The Issue Whether Petitioner was eligible for membership in the Florida Retirement System (FRS) during the effective dates of the Client Service Agreement (Agreement) between Petitioner and ADP TotalSource Services, Inc. (TotalSource).1 Whether Respondent is estopped to deny Petitioner’s request to purchase retirement credit for the subject employees during the seven-month period during which the Agreement was in effect.
Findings Of Fact TCT is an independent special taxing district of local government established pursuant to Section 1.01(A)(11) of the Miami-Dade County Home Rule Charter; Ordinance No. 02-247, Sections 1-11 (adopted December 3, 2002); and Section 125.901, Florida Statutes, et. seq., for the provision of children’s services. TCT is devoted to funding “improvements for the children of Miami-Dade County in the areas of health, safety, parental responsibility, community responsibility and other necessary and important services.” Miami-Dade County Code Art. CIII, §§ 2-1521-2-1531. Other special taxing districts for services in the State of Florida participate in the FRS. On July 23, 2003, officials from TCT contacted DOR to communicate TCT’s desire to participate in FRS and request instructions on how to enroll its employees for FRS retirement benefits. On July 24, 2003, Ms. Smith, acting in her capacity as a benefits administrator employed by Respondent, forwarded to TCT an FRS membership package which included a Resolution relating to FRS membership to be approved by TCT’s Board and two accompanying FRS Agreements. On July 30, 2003, Resolution #2003-01, Resolution Relating to Membership into the FRS, was adopted by TCT’s Board. On September 1, 2003, after receiving TCT’s Notice of Employer Identification Number from the Internal Revenue Service on August 27, 2003, Mr. Abety, in his capacity as the president and CEO of TCT, signed the two FRS Agreements. On September 9, 2003, Mr. Abety sent a letter to Ms. Smith enclosing the two FRS Agreements, TCT’s Resolution Relating to Membership into the FRS, and the IRS Notice of Employer Identification Number, fully expecting that FRS coverage would be initiated on October 1, 2003. Mr. Abety again corresponded with Ms. Smith on September 17, 2003, to advise that TCT would make its retirement contributions to FRS by check and asked if FRS preferred bi- weekly or monthly payments. On September 5, TCT entered into the Agreement with TotalSource to provide TCT with payroll, health insurance, life insurance, short and long-term disability insurance, and dental and vision coverage. TotalSource did not provide TCT employees with any retirement benefits. After reviewing TCT’s Agreement with TotalSource, FRS advised TCT on September 23, 2003, that because it appeared the employees covered under the Agreement would be under the control and direction of TotalSource, they were employees of a private company and thus ineligible for FRS benefits. Following Respondent’s denial of participation in FRS, TCT began the process of entering into a new agreement for the provision of personnel services with a vendor other than TotalSource. On February 18, 2004, TCT emailed DOR a new proposed agreement between TCT and AlphaStaff for the provision of payroll, insurance and other human resources services in order to determine if the agreement would permit FRS benefits to begin for TCT employees. On April 20, 2004, FRS determined that the agreement between TCT and AlphaStaff would not bar the workforce of TCT from participating in FRS because AlphaStaff provided only “routine personnel services” to TCT.3 After approving the agreement between TCT and AlphaStaff, DOR accepted TCT as an FRS member effective May 1, 2004. On April 22, 2004, TCT transmitted to DOR the County Ordinance creating TCT, two FRS Agreements, a Resolution Relating to Membership in FRS, TCT’s federal employer tax identification number, and a notification that a fully executed agreement between TCT and AlphaStaff would be forwarded on April 26, 2004. The two FRS Agreements, the Resolution, and the employer tax identification number were identical to those sent to FRS in September 2003. The agreement between TCT and AlphaStaff that had been approved by FRS was fully executed on April 26, 2004. On April 29, 2004, DOR signed and approved the FRS Agreement to commence FRS benefits effective May 1, 2004. Per letter dated May 7, 2004, DOR advised TCT that “since your agency did not qualify for FRS membership until May 1, 2004, past service cannot be purchased prior to the amendment date.” Per letter dated May 27, 2004, Mr. Abety requested the FRS effective date be changed to October 1, 2003. Throughout the period TCT attempted to secure FRS membership. TCT did not participate in any other retirement plan. After being informed in September 2003 that its contract with TotalSource precluded participation in FRS, TCT was engaged in the process of entering into an agreement for personnel services that DOR would find acceptable. On June 23, 2004, TCT received notice of a final agency action from DOR in which DOR rejected TCT’s request to purchase past service and advised TCT of its appeal rights. TCT filed its Petition to review final agency action requesting an evidentiary proceeding on July 15, 2004. Past FRS benefits are being requested for the seven- month period beginning October 1, 2003 and ending May 1, 2004. The 18 TCT employees affected are:4 Modesto E. Abety Lilia R. Abril Emily Cardenas Dwight Danie Robin J. Douglas David C. Freeman Lisete Fuertes K. Lori Hanson Andrea Harris Chareka Hawes Christine Muriel Jeanty Jolie C. Jerry Jean S. Logan Susan B. Marian Eric R. Pinzon Diana Ragbeer Deborah Robinson Margaret L. Santiago The six employees who are vested in the FRS are: Modesto E. Abety Dwight Danie Andrea Harris Jolie C. Jerry Diana Ragbeer Deborah Robinson. TotalSource is a licensed employee leasing company under Part XI of Chapter 468, Florida Statutes. “Employee leasing” is defined by Section 468.520(4), Florida Statutes, as being “. . . an arrangement whereby a leasing company assigns its employees to a client and allocates the direction and control over the leased employees between the leasing company and the client ”5 TCT is referred to as the “client” in the Agreement between TotalSource and TCT. Section (1) of the Agreement, styled “The Parties Relationship,” provides as follows: The parties intend to create an arrangement so that TotalSource, as the Professional Employer Organization (PEO), can provide human resource services to Client. As provided by the Florida legislature, TotalSource shall have sufficient authority so as to maintain a right of direction and control over Worksite Employees (defined in Section 2) assigned to Client’s location, and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. Client shall, however, retain sufficient direction and control over the Worksite Employees as is necessary to conduct Client’s business and without which Client would be unable to conduct its business, discharge any fiduciary responsibility that it may have, or comply with an applicable licensure, regulatory, or statutory requirement of Client. Such authority maintained by Client shall include the right to accept or cancel the assignment of any Worksite Employee. Additionally, Client shall have sole and exclusive control over the day to day job duties of Worksite Employees and over the job site at which, or from which, Worksite Employees perform their services. Client expressly absolves TotalSource of liability which results from control over the Worksite Employee’s day-to-day job duties and the job site at which, or from which, Worksite Employees perform their services. Further, Client retains full responsibility for its business products and services, worksite premises, property, and any actions by an third party, contractor, independent contractor or non-Worksite Employee. Client acknowledges that TotalSource has the right to retain and reassign a Worksite Employee who has been terminated by Client. Section 2 of the Agreement, styled “TotalSource Relationship to the Worksite Employees,” provides as follows: The term “Worksite Employees” means individuals hired by TotalSource, assigned to Client’s worksite, after the individuals [have] satisfactorily completed TotalSource pre-employment paperwork [and] background screens as necessary. Client agrees to submit to TotalSource the completed TotalSource pre-employment paperwork no later than two (2) business days after the Client selects the person for employment. The term excludes 1) those employees hired by TotalSource to perform services for TotalSource and not assigned to any Client Worksite (i.e., TotalSource Corporate Employees), and 2) Independent contractors or individuals who may be providing services to Client through any other arrangement entered into solely by Client. TotalSource will notify all Worksite Employees in writing about the PEO arrangement at the beginning and end of this Agreement. During the Agreement, both Client and TotalSource will employ each Worksite Employee. This Agreement does not change the underlying employment relationship between any Worksite Employee and Client that existed prior to or may be created after the Effective Date. Further, this Agreement does not create any rights for any Worksite Employee that did not previously exist (e.g., creating an employment contract with the Worksite Employee). In Section 5(F) of the Agreement, the parties acknowledge that the Client exercises control over the primary terms and conditions of employment for the subject employees. Miguel Masedo was the General Manager for the Southeastern operations for TotalSource when it entered into the Agreement with TCT. Mr. Masedo did not negotiate the Agreement between his company and TCT, but he did sign the Agreement, and he testified as to the manner in which his company operated with TCT. Mr. Masedo’s deposition was admitted as Joint Exhibit 17. On page 22, beginning at line 12, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. Okay. Earlier you told me and we discussed that The Trust employees in fact were hired by The Trust before they contracted with your services, correct? A. Yes. Q. So basically when they entered into this contract and were put on the payroll for the purposes of payroll processing, that’s when you make the determination, or you’re saying that they became . . . [sic] A. We actually hired them into ADP TotalSource, they signed new documentation, I-9s, W-4s, they gave us their employment information, so we literally hired them on to ADP TotalSource.[6] On page 23, beginning at line 13, the following Questions from Ms. Arista-Volsky and Answers from Mr. Masedo appear: Q. And the Client Services Agreement did not change the underlying employment relationship between The Trust and its employees; correct? A. What the Client Services Agreement did was it defined us as another employer for these employees, so we are under a co- employment relationship, so certain employment responsibilities would have been the responsibilities of The Trust and would have remained, and other employment responsibilities would have transferred over to ADP TotalSource. TotalSource was the named employer on each employee’s W-2 forms. For each subject employee, TotalSource also paid social security taxes and provided workers’ compensation coverage. TotalSource issued salary warrants to each employee. These payments were to be from funds TCT was required by the Agreement to pay to TotalSource. TotalSource was, by the terms of the Agreement, responsible for the payment of the subject employees even if TCT failed to make its required payments to TotalSource. Although by the terms of the Agreement, TotalSource had legal authority to hire, supervise, and discipline the subject employees, TotalSource rarely exercised those rights in dealing with a client and it did not do so in its dealings with TCT. TotalSource never attempted to control or run the affairs of TCT. It never attempted to exercise any direction or control over Mr. Abety or any other subject employee. TCT initially recruited and hired all of the subject employees. At no time during the period at issue did a TotalSource corporate employee come to the TCT worksite for the purposes of supervising or monitoring the activities of the subject employees. TCT controlled the daily activities of the subject employees at all times relevant to this proceeding. At all times relevant to this proceeding, Mr. Abety and his staff set the terms and conditions of employment for the subject employees and supervised the day-to-day operations of TCT. At no time relevant to this proceeding did Mr. Abety, acting on behalf of TCT, intend for TotalSource to exercise any control over the subject employees. Mr. Abety intended only that TotalSource provide human resources services in the forms of payroll services, worker’s compensation coverage, and a benefits package (excluding a retirement plan). Mr. Abety testified that he did not construe the Agreement as being a contract to lease the subject employees from TotalSource. Based on the findings that follow, it is found that Mr. Abety knew or should have known that he was entering into an employee leasing agreement with TotalSource. As set forth above, in the Agreement, TotalSource refers to itself as a Professional Employer Organization, which is a term for an employee leasing company. The Agreement provides that TotalSource shall have “. . . sufficient authority so as to maintain a right of direction and control over Worksite Employees . . . and shall retain the authority to hire, terminate, discipline, and reassign Worksite Employees. ” Moreover, in the final paragraph of the Agreement, under the heading of “Additional Client Representation” the following appears: “Client understands that, pursuant to Florida law, it may not enter into a PEO (sometimes referred to as an employee leasing) agreement with TotalSource if Client owes a current or prior PEO any money pursuant to any service agreement which existed between that current or prior PEO and Client, or if Client owes a current or prior insurer any premium payments. . . . DOR denied TCT’s request for past service because, under the terms of the Agreement, and Part XI of Chapter 468, Florida Statutes, the subject employees appeared to be employees of TotalSource. In its letter dated June 23, 2004, with the style of “Final Agency Action”, DOR advised Mr. Abety that TCT “. . . joined the FRS effective May 1, 2004 and is ineligible to purchase past service since prior to that date the employees were employed by ADP TotalSource Services, Inc., a private company.” While the Agreement was in effect, the subject employees were employees of both TCT and TotalSource for certain purposes. Under the Agreement between TotalSource and TCT, TotalSource and TCT were dual or joint employers. There was a co-employment relationship. DOR agrees that TCT and TotalSource were co-employers or joint employers. In paragraph 25 of its Proposed Recommended Order, DOR submitted the proposed finding of fact that during the effective dates of the Agreement, the subject employees were “. . . dual or joint employers. There [was] a co-employment arrangement.” In paragraph 53 of its Proposed Recommended Order, DOR proposed the following conclusion of law: 53. However, the totality of the evidence establishes that TotalSource and Children’s Trust are, as Mr. Masedo testified, ‘under a co-employment relationship.’ Children’s Trust and TotalSource were inextricably linked as co-employers, or joint or dual employers. They both shared attributes of being an ‘employer.’ Prior to entering into the Agreement, staff of TCT contacted staff of DOR to inquire what needed to be done for TCT employees to become members of the FRS. DOR staff advised that a membership package would be mailed and that the TCT employees would become part of the FRS after the membership package was processed. For service performed by TCT employees prior to the date TCT became part of the FRS, DOR staff advised that TCT employees could purchase credit for that prior service period if TCT did not participate in another retirement plan. TCT maintains that the information provided by DOR staff that TCT could participate in FRS as long as TCT did not participate in another retirement plan was misleading. TCT further maintains that it detrimentally relied on that misleading information from DOR and that DOR should be estopped to deny the right to purchase credit for the seven-month period at issue in this proceeding. TCT did not disclose to DOR that they were contemplating entering into the Agreement with TotalSource prior to doing so. Consequently, DOR had no reason to discuss with TCT its position that the Agreement would preclude TCT’s membership in FRS. DOR staff gave TCT staff accurate advice based on the information provided to DOR by TCT. TCT would not have executed the Agreement had it known that the terms of the Agreement would disqualify it from membership in FRS. Most of the subject employees were initially recruited by TCT because they were experienced government employees. It was important to TCT from its inception that its employees continue to be eligible for FRS benefits. TCT made diligent efforts to locate a suitable human resources provider to replace TotalSource after it learned from DOR that the terms of the Agreement disqualified the subject employees from membership in FRS. It took TCT almost the entire seven-month period at issue in this proceeding to locate the replacement provider (AlphaStaff).
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order providing that TCT be granted membership in FRS effective October 1, 2003, and that it be permitted to purchase retirement credit for the subject employees for the seven-month period beginning October 1, 2003, and ending April 30, 2004. DONE AND ENTERED this 28th day of April, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 28th day of April, 2006.
Findings Of Fact At all times relevant hereto, Respondent, William C. Leistner, was the holder of registered pool contractor's license number RP 0026242 issued by Petitioner, Department of Professional Regulation. On or about October 20, 1978, Respondent contracted with Mr. and Mrs. Joseph Caiazzo to construct a pool at 700 Coronado Drive, Punta Gorda Isles, Florida. Construction began on November 1, 1978, and Respondent was paid in full on December 8, 1978. On or about April 14, 1979, and July 13, 1979, the Respondent received two notices of additions or corrections from the City of Punta Gorda for violations of the city code on work relating to the construction of the pool. Because of Respondent's failure to make the aforesaid additions or corrections, the City of Punta Gorda revoked the license of Respondent on August 13, 1979. Respondent admitted that the above violations occurred. However, he declined to present any mitigating evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent William C. Leistner, be found guilty of the charges set forth in the Administrative Complaint and that his license be suspended for a period of six months from the date of the final order entered herein. DONE and ENTERED this 12th day of June, 1981, 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 12th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. William C. Leistner 741 Sabal Palm Lane Punta Gorda, Florida 33950
The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue for determination in this proceeding is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact The U.S. Government owns Cape Canaveral Air Force Station in Cape Canaveral, Florida. The Air Force Station covers approximately 60 to 89 square miles. Respondent provides launch base support services to the U.S. Air Force at Cape Canaveral. Respondent employs approximately 1,800 people at Cape Canaveral. The Air Force requires security clearances and Space Human Assurance and Reliability Program ("SHARP") certification for 80 to 90 percent of Respondent's employees. Security clearances for employees at the Air Force Station are determined by the Defense Investigative Services, United States Department of Defense. SHARP certifications are determined by an independent board based on Air Force Regulations and investigations conducted by federal government investigators. After supplying applications for security clearance and SHARP certification, Respondent has no role in the investigation and ultimate determination regarding clearance and certification for new employees. Respondent does not review applications for either a security clearance or certification. Members of the SHARP Board are not Respondent's employees, are appointed by the Air Force Base Commander, and are otherwise independent of Respondent. An employee awaiting security clearance and certification must be escorted by an individual with escort authority when the new employee is in an area requiring either security clearance or certification. Escort authority and access entry are determined by the Air Force. Authority to assign and approve an escort for a new employee awaiting security clearance and certification is limited to one or two individuals at each work location. Respondent terminates any new employee who fails to obtain required security clearance and certification within 12 months of the date of hire. Such an employee is retained during the pendency of his or her appeal, if any. Respondent's policy serves a legitimate interest. The policy is designed to limit the additional cost in manpower, time, and resources required to escort new employees within the launch base support project who have no security clearance or certification. Respondent's policy is consistently and fairly applied. On October 2, 1989, Petitioner was employed as a structural painter by Respondent on Respondent's launch base support project at Cape Canaveral. Petitioner was employed subject to the condition that he obtain all security clearances and certifications required by the Air Force. Petitioner's application for certification was denied. Petitioner appealed to the SHARP Board and attended an appeal hearing on October 10, 1990. The SHARP Board denied Petitioner's appeal and informed Petitioner of its decision at the appeals hearing. Respondent was not notified by the SHARP Board or the Air Force of the reason for the denial. Mr. Everett Watson, Respondent's Facility Security Manager, was notified by the Air Force sometime after October 22, 1990, that Respondent's SHARP certification had been denied. Mr. H.D. Stanfill, Petitioner's Department Manager, and Mr. Ron Smith, Petitioner's Supervisor, received notice of the denial on November 2, 1990. Mr. Stanfill and Mr. Smith terminated Petitioner in accordance with Respondent's policy. By letter dated November 13, 1990, Petitioner was notified of his termination effective November 30, 1990. The termination was based solely on Petitioner's failure to obtain his SHARP certification within 12 months of his date of hire. Petitioner was not considered for any other positions on the launch base support project. All painter positions require SHARP certification. Other available positions for which Petitioner was qualified require SHARP certification. Petitioner neither applied for nor requested any other position on the launch base support project. Petitioner is an alcoholic. Petitioner was diagnosed in 1986 as suffering from alcoholism and drug abuse. Petitioner's alcoholism is the only handicap at issue in this proceeding. Petitioner was in an alcohol rehabilitation program prior to his employment by Respondent. Petitioner did not disclose his alcoholism to Respondent at the time of employment. In response to a specific question on his job application, Respondent stated that he had no physical or mental disabilities which would require special accommodations to permit him to perform the type of work for which he was applying. Petitioner did not consider himself handicapped at the time he applied for employment. Petitioner has a history of arrests and criminal charges. Petitioner was twice arrested for driving under the influence ("DUI") before his employment with Respondent. Petitioner had also been arrested for other offenses including assault and trespass. Petitioner was arrested for a third DUI offense in September, 1990, after his SHARP certification had been rejected but before the final appeal hearing on October 10, 1990. Petitioner enrolled in an employee assistance program ("EAP") after his SHARP certification was denied but before his appeal hearing. Petitioner was not referred to the EAP by his supervisor or anyone employed by Respondent. Respondent did not know Petitioner was in an EAP until after Petitioner was terminated. Petitioner enrolled in the Sunrise Substance Abuse Program at Wuesthoff Hospital. Petitioner was referred to the treatment program by his EAP counselor. Pursuant to EAP policy, Respondent was not notified that Petitioner had enrolled in either the EAP or treatment program. After his arrest for DUI in September, 1990, and before his appeal hearing for his SHARP certification, Petitioner requested transfer to Respondent's project on Kwajalein Atoll in the Republic of the Marshall Islands. Kwajalein is self- contained. It has its own project manager, its own personnel office in Huntsville, Alabama, and offices in Kwajalein. Final approval of transfers to Kwajalein are made in Huntsville. Kwajalein Atoll is a remote island more than 2,000 miles from Honolulu, Hawaii. Housing is available in the form of communal barracks. Medical facilities are limited. Prospective employees with a history of alcohol abuse must document two years of abstinence before they will be considered for Kwajalein. Respondent's policy and procedures required the request for transfer to be approved by Petitioner's department manager. Mr. Stanfill was new to the department at the time of the request. Mr. Stanfill did not know Petitioner personally. Mr. Stanfill discussed the transfer with Petitioner's supervisor. Mr. Stanfill refused to approve the transfer. Mr. Stanfill based his decision on information gained from Petitioner's supervisor and Mr. Stanfill's own military experience in remote locations similar to Kwajalein. Mr. Stanfill has received transfer requests in addition to Petitioner's. Mr. Stanfill has refused to approve transfers in cases other than Petitioner's. Other employees have been terminated for failure to receive security clearances. At least two employees, in addition to Petitioner, have initially failed to obtain SHARP certification. Like Petitioner, both of the employees were retained through the SHARP appeal process. One employee was terminated after he failed to obtain his SHARP certification following his appeal. The other employee was retained because he was granted SHARP certification after his appeal. Petitioner completed the Sunrise Substance Abuse Program in February, 1991. In early 1993, Petitioner was arrested for DUI. Petitioner is not currently in a rehabilitation program. SHARP policy requires that an individual who has a history of alcohol abuse or alcohol related incidents following a rehabilitation program to successfully complete a rehabilitation program and abstain from alcohol abuse for two years. Respondent's policy does not permit the retention of uncertified employees for two years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order finding that Respondent committed no unlawful employment practice and denying the remedies requested by Petitioner. RECOMMENDED this 27th day of July, 1993, in Tallahassee, Florida. DANIEL MANRY 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 27th day of July, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5925 Petitioner's Proposed Findings Of Fact. Petitioner submitted no proposed findings of fact. Respondents' Proposed Findings Of Fact. All of Respondent's proposed findings of fact are accepted except proposed findings that Respondent did not know of Petitioner's handicap at the time of the request for transfer and at the time of the termination. COPIES FURNISHED: Ronald M. McElrath Executive Director Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission On Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Carol B. Bess, Esquire Cullimore & Bess 3815 North U.S. 1, Suite 106 Cocoa, Florida 32926 Dorothy F. Green, Esquire James G. Brown, Esquire Richeson & Brown, P.A. 135 North Magnolia Avenue Orlando, Florida 32802
The Issue Is Respondent TPE Structures of Bay County, Inc. (TPE Bay County) an employer as defined in Section 760.02(7), Florida Statutes (2003), conferring jurisdiction on the Florida Commission on Human Relations (the Commission) to consider the complaint filed by Petitioner William D. Hunt (Petitioner Hunt) and Petitioner Charles C. White (Petitioner White) against TPE Bay County?
Findings Of Fact Petitioner Hunt worked for TPE Bay County from August 13, 2003, through October 4, 2003. Petitioner White worked for TPE Bay County from August 11, 2003, through September 6, 2003. These are the relevant time periods in this inquiry. Both Petitioners were terminated from employment. According to the Amended Employment Charges of Discrimination, the Petitioners accuse their supervisor/manager Gary Williams of sexual harassment while employed with TPE Bay County. On August 21, 2000, TPE Bay County filed the necessary documents for incorporation with the Florida Department of State. It was incorporated as a Florida for profit corporation. As of April 11, 2002, the mailing address for the corporation was Post Office Box 18155, Panama City Beach, Florida 32417. Kenneth L. Karr is the registered agent for the corporation. He is the president and only director. Mr. Karr is the only shareholder in the corporation holding 400 shares. Mr. Karr's address is 7109 Lagoon Drive, Panama City Beach, Florida 32408. This information concerning TPE Bay County and Mr. Karr pertained during the relevant time contemplated by the Amended Charges of Discrimination referred to before, with the exception that Mr. Karr had a prior address in Panama City Beach, Florida. Mr. Karr filed with the Florida Secretary of State a year 2004 for profit corporation annual report. That report was filed April 26, 2004. It is one in a series of reports filed with that agency since the inception of the corporation. Earlier a corporation identified as TPE Structures, Inc. (TPE) had been formed. On March 26, 1999, the necessary documents were filed with the Florida Department of State to incorporate TPE. At times relevant, the principal address for TPE was 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address was Post Office Box 2066, Key West, Florida 33045. Mr. Karr serves as resident agent for TPE. His address is 7109 Lagoon Drive, Panama City Beach, Florida 32408 for those purposes. The 2004 TPE for profit corporation annual report was filed with the Florida Department of State on April 4, 2004. Before April 14, 2004, other for profit corporation business reports were filed with that agency. Mr. Karr was the president and only director for TPE from the inception and continues in those roles at present. He holds 500 shares in TPE that represents all shares. At times relevant Mr. Karr received a salary from TPE Bay County and from TPE. The Florida General Contracting license pertaining to TPE Bay County and TPE is No. CBC059131. At times relevant TPE Bay County and TPE maintained separate employee telephone numbers or contact lists. Those lists set forth the names and addresses for the employees. Persons whose names and addresses are related in the TPE Bay County list and the TPE list do not overlap. TPE Bay County is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE is engaged in the business of concrete spalling, stucco repair, termite and water damage, waterproofing, caulking, texture coatings and painting. TPE Bay County in its breakout of work performed is involved 60 percent in waterproofing, 25 percent in stucco and wood repair and 15 percent in painting and texture coatings. By contrast TPE is involved with 80 percent concrete spalling, and 20 percent painting. TPE Bay County does work in Bay County, Florida. TPE does work in the lower Florida keys in Monroe County, Florida. The work is done through separate company employees assigned to those jobs from the business locations where the jobs are found. The work is not done by exchanging employees who work for TPE Bay County and TPE respectively. TPE Bay County and TPE have separate managers whose job it is to estimate, promote, market, bid, solicit, and obtain contracts. Those managers do not communicate or deal with each other in the regular course of business. Mr. Karr's job duties in relation to his companies is to deal with corporate functions, set goals for profit, set goals for sales, deal with the respective managers of the two companies, deal with cash-flow, oversee accounting, sign checks, and visit job sites routinely. Mr. Karr hired the managers for the two locations and would be responsible for firing those managers. He has a similar role in dealing with a single accounting staff that serves both companies. Gary Williams serves as the manager for TPE Bay County. Stace Valensuelela manages TPE. Those managers are responsible for labor relations and safety activities. The managers are responsible for approving time cards for payroll purposes and establishment of hourly wages for employees, for billing customers and approving invoices for payment. The bookkeeping for the companies is done by Georgianne Davis who is overseen by Mr. Karr's wife. The business records for TPE Bay County Respondent are maintained at 7915 North Lagoon Drive, Panama City Beach, Florida 32408. The mailing address for that company is Post Office Box 18155, Panama City Beach, Florida 32417. The telephone number for TPE Bay County is (850) 235-4811. The fax number for TPE Bay County is (850) 230-3617. The e-mail address is ken@tpestructures.com. The business records for TPE had been maintained at 5970 Peninsula Avenue, No. 3, Key West, Florida 33040. The mailing address for TPE was Post Office Box 2066, Key West, Florida 33045. The telephone number for TPE was (305) 292-4111. The fax number for TPE was (305) 292-4615. The e-mail address for TPE is ken@tpestructures.com. After September 29, 2004, the Key West office closed and the records of TPE were sent to the Panama City Beach address related to TPE Bay County for storage purposes. TPE Bay County has assigned an FEIN number 59-3666286. TPE has assigned an FEIN number 65-0929637. TPE Bay County does business with Peoples Bank in Panama City Beach, Florida. TPE has transacted banking business with First State Bank in Key West, Florida. An occupational license was issued by Panama City Beach for TPE Bay County's operations in Bay County, whereas TPE's operations in Key West for Monroe County was issued a separate occupational license by that local government. According to employee information for TPE Bay County and TPE, at times relevant nine persons were employed by TPE Bay County and 20-plus persons were employed by TPE. At times relevant none of the persons employed by TPE Bay County worked on projects around south Florida. Similarly, none of the TPE employees worked on projects in the Florida panhandle. No funds related to TPE Bay County were used to pay the debts for TPE. No funds for TPE were used to pay debts of TPE Bay County. On advice of counsel Mr. Karr formed TPE Bay County as a separate corporation from TPE to limit debt liability. These arrangements were not intended in their design to avoid employment discrimination claims by employees. A business card presented as evidence bearing Mr. Karr's name sets forth TPE as the company. It provides the post office address for TPE Bay County and TPE in their respective locations at Panama City Beach and Key West. It gives the telephone numbers for TPE Bay County and TPE. It gives the fax number for TPE. It has a website listed which is www.tpestructures.com. A letterhead refers to TPE with a post office address for both the TPE Key West company and the TPE Bay County Panama City Beach company. Advertising in several telephone book listing services refers to "TPE Structures, Inc." and "TPE" while containing the TPE Bay County's 7914 North Lagoon Drive, Panama City Beach, Florida address and telephone number at 235-4811. Those listings bore the website address www.tpestructures.com with the contractors license number CBCO59131. Two separate telephone listings bore the name "TPE Structures, Inc.," with the initials "TPE" the 5970 Peninsula Avenue address for TPE and the telephone number for TPE as (305) 292-4111. A website address in those listings was given as www.tpestructures.com. A contact form soliciting information from outsiders refers to TPE, not TPE Bay County, at the location 7914 North Lagoon Drive, Panama City Beach, Florida 32408, with a telephone number of (850) 235-4811 and the fax number (850) 230-3617. That same form refers to TPE at telephone number (305) 292-4111 and fax number (305) 292-4615. It carries an e-mail addresses for general information as info@tpestructures.com and under the president as ken@tpestructures.com. An information sheet referring to the "TPE" office staff shows photos of Mr. Karr as founder and president, Suzanne Karr, Gary Williams as manager of Panama City Beach, and Georgianne Davis, secretary and accounting at Panama City Beach, Florida. On that same page with photos unavailable is a reference to Stace Valensuelela as manager of Key West and an unnamed secretary at Key West, Florida. A brief employment application form refers to joining the "TPE" team and sending the information to "TPE Structures, Inc." at 7914 North Lagoon Drive, Panama City Beach, Florida 32408. It provides the fax number (850) 230-3617 related to Panama City Beach. At times relevant TPE Bay County had filed with the Florida Department of Revenue its employers quarterly report. TPE Bay County has filed a Form 940-EZ with the Internal Revenue Service related to the Employers' Federal Unemployment (FUTA) tax return for calendar year 2003. TPE Bay County had filed a Form 941 Employers' Quarterly Federal Tax Return for the quarter ending September 30, 2003, with the Internal Revenue Service. In a document prepared that refers to the "TPE history", it is stated that in addition to the Key West office, TPE is proud to announce the opening of the Panama City Beach, Florida office at 7914 North Lagoon Drive on February 1, 2001. The phone numbers are (850) 235-4800 and fax (850) 230-3617 or toll free at 877-660-4811. A truck used in the business related to TPE Bay County had signs displayed referring to "TPE." One sign on the truck indicated the telephone number for TPE Bay County's business, which is (850) 235-4811. At times relevant employees working for TPE Bay County wore painter whites referring to "TPE Structures" that displayed the telephone numbers for Key West and Panama City Beach with a common 1-800 number. When Petitioner White was hired, Mr. Karr told him that he has trying to keep Key West going and was having monetary trouble in that location. From the hearing record nothing additional was said to Petitioner White on the subject. Mr. Karr told Petitioner Hunt that there was a Key West branch of his business. Notwithstanding this remark, Petitioner Hunt did not become personally familiar with the Key West operation.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by the Commission finding that it is without jurisdiction to proceed in these cases based upon Petitioners' failure to show that the Respondent is "an employer" as defined in Section 760.02(7), Florida Statutes (2003). DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: Daniel A. Perez, Esquire Allen & Trent, P.A. 700 North Wickham Road, Suite 107 Melbourne, Florida 32935 Kenneth L. Karr, President TPE Structures of Bay County, Inc. Post Office Box 18155 Panama City Beach, Florida 32417 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Countrywide Funding Corporation (Countrywide) is a mortgage company, with a home office in Pasadena, California, and branch offices throughout the country. It employs substantially more than fifteen persons, full-time. Wanda Faye Oliver (Faye Oliver) was hired by Countrywide as Branch Manager for its Winter Park, Florida branch on April 28, 1986. Her duties were to market loans for the company, supervise the underwriting and generally supervise the office. At the time of hire, she had a Florida mortgage broker's license and experience as an office manager and branch manager with another company, as well as experience processing loans. Ms. Oliver's starting salary was $32,000 a year. The office under Ms. Oliver performed well, and in April, 1987, she received a special base salary increase to $36,000 annually. The letter awarding the increase congratulates her for hard work and acknowledges her as the leader in the Florida operation. The salary increase was for her increase in production. (Petitioner's Exhibit #1). Several events occurred around April, 1987, to impact the Winter Garden office. Dave Erbst, the individual who hired Oliver and her immediate supervisor in California, was replaced by George Shipman. The local office began having trouble communicating with its home office. Telephone calls were returned a day or two later, and in one instance George Shipman approved a loan that had been denied by the Winter Garden female underwriter without discussing it or informing her in advance. Later, when a male underwriter was hired, George Shipman would talk with him, but not Ms. Oliver. Ms. Oliver complained about the communication problems and about not receiving timely logistical support, such as broker loan kits needed for the approval of additional brokers. In April, 1987, the company opened an office in Atlanta and form letters were sent to approved brokers, including those with whom the Winter Park Office had worked, inviting them to work with the Atlanta office. The new office began closing loans that the Winter Park office had "locked in". In May or June, 1987, Faye Oliver received a satisfactory (average) performance evaluation. She called Shipman and asked to discuss it, as she wanted to explain what she was doing, but he never contacted her about it. In the early summer of 1987, interest rates rose and the market in general decreased. Production at the Winter Park office decreased below its goal of at least $3 million. Production in other wholesale offices of Countrywide substantially decreased as well. In the middle of August, 1987, Rick Cossano was hired by Countrywide as Vice-President in charge of production. He worked out of the Pasadena office and reported to George Shipman. His responsibility was to work with the branch managers to increase production. On August 30, 1987, Countrywide ran a blind advertisement in the Orlando Sentinel newspaper seeking a Director of Broker Operations to "take over the reins of our local broker operations." (Petitioner's Exhibit #11). Faye Oliver read the ad, recognized her job and called Rick Cossano, to find out what was going on. She had never been disciplined by the company and had never been warned or reprimanded. Although there had been discussions about closings that needed to be done to meet goals, there were no complaints about production. Rick Cossano had not heard anything about the advertisement and told Oliver he did not know what was going on. Later, he found out why the company was running the advertisement and he called Faye Oliver to tell her she was being replaced. He also told her the company did not want her to leave because she was a valuable asset and was needed to help run the Winter Park Office. Joe Brick was hired as Branch Manager of the Winter Park Office on September 23, 1987, at a salary of $42,000. At the time, he did not have a Florida mortgage broker's license, but had completed the requirements. He had been self employed as a mortgage consultant and had experience as a mortgage broker manager in Wisconsin. Faye Oliver was demoted without a reduction in pay. Her new title was Branch Operations Manager. She was told by Rick Cossano that she was to train Joe Brick in Countrywide's procedures and to help him with technical matters. She was also supposed to supervise staff, she thought, because Rick Cossano had told her that nothing would change with the demotion. On September 25, 1987, Faye Oliver sent a memo to Rick Cossano requesting a job description. She had only verbally been told of her status and she wanted to know what the demotion meant, since she was still on the same salary and was supposedly given the same duties. She never received a response or any explanation. She had to move to a different office because the new manager needed the office with a telephone. Her new office was physically removed from the rest of the staff and away from the telephones. The staff, at that time, was comprised of three persons, in addition to Ms. Oliver and Joe Brick. Those staff were aware of an attitude change in Faye Oliver but they had no difficulty working with her and they did not feel she was insubordinate or that their work was affected. They were sympathetic to her and felt she was more competent than her replacement. On October 2, 1987, a Friday, Faye Oliver was packing her books, for the fourth time, to move to an office where a telephone had been installed. It was the end of the day and the staff were standing around chatting. After the others left, Joe Brick closed the door and informed her to just keep packing and keep going, that she was being terminated by Rick Cossano's instructions. She was shocked, because, again, she had not been warned and she had relied on Rick Cossano's statements that she was to stay. She asked for a letter explaining the reason. The letter which Joe Brick typed while she packed, states: October 2, 1987 Ms. Faye Oliver C/O Countrywide Funding 2250 Lee Roda [Sic] Winter Park, Florida Dear Faye: Please let this letter serve as notice of termination of your employment by Countrywide. The termination is effective as of the close of business today. The decision to terminate is based upon business conditions and is not to be looked upon as a lay-off. The company does not intend that this be viewed as anything other than a termination. We wish you well in your future persuits [sic] and thank you for your efforts on behalf of Countrywide. Sincerely, Joseph K. Brick JKB/st cc: Rick Cossano Joe Brick was demoted some time later for failure to get along with people in the branch office. He eventually left the company voluntarily. George Shipman was terminated in December 1987. Rick Cossano was the only witness presented at hearing on behalf of the company. He claims that he and George Shipman made the decision to terminate Faye Oliver based on the recommendation of Joe Brick. On October 5, 1987, he sent a handwritten memo to the company personnel office, stating: Date: 10/5/87 To: Hedi Fm: Rick Cossano V.P. Re: Faye Oliver Termination Hedi - This memo is to clarify the termination of Faye Oliver. Faye was previously the Orlando Branch Manger. Due to lack of production, Faye was demoted to operations manager on 9/23/87. Faye's replacement (Joe Brick) was installed on 9/23/87. The new manager observed Faye's attitude deteriorate to the point of affecting other branch employees. Several verbal warnings were issued to Faye by the new manager. Faye was terminated on 10/2/87 due to her negative attitude. R. Cossano D.V.P. Rick Cossano did not personally observe Oliver's performance or attitude after the demotion. He relied on reports from the new manager, Joe Brick. His personal experience with Faye Oliver was limited, as he had only recently been hired. He stated that she complained about not getting support from the company, but he admitted that he never attempted to determine whether her complaints were justified. Rick Cossano claims that the decision to demote Faye Oliver was based on failure to increase production, and that the decision would have been made as much as four weeks prior to the action. The position to which Faye Oliver was demoted had not existed before, nor was it filled upon her termination. In 1987, the company replaced three women branch managers with men and one male manager with a female; in 1988, two male managers were replaced with females. No evidence was presented regarding the basis for the replacements or who at the company was responsible, although Cossano stated that he had terminated people for low production. Evidence regarding the company's basis for the series of personnel actions related to Wanda Faye Oliver is conflicting and confused. On the personnel form reflecting the April 1987 pay raise, the notation "restructure of division" appears under the heading, "Explanation". (Respondent's Exhibit #1) Yet the letter describing the raise relates it to Oliver's performance. Rick Cossano's explanation included different rates of increase for different employees. In August, 1987, shortly after his arrival at the company, Rick Cossano knew nothing about the proposed demotion when called by Ms. Oliver, but at the hearing, he based the demotion decision on her production. No written evidence of the reason for demotion was produced -- no personnel action form, nor notice to Ms. Oliver. The company did not explain the distinction between a "lay-off" and "termination" as those terms are used in Joe Brick's letter to Faye Oliver. Clearly, that letter conflicts with Rick Cossano's account of why she was terminated, allegedly also based on Joe Brick's recommendation. After her termination, Faye Oliver sought employment and was employed as follows: December 1, 1987 - Mortgage America - $30,000 April 30, 1988 annually April 1988 - Unemployed February 1989 February 1989 - Cataret Mortgate, commissions Only April 15, 1989 - approximately $2,500 - $3,500 April 18, 1989 - Disney World approximately present $13,900 annually When she left Countrywide, she had been making $36,000 a year.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered, finding Respondent guilty of an unlawful employment practice in its termination of Petitioner on account of her sex, and awarding back pay and reasonable attorney's fees in accordance with Section 760.10(13), Florida Statutes. DONE and ENTERED this 1st day of September, 1989, at Tallahassee, Florida. MARY CLARK 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 1st day of September, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2015 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1.-4. Adopted in paragraph 2. 5. Adopted in paragraph 3. 6.-8. Adopted in paragraph 7. 9.-10. Adopted in paragraph 4. 11.-12. Adopted in paragraph 9. 13. Adopted in paragraph 8. 14.-17. Adopted in paragraph 9. Adopted in paragraph 10. Rejected as unnecessary. 20.-21. Adopted in paragraph 16. Adopted in paragraph 13. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 17. Adopted in paragraph 14. Adopted in paragraph 13. 29.-30. Adopted in paragraph 10. 31.-32. Adopted in paragraph 14. 33. Adopted in paragraph 15. 34.-35. Adopted in paragraph 20. 36. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraphs 2 and 14. Adopted in substance in paragraphs 5 and 6. Adopted in substance in paragraphs 4 and 6. Adopted in paragraph 9. Adopted in paragraphs 9 and 11. Rejected as unsupported by competent evidence. The claims by Rick Cossano are contradictory. The first sentence is adopted in paragraph 13. The remainder is rejected as immaterial. Rejected as immaterial. Adopted in part in paragraph 18; otherwise rejected as unsupported by evidence. Rejected as contrary to the weight of evidence. COPIES FURNISHED: N. James Turner, Esquire Suite 104 17 South Lake Avenue Orlando, FL 32801 Thomas R. Peppler, Esquire P.O. Box 2807 250 North Orange Avenue Orlando, FL 32802 M'Liss Jones Kane, Esquire P.O. Box 7137 Pasadena, CA 91109-7137 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1925 Dana Baird, General Counsel 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1925 Margaret Jones, Clerk Florida Commission on Human Relations Bldg. F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue Whether the Florida Department of Transportation’s (“Respondent” or “Department”) intended award of a contract for integrated corridor management modeling software to Aimsun, Inc. (“Intervenor” or “Aimsun”), is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Department is the state agency responsible for coordinating and planning a safe, viable, and balanced transportation system serving all regions of the state, and to assure the compatibility of all components of the system. See § 334.044, Fla. Stat. (2018). The RFP On February 22, 2018, the Department posted the RFP to the state vendor bid system, seeking vendors that could provide Integrated Corridor Management Modeling (“ICMM”) software. There were no challenges to the terms, conditions, or specifications contained in the RFP. The RFP describes the overall goal to acquire ICMM for the Central Florida Regional Integrated Corridor Management System (“ICMS”), which is initially centered on the I-4 Corridor and its “influence area,” including the interstate, a commuter- rail line, transit bus service, park-and-ride lots, major regional arterial streets, toll roads, and other transportation facilities. While the ICMS project focuses on the Orlando region initially, the goal of the Department is to develop a modular approach to ICMS which will be scalable to District 5 in its entirety. As summarized by Shaleen Srivastava, Petitioner’s Vice President, the Department is building a “model of the actual traffic situation [in the I-4 corridor] in the virtual world.” The ICMS is composed of three main systems, the relevant one being the Decision Support System (“DSS”). The DSS will be developed to provide a system to review and evaluate the current and predicted conditions of the Central Florida transportation network in order to help operators make smart decisions in managing both recurring and non-recurring congestion conditions. The DSS components are an Expert Rules Engine (“ERE”), a Predictive Engine (“PRE”), and an Evaluation Engine (“EVE”) that will build and select response plans to be evaluated, model the predicted outcomes of the selected response plans, evaluate and score the plans, coordinate with operators and local agency maintainers, and invoke the approved response plan actions. Through the RFP, the Department seeks a vendor to supply a Commercial Off-the-Shelf (“COTS”) software product which will be the core of the PRE. The RFP Exhibit A contains the scope of services for the project and describes in detail the requirements for the PRE. The PRE is envisioned to provide predictions of the network performance 30 minutes into the future. The PRE will have three main functions that must be met by the COTS software: 1) maintenance, 2) evaluation, and 3) offline signal simulations. The third role of the PRE is to simulate and provide measures of effectiveness for the optimized signal timing plans and coordination that will be developed by the signal optimization tool that will be part of the ICMS. The PRE is an integral component of, and must interface seamlessly with, the DSS. All of the technical requirements for the PRE/COTS are listed in Exhibit A, Table 2. The proposer must verify that its software is demonstrated to meet each of the 55 requirements. The RFP incorporates a number of required forms, including a Proposed Staffing and Availability worksheet (“staffing worksheet”), which directs proposers to provide the following information for up to 10 core staff members: List the Key Personnel, including job titles, of the Team that will be involved with this contract. Include the number of years of experience each person has in the specific job title and the type of experience they have, as well as any certifications and education. List the availability for each team member in percentage of hours per year. According to the RFP, proposals may be found to be irregular or non-responsive if they do not utilize or complete prescribed forms. Processing of Responses Both PTV and Aimsun are potential vendors which submitted timely proposals to the District 5 Procurement Unit in response to the RFP. The Procurement Unit opened the technical proposals on April 10, 2018, then distributed the proposals to the members of the Technical Review Committee (“TRC”), who evaluated and scored the technical proposals. The TRC was composed of District 5 staff with technical expertise relevant to traffic management: Traffic Design Engineer Ayman Mohamed, Transportation Modeler Jason Learned, and Freeways Engineer Jeremy Dilmore. TRC members evaluated and scored the technical proposals on a scoresheet template provided by the Procurement Unit. The template was divided into three sections, which correspond with the three sections of the RFP: Software Description and Functionality, Support and Integration Approach, and Software Deployment/Project History. The maximum score for each section was 35 points. TRC members completed their evaluation and scoring and returned their evaluation, and summaries thereof, to the Procurement Unit on April 17, 2018. Aimsun received a total score of 93 for its technical proposal. PTV received a total score of 78.67. Following opening of the price proposals, Aimsun was selected to receive the ICMM contract. Responsiveness of Aimsun’s Proposal Petitioner’s first contention is that the Department’s intended award to Aimsun is contrary to the bid specifications because Aimsun did not include the staffing worksheet, which rendered Aimsun’s proposal non-responsive. It is undisputed that the Aimsun proposal considered by the TRC did not include the required staffing worksheet. According to the Procurement Supervisor, the TRC is responsible for determining responsiveness of proposals.1/ In scoring section 2, Support and Integration Approach, Mr. Mohamed noted, “Aimsun provided general description of their supporting staff. Aimsun did not provide staffing plan showing key staff members and their availability toward the project.” Mr. Mohamed gave Aimsun 31 out of 35 possible points on this section. Mr. Learned gave Aimsun 30 out of a possible 35 points on this section. Mr. Learned noted, “Has staffing plan, but does not show availability – staff has worked on projects listed in the project history. Support staff housed in NYC office, which will facilitate communication with FDOT.” Mr. Dilmore gave Aimsun 33 out of a possible 35 points on this section. Mr. Dilmore noted, “Aimsun’s product requires development. It is unclear about availability of staff.” Despite the absence of the staffing worksheet from Aimsun’s proposal, Mr. Mohamed was satisfied Aimsun could support the COTS product identified in this proposal. In arriving at his conclusion, Mr. Mohamed considered the information contained in Section 2.4 of Aimsun’s proposal, which listed each staff member who would support the project, as well as each component of the project which they would support. Both Mr. Learned and Mr. Dilmore also relied upon the staffing information contained in Section 2.4 of Aimsun’s proposal in arriving at their scores of 30 and 33, respectively. Despite the absence of the required staffing worksheet, each evaluation committee member was satisfied that Aimsun demonstrated the ability to support the COTS software solution proposed. The record does not support a finding that Aimsun’s failure to include the required staffing form gave Aimsun a competitive advantage or benefit over PTV. Arbitrary Scoring Petitioner next contends that the Department scored its proposal arbitrarily, or otherwise in error, compared to its scoring of Aimsun. Staff Availability Petitioner cites, as the most egregious example, the TRC scores it received for section 2. This section requires the proposer to discuss how they will support the implementation of the modeling software as part of the ICMS development and deployment, as well as a description of how the proposer supports software integrations, application development, and general modeling support. This is the section which required the inclusion of the staffing worksheet. On this section, Petitioner received a 10 out of a possible 35 points from Mr. Dilmore. Mr. Dilmore noted, “The development staff generally has low availability. Their approach to training is 4 week courses. The implementability will be difficult [but] is generally acceptable. PTV takes exception to the SLAs [which] are part of the contract.” PTV takes umbrage at Mr. Dilmore’s severe deduction of points for perceived “lack of staff availability” when Aimsun received only minor point deductions, even though it wholly failed to include the required form detailing its staff availability. While PTV’s proposal does, in fact, propose low availability of staff,2/ that shortcoming was not the sole basis for the low score Mr. Dilmore’s assigned. As Mr. Dilmore noted on his score sheet, and explained at final hearing, in addition to availability issues, his score reflected concerns with PTV’s failure to agree to the Department’s Service Level Agreement (“SLA”), proposed approach to training, and issues with implementing the software. Department SLA The Department’s SLA sets the required timeframes for response to, and repair of, system maintenance requests and system failures. For example, the SLA sets a maximum response time of 15 minutes, during normal operating hours, for priority one failures. Likewise, the SLA sets a maximum repair time of one hour for such failures during normal operating hours. Rather than agreeing to the Department’s SLA, PTV stated that it “adopts its own standard [SLA] terms,” and explained that it is “open to discussion” on the content and terms of a final agreement. PTV did not include a copy of its standard SLA for review by the Department, but instead noted that it could be “provided upon request.” The SLA is critical to the Department. If a vendor does not agree to the Department SLA, the Department is not assured that the failures in the PRE software function, which drives the DSS, will be repaired timely. The SLA is so critical that it includes a liquidated damages clause for damages caused by the vendor’s failure to comply with the required timeframes. In contrast to PTV, Aimsun took no exception to the Department’s SLA and agreed to comply with it. The Department’s scoring of PTV’s proposal was reasonable, especially in light of the importance of the Department’s SLA. Training The vendor is required to operate, maintain, and support the COTS software system for two years after its deployment. The vendor must provide at least two training courses on the DOT premises in the use of the planning aspects of the software. Additionally, the vendor must provide administrator training for the PRE on Department premises after the integration with ICMS is complete. Mr. Mohamed gave PTV a 32 out of 35 points on this section. Mr. Mohamed’s concern was with PTV’s approach to training of Department staff. PTV proposed two separate training sessions for Department staff, each lasting four weeks. Mr. Mohamed commented that the trainings “could be unfeasible for most of the essential senior staff.” Mr. Learned gave PTV a 25 out of 30 points on this section. He also noted that the proposed trainings were not optimal and that the preferred approach was tiered training based on the Department staff member’s “level of use,” meaning that the amount of training should correlate with the staff member’s responsibilities related to the software. In contrast to PTV, Aimsun proposed two tiers of training: a first-level training for staff to master all the basic concepts of the software, and a second level which includes a detailed walk-through of the methodology and workflow for modelers who have previous practical experience. The Department’s scoring of PTV’s proposal on this issue was reasonable based on the level of training proposed. Software Description and Functionality The Department also reasonably deducted points from PTV’s proposal in section 1, Software Description and Functionality. Mr. Mohamed, Mr. Learned, and Mr. Dilmore scored PTV’s proposal 32, 30, and 30 out of 35, respectively, on section 1. PTV failed to verify that its software met all of the technical requirements for the PRE/COTS listed in Exhibit A, Table 2. Of the 55 requirements, PTV indicated that its COTS was only partially compliant with seven of the technical requirements. Further, PTV’s proposed software, DATEX2, is a European data format, which will require conversion to interface with the Department’s U.S. data format.3/ Mr. Learned testified that these conversions would require the Department to incur additional costs--both monetary and temporal. It also raised the questions of whose task it would be to complete the conversion and when conversion would take place. In addition, since the PRE is the driver of, and a critical interface with, the DSS, the necessity for conversion is not advantageous to the Department. In comparison to PTV’s proposal, Aimsun’s proposal verified that its COTS complied with all 55 technical requirements. The Department’s scoring of PTV’s proposal was reasonable and supported by the importance of the interface between the PRE and the DSS. Software Deployment/Project History PTV also received lower scores than Aimsun on section 3, Software Deployment/Project History. Mr. Mohamed, Mr. Learned, and Mr. Dilmore assigned scores of 27, 25, and 25, respectively. PTV has not previously deployed DATEX2 anywhere in the United States. All of its prior deployments were in Europe and the Middle East. This is significant because traffic operations (i.e., signal systems) and driver behavior are significantly different in North America than in Europe and the Middle East. By contrast, Aimsun’s project history includes two prior U.S. deployments, along with its European and Australian experience. The most relevant project is that of the San Diego I-15 ICMS, where Aimsun’s COTS was deployed successfully in 2013 and serves as the real-time modeling tool for the DSS in the San Diego interstate corridor ICMS project. That project is the exact model the Department is seeking to construct for the I-4 Corridor ICMS. Aimsun is currently involved in ongoing maintenance of the San Diego project. The Department did not arbitrarily score PTV’s proposal regarding section 1. Aimsun’s experience was the most relevant and demonstrated success with deployments interfacing with the DSS to support an ICMS. Scoring Contrary to RFP Criteria In scoring the proposals on availability, the TRC members also considered that most of the key PTV staff are not located in the United States. Only two key staff members, Shaleen Srivastava and Chetan Joshi, are located in the U.S., and those two members were proposed to devote to the project 15 percent and 30 percent of their annual work hours, respectively. TRC members expressed concern that international time zone differences would affect the responsiveness and availability of PTV to support the project, especially in the event of system failures. PTV posits that, in deducting points for the location of its staff outside of the U.S., the Department applied criteria that were not contained in the RFP. PTV argued that if the Department only wanted U.S.-based staff, it must have included that in the RFP criteria. Mr. Srivastava testified that someone on his staff, not necessarily someone listed on the worksheet, would be available 24 hours a day to take the Department’s calls and address any maintenance or failure issues. While Mr. Srivastava’s testimony was credible, it does not erase the Department’s reasonable concern with the availability of key staff. Mr. Srivastava conceded that the key staff listed on the worksheet would not always be available to the Department because of differences in international time zones. That, coupled with PTV’s lack of commitment to the Department’s SLA, justifies the TRC members’ deductions on section 2 of PTV’s proposal. The Department did not impose criteria which were outside of the RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing PTV America, Inc.’s Petition. DONE AND ENTERED this 2nd day of November, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 2nd day of November, 2018.
