The Issue The issues in this case concern the question of whether the Petitioners are entitled to certification as a Minority Business enterprise within the meaning of Chapter 288, Florida Statutes and Rule 13-8.005, Florida Administrative Code. The basic question is whether Bonnie M. Mobley, who is the minority person in Council Enterprises, Inc., and majority stockholder controls the management and daily operations of that corporation.
Findings Of Fact On July 1, 1984 council Enterprises, Inc. was incorporated as a Florida corporation. From that date until the Fall of 1985 the corporation was engaged in the business of plumbing and mechanical services in Florida. At the inception Luther E. Council, Jr., who is also known as "Snipes" Council, was the president, a director and stockholder within the corporation. His mother Bonnie M. Mobley, a minority person, was the majority stockholder and a director in the corporation. At the commencement of the corporation, Bonnie Mobley was secretary/treasurer. Her percentage of stock ownership was 51 percent and the other 49 percent was held by the son. The money which was used to capitalize the corporation in its inception was provided by the mother in the amount of $50,000. On June 14, 1985 by action of the Board of Directors, namely the mother and son, Luther E. Council, Jr. submitted his resignation as president. As the minutes of that meeting state, he did this having secured jobs for employees of Council Enterprises, Inc. with a firm known as Hays Heating and Plumbing Company. Council took a job with that company as manager. On the same date of the Board of Directors meeting, Bonnie M. Mobley was appointed as president, secretary and treasurer, in furtherance of a concern that each of these corporate officers be installed during the life of this corporation. When Luther E. Council, Jr. left Council Enterprises, Inc. to go and work with Hays he was no longer a director. It was further recommended by the son that his mother secure a Leon County Mechanical Contractor's License and serve as a qualifying agent and gain registration with the State of Florida. Other recommendations pursuant to Article II of the Articles of Incorporation were that she consider brokering mechanical equipment as a livelihood and secure a wholesaler's license as well. The events that took place by the corporation was in recognition of the fact that the corporation had concluded its business of offering plumbing and mechanical services. In fact, Bonnie Mobley had gone to work with Hays Heating and Plumbing Company on February 1, 1985 and would remain in her position as office manager at that company until January 9, 1987. During that time she was responsible for secretarial and bookkeeping responsibilities for Hays. During part of that time, as an aside, through Council Enterprises, Inc., she sold supplies to Hays for its use in projects. She tried to gain other contracts for supplies from companies other than Hays, without success. Luther E. Council, Jr., while working at Hays as a manager, was his mother's supervisor. He stayed with Hays from February 1, 1985 until June 19, 1987. As a consequence of leaving Council Enterprises, Inc. to go and work with Hays, Luther D. Council, Jr. transferred his stock in Council Enterprises, Inc. to his mother and she continues to hold all the stock in that company. In August, 1987 and to the present, Bonnie Mobley and her son Luther E. Council, Jr. reconstituted Council Enterprises, Inc. for purposes of offering services in plumbing, mechanical, fire protection, underground utilities, pollutant storage and as builders. They opened an office at 110 Perkins Street, Tallahassee, Florida, which continues to be their business location. Following the August, 1987 restructuring of the business Bonnie Mobley made her son vice-president and named him a director. This meant from that point forward, that there were two directors, Ms. Mobley and her son, Luther E. Council, Jr. In the past, Ms. Mobley had some familiarity with the heating, ventilation and air conditioning and plumbing business which her ex-husband, father of Luther E. Council, Jr. began in 1959. This business was Council Brothers, a company which her former husband and his brothers had started. Her awareness of that business corresponded to about an 11 year period in which at times she was involved to some extent in doing "take offs", cost estimating on jobs for her husband's company. Her principal occupation during the course of this period related to working in the Lewis State Bank as a secretary, receptionist and in the personnel department associated with payroll. She had also done some bookkeeping work for a small business which her ex-husband had relating to an air conditioning and heating service. Ms. Mobley has a license with Council Enterprises, Inc. related to Leon County in the mechanical field. As such, she is the qualifying agent for the corporation. Her son, by contrast, holds certified licenses with the State of Florida, Department of Professional Regulation, in the fields of plumbing contracting, mechanical contracting, building contracting, underground utility contracting, and pollutant storage contracting. In order to gain these licenses he had to have requisite experience in these fields and pass an examination. He also holds a First Class Fire Protection Contractor's License, and a Florida LP Underground Gas License issued by the State of Florida, Department of Insurance. Since the corporation returned to the active contracting business in August, 1987 Ms. Mobley's duties include giving instructions to an office secretary, Laverne Taylor, as needed, and generally keeping things running in the office. She is involved with final decisions about business choices to include an awareness of Dodge reports which advertise contract job opportunities and looking at the local newspaper to see about available work. She is involved in the purchase of equipment and has a say in those choices. She is involved with answering the phone at the office, paying bills, and taking care of the payroll. She sometimes goes to jobsites and stays a number of hours or even may stay all day. Luther E. Council, Jr. describes his position with the company as one of doing whatever needs to be done from running equipment, writing letters, raking and shoveling at jobs and doing job estimating. The mother and son and their field foreman, John W. Edwards, III, all involve themselves in bidding jobs which the company is interested in. The arrangement for hiring employees in the company is one in which a number of the employees who work for the company were associated with Hays and came to work at Council Enterprises, Inc. when Luther E. Council, Jr. returned from Hays to Council Enterprises, Inc. Mr. Edwards was an individual whom Luther E. Council, Jr. knew through their interest in law enforcement. Edwards as field manager is responsible for obtaining additional employees as needed in the field, subject to the approval of Ms. Mobley. Ms. Mobley has on occasion fired a couple of foremen with the company. This was against the recommendation of the field foreman Edwards. Another example of hiring relates to Laverne Taylor whom Ms. Mobley hired. The basic arrangement for hiring and firing in the company is premised upon consultation among Ms. Mobley, her son and the field foreman Edwards. Although 95 percent of the checks in the bank account by the company have been signed by Ms. Mobley, her son has signed the other 5 percent of the checks and has the authority to sign checks on the company's single signature accounts. In the bidding process which has been alluded to, all three persons, namely Ms. Mobley, Mr. Edwards and her son, Luther E. Council, Jr. are involved. Edwards is not as experienced as the son and neither is Ms. Mobley. Luther E. Council, Jr. has a better grounding in the business and in the more complicated issues that may arise in the bidding process. Ms. Mobley has been involved in the financial end of the corporation's activities and is well-grounded in that aspect of the business, to include major purchases, heavy equipment, the payment of routine items such as phone bills, and other account activities. Ms. Mobley, Luther E. Council, Jr. and Mr. Edwards are full-time employees for Council Enterprises, Inc. In obtaining recent loans in the amounts of $60,000 and $22,500, the initial amount being for cash flow on accounts receivable and the second amount having to do with a line of credit, it was necessary for Ms. Mobley and her son Luther E. Council, Jr. to guarantee the loans. In a related matter in the purchase of major pieces of equipment, both Ms. Mobley and her son signed the financial agreements involving the lease purchase of equipment. Bonding for the company in its projects include references to the resume's of both Ms. Mobley and her son. Approximately 80 percent of the work of Council Enterprises, Inc. involves underground utility installation and 20 percent is related to plumbing. In this process, Luther E. Council, Jr. is an indispensable person in deciding the direction which the company will pursue in its business activities, most especially related to understanding of the technical aspects of this company's business and the necessity to rely upon his licensing credentials in order to pursue its business functions. For thin's reason, Bonnie Mobley is not in a position to independently control the corporation's affairs and, in fact, has not controlled it, independent of her son a non-minority person. In this connection, Article II, Section 1 of the By Laws of the corporation, Council Enterprises, Inc., speaks in terms' of the business of that corporation being managed and its corporate powers being reposed in its Board of Directors. Further, Article II, Section 6 of those By Laws requires that the majority of the directors shall be necessary as participants at a meeting to constitute a quorum and that it is the act of the majority of those directors present at the meeting where there is a quorum that constitutes the actions of the Board of Directors. Given this circumstance, there are only two directors and Luther E. Council, Jr. has as much authority as Ms. Mobley in his capacity as director. As a result, he necessarily shares in the management of the company. Against this background information concerning Council Enterprises, Inc. it had sought to gain certification as a Minority Business Enterprise by the State of Florida, Department of General Services. It was denied that opportunity by action of the Department on April 8, 1988 and sought a formal hearing under Section 120.57(1), Florida Statutes, to resolve the question of its entitlement to such certification. The basis of denial was briefly described in the issue statement to this recommended order and will be more specifically referred to in the Conclusions of Law section of the recommended order which follows.
Recommendation Based upon consideration of the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a Final Order be entered which denies the application of Council Enterprises, Inc. to be certified as a Minority Business Enterprise. DONE and ENTERED this 6th day of March, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989. APPENDIX The following disposition is made of the proposed fact finding of the parties: Petitioner's Facts The Petitioner's facts are subordinate to the fact found in the recommended order. Respondent's Facts 1.-6. Subordinate to facts found. Subordinate to facts found with the exception of the next to the last sentence which is not necessary to resolution of the dispute. Subordinate to facts found with the exception of the first sentence which is contrary to facts found. First sentence is contrary to facts found. The balance of the sentences within that paragraph are subordinate to facts found with the exception of the discussion of use of Luther E. Council, Jr.'s licenses as qualifying to allow the company to conduct certain business in the contracting field. Although it may be customary to use someone else's license as a qualifier for the benefit of the company, under the present circumstances the person who is the qualifying agent is a director who must be appeased before the corporation can conduct its affairs and who by the facts of thin case, is the dominant figure in the pursuit of the business of the corporation. Contrary to facts found. COPIES FURNISHED: Donald S. Modesitt, Esquire 320 West Park Avenue Tallahassee, Florida 32301 Sandra E. Allen, Esquire Office of General Counsel Department of General Services Room 452 Larson Building 200 E. Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue is whether Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner, Richelieu Williams, an African-American male, was employed as a truck operator, working out of the company's Jacksonville yard at Respondent C and C Pumping Services. C and C Pumping Services is a family-owned cement company with offices, at one time or another, in Groveland, Jacksonville, Tampa, Marianna, and New Orleans. Chris Holdorf, Sr., is the vice president of the company, while his son, Chris Holdorf, Jr., is the manager of the Jacksonville yard. Petitioner appeared through counsel and offered no testimony, whether live or through deposition. When asked, counsel for Petitioner stated that Petitioner voluntarily chose not to attend the final hearing. Petitioner's case, therefore, consisted solely of his initial claim of discrimination filed with the Commission, the Commission's Determination: No Cause, and his Petition for Relief, as well as cross-examination performed by his counsel at hearing. Petitioner claimed in his charge of discrimination filed with the Commission that he was the target of racial epithets by an employee of Respondent, a fellow pump operator named "Paul." He noted that Paul had a small tattoo of a swastika on the back of his hand. Petitioner's charge of discrimination also stated that, following the racially-charged insults, his truck was sabotaged. He claims he informed Chris Holdorf, Jr., his supervisor, of the racial epithets and the alleged sabotage of his truck, and that no action was taken. Mr. Holdorf has no recollection of any complaints by Petitioner about racial discrimination or the alleged sabotage of the truck, and he believes he would certainly know if there was any problem with the equipment under his care. He did acknowledge that Paul had a small tattoo of a swastika on the back of his hand. Petitioner started work with Respondent in the Fall of 2009. He was a good employee and caused no problems for management. Chris Holdorf, Jr., considered Petitioner a "good friend." Petitioner left the employ of Respondent for a short time in 2011 to work at the Hard Rock Café, but returned in November 2011. On December 19, 2011, Petitioner inexplicably quit his job with Respondent, notifying Chris Holdorf, Jr., by telephone message that he had quit. He left his truck keys, phone, and fuel card in the truck when he left for the night on December 19. Chris Holdorf, Jr., never heard anything about the alleged discrimination and truck sabotage until he received the discrimination statement from the Commission in April 2012. Further, the work schedules of Petitioner and Paul made it unlikely that the two of them were present at the same time on the Jacksonville yard more than 15-20 minutes a month. Chris Holdorf, Sr., was in almost daily contact with all of his truck operators and never heard from Petitioner that he had been discriminated against or that his truck had been sabotaged. Paul no longer works with Respondent, having moved away recently. Chris Holdorf, Jr., would be the person who would receive any complaints about discrimination or sabotage in the Jacksonville yard. He received no such complaints from Petitioner or any other employee of the company concerning Petitioner's allegations.
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 Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 4th day of April, 2013, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 4th day of April, 2013. COPIES FURNISHED: Sean C. Barber, Esquire Law Offices of Bohdan Neswiacheny 151 College Drive, Suite 1 Orange Park, Florida 32065 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Leslie Holdorf Chris Holdorf, Sr. C and C Pumping Services 19968 Independence Boulevard Groveland, Florida 34736 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent permitted patrons to possess and sell controlled substances on the licensed premises, allowed minors to possess alcoholic beverages on the licensed premises, operated the Silver Spoon as a public nuisance, and sold or possessed controlled substances within 1000 feet of a secondary school.
Findings Of Fact At all times relevant hereto, L. H. and Georgia Haggins, d/b/a the Silver Spoon, held alcoholic beverage license #63-01955, series 2-COP, for a premises known as the Silver Spoon, 675 Gordon Avenue, Bartow, Florida. The Silver Spoon has been in operation for more than 50 years and is located in a black neighborhood in West Bartow. It has been under the operation of the Haggins since 1988. In March 1990, the Bartow Police commenced an investigation of the Silver Spoon because of complaints received from citizens. In conducting this investigation, the Bartow Police recruited a black police officer from the Lake Wales Police Department to work under cover. In June 1990, the DABT received a complaint from the Bartow Police, and they joined in the investigation. Following the closing of a black bar in East Bartow in 1988 for reasons not disclosed in these proceedings, a younger and more unruly clientele began frequenting the Silver Spoon. This factor was the main source of the increase in complaints. Michael Hamil, an officer with the Bartow Police, acted as back up for Bobby Smith, the Lakes Wales police officer who worked undercover in this investigation. The purchase of controlled substances made by Smith were turned over to Hamil and another Bartow police officer, Peacock, who field tested the substances and turned the substances into the evidence department at the Bartow Police Station, from where the substances were taken to the FDLE laboratory in Tampa where a chemical analysis was done. The chain of custody of these materials was intact, and the materials tested proved to be the controlled substances contained in the findings below. During the period between late March 1990 and the raid on August 24, 1990, Smith purchased controlled substances in the Silver Spoon some 10 or 11 times, including the first time he entered this bar on March 29, 1990. On March 29, 1990, Smith inquired around the bar for cocaine and made contact with a black male, later identified as Michael Ford from whom he purchased a $10 "rock" of crack cocaine. The transaction occurred in the game room which receives light from the two restrooms located there. While the cocaine and money were being exchanged, L. H. Haggins walked by, apparently enroute to the restroom. Although Haggins denied seeing any such transaction, the transaction took place in an overt manner and could easily have been observed by Haggins. On each occasion Smith was in the Silver Spoon, he observed numerous individuals he believed to be minors walking around with beer cans in their hands. Further, on each occasion Smith purchased controlled substances in the Silver Spoon, Georgia Haggins was present and, on several occasions, L. H. Haggins was also present. On January 22, 1990, after DABT had joined the investigation, Smith again entered the Silver Spoon after meeting with Hamil and DABT agent Green. Upon entering the bar on this occasion, Smith observed three people checking to see nobody walked out with a beer, and when he tried to make a purchase (of cocaine) he was told the guys at the door would throw you out if drugs were dealt. Smith later observed the three men passing around a cigarette in the manner a marijuana cigarette is smoked, and the smoke smelled like marijuana. On June 23, 1990, Smith again entered the premises, saw both licensees standing behind the bar, and observed several individuals he believed to be minors purchasing beer. Smith went outside the premises and purchased $10 worth of marijuana from Reggie Bates just outside the licensed premises. On July 27, 1990, Smith again entered the Silver Spoon and inquired about the availability of drugs. An unknown black male left and returned with Raymond Stewart, from whom Smith purchased a "ten cent piece" ($10) of crack cocaine. This transaction took place in the vicinity of the bar and within 8 to 10 feet of Georgia Haggins who was behind the bar. On July 28, 1990, Smith again inquired inside the bar about the purchase of crack cocaine, and was referred by a black male, William Keith, to Felice Newton, a black female who was talking to Georgia Haggins at the bar. Newton stepped back from the bar and retrieved a plastic bag from her pants from which she extracted crack cocaine, passed it to Keith who in turn passed it to Smith for $20 which Keith in turn gave to Newton. This transaction occurred approximately 7 feet from the bar with Smith facing Ms. Haggins, who was facing in Smith's direction. On August 3, 1990, Smith again entered the Silver Spoon and inquired about the purchase of crack cocaine. The unknown black male to whom Smith addressed this inquiry departed and returned shortly thereafter with the black male later identified as Christopher Washington, from whom Smith purchased crack cocaine for $20. This transaction took place in the gameroom in the light from the restrooms. Shortly thereafter, Smith approached the bar and displayed the cocaine he had bought to Georgia Haggins commenting that he had purchased it on the premises that evening and hoped it was good. Haggins denies any recollection of such an incident. On August 4, 1990, Smith again entered the licensed premises and asked Georgia Haggins if she had seen William Keith, to which she replied "no, not tonight." He then asked her if she knew where he could purchase cocaine, and she replied "just look around." Smith, shortly thereafter, purchased a $20 piece of crack cocaine from a black male later identified as Isaiah Donald, who took a plastic bag from his pocket, held it up to the light from the restrooms, and extracted a "rock" which he passed to Smith in exchange for $20. Smith then approached the bar with the cocaine in his hand. He displayed the cocaine to Georgia Haggins when he ordered a beer. She responded with a smile and nodded. On August 16, 1990, Smith again entered the licensed premises and asked Georgia Haggins if she had seen Keith tonight, to which she replied "no." He then asked her if she knew where he could purchase a twenty cent piece. She looked around the premises and replied "not right now." Smith then asked L. H. Haggins the same question and received a negative response. Smith later purchased a $20 rock of cocaine from a black male in the restroom, later identified as James Daniels, Jr. Smith then went to the bar and displayed the cocaine to L. H. Haggins, commenting he hoped it was good. L. H. Haggins nodded his head. Georgia Haggins' version of this transaction that, when Smith asked about a "twenty cent piece" she thought he was talking about sex and if she had thought he was asking about drugs she would have told him to leave, is not credible. On August 17, 1990, Smith purchased crack cocaine for $20 from Javon Walker, a black male Smith later learned was 17 years old. The transaction occurred in the gameroom where Walker pulled a plastic bag from his pants, held it up to the light, and extracted cocaine which he passed to Smith in exchange for $20. Shortly thereafter, Smith observed Walker return to the gameroom with an open beer can in his hand. Smith then went to the bar, showed the cocaine he had purchased to Georgia Haggins and said "I hope I got some good shit tonight" to which she nodded. Ms. Haggins testimony that she has no recollection of such conversation and that she never heard cocaine referred to as "shit" is not credible. On August 19, 1990, Smith again entered the bar, and upon entering he found the atmosphere in the bar "loose." Shortly thereafter, a white man and a black man entered the bar together causing the patrons in the bar to think they were narcotics officers. When Smith attempted to purchase cocaine from "Freddie," the latter told him there were narcs in the building, and he wouldn't deal. When the two suspected narcs left the premises, numerous people outside in the parking lot threw bottles and rocks at their car yelling "narcs." Smith observed Christopher Washington take a handgun from his pants and point it at the unknown white male in the car in the parking area. Smith returned to the Silver Spoon August 23, 1990 during which time he purchased cocaine from a black male later identified as Mario Crawford for $20. This transaction took place in the gameroom in the light from the restrooms. No attempt was made to conceal this transaction. Smith later approached the bar and showed the cocaine he had purchased to L. H. Haggins who walked away. When Georgia Haggins came up, Smith showed the cocaine to her and commented "this is fake shit, I've never been ripped off here before." To which she responded "where's Freddie?", and then said "Freddie will do that to you" and angrily looked around the bar for Freddie. Ms. Haggins' version of this incident involving Freddie selling Smith some bad stuff is that she thought Smith was talking about something besides drugs, and when Smith kept bugging her she got mad and looked for Freddie. Roger Martin has been found guilty of trafficking in controlled substances and was awaiting sentence at the time he testified in these proceedings. Martin started frequenting the Silver Spoon in the summer of 1989 and continued so doing until March 1990 when he was arrested. Martin observed numerous people selling what appeared to him to be crack cocaine on the licensed premises, and he sold cocaine on the licensed premises numerous times. He observed Felice Newton, Isaiah Donald and James Daniels make deals on numerous occasions (up to 20 times for Newton and up to 10 times for the other two). On August 24, 1990, the Silver Spoon was raided by some 30 officers from DABT and the Bartow Police Department. It was during this raid that materials shown on Exhibit 2 were recovered. The location at which these items were found was not established, and some of these items were found off-premises, as was a pistol found in the parking lot outside the licensed premises. Accordingly, this material is not admitted into evidence and is not considered in this recommended order. Both Respondents deny ever selling alcoholic beverages to minors or ever seeing any drugs sold or possessed on the licensed premises. Signs were prominently displayed in the bar that drugs are not allowed, and no alcoholic beverages will be sold to minors. Numerous patrons of the Silver Spoon testified they never saw any drug transactions take place on the premises or that they ever saw Respondent sell beer to minors or allow minors to possess alcoholic beverages on the premises. All witnesses agreed that when the black bar in East Bartow closed, the former patrons of that bar started coming to the Silver Spoon, and these patrons were unruly, initiated fights, cluttered up the surrounding property with empty beer cans and trash, and a lot more violence came into the neighborhood. That Respondents were aware of drug problems at the Silver Spoon is shown by their testimony that they had called and threatened to call the police when drug peddlers refused to leave the premises, and that they didn't believe any place can be protected from drugs. Further, the site became a hangout for young people who would congregate outside the bar and on adjoining property where they would drink beer they had purchased elsewhere and brought to the area. These people were noisy, tossed around their empty beer cans, played loud music on their radios, and generally created a nuisance. No evidence was submitted that either L. H. or Georgia Haggins ever used or sold drugs or that their character was other than a good moral one. Both are respected in the community as good Christian people.
Recommendation It is recommended that a Final Order be entered finding L. H. and Georgia Haggins, d/b/a Silver Spoon, guilty of violating Sections 561.29(1)(a) and (c), 82:3.10, arid 893.13(2)(a)5, Florida Statutes, revoking license #63-01955, series 2-COP, and assessing an administrative fine of $5,000 against L. H. and Georgia Haggins. ENTERED this 18th day of February, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1991. INDEX Treatment accorded Petitioner's proposed findings of fact. Proposed findings submitted by Petitioner are generally accepted insofar as not inconsistent with the findings in the Recommended Order. Treatment accorded Respondents' proposed findings of fact. 14-27. Accepted. 28-29. Rejected as irrelevant. Accepted. Rejected as irrelevant. Rejected as not supported by competent evidence. 33-35. Accepted. 36-41. Accepted as testimony of Respondents - not as fact. 42-44. Accepted. 45. Same as 36. 46-47. Accepted. 48. Same as 36. 49-50. Accepted. Rejected. Smith's testimony that some patrons appeared to him to be minors is credible. Not supported by competent evidence. Accepted. Rejected. Accepted. Rejected. Accepted. 58-61. Rejected. 62. Accepted. 63-65. Same as 36. Rejected. Rejected. 68-74. Accepted. 75. Rejected. 76-77. Accepted. 78-79. Rejected. Rejected insofar as inconsistent with H.O. #20. Rejected. Accepted. Rejected insofar as the law enforcement officers involved in these proceedings. 84-85. Accepted. 86. Rejected. 87-91. Same as 36. Accepted. However, marijuana was purchased just outside the licensed premises. Rejected. Same as 36. Accepted. 96-97. Same as 36. 98-99. Accepted. 100. Rejected. 101-105. Accepted. Same as 36. Rejected as not supported by competent evidence. 108. Same as 36. 109. Rejected. 110-111. Same as 107. 112. Rejected as irrelevant. 113. Same as 36. 114-115. Same as 107. 116-117. Rejected. 118. Some people so testified without contradiction. 119. Accepted. 120. Rejected as irrelevant to whether Respondents were negligent in their failure to stop drug trafficking on the licensed premises. 121-123. Same as 118. 124-126. Rejected. 127-128. Rejected as unsupported by competent evidence. 129. Rejected. 130-132. Same as 127. 133. Rejected. Respondents were aware of, or by the exercise of reasonable diligence would have been aware of, the drug transactions on the licensed premises. 134. Same as 36. 135. Rejected. 136-137. Rejected. 138. Accepted in part. No competent evidence to support "any other time." 139. Accepted in part. Washington had been seen on licensed premises that evening. 140-142. Rejected. COPIES FURNISHED: Thomas A. Klein, Esquire Eric S. Haug, Esquire 725 South Bronough Street Tallahassee, FL 32399-1007 John A. Naser, Esquire Allen Building, Suite 201 401 South Florida Avenue Lakeland, FL 32802 Leonard Ivey Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1007 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007
Findings Of Fact Petitioner, Clarence E. Burtoft, was hired by respondent, Southern Linen Service, in November, 1982 as assistant general manager at its Daytona Beach plant. Prior to this employment, he had back surgery performed in Augusta, Georgia but the effects of such surgery did not interfere with his job duties. After being on the job for approximately three days, he was told by the regional manager that labor costs needed to be reduced, and that one employee must be laid off. He was also told to shift two female employees from one department to another. There is a dispute between the parties as to what the actual instructions were, and whether they were in fact carried out by Burtoft. Nonetheless, the employer construed Burtoft's actions as not complying with its instructions, and Burtoft was accordingly terminated the following day and told he was not the right man for the job. The back surgery was not related in any respect to the termination and Burtoft himself acknowledged as much. Burtoft's complaint is that his job records at Southern Linen Service contain a notation that he was fired for refusing to follow instructions. He only wants that adverse information removed. 1/ He is not contending that his employer unlawfully discriminated against him, or requesting that his job be reinstated with full back pay. Indeed, it was only after he visited the State employment office that he filed this complaint upon that office's encouragement. At no time was he ever told by any Florida Commission on Human Relations representative that its jurisdiction extended only over certain employment practices, and that any complaint must necessarily be founded on some form of discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition for relief filed by Clarence E. Burtoft be DENIED. DONE and ENTERED this 2nd day of March, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1984.
The Issue The issue in this cause is whether Respondent engaged in unlawful employment practices of discrimination against Petitioner, for the reason of her being a female, by denying her management training during her employment tenure and by subsequently terminating her employment, in violation of Florida Civil Rights Act of 1992, Chapter 760, Florida Statutes (2003).1
Findings Of Fact Based upon observation of the demeanor and candor of each witness while testifying; documentary materials received in evidence; evidentiary rulings made pursuant to Section 120.57, Florida Statutes; and stipulations of the parties, the following relevant and material facts, arrived at impartially based solely upon testimony and information presented at the final hearing, are objectively determined: Petitioner, Kelly McKean, is a Caucasian female and, at all times pertinent to this proceeding, was an employee at one of Respondent's, Econo Auto Painting, Inc., business locations, located at 1822 West Memorial Boulevard, Lakeland, Florida, from February 12, 2001, until she was terminated on June 23, 2003. Petitioner had approximately six years of non-continuous employment at several of Respondent's business locations before beginning her employment at the above Lakeland business site. Petitioner was employed by Respondent as a "taper," the person who is responsible for taping cars after body repairs and before painting. The taping of cars consisted of aligning strips of tape to specific areas of each automobile to prevent the taped area from being painted by the painter. Petitioner was an "aggrieved person" as defined by Section 760.10, Florida Statutes. The evidence of record establishes the fact that during all times pertinent, Respondent's Lakeland location employed nine employees comprised of: two females and seven males (five Caucasians/three Hispanics/one African American). Of the nine employees, one Caucasian female and one African American male were in managerial positions. Both were employed through contractual services of Selective HR Services (SHRS), an independent contractor and co-employer of Petitioner. Respondent is an automobile body shop business specializing in automobile body repairs and painting the exterior of cars and, at all times pertinent to this proceeding, was an "employer" as defined by Subsection 760.02(7), Florida Statutes. During all times pertinent to this proceeding, SHRS was responsible for providing human resources management services for Respondent's employees.4 At all time pertinent to this proceeding, Respondent hired the shop managers for its several auto body repair shops through SHRS. At no time pertinent to this proceeding did Respondent promote employees to management positions from within. At no time pertinent to this proceeding did Respondent permit, offer, or have in place a management training program for the training and promotions of employees from within the ranks of its shop employees to management positions within the company. At all times pertinent to this proceeding, and, on Monday, June 23, 2003, Marquez Green was the shop manager and Ron Link was the assistant manager of Respondent's Lakeland branch body shop during Petitioner's last term of employment at that location. Basis for Petitioner's Termination Several weeks preceding her termination, on June 23, 2003, the assistant shop manager, Mr. Link, noticed and personally discussed with Petitioner her repeated improper taping of some cars in the assembly line processes. Mr. Link spoke with Petitioner about this problem particularly stressing the fact that each car not properly taped required repainting which resulted in a slowdown of the repair, sanding, taping, and repainting process. It was made clear to Petitioner that repainting due to improper taping was causing the shop to lose profit. During the days following notice of the problem regarding incorrectly taped cars, Petitioner failed and/or refused to improve her work habits. The lack of improvement by Petitioner of her work habit of taping cars apparently became of some concern with management, in view of Petitioner's experience and over seven years of service as a taper with Respondent's business. Added to this disturbing trend, some time later, both the shop manager and assistant manager observed Petitioner in the manager's office reading business documents. Management confronted Petitioner with this violation of its policy that "none management" personnel were not allowed to read/review business documents. Petitioner gave an excuse for her conduct stating that the prior manager permitted her to review office documents when she was caught up with her work. Other than her statement, Petitioner failed to provide the identity or the testimony of the prior manager who allegedly granted her permission to review office documents when she had completed her work assignments before the end of the day. Petitioner presented no corroborating evidence in support of her assertion of prior managerial permission for her to review office documents. Petitioner's allegation of "prior permissive authority" was thus not credible. Mr. Green gave undisputed testimony that during a third occasion, he observed Petitioner and a non-employee male friend of Petitioner walking and talking in the work area restricted to employees only. Mr. Green approached the couple and immediately brought the rule infraction of no non-employees within the restricted work area to Petitioner's attention, ending by instructing Petitioner to tell her male friend to leave the restricted workshop area immediately. Under these circumstances, and in the presence of a non-employee, Petitioner said to her shop manager: "He'll leave when I want him to leave." Following Petitioner's refusal to obey the shop manager's direct order accompanied by her disrespectful comment, Mr. Green moved to call the local police, and only then did Petitioner's male friend leave the premises. Mr. Green subsequently discussed this matter, as well as the profit loss due to improper taping of cars, with Mr. Link, and they jointly decided not to take disciplinary action against Petitioner at that time. Notice of Termination On Monday, June 23, 2003, Petitioner reported to work at approximately 7:35 a.m. and five hours later, at approximately 12:35 p.m., she had completely taped all nine cars in the shop for repair and painting that day. Petitioner sought out Mr. Link, inquiring what he would have her do next; assist other employees in the shop or go to lunch? Mr. Link instructed Petitioner to go home for the remainder of the day. After her departure, Mr. Link and Mr. Green discussed Petitioner's continuing hurried work habits, her attitude toward management when given a direct order, and her unauthorized presence in the manager's office reviewing business documents. Management considered the following: (1) Petitioner's continued episodes of improper taping was causing an increase in cost and a decrease in profits, (2) Petitioner's negative attitude toward management, and (3) Petitioner's unauthorized presence in the manager's office looking at managerial business documents. Management determined that the above conduct was sufficient basis for her termination as an employee. In the afternoon of June 23, 2003, Mr. Link, with authorization from Mr. Green, telephoned Petitioner and informed her that she was terminated because of her repeated and costly taping errors and her failure to correct those errors. The telephonic notice of termination was followed by a written termination letter with check marks beside the boxes "refusal to perform job duties" and "unable to perform job."5 This document formed the factual basis for Petitioner's termination as an employee. Background and Employer's Policy On February 12, 2001, before she began working at Respondent's Lakeland job site, but while she was working for Respondent at another job site, Petitioner executed an Employment Acknowledgement packet containing the policy(s) and procedures she agreed to follow in the event there occurred any employment disputes, including any type of discrimination. Petitioner also agreed to resolve employment disputes through use of SHRS' Alternative Dispute Resolution (ADR) procedure. Prior Complaints Made by Petitioner While working at Respondent's Longwood, Florida, job site, but before working at the Lakeland job site, Petitioner made one verbal complaint of sexual harassment to Betty Branham, SHRS compliance supervisor, regarding sexual comments regarding her buttocks made by male co-workers. The record does not contain evidence whether this complaint was pursued or dismissed. Petitioner neither made complaints nor did she make any reports of sexual harassment or discrimination, gender or otherwise, at the Lakeland job site during her February 12, 2001, to June 23, 2003, employment tenure there. Petitioner did not file a report with SHRS claiming discrimination because of her gender and/or because she was denied management training opportunities and opportunities for promotion into management. Other Employees Terminated by Respondent During the early hours of June 24, 2003, one day after Petitioner's termination, Mr. Link terminated a male employee, Edward Burgess. Mr. Burgess was a "sander," and he was terminated for "refusal to perform job duties" and "unable to perform job." According to Mr. Link, Mr. Burgess was "taking two-to-three times longer than what he should to sand cars." During the evening hours of June 24, 2003, Mr. Green terminated another male employee, Mr. Link. Mr. Link was terminated, as he recalled, "because another male employee made accusations that while walking behind him Mr. Link bumped into his rear and made sexual gestures." Mr. Link admitted he could not recall, that is, he could not confirm, argue or deny, the other party's versions of what actually occurred and what was said at the time of his bumping into the other employee. The unnamed other employee did not testify. Petitioner, through the testimony of witnesses, of record, and exhibits admitted into evidence, failed to produce a scintilla of substantial and competent evidence to establish: that she was subjected to an adverse job action when, in fact, she was terminated for poor job performance and disrespectful conduct toward management on June 23, 2003; that because of her gender, female, she was treated differently than similarly situated male employees, who were not terminated after violation of work place policy(s); and (3) that she was qualified for the job as managerial trainee but was denied an opportunity for employee managerial training which was provided by her employer to other employees.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief and the Charge of Discrimination filed in this cause by Petitioner, Kelly McKean. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 18th day of February, 2005.
Findings Of Fact Harold B. Spears was 68 years of age at the time his employment with Ewell Industries was terminated. Ewell Industries, Inc. (Ewell) operates concrete block manufacturing facilities located in Largo and DeFuniak Springs, Florida (DeFuniak). Spears was an employee of Pinellas Industries when the Largo facility was acquired by Ewell in 1982 and became an employee of Ewell at that time as manager of the block plant at Largo. In 1984 Spears was involved in an automobile accident which damaged the alignment of his muscles and bones, causing swelling and severe pain throughout his body. At times the swelling and pain became severe and Spears wanted to retire. Between 1984 and 1987 Spears frequently announced his intention to retire. On at least two occasions, Ewell hired people to be trained to assume Spears' job, and after they had been trained Spears withdrew his notice of an intent to retire. Finally, in December 1986, immediately prior to his scheduled retirement in January 1987, Spears condition was again improving and he wanted to reconsider retiring. John McGregor (McGregor), vice president of operations, told Spears that this time he should go through with his retirement. Spears retired from Ewell in January 1987. After Spears' retirement McGregor recommended him for a position at C.E. Parrish where Spears later worked part-time to supplement his social security income. During the early fall of 1987 when Ewell was in the process of purchasing Sikes Concrete Products the owner of Sikes called Ewell's president, William McCue, to inform him that Sikes' plant manager had quit and to ask if McCue had anyone he could send to run the plant. McCue advised Sikes he did not have anyone available but suggested Spears might be interested in part-time work. In October 1987, McGregor discussed with Spears the possible position at Sikes Concrete for a six to eight month period and told him of the potential purchase of Sikes by Ewell. Sikes negotiated a contract with Spears in which Spears was paid annualized salary of $42,000 to help rehabilitate the Sikes block plant at DeFuniak and to train a manager for the plant. In addition, Sikes agreed to pay for lawn and pool services on Spears' home in Seminole, for rental of a lot for Spears trailer at DeFuniak Springs and a mileage allowance for Spears to make a monthly return visit to Seminole to check on his permanent home. When Spears started work at the DeFuniak plant, Marty Carpenter was designated the acting manager of the plant and the individual Spears was intended to train. Spears clearly recognized his position as a consultant at the Sikes plant at DeFuniak. In November 1987, Ewell consummated the purchase of the Sikes plant at DeFuniak. On November 10, 1987, all of the employees at the DeFuniak plant were assembled and told of the transfer of ownership. The former Sikes employees were told that they would all continue in their present position and at the same pay they received from Sikes until subsequent changes may be deemed necessary. Spears received from Ewell the same pay and special benefits he received from Sikes. Because of Spears' former association with Ewell, McCue told Pamela Wells, Ewell's administrative manager, to allow Spears to participate in the company group insurance plan and to withhold income and social security taxes for Spears. To accomplish this, Ms. Wells had Spears sign the same form the permanent employees used to transfer from Sikes to Ewell. At this time Spears and Ewell management both understood that Spears continued to operate as a consultant to train Carpenter as plant manager. Subsequent to the takeover it became apparent that Carpenter would not work out as plant manager. Spears was scheduled to be terminated and leave around March 15, 1988, and when it became necessary to replace Carpenter, Spears was requested to stay on an additional month to help the new plant manager, Dennis Duncan, until he became familiar with the plant. During the second week in April, Lewis, the operations manager, discussed with Duncan, Spears' April 15 departure date. Duncan wanted to keep Spears on longer to help with the problems. On April 18, 1988, Lewis reported to Pitts, the general manager, Sikes Division of Ewell, that Spears was still on the job. Pitts then called Spears and told him that his (Spears) work was finished at the DeFuniak plant and to go home. Spears had learned from Duncan that Duncan was interviewing for another job on April 27, 1988 and might be leaving Ewell. Spears didn't think Pitts had the authority to fire him and he called McGregor to tell him Duncan was leaving. McGregor was out-of-town and Spears talked to McCue who told Spears he would have McGregor call. A few days later McGregor spoke with Spears and he also told Spears that Spears was no longer needed and his work at DeFuniak was finished. Several times during the six to eight months Spears worked at DeFuniak he complained about the weather, spoke of his wife's problems in the colder climate, and expressed a desire to return to Seminole. Prior to the hiring of Duncan as plant manager, no one in Ewell management was aware that Spears was, or might be, interested in the job as plant manager. Concrete block plant managers' compensation generally runs between $25,000 and $35,000 per year. When Spears retired as plant manager at the Largo plant, his annual compensation was approximately $35,000. Spears never told McCue or anyone else in Ewell management that he was interested in the DeFuniak plant manager's job if Duncan left. Spears remained in the DeFuniak area until May 7, at which time the company-paid rent on his trailer lot ran out. In early May, Duncan notified McGregor that he was resigning as plant manager. McCue, McGregor and Pitts discussed Duncan's replacement and the decision was made to promote Ron Zablow who was working at the Largo plant and who had acquired most of his knowledge about block plants from Spears. Zablow was promoted to plant manager at a salary of between $24,000 and $26,000 per year. Neither McCue, McGregor nor Pitts considered hiring Spears for the plant manager position at DeFuniak nor would they have hired him had they been aware he was interested in the job after Duncan left. There had already been two plant managers at DeFuniak in the last six months, Spears' on again-- off again position prior to his retirement in 1987 detracted from his attractiveness, and no one, including Spears, thought he would be interested in the plant manager's job at a salary less than he had received as a consultant, which was approximately twice the salary paid to Zablow. Ewell Industries has over 400 employees. Of those 400, .25% (one employee) is over 70, 4.3% are over 60, 8.3% are over 50, and 43.4% are over 40 years of age. During the calendar year 1988 the percentage of terminations in the foregoing categories with respect to the overall work force was: 2.1% for employees over 60, 10.9% for employee over 50, and 25.5% for employees over 40.
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on April 12, 1989, at Tampa, Florida.
Findings Of Fact Petitioner was employed by VOTRAN from June 6, 1977, until his discharge on January 19, 1982. He started as Serviceman; was promoted to Mechanic B on October 31, 1977; to Night Leadman on August 7, 1978; to Mechanic A on January 13, 1980; and to permanent Night Leadman on November 30, 1981. He was the senior mechanic in the maintenance department and, prior to December, 1981, was Leadman on the day shift. Effective November 30, 1981, the position as Leadman on the day shift was abolished and these duties were absorbed by the Maintenance Superintendent, Owen Davis. Pursuant to the Union contract in effect at VOTRAN, available jobs are bid by seniority and go to the most senior qualified man seeking the position. When the Day Leadman position was abolished, Petitioner bid on the Night Leadman position and, as senior mechanic, was awarded the job. Working days (or nights) for the Night Leadman are Tuesdays through Saturdays, with Sundays and Mondays off. This was known to Petitioner at the time he submitted his bid and was awarded this position. After a short time as Night Leadman, Petitioner requested leave on Saturday to attend an uncle's funeral in Georgia. Davis told Petitioner this would leave them shorthanded. Petitioner then told Davis that he did not like working on Saturday and wouldn't come in. Davis reported this incident to the General Manager, Kenneth Fischer. Late in December Petitioner met with Fischer, at which time Petitioner told Fischer he was unable to handle the job of Night Leadman. Fischer offered Petitioner the option of swapping jobs with a Mechanic A on the day shift but that job paid less and Petitioner turned it down. On another occasion, Fischer learned Petitioner had called in and said he could not come to work on Saturday because he had to move furniture. That resulted in a memo of January 12, 1982 (Exhibit 3) memorializing the December 29, 1981, meeting between Petitioner and Fischer in which Fischer repeated his warning to Petitioner against calling in sick on Saturdays unless his illness could be documented. This memo was delayed getting into Petitioner's box and was not received by him until the following Friday. Fischer was off Saturday, Petitioner was off Sunday and Monday, and on Tuesday, January 19, 1982, Petitioner met with Fischer. After Fischer had entered his car in the parking lot around 6:00 p.m. preparing to go home, Petitioner approached the car and told Fischer he would like to speak to him. Fischer got out of his car, they walked back into the building, Fischer unlocked his office, and they entered. Petitioner tossed the memo of January 12, 1982, on the desk complaining that he thought he was being discriminated against and that if the rules respecting sick leave of less than three days were being changed they should apply to all employees and not just to Petitioner. The meeting quickly escalated into a confrontation with Petitioner telling the younger Fischer that Petitioner was a 40-year-old man with a family, and that Fischer was not man enough to fire him. Whereupon Fischer told Petitioner to "hit the door." Petitioner then told Fischer that he would get VOTRAN's "shit" together and for Fischer to get Petitioner's "shit" together, and Petitioner left. Petitioner's voice immediately prior to his departure was sufficiently loud to be heard by two employees from 200 feet down the hall from Fischer's office. Petitioner's testimony conflicted with the above finding of what went on at the fateful meeting of January 19. Petitioner testified that he remained calm during the meeting, that he never told Fischer that the latter was not man enough to fire him, that he told Fischer they should discuss the matter like grown men, that he used the word "shit" to indicate personal property, and that Fischer is the one who got angry and told Petitioner to "sit down" before he told Petitioner to "hit the door." Petitioner also testified that during the little ever a month he was Leadman on the night shift he missed one or two Saturdays, that the memo of January 12 made him feel he was being treated differently from others, and that he and Fischer had at least three conferences before January 19, 1982, when he was fired. VOTRAN is a publicly owned transportation company subsidized by Volusia County and originally financed by the Federal Government. While funded by the Federal Government VOTRAN was subject to and in compliance with all federal laws proscribing discrimination. Of the 83 employees of VOTRAN, 20 are black. In Volusia County blacks constitute approximately 13 percent of the population. While employed at VOTRAN, Petitioner attended three schools to improve his training and VOTRAN paid the tuition. Although there was a discrepancy between Petitioner's testimony that he was the only black mechanic employed by VOTRAN, and VOTRAN's testimony that there were two blacks employed as mechanics, the evidence was unrebutted that following Petitioner's discharge another black mechanic was hired by VOTRAN. To further support his claim that he was fired because of his race, Petitioner testified that as a Leadman he was never issued a white shirt, that white shirts and blue pants were provided supervisors (including leadmen) by VOTRAN, and that blue shirts were issued to other workmen except in the bodyshop where the workers were issued white pants and shirts. Petitioner mentioned this difference to one of the shop's stewards who told Petitioner that if he felt wronged he should file a grievance. Petitioner never filed a grievance and neither the Superintendent nor the Director of Maintenance was asked by Petitioner to provide him with a white shirt. Other witnesses testified that some leadmen wore white shirts, others wore blue shirts, and it was generally left to the choice of the leadman which color shirt he wore. One witness called by Petitioner testified that he once overheard a Fischer and Davis conversation at which the phrase "dumb niggers" was used. Both categorically denied ever making such a racial slur. No other witness testified to any incident which could lead to a conclusion that Fischer was in any manner prejudiced or racially discriminatory. His reputation among the bus drivers is that he "goes by the book." As another ground to support his charge of racial discrimination, Petitioner testified that while he was Night Leadman he was not provided a key to the Superintendent's desk which other night leadmen had been provided; and that when it was necessary to get into the desk for special tools kept there, it was necessary to call the Superintendent, who would come down and unlock the desk. The Superintendent, Davis, confirmed that Petitioner had not been issued a key because a short time before Petitioner started the night shift too many keys had been issued, all of these keys had been called in, and, when he found his presence was frequently required at night to open the desk, he reissued a key to the Night Leadman. By this time Petitioner had been terminated. The contract between VOTRAN and the Teamsters Union provided for arbitration of grievances. This document also provides that neither employer nor Union will discriminate against any individual with respect to recruitment, hiring, training, promotion, or other employment practice for reasons of race, etc. (Exhibit 1, Article 9). When Petitioner told the shop's steward (also black) that he had been fired, he did not indicate he was fired by reason of race. Petitioner was advised by the shop's steward that he could file a grievance with the Union and his firing could go to arbitration if not settled prior to that step. Petitioner was not a dues-paying member of the Union, and, although covered by the contract, did not feel he would get a sympathetic ear from the Union. The General Manager, William Barrett, who preceded Fischer, was called as a witness by Petitioner. Barrett was General Manager when Petitioner was hired, approved the various training programs taken by Petitioner at VOTRAN's expense, and found Petitioner to be a good and reliable employee. Barrett further testified that it was necessary to maintain discipline in order to operate effectively and that if an employee challenged his authority he would have no choice but to fire the employee immediately.
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was employed by Tredit at that facility. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it, Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week, but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared. Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit, Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner. Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc. DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 6th day of January, 1999. COPIES FURNISHED: Ramon T. Lee, pro se 832 Augusta Street Lakeland, Florida 33805 Antonio Faga, Esquire 375 Twelfth Avenue South Naples, Florida 34102 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
Findings Of Fact The Petitioner, Vernon Thomas, who is black, began working at the Tampa plant of the Respondent, Davies Can Company, in 1971. By 1990, he was working as a mechanic in the production department. In April, 1990, the Respondent's three-year labor union contract with the United Steelworkers of America covering its plant in Tampa, Florida, was due to expire. Knowing it was opening three new plants closer to its new sources of supply of raw material (tin plate), the Respondent was unsure how long it would continue to operate the Tampa plant and would only agree to extend the union contract for one year. During quarterly profit-sharing meetings with the union and the Tampa plant employees, the Respondent kept the union and the employees apprised of the company's plans. All were aware of the distinct possibility that the Tampa plant would be closed at the expiration of the extended union contract in April, 1991. Some employees at the Tampa plant, primarily supervisory and office personnel, were transferred to one of the new plants during the course of the year. When office personnel ceased employment, they were replaced by temporary employees. Other positions in the new plants were being filled by new employees who applied directly to the new plants. At some point before the quarterly meeting on February 25, 1991, the Respondent made a decision to close the Tampa plant. At the quarterly meeting, the Respondent's director of employee relations, Joseph Frabotta, announced that the Tampa plant was being closed and that all Tampa employees were being permanently laid off. He stated that most would be laid off as of March 8, and the rest as of March 15, 1991. In response to questions regarding the availability of work at one of the Respondent's new plants, he also stated that he knew of no positions available at that time but that if anyone interested left an application for employment with him by the time he left Tampa on or about February 28, 1991, he would transmit the applications to the managers of those plants. After the general announcement at the meeting on February 25, 1991, individual interviews were scheduled to discuss the particulars of the benefits due individual employees. The Petitioner's interview was on February 27, 1991. As the senior hourly employee at the Tampa plant, the Petitioner was told that he would work until March 15, 1991. He also was told the particulars of the benefits due him. Finally, he again was told that there were no positions at the new plants available for the Petitioner at that time but that, if he was interested, he should leave a completed application for employment with Frabotta by the time he left Tampa on or about February 28, 1991, and it would be transmitted to the managers of those plants. During the Petitioner's individual interview on February 27, 1991, the Petitioner also raised the subject of a problem he was having with disability insurance benefits for a period of disability the Petitioner had suffered from approximately November 12, 1990, through January 1, 1991. The disability insurance policy provided by the Respondent for its eligible employees is provided through an insurance company, not by the Respondent itself directly. However, in order to insure proper follow up on behalf of its employees, the Respondent has a policy of having all claims forms mailed to its corporate offices in Solon, Ohio, for processing. During his period of disability, the Petitioner had asked the Tampa plant manager for the appropriate claims form. The plant manager said he would furnish the Petitioner one but never did. When the Petitioner returned to work on January 2, 1991, he again asked for the claims form. Again, the Petitioner was promised that one would be provided but none ever was provided. At his February 27, 1991, interview, the Petitioner reported all of this to Frabotta, whose investigation verified the Petitioner's information. Frabotta promptly arranged for the Petitioner's claims form to be submitted for processing, and in May, 1991, the Petitioner received the disability benefits to which he was due. One other black employee was not given disability claims forms, for a disability in June, 1990, because the supervisor of the personnel office at the Tampa plant told the employee that he was not eligible. When the Petitioner told his fellow employee about his individual interview with Frabotta on February 27, 1991, the fellow employee told the Petitioner about his June, 1990, disability. The Petitioner recommended that the fellow employee ask Frabotta about it during his individual interview. Frabotta investigated the matter, and the benefits eventually were paid. The Petitioner understands that, most of the time, disability benefits are paid within a two to three weeks after submission of a claim, and he is aware of some whites who timely received disability benefits. With all the claims forms the Respondent's corporate headquarters processes for employees, errors occasionally are made, having nothing to do with race, and Frabotta has to become involved in correcting errors, just as he did in the case of the Petitioner and his fellow black employee. The Petitioner did not prove that the delay he and his fellow black employee experienced in receiving disability benefits was the result of racial discrimination. The Petitioner did not give Frabotta an application for employment with one of the new plants before Frabotta left Tampa to return to Ohio. Instead, he mailed an application on or about March 25, which Frabotta did not receive until early April, 1991. On March 15, 1991, the Petitioner was asked to work one more day to prepare the equipment for shipment the following day to the new plant in Georgia. His last day at work was March 16, 1991. Soon after his last day at work, the Petitioner came under the belief that white hourly employees from the Tampa plant had been transferred to the new plant in Georgia. As the senior hourly employee at the Tampa plant, the Petitioner believed he was entitled to the work under the union contract. But the union contract did not apply at any plant other than Tampa, and it expired in April, 1991. The employees hired at the Georgia plant had given applications to Frabotta before February 28, 1991, and were hired by the Georgia plant manager when a need arose for their services on or about March 18, 1991, at a point in time before the Petitioner submitted his application. In addition to the two white hourly employees, a black hourly employee also was hired in that fashion at the Georgia plant. Later, the Petitioner learned that two white hourly employees were continued on the payroll for a certain period of time. The Petitioner believed that, if any work was available for hourly employees in Tampa, he should have gotten it under the terms of the union contract since he had seniority. But there was another provision in the union contract, known as the "super seniority" provision, under which the president and chief steward of the local union were to be kept on the payroll in the event of a reduction in the work force at the Tampa plant. These union officials were white. The local union insisted that these two people be kept on the payroll after March 16, 1991. (They were not paid after the expiration of the extended union contract in April, 1991.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed in this case. RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1992.
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
