The Issue Whether Petitioner was discriminated against because of her age and her race.
Findings Of Fact On or about May 22, 1998, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations. The essence of this Charge was the allegation that Respondent discriminated against Petitioner because of her age (48) and race (black). Petitioner claimed that younger whites were employed in a position for which she had applied. (The Charge of Discrimination was FCHR No. 98-1932.) Respondent filed its response to the allegations on July 22, 1998, and denied the allegations. Respondent filed a Statement of the Company's Position, Affidavits and supporting documents. The Florida Commission on Human Relations conducted an investigation, including a request for additional documentation to Respondent, and on September 5, 2000, issued a Notice of Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." In response to the Commission's notice, Petitioner filed a Petition for Relief on September 26, 2000. She claimed "the people hired during the time I applied had no banking experience. They were all young and white." Respondent filed its Answer on October 13, 2000, and denied the allegations asserting that as of August 1, 1997, Respondent employed two (2) individuals in the proof department: One (1) minority and one (1) employee over the age of forty (40). Further, Respondent stated it had twenty-one (21) employees in the teller department of which nine (9) were minorities and ten (10) were employees over the age of forty (40). Petitioner is an African-American female who was approximately forty-eight (48) years old at the time that she applied for a position with Respondent. In her application for employment, Petitioner indicated that she had not been employed since August of 1985 and had no computer training. There were seventeen (17) applicants for the positions. All the applicants, except Petitioner and one other applicant, indicated they had computer training. All of the applicants had recent employment experience. The advertisements for the position indicated that they were for a part-time teller position and a part-time proof operator position. The proof operator enters up to thirteen thousand (13,000) transactions a day. The teller position requires sales skills, and the bank was moving into a Windows 95 computer system. Applicants with prior computer training and experience were considered over those without this experience by the Director of Human Resources, Linda Ongley. Linda Ongley has been the Director of Human Resources for Respondent for the past seventeen (17) years. She is the person who was responsible for reviewing the applications, interviewing, and hiring. She made the decision not to offer employment to Petitioner. She did not believe Petitioner had the necessary computer skills and sales skills for the teller job, and did not appear to be prepared for the high stress and pace expected of the proof operator position. Based upon her interview of Petitioner, Ms. Ongley did not believe Petitioner had a strong work ethic. Petitioner had no references; and had not worked in the twelve (12) preceding years. While the job postings did specifically state that they were part-time, the teller position did not list "computer skills" as a requirement of the job. Ms. Ongley testified regarding this. Ms. Ongley had run the standard advertisement that she had run in the past because she only had recently received information regarding the conversion to the computer system. The teller advertisement did not state that "excellent communication and interpersonal skills" were required of applicants. The applications indicate that essentially all of the applicants were substantially younger than Petitioner. Of those persons hired by Respondent for these positions, the individuals hired for the teller position included one (1) African American; one (1) white; and one (1) West Indian. All three (3) of these individuals had computer training. The individual hired for the proof operator position did not have computer training (this position did not utilize a computer, but the person hired had excellent references, including a reference from a large customer of the bank). The Superintendent of Schools of Gadsden County came into the bank and personally recommended hiring her. The records of Respondent and the testimony of Ms. Ongley indicate that at the time Petitioner made application for employment, one (1) employee in the proof department was a minority and one (1) was over the age of forty (40). Further, of the twenty-one (21) tellers, there were nine (9) minorities and ten (10) employees over the age of forty (40). All of these employees had been hired by Ms. Ongley. Ms. Ongley's decision on filling all positions was based on neither age nor race. Sharonda Rogers also testified. Ms. Rogers was a former employee of Respondent, who was hired as a part-time teller pursuant to this application process. Ms. Rogers is an African American. Ms. Rogers testified that she had not experienced any racial discrimination, nor observed any age discrimination during her thirteen (13) months of employment with Respondent. She left her position with Respondent to take another job elsewhere.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 22nd day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 22nd day of January, 2001. COPIES FURNISHED: Charity Rittman 39 Rittman Lane Route 4, Box 1015 Quincy, Florida 32351 Michael P. Bist, Esquire Gardner, Shelfer, Duggar & Bist 1300 Thomaswood Drive Tallahassee, Florida 32312-2914 Azizi Coleman, Acting Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 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 Petitioner, Elias Makere, was subject to an unlawful employment practice by Respondent, Allstate Insurance Company (“Respondent” or “Allstate”), on account of his race or due to retaliation for his opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct testimony as to the number of persons employed by Respondent. However, given the testimony describing a large institution with multiple departments, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time. In the summer of 2013, Petitioner applied and interviewed for a position with Respondent. The interview team included Ms. Henry, Ms. Halim, and Mr. Schaeffer. Petitioner was hired over several other candidates as an Actuarial Technician, starting on November 18, 2013, and was enrolled in Allstate’s Actuarial Career Program (“ACP”). In January 2014, Petitioner took and passed the examination to become an Associate of the Society of Actuaries (“ASA”). He was promoted to the position of Actuarial Associate. Respondent’s actuarial department was divided into the life insurance side and the health insurance side. However, all of the employees of the actuarial department were housed on the seventh floor of Respondent’s building. The “life” side of the actuarial department was managed by Lisa Henry, who supervised Petitioner from the time of his employment to the time of his termination. Petitioner was the only actuary in Ms. Henry’s section. The “health” side of the actuarial department was managed by Louis Posick. There were three or four actuaries in Mr. Posick’s section. Within the “life” and “health” sides of the department are further distinctions between product development work and valuation work. The distinctions are not important. However, Petitioner was on the product development side. Mr. Nagai and Victor Ciurte were on the valuation side. In order to sign an actuarial opinion, one must be an actuary in good standing and a Fellow of the Society of Actuaries (“FSA”). Being an ASA is not enough. The ACP is designed to provide support to qualified “high potential” employees to receive their FSA certification as long as the employee maintains continuous progress. Support includes allowing ASA associates paid study time for their exams, paying for examination fees, paying for preparation courses, and paying travel expenses to examination sites. The ACP Guidelines provide that “[e]xam fees are paid in advance for the first and second tries of the same exam and in arrears upon passing thereafter.” When Petitioner began his employment, he was provided with Respondent’s ACP Guidelines (the “Guidelines”). The Guidelines contain the following provisions that are pertinent to this proceeding: Continued Eligibility of Members: This is based on active study towards FSA, exam progress and job performance. All criteria need to be satisfied for eligibility to continue. * * * 2. Exam Progress: A member must have passed at least one exam in the last three qualifying half-years as well as two exams within the last five qualifying half-years, i.e. “1-in-3 and 2-in-5” rule. . . . * * * 4. Loss of Eligibility: Upon loss of eligibility, an employee may post for another position at Allstate but ongoing employment with Allstate is not guaranteed. A reasonable amount of time as determined by the employee’s manager will be allowed for the employee to endeavor to secure a suitable opportunity within Allstate. Per company policy, employment will not be terminated for unacceptable job performance unless the employee has been advised that his/her performance is unacceptable. In short, the Guidelines provide that failure to pass an examination in three tries is cause for termination from the ACP, without a guarantee of continued employment with Allstate. Upon the loss of eligibility, actuarial department employees are given 30 days to secure employment with Respondent. If no actuarial position is open, or if an employee chooses not to accept a non-actuarial position, employment is terminated. At some point in the latter part of 2015, Petitioner was asked to work on the development of an Enhanced Group Term Life “Snap Quote” rate-quoting tool. The tool was similar to a Group Voluntary Accident Product (“GVAP”) 6 tool that Petitioner had worked on earlier during his period of employment. Petitioner worked on GVAP 6 with Ms. Bradley, an African- American woman who was hired by Ms. Halim as an actuarial product consultant in the “health” side of the actuarial department. Although the Snap Quote tool was to be used by Allstate’s health side, Petitioner was “pulled in” from the life side due to his experience with Excel macros and technical capability to build a tool. Since the tool was a “health” side tool, Ms. Halim was in charge of managing its development. In that regard, although Petitioner did not organizationally report to Ms. Halim, she was responsible for giving directions to the development team, including Petitioner. The Snap Quote tool was designed to be an Excel spreadsheet based rate calculating and quoting tool. Various data regarding the group members would be provided and inputted into the spreadsheet, i.e., date of birth, gender, job title, and salary, to evaluate risk and, based thereon, a rate would be calculated. The Snap Quote tool was considered to be a “rogue IT solution.” Generally, rate tools and other software tools would be developed and deployed by the IT department. However, if the IT department did not have the budget, and the “business side” was able to take on a project using the business side’s budget, that solution was welcomed, since the ultimate goal of both departments is to solve problems. As described by Mr. Dickson, “[t]hey have problems and [IT] couldn't pay for it, so the business wanted to create solutions.” The fact that the business side might be developing a tool would not diminish the IT department’s responsibility to ensure that the software was secure, did not use any copyrighted open source materials, and would not compromise Allstate’s system. As further explained by Mr. Dickson, “[s]o as long as they are secure, they don't have copyright infringements, they meet the other tenets that the architects decide, then so be it. We can deploy the software.” Regardless of the section responsible for budget and development, the IT department was exclusively responsible for decisions regarding deployment. Mr. Schaefer confirmed that Allstate’s business side, including the actuarial department, had no role in the decision as to how the Snap Quote tool, or any software, was to be deployed and distributed within the company. During the development of the Snap Quote tool, a reviewer from the actuarial team and a reviewer from the compliance team would test various versions to ensure that the tool functioned the way the group desired, e.g., that the rates were correct, that the benefits were displaying correctly, and things of that sort. A primary complaint received from the reviewers was that a reviewer from one team would provide comments, and Petitioner would make changes to the tool and upload the revised version before the other team provided comments. That created confusion as to which version was under review. Ms. Halim instructed Petitioner that he was to wait for everyone to review a version before making changes so that everyone would be consistent and on the same page, an instruction that she had to repeat at least three times. Nonetheless, Petitioner continued to revise the tool before comments were received, which created confusion within the team. The problem created internal delays in getting the builds the way that the team wanted. However, the final deadline was met. During the period in which Ms. Halim was directing Petitioner’s work-related activities, he never complained to her that he felt he was being discriminated against for racial reasons. Ms. Halim had no involvement in Petitioner’s termination. In order to remain in good standing in the ACP, Petitioner was required to pass one of the actuarial examinations in May 2016. He had failed the examination on two previous occasions. Petitioner did not pass the examination, and was, therefore, no longer eligible for the ACP. In July 2016, Ms. Henry learned that Petitioner had not passed the examination. The ACP Guidelines are clear that the failure of either the “1-in-3” rule or the “2-in-5” rule, i.e., the repeated failure of the actuarial examination requirements of the position, would result in removal from the program. However, Allstate retained the ability to place an employee in an alternative position if one were available. Ms. Henry had only one actuarial position in her section. She needed an employee who could ultimately succeed her as an FSA actuary. She was battling health issues, and wanted someone that could take her place in her absence in case she was not there. When Petitioner lost eligibility for advancement, the only option for continued employment in Ms. Henry’s “life” side section would be as a “career ASA,” which has no room for advancement. Ms. Henry “did not find it worth my while based on my expectations for that role to try to create a different role because I needed someone that could be my successor and do what I do.” Since Ms. Henry did not have another position in which to place Petitioner, she chose not to fill the only actuarial position in her section with a career ASA. Ms. Henry discussed Petitioner’s employment status with Mr. Schaeffer, and a decision was made that Petitioner would not be offered to fill the sole actuarial position as a “career ASA.” Petitioner’s workplace behavior, performance, and her ability to manage him was a factor, which included instances of failing to meet deadlines, failing to comply with company policies, and failure to take and implement direction. Mr. Schaeffer was blunter in his assessment, testifying that Petitioner was simply not a good employee, being unable to appropriately communicate with other employees, and not following directions regarding work projects. On August 12, 2016, Petitioner was called to the human resource (“HR”) department offices on the first floor. He met with Ms. Henry and Mr. Manucy, and was advised that, as a result of his failure to pass on his third attempt of the FSA actuarial examination, he was no longer eligible to participate in the ACP. As a result, he was being terminated from his position as an actuarial associate in Ms. Henry’s section. He was advised that he had 30 days of paid continuing employment, during which time he could apply for any open positions within Allstate. The evidence suggests that there were no open actuarial positions other than that previously held by Petitioner. For legitimate reasons as explained by Ms. Henry and Mr. Schaeffer, Petitioner was not offered that position as a career ASA. There were no actuarial positions open in the “health” section, with those ASA positions being filled by Mr. Nagai and Mr. Ciurte, who were, at the time of Petitioner’s termination, eligible and participating ACP students. No evidence was presented as to whether there were any open non-actuarial positions available, or whether Petitioner gave any consideration to applying for a non-actuarial position. There was no evidence offered or received as to whether Petitioner actually applied for any vacant position. Petitioner was also given the option “to hit the voluntary termination button in the HR system” to register his leaving the company as a voluntary termination instead of an involuntary termination. Being unable to secure a different position with Allstate, Petitioner was involuntarily terminated, effective September 12, 2016. During the termination meeting, Petitioner made no statements to suggest that he had been the subject of any form of employment discrimination. Since Petitioner’s termination, Ms. Henry has not hired an actuary or actuarial student to fill the position. She did hire two support staff to keep up with higher-level customer service requests that could not be handled outside the department. Both were internal transfers. They perform non- actuarial work, some of which had previously been done by Petitioner, but do not perform actuarial work. Neither of the support employees are qualified as actuaries or actuarial students, nor do they need to be. Allstate has a long-standing formal policy of prohibiting all types of discrimination and retaliation. If an employee is found to engage in discrimination or harassment against another employee, the offender is subject to discipline, including potential termination. Allstate has mandatory annual training, known as inclusive diversity training, which is designed to instruct employees on Allstate’s policy of non-discrimination based on, among other characteristics, race and sex. The training is designed to instruct and remind Allstate employees “that we can be better by -- than the sum of our parts by leveraging the uniqueness of each individual and not making any judgments based on race, gender, or sexual preference.” Each of the Allstate witnesses who were asked confirmed that they participated in the diversity training. Part of the training includes that “if you see someone who does participate in [discrimination], report it.” Most of the Allstate witnesses were asked if they had ever seen employees “marginalizing” other employees based on racial stereotypes, single out employees, or treat employees differently based on racial characteristics. Not one indicated that such would be acceptable, and not one indicated that they had ever seen such to have occurred. When asked if Allstate would want to rid its actuarial section of black actuaries “in order to preserve that esteem held for the actuarial profession,” Ms. Hathorn testified that Allstate would not, “[b]ecause if you're smart and you can do the job, I would not think that the company would allow something like that to occur.” When asked by Petitioner whether she knew of a particularly racist stereotype, i.e. “that black men are akin to monkeys, apes, and gorillas,” Ms. Bradley testified that “I have not met anyone in our department that holds that view because then I would be uncomfortable working there. And I have never been uncomfortable working there since the day I walked in that building.” Petitioner asked virtually all of the witnesses whether they knew of or ascribed to any of his self-described racial stereotypes. None did. On June 30, 2017, Petitioner filed his Complaint of Discrimination with FCHR. It included five pages of allegations that Respondent violated section 760.10, by discriminating against him on the basis of his race or as retaliation. The Complaint of Discrimination contained no allegations of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation of sexual remarks or actions by any person that created a hostile work environment. On August 31, 2017, Petitioner was interviewed by the FCHR investigator. During that interview, he offered to discuss “the five examples of harassment and discrimination” identified in his Complaint of Discrimination. He also indicated that “I have many more allegations that I have not supplied you guys yet.” The interview included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment. In November 2017, the FCHR investigator issued a six-page Investigative Memorandum (“IM”). In the IM, the investigator noted that, on September 29, 2017, she requested additional information regarding “the last harassing incident while working for Respondent between June 29, 2016 and August 12, 2016.” She then stated that she received information on October 13, 2017, which she went on to describe. The IM included no allegations or discussion of sexual discrimination or harassment, by Lisa Henry or any other person, and contained no allegation or discussion of sexual remarks or actions by any person that created a hostile work environment. On December 15, 2017, the FCHR issued a Determination: No Cause, and a Notice of Determination: No Cause, by which the FCHR determined that reasonable cause did not exist to believe that an unlawful employment practice occurred. On January 19, 2018, Petitioner filed a 231-page Petition for Relief with the FCHR. The Petition included allegations of racial discrimination for which there is no evidence of their ever having been presented to FCHR or having been part of the FCHR investigation. They include (but are by no means limited to) incidents of profanity-laced screaming, physical assaults, knife threats and rubber-band shooting, and an allegedly racially-motivated move of Allstate’s actuarial department to the eighth floor of Respondent’s building. The Petition also, for the first identifiable time, alleged that Allstate, and in particular Lisa Henry, engaged in sexually provocative and inappropriate actions which Petitioner alleged to be “sexual harassment and discrimination.” He noted that “[t]he FCHR ignored these events.” Almost all of the allegations in the Petition involved incidents that occurred well prior to June 30, 2016, which is 365 days prior to his June 30, 2017, Complaint of Discrimination. During his testimony at the final hearing, Petitioner stated that “I spoke with FCHR on numerous occasions between the June 30th, 2017 date where I filed it and the date that it was closed. So I discussed sexual harassment and many other events before I submitted that in November 2017.” Petitioner alleged that, on November 2, 2017, he amended his complaint with FCHR to add a number of additional allegations. The amendment was not introduced in evidence. Again, nothing was offered in evidence to substantiate the claim. The investigative report, at footnote 9, indicates that Petitioner submitted an “October 13, 2017, response to RFI.” Based on the totality of the competent substantial evidence in the record, the only inference that can be drawn is that additional incidents and allegations would have been provided no earlier that October 13, 2017. The investigator ultimately included numerous allegations beyond those described in the Complaint of Discrimination in her investigative report. The investigative memorandum contains what can only be described as a litany of perceived abuses directed at Petitioner by Allstate employees (and by employees of Petitioner’s prior employer), but makes no analysis or conclusions regarding those alleged events. Except for a very few, all of the incidents referenced in the investigative report occurred well prior to June 30, 2016. In accordance with Judge Stevenson’s June 6, 2018, Order, he allowed evidence to address matters identified in the investigative memorandum. Thus, to ensure as complete a record as possible for consideration by the FCHR, findings as to as many allegations as are identifiable will be made herein. The June 30, 2017, Complaint of Discrimination The Complaint of Discrimination alleged five “Events.” For ease of reference, they will be discussed as Events in the order presented in the Complaint of Discrimination, i.e., Event 1, Event 2, etc. Event 1 - Threat to Employment Petitioner alleged that, at some time from July 1, 2016 to July 11, 2016, Petitioner advised Richard Schaeffer of several instances of sabotage, harassment, threats, and retaliation, to which Mr. Schaeffer allegedly responded, “[y]ou need to figure out if this is the place for you to work.” Petitioner felt that his statement was a threat to his employment for reporting racial discrimination. Mr. Schaeffer recalled a discussion between Mr. Schaeffer and Petitioner within a few days prior to his termination. Mr. Schaeffer recalled suggesting that Petitioner “might consider another profession because you couldn't pass the exams for this one.” Mr. Schaeffer described the statement as “general career advice,” and based on Allstate “need[ing] actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.” Mr. Schaeffer testified that Petitioner never made any complaint of sexual or racial discrimination to him. He stated plainly that “[w]hile you worked for me you never complained about your work being sabotaged.” He had no recollection of any discussion regarding racist dolls, complaints of racial harassment, or racial terms. Regardless of the exact timing of the meeting, or exactly what was said, there is no competent, substantial, or persuasive evidence that Mr. Schaeffer’s statement was driven by racial animus or discrimination. With regard to the allegation that any conversation that Petitioner had with Mr. Schaeffer was a “threat” to his employment for reporting racial discrimination, Petitioner failed to meet the burden of proof to demonstrate through competent, substantial, or persuasive evidence, that Mr. Schaeffer’s statement was driven by racial animus or discrimination, that he reported racial or sexual discrimination, or that any statement made by Mr. Schaeffer was a threat to his employment. Event 1 of the Complaint of Discrimination lists four specific topics allegedly discussed with Mr. Schaeffer: “(a) Patricia Boland’s deliberate act of sabotage; (b) Kaz & Phil’s constant racial harassment; (c) David Dickson’s threats, lies, and subterfuge; (d) Lisa Henry’s retaliation.” Despite the fact that all but the “act of sabotage” occurred well before June 30, 2016, 365 days prior to the filing of the Complaint of Discrimination, they will be discussed herein so as to provide a clear record for review by the FCHR. Sabotaged Work by Ms. Boland Petitioner alleged that, on June 30, 2017,2/ Ms. Boland “deliberately deformed her census data, and blamed me for the subsequent mismatched quote in an attempt to compromise my employment.” The data regarding the group for which a term insurance plan was to be provided came to the underwriters in “census records” provided by the agents. The data consists of dates of births, genders, job titles, and salaries for each of the persons identified as being in the group. The underwriters would typically “take that information, plug it into one of the tabs of the generator [which could include the Snap Quote tool], and from there there's some functionality that allows us to manipulate or create the quote that the group is looking for.” Mr. Vlassov, who was a group underwriter, testified that mistakes were made, albeit infrequently, when census records were inputted and group participants were changed from male to female. Those instances were accidental “because we didn't have the sorting program in place. And of course, you had to do manual -- manual sort, A to Z, the usual sorting. And so switching within the columns. And of course, it's possible the other underwriter can forget just to -- misplace male and female.” On June 30, 2016, a quote was developed that appeared to deviate from a prior quote for the same group. It appears that the genders of the group, eight of one gender and five of the other, were switched. Such a switch can affect the risk calculation and, therefore, the rate. Petitioner claims that Ms. Boland deliberately changed the genders in the census data in order to sabotage his work on the Snap Quote tool. As he testified, “I was being framed for a bad calculation, knowing by someone -- by Patricia Boland I was being framed by Patricia Boland in an attempt to get me terminated or at the very least get my job compromised.” The precise cause of the mismatched data was not definitively explained. However, the greater weight of the evidence, and the most plausible inference that can be drawn for that evidence, supports a finding that the switched genders were the result of an error on the part of the underwriters in Ms. Boland’s section in entering the data into the Snap Quote tool. There is not a shred of competent substantial evidence to support the assertion that Ms. Boland manipulated the data in an effort to sabotage the validity of the Snap Quote tool. With regard to Ms. Boland’s job duties, Mr. Schaeffer indicated that she would check the accuracy of the Snap Quote tool, but had no ability to sabotage it. Mr. Schaeffer met with Petitioner in early July 2016 to discuss work-related matters. Mr. Schaeffer testified that Petitioner did not advise him that Ms. Boland “had sabotaged his work,” or express a belief that she had, stating that, “I would remember conversations if you thought people were sabotaging your work.” As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving specific instances of discrimination by a preponderance of the evidence. With regard to the allegation that Ms. Boland sabotaged the data being inputted into the Snap Quote tool or that Ms. Boland otherwise took any action directed at Petitioner for reasons of racial bias or animus, Petitioner failed to meet the burden of proof. Racial Harassment by Mr. Nagai and Mr. Kite The claim of racial harassment is predicated on allegations that Mr. Nagai and Mr. Kite “constantly mocked me, antagonized me, and racially ostracized me,” that Mr. Nagai placed a “racist doll” on Petitioner’s desk. The “racist doll” will be discussed in Event 2. The alleged utterance of “you look like a chimpanzee” will be discussed in Event 4. Early in Petitioner’s period of employment, he and Mr. Nagai appeared to be on relatively good terms. When the in- house gym closed for renovations in February 2014, Petitioner, Mr. Nagai, and a female co-worker went to Planet Fitness over the lunch hour. That apparently did not last long, as he accused them of “mocking” him, and changed his gym schedule to go at night after work. Over a period of at least two years,3/ Petitioner, Mr. Nagai, and Mr. Kite staged a joint Christmas event for their co-workers. They planned it together, bought a small Christmas tree, and made gifts for their co-workers. They jointly gave gifts to their co-workers “by calling each one at a time, and we wished holidays as they came and then got a gift.” As described by Mr. Nagai, “[w]e planned, we executed, and we had a great time.” Petitioner described the holiday festivities as “a good way to build camaraderie and it would be beneficial to the rest of the staff.” He indicated, however, that “the bonding did not happen because there was discrimination harassment that ensued.” At some point, Petitioner participated in planning a “25th year anniversary at Allstate” commemoration for Mr. Kite. As stated by Petitioner, “I wanted that for Mr. Kite. I wanted him to be thanked for his service. I wanted him to be celebrated for the time that he put in there.” Little else was discussed about the time or circumstances of that event. Mr. Nagai believed that he had a good relationship with Petitioner, and was appreciative of Petitioner for having taught him things. His testimony was credible and is accepted. During the period in which Mr. Nagai worked in proximity to Petitioner, he did not see any conduct towards Petitioner that he considered discriminatory, inappropriate, or offensive, nor did Petitioner tell Mr. Nagai that he considered his conduct discriminatory. Contrary to Mr. Nagai’s understanding of the nature of their relationship, Petitioner testified to a number of complaints that he had with Mr. Nagai, from his hours, to his work ethic, to his standing desk, to his office banter. He had similar complaints with regard to Mr. Kite. He never expressed those complaints with either Mr. Nagai or Mr. Kite. Mr. Nagai’s work hours were typically 7:00 to 7:30 a.m. to 5:00 p.m. If he was studying for an examination, he would arrive at work at 6:00 a.m., study for a few hours, and leave at 5:00 p.m. There was no credible evidence offered or received to suggest that Mr. Nagai’s work schedule was in any way influenced by Petitioner, or that he set his hours to advance a racial bias or animus towards Petitioner. Petitioner indicated to Ms. Henry that he found Mr. Nagai to be a distraction. Petitioner objected that, in his opinion, Mr. Nagai did not work as hard as Petitioner did, and complained that Mr. Nagai “danc[ed] around” while working at his standing desk. He also believed that with Mr. Nagai’s standing desk, “if I walk anywhere, he's watching me.” When Ms. Henry asked if she should discuss Mr. Nagai’s behavior with his supervisor, Mr. Posick, Petitioner declined, indicating that he would take care of it himself, and that he did not want to elevate things. Ms. Henry had no recollection of Petitioner complaining of harassment, or of Mr. Nagai or others “mocking” him. With regard to the allegation that Mr. Nagai and Mr. Kite engaged in a campaign of mocking, antagonizing, and ostracizing Petitioner for reasons of racial animus or bias, Petitioner failed to meet the burden of proof. Conflict with David Dickson At all times relevant to this proceeding, Mr. Dickson was an Allstate vice president, whose responsibilities included oversight of the IT department. The Snap Quote tool was a business solution that was being developed outside of the IT department. Nonetheless, the IT department had a mandatory responsibility to ensure that the product was within the “guardrails” that would allow it to be supported securely on Respondent’s system. With regard to anything deployed to any Allstate server or hardware, security is one of the tenets that must be protected. Therefore, if the product could not be supported, the project would have to be terminated. During the development of the Snap Quote tool, Petitioner began to communicate with the Core Technology Services group within Respondent’s IT department. Mr. Dickson testified credibly that Allstate’s IT department was responsible for vetting the software to make sure there were not any security loopholes, open source copyright infringements, or the like. The responsibility as to how the Snap Quote tool would be loaded onto Respondent’s computer system, and made available for use by Respondent’s various home and field offices, rested exclusively with the IT department.4/ Among the persons assigned by Allstate to work with Petitioner was Matt Miller. Although Mr. Miller did not directly report to Mr. Dickson, Mr. Dickson believed that, as an IT leader, members of the IT team had some figurative obligations to him. At some time prior to December 17, 2015, Mr. Miller spoke with Mr. Dickson and expressed that he was “uncomfortable” speaking with Petitioner about the Snap Quote project. It was not a detailed conversation, but it left Mr. Dickson with the impression that there was a problem between Petitioner and the IT section. On or about December 17, 2015, Mr. Dickson called Petitioner. It was his first time communicating with Petitioner. Mr. Dickson’s purpose in placing the call was to act as a facilitator and to try and work out difficulties that had arisen between Petitioner and the IT department about the rollout of the Snap Quote tool. It was his intention to engage Petitioner in problem solving to find a solution to the problems between the product side and the IT side. The telephone call started with a discussion of solutions to the rollout that Matt Miller and the IT team were discussing with Petitioner. At some point during the telephone call, things “became elevated” as Petitioner asked Mr. Dickson a number of questions, including his title and position within Allstate, who he was responsible for supervising, and who he worked for. Mr. Dickson testified that Petitioner became louder, and that his call “turned into an inquisition.” Mr. Dickson then ended the call. After the initial telephone call, Mr. Dickson asked Petitioner for a demonstration of the Snap Quote tool. During that second meeting, Petitioner was taking notes of options for deploying the Snap Quote tool that the two were discussing. Petitioner asked Mr. Dickson to sign the document. Mr. Dickson perceived that Petitioner was again becoming “elevated.” At that point, Mr. Dickson, who did not have the authority to commit to security-related solutions, “just went into defusal,” and got up to leave the room. Petitioner did not want Mr. Dickson to leave until he signed the document, and became, in Mr. Dickson’s view, agitated, upset and very loud and vocal, to the point that it became “almost a safety issue.” After the second meeting, Mr. Dickson spoke with Mr. Schaeffer about his interactions with Petitioner. As a result, it was arranged for Petitioner to demonstrate the capabilities of the Snap Quote tool in a third meeting at which Mr. Dickson, Mr. Schaeffer, Ms. Henry, and members of the IT team would be in attendance. Among the purposes of the demonstration was to engage in a discussion of Allstate’s IT architectural guidelines, which Mr. Dickson described as being “way above both of us, you know, coming down from corporate,” and what could be done from a security standpoint. Price and deployment times may have been factors, but the primary issue was security. During the demonstration, Petitioner produced a Word document that contained notes of the meeting, a chronology, and options for deployment of the Snap Quote tool. Petitioner asked Mr. Dickson to sign the document to commit to Petitioner’s preferred solutions that Mr. Dickson was still trying to problem-solve. Mr. Dickson again chose to terminate the meeting rather than proceed. He described the initial telephone conversation and the demonstration meetings as “one of the most uncomfortable situations I've ever had to experience at Allstate.” Mr. Schaeffer’s description of the third meeting went into greater detail than that of Mr. Dickson. Mr. Schaeffer indicated that the meeting was intended as a follow-up about how to deploy the Snap Quote tool. Petitioner and Mr. Dickson had different opinions as to how the deployment would be accomplished. As the meeting progressed, Petitioner accused Mr. Dickson of changing his mind about how the tool would be distributed, being unethical, and “lying and things like that,” and asked him to sign a form. Mr. Schaeffer was direct and unequivocal in his testimony that Petitioner called Mr. Dickson a liar during the meeting. Mr. Schaeffer described the situation as being fairly contentious between the two, to the point that Mr. Schaeffer asked Petitioner not to speak anymore in the meeting, and to have no further direct contact with Mr. Dickson. The meeting then ended. At no time during the meeting did Petitioner state that Mr. Dickson’s conduct was in any way racial harassment. Ms. Henry testified that the meeting devolved due to Petitioner’s disagreement with the deployment solution recommended by Mr. Dickson and the IT department. Petitioner did not suggest to Ms. Henry that Mr. Dickson was acting illegally or in violation of Allstate procedures. Rather, she indicated that Petitioner “thought that [Mr. Dickson] was trying to throw his weight around and make [Petitioner] look bad.” She further testified that Petitioner was “disrespectful to everybody in the room,” and that as a result of Petitioner’s conduct, the meeting was “very contentious and antagonistic and accusatory and the tone was just not appropriate for the business environment.” After the meeting, Petitioner filed an internal ethics complaint against Mr. Dickson. In addition, Petitioner requested that Mr. Dickson, an Allstate vice president, be prohibited from communicating with the actuarial department for a period of six months. Neither party introduced a copy of the ethics complaint in evidence. Petitioner described the complaint as being related to “unethical conduct” in that: He used bullying tas- -- tactics, bureaucracy to subjugate me as an employee and he targeted me in a discriminatory fashion because other people were in the same boat, yet I was getting all of his ire. That was unethical . . . . [He] told me a stack of lies. He threatened my employment. He sent someone to take over my duties, all of these were not in line with the company's goals. These were in line with ostracizing and marginalizing me as an employee. There is no competent substantial evidence in the record that the ethics complaint included any charge of racial animus, bias, or harassment, or that any of the interactions between Petitioner and Mr. Dickson were racially motivated. Mr. Dickson recalled very little about the process of the investigation because it was, in his estimation, so outlandish that he did not dwell on it. The outcome of the investigation resulted in no action being taken against Mr. Dickson. Subsequent to the demonstration meeting, Mr. Dickson had no further involvement with Petitioner. He made no request that Petitioner be removed from the Snap Quote product, or that Petitioner face any consequence relating to the product. Mr. Dickson had no role in a recommendation to discipline or terminate Petitioner. There is no competent, substantial, or persuasive evidence that any of the interactions between Petitioner and Mr. Dickson included any element of racial animus, bias, or discrimination, and none is found. Petitioner did not discuss the ethics complaint with Mr. Schaeffer, who did not learn of it “until well after the fact,” and knew nothing of its details. Prior to Petitioner’s termination, Mr. Schaeffer met with Petitioner and advised him that his accusations that Mr. Dickson was lying and asking him to sign documents “made the meeting impossible and in no way was helping us get cooperation from the IT department that we needed.” Mr. Schaeffer stated that Petitioner was making it difficult to get tasks done because he was making enemies of people. Those statements have no tinge of racial animus, and none is found. With regard to the allegation that the incidents with Mr. Dickson were influenced by Mr. Dickson’s racial bias or animus towards Petitioner, or that Petitioner reported racial discrimination resulting therefrom, Petitioner failed to meet the burden of proof. Retaliation by Lisa Henry Petitioner has alleged that Ms. Henry retaliated against him “for filing that report on David Dickson.” On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation. Ms. Henry explained the basis for her evaluation. She indicated that a rating of inconsistent “means that sometimes it was good, sometimes it was bad, that not all goals were met. There's a formal definition in the HR system that I used the guidelines for [ ] my decision, so there were certain business goals that were fine and there were -- and leadership goals which are also a very important part of being an employee, and the balance between those two led me to give him an inconsistent.” She went through various sections of the evaluation, explaining the basis for her decisions. Her testimony was credible. Certainly, an evaluation that rates on a scale of performance involves an element of subjectivity. It is not the role of the undersigned to quibble with whether a particular rating is warranted. Rather, it is to determine whether an evaluation is influenced by racial or sexual discrimination, bias or animus, or whether it constitutes retaliation as that term is used in section 760.10(7). Petitioner registered his disagreement with his 2015 performance evaluation, not only in discussions with Ms. Henry, but also in his written comments to the 2015 evaluation. In his written comments, Petitioner stated his belief that the evaluation was “rooted in tainted ground,” and that “this final review signals something more unethical.” However, he also stated that “I enjoy working for [Ms. Henry]; for my company; and in the capacity that we do it. In the future, I hope that we can work more harmoniously, fairly, honorably, transparently, and with standard setting accountability.” The preponderance of the evidence suggests that the “tainted ground” and “unethical” review was directed to the incident with Mr. Dickson. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of racial or sexual discrimination or harassment, or that it was retaliation as defined in section 760.10(7). There is no question but that the incident with Mr. Dickson was an element of Ms. Henry’s evaluation of Petitioner, and the decision not to retain him after he failed out of the ACP. However, that incident was determined to be an example of Petitioner’s inability to work cooperatively with Allstate employees, supervisors, and business partners. Petitioner’s “opposition” to Mr. Dickson’s involvement was based on his disagreement with the manner in which the Snap Quote tool was to be deployed. To the extent Petitioner’s behavior towards Mr. Dickson formed a basis for his evaluation, the performance rating was founded on a determination that Petitioner could not work cooperatively with Allstate employees, supervisors and business partners, as was determined to be a critical element of the job. It was not influenced by Petitioner’s race or sex. There was no competent, substantial, or persuasive evidence offered to establish that any employment decision made by Ms. Henry was based on Petitioner’s opposition to acts of discrimination based on race, color, religion, sex, national origin, age, handicap, or marital status. At the time the decision had been made to terminate Petitioner, he had filed no claim of discrimination with the federal Equal Employment Opportunity Commission, the Florida Commission on Human Relations, or a designated representative thereof. Petitioner was participating in Allstate’s investigation conducted in response to his ethics complaints against Mr. Dickson and Ms. Henry. Those ethics complaints could, indirectly, be participation in his subsequent FCHR claim. However, the greater weight of the evidence establishes that neither the ethics claims nor the internal investigations involved any claim of discrimination cognizable under the FCRA. Thus, Petitioner’s involvement in those ethics complaints was not “participation” in any form of proceeding involving a claim of race or sex discrimination, or retaliation for actions related thereto. With regard to the allegation that Ms. Henry retaliated against him for reasons of his opposition to incidents of racial or sexual discrimination, or for his participation in a proceeding designed to remedy racial or sexual discrimination either through her 2015 evaluation or through the decision to terminate Petitioner on August 12, 2016, Petitioner failed to meet the burden of proof. Event 2 - The “Racist Doll” Sometime prior to July 2015, several solar-powered dancing hula dolls had been placed on the tops of the dividers between the cubicles occupied by Petitioner, Mr. Nagai, and Mr. Kite. The evidence was not compelling as to where the hula dolls came from, but the evidence supports a finding that they were in the office. In July 2015, Mr. Nagai purchased two three-packs of solar toys from the Dollar Tree thinking, “it would be nice to have within the team.” The packs contained a monkey, a panda, and a parrot, each on a moving swing. Mr. Nagai testified that he gave the parrots to two women in the accounting department, and randomly distributed the monkeys and the pandas in the department. One of the monkeys was placed on Petitioner’s desk. Mr. Kite received a toy, Mr. Nagai kept one for himself, and one was apparently given to a fourth person. It is not known who received which of the other toys. Mr. Nagai testified, credibly, that he “randomly put those on people's -- friends' desks. So as I pull from the bag, that's the one he -- they get. I believe I gave it to all the people in our side. And some people got panda. Some people got monkeys.” He viewed the toys as simple office decorations. Petitioner testified that he found the toy to be offensive and “objectionable,” symbolizing that he was considered “the office monkey.” Nonetheless, he never complained about the toy to Mr. Nagai, Ms. Henry, or anyone else, and never told anyone that he found the toy to be offensive. Petitioner did not remove the toy from his desk, where it remained for months until it was replaced as Christmas approached with solar powered Santa Clauses, snowmen, and other holiday characters. Had Petitioner ever told Mr. Nagai that he was uncomfortable with the toy, or found it inappropriate, Mr. Nagai would have removed it. With regard to the allegation that the solar-powered toy that Mr. Nagai placed on Petitioner’s desk was intended to and had the effect of exposing Petitioner to racial denigration, or that Mr. Nagai selected the monkey to place on Petitioner’s “cube” as an act of racial animus or bias, Petitioner failed to meet the burden of proof. Event 3 - Sabotage of the Grading of the Actuarial Exam Petitioner has alleged that Allstate manipulated the grading of Petitioner’s May 2016 actuarial exam. Testing and grading is performed by the Society of Actuaries (“SOA”). Allstate is not involved in the administration of the examination or its grading. The examination was not administered at the Allstate offices. Nonetheless, Petitioner claims that he would have passed the exam, except Allstate convinced the SOA to alter his answers so that he would fail, thus, creating a falsified basis for his termination. He further alleged that he has distinctive handwriting, so it would have been a simple matter for Allstate to have identified his test. Prior to Petitioner taking the May 2016 exam, Ms. Henry asked Ms. Halim to review Petitioner’s practice exam with the goal of helping Petitioner pass the May 2016 exam. Ms. Halim has her FSA. Ms. Halim is not, nor has she ever been an actuarial examination grader. Years prior -- as far back as 2003 -- Ms. Halim served as an exam writer, and developed multiple-choice questions for the examinations to become an ASA. She had no involvement in writing examinations to become an FSA. Ms. Henry thought that Ms. Halim could contribute some advice. If Ms. Halim had felt that she could not contribute, she would have declined. Ms. Halim’s advice was generally limited to suggesting that Petitioner’s handwriting be larger and clearer so as to make it more legible for the exam grader, and to “box” his calculations related to an answer so the grader would not have to search the paper. Petitioner failed the May 2016 examination. It was his third consecutive time failing the examination. Ms. Halim was not involved in either of the previously failed tries. Petitioner produced no competent substantial evidence to support his allegation that Allstate somehow conspired with the SOA to falsify the results of Petitioner’s examination for the purpose of having him fail the examination, thus, creating a pretext for his termination under the terms of the ACP. The evidence established that such a conspiracy is not possible. With regard to the allegation that Allstate somehow influenced the grading of Petitioner’s actuarial examination, Petitioner failed to meet the burden of proof. Event 4 - “You Look Like a Chimpanzee” Related to Petitioner’s complaint that Mr. Nagai and Mr. Kite mocked, antagonized, and ostracized him was Petitioner’s allegation that, at some time during the fall of 2015, Phil Kite yelled “you look like a chimpanzee” to Petitioner as he was walking through the office. Petitioner alleged that the statement was an act of racial discrimination. Mr. Kite specifically denied having ever made a statement like that described by Petitioner. Mr. Kite testified that “[i]t is not in my nature to do anything that would belittle someone's appearance, physical or otherwise. And so I would not do that.” Petitioner asked Mr. Kite if “anybody [was] going to contradict what you just testified to,” to which Mr. Kite answered “No.” Mr. Kite was correct. The following testifying witnesses were asked if they heard Mr. Kite yell out, “You look like a chimpanzee”: Ms. Bradley; Mr. Nagai; Mr. Parsons; Mr. Posick; and Ms. Henry. Not one witness testified that they heard the alleged statement, despite several having workstations that would have been in easy earshot. Ms. Bradley further testified that she never joked about Petitioner looking like a chimpanzee, nor did she hear negative comments about him. Petitioner did not report the alleged statement to anyone within his supervisory chain of command, to Allstate’s HR hotline, to Allstate’s HR department, or to anyone at Allstate. With regard to the allegation that Mr. Kite called out to Petitioner “you look like a chimpanzee,” whether in an effort to racially denigrate Petitioner or otherwise, Petitioner failed to meet the burden of proof. Event 5 - Disproportionate Terminations Petitioner’s Complaint of Discrimination alleged that, between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment. He listed Pam Bernaba, “Bryce,” “Winston,” “Ms. Bryant,” and Sharon Spruitt as black employees, and Lidiya Olsen, a white Russian employee, who were “abruptly terminated.” There was no competent, substantial, or persuasive evidence, of any kind, offered or received to support the allegation. With regard to the allegation that between spring 2014 and spring 2016, a statistically disproportionate number of black employees on the seventh floor were terminated from employment, Petitioner failed to meet the burden of proof. The November 30, 2017, Investigative Memorandum Pursuant to Judge Stevenson’s June 6, 2018, Order, evidence was allowed to address matters discussed in the FCHR’s IM. The Memorandum deals with many disparate allegations, some of which have no evidentiary support. Most involve incidents that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Some involve allegations against prior employees. To the extent an allegation identified in the IM derived from the Complaint of Discrimination, and was discussed previously, it will not be repeated here. However, other incidents identified in the IM, none of which were set forth in the Complaint of Discrimination, will be discussed herein so as to provide a clear record for review by the FCHR. 2012 Incidents - Previous Employer The IM referenced two incidents that occurred in 2012, before Petitioner was hired at Allstate. Those incidents are not only well beyond the 365-day jurisdictional threshold for relief, but involve a previous employer. Why the investigator chose to include them in the IM is a mystery. Nonetheless, there was no evidence offered or received to support the allegations. The Condolence Card The IM next recited Petitioner’s allegation that “[s]taff screamed at [Petitioner] for buying a condolence card.” In August 2015, Petitioner purchased a condolence card for an Allstate employee. Whether he knew it or not, a condolence card was already being circulated throughout the actuarial department. The managers or someone in the department handled those situations in a more coordinated manner as was, apparently, the normal practice. Petitioner gave the employee his card, so there were two cards, “which caused confusion.” For whatever reason, this upset the grieving employee, who approached Ms. Halim and expressed her feelings. After the cards were distributed, Petitioner was sitting in a “huddle room” in the actuarial department. Ms. Halim approached Petitioner, asked that he not send cards out on his own, and said that she was “pissed” at him. She was upset, and her voice was “elevated.” Frankly, the undersigned is at a loss as to why an extra condolence card would be a source of consternation. It seems a small matter to be “pissed” about. Nonetheless, the incident was exclusively the result of Petitioner going outside of the “normal” way of doing things in the department. There is no evidence that the incident had anything to do with racial animus or discrimination. Throwing Things The IM next stated that Petitioner alleged that “between 2014 - 2016, . . . [Petitioner’s] manager threw items at [Petitioner].” During his testimony, Petitioner alleged that Ms. Henry would “throw candy at me. She threw paper at me. She threw a banana at me once.” The allegation was not mentioned in the Complaint of Discrimination. Despite having Ms. Henry on the stand, along with others who would have been in a position to observe such behavior, Petitioner never questioned anyone about the alleged conduct. There was no indication that the conduct occurred on or after June 30, 2016 (365 days prior to the June 30, 2017, Complaint of Discrimination), and the context of the statement, and the totality of the evidence concerning the period after June 30, 2016, indicates that, if it occurred, it occurred before June 30, 2016. Furthermore, there was no evidence whatsoever to support a finding that, even if the event occurred as described by Petitioner, it was a result of racial or sexual animus, bias, discrimination, or harassment, or that it was done as an act of retaliation as defined in section 760.10(7). Mr. Nagai’s Performance The IM next recited Petitioner’s allegation that Mr. Nagai’s work product was inaccurate, and that that he “received superior treatment for a pattern of poor work and poor behavior.” Mr. Nagai was honest that, of course, he has made mistakes, and has owned up to them. However, he also testified, credibly, in response to a question as to whether his errors made him fear for his job, that “I take my work -- I take pride in my work. So whenever I find errors and mistakes, I take it seriously . . . . However, my errors was immaterial, [and] I was not afraid -- based on the amount of the errors I made, I was not afraid.” Mr. Posick testified that “Mr. Nagai had proven to be someone that I could depend on, and the quality of his work was good.” He further testified that Mr. Nagai is “a valued employee. The work that he's doing has evolved over time, and I depend on him. He's built a number of processes that have improved the work that we do. He understands them. He's a value to the company and to me personally. . . . [Mr. Nagai] is an incredibly hardworking individual that, when given a task and a deadline, will do the work necessary to complete that task. That's the highest praise that I can give him.” Mr. Posick’s testimony is credited. There was no competent, substantial, or persuasive evidence to suggest that Mr. Nagai received superior treatment for work or behavior that was comparable to that of Petitioner, or that employment decisions with regard to Mr. Nagai were the result of any racial bias or animus towards Petitioner. Finally, the IM recited Petitioner’s allegation that soon after spring of 2014, Mr. Nagai “got removed from the [ACP] but allowed to keep his exact same job, title, and salary.” The evidence demonstrates that Mr. Nagai was removed from the ACP for failing an examination in the spring of 2017, after Petitioner’s termination. He remained qualified for the job he held at the time as an actuarial associate. Mr. Nagai worked in a different section, with a different number and mix of positions, and with a different supervisor. There was no competent, substantial, or persuasive evidence to suggest that Mr. Posick’s decision to offer Mr. Nagai a position as a “career ASA” after his removal from the ACP was the result of any racial bias or animus towards Petitioner. Coaching by Ms. Henry In addition to the foregoing allegations regarding Mr. Nagai, the IM referenced Petitioner’s complaint that Ms. Henry “lied about spending all of 2015 conducting coaching sessions with him.” The statement related to alleged acts that occurred more than 365 days prior to the filing of the Complaint of Discrimination. Furthermore, there was no evidence offered or received to suggest that Ms. Henry lied about coaching, to whom she may have lied, or that any such lie was motivated by racial or sexual harassment or discrimination. The evidence demonstrated that, prior to 2016, Ms. Henry had no formal coaching sessions with Petitioner. However, she considered daily direction and education on how Allstate works and how her employees interact with customers to be “coaching.” After Petitioner’s receipt of his “inconsistent” evaluation in early 2016, Mr. Schaeffer spoke extensively with Petitioner about his job performance. Petitioner complained that he was not given feedback during the year that his job performance was not satisfactory, and requested specific examples. It was suggested that regular coaching would be appropriate. Ms. Henry scheduled regular coaching sessions for the second Friday of every month. Petitioner declined to appear for the scheduled coaching sessions. He gave no contemporaneous excuse or notice; he would just not show up. Later, Petitioner complained that Allstate was singling him out by giving him too much coaching. There was no competent, substantial, or persuasive evidence to suggest that Ms. Henry lied about her efforts to coach Petitioner, either in 2015 or at any other time; and in any event, her coaching efforts, whether formal or informal, had nothing to do with Mr. Posick’s supervision of Mr. Nagai, and were in no way proven to be the result of racial or sexual harassment or discrimination towards Petitioner. Salary Disparity The IM discussed the allegation that Petitioner’s salary was less than comparable employees, and that black employees’ salaries were less than a group of “other white employees.” There was no competent, substantial, and persuasive evidence offered or received as to the salaries of the listed employees, except for that of Mr. Nagai. As to the comparison between Petitioner and Mr. Nagai, the evidence indicates that Petitioner was first hired as an actuarial technician in November 2013 at an annual salary of $65,000. Petitioner provided no evidence of any salary increases after his hiring, though the ACP Guidelines provide for an employee raise after achieving the ASA, which Petitioner achieved in 2014. In contrast, Mr. Nagai’s starting salary as an actuarial technician was $60,000, less than that of Petitioner. There was no competent, substantial, or persuasive evidence to suggest that there was a racially based salary disparity at Allstate during Petitioner’s period of employment or otherwise, and none is found. “Shackle the Monkey” The IM recited Petitioner’s allegation that Ms. Henry, during a discussion of his performance evaluation, stated to him that “this is how I choose to grade you. I choose to shackle the monkey before it becomes a gorilla.” She allegedly restated that comment at some unidentified 2016 meeting. Petitioner received his final performance evaluation from Ms. Henry in the spring of 2016. Thus, the alleged statement occurred more than 365 days prior to the filing of the Complaint of Discrimination. Ms. Henry gave Petitioner a performance rating of “inconsistent.” Petitioner did not agree with the rating, stated that he should have been rated “better than expected” on everything, accused Ms. Henry of being inaccurate and unethical, and refused to sign the evaluation. Petitioner alleged that, as she was discussing Petitioner’s final performance evaluation with him, Ms. Henry punctuated her evaluation with the statement that she would “shackle the monkey before he becomes a gorilla.” Ms. Henry denied having made the statement, either to Petitioner or in a separate 2016 meeting with Caroline (or Catherine) Levy. Mr. Schaeffer testified that he did not know Ms. Henry to have used that term. Petitioner further alleged that he reported the alleged statement during his July 2016 meeting with Mr. Schaeffer. Mr. Schaeffer specifically denied any such report, stating, “That I would remember. You never made any complaints about racial harassment or racial terms such as that that were used.” With regard to the allegation that Ms. Henry stated she would “shackle the monkey before he becomes a gorilla,” Petitioner failed to meet the burden of proof. “Devalued the Profession” The IM described an alleged “going away lunch” during which Mr. Posick stated that Petitioner “devalued the profession,” and that his recently achieved ASA “watered down the profession.” The IM indicated that the event occurred in July 2015. Petitioner testified that, in June 2014, he and several employees, including Mr. Posick and Mr. Nagai, were at a going away lunch when Mr. Posick stated, loudly enough for all to hear, that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made his less valuable. Regardless of which date is accurate, the alleged statement occurred more than 365 days prior to the filing of the Complaint of Discrimination. Mr. Posick testified that he never said that Petitioner’s credentials devalued the profession. He testified that he never said Petitioner’s ASA made his less valuable. He testified that he has never said anything to that effect about anyone. Although Mr. Nagai had no specific recollection of having attended that particular going away luncheon, he had no recollection of ever having heard Mr. Posick make such statements. Though Petitioner alleged that others were in attendance, and “[e]veryone laughed,” no other witnesses were called to substantiate the allegation. With regard to the allegation that Mr. Posick stated that Petitioner’s “credentials devalued the profession,” and that Petitioner’s ASA made Mr. Posick’s less valuable, Petitioner failed to meet the burden of proof. Working from Home The IM indicated that Petitioner asked to work from home at some time between June 14 and June 22, 2016. His request was denied. Petitioner claimed that the denial was discriminatory, since two white employees had been allowed to work from home. The denial of the request occurred more than 365 days prior to the filing of the Complaint of Discrimination. Petitioner was frequently described as one who preferred limited interaction with his co-workers. Ms. Henry described him as “preferr[ing] to keep to yourself with the computers and chugging away at programming.” As a result, starting in May or June of 2014 (according to Petitioner), barely six months from the time he was hired, he began to ask to work from home. He testified that: I wanted to work from home. Actuarial work can be done remotely. I can do actuarial work right now. You know, I can go down to Antarctica, pop up a laptop, and I can start crunching numbers, Your Honor. We don't need to be passing -- hand -- we don't need to be hand shaking. We don't even have to talk to one another, Your Honor. It can be done remotely. I could have done my job remotely at home. Petitioner’s requests were ongoing. Ms. Henry had no direct reports who worked from home. Petitioner was Ms. Henry’s only actuarial employee. As stated by Mr. Schaeffer, there are legitimate, business-related reasons for having employees working at their place of employment. He testified that actuarial employees’ availability to meet and discuss matters with co-workers, supervisors, and business partners is a necessary component of the position, particularly when, as here, the actuarial department is relatively small. His reasoning is reasonable and accepted. Petitioner’s requests to work from home were not granted. Petitioner argued that two Allstate employees were allowed to work from home. According to Petitioner, those employees were not African-American, and that race must have been the basis for the denial of his request. One of the alleged comparators was a woman who was on maternity leave, and asked to extend her leave for a few weeks. She was allowed to work from home during that period of several weeks before returning to work at the office. The second alleged comparator was a woman whose husband was stricken with cancer. She needed to work from home to care for him. She asked for and received permission to work from home so she could provide care. The two women who were allowed to work from home are, in no way, comparators to Petitioner. That the two women were allowed to temporarily work from home for legitimate medical and family reasons, and Petitioner was not allowed to permanently work from home, is not evidence of racially disparate treatment. Petitioner also identified Bridgette Tennant as being another white employee that was allowed to work from home. Although Ms. Tennant had been with Allstate for 22 years when Petitioner was hired, during all times relevant to this proceeding she was not a salaried employee of Allstate. She was never in the ACP. She was a contractor who worked on an hourly basis. She received no paid vacations, holidays, sick leave, or retirement. The work assigned to her was limited to what she could do remotely. As a result, there were only two or three tasks that she was assigned. Ms. Tennant’s position at Allstate is not at all comparable to that of Petitioner, and Allstate’s decision to allow Ms. Tennant to work from a remote location is not evidence of racially disparate treatment.5/ Ms. Halim also indicated that various employees on her team were, on occasion, allowed to work temporarily from home, for a week or less. Ms. Halim does not supervise Petitioner. It was not revealed whether the employees being granted temporary work-from-home status were actuarial employees or support staff. The reasons for the decisions were not asked or volunteered. Ms. Halim has more than one actuarial employee on the “health” side of the actuarial department. Ms. Halim’s decisions to allow her employees to temporarily work from home, while Petitioner was not allowed to work permanently from home, is not evidence of racially disparate treatment. In addition to his requests to work from home, at some point after March 2015, Petitioner asked to change his work hours so that he would not be in the office when other employees would be there. Petitioner provided no reasoning for his request. However, his requested hours would have made it so that he would not have been in the office during the regular work hours of his supervisor. Allstate attempted to accommodate Petitioner’s request by allowing him to start earlier in the day and adjusting his schedule with the understanding that Petitioner needed to be available “during core hours” if other business partners wanted to schedule afternoon meetings. Petitioner also asked to move his workstation to be away from his co-workers. Allstate was short of room as it was, so there was no room to move Petitioner. With regard to Allstate’s decision to require Petitioner to come to work at the office, as he had been hired to do, Petitioner failed to meet the burden of proof that the decision was driven by racial or sexual discrimination, bias, or animus. Other Random Allegations The IM included a number of other observations, sometimes buried in a discussion of other issues, and sometimes separately. They include, but are not limited to that Petitioner filed an ethics complaint against Ms. Henry after his final evaluation; that Allstate hired employees after his termination; that Ms. Henry “forced [Petitioner] to sign annual reviews, with which he disagreed”; and various incidents that “used a combination of passive aggression and physical intimidation.” Having carefully reviewed the IM, the undersigned finds that Petitioner failed to meet the burden of proof that the incidents described therein were driven by racial or sexual discrimination, bias, or animus, or by retaliation for having opposed an unlawful employment practice, or for having participated in an investigation, proceeding, or hearing under the FCRA. Other Allegations of Discrimination In addition to the foregoing, Petitioner spent considerable time discussing matters that he claimed were provided to FCHR, but which were not included in the Complaint of Discrimination, or discussed in the IM. Several of those matters warrant discussion. Dinner and a Movie Petitioner alleged (for the first time) in his Petition that Ms. Henry propositioned him repeatedly in 2014 -- advances that he spurned -- thereby constituting sexual harassment, creating a hostile work environment, and forming a basis for retaliation. When Petitioner was hired in November 2013, Ms. Henry understood that he was new to Jacksonville, and perceived that he had few activities outside of work. Early in Petitioner’s period of employment, during routine office banter, he expressed an interest in a movie that Ms. Henry knew her husband wanted to see. Ms. Henry and her husband were going out to dinner and to see the movie, so she invited Petitioner to join them. It was Ms. Henry’s practice with employees that were new to town to ask if they needed to learn new restaurants or wanted to be taken places. She saw no harm in the offer. It was free to be declined and, in fact, Petitioner did decline with no consequences. Ms. Henry has, over the years, made numerous similar invitations to persons who were new to town. As stated by Ms. Henry, “I have been to dinner with many people in our department and lunch and bowling and movies, and it's just social interaction.” Ms. Henry also asked Petitioner if he wanted to go bowling since Petitioner had mentioned that he enjoyed bowling. She told him that Allstate employees had formed a league team that had an open spot. She would generally ask Petitioner anytime she thought he was working too much and needed a distraction. She asked him on more than one occasion, and recalled that Petitioner did join the league at one point. However, Petitioner’s typical response was that he would “like to but [he was] studying or busy or it's hard to get there because [he] rode a bike and it was on the other side of town.” She did not specifically recall the frequency of her invitations. Since Petitioner gets around by bicycle, if Petitioner wanted to attend something that was too far to go by bicycle, Ms. Henry offered on occasion to drive him, stating, “I thought that was a polite thing to do.” Petitioner testified that Ms. Henry approached him on one occasion between November 2013 and the start of 2014 and suggested that they go to dinner and a movie together, and that “she also added in that her husband would not be there.” He characterized the alleged invitation as “asking me to go on dates,” which he characterized as being inappropriate and “set[ting] a bad tone for my employment there.” The undersigned finds Petitioner’s description of events to be, perhaps, the result of a simple misunderstanding. In any event, the undersigned finds Ms. Henry’s testimony and description of her intent to be credible and sincere. There was absolutely nothing improper, inappropriate, or unethical about Ms. Henry’s expressions of common decency and civility. Her attempts to engage Petitioner in social activities were not tinged with even a hint of sexual motivation. They involved no racial discrimination or bias. Her invitations cannot, under any reasonable evaluation of the evidence, be construed to have created a hostile work environment. Petitioner’s refusals to join Ms. Henry and her husband for dinner and a movie, or to join the Allstate bowling team, were not grounds for retaliation and, in fact, did not cause retaliation of any kind.6/ Retaliation Complaint against Ms. Henry In January or February 2016, Petitioner filed an internal ethics complaint against Ms. Henry. Ms. Henry had no specific information about the complaint or the allegations. Neither party introduced a copy of the complaint in evidence. It was Ms. Henry’s vague understanding that Petitioner was asserting that she was retaliating against him for his complaint against Mr. Dickson. She was interviewed but, other than questions regarding the third meeting involving Petitioner and Mr. Dickson to discuss the Snap Quote tool, had no recollection of the issues. At no time was Ms. Henry advised by the HR investigators that the complaint had anything to do with retaliation for complaining about race discrimination or sex discrimination. At the time Petitioner failed the third actuarial examination, she did not know if the investigation was still ongoing. There is no competent, substantial, and persuasive evidence to establish that the complaint against Ms. Henry had anything to do with racial or sexual discrimination, harassment, or retaliation. “Closet Actuary” During his period of employment, Petitioner alleged that Mr. Schaeffer referred to him as a “closet actuary.” Petitioner took that to be an affront to his manhood, and evidence of sexual harassment and discrimination. Mr. Schaeffer credibly testified that the term “closet actuary” is one he heard early in his career, more than 25 years ago, and describes “somebody [who] just wants to work in a closet and have work shoved under the door to them, they do it and spit it back out, that is what I mean by a closet actuary, somebody who does not want to work with other people.” Mr. Schaeffer testified, accurately, that Petitioner did not want to work with other people, and had asked to work during times that others would not be at the office. He noted that, during the final months of Petitioner’s employment, he asked to work at “unusual hours.” The request was denied. Although a large department can afford to have actuaries “who just want to sit in a corner and crank out numbers, [and] not deal with other people,” Allstate had a small actuarial department. Therefore, Allstate needed its employees to work regular “core hours,” to communicate and work with people in other departments and fellow employees in their department. Mr. Schaeffer stated that he may have directed the term “closet actuary” at Petitioner because “we need actuaries who will work with other people, not people who want to work on an island all by themselves and not be bothered with other people.” A preponderance of the evidence demonstrates that the term “closet actuary” has no racial or sexual connotation, and that the use of the term is not evidence of discrimination of any kind. Move to the Eighth Floor Petitioner alleged in his Petition that Allstate’s planned move of the actuarial department to the eighth floor after the completion of renovations was timed to occur after his termination, so that senior management would not have to share space with a black actuary. Allstate had, for about five years prior to Petitioner’s termination (which mathematically would have also started before he was hired), been remodeling floors in its building to upgrade the mechanical equipment and physical capabilities, and to create more occupancy. Virtually every department in the building moved at one point during the five- year renovation period. During 2016, Allstate was remodeling the eighth floor. When the eighth floor was remodeled, it produced more space for more employees. No team was transferred from the eighth floor during the remodel. The expectation was that the actuarial department, which was on the seventh floor, would move to the eighth floor upon completion, since the reconfigured space would allow for a department of the size of the actuarial department. Allstate’s executive level management also occupies the eighth floor. The renovations of the eighth floor were completed at some time in early 2017, and the actuarial department moved. By the time of the hearing, the actuarial department took up almost every available seat allotted to it. When asked if he thought the move felt like an “improvement,” Mr. Kite indicated it did not, stating that “[a] cubicle is a cubicle.” Petitioner asked Mr. Guidos, “[d]id you make it a condition for the eighth floor move to be terminating Elias Makere's employment,” to which the answer was “no.” His testimony is credited. With regard to the move of the actuarial department to the eighth floor, there was no competent, substantial, or persuasive evidence to support a finding that its occurrence after Petitioner’s termination was influenced, in any manner, by racial or sexual discrimination, bias, or animus towards Petitioner, or in retaliation for any action or statement by Petitioner. Payment for Third Examination During his testimony, Mr. Nagai indicated that Allstate paid for his third actuarial examination that he failed, leading to his removal from the ACP. Mr. Posick suggested, with less certainty, that Allstate paid for Mr. Ciurte’s third actuarial examination that he failed, leading to his removal from the ACP. Petitioner was compelled to pay for his failed third examination. There was no other evidence regarding the circumstances of the payments to Mr. Nagai and Mr. Ciurte. As indicated, both were in different sections, with different supervisors, and different employment status. There was no evidence that the payments were made as a result of racial discrimination, animus, or bias. More to the point, despite Petitioner providing testimony that he paid for his failed third examination, while others did not, Petitioner never pled that in his Complaint of Discrimination. It was not discussed in the IM. It was not included in the 231-page Petition for Relief. Thus, regardless of whether Mr. Nagai and Mr. Ciurte’s third examinations were paid, and Petitioner’s was not, that issue is not cognizable in this proceeding. Reporting Discrimination It is uniformly recognized that for an employer to be found to have engaged in discrimination or harassment under the FCRA, it must have been placed on notice of the offending conduct. The evidence in this case demonstrates that Petitioner never complained about, and never expressed offense or concern with any of the incidents discussed herein, with the exception of the incident with David Dickson. Respondent has a policy that employees should report discrimination and harassment, and has established protocols by which they may do so. The human resources department has a telephone hotline with a published list of telephone numbers for reporting discrimination. An employee can report to his or her manager, or their manager’s manager. During the period of his employment, Petitioner never reported to anyone at Allstate that he believed he was being subjected to racial or sexual discrimination or harassment. During his period of employment, there are two documented instances of Petitioner having complained of any workplace conduct. The first was his ethics complaint against Mr. Dickson. That complaint was not founded on racial discrimination, nor did it constitute a report of any form of discrimination. The second was his complaint against Ms. Henry, which he described as being about “[h]er retaliatory conduct towards me when I complained about David Dickson and that retaliatory conduct evidenced itself in the performance evaluation.” There is no competent substantial evidence that the complaint had anything to do with racial or sexual discrimination, nor did it constitute a report of any form of discrimination. Petitioner did not call the Allstate hotline, file a complaint with the HR department, or complain of any form of discrimination to anyone within his chain of supervision. Petitioner did not report any type of discrimination to Mr. Randles. Mr. Randles was never made aware of any acts of discrimination towards Petitioner, or of anything that he considered inappropriate. In May 2015, Petitioner’s 2014 performance evaluation was completed. Petitioner objected to his overall “as expected” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement not only in discussions with Ms. Henry, but in his written comments to the 2014 evaluation. Despite his lengthy comments, Petitioner made no reference to being subjected to any form of discrimination, harassment, or retaliation.7/ On March 31, 2016, Petitioner’s 2015 performance evaluation was completed. Petitioner objected to his overall “inconsistent” evaluation. He believed he was entitled to a “better than expected” evaluation. He registered his disagreement in his discussions with Ms. Henry, and in his written comments to the 2015 evaluation. In his written comments, Petitioner disagreed with Ms. Henry’s assessment, “believ[ing] that it’s rooted in tainted ground,” and that “this final review signals something more unethical.” The evidence established conclusively that those issues were related to his ethics complaint against Mr. Dickson, and not to any racial or sexual discrimination, harassment, or retaliation, and do not constitute a report to Allstate of discrimination, harassment, or retaliation. Petitioner did not complain to Mr. Schaeffer about racial or sexual discrimination, harassment, or retaliation while he was in Mr. Schaeffer’s chain of supervision. Petitioner alleged that he informed Mr. Schaeffer of incidents of discrimination, including the alleged sabotage by Ms. Boland, the “racist doll,” and Mr. Kite’s alleged “chimpanzee” statement. Mr. Schaeffer specifically and credibly denied that Petitioner disclosed any of that information. There is no documentary evidence to support the allegation. Petitioner did not complain to Ms. Halim about racial or sexual discrimination, harassment, or retaliation while he was working at her direction on the development of the Snap Quote tool. At no time during his employment did Petitioner advise his supervisor, Ms. Henry, that there was anything happening at the office that he believed to constitute racial discrimination, harassment, or retaliation. He never indicated that his issues with his co-workers had anything to do with Petitioner being a black male. During the period of his employment, Petitioner never stated any objection to his co-workers regarding their behavior, did not tell them that he found their alleged actions and comments offensive, and did not ask that they stop. He never complained about the “racist doll,” and left it on his desk for months without objection. The basis for Petitioner’s failure to complain or object was his apparent belief that his perceptions were shared by everyone, and, thus, the discrimination was obvious. They were not. As will be discussed in the Conclusions of Law, Petitioner bears the burden of proving that he reported incidents of discrimination to his employer in order to give the employer an opportunity to remedy the situation. Petitioner failed to meet the burden of proof. Comparators Petitioner testified that a gravamen of his complaint centered on his understanding that “I was terminated for taking an actuarial exam and failing that actuarial exam, but my non- black counterparts were not terminated when they did the exact same thing.” The IM indicated that Petitioner “named Bridgett Tennant, Nagai and Kite as those who even though failed their exams of exhibited deficient performance, [Allstate] still retained them.” Mr. Nagai and Mr. Kite worked on the health/valuation side of the actuarial department. Their chain of supervision included Mr. Posick and Mr. Randles. Petitioner was in the life/product development side. His chain of supervision included Ms. Henry and Mr. Schaeffer. Mr. Posick had several actuarial positions in his section. Ms. Henry had one actuarial position in her section, filled by Petitioner. In his Proposed Recommended Order, Petitioner also identified Tonya Dostie and Victor Ciurte as comparators. Phil Kite Mr. Kite is an actuarial analyst. He is not an actuary or an actuarial student. He has never been in the ACP, and has not taken an actuarial examination during his tenure with Allstate. Although Mr. Kite has a degree in actuarial science, he is “a technical person, a support of the actuarial department in another capacity.” Mr. Kite has worked at Allstate for 28 years. He started in the underwriting section, and worked in the actuarial department for the past 18 years. He has knowledge of applications to manage and report information, especially as it concerns reporting on a monthly basis for booking reserves, but does not perform actuarial work for Allstate. Mr. Kite did not perform the same duties as Petitioner. He did not work in the same section, or for the same manager. Mr. Kite is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination. Bridget Tennant Ms. Tennant’s position with Allstate is discussed in paragraph 170. Ms. Tennant is not a comparator against which to gauge the adverse employment action reflected by Petitioner’s termination. Tonya Dostie Ms. Dostie was identified as a comparator solely because her supervisor, Ms. Halim, allowed her to work from home. Ms. Dostie was one of the women allowed to work from home as set forth in paragraphs 166 through 169. Ms. Dostie is not a comparator against which to gauge the employment decision taken with regard to Petitioner. Mr. Nagai Mr. Nagai was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Nagai failed to pass the requisite exams. He was dismissed from the ACP. Mr. Nagai was retained by Mr. Posick as a career ASA, which is a suitable option for Mr. Nagai. As such, he was not an FSA actuary, and had no opportunity for advancement. Although he can be promoted based on the merit of his work, his position will not change unless he continues to take actuarial exams without financial or administrative support from Allstate. Mr. Posick testified credibly that the decision to offer Mr. Nagai a position in his section after he was removed from the ACP was based solely on his being a dependable worker who regularly completes his assigned work. As indicated previously, Mr. Posick was complementary of Mr. Nagai as “someone that I could depend on, and the quality of his work was good, so I chose to transition the position to a career ASA position.” Mr. Randles testified that Mr. Nagai “had the skill set necessary to do the financial job that we were asking him to do. He has done that well, and he worked well with other people in the department and worked well with the other people outside the department that he needed to interact with to perform his job,” all of which were described as critical elements of that position. As such, the decision was made to retain Mr. Nagai after his removal from the ACP, as is allowed under the ACP Guidelines. As set forth herein, Petitioner was perceived as having issues with taking instruction, completing tasks as directed, and working with other employees, supervisors, and business partners, and his ability to advance into Ms. Henry’s position that were not consistent with the critical elements of the position. That perception, whether accurate or not, was not formed as the result of racial or sexual discrimination, animus, or bias. Petitioner and Mr. Nagai were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Nagai had different supervisors than Petitioner, none of whom was involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section. Mr. Nagai is not a comparator against which to gauge any employment decision taken with regard to Petitioner. Victor Ciurte Mr. Ciurte is in Mr. Nagai’s section within the actuarial department, and was similarly situated to Mr. Nagai in many respects. Mr. Ciurte was in Allstate’s ACP. At some time after Petitioner was terminated from employment, Mr. Ciurte failed to pass the requisite exams. He was dismissed from the ACP. Mr. Posick testified credibly that the decision to offer Mr. Ciurte a position as a career ASA in his section after he was removed from the ACP was based solely on his performance. Mr. Ciurte was described as having “made incredible progress since he's reported to me on his ability to both communicate high level concepts as well as research.” Although Mr. Posick could have terminated Mr. Ciurte, he chose to retain him because he was able to “solve problems and research independently, to the point that “[c]urrently I trust him to present at the highest level.” Mr. Randles testified that Mr. Ciurte’s “job performance was very well. He continued to do the skills that we needed on the financial actuary side very well, and he continued to do that. He also worked well with the other people in the department, and so he was retained for that position.” Petitioner and Mr. Ciurte were in sections of the actuarial department with a different mix and number of actuarial employees, and different duties. Mr. Ciurte had different supervisors than Petitioner, none of whom were involved in the decision to terminate Petitioner or in the decision not to retain Petitioner as a career ASA in Ms. Henry’s section. Mr. Ciurte is not a comparator against which to gauge any employment decision taken with regard to Petitioner. Ultimate Findings of Fact Each of the persons who were involved in the decision to terminate Petitioner testified credibly that Petitioner’s race or sex had no bearing on the decision, nor was the decision made as retaliation for Petitioner’s opposition to any practice falling under the ambit of section 760.10. Rather, the decision to remove Petitioner from the ACP was one required by the ACP Guidelines and applied equally to each employee that failed to meet the one-in-three rule. The decision to not offer continued employment in a different position as a career ASA was based on his inability to become an FSA, thus, being able to succeed Ms. Henry upon her retirement, his unwillingness to work in a collaborative manner with Allstate’s employees, managers, and business partners, and his inability to complete tasks assigned. In the absence of some corroborative evidence, Petitioner’s statements alone do not provide the support to sustain his charge of discrimination. A review of the entire record of this proceeding reveals no corroborative evidence that many of the alleged statements and comments even occurred, much less that they were the result of racial or sexual discrimination, harassment, animus or bias, or that they were retaliation for opposing or participating in a proceeding regarding such discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Allstate Insurance Company, did not commit any unlawful employment practice as to Petitioner, Elias Makere, and dismissing the Petition for Relief filed in FCHR No. 2017-01432. DONE AND ENTERED this 18th day of April, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of April, 2019.
The Issue The issue to determine in this bid protest matter is whether the Department’s intended award of state term contracts for information technology staff augmentation services was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the state agency responsible for procuring state term contracts. See §§ 287.012(28), 287.042(2)(a), 287.056-057, Fla. Stat. A “state term contract” is a term contract that is competitively procured by the Department. § 287.012(28), Fla. Stat. A “term contract” means an indefinite quantity contract to furnish commodities or contractual services during a defined period. § 287.012(29), Fla. Stat. The Department initiated this competitive procurement to establish a state term contract for information technology (“IT”) staff augmentation services. The procurement’s objective is to enable state agencies and other eligible users (“Customers”) to supplement their IT staff. The solicitation at the center of these protests is Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15- 80101507-SA-D (the “RFP”). The RFP is intended to replace an existing state term contract for IT staff augmentation services. The current contract has an estimated annual spending volume of approximately $66,800,000. As described in the RFP, the Department intends to award up to approximately 200 vendors with the ability to provide (temporary) IT staff services per specific position. Thereafter, a Customer who desires IT staff assistance will issue a Request for Quote, which is available for review by all vendors awarded with the state term contract (the “Contractors”). A Contractor who desires to fulfill the request responds to the Customer’s Request for Quote agreeing to provide IT staff who possess the technical skills needed. A Request for Quote also allows Customers to obtain pricing and service information from interested Contractors. See § 287.056(2), Fla. Stat. If selected, the Contractor will then charge the Customer for the assigned personnel on an hourly basis.6/ In other words, the Department will competitively procure IT staffing services from multiple vendors/Contractors. A vendor who is awarded a contract under the RFP is not given an actual IT job, but rather is included on a list of Contractors as a potential source to fill an IT position in the future. Thereafter, Customers may obtain IT staff assistance, through a Request for Quote, without having to conduct a separate, independent solicitation. The Department issued the RFP on February 5, 2019.7/ On February 11, 2019, the Department posted Addendum No. 1 to the RFP. Addendum No. 1 notified vendors that the RFP was a “new solicitation,” and that the previous solicitation had been cancelled and rebid. The Department subsequently posted Addendum No. 2 to the RFP revising and clarifying the bid specifications. The Department posted Addendum No. 3 to the RFP on May 20, 2019.8/ Addendum No. 3 instructed vendors that all proposals were due by March 19, 2019. On or before March 19, 2019, the Department received proposals from 378 vendors,9/ including ArnAmy and Seva. Under the RFP’s evaluation methodology, vendors’ proposals were scored in four Evaluation Criteria, as follows: Evaluation Criteria Maximum Possible Points IT Experience Certification (Attachment B) 100 Staffing Resource Management Plan 300 IT Staff Augmentation Contract Experience 200 Price (Attachment C) 400 per Job Title Total Score Possible Per Job Title 1000 Regarding the IT Experience Certification criteria, vendors submitted information on an IT Experience Certification Form which was included in the RFP. The form was scored based on the number of years the vendor had been in the IT business. The Procurement Officer identified in the RFP, Joel Atkinson, scored this criteria. (Both ArnAmy and Seva received the maximum 100 points in this category.) Regarding the Staffing Resource Management Plan (the “Management Plan”) and the IT Staff Augmentation Contract Experience (“IT Staff Contract Experience”) categories, the Department appointed three individuals (the “Evaluators”) to independently score these sections of each proposal. (The three Evaluators are referred to as the “Scoring Team”.) The Scoring Team consisted of Stephanie Reaves, Denise Roberts, and Heather Shoup. For the Management Plans, the Evaluators were to assign point values based on whether the vendors demonstrated “exceptional ability” (300 points); “intermediate ability” (200 points); “minimal ability” (100 points); or “fails to demonstrate ability” (0 points). For the IT Staff Contract Experience category, the Evaluators were to assess a point value based on whether the vendor demonstrated “extensive” experience (200 points); “intermediate” experience (150 points); “minimal” experience (100 points); or “fails to demonstrate experience” (0 points). Regarding the Price criteria, each vendor was required to complete a price sheet wherein the vendor quoted an hourly rate for each specific IT staff service for which the vendor desired to contract. The price sheet divided each staff service into “Job Families.” Within each Job Family, the RFP listed multiple “Job Titles.” The RFP included a total of 130 different Job Titles for which vendors could submit proposals. In addition, the price sheet further divided the majority of Job Titles into “Scope Variants,” which are degrees of experience within an individual Job Title (typically up to three Scope Variants per Job Title). For example, in the Job Family of Applications Development, the Job Title of Systems Analyst was broken out into Scope Variant levels of Entry, Intermediate, and Advanced.10/ Further, the RFP attached a “Ceiling Rate” to each Scope Variant. The RFP explained that the Department would not consider or evaluate a vendor’s proposal for a particular Job Title if the hourly rate the vendor quoted was higher than the Ceiling Rate. Finally, the price per hour the vendor quoted for the Job Title was considered a “not to exceed” price. In other words, after the state term contract was awarded, when a Contractor received a Request for Quote from a Customer, the Contractor could not charge a higher hourly rate than the price listed in its proposal. However, the RFP permitted Contractors to respond with a (competitively) lower hourly rate for the IT staffing services it would agree to provide. RFP, section 5.2.4 set forth a formula to calculate the score for the prices the vendors quoted for the specific Job Titles. The Department designed the formula to establish a base line with which to compare proposals. Using the formula, the vendor with the lowest price per Job Title or Scope Variant11/ was awarded 400 points (the maximum). Thereafter, every other vendor received points for price per Job Title using the following calculation: (X) x 400 = Z (N) Where: X = lowest price of all Proposals submitted per Job Title N = Respondent's submitted total price per Job Title Z = points awarded The Procurement Officer, Mr. Atkinson, (not the Scoring Team) calculated and assigned the points for price. The Vendors’ scores for IT Experience Certification and Price (from the Procurement Officer) were added to the Evaluators’ scores for the Management Plan and Staff Contract Experience for a total score for each proposal. Upon winning a contract, Contractors are only permitted to provide services for the specific IT positions awarded through the solicitation. As explained in RFP, Exhibit A, STATEMENT OF WORK, the Contractors agree to provide IT staffing services described in a document entitled “Job Families Descriptions.” The Contractors will be responsible for the following activities: The Contractor shall possess the professional and technical staff necessary to allocate, outsource, and manage qualified information technology staff to perform the services requested by the Customer. The Contractor shall provide Customers with staff who must have sufficient skill and experience to perform the services assigned to them. All of the information technology staff augmentation services to be furnished by the Contractor under the Contract shall meet the professional standards and quality that prevails among information technology professionals in the same discipline and of similar knowledge and skill engaged in related work throughout Florida under the same or similar circumstances. The Contractor shall provide, at its own expense, training necessary for keeping Contractor's staff abreast of industry advances and for maintaining proficiency in equipment and systems that are available on the commercial market. The Contractor shall be responsible for the administration and maintenance of all employment and payroll records, payroll processing, remittance of payroll and taxes, and all administrative tasks required by state and federal law associated with payment of staff. The Contractor shall, at its own expense, be responsible for adhering to the Contract background screening requirements, testing, evaluations, advertising, recruitment, and disciplinary actions of Contractor’s information technology staff. The Contractor shall maintain during the term of the Contract all licenses, permits, qualifications, insurance and approvals of whatever nature that are legally required to perform the information technology staff augmentation services. In short, the Contractors are responsible for finding, hiring, and recruiting qualified IT personnel. Thereafter, the Contractors must provide and manage their IT staff pursuant to the terms of the Request for Quote. Awards under the RFP were made by Job Title. RFP, section 5.3, explained the Basis for Award as follows: The Department intends to make multiple awards from this solicitation and anticipates awarding 200 contracts per Job Title. Contracts will be awarded to the responsible and responsive Vendors that are determined to be the most advantageous to the state based on, per Job Title, the highest total evaluation criteria scores, which includes price, IT Experience Certification, Staffing Resource Management Plan, and IT Staff Augmentation Contract Experience scores. The maximum possible total score per Job Title is 1000. * * * For those Job Titles where, in determining the 200th awarded Vendor, there are multiple responsible and responsive Respondents with the same numeric score, the Department reserves the right to award more than 200 contracts per Job Title to those responsive and responsible Respondents who are tied for the 200th contract award. Awards will be made per Job Title. A vendor was not required to submit a response for every Job Title. Instead, vendors were free to bid for only those Job Titles for which they desired to provide IT Staffing services. However, if a vendor did respond to a specific Job Title, the vendor was required to provide a price per hour for every Scope Variant within that Job Title. On June 5, 2019, the Department held a public meeting during which the three Evaluators, as well as the Procurement Officer, confirmed their scores. On June 24, 2019, the Department posted its Revised Notice to the Vendor Bid System listing all vendors to whom the Department intended to award IT staffing contracts. The Department awarded contracts to the top 200 vendors (plus ties) for each of the 130 Job Titles. ArnAmy bid for all 130 Job Titles. The Department awarded ArnAmy 21 out of 130 Job Titles. In other words, ArnAmy finished in the top 200 for 21 of 130 Job Titles. Seva bid for all 130 Job Titles. The Department did not award Seva any Job Titles. In other words, Seva did not finish in the top 200 for any of the Job Titles. ARNAMY’S PROTEST: ArnAmy protests the Department’s decision to award it a state term contract for only 21 of 130 Job Titles offered through the RFP. Mr. Datta Kadam testified on behalf of ArnAmy. Mr. Kadam is the founder and chief executive officer of ArnAmy. Mr. Kadam prepared and submitted ArnAmy’s response to the RFP. Mr. Kadam initially relayed that ArnAmy was formed in 2007 as an IT consulting and software development company. He further expressed that ArnAmy has extensive experience under the current (2016) state term contract, for which it is authorized to support all 130 IT staff positions. Approximately 85-90 percent of ArnAmy’s IT consulting practice is dedicated to providing IT staff augmentation services through contracts such as the Department’s state term contract. ArnAmy also services staffing contracts for Maryland and Texas. ArnAmy (through Mr. Kadam) presented three primary arguments protesting the Department’s award. The Scoring Team Failed to Evaluate ArnAmy’s Final Management Plan: ArnAmy argues that the Scoring Team was not provided with the final version of its Management Plan. Instead, the three Evaluators scored an incomplete, preliminary draft. Mr. Kadam believes ArnAmy would have received higher scores for Job Titles had the Evaluators scored the correct version of its Management Plan. ArnAmy attributes this mistake to a possible error in the MyFloridaMarketPlace (“MarketPlace”) program that interfered with or prevented Mr. Kadam from uploading, saving, and/or submitting the final version of ArnAmy’s Management Plan for scoring. MarketPlace is the State of Florida online procurement system. MarketPlace served as the “web portal” for vendors to access the Department’s procurement documents, as well as a guide to assist them through the purchase process. The RFP required vendors to submit proposals through MarketPlace. The main software component of MarketPlace is a program called “Ariba,” which is a suite of programs or tools. MarketPlace (through Ariba) allowed vendors to electronically submit their responses to the RFP. A vendor may take three distinct actions within MarketPlace/Ariba: (1) upload documents; (2) save documents; and (3) submit documents to the Department. Mr. Kadam maintained that the version of ArnAmy’s Management Plan that the Evaluators scored was an “intermediate working copy” that he had saved “locally” to MarketPlace. Mr. Kadam testified that he uploaded and saved at least three versions of ArnAmy’s Management Plan to MarketPlace. He intended the Department to score the last version of the Management Plan that he saved and submitted on March 18, 2019. Mr. Kadam explained that he was not aware that the Department did not score the appropriate version of ArnAmy’s Management Plan until after the Department posted its Revised Notice on July 24, 2019. Upon learning that ArnAmy was only awarded 21 Job Titles, Mr. Kadam conducted a “root cause analysis” to determine the reason. He initially reviewed the scores of several other proposals “to obtain a baseline of comparison.” He soon discovered that the Management Plan the Evaluators scored for ArnAmy was not the last (and correct) version he believes he uploaded to MarketPlace. Mr. Kadam suggests that a glitch occurred within the MarketPlace program that replaced or substituted an earlier version of ArnAmy’s Management Plan for the final version. At the final hearing, Mr. Kadam relayed that he did not find any error at the “front” or “user’s” (ArnAmy’s) end of the system. Nor did he receive any error messages after submitting ArnAmy’s Management Plan. He did, however, offer several possible, “logical” causes for the inconsistency. His theories included “deadlock,” or a situation that occurs on the system when one document is in use on the server that prevents another document (i.e., ArnAmy’s Management Plan) from being properly uploaded. Mr. Kadam explained that the difference between the early version and the final version of ArnAmy’s Management Plan was significant. RFP, section 5.2.2, instructed vendors to recite how they proposed to recruit, staff, and manage requests for IT services. The intermediate version of ArnAmy’s Management Plan did not include the information referenced in RFP, section 5.2.2.B, which specifically directed vendors to identify and describe the roles and expertise of their Principal Personnel.12/ Mr. Kadam represented that the final version of ArnAmy’s Management Plan did contain this information. ArnAmy argues that if the MarketPlace error had not occurred, its proposal would have received a much more favorable score. Mr. Kadam specifically pointed to the score from one Evaluator, Stephanie Reaves, who only awarded ArnAmy’s Management Plan 100 out of 300 points. Mr. Kadam contends that if Ms. Reaves had just increased her score to the next level (200), ArnAmy would have been awarded most, if not all, of the 130 Job Titles. As more fully discussed below, despite Mr. Kadam’s detailed analytical investigation into the MarketPlace program, ArnAmy did not produce conclusive or direct evidence to support his theory that an error within MarketPlace was responsible for the submission of an intermediate version of ArnAmy’s Management Plan to the Department, instead of Mr. Kadam’s final version. During his testimony, Mr. Kadam stated that “a lot could have happened” to the documents he uploaded. However, he conceded that he did not know exactly what that might have been. The Scoring Team was Not Qualified to Score the Proposals: ArnAmy also charges that the Department failed to properly train the three Evaluators or provide them adequate guidance on how to effectively score the vendors’ proposals. Specifically, ArnAmy asserts that the Department failed to select Evaluators with the requisite background, experience, and knowledge in the subject matter of the RFP, i.e., information technology. Consequently, the Evaluators could not have conducted a comprehensive or sound review of the IT staffing services listed in the RFP. In other words, the Department could not have competently or fairly decided that ArnAmy should not be awarded an IT staff augmentation contract because the Evaluators did not know how to properly score its proposal. To support its argument, ArnAmy points out that not a single Evaluator possessed IT experience. ArnAmy contends that the technical details involved in evaluating proposals for IT staff services require direct experience in the IT field or in acquiring and/or utilizing IT staffing services. Because the Evaluators were unqualified, as well as the fact that the Evaluators were under time pressure to evaluate all 374 proposals, ArnAmy alleges that they inconsistently applied the RFP’s evaluation criteria, and, in some cases, failed to apply it altogether. As discussed below, the facts adduced at the final hearing support a finding that the Evaluators were suitably qualified to score the vendors’ proposals. Therefore, the undersigned finds this argument insufficient to reverse the Department’s award. Evaluator Stephanie Reaves Incorrectly Scored ArnAmy’s IT Staff Contract Experience: Finally, as a direct result of the Scoring Team’s inexperience, ArnAmy asserts that one of the three Evaluators, Stephanie Reaves, failed to properly score its IT Staff Contract Experience. ArnAmy specifically alleges that, in her haste to review ArnAmy’s proposal, Ms. Reaves overlooked key information included in its IT Staff Contract Experience submission. RFP, section 5.2.3, advised that a vendor “will be scored” based on “the best representation of its experience in providing IT Staff Augmentation.” Section 5.2.3 specifically asked vendors to include information regarding: Total number of IT Staff Augmentation contract/purchase orders. Total combined dollar amount of IT Staff Augmentation contracts/purchase orders. At page 19 of its response to section 5.2.3, ArnAmy reported on its IT Staff Contract Experience document that ArnAmy had 11 years of IT staffing experience with the State of Florida involving 147 total contracts worth over $19,600,000. As discussed in paragraphs 93, 146, and 147 below, ArnAmy’s argument on this point has merit. Ms. Reaves awarded ArnAmy’s IT Staff Contract Experience 150 out of 200 points. At the final hearing, Ms. Reaves admitted that she did not see this information in ArnAmy’s proposal prior to formulating her score. SEVA’S PROTEST: Seva was not awarded any of the 130 Job Titles for which it bid. Seva protests the Department’s award arguing that the RFP’s scoring formula was built on an arbitrary evaluation system and a mathematically deficient price scoring system. Consequently, the evaluation process resulted in unfair and unreliable awards that should not have excluded Seva’s proposal. Danny O'Donnell spoke on behalf of Seva. Mr. O’Donnell prepared and submitted Seva’s proposal to the RFP. In addition, at the final hearing, Mr. O’Donnell was accepted as an expert in statistics, data presentation, and pattern analysis. Mr. O’Donnell explained that he is very competent at extracting and compiling data from spreadsheets and reports and presenting that information in a form that is more easily understood. Mr. O’Donnell testified that Seva is an IT consulting and software development services firm headquartered in Tallahassee, Florida. He further represented that Seva has extensive experience providing IT staffing services to the State of Florida. Seva has provided temporary IT staff for state agencies since 2009, and has participated in a total of 120 IT staffing contracts with the state worth over $19,800,000. Further, Seva is an active vendor supporting 129 of the 130 IT jobs awarded in the 2016 state term contract. Mr. O’Donnell also commented that Seva’s 2019 proposal was substantially the same as its 2016 submission. Further, the 2019 RFP criteria was very similar to the 2016 procurement terms. In 2016, Seva received good (and winning) scores for its Management Plan. Consequently, Mr. O’Donnell was puzzled why Seva received such low scores under this RFP. To understand the reason the Department did not award Seva any Job Titles, Mr. O’Donnell culled through reams of Department data, charts, and spreadsheets. Based on his statistical analysis, Mr. O’Donnell reached two primary conclusions why the Department’s scores for the 2019 RFP are unsound. The RFP’s Price Scoring System: Initially, Mr. O’Donnell argued that the RFP’s “extremely flawed” price scoring formula set forth in RFP, section 5.2.4, produced arbitrary and unreliable scoring results. Specifically, the formula allowed vendors to propose “low-ball,” “unrealistic,” and “unsustainable” prices that are excessively below the market value for IT staffing services in order to procure higher scores for their proposals. Consequently, vendors who submitted these “unbalanced” bids received an unfair competitive advantage over vendors who presented realistic prices (i.e., ArnAmy and Seva) for their IT staffing services. Mr. O’Donnell further urged that the formula caused a very narrow “band compression of price points,” which gave rise to “price neutralization.” In other words, vendors who offered legitimately low, but realistic, prices for Job Titles received no corresponding benefit because the unbalanced bids “caused the relative value of the pricing criteria to be neutralized in value.” Concomitantly, the two subjectively scored criteria graded by the Scoring Team (Management Plan and IT Staff Contract Experience) took on much greater significance in determining whether a particular vendor was awarded a state term contract. A vendor could lose more points on pricing than it could earn for its Management Plan and IT Staff Contract Experience. As a result, vendors who tendered “unbalanced” bids (with unreasonably low prices) obtained an inequitable and unwarranted benefit. Mr. O’Donnell asserted that there is no correlation between winning vendors having the best price, and the responsible and responsive vendors who can provide the best IT staffing service to Customers. Mr. O'Donnell testified to his belief that the Department did not account for or prevent these artificially low, “unbalanced,” bids. Consequently, it was his opinion that the Scoring Team did not select vendors whose proposals will be the most advantageous to the State of Florida (i.e., Seva). Therefore, the Department’s decision not to award the IT staffing contract to Seva must be overturned. Mr. O’Donnell alleged that his extensive statistical analysis reveals that the three Evaluators used markedly different standards to review, then score, vendors’ proposals. To support his argument, Seva produced a chart showing that Ms. Reaves awarded 161 of the 374 Management Plans a top score of 300. Ms. Shoup awarded 116 Management Plans with 300 points. Ms. Roberts awarded only 66 Management Plans the maximum 300 points. Mr. O’Donnell stressed that these diverse scores indicate an arbitrariness that is outside any zone of reasonable results. Consequently, as a matter of fairness, all proposals must be reevaluated. Mr. O’Donnell further argued that the inequity is compounded by the fact that the Department limited state term contracts for each Job Title to 200 vendors (and ties). Not only is restricting the available Contractors to 200 arbitrary, but the 200 Contractor cap impacts whether legitimate vendors were awarded IT staffing contracts. In addition to Mr. O’Donnell’s analysis and conclusions, Seva presented expert testimony from Dr. Wei Wu. Dr. Wu is a professor in the Department of Statistics at Florida State University. Dr. Wu was accepted as an expert in statistics, including the chi-square correlation test, as well as the “p value” as applied to the solicitation scoring. To formulate his opinion, Dr. Wu applied basic statistical methods and tools. He explained that he conducted a “standard chi-square test” to determine whether the three Evaluators produced the same scoring distribution. Dr. Wu then analyzed the data, reviewed the intuitive results, and formulated his conclusion. He rechecked his data to ensure that it was mathematically correct. Based on his statistical analysis, Dr. Wu announced, with “very high confidence,” that the three Evaluators did not apply the same methodology when scoring Management Plans. Dr. Wu specifically opined that he was “99.99 percent confident that, of the three evaluators; they don’t have the same standard to give the score.” In other words, his research indicated that the Evaluators did not have the same, common understanding of the RFP’s scoring criteria. On the contrary, the Evaluator’s scoring distributions were arbitrarily and unreasonably different. Further, Dr. Wu expressed that the scores awarded for price were “crunched” in the final results, thereby reducing their importance in the proposals’ total scores. Dr. Wu testified that, if the Evaluators had followed the same scoring standard, the score distributions across the 374 proposals would not have been so varied. Dr. Wu acknowledged that some deviation between Evaluators is expected, but not this much. Based on Mr. O’Donnell’s analysis, as supported by Dr. Wu, Seva asserts that statistical data confirms that each Evaluator applied dissimilar grading scales, which manifested itself into erratic scoring. Each Evaluator appears to have a different understanding of what a vendors’ proposal would have to show in order to earn a top-ranked score. Despite his conclusions, however, Mr. O’Donnell conceded that he has no previous experience forming statistical inferences from procurement criteria. Neither does he feel qualified to explain the meaning of his statistical analysis of the scores. Consequently, he could not testify “why” the data shows what it shows. Similarly, Dr. Wu acknowledged that he has never researched procurement scoring formulas, scoring of requests for proposals criteria, or the scoring behavior of procurement evaluators. Nor did his opinion take into account the subjective opinions of the three Evaluators. The Scoring Team was Not Qualified to Score the Proposals: Secondly, similar to ArnAmy, Seva asserts that the wide-ranging scores show that the Department failed to select Evaluators with the requisite experience and knowledge in IT. Seva further charges that the Department neglected to effectively train the Scoring Team. The Department only provided the three Evaluators poorly defined guidelines explaining how to evaluate the vendors’ Management Plans. In addition, Seva argues that amount of time the Department allotted for scoring (eight weeks) was too short to reasonably evaluate 374 separate proposals. DEPARTMENT RESPONSE TO THE TWO PROTESTS: In response to ArnAmy and Seva’s challenges, the Department asserts that it properly acted within its legal authority, as well as the RFP specifications, to award the RFP to qualified responsive and responsible vendors. The Scoring Team Selection/Qualifications: Initially, the Department rejects ArnAmy and Seva’s allegations that the Scoring Team members lacked the requisite experience and knowledge to evaluate the vendors’ proposals. To score a procurement in a request for proposals solicitation, section 287.057(16)(a)1 directed the Department to appoint: At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought. In accordance with section 287.057(16)(a)1, the Department appointed three individuals (Ms. Reaves, Ms. Roberts, and Ms. Shoup) to serve on the Scoring Team. The three Evaluators were selected by Cliff Nilson (Deputy Director of the Division of State Purchasing), and Joel Atkinson (the Department’s Procurement Officer). Thereafter, the Evaluators were approved by the Department’s Secretary. At the final hearing, Mr. Nilson testified as the Department’s corporate representative. In his role as Deputy Director of State Purchasing, Mr. Nilson oversees the Department’s procurement process, as well as the state term contracts awarded under the RFP. Initially, Mr. Nilson discussed how the Department selected the three Evaluators. Mr. Nilson explained that the state term contract in this solicitation is fundamentally a “staffing” contract. Mr. Nilson characterized the procurement as “essentially . . . a human resource function that’s outsourced to a vendor to recruit, employ, and manage those people.” Mr. Nilson explained that the RFP’s purpose is to solicit vendors who will find, recruit, and manage IT personnel; then effectively provide those employees to Customers to use on an hourly basis to perform IT work. Vendors awarded with a state term contract are only responsible for providing “a person,” not directing or overseeing an IT project. Accordingly, the Department sought evaluators who had experience in human resources and staff management. Further, Mr. Nilson did not believe that a working knowledge of IT services was necessary for a fair and reasonable evaluation of the vendors’ proposals. Mr. Nilson relayed that, because the RFP’s purpose was to identify staffing companies, extensive knowledge of the IT tasks and responsibilities listed in the 130 Job Titles was not necessary when reviewing the vendors’ Management Plans and IT Staff Contract Experience. At the final hearing, the Department elicited testimony from Mr. Kadam (for ArnAmy) and Mr. O’Donnell (for Seva) admitting that the “deliverable” under this state term contract is people and their time and expense, not the various vendors’ IT prowess. During the hearing, both Mr. Kadam and Mr. O’Donnell acknowledged that their primary responsibilities would be to find, recruit, and place suitable IT staff with a state agency. Regarding training the Evaluators, Mr. Nilson conveyed that the Department anticipated that scoring would be fairly straightforward. Therefore, the Department did not plan a lengthy training regime for the Evaluators. Mr. Nilson further commented that the grading criteria described in the RFP did not require specific knowledge of IT services. The Evaluators were to review how each vendor proposed to hire, manage, and retain persons with IT skills. The Evaluators were not scoring the specialized knowledge of the vendors or their employees. Before starting their reviews, the Department arranged for each Evaluator to receive a copy of each proposals’ Management Plan and IT Staff Contract Experience section. The Evaluators also received an Evaluators Guide, as well as Instructions for the Evaluator Score Sheet. Each Evaluator also received and signed a document entitled Evaluator Instructions for Ethics, Sunshine Law, and Conflict of Interest. Finally, the Procurement Officer, Mr. Atkinson, contacted each Evaluator separately to explain their role and answer any questions. The RFP gave the three Evaluators eight weeks to review and score every proposal. Mr. Nilson envisioned the Evaluators spending approximately 30 minutes on each proposal. Mr. Nilson recognized that the scoring would entail hard work, but he was comfortable that the Evaluators would have enough time to perform their responsibilities. The Evaluators scored Petitioners’ proposals as follows: ArnAmy: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 200 points Ms. Shoup: 200 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Seva: Management Plan (out of 300 points): Ms. Reaves: 100 points Ms. Roberts: 0 points Ms. Shoup: 100 points IT Staff Contract Experience (out of 200 points): Ms. Reaves: 150 points Ms. Roberts: 200 points (maximum) Ms. Shoup: 200 points (maximum) Mr. Nilson testified that he was not concerned that the Evaluators’ scores were slightly different. He commented that in his experience, a one-step difference in the scoring spread between evaluators was “not unusual at all.” At the final hearing, each of the Evaluators testified about their background and experience in state procurements and IT staffing contracts as follows: Stephanie Reaves: Ms. Reaves testified that she has worked in the field of human resources for her entire career. She has hired, managed, recruited, and trained employees. At the time Ms. Reaves was selected as an evaluator, she was employed as the Director of Human Resources for the Department of Children and Families. During the RFP process, she transferred to the Department of Environmental Protection where she works as an Employee Relations Specialist. In addition, Ms. Reaves was previously employed with the Florida Housing Finance Corporation, where she reviewed and scored proposals submitted in response to requests for proposals for public contracts. Ms. Reaves also holds a Bachelor of Science degree in Business Administration, as well as a Masters in Human Resource Development. Prior to this RFP, however, she has never been involved in procuring IT staff services. Ms. Reaves declared that she had a firm grasp of her responsibilities as an evaluator. Before she scored the proposals, she reviewed and understood the scoring criteria described in RFP, section 5. She also read the Evaluators Guide, as well as the score sheet instructions. She further relayed that she spoke with the Procurement Officer, Mr. Atkinson, who provided general guidance. Ms. Reaves expressed that she felt adequately trained to evaluate the vendors’ proposals. She also believed that she had the necessary human resources experience to discern whether vendors sufficiently described their staffing abilities in their proposals. Ms. Reaves explained that, when evaluating a proposal, she read the vendor’s submission twice, as well as reviewed the applicable RFP sections. She then compared the proposal to the RFP evaluation criteria. At that point, she scored accordingly and submitted her scores electronically to the Department. Ms. Reaves spent approximately 20-30 minutes per proposal. Ms. Reaves rejected any concerns that her lack of IT knowledge affected her evaluation. She relayed that she did not find scoring difficult. She did not encounter terms in the RFP or the various vendors’ proposals that she did not understand. Ms. Reaves asserted that she worked fairly and independently. Further, she testified that she used the criteria set forth in the RFP and applied the scoring criteria consistently to each proposal. She relayed that she held vendors to the same standard and used the same method when evaluating each proposal. Finally, despite the large amount of commitment and work this evaluation required, Ms. Reaves firmly asserted that she had sufficient guidance and time to review and score each proposal. Regarding her specific scores, Ms. Reaves testified that she awarded ArnAmy 100 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal would have to “demonstrate exceptional ability.” This score meant that she thoroughly understood how a vendor would provide prospective IT staff to Customers, and the vendor did an excellent job in describing how it would identify potential IT staff that would respond to a Customer’s Request for Quote. ArnAmy’s Management Plan, however, only showed minimal ability to meet the RFP’s objectives. Specifically, ArnAmy did not explain “how” it intended to accomplish or implement a plan to provide IT staff to Customers. In addition, ArnAmy failed to include information regarding the experience of its Principal Personnel to manage IT staff. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Reaves awarded ArnAmy 150 out of 200 points. Ms. Reaves explained that she did not find in ArnAmy’s proposal responses to two specific requests for information: 1) the total number of IT Staff Augmentation contracts/purchase orders; and 2) the total combined dollar amount of IT Staff Augmentation contracts/purchase orders. However, as became apparent during the final hearing, ArnAmy’s proposal did, in fact, include information on these two specific points. What appears to have happened is that Ms. Reaves missed this information because ArnAmy presented these numbers at the very end (page 14) of its IT Staff Contract Experience section (and in tiny print).13/ In RFP, section 5.2.3, the total number of IT contracts and their combined dollar amount are the first two bullet points listed in the IT Staff Contract Experience criteria section.14/ Accordingly, Ms. Reaves looked for this information in the order set forth in the RFP, i.e., at the beginning of each vendors’ response to this section. (For example, Seva inserted its contract history in the first two lines of its IT Staff Contract Experience submission.) The RFP did not contain any specific instructions on how a vendor was to format its response to this section. At the final hearing, Ms. Reaves testified that she would still have given ArnAmy’s IT Staff Contract Experience a score of 150, even if she had found the entry for total IT contracts. It does appear, however, that Ms. Reaves plainly overlooked this information when evaluating ArnAmy’s proposal. Regarding Seva, Ms. Reaves awarded it 100 points (out of 300) for its Management Plan. She explained that she did not believe Seva adequately explained “how” it was going to accomplish “what was critical” to performing the IT staffing contract. On the contrary, Seva’s proposal lacked specifics, which left Ms. Reaves questioning Seva’s ability to provide quality IT staff for potential Customers. Ms. Reaves awarded Seva 150 out of 200 points for IT Staff Contract Experience. She testified that she could not determine the level or type of Seva’s staffing experience from its proposal. Denise Roberts: Ms. Roberts has spent her entire public service career working in the procurements field for various state agencies. When she was selected to serve as an evaluator, Ms. Roberts was employed as a Purchasing Agent for the Agency for State Technology. During her evaluation, Ms. Roberts moved to the Department of Lottery where she processed procurements, solicitations, and purchase orders. Notably, Ms. Roberts has previously procured IT staff augmentation services, as well as obtained quotes for IT staff assistance for the Agency for State Technology, the Department of Corrections, as well as the Department of Transportation. Additionally, Ms. Roberts is a Certified Public Professional Buyer and a Florida Certified Contract Manager. She does not, however, have any IT experience or training. Nor did she have knowledge of what the IT Job Titles listed in the RFP specifically entailed. Ms. Roberts testified that, before she scored the proposals, she reviewed and understood the RFP, as well as the documents she was to score. In addition, she spoke with the Department’s Procurement Officer (Mr. Atkinson) who provided general guidance on how to score the proposals. Ms. Roberts expressed that she followed the instructions the Department gave her and felt sufficiently trained to evaluate the vendors’ proposals. She also believed that she had enough experience to evaluate proposals regarding IT staffing services. Ms. Roberts explained that she generally conducted the following evaluation process: Initially, she read the vendor’s proposal, followed by a review of the RFP’s requirements. She then reviewed the proposal again to determine how the vendor complied with the RFP criteria. At that point, she scored the proposal. When scoring, Ms. Roberts handwrote all scores onto the RFP’s scoresheet. Thereafter, she input her scores online and submitted them electronically to the Department. Ms. Roberts spent about 30 to 45 minutes evaluating each proposal. Regarding her specific scores, Ms. Roberts testified that she awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that, for a perfect score of 300, a proposal had to meet every aspect the RFP requested in great detail, as well as describe how the vendor was going to accomplish the RFP’s tasks. ArnAmy’s Management Plan, however, was missing information and provided less detail than she expected. Specifically, Ms. Roberts did not find a response to the RFP’s requirements that ArnAmy list the “Respondent’s Principal Personnel who will make management decisions concerning staff placement for services under the contract(s),” or the “role each Principal Personnel” would have in the contract. Regarding ArnAmy’s IT Staff Contract Experience, Ms. Roberts awarded ArnAmy the maximum 200 points. She found that ArnAmy provided “quite a bit” of information regarding its prior experience. Regarding Seva, Ms. Roberts awarded it 0 points for its Management Plan. She explained that she did not believe Seva’s proposal provided the information the RFP requested. Specifically, Seva did not explain “how” it was going to accomplish “any” of the RFP’s staffing requirements. Seva simply offered general comments with no details or step-by-step processes describing how it would acquire, then manage, IT personnel for potential Customers. Neither did Seva include the role its principals would play in its Management Plan. Conversely, Ms. Roberts awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva provided all the information requested regarding its prior contract experience. Ms. Roberts asserted that she worked independently and did not communicate with the other Evaluators. Further, she testified that she conscientiously used the criteria set forth in the RFP and gave each proposal consistent and fair consideration. Despite the large amount of proposals, Ms. Roberts confidently voiced that she had adequate time to consider, then score, each proposal. Heather Shoup: Ms. Shoup currently serves as the Director of Human Resources for the Department. In this position, she oversees all human resource activities for the Department, including recruitment and retention, benefit administration, classifications, compensation, employee relations issues, orientation, and retirement coordination. Ms. Shoup testified that her professional experience has been primarily in the areas of financial and human resources. In addition, she has experience hiring and managing individuals who provide IT services. However, she has no prior experience in public procurements. In preparing for her evaluations, Ms. Shoup met with the RFP’s Procurement Officer (Mr. Atkinson), as well as reviewed the RFP criteria, the Evaluators Guide, and the Instructions for the Evaluator Score Sheet. Ms. Shoup expressed that she understood her responsibilities and had sufficient training and time to evaluate each proposal. When evaluating, Ms. Shoup relayed that she worked independently through each proposal and scored as best as she could. For a perfect score, she was looking for answers to all RFP criteria. She wanted to see clear, precise responses that provided all information the RFP requested. She specifically reviewed “how” the vendor intended to deliver IT staff support for Customers. Ms. Shoup testified that she spent approximately ten minutes per evaluation. Regarding her specific scores, Ms. Shoup awarded ArnAmy 200 out of 300 points for its Management Plan. She explained that ArnAmy’s Management Plan was missing information regarding its Principal Personnel who would make management decisions under a potential staffing contract. On the other hand, Ms. Shoup awarded ArnAmy the maximum 200 points for IT Staff Contract Experience. She found that ArnAmy’s proposal reflected extensive IT staffing experience. Regarding Seva, Ms. Shoup awarded it 100 out of 300 points for its Management Plan. She explained that Seva’s proposal was “too broad.” Specifically, Seva did not answer the “how” questions in multiple categories. Conversely, Ms. Shoup awarded Seva with the maximum 200 points for IT Staff Contract Experience. She found that Seva’s proposal clearly showed its prior IT contract experience. Finally, Ms. Shoup testified that she fairly scored each proposal she evaluated. She did not have difficulties reviewing the various submissions. Ms. Shoup also expressed that she had adequate time to consider, then score, each proposal. Based on the testimony received, the Department persuasively demonstrated that the Scoring Team “collectively [had] the experience and knowledge” required to score the RFP. Each Evaluator convincingly conveyed her ability to ably participate in the Department’s solicitation process. Although, none of the Evaluators had prior experience in the IT profession, each possessed the acumen and ability to competently conduct a procurement for IT staffing services. Ms. Reaves and Ms. Shoup both had extensive experience in personnel and human resource functions, including hiring and managing employees. Further, Ms. Roberts had broad knowledge in procuring services, including IT staff augmentation services. Finally, upon reviewing their scores again at the final hearing, each Evaluator testified that they would not change their scores. They each credibly expressed that neither ArnAmy nor Seva adequately addressed some or all of the criterion set out in the RFP. Therefore, based on their various professional and educational backgrounds and vocational experience, the undersigned finds that the Scoring Team was fully capable and proficient to review and score all aspects of each of the 374 vendor proposals. The Evaluators were adequately knowledgeable of, and sufficiently experienced for, their task of understanding and evaluating the vendors’ IT staffing plans. Conversely, neither ArnAmy nor Seva established that the Department’s appointment of a Scoring Team consisting of Stephanie Reaves, Denise Roberts, and Heather Shoup was contrary to the governing authority in section 287.057(16)(a)1. The RFP was not Contrary to the Department’s Governing Statutes, Rules, Policies, or the Solicitation Specifications: In addition to describing the Evaluator selection process, Mr. Nilson explained why the RFP limited the number of awards to 200 Contractors per Job Title (plus ties).15/ Initially, Mr. Nilson conveyed that the Department desired that vendors continue to compete to provide staffing services. Two hundred potential Contractors for each Job Title would maintain active competition when Customers requested price quotes. This arrangement would help ensure that Customers would continue to receive fair and reasonable prices in response to a Request for Quote. Secondly, restricting the number of Contractors to 200 would enable the Department to more easily monitor the large pool of vendors. Finally, the Department hoped to keep the Request for Quote process as simple and straightforward as possible for the Customers. When seeking IT staff services, Customers would have a definite and finite list of prospective Contractors. Further, Mr. Nilson added that market research indicated that only about 90 vendors actually participated in the prior/currently existing state term contract. Consequently, the Department determined that economical and fair competition for IT staff services would reasonably end at approximately 200 Contractors. Finally, the Department called Kimberly Stiver to discuss the possibility that an error occurred in the MarketPlace online system that impeded ArnAmy’s attempt to submit the final version of its Management Plan to the Department. MarketPlace is operated by Accenture. Ms. Stiver is Accenture’s Program Manager for MarketPlace. Ms. Stiver testified that, after learning of ArnAmy’s allegations, she and her staff investigated the MarketPlace system to uncover any evidence that would justify ArnAmy’s claim. Ms. Stiver reviewed event logs, the attachment history log, and the system logs to determine whether an error took place within MarketPlace related to the uploading, saving, or transmitting of ArnAmy’s Management Plan. Initially, Ms. Stiver explained that responding to a solicitation takes two steps. First, the vendor uploads the document. Then, the vendor “submits” the document to the agency. After uploading the document, but prior to submitting it, MarketPlace allows vendors to replace, revise, or upload additional documents. After a vendor has “submitted” the document, the agency then accesses the last uploaded and successfully saved version of the document in MarketPlace. At the final hearing, Ms. Stiver declared that, following her detailed inquiry, she found no indication within MarketPlace that ArnAmy was not able to, was prevented from, or encountered any difficulties in properly submitting its Management Plan to the Department. Expanding on her assertion, Ms. Stiver explained that each procurement in MarketPlace is a unique and distinct “event” that tracks key activity from the vendor community. ArnAmy’s activity on MarketPlace relating to this RFP shows that ArnAmy submitted a Management Plan at approximately 1:41 p.m. on March 18, 2019. Based on the event log, Ms. Stiver stated that ArnAmy logged onto MarketPlace only one time on March 18, 2019, and that ArnAmy only uploaded one document identified as its Management Plan at that time. The event log does not support Mr. Kadam’s suggestion that he uploaded multiple versions of a Management Plan which may have resulted in an earlier version being submitted to the Department instead of ArnAmy’s final intended version. The attachment history log also shows that ArnAmy logged into MarketPlace only one time on March 18, 2019, to upload, save, and submit documents. Ms. Stiver testified that, like the event log, the attachment history log does not support Mr. Kadam’s assertion that he saved at least three versions of ArnAmy’s Management Plan in MarketPlace. If Mr. Kadam had uploaded and saved, but not submitted, multiple versions of a Management Plan, Ms. Stiver asserted that the attachment history log would document the entries as “not submitted.” The attachment history log for ArnAmy, however, records no entries or messages with a status of “not submitted.” Finally, Ms. Stiver reviewed ArnAmy’s system log for the period of March 12 through 19, 2019, the time period during which MarketPlace was open to receive vendors’ proposals. The system log shows no system errors occurred at any time while ArnAmy was logged into MarketPlace from March 12 through 19, 2019. Based on her comprehensive explanation, Ms. Stiver persuasively testified that no errors or inconsistencies occurred in the MarketPlace online system that caused an earlier (incomplete) version of ArnAmy’s Management Plan to be submitted to the Department or prevented ArnAmy from effectively and timely uploading its Management Plan in response to the RFP. The logical conclusion is that the discrepancy between the version of ArnAmy’s Management Plan that the Evaluators eventually scored and the final version that Mr. Kadam claims he submitted in MarketPlace was the result of ArnAmy’s unfortunate oversight. The Possibility of “Unbalanced” Bids: Regarding Seva’s (and ArnAmy’s) complaint that the Department failed to identify and reject “unbalanced bids,” Mr. Nilson expressed that the RFP did not prevent vendors from presenting “unbalanced” proposals. Moreover, no statute, rule, or solicitation specification required the Department to reject a vendor’s proposal simply because the hourly rate quoted might be lower than market value for a certain Job Title or Scope Variant. Further, nothing in the RFP directed the Department to conduct a statistical analysis of vendor prices prior to awarding the state term contract.16/ The RFP clearly informed all vendors of the scoring criteria the Department would apply for price. Every vendor was free to submit a hourly rate for each Job Title for which it would agree to abide. The Department uniformly applied the RFP’s price formula to every Job Title from every proposal. Finally, while Seva asserts that the price formula could have led to unfair and/or misleading scoring results, the RFP allowed all vendors (including ArnAmy and Seva) to present “low-ball” prices in their proposals. Further, even if certain vendors did include unrealistic prices for their IT staffing services, the RFP protects Customers by binding a Contractor to the maximum price per Job Title or Scope Variant listed in its proposal. (In fact, a Contractor could offer even lower prices for its IT staff services in response to a Request for Quote.) Finally, regarding Seva’s complaint that its proposal was substantially similar to its previous proposal (which received a higher score), Mr. Nilson commented that Seva’s 2019 proposal was materially different from its 2016 proposal. Seva presented fewer Principal Personnel in 2019 (two versus four individuals). Mr. Nilson surmised this factor may have reduced the amount of IT experience Seva represented. In addition, Mr. Nilson believed that Seva’s prior proposal presented a clearer description of how it intended to recruit, and then place, prospective IT personnel for Customers. In that regard, Mr. O’Donnell confirmed that Seva’s 2019 proposal contained several substantive differences from its 2016 proposal. To summarize the findings in this matter, neither ArnAmy nor Seva established, by a preponderance of the evidence, that the Department’s decision to award only 21 of 130 Job Titles to ArnAmy and 0 of 130 Job Titles to Seva was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that either ArnAmy or Seva were placed at a competitive disadvantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Regarding ArnAmy and Seva’s complaint that the Department did not assemble a qualified Scoring Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assigned to score the vendors’ proposals possessed the “experience and knowledge in the program areas and service requirements for which [the] contractual services [were] sought” as required by section 287.057(16)(a)1. The Evaluators’ scores for ArnAmy and Seva’s proposals were logical, reasonable, and based on a sound understanding of the criteria requested in the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protests of ArnAmy and Seva, except that the Department should rescore ArnAmy’s IT Staff Contract Experience. Otherwise, the Department should award state term contracts under Request for Proposals for Information Technology Staff Augmentation Services – 3rd Bid, RFP 15-8010H07- SA-D as set forth in the Revised Notice of Intent to Award the RFP issued on June 24, 2019. DONE AND ENTERED this 5th day of February, 2020, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of February, 2020.
The Issue The issue presented for decision herein is whether or not the Petitioner successfully completed the answers posed on the April, 1987 professional engineer's examination.
Findings Of Fact Petitioner took the April, 1987 professional engineering examination and was advised that he failed the principles and practice portion of the examine. His raw score was 45 points and the parties stipulated that he needed a minimum raw score of 48 points to pass the examination. In his request for hearing, Petitioner challenged questions 120, 123 and 420. However, during the hearing, he only presented testimony and challenged question 420. Question 420 is worth 10 points and is set forth in its entirety in Petitioner's Exhibit Number 1. For reasons of test security, the exhibit has been sealed. Question 420 requires the examinee to explore the area regarding "braced excavations" and explores the principles involved in such excavations. Question 420 requires the examinee to calculate the safety factor for a braced excavation including the depth of excavation which would cause failure by "bottom heaving". Petitioner, in calculating the safety factor, made a mathematical error when he incorporated the B-prime value calculation which was inserted into the equation in making his calculations. Question 420 does not direct the applicant to apply the calculations to either a square excavation or to a rectangular excavation. Petitioner assumed the shape of the excavation to be square and calculated the factor of safety according to that assumption. In assuming the square excavation, Petitioner did not make the more conservative calculation that will be required in making the safety factor calculation for a rectangular excavation. In this regard, an examination of Petitioner's work sheet indicates that he referenced the correct calculation on his work sheet but the calculation was not transferred to or utilized in the equation. Respondent utilizes the standard scoring plan outline, which is more commonly known as the Items Specific Scoring Plan (ISSP) which is used by the scorers in grading the exam. The ISSP provides a scoring breakdown for each question so that certain uniform criteria are met by all applicants. For example, four points are given for a correct solution on a specific question regardless of the scorer. This criteria is supplied by the person or persons who prepared the exam. The criteria indicates "in problem-specific terms, the types of deficiencies that would lead to scoring at each of the eleven (0-10) points on the scale". The ISSP awards six points on question 420 when the applicants meets the following standards: "all categories satisfied, applicant demonstrate minimally adequate knowledge in all relevant aspect of the item." ISSP awards seven points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, obtains solution, but chooses less than optimum approach. Solution is awkward but reasonable". The ISSP awards eight points on question 420 when the applicant's answer meets the following standards: "all categories satisfied. Errors attributable to misread tables or calculating devices. Errors would be corrected by routine checking. Results reasonable, though not correct". The ISSP awards nine points on question 420 when the applicant's answer meets the following standard: "all categories satisfied, correct solution but excessively conservative in choice of working values; or presentation lacking in completeness of equations, diagrams, orderly steps in solution, etc." The ISSP criteria for awarding nine points as to question 420 clearly requires that the Petitioner calculate the correct solution without mathematical errors. The Petitioner's answer was not correct regardless of the assumption as to the shape of the excavation since he made a mathematical error. The ISSP criteria for awarding eight points as to question 420 allows Petitioner to calculate the answer with mathematical errors with the requirements that the results are reasonable. Petitioner made a mathematical error although his result was reasonable. His answer fits the criteria for the award of eight points in conformity with the ISSP criteria. Petitioner received six points for his answer to question 420 whereas he is entitled to an award of eight points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent enter a Final Order determining that Petitioner failed the principles and practice portion of the April, 1987 engineering examination. RECOMMENDED this 30th day of June 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 30th day of June, 1988. COPIES FURNISHED: Glen E. Wichinsky, Esquire 900 Glades Road, 5th Floor Boca Raton, Florida 33431 Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Allen R. Smith, Jr. Executive Director Department of Professional Regulation, Board of Professional Engineers 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Should Petitioner be given credit for answers scored as incorrect on questions which Petitioner challenged on the October 2001, Cosmetology Clinical Examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Examination for licensure as a cosmetologist is administered by the Department's Bureau of Testing and consists of two parts: Part One, Clinical; and Part Two, Theory. Petitioner passed Part Two, and Part Two is not in contention. A passing score on the Clinical part of the examination was 75. Petitioner received a failing score of 70. Petitioner challenged the answers to certain questions on the Examination and was awarded an additional three points, bringing her total score on the Examination to 73, but still a failing grade. Subsequently, Petitioner requested a formal hearing on this matter, which was referred to the Division. Subsequent to this matter being referred to the Division, the Department agreed to allow Petitioner another review of the test questions and her answers in an attempt to resolve this matter. The Department did not allow any extra points as a result of this review, and the matter proceeded to hearing. Petitioner is challenging seven examination questions, to-wit: questions 14, 23, 36, 37, 40, 52, and 65. The Department utilizes Milady's Textbook of Cosmetology (Milady's) and a textbook titled Salon Fundamentals, A Resource for Your Cosmetology Career (Salon Fundamentals) as a resource for the questions on the Examination and the answers to those questions. Petitioner utilized Milady's during her schooling and in preparation for the Examination. There is some question as to whether Petitioner received notice that Salon Fundamentals, was also a reference source for the Examination. Therefore, the Department did not rely on Salon Fundamentals as a reference source in defending its answers to the challenged questions. There is no dispute that Milady's covered the subject matter sufficiently. Petitioner contends that both (A) and (B) are correct answers to question 14. Petitioner chose (B) as the answer to question 14. The Department contends that there is only one correct answer to question 14 and that is (A). After a review of the section entitled "Types of Lighteners" set out in pages 324-325 in Milady's covering the issue presented in question 14, the testimony of the Department's experts, Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (A) is the only correct answer to question 14. Petitioner's answer (B) to question 14 is incorrect. Petitioner contends that both (A) and (B) are correct answers to question 23. Petitioner chose (A) as the answer to Question 23. The Department contends that there is only one correct answer to question 23 and that is (B). After a review of the section entitled "Damaged Hair" set out in pages 346-348 in Milady's covering the issue presented in question 23, the testimony of the Department's experts, Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (B) is the only correct answer to question 23. Petitioner's answer (A) to question 23 is incorrect. Petitioner waived her challenge to question 36 and elected not present any evidence on question 36. Petitioner contends that (D) was the correct answer to question 37. The Department contends that (C) is the correct. answer to question 37. After a review of Milady's Chapter 11, Permanent Waving, page 251 covering the issue presented in question 37, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer is the correct answer to question 37. Petitioner's answer is incorrect. Petitioner contends that (A) was the correct answer to question 40. The Department contends that (D) is the correct answer to question 40. After reviewing pages 248 through 250 of Milady's, which covered the issue presented in question 40, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (D) is the correct answer to question 40. Petitioner's answer (A) is incorrect. Petitioner contends that (B) was the correct answer to question 52. The Department contends that (C) was the correct answer to question 52. After reviewing page 100, Basics of Haircutting, and page 120, Scissors-Over-Comb Technique of Milady's, which covered the issue presented in question 52, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (C) is the correct answer to question 52. Petitioner's answer (B) is incorrect. Petitioner contends that (C) was the correct answer to question 65. The Department contends that (D) was the correct answer to question 65. After reviewing page 58 (Texture, Porosity, and Elasticity) and page 163, Chapter 9, Wet Hairstyling, of Milady's, which covered the issue presented in question 65, the testimony of the Department's experts Carol Nealy and Este Lita Phelps, and Petitioner's testimony, answer (D) is the correct answer to question 65. Petitioner's answer (C) is incorrect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's challenge to the October 2001, Cosmetology, Clinical Examination. DONE AND ENTERED this 9th of August, 2002, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 2002. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Bridgett Y. Washington 2019 Terhune Avenue Orlando, Florida 32818-5264 Julie Baker, Executive Director Board of Cosmetology Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulations 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue for consideration in this hearing is whether Respondent's license as a real estate broker in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Division of Real Estate (Division), for the Florida Real Estate Commission, was the state agency responsible for the licensing of real estate professionals and the regulation of the real estate profession in Florida. Respondent was licensed as a real estate salesperson or broker in Florida. During pertinent portions of 1990, Respondent was licensed both as a real estate broker by the Division, and as a contractor by the Construction Industry Licensing Board of the State of Florida. During that period he handled numerous sales of real property for the United States Veterans Administration and received deposits of funds on those sales which he placed in his brokerage trust account with First Commercial Bank of Manatee County. At that time, the bank had a policy on availability of funds of seven business days for out-of- town checks and three business days for local checks. In January 1990, Respondent wrote five checks from his trust account, each in excess of $1,000.00. Three of these were to the VA for sales deposits, and two were to others. All five checks were dishonored for insufficient funds. Thereafter, on August 24, 1990, the Division filed an Administrative Complaint against the Respondent alleging the utterance of dishonored checks as misconduct. Respondent, at an informal hearing, admitted the utterance of the dishonored checks, and as a result, the Florida Real Estate Commission revoked his broker's license on October 16, 1990. Respondent's subsequent appeal of that action to the Second District Court of Appeal resulted in a per curiam denial of his petition for review. Sometime later, in 1991, Respondent appealed to the Commission for reinstatement. At a subsequent hearing before the Commission, an exculpatory letter of explanation from Respondent's accountant resulted in the Commission allowing Respondent to sit for the salesman's examination, as a result of which he was subsequently licensed as a salesman. Respondent was thereafter again licensed as a broker on December 6, 1993. In the interim, however, on June 4, 1992, Respondent's contractor's license was disciplined by the Construction Industry Licensing Board for misconduct involving his failure to properly supervise a construction project and allowing an unlicensed individual to do the work on a project for which he had pulled the permit. An informal hearing was held by the Board as a result of which it imposed an administrative fine of $2,000.00, and to assure the payment thereof, provided for suspension of Respondent's license if the fine was not paid within thirty days. Respondent admits he did not pay the fine. He contends he called the Board office to inquire what would happen were he not to pay the fine and was advised his license would be suspended. Since Respondent intended to cease working as a contractor anyway, he elected not to pay the fine and sent his license in to the Board. Respondent's contractor's license was suspended on July 22, 1992, though he claims he did not receive a copy of either the Board's Final Order or the notice of the suspension going into effect. Respondent had an obligation to pay the fine imposed as punishment for past misconduct. Voluntary relinquishment of his license, which he thought he could do without effect on him since he was getting out of the construction business, did not excuse his non-payment of the fine. On October 21, 1993, after Respondent's salesman's license had been reinstated, he applied for licensure as a broker, In his answer to the first part of question 13 on the application form, Respondent indicated he had had a license suspended. He noted thereon the prior case against his license by the Commission which dealt with the dishonored checks. He did not, however, list the action taken against his contractor's license. He listed the prior real estate case, he contends, upon the advice of someone in the Division office. He did not, at the time of his call to the Division indicate or inquire about the action taken by the Board on his contractor's license. He claims he did not list that action on the application form because the action taken by the Board was not based on fraud or dishonesty but merely a failure to supervise, and because he did not know his license had been suspended. He thought that voluntarily relinquishing his license ended the situation. Respondent claims he did not intend to conceal any misconduct or adverse action as he could not do so. It was a matter of public record, and he believed the information available to one regulatory board was available to all others that were under the Department. At some point thereafter, not further established, a complaint was filed with the Commission which resulted in the matter being referred to Mr. Pence for investigation. Mr. Pence assembled the documents relating to the allegation of concealment and sent a written notice of his inquiry to the Respondent. Upon receipt of that notice, Respondent telephoned Mr. Pence to discuss the matter. During the ensuing conversation, Pence asked Respondent if he was aware of his suspension by the Construction Board and claims Respondent indicated he was. Respondent allegedly indicated he was under the impression he had been fined by the Board and that the suspension was only to insure the fine was paid. Respondent further indicated that because of the depressed economy and because he was not much interested in keeping his contractor's license he had let it go. In evaluating the evidence presented, it must be noted that the interview between Pence and the Respondent took place about a year ago. Pence's investigative notes are no longer available and he testified from memory. It was evident that much of Mr. Pence's testimony was a reconstruction of how Mr. Pence, in retrospect, felt he would have handled the interview and what he feels sure he would have asked. Taken together, the evidence of record establishes that Respondent was disciplined by the Real Estate Commission for dishonored checks and his license revoked. Though, on the basis of his accountant's exculpatory letter, Respondent was allowed to be re-examined for a salesman's license, that evidence did not completely exonerate the Respondent. This is shown by the fact that the revocation of his broker's license was not reversed. He was merely allowed to reapply for licensure as a salesman. In addition, the accountant's letter does not explain or justify all the bad checks. In regard to the Construction Board's discipline, the evidence shows that Respondent pulled a permit and then allowed a non-licensed individual to do most of the work without proper supervision. Respondent contends that complaint was filed by his friend, the owner of the property, after the project in question was determined to be far more extensive than had been anticipated. The complaint, Respondent asserts, was not made because of any dissatisfaction arising out of his performance, but merely to preserve the owner's interest as to a possible insurance claim. That argument is not persuasive. The fact is that Respondent was disciplined because he had committed an act which authorized the imposition of discipline. His approach to the situation was cavalier, and that approach or attitude continues to raise a substantial question as to his fitness to have entrusted to him the money, property, transactions and rights of others.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED THAT the Florida Real Estate Commission enter a Final Order finding Respondent, Warren Up. Box, guilty of Misrepresentation and concealment in his application for a license as a real estate broker in Florida, and of having been twice guilty of misconduct which warrants suspension, and revoking his license as a real estate broker in this state. RECOMMENDED this 9th day of October, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: Christine M. Ryall, Esquire Department of Business and Professional regulation Division of real Estate Post Office Box 1900 400 West Robinson Street, N-308 Orlando, Florida 32802-1900 Terrence Matthews, Esquire 5190 26th Street West Bradenton, Florida 34207 Lynda Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares Division Director Division of Real Estate Post Office Box 1900 400 West Robinson Street Orlando, Florida 32802-1900
Findings Of Fact On October 12, 1981, Petitioner pleaded guilty to the felony charge of unemployment compensation fraud, adjudication of guilt was withheld, and Petitioner was placed on probation for one year (Exhibit 2). The probation was terminated by Order Dismissing Warrant entered October 27, 1982 (Exhibit 3). The unemployment compensation fraud resulted from Petitioner's continuing to receive unemployment compensation following his discharge from the armed services after he had obtained full-time employment. The Information charged Petitioner with failure to disclose a material fact, to wit: he reported that he was unemployed while he was in fact working and receiving wages from Pacific Packing Company (Exhibit 2). In Application For Filing for Examination as an Ordinary Life, Including Health, agent dated March 16, 1984, Petitioner, in response to question 11(a) on this application asking if he had ever been charged with a felony, answered, "no." He gave the same answer to question 11(b) which asked if he had ever been convicted of a felony. Petitioner testified that he discussed the completion of this application with a fellow employee of an insurance agency at which he was working; and, since he had, on a earlier application for temporary employment, furnished the information regarding his unemployment compensation fraud conviction to the Department of Insurance, he did not deem it necessary to again report this offense. The fellow employee confirmed that he had discussed this answer with Petitioner and had suggested Petitioner answer the question as he did. Neither petitioner nor this witness satisfactorily answered the Hearing Officer's question how Petitioner could answer no to question 11 and then swear that all answers given on the application are true and correct. Petitioner's minister testified that Petitioner is a deacon in his church and he has found Petitioner to be truthful, honest, and capable of making mistakes and admitting them. As a temporary employee of A. L. Williams Company, a distributor of insurance products, Petitioner was deemed to be truthful, honest, and upright.
The Issue Whether Respondent violated section 70-54, Pinellas County Code, which prohibits retaliation against a person who has opposed a discriminatory employment practice, by terminating the Petitioner's employment, and, if so, the appropriate penalty.
Findings Of Fact Ms. Menz was hired by Dr. Weisel as a receptionist for his dental office located in Tarpon Springs, Pinellas County, Florida, on October 6, 2007. Ms. Menz's job responsibilities included answering the phone, checking patients in and out of the office, collecting co-payments, and entering treatment plans in the record. According to Dr. Weisel, Ms. Menz was a good employee because she was eager to learn, and she was very people orientated. Respondent is a professional association located in Tarpon Springs, Pinellas County, Florida. Respondent employees less than 15 employees and is in the business of providing dentistry services. Respondent is subject to the Pinellas County Code concerning human relations. In June 2008, Dr. Weisel sold his Tarpon Springs dental practice to Dr. Kontos. Dr. Kontos had graduated from dental school in May 2007 and had worked for another dentist office. By January 2008, Dr. Kontos wanted to purchase a dental practice in his hometown, Tarpon Springs. When Dr. Kontos purchased the practice from Dr. Weisel, Dr. Kontos had no experience in owning a business or managing employees. According to Dr. Kontos, he decided to keep all of Dr. Weisel's employees for continuity. Dr. Kontos described Ms. Menz's job duties as opening the practice in the morning, "in-putting insurance," collecting co-payments, and "doing treatment plans." By July 2008, Dr. Kontos had promoted one of the dental assistants, Daniel Mauzerolle (Mr. Mauzerolle), to office manager. During the time that Mr. Mauzerolle worked for Dr. Kontos, they became friends and would socialize together. Ms. Menz testified that she had complained to Dr. Kontos in the past about Mr. Mauzerolle about issues from work. Ms. Sholtes, a former dental hygienist for Dr. Kontos, also testified on Ms. Menz's behalf. She testified that Ms. Menz was a good employee and courteous to patients. By November 2008, Dr. Kontos hired Ms. Marchese to collect aging insurance claims and account receivables, as well as review his office procedures. According to Dr. Kontos, the dental practice had a "phenomenal" amount of outstanding insurance claims, in excess of $20,000.00, which had been denied. Ms. Marchese had worked in the dental field since 1991 and was familiar with software systems used to run dental offices. Further, she was familiar with the submission of insurance forms for dental reimbursement. On May 11, 2009, Ms. Menz opened the office at 7:00 a.m. As she turned on her computer, Ms. Menz noticed the internet web history showed that someone had used her computer the night before. Ms. Menz found that one site had been visited 28 times. Upon visiting the site, Ms. Menz found that the website contained pornographic images. Further, because Mr. Mauzerolle was the only person that worked in the evening in the office, Ms. Menz assumed that Mr. Mauzerolle was the person who had accessed the pornographic site. Ms. Menz credibly testified that she informed Dr. Kontos and told him that Mr. Mauzerolle's actions were unacceptable to her. Ms. Menz credibly testified that she told Dr. Kontos that she could not work under the conditions that she considered to be a hostile workplace environment. Dr. Kontos informed Ms. Menz that he would "take care of it." Dr. Kontos credibly testified that Mr. Mauzerolle, in addition to being the office manager, was his friend and that he was not happy with Ms. Menz reporting the issues concerning the pornography in his office. Two days later, on May 13, 2009, Dr. Kontos terminated Ms. Menz's employment. Ms. Menz credibly testified that at the time of her termination, Dr. Kontos did not provide her a reason for her termination, only stating "nothing personal, but I'm going to have to let you go." Dr. Kontos testified that he had already decided to terminate Ms. Menz's employment before May 11, 2009, when Ms. Menz complained about the pornography. According to Dr. Kontos, Ms. Marchese had informed him since the end of 2008 about errors that Ms. Menz had been making at work that cost the dental practice money. Dr. Kontos indicated that Ms. Menz made errors such as failing to collect co-payments or collecting improper co-payments and failing to fill out the insurance forms correctly. The result was that insurance claims would be denied and the dental office would lose money. According to Dr. Kontos and Ms. Marchese, on or before April 8, 2009, Ms. Menz made an error that almost cost the dental practice $2,000.00. The alleged error involved putting the wrong information concerning an insurance plan for a patient. Based on this error, Dr. Kontos testified that he made a decision with Mr. Mauzerolle and Ms. Marchese to place an advertisement for a receptionist with Craigslist to replace Ms. Menz. Later that day, Mr. Mauzerolle placed the advertisement with Craigslist. On April 9, 2009, potential job applicants began calling Dr. Kontos' office about the receptionist position. Ms. Menz took the phone messages from the applicants, including Ms. Kristen Chase. Ms. Menz credibly testified that based on phone calls that she asked Dr. Kontos about the job advertisement and whether or not she was doing a good job. Ms. Menz credibly testified that Dr. Kontos stated that she was doing a good job and not to worry about the advertisement. Further, Ms. Menz credibly testified that she asked Ms. Marchese about the advertisement. Ms. Menz testified that Ms. Marchese stated that Dr. Kontos was seeking to replace Christina Benzel (Ms. Benzel), a co-worker who worked the front desk with Ms. Menz. Ms. Menz believed Ms. Marchese because Ms. Menz had observed that Ms. Benzel's job responsibilities had been reduced. According to Dr. Kontos, sometime at the beginning of May 2009, he and Mr. Mauzerolle interviewed Ms. Chase for the receptionist job. According to Dr. Kontos, he offered Ms. Chase the job after the interview, and he had decided to replace Ms. Menz. Dr. Kontos's testimony on the point that he offered Ms. Chase the job in early May and had decided to replace Ms. Menz is not credible. Ms. Chase credibly testified that she did not receive the job offer from Dr. Kontos at the interview in early May. Further, Ms. Chase credibly testified that, because she did not hear anything from Dr. Kontos, she had assumed that she had not gotten the job. Further, Ms. Chase credibly testified that she was offered the job on May 14, 2009. Dr. Kontos testified that he had decided to terminate Ms. Menz on April 8, 2009, but that he did not tell her before May 13, 2009, because he "had to build up the nerve to do it." He testified that he felt bad having to terminate her and that he let her go because she made too many mistakes. For support concerning the number of errors made by Ms. Menz, Respondent offered the testimony of Ms. Marchese and numerous exhibits. Ms. Marchese testified that because of the number of errors occurring in the office that she moved her work space to be next to Ms. Menz. According to Ms. Marchese, she was monitoring Ms. Menz and providing "one-on-one training." Further, Ms. Marchese offered testimony that each day she would conduct an "audit trail" of the office and bring errors to Dr. Kontos's attention daily. Ms. Marchese testified that Ms. Menz failed to collect co-payments; entered insurance information incorrectly, resulting in insurance reimbursements being denied; failed to provide adequate information to support insurance billings; and gave patients incorrect estimates on the amount that the patient would owe for different treatments based on the patient's insurance plan. Ms. Marchese testified that she estimated that Ms. Menz had cost the dental office approximately $100,000.00 in lost revenue and made 90 percent of the office errors. Ms. Marchese identified a number of exhibits that supported Respondent's claim that Ms. Menz was terminated for numerous errors. Ms. Marchese further testified that in March 2009 that she told Dr. Kontos and Mr. Mauzerolle that Ms. Menz was "untrainable" and that she should be terminated. According to Ms. Marchese, in April 2009, she discussed with Dr. Kontos and Mr. Mauzerolle the error that nearly cost the practice $2,000.00 and the decision to advertise for the new receptionist. After the advertisement was taken out in Craigslist for the new receptionist, Ms. Marchese remembered being asked by Ms. Menz about the advertisement and about whether or not Dr. Kontos was seeking to replace her. Ms. Marchese testified that she told Ms. Menz that she did not know if Dr. Kontos was seeking to replace her. Ms. Marchese denied telling Ms. Menz that Dr. Kontos was seeking to replace Ms. Benzel. Ms. Marchese, however, admitted that Dr. Kontos had been unhappy with Ms. Benzel based on her internet usage at the office. Ms. Marchese testified that she informed Dr. Kontos about each of these errors daily and testified about a group of exhibits. A review of the exhibits identified by Ms. Marchese, Exhibits 25, 27, 29, 30, 31, 34, 35, 36, 41, and 44 shows that the documents are dated December 18 and 21, 2009. When questioned about the dates on the exhibits, Ms. Marchese testified that these exhibits were documentation from the "daily sheets" and that she had "minimized the amount of discovery." Also, she explained that the documents were "printed to condense the information into one page instead of, for instance, on exhibit 25, it would have been over 30 pages." Further, she testified that she had added the notes explaining Ms. Menz's errors to the sheets on or after December 18, 2009. The "daily sheets" were not admitted into evidence. At best, the offered exhibits may be considered summaries. Even considering the documents, the record shows that the offered exhibits show that the documents were compiled to support Ms. Menz's termination after May 13, 2009, and in response to the investigation by Pinellas County. Thus, the exhibits carry little weight in the consideration. Similarly, Exhibits 10, 11, 18, 23, and 24 are all dated after Ms. Menz's termination date of May 13, 2009. A review of Exhibit 10 shows a "Single Patient Ledger" printed up on September 8, 2009. Based on Ms. Marchese's testimony, the document shows that on April 8, 2009, the patient received two dental procedures that cost $1,050.00. According to Ms. Marchese, the patient was told to pay $215.00 for two treatments. Presumably, the balance of the dental bill would be paid by insurance. However, Ms. Marchese testified that the patient did not have dental coverage for the two procedures. Consequently, the dental office lost money on the two procedures because the patient refused to pay, and there was no insurance to bill. Although the testimony shows this event occurred before the termination, the "Single Payer Ledger" is dated after the termination. Further, a hand-written notation from the patient's chart, which is part of Exhibit 10, stating that "Valerie dropped the ball on the correct fee twice" is dated May 14, 2009, the day after her termination. Similarly, a review of Exhibits 23 and 24 shows that they are insurance claims that were denied before May 13, 2009. Ms. Marchese testified that Dr. Kontos was aware of these errors. However, Exhibits 23 and 24 only show that insurance claims were re- submitted after the date of Ms. Menz's termination. The exhibits do not support the finding that the claims were denied because of Ms. Menz or that these errors were considered before terminating her employment. These exhibits were prepared after the termination as a justification for the action as opposed to contemporaneous proof of Ms. Menz's performance. In contrast to the above listed exhibits, Exhibits 6, 7, 8, and 9 are examples of errors and notes that were documented before Ms. Menz's termination. A review of these exhibits shows that the complained of errors occurred on January 22, 2009; February 3, 2009; March 2, 2009; and April 27, 2009. Respondent also offered the testimony of other employees from the dental office. Ms. Little, a dental hygienist, testified that she was aware that Ms. Menz made errors in entering codes for different treatment plans. She had spoken to Ms. Menz about the error, and Ms. Menz indicated that she would try to correct the problem. According to Ms. Little, the errors continued, but were not as bad. Finally, Ms. Little testified that Ms. Marchese was responsible for insurance claims with the office. Similarly, Ms. O'Leary, a dental hygienist, testified that she knew that Ms. Menz had some issues with insurance, but that she had a good working relationship with Ms. Menz. Ms. Menz candidly admitted that she made mistakes at her work and credibly testified that she was never told of the many errors that Respondent was claiming she had made or that she had cost Respondent money. Dr. Kontos admitted that that he did not individually counsel Ms. Menz about her errors. Rather than counsel individual employees, Dr. Kontos testified that it was his practice to speak to his employees as a group about errors because he wanted to avoid similar errors. Ms. Menz testified that she earned $10.75 an hour and that she had been out of work for 87 weeks. Ms. Menz agreed with her counsel's question that her calculated damages were $37,410.00. The record also shows that Ms. Menz filed for unemployment compensation, but was unclear about whether or not she received any compensation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent violated section 70-54, Pinellas County Code. Ordering Respondent to pay Ms. Menz the sum of $37,410.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Menz reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 12th day of May, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS 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 12th day of May, 2011. COPIES FURNISHED: William C. Faulkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Jeremy W. Rodgers, Esquire Spector Gadon and Rosen, LLP 390 Central Avenue, Suite 1550 St. Petersburg, Florida 33701 Matthew K. Fenton, Esquire Wenzel, Fenton, and Cabassa, P.A. 1110 North Florida Avenue, Suite 300 Tampa, Florida 33602 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
