr. Pena read, in pertinent part, as follows: On Friday, July 30, 2004, your scheduled tour of duty was 2100-0530. During your scheduled shift you were assigned to complete two PS-checks on 737 aircraft. At approximately 0045, Corporate Security observed you leaving the premises and going into a nightclub in Coconut Grove. While there, you were observed at the bar drinking from a plastic cup. You were observed leaving the nightclub at 0315 and driving towards the airport. By your own account, you returned to the airport approximately 0400. During a company investigation, you admitted to leaving the premises, during your scheduled tour of duty and going to a restaurant/bar. Further, you admitted to consuming alcoholic beverages. Additionally, when you[] were asked if it is acceptable to go to lunch for 3-4 hours you stated, "no, according to Company Rules, it's not OK." Based on the above information I have concluded that your actions fall far short of that which may be reasonably expected of our employees and are a direct violation of American Airlines' Rules of Conduct, Rules 3, 4, and 34 . . . . In view of the above rule violations your employment with American Airlines is hereby terminated effective today, August 12, 2004. * * * That Petitioners were Hispanic played no role whatsoever in Mr. DeGrazia's decision to terminate them. Mr. DeGrazia terminated Petitioners because, and only because, he believed that they had engaged in dishonesty by committing "time clock fraud." Mr. DeGrazia has never encountered another situation, in his capacity as a production manager for American, where an aviation maintenance technician over whom he had disciplinary authority engaged in conduct comparable to the conduct for which he terminated Petitioners. No one has ever reported to him, nor has he ever observed, any aviation maintenance technician other than Petitioners taking "meal periods" that were longer than an hour while remaining "on the clock." Petitioners both grieved their terminations pursuant to Article 31 of the TWU Contract. Neither of them advanced any allegations of anti-Hispanic discrimination in his grievance. Petitioners' grievances were ultimately denied on September 9, 2004, by William Cade, American's managing director for maintenance. Petitioners appealed the denial of their grievances to the American and TWU Area Board of Adjustment for Miami, Florida (Board), in accordance with Article 32 of the TWU Contract, which provided for "final and binding" arbitration of disputes arising under the contract. A consolidated evidentiary hearing was held before the Board on April 28, 2005. At the hearing, Petitioners were represented by counsel. Through counsel, they called and cross- examined witnesses, submitted documentary evidence, and presented argument. Neither of them testified. The Board issued a decision on June 27, 2005, denying Petitioners' grievances. The TWU Board member dissented. The Discussion and Opinion portion of the decision read, in pertinent part, as follows: There is no dispute that the rule violations by grievants['] actions on July 30, 2004 constituted time card fraud and violation of rules relating to remaining at work. This was not some minor taking of time, such as overstaying lunch for a shortened period. It was a well-planned event. They had with them a change of clothes - in effect "party clothes" apropos to a late night-early morning South Florida nightclub. They had even done this several times before. Once at this nightclub they actually drank very little. Grievant Pena had two drinks and grievant Castellanos appeared to have just one. In fact, when he was later tested after his return to work almost five hours later, the result was negative for drugs and alcohol. Clearly, they failed to remain at work for their tours of duty in violation of Rules 3 and 4. These rules, however, do not by themselves call for immediate discharge nor do any of the Company documents relating to rules, such as its PPC, refer to them as serious violations that would incur discharge. The seriousness here concerns the grievants' badging out after their eight-hour tour and being paid for eight hours, almost five of which they did not work. There is no question that this is time card fraud and as such it involves dishonesty that is covered by Rule 34's "dishonesty of any kind." Numerous arbitrators for the parties have found such conduct to be violative of Rule 34 and have concluded that stealing time from the Company is dishonesty that requires immediate dismissal. * * * [T]he grievants engaged in this misconduct on multiple occasions that involved more than half of their shift being spent at a nightclub. And they knew it was wrong as they readily admitted when finally caught. Mitigation based on the grievants' EAP involvement is insufficient to overcome and reduce in any fashion their core responsibility to be honest employees and abide by all Company rules and regulations. The Company made this clear enough in its current Drug and Alcohol policy, and, as seen, other Boards have found it reasonable, as does this Board. To all of this the Union argues that there are other mitigating factors - seniority, disparate treatment, failure to consider employment records and a common practice permitting employees to extend lunch breaks. As to the latter, there is no evidence that any employee has been allowed to stay away from work for almost five hours with the knowledge or consent of management at any level. There is some evidence of employees overstaying the break by 30 minutes, of employees going for food for the crew and arriving back late and even some two-hour absences. None of this is comparable to the grievants' conduct. Nor is the evidence concerning supervisor Delgadillo enough to warrant the finding of a practice. She was not Pena's supervisor. She called grievant Castellanos' cell, but that alone does not mean that she knew he was off several hours at that point socializing and drinking in Coconut Grove on July 30 or at other times. She may have gone out with them while she was a mechanic, but the evidence does not show that she went for these long journeys to drink and socialize at a night club. Most importantly, the grievants never claimed a practice existed but instead readily admitted at the 29(f)s that their conduct was wrong and they violated Company rules. As to the disparate treatment incidents, although the dishonesty issue appears similar, different treatment only becomes disparate when the employees being compared also have factual situations and records that are similar. The comparators here did not leave work on more than one occasion, or on any occasion, for four hours or more to drink and socialize in a nightclub. Thus, Mora's 45-minute late punch-in resulted from his retrieving his drivers' license; he then immediately informed management of what he did. He did not have to be put under security surveillance for this type of conduct occurring in the past. Although his 30-minute extended lunch was part of the practice referred to above, it hardly qualifies as like conduct when compared to the grievants' activities. The claim by Vizcaino that he was sick when he used his Company travel privilege is the type of violation referred to the Travel Abuse Committee under a rule penalizing employees by suspending their travel privileges. The facts of that incident and the reasoning of this committee are not known to make any clear and relevant comparison. Even if accepted as a valid comparison, it is only one employee incident that by itself is insufficient to show that management disparately treated these grievants. Nor is their any proof that Rule 34 was involved in either of these situations. Manager DeGrazia disclosed that he did not consider the grievants' prior record or their seniority. He explained that the seriousness of their conduct was sufficient for his decision. The Board fully recognizes that the grievants cooperated during the investigation, had no prior discipline, and had seniority from 1989 and 1996. Each of these factors is significant in assessing the suitability of the penalties. But it is well established by the parties and even in arbitration cases involving outside parties, that in light of the gravity of time card fraud, these factors need not be evaluated. The Chairman notes nonetheless, that seniority and work records cannot be entirely ignored. But here, the grievants' propensity in the past to engage in this same outlandish conduct, and to do so undetected, significantly minimized, for mitigation purposes, much of their good record and seniority. Petitioners subsequently filed employment discrimination charges with the FCHR, alleging for the first time that their terminations were products of anti-Hispanic discrimination. There has been no persuasive showing made, in support in these allegations, that the decision to terminate them was motivated by anything other than legitimate business considerations.
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 the American not guilty of the unlawful employment practices alleged by Petitioners and dismissing their employment discrimination charges. DONE AND ENTERED this 15th day of May, 2006, 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 15th day of May, 2006.
The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 2005.
The Issue Has Respondent Try Fresh Produce, Inc. (Try Fresh) made proper accounting to Petitioner Green Grassing Company, Inc. (Green Grassing) in accordance with Section 604.22(1), Florida Statutes, for agriculture products delivered to Try Fresh from November 13, 1994, through December 9, 1994, by Green Grassing to be handled by Try Fresh as agent for Green Grassing on a net return basis as defined in Section 604.15(4), 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: At all times pertinent to this proceeding, Green Grassing was in the business of growing and selling "agricultural products" as that term is defined in Section 604.15(3), Florida Statute, and was a "producer" as that term is defined in Section 604.15(5), Florida Statutes. At all times pertinent to this proceeding, Try Fresh was licensed as a "dealer in agricultural products" as that term is defined in Section 604.15(1), Florida Statutes, as evidenced by license number 8839 issued by the Department, supported by bond number BD 0694273 in the amount of $75,000, written by Florida Farm Bureau General Insurance Company with an inception date of September 23, 1994, and an expiration date of September 22, 1995. Green Grassing delivered certain quantities of agricultural products (squash) to Try Fresh during the fall and winter growing season of 1994-95. However, it is the accounting of the squash that was delivered between November 13, 1994, and December 9, 1994, inclusive, that is in dispute. It was verbally agreed between Try Fresh and Green Grassing that Try Fresh would act as Green Grassing's agent in the sale of the squash delivered to Try Fresh for the account of Green Grassing on a net return basis. There is no dispute as the quantity of squash or size of squash delivered by Green Grassing to Try Fresh during the above period of time. Furthermore, there is no dispute as to the charges made by Try Fresh for handling the squash, including but not limited to the commission charged by Try Fresh. There is some disagreement concerning the quality of the squash delivered by Green Grassing. However, none of the witnesses had personal knowledge as to the quality of the squash delivered by Green Grassing. Upon delivering the squash to Try Fresh, Green Grassing was given a numbered delivery receipt listing Green Grassing as owner of the squash showing the number of cartons delivered, the date delivered, the initials of the employee receiving the squash and the kind and size of squash delivered. On most of these receipts there were four blank squares located just above the line for the date on the receipt. Starting from the left side of the receipt, the squares represent average, below average, poor and very poor quality, respectively. It was the responsibility of the employee receiving the squash for Try Fresh to place a check mark in one of the squares to indicate the quality of the squash upon delivery. Only the accounting for the squash from delivery receipt ticket numbers 086 dated November 13, 1994; 005 dated November 15, 1994; 017 dated November 16, 1994; 047 dated November 17, 1994; 451 dated November 18, 1994; 463 dated November 19, 1994; 500 dated November 23, 1994; 501 dated November 25, 1994; 397 dated December 5, 1994, and 329 dated December 9, 1994, is being contested in this proceeding. The delivery receipts being contested are included in Petitioner's composite exhibit 1 and Respondent's composite exhibit 1. A compilation of those delivery receipts is attached to the Complaint in Petitioner's composite exhibit 2. Once Try Fresh found a market for the squash, a pre-numbered billing invoice was prepared by Try Fresh showing its customer's name and the quantity, description and price of the squash sold. In any given sale, the quantity of the squash sold may include squash furnished by Green Grassing and other producers. Therefore, under description on the billing invoice Try Fresh would show the size and type of squash being sold, the initials of the producer, the quantity of squash being sold for that producer and the producer's receipt number for example, med. s/n GGI 68/086. In its accounting to Green Grassing, Try Fresh prepared a statement which included the delivery receipt number, the quantity of squash sold, description of the product, i.e. med, s/n squash, the price per carton of squash and the total amount for the quantity sold. The statements also noted when a certain quantity of a squash had been transferred to another ticket number or if a trouble memo number (T number) was involved in a particular sale. Payment for the squash was made by Try Fresh to Green Grassing from these statements. Sometimes payment was for only one delivery receipt while at other times for several delivery receipts for different dates. The statements are included as part of Petitioner's composite exhibit 5. Petitioner's composite exhibit 4 is the Florida Vegetable Report, Volume XIV, Nos. 21 - 25 and 27 - 39, dated November 10, 14, 15, 16, 17, 21, 22, 23, 28, 29, 30, 1994 and December 1, 2, 5 - 9, 1994, which establishes prices paid during this period of time for small and medium straight neck squash. The report does not list prices paid for large straight neck squash. There is no evidence that the quality of the squash delivered to Try Fresh by Green Grassing during this period of time was the same quality of squash from which the prices in the report were derived. On November 13, 1994, Green Grassing delivered 32 cartons of small, straight neck squash (sm s/n squash), 145 cartons of medium, straight neck squash (med s/n squash), and 42 cartons of large, straight neck squash (lg s/n squash) to Try Fresh as reflected in delivery receipt number 086 dated November 13, 1994, showing Green Grassing as owner of the squash. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 086 to indicate the quality of the squash at the time of delivery to Try Fresh on November 13, 1994. There is no dispute as to accounting of the 145 cartons of medium, straight neck squash reflected on delivery receipt 086. Try Fresh's statement of accounting to Green Grassing dated November 25, 1994 (page 5 of Petitioner's composite exhibit 5) indicates that the 32 cartons of small , s/n squash listed on receipt number 086 were transferred to receipt number 258 with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on a statement dated December 2, 1994 (page 13 of Petitioner's composite exhibit 5) with the price left open and no payment made to Green Grassing. The next entry concerning these 32 cartons of squash appears on an undated statement (page 21 of Petitioner's composite exhibit 5) with reference made to trouble memo (T number 0040) with the price is left open and no payment made to Green Grassing. There is no further reference to these 32 cartons of squash (delivery receipt 086, ticket 258 or T number 0040) in the statement of accounting. There is no evidence that Green Grassing was paid for the 32 cartons of sm s/n squash as reflected by delivery receipt number 086. There is no indication on billing invoice number 065562 that the 32 cartons of sm, s/n squash from delivery receipt number 086 were included in the 240 cartons of sm, s/n squash shipped to Georgia Vegetable Co. as was the normal practice by Try Fresh as set out in Finding of Fact 7. Furthermore, there is insufficient evidence to show that the 32 cartons of squash were found to be below quality by a federal inspection (Certificate No. M-460187-8) on November 17, 1994, which resulted in Try Fresh receiving a reduced price of $1.71 per carton as shown on T number 0017 (trouble memo). This amount was paid to Green Grassing as shown by statement of accounting dated December 23, 1994, (see page 28 Petitioner's composite exhibit 5). However, those 32 cartons of squash were identified as transfer ticket number 259 which relates to delivery receipt number 005 dated November 15, 1994, not delivery receipt number 086 (see pages 9 and 13 of Petitioner's composite exhibit 5). Try Fresh has failed to account to Green Grassing for the 32 cartons of sm, s/n squash delivered on November 13, 1994, as reflected by delivery receipt number 086. Based on the prices Try Fresh billed and was paid for sm, s/n squash by its customer (including sm s/n squash belonging to Green Grassing) during this period, a price of $8.00 per carton would be reasonable price. Try Fresh owes Green Grassing for 32 cartons of sm s/n squash at $8.00 per carton for a total of $256.00. Try Fresh's statement of accounting dated November 25, 1994, (page 5 Petitioner's composite exhibit 5) shows 10 cartons of lg, s/n squash from delivery receipt number 086 as being transferred to ticket number 258 with a note of trouble memo (T number 0036) with the price left open and no payment to Green Grassing. The same page of the statement shows 21 cartons of lg, s/n squash from delivery receipt number 086 being dumped due to poor quality without payment to Green Grassing. The same page shows 11 cartons of lg, s/n squash being transferred to ticket number 258 without any explanation or payment to Green Grassing. These 11 cartons are accounted for at $2.00 per carton for a total of $22.00 on page 21 of Petitioner's composite exhibit 5. There is no evidence (testimony, trouble memo or federal inspection) to show why the 11 cartons of squash brought only $2.00 per carton when lg s/n squash from delivery ticket number 086 were billed out at $8.00 per carton on November 19, 1994 (see billing invoice number 065593). Likewise, there was no evidence as to who purchased these squash. Try Fresh's billing invoice number 065593 shows 50 cartons of lg, s/n squash being billed to G & B at 8.00 per carton which included 10 cartons of lg, s/n squash belonging to Green Grassing from delivery receipt number 086. Trouble Memo (T number 0036) shows a problem with the 50 cartons of lg, s/n squash shipped to G & B Produce on November 19, 1994, and reported on November 23, 1994, which resulted in the price being reduced to $2.50 per carton. Although sketchy, Respondent's accounting for the 10 cartons of squash on T number 0036 and the 21 cartons of squash dumped is sufficient. However, there is insufficient accounting for the 11 cartons of squash. Try Fresh owes Green Grassing $6.00 per carton, the difference between the billed price of $8.00 per carton and the $2.00 per carton paid, for 11 eleven cartons of squash for a total of $66.00. On November 15, 1994, Green Grassing delivered 198 cartons of med, s/n squash and 118 cartons of sm, s/n squash to Try Fresh as evidence by delivery receipt number 005 dated November 15, 1994. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 005 to indicate the quality of the squash at the time of delivery to Try Fresh on November 15, 1994. There is no dispute as to 98 cartons of med, s/n squash and 9 cartons of sm, s/n squash. Try Fresh paid $1.00 per carton for the balance of 100 cartons of med, s/n squash listed on delivery receipt number 005 that is in dispute on February 3, 1995, by check number 2217 (see pages 35 and 36 of Petitioner's composite exhibit 5). However, there is no evidence to show that at the time these med, s/n squash were received by Try Fresh's customer, who allegedly reduced the price to Try Fresh, that the squash was of inferior quality and would demand a price of only $1.00 per carton when those same squash brought an average of $11.00 per carton from other Try Fresh customers. Try Fresh has failed to make a proper accounting for the 100 cartons of med, s/n squash. Try Fresh owes Green Grassing the difference of $10.00 per carton for 100 cartons of squash for a total amount of $1,000.00. The 99 cartons of sm, s/n squash reflected on delivery receipt number 005 that are in dispute were paid for by Try Fresh at the rate of $10.40 per carton for 77 cartons and $1.71 per carton for 32 cartons. Although 77 cartons were billed out at $12.00 per carton (see billing invoice number 065592), there is sufficient evidence (T number 0022) to support the reduction in price to $10.40 per carton. However, there is insufficient evidence to show the reduction in price to $1.71 per carton for the 32 cartons. Try Fresh has failed to make proper accounting for the 32 cartons. Try Fresh owes Green Grassing $8.69 per carton, the difference between $10.40 per carton that was paid for the 77 cartons and the $1.71 paid for the 32 carton for a total amount of $278.08. On November 16, 1994, Green Grassing delivered 64 cartons of med, s/n squash and 25 cartons of sm, s/n squash to Try Fresh as reflected by delivery receipt number 017. None of the squares are checked and there is nothing in the remarks section of delivery receipt number 017 to indicate the quality of the squash at the time of delivery to Try Fresh on November 16, 1994. On November 25, 1994, Try Fresh paid Green Grassing $12.00 per carton for 21 cartons of med, s/n squash and $12.00 per carton for 25 cartons of sm, s/n squash by check number 1447 as shown on pages 4 through of Petitioner's composite exhibit 5. However, page 28 of Petitioner's composite exhibit shows a zero amount for 25 cartons of sm, s/n squash reference to delivery receipt number 017. This is apparently an error, as is T number 0033 (Trouble Memo). Try Fresh also paid $12.00 per carton for the 43 cartons of med, s/n squash by check number 2009 dated January 6, 1995 (see pages 31 and 32 of Petitioner's composite exhibit number 5). There has been proper accounting by Try Fresh of the squash reflected by delivery receipt number 017. On November 17, 1994, Green Grassing delivered 93 cartons of sm, s/n squash and 161 cartons of med, s/n squash to Try Fresh as reflected by delivery receipt number 047. None of the squares are checked and there is nothing in the remarks section of delivery receipt 047 to indicate the quality of the squash at the time of delivery to Try Fresh on November 17, 1994. Only the accounting of the 93 cartons of the sm, s/n squash is disputed. On November 18, 1994, Try Fresh billed out 13 cartons of sm, s/n squash from delivery receipt number 047 to Georgia Vegetable on billing invoice number 065592 at $12.00 per carton. Try Fresh was advised by Georgia Vegetable of a problem. Trouble memo (T number 0022) was prepared by Try Fresh which indicated that after working with Georgia Vegetable a price of $10.40 per carton was agreed upon. Green Grassing was paid $10.40 per carton (see page 30 of Petitioner's composite exhibit number 5). Try Fresh has made proper accounting of these squash. On November 19, 1994, Try Fresh billed out 80 cartons of sm, s/n squash from delivery receipt number 047 to Phil Lucks on billing invoice number 65596 at an undetermined price (the price had been redacted on the billing invoice). Although trouble memo (T number 0032) indicates a problem (brown & decay) with 100 cartons of sm, s/n squash shipped on November 22, 1994, there was no evidence that these were the same squash billed on billing invoice number 065596. Try Fresh has failed to present sufficient evidence to show why these squash did not bring the same price the other sm, s/n squash on delivery receipt number 047 brought. Try Fresh has failed to properly account for these 80 cartons of squash. Therefore, Try Fresh owes Green Grassing $10.40 per carton for 80 cartons of squash for a total of $832.00. On November 18, 1994, Green Grassing delivered 33 cartons of lg, s/n squash, 41 cartons of med, s/n squash and 20 cartons of sm, s/n squash to Try Fresh as evidenced by delivery receipt number 451 dated November 18, 1994. The delivery receipt indicates that the squash was of very poor quality when delivered. The 20 cartons of sm, s/n squash was billed to T & M at $6.00 per carton. Although there is a trouble memo (T number 0025), it appears that Green Grassing was paid $6.00 per carton for these 20 cartons of squash. There is no evidence that these squash were of the same quality as those referenced in the Florida Vegetable Report for this period of time which could demand a price of $12.00 per carton as argued by Green Grassing. Furthermore, Green Grassing has produced no evidence that Try Fresh received $12.00 per carton for these squash. Try Fresh has made proper accounting of the 20 cartons of sm, s/n squash reflected in delivery receipt number 451. The 33 cartons of lg, s/n squash from delivery ticket number 451 required re-grading by Try Fresh. After re-grading, 16 cartons were not fit for sale. The 17 cartons of lg, s/n squash remaining after re-grading were sold by Try Fresh for $6.00 per carton. This amount was paid to Green Grassing by check number 1812 dated December 23, 1994, (see pages 27 and 28 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting for the 33 cartons of squash reflected in delivery receipt number 451. The 41 cartons of med, s/n squash from delivery ticket number 451 was invoiced at an undetermined price (priced appeared to be redacted from the invoice) on billing invoice number 065582. Trouble memo (T number 0033) indicates that the 41 cartons of med, s/n squash from billing invoice number 065582 were brown and decayed and were rejected by Lucks. Try Fresh has made proper accounting of these 41 cartons of squash reflected in delivery receipt number 451. On November 19, 1994, Green Grassing delivered 32 cartons of sm, s/n squash, 54 cartons of med, s/n squash and 3 lg, s/n squash to Try Fresh as reflected by delivery receipt number 463. The delivery receipt indicates that the squash were of poor quality when delivered to Try Fresh on November 19, 1994. There is no dispute as to the accounting of the 54 cartons of med, s/n squash. On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $16.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $400.00 (see pages 12 and 15 Petitioner's composite exhibit 5). On January 5, 1995, by check number 2009, Try Fresh paid Green Grassing $4.00 per carton for 25 cartons of sm, s/n squash from delivery receipt number 463 for a total of $100.00 (see pages 31 and 32 of Petitioner's composite exhibit 5). On December 2, 1994, by check number 1568, Try Fresh paid Green Grassing $1.00 per carton for 7 cartons of sm, s/n squash for a total of $7.00 from delivery ticket number 463. Try Fresh has paid Green Grassing a total of $507.00 for the sm, s/n squash from delivery receipt number 463. However, thirty two cartons of sm, s/n squash at $16.00 per carton would total $512.00. Since there is no evidence to support a price less than the $16.00 per carton paid by Try Fresh on December 2, 1994, Try Fresh owes a Green Grassing a balance of $5.00. There is sufficient evidence to show that the 3 cartons of lg, s/n squash from delivery receipt number 463 were re-graded and none were salvaged. Other than the $5.00 above, Try Fresh has made proper accounting of the squash reflected in delivery receipt number 463. On November 23, 1994, Green Grassing delivered 16 cartons of sm, s/n squash, 44 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 500 dated November 23, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 23, 1994. There is no dispute as to the 16 cartons of sm. s/n squash or the 44 cartons of med, s/n squash. The 5 cartons of lg, s/n squash from delivery receipt 500 were sold to American Growers by Try Fresh for $4.00 per carton as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 500, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On November 25, 1994, Green Grassing delivered 18 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 5 cartons of lg, s/n squash to Try Fresh as reflected in delivery receipt number 501 dated November 25, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on November 25, 1994. There is no dispute as to the accounting for the 18 cartons of sm, s/n squash or the 68 cartons of med, s/n squash. The 5 cartons of lg, s/n squash were sold to American Growers for $4.00 per carton by Try Fresh as reflected in billing invoice number 065628 dated November 25, 1994. Green Grassing was paid this amount by Try Fresh (see pages 19 and 23 of Petitioner's composite exhibit 5). Try Fresh has made proper accounting of the squash reflected in delivery receipt number 501, notwithstanding the price listed in the Florida Vegetable Report for this period of time. On December 5, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 68 cartons of med, s/n squash and 16 cartons of lg, s/n squash to Try Fresh as reflected in the delivery receipt number 397 dated December 5, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 5, 1994. The 2 cartons of sm, s/n squash were sold on December 6, 1994, at $8.00 per carton as reflected in billing invoice number 065749 dated December 6, 1994. Sixteen cartons of the med, s/n squash were sold on December 6, 1994, to K & M South for $8.00 per carton as reflected in billing invoice number 065003 dated December 6, 1994. Twenty seven cartons of the med, s/n squash were sold to Tom Lange Co. for $10.00 per carton as reflected in an unnumbered billing invoice dated December 9, 1994 with customer order no. 23- 4020. Twenty five cartons of the med, s/n squash were sold to G & B for $10.00 per carton as reflected in an unnumbered billing invoice dated December 10, 1994, with customer order number 8130. Sixteen cartons of lg, s/n squash were sold to Erenbaum for $5.00 per carton as reflected in an unnumbered billing invoice dated December 6, 1994 with customer number 9472. Although these prices are below prices quoted in the Florida Vegetable Report for December 6 - 9, 1994, for small and medium s/n squash (no prices quoted for large, s/n squash), the prices are consistent with prices Try Fresh was receiving during this same period for small, medium and large s/n squash that it handled for other producers. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 397, notwithstanding the prices listed in the Florida Vegetable Report for this period of time. On December 9, 1994, Green Grassing delivered 2 cartons of sm, s/n squash, 31 cartons of med, s/n squash and 17 lg, s/n squash to Try Fresh as reflected in delivery receipt number 329 dated December 9, 1994. None of the squares are checked and there is nothing in the remarks section of the delivery receipt to indicate the quality of the squash delivered to Try Fresh on December 9, 1994. There is no dispute as to the accounting of the 2 cartons of small and 31 cartons of medium squash. The 17 cartons of large, s/n squash were billed to Erenbaum in billing invoice number 065035 dated December 9, 1994. It appears that the price originally billed to Erenbaum's was redacted and zero per carton written on billing invoice. A federal inspection was called for and the squash were found to be below quality. This resulted in a zero return on the squash. Try Fresh has made proper accounting for the squash reflected in delivery receipt number 329. From a review of Try Fresh's records placed into evidence that its accounting to Green Grassing was not always in accordance with Section 604.22(1), Florida Statutes. Particularly, there was no record of the quality of the squash, no explanation of the adjustments to the original price, or if an explanation was given, it was not clear and no record of when payment was received by Try Fresh from the purchaser making it difficult to determine the timeliness of the accounting of the sales and payment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent Try Fresh Produce Co., be ordered to pay Petitioner Green Grassing Co., Inc. the sum of $2,437.08. DONE AND ENTERED this 28th day of July, 1995, in Tallahassee, Florida. WILLIAM R. CAVE, 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 28th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1532A The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted jointly by the Respondents Aetna and Naples in this case. Both Petitioner Green Grassing Co., Inc. and Respondent Try Fresh Produce, Co. elected not to file proposed findings of fact and conclusions of law as allowed under Section 120.57(1)(b)(4), Florida Statutes. COPIES FURNISHED: J. Ragon Barnett, III 6 East Broadway Street Ft. Meade, Florida 33841 Hank Cord Post Office Box 995 Zolfo Springs, Florida 33890 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Bureau of Licensing & Bond Department of Agriculture and Consumer Services Mayo Building, Room 508 Tallahassee, Florida 32399-0800
The Issue The issue in this case is whether petitioner's claim against the bond posted by respondent with the Department of Agriculture and Consumer Services should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Faye C. Terry, has filed a claim against the bond in the amount of $915.00 alleging that Passport failed to perform on certain contracted services. In August 1990, petitioner purchased a travel certificate entitling the holder to a five-day, four-night vacation package to the Bahamas for $329.00. The certificate was purchased from United Marketing Group (United), an Ohio telemarketeer authorized to sell the certificates on Passport's behalf. The certificate carried the name, logo, address and telephone number of Passport. The certificate purchased by petitioner expired in August 1991. When petitioner discovered she could not use the certificate by the expiration date, on August 26, 1991, she paid a $50.00 fee to Passport to extend the life of the certificate for an additional year, or until August 30, 1992. In June 1991, all of the assets and liabilities of Passport were acquired by Incentive Internationale Travel, Inc. (Incentive), a corporation having the same address, telephone number, owners, and personnel as Passport. In addition, Passport's status as a corporation was dissolved at a later date in 1991. Even so, Incentive continued to fulfill all travel certificates sold by Passport, and all travel described in those certificates was protected by Passport's bond. Petitioner originally requested to use her travel certificate in August 1991 and sent Passport a $90.00 reservation deposit in conjunction with her request. When she was unable to travel on that date due to a personal conflict, she requested to use her certificate in June 1992. She was told that no accommodations were available. Instead, she was booked to travel in August 1992. Accordingly, on July 12, 1992, she paid Incentive for the cost of an additional traveler (her mother) to accompany her on the trip plus extra accommodations in Fort Lauderdale and certain fees and taxes. Her total payment to Passport and its successor now totaled $915.00. In a form letter dated July 24, 1992, or just twelve days after the additional monies were paid by petitioner, Incentive advised her that it had filed for bankruptcy that same date and that her trip "has been cancelled." She was told that the bankruptcy court would send her a form to file a claim for a refund. To date, she has received no refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $915.00 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of December, 1994. COPIES FURNISHED: Faye C. Terry Post Office Box 1092 Laurens, South Carolina 29360 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, Cassandra Cook, has filed a claim against the bond for $349.50 alleging that Passport failed to perform on certain contracted services. On April 20, 1989, petitioner received a solicitation telephone call from Global Travel inviting her to purchase a travel certificate entitling her and a companion to a five-day, four-night cruise to the Bahamas. Global Travel was a Tennessee telemarketeer selling travel certificates on behalf of Passport. Petitioner agreed to purchase the certificate and authorized a $349.50 charge on her credit card payable to Global Travel. Thereafter, petitioner received her travel certificate, brochure and video, all carrying the name, address and logo of Passport. In order to use the travel certificate, it was necessary for petitioner to fill out the reservation form with requested dates and return the form, certificate, and a deposit to Passport. Before doing so, petitioner repeatedly attempted to telephone Passport's offices in Daytona Beach to obtain additional information and to inquire about the availability of certain travel dates but was never able to speak to anyone because of busy lines. She then requested a refund of her money and simultaneously filed a complaint with the Department in January 1990. In responding to the complaint in February 1990, Passport denied liability on the ground petitioner was obligated to "deal directly with the company that has charged her credit card as that is who has her money." By then, however, Global Travel was out of business. To date, petitioner has never received a refund of her money.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted, and she be paid $349.50 from the bond. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of December, 1994. COPIES FURNISHED: Cassandra Cook 3818 Firdrona Drive, N. W. Gig Harbor, Washington 98332 Julie Johnson McCollum 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
Findings Of Fact In January 1984, Respondent Department of Transportation (DOT) published a Request for Proposal for travel services (RFP). After receiving proposals, Respondent reconsidered its financial statement requirement and returned all proposals. DOT then published a second RFP deleting the financial statement requirement. In its second RFP, Respondent stated: The Department intends to award the contract to the responsive and responsible proposer whose proposal is determined to be the most advantageous to the Department. A responsive proposer is one who has submitted a proposal which conforms in all material respects to this Request for Proposal . . . As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Proposers are cautioned to make no assumptions unless their proposals have been evaluated as being responsive. The RFP directed that all proposals include a resume of the travel agency, explaining the abilities that make it best qualified to perform the required services and information relating to years of experience, ownership, minority ownership, volume of business, proof of membership in Air Traffic Conference (ATC) and International Air Transport Association (IATA), number of persons employed, number of persons to be assigned to DOT business, and computer/communications facilities. The required minimum services specified in the RFP included: 1) planning fares and itineraries; 2) scheduling and arranging airline and rental car reservations; 3) issuing and delivering airline tickets; 4) processing unused tickets; 5) providing sufficient direct communications to DOT; 6) providing rental car confirmation numbers; 7) ensuring social security numbers recorded on tickets; 8) providing copies of used tickets for billing reconciliation purposes; 9) providing a monthly financial statement in a prescribed format, and 10) providing monthly summary analysis of travel trends and patterns. Each travel agency was also required to list any additional services it proposed to provide that were not included in the minimal travel service requirements and to list the additional services to be incorporated in the executed contract. In order to determine the proposal which offered the most advantageous combination of services, Respondent developed a rating scale for the assignment of points to each additional service proposed according to its value (zero points for no value, one point for limited value, two points for reasonable value, and three points for significant value). Respondent intended that the agency proposing the most advantageous combination of services would receive the highest number of points and therefore award of the contract. Proposals were submitted by eight travel agencies. The proposals were evaluated by Respondent and points were assigned on the zero to three point rating scale. Intervenor's score was highest with 24 points. Petitioner's proposal was second with 14 points. Respondent initially announced its intention to award the contract to Intervenor, but thereafter advised proposers that it intended to reject all proposals and withdraw the intended award. Respondent's intent to withdraw is based on its admitted failure to announce criteria. This failure allowed bidders to obtain points for services of questionable or non-existent value. Petitioner, for example, received one point for Telex service which was not available when the proposal was submitted and still not installed at the time of final hearing. The ratings were highly subjective as indicated by the disagreement of witnesses over the value of various services. Intervenor, for example, received several points for such questionable services as a newsletter, proposed workshops and staff visits. However, Respondent's principal rater supported his reasons for assignment of points on a rational basis. He conceded only a one point change in Petitioner's score and no change in Intervenor's score. Both Intervenor and Petitioner claim advantages for the reliability and range of services provided by their computer systems. Respondent lacked the expertise necessary to resolve these competing claims with the precision demanded by Petitioner. However, the evidence offered at hearing by Petitioner in support of its claims of system superiority was largely self serving and unsubstantiated by any studies or performance data.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a Final Order denying the petition of Universal Travel and Tours, Inc. DONE and ENTERED this 9th day of August, 1984, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1984. COPIES FURNISHED: Thomas M. Beason, MOYLE, JONES & FLANIGAN 118 North Gadsden Street, Suite 100 Tallahassee, Florida 32301 Mark A. Linsky, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building Tallahassee, Florida 32301 William L. Grossenbacher, Esquire BORNE, RHODES, & JAFFRY Post Office Box 1140 Tallahassee, Florida 32302 Paul N. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
Findings Of Fact On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989. The following appears in Paragraph 1.1 of the RFP, in the introductory section: 1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ... The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section: 5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section: 6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks: A. Deliver tickets, itineraries and other travel documents to the specific office or school requesting same. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency. Petitioner's response to Paragraph 6.1(A) was as follows: Ticket Delivery: will be made as follows: An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property. Deliveries will be made to other offices as follows: Scheduled. Emergency. Delivery receipts. Via agency and outside courier service. ETA's response to Paragraph 6.1(A) was as follows: E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below: E.T.A.'s radio dispatched couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day. At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours. In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required. Deliveries to west area schools and school board offices are provided through the school board's "pony express" mail system, time permitting, or through federal express overnight delivery services. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service. E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order which rejects the bid protest filed by International Tours of Juno Beach and which accepts the proposal submitted by ETA Travel Agency. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact. 8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent: The proposed findings of fact in paragraph 1 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order. COPIES FURNISHED: Donald R. Fountain, Jr., Esquire Lytal & Reiter 515 North Flagler Drive Post Office Box 024466 West Palm Beach, Florida 33402-4466 Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard Suite 7010 Palm Beach Gardens, Florida 33410 Thomas J. Mills Superintendent of Schools The School Board of Palm Beach County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all relevant times, respondent, Passport Internationale, Inc. (Passport or respondent), was a seller of travel registered with the Department of Agriculture and Consumer Services (Department). As such, it was required to post a performance bond with the Department conditioned on the performance of contracted services. In this case, petitioner, William L. Taylor, has filed a claim against the bond in the amount of $605.95 alleging that Passport failed to perform on certain contracted services. At hearing, petitioner agreed that his claim should be reduced by $300.00 to take into account a settlement offer in that amount received from Passport. By way of background, Passport's assets and liabilities were assumed by Incentive Internationale Travel, Inc. (Incentive) in June 1991, and its status as a corporation was dissolved sometime in late 1991. However, Incentive continued to sell Passport's travel certificates after the merger of the two corporations, and all travel described in those certificates was protected by Passport's bond. In response to an offer in a local newspaper for a "bargain trip" to the Bahamas, on June 25, 1991, petitioner mailed a cashier's check in the amount of $605.95 payable to Incentive Internationale Travel, a telemarketeer in Tennessee using a name almost identical to Incentive and who was operating under the auspices of Open Door, Inc. (Open Door), another telemarketeer whose business location is unknown. Open Door had purchased approximately 1,000 travel certificates from Passport for resale to the public. Passport had agreed to honor and fulfill all travel certificates sold by Open Door or its agents. The travel certificates carried the name, address and logo of Passport. During his discussions with the telemarketeer, petitioner was never told that his requested travel dates might be unavailable. Had he been so advised, he would not have purchased the certificates. After receiving his travel certificates, on September 10, 1991, petitioner mailed them with a check in the amount of $270.00 to Passport. He requested that his travel begin on Monday, November 25, 1991. That date was critical because he wished to celebrate his 50th wedding anniversary in the Bahamas. On September 30, 1991, Passport advised petitioner by letter that it could not honor his request for travel on November 25, 1991, and offered alternative dates. He was also offered the option of receiving a refund of his money. Petitioner immediately requested a refund. When petitioner received a refund of only $270.00, and not the $605.95 previously paid to the telemarketeer, he filed a complaint with the Department. On November 20, 1991, Incentive advised petitioner that because Open Door had gone out of business, and Passport had never received the $605.95 paid to the telemarketeer, it had no obligation to make a refund of the remainder of his money. Sometime later, however, Incentive sent to petitioner a check in the amount of $300.00 in an effort to settle the case. Petitioner deposited the check but claims he is still owed $305.95.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the claim of petitioner against the bond of respondent be granted in the amount of $305.95. DONE AND ENTERED this 12th day of December, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of December, 1994. COPIES FURNISHED: William L. Taylor 185 Tower Lakes Lake Wales, Florida 33853 Michael J. Panaggio 2441 Bellevue Avenue Daytona Beach, Florida 32114 Robert G. Worley, Esquire 515 Mayo Building Tallahassee, Florida 32399-0800 Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard D. Tritschler, Esquire The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether the Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, is arbitrary and capricious and thus constitutes an invalid exercise of delegated authority?
Findings Of Fact The Petitioner, Hialeah, Inc., operates a race track (hereinafter referred to as the "Track") located in Dade County, Florida. The Petitioner is licensed by the Respondent. In December, 1981, the Petitioner was granted permission by letter from Bob Smith, then Director of the Respondent, the Department of Business Regulation, Division of Pari-Mutuel Wagering, to operate Tel-A-Betting. Robert Rosenburg, Director of the Respondent after Mr. Smith, also approved Tel-A- Betting in a letter to the Petitioner. The Petitioner has continuously operated Tel-A-Betting for more than six years. The Petitioner instituted Tel-A-Betting in reliance on the Respondent's approval of Tel-A-Betting. If approval had not been granted to the Petitioner from the Respondent, the Petitioner would not have established Tel-A-Betting. Tel-A-Betting is a procedure for placing wagers on races at the Petitioner's Track. Persons utilizing this system (hereinafter referred to as "Account Holders"), open an account with the Petitioner by making a deposit of $100.00 or more with the Petitioner and paying a $25.00 fee. The funds deposited with the Petitioner are received and accounted for in accounts maintained at the Track. Once an account is opened, a plastic card which contains, among other information, an account number and an "800," toll-free, telephone number is issued to the Account Holder. Wagers may then be placed with the Petitioner by the Account Holder calling the "800" number and placing a wager with a telephone operator/pari-mutuel clerk located at the Track. The Account Holder identifies himself or herself by giving the operator the account number and a code name designated by the Account Holder when the account is opened. The account number is programmed into a computer to determine whether the Account Holder has sufficient funds in the account to make the wager. If the funds in the account are sufficient to cover the wager, the wager is entered into the computer. If the Account Holder wins the wager, the payoff is entered into his or her account. Calls to place wagers through the Tel-A-Betting program can be made from anywhere in Florida and the person making the call and wager need not be physically present at the Track to make the wager. Wagers taken through Tel-A-Betting are only made on races at the Track. Tel-A-Betting allows the Petitioner to receive wagered funds as part of its pari-mutuel pool from persons located anywhere in the State of Florida. When a wager is made through Tel-A-Betting, the operator/pari-mutuel clerk cannot establish the age or identity of the person placing the wager. The Petitioner is the only race track permit holder in the State of Florida which employs Tel-A-Betting. The Proposed Amendment of Rule 7E-6.007, Florida Administrative Code, if valid, will prohibit the Petitioner from continuing the use of Tel-A-Betting. The Respondent has not received any complaints about the use of Tel-A- Betting by minors or any other abuses. No evidence was presented that minors have made, or attempted to make, wagers through the use of Tel-A-Betting. The Respondent has not received any objections to Tel-A-Betting or complaints about unfair competition from other racetrack permit holders.
The Issue Whether respondent discriminated against petitioner on account of her race in terminating her employment?
Findings Of Fact On May 2, 1985, even before Builders Square, Inc., opened Store No. 1423 at 1412 West Fairfield Drive in Pensacola, Sharon Jackson, an African American woman, started work, putting price tags on merchandise. When the doors opened, on May 22, 1985, she began as a "ticket checker." Stationed by an exit, she punched customers' invoices, once she determined the invoice accurately reflected the merchandise the customer proposed to leave the store with. She continued in this capacity until her employment ended. Builders Square, Inc., hired Ms. Jackson as a "Part Time Non Regular," Respondent's Exhibit No. 1, cashier at an hourly rate of $3.50. On June 7, 1985, she became a regular or permanent part-time employee and received a raise to $4.00 an hour. Respondent's Exhibit No. 2. Effective July 1, 1985, she became a full-time employee, and was reclassified: she went from "CASH I 423628 [to] TKTCMZ 423628." Respondent's Exhibit No. 3. Her wages rose again, on October 21, 1985, this time to $4.50 an hour. Respondent's Exhibit No. 4. In December of 1985, because "sales were not at budget that particular week," (T.56) a pre-Christmas reduction in the work force was decided upon. Denny Dennis, the store manager, and Roger Hittinger, assistant store manager, both white men, "went through the store and looked at areas where [they] could eliminate some employees." (T.44) They decided to abolish one of two ticket checker positions, and to terminate Sharon Jackson's employment. On Friday, December 13, 1985, they informed her she no longer had a job, as of the close of business. Cynthia Priaulx, a white woman, held the only other ticket checker position on December 13, 1985. Ms. Priaulx began work for Builders Square, Inc., on May 13, 1985, as a full-time, permanent salesperson at an hourly rate of $4.75. Respondent's Exhibit No. 9. On August 12, 1985, she became a ticket checker, but her status did not change otherwise, and her wages remained the same. Susan D. Kirkland, another white woman, began working for Builders Square, Inc., as a "Part Time Non Regular," Respondent's Exhibit No. 11, cashier at an hourly rate of $3.50, just as petitioner Jackson had done, although she started some 20 days after Ms. Jackson. Effective July 1, 1985, Susan Kirkland became a regular or permanent part-time employee and received a raise to $4.00 an hour, Respondent's Exhibit No. 12, changes that had occurred, in Ms. Jackson's case, 23 days earlier. Also on July 1, 1985, Ms. Kirkland, like Ms. Jackson, was reclassified: she, too, went from "CASH I 423628 [to] TKTCKR 423628." Respondent's Exhibit No. 12. Effective October 23, 1985, however, she was reclassified from "TKTCKR 423628 [to] CASH 1 423628." Respondent's Exhibit No. 13. Ms. Kirkland had not attained full-time status as of December 13, 1985, as far as the record reveals. Even after October 22, 1985, when ticket checker positions were reduced to two, Ms. Kirkland, who generally worked evenings, sometimes filled in as a ticket checker as did, occasionally, the store managers as well. Even though she did not always work as a cashier, Ms. Kirkland was paid as a cashier after October 22, 1985, and for that reason, missed out on the raise to $4.50 an hour that Ms. Jackson received. The personnel action notice filled out when Builders Square, Inc., discharged Ms. Jackson indicated her eligibility for rehire. Respondent's Exhibit No. 6. Tim Bolt, like Ms. Jackson an African American who was terminated on December 13, 1985, was in fact rehired in 1986. On November 22, 1988, respondent offered to rehire petitioner full-time on unspecified terms, Respondent's Exhibit No. 5, but petitioner declined. She was unwilling to give up her present job at Women's Home, where she has worked 40 hours a week at $3.50 an hour since June 10, 1987. (T.26) On March 11, 1987, she began working at Women's Home for $3.35 an hour, 32 hours a week. Since her employment there she has had "sick leave and insurance." (T.27) The job at Women's Home is the first she has held since working for Builders Square, Inc. For three or four months or maybe for as long as 26 weeks after she lost her job, she received weekly unemployment compensation in the amount of $66. Three of the seven employees who lost their jobs on December 13, 1985, were African Americans. Respondent's Exhibit No. 7. T. 53. Of the three, only Ms. Jackson did not work as a "regular employee." Two of the white employees who lost their jobs in mid-December had worked as regular employees longer than any of the African Americans whose jobs ended. Respondent's Exhibit No. 7. Sixteen of the 84 employees at Builders Square's Store No. 1423 on December 15, 1985, were African American. Of these, three had attained regular employee status later than Ms. Jackson did. Fourteen white employees and a Filipino who still had jobs after Ms. Jackson was discharged attained regular employee status after she did. Respondent's Exhibit No. 8.
