The Issue Whether there is probable cause for petitioner to bring an action against respondents for violation of the Florida Deceptive and Unfair Trade Practices Act?
Findings Of Fact In March of 1983, Ms. Yvonne LeBerg purchased a green 1972 Pontiac Catalina from respondent MPG Economy Motors (MPG), after a conversation with respondent Leland A. Taylor. She told him she wanted to give her daughter and her family a car, and that her son-in-law could fix any minor problems. Mr. Taylor told her that the 1972 Pontiac (the car) had a hole in the trunk from rust; and there was some talk of "oil in the bottom"; but he assured her that the car was in "good running condition." Ms. Cardinale Williams, a friend of Ms. LeBerg who overheard discussions between Mr. Taylor and Ms. LeBerg, remembers Mr. Taylor's presentation that the car was in good running condition. Ms. LeBerg decided to buy the car, made a deposit against the purchase price, and left with Ms. Williams. Wallace Carter, who is married to Ms. LeBerg's daughter Suzanne, picked the car up and closed the transaction on March 12, 1983. Neither he nor Ms. LeBerg drove the car beforehand, although he did start the engine and suggest a test drive. Mr. Taylor said he wanted to get home to supper. As far as the evidence shows, Mr. Carter was aware at the time that the rear view mirror had come unattached and needed regluing. At no time did Mr. Taylor or anybody else disclaim any warranty in writing or otherwise. Boy scouts were in the car on an outing and Mrs. Suzanne Carter was driving, when the car caught fire; smoke billowed and everyone escaped unharmed. The fire is thought to have been caused by some electrical problem. The headlights have not worked since, and the car has hardly been driven since. About three months later, the Carters asked Mr. Wayne Sturdivant a "service advisor" at the local Pontiac dealer, to make a visual inspection of the car and estimate the cost of repair. The exhaust system needed replacement. A power steering hose leaked fluid, as did the transmission, which required a new front pump seal. Valve cover gaskets needed replacement. In addition, the air conditioning compressor was out, and, of course, the headlights did not work. According to Mr. Sturdivant's uncontroverted testimony, only the power steering and exhaust problems were serious enough to affect safety. The record does not establish the reasonable cost of repairs necessary to put the car in good running condition. The Carters brought their problems with the car to Mr. Taylor'S attention. They also complained of poor gas mileage and cracks at the edge of the windowshield that Mr. Carter uncovered when he removed some chrome trim. At one time Mr. Taylor offered to take the car back on consignment, do some repairs, and make the Carters whole (except for registration fees) if it could be sold for $100.00 more than Ms. LeBerg paid for it, and if Ms. LeBerg would withdraw her complaint. Negotiations faltered, however, and were eventually broken off, with Mr. Taylor declining to effect any repairs or rescind the sale. THE IMPALA The day the car she then had threw a rod, Ms. Barbara J. Blinz Wilson left it at the MPG lot, with Mr. Taylor's permission. On May 24, 1983, she bought a 1963 Chevrolet Impala from MPG, after a friend had looked the car over for her, and after a test drive. The sale documents include a form warranty disclaimer signed by Ms. Wilson and her daughter, which states: AS IS THIS USED MOTOR VEHICLE IS SOLD AS IS WITHOUT ANY WARRANTY, EITHER EXPRESSED OR IMPLIED. THE BUYER WILL BEAR THE ENTIRE EXPENSE OF REPAIRING OR CORRECTING ANY DEFECTS THAT MAY PRESENTLY EXIST OR THAT MAY OCCUR IN THE VEHICLE. THE DEALER (SELLER) SHALL NOT HAVE ANY RESPONSIBILITY FOR CONSEQUENTIAL DAMAGES. DAMAGES TO PROPERTY, DAMAGES FOR LOSS OF USE, LOSS OF TIME, LOSS OF PROFITS, OR INCOME OR ANY INCIDENTAL DAMAGES WITH RESPECT TO ANY DEFE [sic] OR MALFUNCTION OR UNFITNESS OR OTHER DEFICIENCY OF THIS VEHICLE. Petitioner's Exhibit No. 4. Ms. Wilson understood that she was buying the Chevrolet as is. Mr. Taylor did not know that such forms existed at the time he sold Ms. LeBerg the Pontiac. Three weeks after she purchased the car, Ms. Wilson spent $31 for a radiator repair, and a water hose sprung a leak the day before the hearing. She still used the car daily. Her principal complaint was that, until it was removed, the headliner tended to fall from the ceiling in swatches, obstructing her view.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 2nd day of November, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 2nd day of November, 1983. COPIES FURNISHED: Leland A. Taylor 828 Michigan Avenue Pensacola, Florida 32505 William P. White, Jr. Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF 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 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
Findings Of Fact At the time this matter was called for hearing, counsel for all parties stipulated and agreed that probable cause existed for proceedings in circuit court. There was no stipulation as to the accuracy of the factual allegations of the administrative complaint, but there was agreement that there was no impediment of any kind to circuit court proceedings.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to institute judicial proceedings against respondents pursuant to Section 501.207(1), Florida Statutes (1981). DONE and ENTERED this 4th day of October, 1983, in Tallahassee, Florida. ROBERT T. BENTON II 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 4th day of October, 1983. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 James Fletcher Fleming, Esquire Post Office Box 1831 Pensacola, Florida 32598 Carey D. Bearden, Esquire 717 St. Charles Avenue New Orleans, Louisiana 70130
The Issue The issue is whether the contractor's license of Respondent, Robert L. Fountain, Jr., (Fountain) should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Robert L. Fountain, Jr., is a certified building contractor in the State of Florida, license no. CB C022113. On or about May 22, 1987, Fountain contracted with Joseph L. Webster for the construction of a custom home for a price of $206,469.00. Webster paid Fountain a deposit of $20,646. Webster was denied financing for the construction of the home. Even though Fountain maintains that financing was available, he presented no credible evidence in this regard to rebut the testimony of Webster. Webster requested that the deposit be returned to him. Fountain refused to refund the deposit. Fountain maintains that he does not have to repay the deposit because it represents compensation for the time he spent on the project before and after the contract was signed and for the profit he would have received on the job. Except for receipts totaling $1,553.70, Fountain has no documentation to establish the amount of time allegedly spent, the expenses incurred or the value of the time spent on the Webster project. Financing was never secured and construction never commenced. Because of Fountain's refusal to refund the deposit, Webster sued Fountain for the money. A Final Judgment was entered in Case No. 89-46, in the Circuit Court of the Second Judicial Circuit for Leon County, Florida, on January 31, 1991. The Final Judgment found for Webster and ordered Fountain to pay Webster $20,646.90, plus interest of 12% from January 4, 1988, in the amount of $7,622.70, and costs of $327.50. Fountain has not satisfied that judgment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Construction Industry Licensing Board enter a Final Order and therein: Find Robert L. Fountain, Jr., guilty of violating Section 489.129(1)(m) by committing misconduct in the practice of contracting. Impose a fine of $1,000. Suspend the license of Robert L. Fountain, Jr., until the damage suffered by Joseph L. Webster, Sr., as reflected by the Circuit Court's Final Judgment, has been relieved. RECOMMENDED this 18th day of April, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6655 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(1-6). Proposed finding of fact 1 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Robert L. Fountain, Jr. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1&2). Proposed finding of fact 1 is unnecessary. Proposed finding of fact 5 is unsupported by the competent and substantial evidence. COPIES FURNISHED: G. W. Harrell, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Robert L. Fountain, Jr. 2124 Shady Oaks Drive Tallahassee, FL 32303 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Daniel O'Brien Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202
Findings Of Fact Rita Smith who, a friend testified, has "got to be" 90 years old, has owned the house at 1210 Alcaniz Street in Pensacola, Florida, at least since her husband died on March 20, 1982. Before he died, he gave her money to fix up the house, which she has rented. It needed a new roof, among other things. She spoke to respondent M. T. Motes after getting an advertisement for Mike's Painting & Contracting Company in the mail. It read: Painting -- Carpentry -- Remodeling Addition Carports Residential Specialist Prompt FREE Estimates (904)968-5912 ALL WORK GUARANTEED MIKE'S PAINTING & CONTRACTING CO. Post Office Box 261 Gonzalez, Florida 32560 Respondent himself--she knew him as "Mike"--seemed like he wanted to work so she sent him to take a look at what was involved. First she misdirected him to 1012 Alcaniz Street but the people who lived there told him there must be some mistake. The second time Mrs. Smith got the address right, and respondent Motes looked things over at the right house. They eventually agreed on a price of $2800, of which $1500 was to be paid in advance. On April 11, 1983, Charlie Freeman went down to the bank with Mrs. Smith to help her get the money and was present when it changed hands. Among the things Mr. Motes agreed to do in exchange for the $2800 was put on a new roof. As respondent's counsel conceded at hearing, there never was a written contract, but M. T. Motes did acknowledge in writing receiving "$1500 deposit toward repair of rental unit" from Rita Smith. He signed the receipt without mentioning Mike's Painting & Contracting Company. Respondent Motes and at least one helper worked on the house on April 12, 1983, and again on April 13, 1983. They patched the porch floor, put in some new rafters on the porch, and did some patching of the porch roof, replacing bad wood with good. After he had Mrs. Smith's $1500, Mr. Motes told Mr. Freeman that, although he was not a roofer, he would arrange for a roofer to do the roofing work, but the roof was never recovered. A. L. Cooper, an investigator for the Escambia County Construction Competency Board, inspected the house at 1210 Alcaniz Street on October 25, 1983, at petitioner's request. What had been accomplished there a man and a helper could do easily in two days. The going price for a job like the one Mr. Motes did ranges from $450 to $525. Mr. Motes, who is not licensed as a residential contractor, never obtained a building permit for the work he did for Mrs. Smith, which included "quite a few code violations." Mrs. Smith reached Mrs. Motes by telephone but did not succeed in her efforts to track down Mr. Motes. She made no payments beyond the initial one.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner find probable cause to initiate judicial proceedings against respondent M. T. Motes pursuant to Section 501.207(1), Florida Statutes (1981). That petitioner dismiss the administrative complaint filed against Mike's Painting and Contracting Company. DONE and ENTERED this 3rd day of February, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of February, 1984. COPIES FURNISHED: William P. White, Jr., Esquire Assistant State Attorney Post Office Box 12726 Pensacola, Florida 32501 Bruce A. McDonald, Esquire Emmanuel, Sheppard & Condon Post Office Drawer 1271 Pensacola, Florida 32596 Curtis A. Golden, State Attorney First Judicial Circuit of Florida Post Office Box 12726 190 Governmental Center Pensacola, Florida 32501
The Issue The issues in this case are: (1) whether Petitioner filed her complaint with the Florida Commission on Human Relations within 365 days of the alleged discriminatory event; and (2) whether Petitioner requested an administrative hearing within 215 days of the filing of her complaint.
Findings Of Fact Petitioner, Earlene Johnson, is an African-American. Prior to December 1996 Ms. Johnson filed a grievance when Respondent, Chautauqua Office of Psychotherapy and Evaluation (hereinafter referred to as "Chautauqua"), failed to promote her. On December 4, 1996, Ms. Johnson was terminated from employment with Chautauqua. At some time after her termination, Ms. Johnson engaged legal counsel with the intent of filing a complaint of discrimination with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). Toward this end, Ms. Johnson signed an Intake Questionnaire and an Affidavit on October 30, 1997. No copy of the Intake Questionnaire or Affidavit was provided by the Commission to Chautauqua within five days of their receipt. On May 4, 1998, more than one year after the alleged acts of discrimination, Ms. Johnson was sent a Charge of Discrimination by Joe Williams, an Intake Counselor for the Commission. Mr. Williams instructed Ms. Johnson of the following in the cover letter which accompanied the Charge of Discrimination: In order for the Commission to proceed further with this matter, you must: Review the complaint; Sign the complaint in the designated spaces in the presence of a notary public; Return the signed complaint to this office in the enclosed self-addressed envelope. Because a complaint of discrimination must be filed within the time limitation imposed by law (in most cases the limitation is 365 days from the date of the alleged discriminatory act), I urge you to complete these three steps as soon as possible. . . . . Ms. Johnson signed the Charge of Discrimination sent to her by Mr. Williams on the date it was sent, May 4, 1998. Ms. Johnson's Charge of Discrimination was not, therefore, filed within 365 days of the date of the last act of discrimination alleged by Ms. Johnson: Ms. Johnson's termination from employment on December 4, 1996. When the Commission failed to complete its investigation of Ms. Johnson's Charge of Discrimination within a reasonable period of time, Ms. Johnson requested an administrative hearing by letter dated August 3, 1999. Ms. Johnson's request for hearing was made one day short of one year and three months after the Charge of Discrimination was filed with the Commission. The Commission filed Ms. Johnson's request for hearing with the Division of Administrative Hearing on September 14, 1999. Chautauqua filed a Motion to Dismiss Petition. An Order to Show Cause was entered after Ms. Johnson failed to respond to the Motion. Ms. Johnson was ordered to answer the following questions: Did the events that Petitioner believes constitute discrimination occur on or before December 4, 1996? If not, when did the events take place? Did Petitioner file a Charge of Discrimination with the Florida Commission on Human Relations on or about May 4, 1998 (a copy of a Charge of Discrimination which appears to have been filed by Petitioner is attached to this Order.) If not, when was it filed? If the Charge of Discrimination filed with the Florida Commission on Human Relations was filed more than one year after the events which Petitioner believes constitute discrimination occurred, why wasn't the Charge filed sooner. Petitioner should provide a detailed answer to this question. Ms. Johnson responded to the questions asked in the Order to Show Cause as follows: The events that petitioner believe [sic] constitutes discrimination occurred before and on December 4, 1996. Petitioner signed a complaint of Discrimination which was signed on October 30, 1997 which was filed by Petitioner's former Lawyer. Which a copy is attached [sic]. Petitioner's Lawyer filed a charge of Discrimination less than one year before the events which the Petitioner believes constitutes [sic] Discrimination. Which a copy is attached [sic]. Petitioner's former Lawyer [sic] address and phone number is [sic] attached. Attached to Ms. Johnson's response to the Order to Show Cause was a copy of an Affidavit and an Intake Questionnaire signed October 30, 1997, a letter dated January 10, 1998, from Ms. Johnson's legal counsel, and the May 4, 1998, letter from Mr. Williams asking Ms. Johnson to sign a Charge of Discrimination. It is clear from Mr. Williams' letter that no Charge of Discrimination was filed by Ms. Johnson with the Commission until more than 365 days after the alleged act of discrimination, December 4, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the complaint of discrimination filed in this case by Earlene Johnson. DONE AND ENTERED this 24th day of May, 2000, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 24th day of May, 2000. COPIES FURNISHED: Earlene Johnson 185 Cook Avenue DeFuniak Springs, Florida 32433 Robert P. Gaines, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32576-2950 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2010.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 12, 2013.
Findings Of Fact On or about November 12, 2007, Respondent hired Petitioner to work as a full-time installation technician. Respondent terminated Petitioner’s employment on or about December 19, 2012. Petitioner, who is of Puerto Rican descent, alleges, in his Charge of Discrimination filed on November 12, 2013, the following: My termination from Bright House Networks is clearly a pretext. As a benefit of being an employee I received complimentary cable. In June 2012, I relocated and connected the complimentary cable to my new residence. I was never informed upon hire that I could not connect my complimentary cable if I relocated. In November 2012 I advised a manager that my route was too far from my residence and he told me to update my address with the company. Shortly after I did so I was terminated. I feel I was treated adversely as similarly situated employees have relocated and connected their own cable. Based on the foregoing actions of Bright House Networks described herein, I believe that I have been discriminated against including my unlawful termination, based on my national origin in violation of the Florida Civil Rights Act of 1992, [and] Title VII of the Civil Rights Act. Due to my unlawful termination, I have suffered and continue to suffer severe financial and emotional damages. Respondent’s policies and procedures provide in part that “[a]ll full and part-time Bright House Networks employees are entitled to free cable television service as long as their home is located within an area served by Bright House Networks.” The policies and procedures also provide that “[f]ree cable service is not transferable to another person’s residence.” Respondent’s procedures also provide that “[c]omplimentary service is provided for viewing, monitoring, and product knowledge by the employee at his/her own personal residence [and] [t]his benefit is not in any way transferable to another party or residence.” According to Christopher Kranert and Brinkley Ruffin, the intent of the policies and procedures governing free cable television is to allow employees to receive free cable television service at a single residential address. This is a reasonable interpretation by Respondent of its policies and procedures. When initially hired by Respondent, Petitioner resided at 1203 Arrowsmith Avenue, Orlando, Florida (Arrowsmith), and this is the address of record for Petitioner that Respondent maintained in its database of employee addresses. In June 2012 Petitioner moved out of the Arrowsmith property and relocated to 4413 Kirkman Road, Apartment F205 (Kirkman), which is also in Orlando, Florida. Petitioner did not initially inform Respondent that he had moved to the Kirkman address. Both the Arrowsmith and Kirkman addresses are in areas where Respondent provides cable television service. 7 During Petitioner’s term of employment, Respondent assigned Petitioner a truck that was equipped with a GPS device which allowed Respondent to approximate the whereabouts of the vehicle at all times. As an efficiency measure, Respondent, at the beginning of each workday, assigns service calls to its individual technicians based on a customer’s proximity to the technician’s home address of record. In furtherance of this efficiency measure, Petitioner, at the end of each workday, was authorized to drive his assigned vehicle to his home so that the following workday he could leave directly from home and report to his assigned service call(s). Petitioner noticed, at some point after June 2012, that the locations for his daily work assignments were a significant distance from his Kirkman address. This meant that not only did Petitioner have to wake-up earlier, and drive further, each morning in order to timely arrive for his service calls, but it also meant that he drove further when returning home at the end of each workday. Petitioner complained to Respondent about the distance that he was travelling to and from his daily service calls. In investigating Petitioner’s complaint, Respondent pulled the GPS data log for the truck assigned to Petitioner. The GPS data revealed that at the beginning and end of each workday, the truck was parked at a location other than Petitioner’s home address of record (Arrowsmith) and that this apparent anomaly had been happening for a significant period of time. Armed with this information, Respondent sent two of its employees to the Arrowsmith address for the purpose of finding out if cable service remained active. The employees confirmed that cable service for the Arrowsmith address was active and that the service was listed in Petitioner’s name. Next, Respondent identified the location where Petitioner’s assigned truck was parked at the end of each workday (Kirkman). Respondent sent employees to the Kirkman address and determined that the address was receiving cable television service and that the address was not listed as an active account in Respondent’s billing system. Respondent reasonably concluded that Petitioner was receiving unauthorized cable service at the Kirkman address while simultaneously receiving authorized cable service at the Arrowsmith address. Petitioner believes that his actions complied with company policy because, according to Petitioner, the policy authorizes him to activate service when moving to a new address without having to notify Respondent. While Respondent’s policies do not prohibit Petitioner from personally connecting cable service at his residence, the policies do prohibit Petitioner from doing so without first notifying Respondent. After consulting with Petitioner’s immediate supervisor Victor Gomez and Brinkley Ruffin, Chris Kranert terminated Petitioner’s employment with Respondent. Petitioner alleges that Respondent treated him differently from another employee that engaged in the exact same conduct that resulted in Petitioner’s termination from employment. Petitioner’s only evidence in support of this allegation is a conversation that he overheard between his former supervisor Allen Summers and Bright House employee M.S., who is African-American. According to Petitioner, Allen Summers asked M.S. if he was simultaneously receiving free cable service at more than one address. M.S. answered the question in the affirmative and explained to Allen Summers that he (M.S.) forgot to fill out the paperwork that would have informed Bright House about the transfer of cable service to M.S.’s new address. According to Petitioner, Respondent did not discipline M.S. for his violation of company policy. Petitioner relies on the conversation between M.S. and Allen Summers to prove that the facts asserted in the conversation are true. The referenced statements attributed to M.S. and Allen Summers are hearsay. Respondent denies having knowledge of any instance where M.S. was allowed to receive free cable service at multiple addresses. Respondent did, however, offer evidence where two former employees were terminated as a result of theft of cable television services.2/ Petitioner offered no evidence that his national origin played a role in Respondent’s decision to terminate his employment.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, Bright House Networks, did not commit an unlawful employment practice as alleged by Petitioner, Manny Rolon, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2014.
The Issue The issue in this case is whether the Board of Opticianry should discipline Respondent, George Martin (Martin), for alleged fraudulent, false, deceptive or misleading advertising in violation of Rule 21P-10.05(2)(a), (b), (f) and (g), Florida Administrative Code, and Section 484.014(1)(e) and (g), Florida Statutes (1983). FINDINGS OF FACT 1/ Petitioner, Department of Professional Regulation (Department), is a state agency charged with regulating the practice of opticianry pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 484, Florida Statutes. Respondent, George Martin (Martin), is and has been at all times material a licensed optician in the State of Florida, having been issued license number DO 000945. In July of 1982, an advertisement was placed by Opti- Mart, an optical company, in the Sarasota Herald Tribune newspaper. A copy of this advertisement is attached and incorporated by reference as Exhibit A. At the time that the advertisement was published, Martin had no ownership or interest as an officer or a director in Opti- Mart, Inc. The advertisement was placed by the owner of Opti-Mart, Mr. Douglas W. Rankin. Prior to placing the ad, Douglas W. Rankin showed the advertisement to Martin, his licensed optician, for his approval. Martin approved the ad. Martin does not recall having seen or approved the subject's advertisement prior to publication, the ad having been placed by Opti-Mart, Inc., although Martin does not specifically deny having seen a copy of the ad prior to publication. At the time of the publication of the ad, Opti-Mart had made arrangements for a licensed optometrist to conduct eye examinations by appointment for persons who called in response to the ad. There was not evidence that any member of the public was actually deceived or misled by the wording of the ad. Any persons who called in response to the ad were informed that the eye examinations were performed by a licensed optometrist and not by Martin or any other optician. Martin did not intend to conduct any eye examination, nor would any such eye examinations be performed by him. Martin had no intention to deceive or mislead any members of the public as to who would be performing the eye examinations. Immediately upon receiving knowledge that there was a question concerning the text of the advertisement, Martin caused Opti-Mart to cease running the ad with Martin's name appearing in the ad.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is RECOMMENDED that the Board of Opticianry enter a final order dismissing the Administrative Complaint in this case with prejudice. RECOMMENDED this 7th day of December, 1984, in Tallahassee, Florida. J. LAWRENCE JOHNSON 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 7th day of December, 1984.
The Issue Did Respondent engage in unlawful employment practices directed to Petitioner, as defined in Section 760.10(1), Florida Statutes. In particular, did Respondent knowingly terminate Petitioner's employment based on Petitioner's age? Was Petitioner denied the opportunity to become kitchen manager because of her age? Is Petitioner entitled to take up her former duties as a cook at Respondent's restaurant or to be promoted to kitchen manager? Has Petitioner sustained damages, including loss of back and future pay and related benefits?
Findings Of Fact Petitioner, Christina D. McGill is a Caucasian woman who at the time of the alleged unlawful employment practice at issue was 41 years of age. Mrs. McGill worked at the Moorings Restaurant in Pensacola Beach, Florida, as a cook. The restaurant employed from 18 to 20 people during the operative time and all of these employees were of the Caucasian race. Both men and women were employed at the Moorings Restaurant. Prior to six months before October 11, 1997, Mrs. McGill was a cook at the restaurant. Candy Montague was one of her fellow employees. Mrs. McGill believes that Ms. Montague was approximately 25 or 26 or perhaps even 27 years old in 1997. During the time when Ms. Montague was a waitress, Mrs. McGill and Ms. Montague enjoyed an amicable relationship. Approximately six months prior to October 11, 1997, Ms. Montague was promoted to general manager of the restaurant. Subsequent to becoming general manager, Ms. Montague occasionally made remarks concerning Mrs. McGill's age. Ms. Montague remarked that Mrs. McGill was the oldest person in the kitchen, that "the old lady has to go home to her husband," and that she listened to "old timer" music. These remarks bothered Mrs. McGill. Some of these remarks were made on the premises during working hours and some were made at parties which were held subsequent to closing time. Mrs. McGill's husband, Lewis O. McGill, is much younger than Mrs. McGill. He worked as a waiter at the Moorings until he resigned sometime prior to October 11, 1997. He heard co- workers comment with regard to the fact that he was much younger than Mrs. McGill. These comments were made during after-hours drinking parties. He never heard Ms. Montague make these comments. Mr. McGill stated that he could offer no evidence which would indicate that Mrs. McGill was fired because of her age. When Ms. Montague became general manager she reduced the number of hours Mrs. McGill could work. She commented that Mrs. McGill was too old to lift heavy objects. When Mrs. McGill attempted to attain a position as kitchen manager, Mrs. McGill talked to the owner of the restaurant about the job. This made Ms. Montague unhappy. A younger person, Forrest Jameson, was also trying to obtain that job. Mrs. McGill does not know who eventually was appointed to that position. A few days prior to October 11, 1997, Mrs. McGill slipped and fell while off duty and injured herself. She called in sick. When she called Ms. Montague on October 11, 1997, to determine her work schedule, Ms. Montague told Mrs. McGill that she had been terminated for threatening people with knives, failing to follow orders, and exhibiting misconduct in general. Mrs. McGill earned about $300 weekly while working for the Moorings Restaurant. She received about $108 per week unemployment compensation from October 11, 1997 until June 30, 1998. From February 1998 until February 1999 she was employed at Beall's Outlet in Gulf Breeze and received approximately $128 per week in salary. She worked for Allan Davis Souvenirs from February 1999 to August 2000 and received about $250 per week.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon age. DONE AND ENTERED this 20th day of October, 2000, in Tallahassee, Leon County, Florida. HARRY L. HOOPER 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 20th day of October, 2000. COPIES FURNISHED: Christina D. McGill 7680 West Highway 90 Apartment 158 Pensacola, Florida 32561 The Moorings Restaurant 655 Pensacola Beach Boulevard Pensacola Beach, Florida 32561 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox RoadSuite 240, Building F Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
