Findings Of Fact Based upon the testimony of the witness, and the record in DOAH Case Number 91-5892C, the following findings of fact are made: Petitioner, a non attorney litigant, seeks an award of attorney's fees and costs exceeding $37,000 under Section 57.111, Florida Statutes (1991). Petitioner did not offer evidence that he expended 250 hours performing research and other preparation for the Administrative Hearing in DOAH Case Number 91-5892C, which was not held. Likewise, Petitioner did not offer evidence that $150.00 an hour, the rate which he seeks to be compensated, was a reasonable fee as evidenced by either the time, skill or the complexity of the issues involved in the above- referenced case. Finally, Petitioner did not present evidence which establishes that he is a small business party. While Petitioner referred to the fact that he, at times, does odd jobs for neighbors, there was no showing that he operated a business and, at best, he performed casual labor for neighbors. Petitioner admitted, during the hearing, that there was a criminal prosecution filed against him which was nolle prosequi by the local state attorney's office around May 13, 1992. On June 18, 1992, Respondent filed a Motion To Relinquish Jurisdiction asking that the Division of Administrative Hearings close its case file based on the fact that the abuse report, which was the focus of Case Number 91-5892C was reclassified to "closed without classification". That motion was granted and the Division's case file was closed. Respondent reclassified the report after the criminal charges were dropped due to evidence discovered during the course of the criminal investigation. Specifically, one of the key witnesses during the criminal case recanted the story which formed the basis of the criminal charge and the alleged victim admitted to being a problem child which resulted in strict disciplinary action being taken against him. As a result of the discipline, the alleged abuse victim concocted the abuse allegation. Respondent was substantially justified and had a reasonable factual basis to issue and classify the subject abuse report as proposed confirmed at the time that it was initiated (by Respondent). However, once the factual underpinnings of the criminal case were recanted by the alleged child victim, Respondent immediately took action to reclassify the report which obviated the necessity for holding a formal hearing in DOAH Case Number 91-5892C.
The Issue The central issue in this case is whether the Petitioner is a prevailing small business party as defined by law.
Findings Of Fact The administrative complaint in Department of Professional Regulation, Board of Medicine v. Beltran J. Pages, DOAH Case No. 87-4157, DPR Case No. 30291, was filed on September 23, 1987. This case was consolidated with another case then pending against Dr. Pages, DOAH Case No. 87-1882. On October 15, 1987, an order was entered which denied Dr. Pages' request to dismiss Case No. 87-4157. The hearing for both cases was conducted on January 26-27, 1988. Pertinent to this cause is the following finding of fact reached in the Pages' order: Respondent is a board certified psychiatrist who has practiced in the Palm Beach County area since July, 1981. Respondent left private practice in September, 1985, and is currently employed at the South Florida Evaluation and Treatment Center, an HRS facility for the criminally insane. An exception was not filed to the finding of fact described in paragraph 4.
Findings Of Fact Based upon the testimony of the witnesses, the documentary evidence received at the hearing, and the record in DOAH case no. 88-6257, the following findings of fact are made: On October 24, 1988, the Department notified Sophie DeRuiter and Ann & Jan Retirement Villa that the license to operate an adult congregate living facility expired on October 23, 1988, and that the application for renewal was denied. The specific reasons listed as the grounds for such denial were a determination of confirmed medical neglect of residents and the inappropriate retention of residents. Thereafter, Petitioner timely sought an administrative review of the denial by filing a petition for administrative hearing with the Department which was subsequently forwarded to the Division of Administrative Hearings for formal proceedings on December 16, 1988. That matter was assigned DOAH case no. 88- 6257. Hearing of case no. 88-6257 was originally scheduled for March 17, 1989, by notice of hearing dated January 18, 1989. Thereafter, Petitioner scheduled a number of depositions and requested a continuance in the case to accommodate Sophie DeRuiter. That motion was unopposed by the Department and was granted by order entered February 27, 1989. That order also rescheduled the hearing for April 14, 1989, and required the parties to file a prehearing statement no later than March 24, 1989. Neither party timely filed a prehearing statement. In fact, the parties were unable to agree on a statement due to their disagreement as to the issues of the case. The unilateral statements filed by the parties established that Petitioner sought review of all grounds for the denial of the license renewal. On the other hand, the Department took the position that since Sophie DeRuiter was listed on the Florida Abuse Registry for confirmed medical neglect of residents, that such listing precluded renewal of the license. The Department alleged that Petitioner had not timely challenged the abuse report, and that such record could not be challenged in the instant case. The Department's letter denying amendment or expungement of the medical neglect had been issued December 7, 1988. Given the confusion of the parties and their failure to file prehearing statements as required, the hearing scheduled for April 14, 1989, was cancelled. Subsequently, the Department moved to limit the issue to whether there was a confirmed record of an abuse report (and thereby presume the underlying report correct). Such motion was denied on June 1, 1989. On June 9, 1989, the hearing of this matter was convened. At that time, the Department moved to continue the case due to illness of counsel and her inability to review an amended witness list filed by Petitioner. The motion was granted after it was apparent counsel for the Department was unprepared to go forward on all issues of the case (she represented she had just received the order requiring her to go forward on all issues on June 8, 1989). The case was rescheduled for August 10, 1989. Subsequently, the matter was continued again at Petitioner's request. The case was finally scheduled for hearing for September 8, 1989. The Petitioner filed a motion for summary judgment on August 14, 1989. On September 7, 1989, the Department filed a notice of dismissal which was construed as an assent, in whole or in part, to the relief requested by the Petitioner. Consequently, the hearing was cancelled and jurisdiction was relinquished to the Department for such further action as would be appropriate. It was presumed that the abuse record would be expunged which would result in the reinstatement of the license. The Petitioner in the instant case has not, however, established the final resolution of DOAH case no. 88-6257. Petitioner did not comply with Rule 22I-6.035, Florida Administrative Code by attaching the documents on which the claim that the small business party prevailed was predicated nor was proof of such document offered at the hearing of this matter. Sophie DeRuiter is the administrator and owner of Ann & Jan Retirement Villa which is located at 3486 Rostan Lane, Lake Worth, Florida. According to the style of the initial pleading filed by Petitioner in the instant case, Ann & Jan Retirement Villa has been incorporated. The proof offered at hearing suggested that Sophie DeRuiter is the sole proprietor of a business known as "Ann & Jan Retirement Villa." In August, 1988, Ms. DeRuiter employed approximately four full-time employees. In the three years she has owned and operated the facility, Ms. DeRuiter has never employed more than twenty-five full-time employees. The net worth of Ann & Jan Retirement Villa is less than two million dollars. Ms. DeRuiter's personal net worth is less than two million dollars. The combined worth of Ann & Jan Retirement Villa and Ms. DeRuiter is less than two million dollars. Ms. DeRuiter employed the law firm of Weissman and Chernay, P.A. to represent her in connection with the allegations in DOAH case no. 88-6257. In connection with that case, Ms. DeRuiter incurred legal fees in the amount of $8587.50 together with costs in the amount of $897.59. The reasonableness of those amounts was not disputed.
The Issue Whether the Petitioner, Sheila A. Cunningham, was subject to an unlawful employment practice by Respondent, Florida Credit Union, on account of her race or due to retaliation for her 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 financial institution with multiple departments, including a data scanning department and a call center, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time. Petitioner was first hired by Respondent on November 20, 2007. On February 2, 2008, she was transferred to the position of Courtesy Pay Credit Advisor (CPCA), a position held until her termination on March 21, 2014. From 2012 through the time of her termination, Jennifer Perez was Petitioner’s direct supervisor. Ms. Perez reported to Mr. Colson, who supervised the credit advisor department. Over the years, Petitioner received a number of certificates and awards for good performance in her position. CPCAs are responsible for collections on delinquent accounts of members by bringing the account to a positive balance within 60 days of delinquency. If a credit union member’s account is delinquent for more than 60 days, it must be written off, resulting in a loss to Respondent. Failure to timely write-off a negative account can subject Respondent to fines and negative audit ratings. A common way of bringing an account current is to arrange a loan with Respondent to pay the delinquent balance. Loan types include a “bounce-free” loan and a “work-out loan.” Both are designed to allow for payment of the negative account in installment payments. The bounce-free loan has only the negative account balance involved, while the work-out loan combines the negative balance with another existing loan. CPCAs receive additional compensation for such loans, known as “incentives,” of $10 to $15, though the record suggests that a dispute over an incentive of $40 was a triggering cause of the adverse employment action in this case. CPCAs are also responsible for “packing” loans, which includes taking the loan paperwork to the optical department to input and image the documents into Respondent’s system. The optical department periodically provides reports on loans for which documentation has not been submitted for input and imaging. Petitioner testified credibly that the optical department would occasionally neglect to scan loans that were submitted. However, there was no evidence to suggest that to be a frequent or pervasive problem. Respondent routinely employs one or two CPCAs at any given time. The CPCAs are assigned a “queue,” which is an alphabetical assignment of member accounts. The evidence suggests that Petitioner served as the CPCA for all delinquent member accounts for a period of almost one year, a practice that ended when Vikki Martello was hired as a CPCA on February 27, 2012. Upon her hiring, Ms. Martello was assigned the accounts of members with last names beginning with the letters A through K, and Petitioner was assigned the accounts of members with last names beginning with the letters L through Z. Ms. Martello was transferred to another position on July 11, 2013. Jennifer Munyan was hired as a CPCA on May 20, 2013, and was assigned the A through K queue. Since Petitioner’s termination, Ms. Munyan has handled all delinquent accounts. Petitioner mentioned several incidents over the course of her employment that she believed to be evidence of her poor treatment by Respondent. These incidents appear to have occurred more than one year before Petitioner filed her employment complaint of discrimination. They are cited here for purposes of background. Petitioner testified that starting in 2010 or 2011, Respondent began to hire younger credit advisors on the basis of their friendship with management. The new employees engaged in childish activities such as throwing paper clips and blowing bubbles. Petitioner indicated that they were “written up” for those activities. There was no suggestion that either the hiring or the write-ups were based on race. For a period of time, Petitioner was assigned what she believed to be a disproportionate share of holiday weekend shifts. Mr. Colson “corrected that and then that was okay.” There was no suggestion that the issues with scheduling were based on race. Shortly after Ms. Martello was hired on February 27, 2012, she was asked to accompany Mr. Colson and Ms. Perez to a branch office to train employees. Petitioner felt “that was not right,” and that she was being excluded from performing certain job tasks. She testified that Respondent’s assignment of training and other duties to persons other than herself led to a sympathetic nick-name of “invisible credit advisor.” Petitioner admitted that, in her opinion, Ms. Martello was an excellent employee. Mr. Colson testified credibly that Petitioner was not asked to assist in the new hire training since she was already behind on managing her accounts, and that “[t]here’s no compensation or award or anything for training another employee, it's just additional work.” There was no suggestion that the decision to have Ms. Martello assist with training was based on race. Petitioner alleged that despite her requests, she was not allowed to shadow other employees, particularly in the call center, so that she could learn the responsibilities of the member service representative position. She testified that in response to her requests, Ms. Perez would say “okay, we'll see about it, but nothing never happened. And I asked like three or four times and it was always we'll see about it.” Petitioner did not claim in her testimony that she was denied these opportunities because of her race. Petitioner generally claimed she was denied promotional opportunities because she was not allowed to train as a back-up. However, she failed to present any evidence of an open and available position for which she had applied, or for which she was denied. Furthermore, there was no suggestion that race played a role in any such denial. Respondent’s employees are informed of work performance issues in several ways, including informal discussions, e-mail communication, individual or group meetings, coaching reports, and annual evaluations. On March 19, 2012, Petitioner received her annual performance review. Although Respondent was complementary of Petitioner’s improvements in her work, and spoke favorably of her interpersonal relationships and work ethic, the review noted a number of “improvement opportunities and development areas” to be implemented over the course of the following year. Deficiencies in job performance included Petitioner’s practice of making initial contact with a delinquent member by letter, rather than the more effective practice of a phone call; the failure to provide sufficiently descriptive account notations; the failure to “charge off” loans correctly resulting in errors for others to correct; the failure to close checking accounts after workout options or loans were complete resulting in further delinquencies; and the failure to set up loan distributions correctly, resulting in unwarranted loan delinquencies and resultant customer complaints. The performance review also cited issues with Petitioner’s negative accounts extending beyond the required time frame, which was noted in Respondent’s quarterly audit report. The deficiencies noted in the performance review resulted in higher than normal charge-offs, and losses to Respondent. Petitioner improved her performance in some areas, but only for short periods of time. Mr. Colson did not issue Petitioner any coaching reports in 2012 because he believed that Petitioner’s mistakes were not intentional, that she had a positive attitude, that she had no attendance issues, and that “she seemed to like her job a lot.” It was Mr. Colson’s belief that with additional training and a cooperative approach, Petitioner’s performance issues could be corrected. On February 27, 2013, Petitioner received her next annual performance review. Petitioner was again complemented on her interaction with members, her teamwork, and her general positive work ethic. It was noted that Petitioner had responded well to coaching such that she rarely made mistakes in setting up automatic loan payments. The review noted, however, a number of areas for improvement, including some that had not been resolved from the previous year’s review. Of particular concern was the high number of missing loan packets, some of which were months past due; the failure to meet consecutive deadlines for submitting completed work; and the failure to begin work on accounts in an appropriate and timely manner. Petitioner was again instructed to make initial contact with delinquent members by phone or email, rather than by letter; and was advised of several of her accounts that were charged-off after missing the 60-day deadline. Finally, Petitioner was provided with a printout of the 142 overdrawn checking accounts in her queue, only 40 of which (28 percent), had been worked in the previous 60 days. Although some early-stage overdraft accounts carried a “high self-cure rate,” the low number of accounts worked was deemed unacceptably low. After receiving her 2013 performance review, Petitioner improved in some areas of her performance, but again only for a short period of time. Beginning on July 15, 2013, Petitioner, Ms. Martello (until she completed her transfer from the collections department), and Ms. Munyan (upon her assignment to the collections department) were provided with periodic email updates from Ms. Perez on the number of loan packets for which each was responsible that had not been submitted to the optical department. The updates and related correspondence between Petitioner and Ms. Perez revealed the following: July 15, 2013 Petitioner - 37 missing loan packets Ms. Martello - 4 missing loan packets July 19, 2013 Petitioner - 36 missing loan packets Ms. Martello - 6 missing loan packets July 30, 2013 Petitioner - 34 missing loan packets Ms. Martello - 5 missing loan packets August 5, 2013 Petitioner - 29 missing loan packets Ms. Martello - 2 missing loan packets Ms. Munyan - 1 missing loan packet August 14, 2013 Petitioner - 31 missing loan packets Ms. Munyan - 2 missing loan packets August 19, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets August 27, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 4 missing loan packets September 3, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets September 10, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 5 missing loan packets September 16, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 4 missing loan packets On September 18, 2013, Ms. Perez sent an email to Petitioner and Ms. Munyan advising them that credit union auditors were scheduled to arrive on September 30, 2013. Thus, Petitioner and Ms. Munyan were instructed to “[m]ake sure all of your loan packets are up to date, so that no one comes to us requesting something that cannot be located.” October 1, 2013 (for loan packets through September 27) Petitioner - 38 missing loan packets Ms. Munyan - 3 missing loan packets The October 1, 2013, update further advised Petitioner and Ms. Munyan that “[t]he auditors are here for the next three weeks. If they review any of these loans, it will be a problem that we do not have them scanned yet and if we are missing documents. Please get these turned in this week!” On October 12, 2013, Petitioner sent Ms. Perez an email stating that “I worked on some loan packets on 10/12. Please don’t send email until I turn my loan packets in on 10/16.” October 25, 2013 Petitioner - 20 missing loan packets Ms. Munyan - 7 missing loan packets November 4, 2013 Petitioner - 28 missing loan packets Ms. Munyan - 4 missing loan packets November 12, 2013 Petitioner - 33 missing loan packets Ms. Munyan - 5 missing loan packets On November 15, 2013, Petitioner sent Ms. Perez an email stating that “Optical have some loan packets that were turned in today, please don’t send out list until after 11/18/13.” November 22, 2013 Petitioner - 35 missing loan packets Ms. Munyan - 7 missing loan packets December 11, 2013 Petitioner - 41 missing loan packets Ms. Munyan - 1 missing loan packet December 18, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 2 missing loan packets On October 9, 2013, Mr. Colson met with Petitioner and Ms. Munyan to discuss the results of an attorney audit that was critical of several collections practices. In particular, too many accounts were not being worked until the later stage of delinquency; too much time was allowed to elapse between contacts with the members; and workflow notations were not properly completed. A spreadsheet provided during the October 9, 2013, meeting revealed that Petitioner had 92 accounts in her queue, 57 of which had never been worked. Ms. Munyan had 90 accounts in her queue, 25 of which had never been worked. In November of 2013, Petitioner spoke with Ms. Perez regarding an incident in which Petitioner alleged that Ms. Munyan claimed one of her incentive credits. Ms. Perez advised Petitioner to come back to her if it occurred again. Ms. Perez discussed the incentive issue with Mr. Colson. They determined that, due to a high volume of negative accounts anticipated over the upcoming holidays, and in recognition of the priority on not missing an opportunity to resolve negative accounts, a policy for incentives when a CPCA had to handle incoming calls and loan requests from members who were not in the CPCA’s queue was warranted. On November 19, 2013, Ms. Perez sent an e-mail to Petitioner and Ms. Munyan setting out the policy for handling calls when the other CPCA was not available. Outgoing calls and loan initiation were limited to customers within the CPCA’s queue. However, if a CPCA was not in the office or was unavailable to handle a customer request, the other CPCA was instructed to accept incoming calls from members not in their queue. The CPCA who first entered notes of a customer contact prior to a loan being booked was to receive the incentive. On December 9, 2013, Ms. Munyan received a communication from a member with a negative account, entered the first notes of contact with the member into the workflow history, and sent loan paperwork for a bounce-free loan to the member. On December 10, 2013, Petitioner spoke with the customer and took additional application information over the phone. Later that same day, Petitioner went to Mr. Colson to approve a refinance loan for the customer. Mr. Colson approved Petitioner to proceed with the refinance loan based on the customer’s income, but did not know at the time that Ms. Munyan had already started the loan process. Since Ms. Munyan made the first contact with the customer, the incentive was credited to Ms. Munyan. Petitioner proceeded to make several entries on the workflow history asserting her claim to the incentive. Petitioner apparently discussed the matter within the office, leading to her testimony that “[t]he department was upset about it because I showed it to them.” In December 2013, having been made aware of the workflow history comments regarding the disputed incentive; having received complaints regarding Petitioner from the manager of Respondent’s contact center; and having continuing issues with Petitioner’s failure to submit loan documents to the optical department, Mr. Colson prepared a series of coaching reports to individually address the issues. It was decided to issue separate coaching reports for each issue of concern, rather than a single lengthy report, in order to keep the issues separate. Respondent has previously issued multiple coaching reports to employees under comparable circumstances. On December 20, 2013, Petitioner was called into a meeting with Mr. Colson. She thought the meeting was to discuss the disputed incentive. Instead, she was presented with the coaching reports. The first coaching report was issued for Petitioner’s notations into the workflow system related to her intent to claim the disputed incentive credit. Petitioner had previously received training on the information to be entered in the workflow system. During the training sessions, which were conducted periodically, and which included the distribution of printed materials, it was stressed that the workflow notes should not be editorial or contain side comments. Mr. Colson explained that, in the event of a legal dispute with a member regarding their account, the collection record, including the notations entered into the workflow system, would be made part of a court record. As applied to Petitioner’s notations, Mr. Colson was concerned about having to testify about notations in the collection record regarding incentives or commissions for working on a work-out request. Petitioner alleged that Ms. Martello and other unidentified credit advisors made similar notations in the workflow system without being written up, but provided no evidence to support her assertion. Mr. Colson knew of no other instance of a CPCA making notations in the workflow system related to an incentive dispute or other internal employee dispute. Mr. Colson believed that the notations made by Petitioner regarding the incentive dispute were not pertinent to the collection record, thus violating Respondent’s policy and warranting the issuance of the coaching report. Petitioner signed the first coaching report, with the comment that “I thought that I was doing the right thing on this acct.” The second coaching report addressed Petitioner’s act of taking a fee refund voucher to Respondent’s contact center department for approval. The contact center has staff on duty beyond Respondent’s normal 8:30 a.m. to 5:00 p.m. business hours. The fee refund had to be done on November 25, 2013, since that was the 60th day of the negative account, after which the account would have to be written off. The fee refund was for an amount that exceeded Petitioner’s approval authority. Despite the time frame involved, Petitioner did not get the fee refund voucher approved by the clerk of the collections department, which would be the normal course, before the 5:00 p.m. close of business. During the December 20, 2013, meeting, Mr. Colson discussed the practice of taking vouchers to the call center for processing after 5:00 p.m. Mr. Colson had been approached by the assistant vice president of the contact center regarding Petitioner’s multiple visits after 5:00 p.m. to his department “to have transactions done, fees refunded, things of that nature on members' accounts.” As a result, call center employees were being pulled away from their normal tasks to do transactions that were not a normal function of their job. Petitioner alleged that other credit advisors went to the call center to have such transactions processed, including Ms. Martello, Melonice Lindsey, and Howard Miller, but provided no evidence to support her assertion. Mr. Colson had no knowledge of other credit advisors who engaged in this activity, or any other improprieties regarding the processing of fee refunds. The second coaching report addressed additional issues related to the November 25, 2013, fee refund transaction, including the fact that Petitioner did not work on the sixty-day negative account when she arrived to work that morning, and that she did not enter any notation in the workflow history regarding the fee refund. Mr. Colson believed that the issues regarding the fee refund transaction warranted the issuance of the coaching report. Petitioner signed the second coaching report, with the comment that “I didn’t do this intentionally. I forgot to get voucher back from Katie to give to [Mr. Colson] to sign.” The third coaching report addressed the ongoing problem of Petitioner’s failure to provide loan documentation to the optical department for input and scanning, the details of which are set forth in paragraph 22 above. Petitioner signed the report with the comment that “[s]ome of these loans have been turned into optical. I will review this matter.” Petitioner alleged that other employees had fallen behind on submitting paperwork, but were not written up or terminated. Petitioner did not identify, by name or race, any of the allegedly comparable employees, or establish that they had a comparable history of failing to submit loan documentation. The only evidence adduced at the hearing established that Ms. Martello and Ms. Munyan were not comparable to Petitioner in the number or frequency of late-submitted loan packets. Petitioner stated that she had previously advised Ms. Perez of her intent to work on Saturday, December 21, 2013, to catch up on her loan paperwork. Mr. Colson was not aware of Petitioner’s intent to do so but, given the length of time that the problem continued to exist, would still have issued the coaching report to Petitioner. At some point after January 2, 2014, during Mr. Colson’s daily review of compliance reports, he noted an account that was over 60 days, requiring that it be written off. The account was assigned to Petitioner, and Mr. Colson saw from the workflow history that Petitioner did not begin work on the account until it was 58 days past due. Working her accounts earlier in the delinquency stage had been previously addressed with Petitioner. On January 6, 2014, Petitioner was given a coaching report and placed on a 60-day probation for deficient work performance related to the written-off account. Petitioner signed the January 6, 2014, coaching report with the comment that “voucher was paperclip to another voucher by mistake. I usually check these daily.” Petitioner testified that other employees failed to timely charge-off accounts but were not counseled, but provided no evidence to support her assertion. The only comparator for whom evidence was received was Khrissy Adams, a Caucasian woman, who was given a coaching report and placed on a 30-day probation for failing to timely write-off an account. There was no evidence of Ms. Adams having received previous coaching reports so as to warrant a lengthier period of probation, as was given to Petitioner. As part of the process established after the December 20, 2013, meeting and coaching reports, Petitioner was to submit her loan packets to either Ms. Perez or Mr. Colson for review before they were sent to be scanned. That review revealed that a large number of the loan packets contained significant errors in the consumer lending plan, which is the contract a member signs to obtain a loan. Many of the consumer lending plans had missing signatures, and some packets had no consumer lending plan at all. Furthermore, Petitioner indicated that some members elected to purchase loan insurance when the member had, in fact, declined insurance, resulting in unapproved charges to a member. The errors noted by Respondent were serious, potentially resulting in the loan contracts being invalid and unenforceable. The errors could have been violative of Regulation Z, which governs fair lending practices and, if there were a sufficient number of instances, resulted in a class action lawsuit against Respondent, exposing it to considerable cost. Due to the ongoing performance issues, as well as the severity of the issues related to Petitioner’s completed loan packets, the decision was made that termination of Petitioner’s employment was appropriate. Petitioner was thereafter terminated from employment on March 21, 2014. Petitioner identified no instance of any racially- disparaging comments directed at herself or any other employee by anyone affiliated with Respondent. There was no non-hearsay evidence of any employee outside of Petitioner’s protected class who engaged in conduct similar to that of Petitioner, but without consequence, upon which to support a finding that the employee was treated more favorably. Mr. Colson testified credibly that Petitioner’s race had no bearing on the decision to terminate her employment. Rather, Mr. Colson testified convincingly that the decision was based solely on Petitioner’s continuing and increasingly poor job performance. Mr. Colson felt Petitioner’s poor performance was not due to a lack of trying on Petitioner’s part; it was simply the result of a lack of ability on her part. Petitioner asserted that she was written up, placed on probation, and subsequently terminated from employment in retaliation for complaining that Ms. Munyan improperly claimed her incentive. In that regard, she testified that: I know that by me going to management . . . it really started all this, I think, because I’m thinking to myself, if I would have just kept my mouth shut, maybe I would have had my job, but other employees have went to Mr. Colson before with problems like that . . . . But my thing is, after I went to management I get written up out of retaliation. I got blind-sided. I didn’t know that was going to happen. And, to me, that’s retaliation. Petitioner does not claim that she was denied the incentive credit because or her race. Finally, Petitioner complained that some of her personal belonging were damaged or not returned to her after her employment was terminated, testifying that “[t]hey broke up all of my things and, to me, that was not right. To me, that was discriminative.” Even if there were some evidence that Petitioner’s belongings had been damaged on purpose -- which there was not -- there was no evidence that such damage was the result of racial animus. A review of the entire record of this proceeding reveals not a shred of evidence that any of the employment actions of which Petitioner complains were the result of racial bias or discrimination. The only testimony that can be reasonably read as suggesting some racial bias behind the employment actions at issue are Petitioner’s testimony as follows: and I know that discrimination do exist. I do know that’s a problem all across the board in America . . . [a]nd if I did not feel that I was discriminated against I would never have did all this . . . but my thing is I know there’s favorites at that credit union. I know that certain people get away with things. To me, I was discriminated against, I'm gonna say for the record, because of my race, because if I think that I know within my heart if the tables were turned, if I was white and went to management, I would still had a job because to me it just got blown out of proportion by me going to management. And as everyone can clearly see, it all started from there, because if it wasn't started from there, why would I have gotten written up in first place for my work that happened prior to, you know, that -- you know, that year? So, that's what started that. So my point is, is that if I wouldn't have never said anything, I would have probably still been working there. In the absence of some corroborative evidence, Petitioner’s statements alone cannot provide the support to sustain a charge of racial discrimination. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race. Rather, the decision was based on Petitioner’s performance in her job as reflected in the employee coaching reports. Furthermore, there was no competent, substantial evidence adduced at the hearing that persons who were not African-American were treated differently from Petitioner, or were subject to dissimilar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made in retaliation for Petitioner’s opposition to an unlawful employment practice. Rather, to the extent there was some retaliation involved, it was for bringing an internal employee complaint over a disputed incentive to management, a complaint that had no implication of race.
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, Florida Credit Union, did not commit any unlawful employment practice as to Petitioner, Sheila A. Cunningham, and dismissing the Petition for Relief filed in FCHR No. 2014-00645. DONE AND ENTERED this 6th day of May, 2015, 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 6th day of May, 2015. COPIES FURNISHED: Sheila Annette Cunningham 1835 Northwest 27th Avenue Ocala, Florida 34475 Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 R. Michelle Tatum, Esquire John E. Duvall, Esquire Ford and Harrison, LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
Findings Of Fact Vause is in partnership with his brother and has a principal office at 100 Hamilton Avenue, Panama City, Florida. Vause's business has two full-time employees and has a net worth of less than $100,000.00. In DOAH Case No. 88-5988, Vause applied for a special activity license to use mechanical harvesting devices on his oyster leases. DNR denied the application by "Final Order" dated October 17, 1988, and this "Final Order" provided the clear point of entry. Vause availed himself of this point of entry and requested a formal hearing. After a formal hearing, a Recommended Order was entered on March 13, 1989, wherein it was concluded that the application was valid and adequate and that Vause had met all conditions precedent to be entitled to the permit sought. DNR had denied the permit based on legally insufficient and incorrect grounds and authority. Vause has incurred attorney's fees at the rate of $125.00 per hour. A total of 19.20 hours were expended by Vause's attorney in the underlying proceeding and in this proceeding. The number of hours is reasonable and they were necessary. The hourly rate is reasonable. Hence, Vause has incurred $2400.00 in fees.
Findings Of Fact The Petitioner is a "small business party" sole proprietorship domiciled in Tampa, Florida, with less than 25 employees, and a net worth of less than $2 million. The Respondent previously initiated action against Petitioner as a result of a Medicaid audit of Petitioner's pharmacy and identified an overpayment which it then sought to recover from Petitioner. A timely request for hearing was filed by Petitioner, and the matter was transmitted by the Respondent to the Division of Administrative Hearings where it was assigned Case Number 88-1668. The final hearing was held in Tampa, Florida, on June 22, 1988, before Donald D. Conn, Hearing Officer, and thereafter a Recommended Order was filed on August 17, 1988, which recommended that Respondent enter a Final Order dismissing its action against Petitioner, refunding any funds which it had withheld, plus interest, and removing all other sanctions. The Respondent approved and adopted this recommendation in its Final Order entered on September 15, 1988, by the terms of which Petitioner prevailed in the prior action initiated by the Respondent. The Respondent was not a nominal party to the prior proceedings, and there is nothing in the record to show that the Respondent was substantially justified in bringing the prior action, or that any special circumstances exist which would make an award of fees and costs unjust. On November 2, 1988, a Petition for Costs and Attorney's Fees was filed with the Division of Administrative Hearings by the Petitioner. The Petition is accompanied by an affidavit and supporting documents which are uncontroverted, and which establish that Petitioner incurred legal fees in the amount of $14,587.50 and costs of $1,437.77, as a result of the prior proceedings in Case Number 88-1668. In the Petition for Costs and Fees, the Petitioner specifically indicated that an evidentiary hearing was not requested. No responsive pleading of any kind has been filed on behalf of the Respondent to this Petition for Costs and Fees.
The Issue The issue for determination is whether Respondent should certify Petitioner as a minority business enterprise ("MBE").
Findings Of Fact Respondent is the governmental agency responsible for granting or denying applications for MBE certification in accordance with Section 288.703(1), Florida Statutes,1 and Florida Administrative Code Rules 60A-2.001 and 60A-2.005.2 Petitioner is an applicant for MBE certification. Petitioner is engaged in the business of installing traffic signal devices. Petitioner is a closely held Florida corporation that was organized in 1990. Minority Ownership All of Petitioner's stock is owned by Ms. Burita Allen. Ms. Allen is a minority person within the meaning of Section 288.703(3) (the "minority owner" or "minority shareholder"). The minority shareholder is majority shareholder. She owns at least 51 percent of Petitioner's stock within the meaning of Rule 60A-2.005(2)1. Financial Risk And Control The minority ownership of Petitioner is real, substantial, and continuing within the meaning of Rule 60A- 2.005(3)(d)3. The minority owner provided all of the $100,000 used for Petitioner's initial capitalization on April 4, 1995.3 Petitioner was inactive from 1990 until it began its first job on May 11, 1995. Petitioner now has completed or started a total of eight jobs. The minority owner has knowledge and control of Petitioner's financial affairs. She has sole control of the day to day operations of the company and its profit and loss. She contributed all of its initial capital, writes the checks, and contracts with employees, subcontractors, and customers. Operating And Management Control The minority owner has operating control of Petitioner and is technically qualified to manage and operate Petitioner's business. She has generated significant growth for Petitioner. Operating revenues have increased from zero to $170,736.28 in less than two years. Petitioner has another $90,268.08 in work performed but not billed. Petitioner's clients include the Florida Department of Transportation, the United States Navy, and Nassau County, Florida. Petitioner has also performed jobs for private companies such as Georgia Pacific, Target, and Haynes & Sons Inc. Affiliation Petitioner's minority owner gained the knowledge and experience needed to operate Petitioner successfully as an employee of J.W. Buckholz Traffic Engineering, Inc. ("Buckholz Engineering"). Buckholz Engineering is a closely held Florida corporation owned by five individuals. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. She owns 52 percent of the stock of Buckholz Engineering. Petitioner shares office space, equipment, and staff with Buckholz Engineering. Petitioner's minority owner allocates approximately 40 percent of the 70 to 102 hours she works each week to Petitioner. The remainder of her work week is allocated to Buckholz Engineering. The affiliation between Petitioner, its minority owner, and Buckholz Engineering does not impair the minority owner's ownership and control of Petitioner. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. Petitioner's minority owner has an unimpeded legal right to share Petitioner's income, earnings, and other benefits in proportion to her stock ownership within the meaning of Rule 60A-2.005(2)(b). Neither the exercise of discretion by Petitioner's minority owner, her financial risk, nor her equity position in Petitioner is subject to any formal or informal restrictions within the meaning of Rule 60A-2.005(3)(a). There are no provisions in any purchase agreement, employment agreement, voting rights agreement, or the corporate by-laws that vary or usurp the minority owner's discretion. Buckholz Engineering assisted Petitioner in obtaining greater bonding limits than Petitioner could obtain on its own. Petitioner was capable of obtaining bonding on its own but increased the amount of bonding by adding Buckholz Engineering as co-applicant. Petitioner's minority owner is the majority shareholder in Buckholz Engineering. Buckholz Engineering is a professional service corporation that provides design services by licensed professional engineers. Buckholz Engineering utilizes professional liability insurance. It is not a construction company and has no need to be bonded. Petitioner derived its name in part to benefit from the goodwill of Buckholz Engineering. However, the two companies are not engaged in the same business. Buckholz Engineering is a professional engineering firm that performs professional services including the design of traffic control systems. Petitioner installs traffic signal devices. Unlike Buckholz Engineering, Petitioner does not need a professional engineering license to conduct its business. Electrical License Petitioner does not offer a trade or profession to the state which requires a trade or professional license within the meaning Section 287.0943(1)(3)1.4 Unlike the professional engineers in Buckholz Engineering, no state statute requires the minority owner to be licensed in a particular trade or profession in order for Petitioner to install traffic signals. Petitioner's minority owner satisfies all certification requirements that are generally required for Petitioner to conduct its business. The minority owner is certified by the International Municipal Signal Association ("IMSA") and by the American Traffic and Safety Association ("ATSA"). In a particular job, Petitioner's customer may require that a licensed electrician pull the necessary permits for the job or that a licensed electrician approve the job. This customer requirement comprises only a de minimis portion of Petitioner's business. Of the eight jobs contracted by Petitioner, only one customer has required the permit to be pulled by a licensed electrician. Petitioner can satisfy these occasional customer requirements by subcontracting with a licensed electrician at a cost that is a small portion of the job cost.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order and therein GRANT Petitioner's application for MBE certification. RECOMMENDED this 18th day of February, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997.
Findings Of Fact Union Trucking is a Florida corporation engaged in the business of trucking. Its net worth is less than $2,000,000.00 In DOAH Case NO. 87-4007, the Department sent Petitioner a letter dated August 6, 1987, denying Petitioner's request for certification as a minority business enterprise pursuant to the Department's Rule 14-78.005, Florida Administrative Code. The reason stated in the letter was that Petitioner was not actually under the control of a minority person. On August 25, 1987, Petitioner timely requested a hearing and the case was sent to the Division Of Administrative Hearings on September 11, 1987. By Notice of Hearing dated September 23, 1987, hearing was scheduled for November 16, 1987 and later continued until February 10, 1988. Rule 14-78.002, Florida Administrative Code, was amended on September 21, 1987. The amendment effectively removed DOT's reason-for denial of Petitioner's certification. However, on February 11, 1988, well after the rule change came into effect, DOT formally decided to certify Petitioner. Petitioner was therefore forced to proceed for several months in preparation for an action which Respondent admits it had no basis for after the rule change took effect. Respondent's initial decision occurred on August 6, 1987, when Respondent notified Petitioner of its denial of minority business status. At some point in time, Respondent had filed its proposed rule change. Petitioner failed to demonstrate the time of the proposed change. Depending on the facts surrounding the rule change as to its likelihood of adoption at the time Respondent initiated this action, no findings regarding substantial justification can be made at the time of the agency's initial action on August Most certainly after September 21, 1987, the date the MBE rule was amended, Respondent lacked any substantial justification to continue to litigate this matter. The Final Order of the Department recognized the earlier certification of Petitioner and dismissed the action. However, the Final Order of Respondent did not dispose of the attorney's fees issue which had also been raised during the principal action. The order, therefore, did not dispose of substantially all the issues raised in the principal action. Additionally, there was no settlement of this case since a written settlement agreement was drafted and signed by Petitioner, but refused by Respondent. Respondent's unilateral certification is not enough to force a settlement on Petitioner, especially since Respondent elected to enter a Final Order in this case. Petitioner, therefore, became a prevailing party when Respondent entered its Final Order on April 18, 1988. Section 57.111(4)(b)(2) , Florida Statutes. The application and affidavit which initiated this action were filed on May 23, 1988. The application substantially meets the requirements of Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in that it fairly put Respondent on notice of Petitioner's claim. The application and affidavit were timely, having been filed within 60 days after the date on which Petitioner became a prevailing small business party. According to the affidavit of Frank M. Gafford, Petitioner incurred legal fees of $3,572.86. These fees and costs are found to be reasonable. The Department does not dispute the reasonableness of the fees in this case.
The Issue Whether or not Petitioner Robert R. Hambley is entitled to an award of attorney's fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact This case arises in the wake of Robert R. Hambley v. Department of Professional Regulation, DOAH Case No. 88-4788, for formal administrative proceeding stemming from a complaint filed against Petitioner on September 28, 1987. On July 5, 1989, the undersigned Hearing Officer entered a Recommended Order imposing an administrative fine against the Petitioner in the amount of $1,000.00 and placing the Petitioner's license on probation for a period of one (1) year. Petitioner did not file exceptions to the subject recommended order. On August 22, 1989, the Respondent, Department of Professional Regulation, Division of Real Estate, rejected the proposed order and revoked the Respondent's license. Thereafter, Petitioner retained the services of the law firm of LARSON, CONKLIN, STANLEY, PROBST & BOBENHAUSEN, P.A. to represent him, which attorney's filed an appeal in the Second District Court of Appeal contesting the Division of Real Estate's Final Order, specifically the aggravation of the penalty, to wit, revocation of Petitioner's license. In connection with Petitioner's legal representation, he incurred reasonable costs and fees in the amount of $504.49 and $3,393.00, respectively. On October 5, 1990, the Second District Court of Appeal entered its order affirming the findings as found by Recommended Order, but reversed and remanded for implementation of the recommended penalty of $1000.00 and rejecting the recommended penalty of probation, since that was not an authorized penalty at the time of the hearing. The basis of the Court's decision is that Respondent failed to adequately comply with Section 120.57(1)(b)(10), Florida Statutes, in order to properly increase the severity of the recommended penalty. See Bernal v. Department of Professional Regulation, 517 So.2d 113, (Fla. 3d DCA 1987), affirmed 531 So.2d 967 (Fla. 1988). Thereafter, on October 10, 1990, the Respondent filed a motion for rehearing which motion was denied on November 1, 1990. On November 11, 1990, a Mandate issued from the Second District Court of Appeal and Petitioner's license was reinstated on November 21, 1990, with Respondent issuing a Final Order rescinding its prior order of August 15, 1989, and by issuing a supplemental Final Order on December 4, 1990. That December 4, 1990, order implemented the recommended penalty with the exception of probation which was not statutorily authorized. The Administrative Complaint which was filed jointly against Petitioner was a six count administrative complaint and the entity through which he dealt, Real Pro Associates, Inc. Petitioner was found guilty of participating in five transactions which conduct amounted to proscribed conduct within the purview of Subsection 475.25(1)(a), Florida Statutes, by paying real estate commissions totaling over $28,500.00 to Paul George, an unlicensed person. Petitioner was also found guilty of culpable negligence and breach of trust in a business transaction in violation of Subsection 475.25(1)(b), Florida Statutes, for having failed to inform or otherwise disclose to Stewart Fidelity Title Company, the company which handled the closing for the transactions, that the stated escrow deposits were never placed in an escrow account as represented in the contracts for sale and purchase which would alert the lender that the purported purchaser had a "no equity" position in the purchases. Petitioner was, via Recommended Order, required to pay an administrative fine of $1,000.00 within thirty (30) days of the entry of the Final Order. Petitioner was found guilty of all violations for which he was cited in the Administrative Complaint filed by Respondent and a monetary penalty was imposed. Respondent was substantially justified in asserting that the Petitioner was in violation of the real estate licensing law when it issued the subject complaint. That proceeding was premised on a reasonable basis in law and fact when it was initiated. See Miller v. Department of Professional Regulation, Division of Real Estate, DOAH Case No. 89-5042F, 12 FALR 2312, 2314 filed 5/16/90. The Florida Real Estate Commission enhanced the penalty to recommendations which were within the parameters set forth in the disciplinary guidelines of the Florida Real Estate Commission as provided for by Rule Sections 21V-24.001(2) and (3), Florida Administrative Code. The rule sections provided that the Petitioner Hambley could have been fined, for such violations, up to $1,000.00 per count and may have had all his licenses, registrations, certifications and permits penalized as follows: (h) 475.25(1)(b) - Up to 5 years suspension or revocation. [Emphasis supplied] (n) 475.25(1)(h) - Up to 2 years suspension. Petitioner has not demonstrated that it was a prevailing small business party under Section 57.111, Florida Statutes. Moreover, the actions of the Florida Division of Real Estate were substantially justified as defined by Subsection 57.111(3)(e), Florida Statutes. This is borne out by the findings as found by the undersigned Hearing Officer, which provides both a reasonable basis in law and fact as well as substantial justification of the administrative action when it was initiated. Particularly, the complaint against Petitioner was reviewed by a probable cause panel on September 15, 1987. That material which was reviewed by the panel included an investigative report and documentary evidence, all of which was presented to the panel and ultimately to the undersigned Hearing Officer. Appended to the investigative report was some 30 pages of exhibits which provided an adequate basis to support the charges of culpable negligence and breach of trust in a business transaction.
