Findings Of Fact 1.-2. Adopted in Findings of Fact 3 & 4, respectively. Adopted in Findings of Fact 5, 6, 7 and 8. 3.* Adopted in Findings of Fact 9 and 10. Adopted in Findings of Fact 11 and 12. Adopted in Finding of Fact 13. Adopted in Findings of Fact 14 and 15. 7.-10. Adopted in Findings of Fact 16, 17, 2 and 11, respectively. * There were two paragraphs numbered 3. COPIES FURNISHED: Ronald Thomas, Executive Director 133 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Susan Kirkland, Esquire General Counsel 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Aletha L. Dunn, Pro Se Thumbprint Copy & Printing Center 3723 Southside Boulevard Jacksonville, Florida 32216
Recommendation Based upon the foregoing Findings of Fact, Conclusions of Law, evidence of record, the candor and demeanor of the witness, it is, therefore, RECOMMENDED that a Respondent enter a Final Order denying Petitioner's request for certification as a Minority Business Enterprise. Respectfully submitted and entered this 25th day of March, 1989, in Tallahassee, Florida. WILLIAM R. CAVE 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 28th day of March, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-5533 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the Respondent in this case. The Petitioner did not file any posthearing Proposed Findings of Fact and Conclusions of Law.
Findings Of Fact It was stipulated by the parties that Exhibits 1 and 2 are photographs depicting the signs of the Respondent that are the subject of the allegations of statutory violations. One of the signs (Exhibit 1) is located 9/10 of a mile west of state road 81 on the south side of Interstate Highway I-10. It is located approximately 15 1/2 feet from the edge of the right-of-way of 1-10. The other sign (Exhibit 2) is 1 4/10 of a mile east of state road 81 on the north side of Interstate Highway I-10. It is located approximately 16 feet from the edge of the right-of-way of I-10 (testimony of Mr. Jordan). The two signs, which are commercial in nature, are located outside the limits of any incorporated city or town and are not in zoned or unzoned commercial or industrial areas (testimony of Mr. Jordan). The limits of Ponce de Leon, Florida, generally are located approximately one mile away from the sign locations (testimony of Mr. Jordan; Exhibits 1,2,5,6). Prior to the erection of the signs, the Respondent leased the property where they are presently located after contacting the Mayor of Ponce de Leon, Florida, who advised him that the leased property was located within the city limits of Ponce de Leon. By application dated August 19, 1975, Respondent applied for a state permit for the Signs. This application was denied by Petitioner on August 28, 1975, because the signs were deemed to be in violation of Section 479.11(1), F.S., as being within 660 feet of the Interstate Highway right-of-way (testimony of Mr. Jordan; and Mr. Mosier).
The Issue Whether Petitioner, a member of a protected class, was terminated from his position as a Lodging Host (bellman) with the Respondent at the Contemporary Resort Hotel in Walt Disney World on June 6, 1993, on the basis of his race (African-American), in violation of Section 760.10(1)(a), Florida Statutes (1991).
Findings Of Fact The Respondent is an employer under the Florida Human Relations Act of 1977, as amended. Petitioner was employed by Respondent as a Lodging Host (bellman) at the Contemporary Resort Hotel at Walt Disney World for more than nineteen (19) years, including the relevant period of time 1992- 1993. Petitioner is an African-American, and a member of a protected class. Petitioner began employment with the Walt Disney World company in the Contemporary Resort Hotel's food section in 1974. He was soon transferred to the hotel's lodging services as a bellman. Petitioner worked in this capacity until he was terminated on June 6, 1993. Beginning in 1991, the hotel's management began to emphasize the need for the correction of baggage handling problems at the hotel. Respondent began to strictly enforce its policies and procedures with respect to baggage handling in order to improve service to its guests. Management had received a number of complaints about the bell services function, and on at least one occasion the bellmen lost out on a sizeable cash tip due to a convention guest's dissatisfaction with their level of service. The bellmen, including Respondent and the union steward, were aware of the strict enforcement policy on baggage handling procedures in the 1991 - 1993 timeframe. Respondent received a written reprimand on September 29, 1992 for improper baggage handling when he delivered a bag belonging to one guest to a different guest's room. The bag, which contained valuable collectibles and medication, could not be located after a search of each of the hotel's 1,053 rooms. Respondent was obliged to contact the guest's doctor and obtain a new prescription. The disruption occasioned by this incident was so extreme that the head of the Resorts Division for Disney personally received a complaint from the agitated guest. When Petitioner was given the written reprimand, at no time did he state that the reprimand was unfair or discriminatory. Indeed, Petitioner did not grieve the reprimand through the union grievance procedure because he admitted that his failure to check the luggage tags had caused the mistake. On December 3, 1992 Petitioner initially received a three day suspension for another baggage handling mistake. Petitioner had gone to a guest room, picked up a guest's luggage and was told by the guest that he would be down in few minutes. After waiting for the guest for about fifteen minutes, Petitioner left the bags by the dispatch desk. Eventually the bags were placed in the luggage room by another employee. According to proper procedure, when the guest did not arrive to claim the luggage immediately, Petitioner should have placed the bags in a secure area. An electronic game worth approximately $500 turned up missing from the guest's luggage and the hotel was forced to compensate the guest accordingly. According to the union contract, once an employee receives a written reprimand, he can be terminated for the second offense. However, Respondent considered that Petitioner was a twenty year employee and the union contract allowed the use of lesser discipline. Therefore, Petitioner was issued a suspension. Petitioner filed a grievance through the union's grievance procedure because he thought that a suspension was too severe a penalty. The suspension was reduced to a written reprimand. Petitioner received a three day disciplinary suspension without pay on March 29, 1993 for a third baggage handling mistake in less than one year. On this occasion, Petitioner took a departing guest's bag to the room of a guest who had just checked in, resulting in the departing guest's loss of a bag containing his airline ticket. The hotel eventually had to compensate the guest for the replacement ticket. Petitioner admitted that he made a baggage handling mistake and did not file a grievance. At no time did Petitioner indicate to the office manager responsible for the progressive discipline he received that he thought he was being treated unfairly because of his race. In conjunction with this suspension, Petitioner was retrained in proper baggage handling procedures by the union steward, Bob Pfaff, and another employee, Richard Dennis. The retraining took more than three days to complete and was very thorough. At the conclusion of the retraining, Petitioner received a final check-out form which showed all the various procedures and policies for executing the bellman function which were reviewed by him during the training. He was advised that he would be terminated if another baggage handling mistake occurred within the next year. Petitioner was terminated on June 6, 1993 following two additional baggage handling mistakes. First, Petitioner forgot to take a hanging bag out of a guest's room. Petitioner admitted that if he had checked the luggage control sheet he would have realized that he had forgotten to take the bag out of the guest room when the guest was checking out. Later, after being approached about the first incident by supervision, Petitioner failed to properly store luggage given to him by a guest for safekeeping. Both of these mistakes were presented to management and the decision was made to terminate Petitioner. Petitioner consulted with the union and chose not to file a grievance. Petitioner's allegation that other employees received different treatment in circumstances similar to his is not substantiated by the evidence. Respondent attempted to minimize the possibility of termination by offering Petitioner other open positions within the Company at the time of the April suspension. Despite these offers, Petitioner turned them down because he wanted to remain a bellman. After his termination, Petitioner did not attempt to find employment as a bellman at any other hotel because he was "burned out" after working in that capacity for almost twenty years. No incidents other than Petitioner's admitted baggage handling mistakes were used in deciding to terminate him. Under the union contract progressive discipline applies only to similar offenses. Petitioner claims that white employees (Barbara Tompkins and John Marsh) were treated more favorably than he was treated upon his return from medical leave. The evidence, however, indicates that management tried in every case to utilize employees with temporary restrictions in positions as close to their regular jobs as possible. Upon his return to work from medical leave in 1992, Petitioner was assigned duties consistent with his restrictions and as close to his regular position as possible. An incident which Petitioner admits had no effect on the decision to terminate him but which he believes was discriminatory occurred while he was working in the parking lot on light duty and gave a "pargo" ride to his cousin, Jerome. Petitioner initially received a written reprimand for this incident. The reprimand was later withdrawn after management investigated Petitioner's parking lot training which had been conducted by Ernie Ramirez. There is no evidence that Stuart Arp, the supervisor who issued the reprimand, ever treated a white employee any differently for the same conduct. After his return from medical leave, a dispute arose about Petitioner's seniority. A similar grievance was pending in another location involving a white employee, Shafe Crawford. Respondent's Labor Relations Department and the union decided to await the outcome of Crawford's grievance, since it would resolve Petitioner's dispute as well. When the grievance was decided in Crawford's favor, Petitioner's seniority was adjusted. Despite an implication to the contrary by Petitioner, this incident was not discriminatory. Petitioner's car was towed in 1991 after he parked in a construction area. While he admits that he deserved to be towed, Petitioner claims that white employees were treated more favorably than he. Other illegally parked cars which Petitioner claims were not towed, however, were not parked in a construction zone. Petitioner admitted that he did not know of any car that was parked in a construction zone which was not towed. Petitioner complained that he was mistakenly blamed for making a phone call which was actually made by Kelly Widen, a white employee. As the only employee stationed in the luggage room, Petitioner was questioned by his supervisor, Sue Fox, about an improper telephone call that was placed from the luggage room. Widen was also questioned and admitted making the call, resulting in a discussion notation on her record card. Petitioner received no discipline for this incident, which in no way appears to have been racially motivated. Finally, Petitioner introduced evidence suggesting that Barbara Tompkins watched Petitioner like a hawk and would dock only him for being a few minutes late at a time when he had attendance problems. Tompkins, a lead, was not a member of supervision. There was no evidence introduced to show that her actions were racially motivated.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 10th day of June, 1994, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 10th day of June, 1994. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3, 4 (in part), 5, 6, 7, 8, 9 (in part), 10, 11, 12, 13, 15, 16, 17, 18 (in part), 19 (in part), 20 (in part), 21, 22 (in part), 23 (in part), 24, 25, 27, 28, 29 (in part). Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 4 (in part), 9 (in part), 14, 17, 18 (in part), 19 (in part), 20 (in part), 22 (in part), 23 (in part), 26, 29 (in part). COPIES FURNISHED: Mally Pugh, Jr. 500 Para Avenue Kissimmee, Florida 34741 Susan K. McKenna, Esquire Garwood, McKenna & McKenna, P.A. 815 North Garland Avenue Orlando, Florida 32801 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
The Issue The issue presented is whether Respondent has correctly billed Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986.
Findings Of Fact Respondent's meter #5C50349 was installed at 11145 N.W. 3rd Street, Miami, Florida, in February of 1969. Petitioner connected electrical service at that address on March 18, 1977, when he, his wife, and his daughter moved into a mobile home located at that address. They continued to reside there until approximately January 31, 1987. Petitioner was the customer of record during that time period and benefitted from the use of electricity at that address. On September 30, 1986, Kevin Burke, a meter man employed by Respondent, inspected meter #5C50349 at Petitioner's residence. His physical inspection revealed that there were drag marks on the meter disc and that the disc had been lowered. Drag marks and a lowered disc indicate that energy consumption is not being accurately registered on the meter. In addition, the customer's air conditioner was on, but the disc was not rotating. It was clear to Burke that the customer's meter had been physically altered. He replaced the tampered meter with a new meter on that same date. He carefully positioned the tampered meter in a foam-bottom meter can container and transported it to Respondent's storage room for safekeeping. The physical alterations to the meter were not, and could not have been, caused by improper handling by Burke. On November 18, 1986, Petitioner's tampered meter was tested by Respondent's employee Emory Curry. He performed a physical inspection of the meter which revealed that the inner canopy seal had possibly been glued back together, the bearings had been tampered with, the disc had been lowered, and drag marks appeared on the bottom of the disc. Curry then performed a watt-hour test. The full load portion of the test registered only 41.4%, and the light load registered 0. Each test should have resulted in a reading of 100%, plus or minus 2%. The mathematical weighted average for Petitioner's meter was 33.1%. This means that only 33.1% of the electricity actually used in the Taboada household was being recorded on the meter. In effect, Petitioner was not being charged for 66.9% of the energy being consumed at the household. Respondent verifies the accuracy of its watt-hour test weekly in accordance with industry standards. The watt-hour test has been sanctioned by the Florida Public Service Commission. A veri-board test was also performed on the meter. The results of that test were 20 over 8. This means that Petitioner's meter was only registering 8 kw when 20 kw was placed on the meter. The meter should have registered 20 kw. Using the weighted average registration of 33.1% from the meter test card, Respondent backbilled Petitioner's account for the 66.9% of the energy consumed that the meter was not registering. The as-billed amount was subtracted from the computer-generated rebilled amount to determine the amount to backbill. The rebilled amount was determined by a computer program which takes into account the varying franchise fees, fuel adjustment rates, taxes, and other rates in effect for each month of the rebilled period. Based upon that computer program, Respondent backbilled Petitioner for an additional 61,379 kilowatt hours consumed. Respondent's methodology for calculating rebillings is a reasonable estimate for determining the amount of energy consumed where there has been meter tampering. Petitioner's account was backbilled $5,070.51 from January, 1983, to September 30, 1986, the date on which the new meter was set. The January, 1983, date was selected because Respondent had not retained Petitioner's billing records prior to January, 1983. Since Respondent's investigation did not determine whether Petitioner physically altered the meter or whether it was altered by someone else, Respondent treated Petitioner's account as an inherited diversion. Accordingly, Respondent seeks no relief from Petitioner other than payment for the estimated electrical usage. A comparison of Petitioner's bills after the new meter was set on September 30, 1986, with past bills shows that Petitioner's electric consumption almost doubled. Since electrical usage varies throughout the year, a comparison is done by comparing the same month for consecutive years. For example, January bills are compared to January bills, and February bills are compared to other February bills. A valid comparison cannot be done by comparing November to December and December to January. In response to Petitioner's complaint that his tampered meter had been accurate but the new replacement meter was running fast, Respondent removed the replacement meter, replacing it with yet another. The replacement meter was then tested by Respondent and was determined to be 100% accurate. Although Petitioner had some gas appliances, the electrical appliances which existed in his mobile home were capable of consuming the kilowatt hours per month which were rebilled by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Respondent has correctly backbilled Petitioner in the amount of $5,070.51 for additional electricity consumed between January of 1983 and September 30, 1986. DONE and ENTERED this 22nd day of July, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 22nd day of July, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposals labeled introduction and evidence #3 have been rejected as not being supported by the weight of the evidence in this cause. Petitioner's proposal labeled evidence #1 has been rejected as not being supported by any evidence in this cause. Petitioner's proposal labeled evidence #2 has been rejected as not constituting a finding of fact but rather as constituting argument. Petitioner's proposal labeled evidence #4 has been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 1-19 and 22 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 20 and 21 have been rejected as being unnecessary for determination of the issues herein. Respondent's proposed findings of fact numbered 23 and 24 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. COPIES FURNISHED: Mr. Arturo Taboada 981 S.W. 137th Court Miami, Florida 33184 Steve Feldman, Esquire Florida Power & Light Company Post Office Box 029100 Miami, Florida 33102-9100 Robert V. Elias, Esquire Florida Public Service Commission 101 East Gaines Street Fletcher Building - Room 226 Tallahassee, Florida 32399-0863
Findings Of Fact Petitioner was incorporated on July 27, 1987. The original incorporators were Irene M. Kent and her husband, Jay Easterbrook. The original directors were Ms. Kent and Mr. Easterbrook. Ms. Kent and Mr. Easterbrook have remained the only directors of Petitioner. They are also the only shareholders. Since the formation of Petitioner, Ms. Kent has owned 51% of the shares and Mr. Easterbrook has owned 49% of the shares. Mr. Easterbrook is the president, and Ms. Kent is the vice- president of Petitioner. Petitioner is in the business of general contracting. Prior to deciding to form petitioner, Ms. Kent had been a schoolteacher for five years. She had had no prior significant experience in contracting and holds no contracting license or registration. Her educational background is in education. Mr. Easterbrook is a licensed general contractor and is qualifying agent of Petitioner. He is a civil engineer with a college degree in engineering. When Petitioner was incorporated, Mr. Easterbrook was employed full- time by National Seal Company as manager of the southeast region. A substantial portion of the work that he supervised was the installation of industrial plastic liners manufactured by National Seal Company. Petitioner's first job, which was for $20,000, was for the installation of a National Seal liner in Ellaville, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. Toward the end of the job, a welder who worked for National Seal assisted in the installation. However, Ms. Kent, not Mr. Easterbrook, performed the on-site supervision and inspections of the job, which was completed on October 26, 1987. Petitioner's second job, which was for less than $10,000, was for the installation of a National Seal liner in Bostwick, Georgia. Petitioner learned of the job through Mr. Easterbrook's contacts. The job was performed shortly after the Ellaville job. Petitioner's third job, which was for $15,000, was for the installation of a National Seal liner in Hardee County, Florida. The contract for this job, which Petitioner learned of through Mr. Easterbrook's contacts, was entered into at about the same time as the Bostwick contract. Petitioner's only other job to date was as the general contractor responsible for the construction of 14 relocatable classrooms for various public schools in Seminole County, Florida. Ms. Kent learned of this job, which was for about $300,000, through an announcement in the local newspaper. This job was completed on March 31, 1988 and earned Petitioner a profit of $40,000. Mr. Easterbrook does all of the estimating for Petitioner in the preparation of its bids for contracts and interpretation of blueprints and specifications contained in invitations for bids. Ms. Kent assists in this part of the work by pricing materials. She also hires, supervises, and pays the subcontractors; purchases materials and equipment; and performs the bookkeeping, although Petitioner also employs an independent public accountant. Mr. Easterbrook quit his job with National Seal Company effective February 16, 1988, and took another week to close his office. He has since worked exclusively for Petitioner. Prior to his departure from National seal Company, Mr. Easterbrook devoted considerable time, although often by telephone only, rendering technical assistance to his wife with respect to the above- described jobs. In February, 1988, be spent 40-50 hours a week working for Petitioner where he has been on the payroll since January or February, 1988.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application of Petitioner for certification as a minority business enterprise. DONE and RECOMMENDED this 10th day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-0355 Treatment Accorded Respondent's Proposed Findings 1-3. Adopted. 4-5. Rejected as unnecessary. 6 and 9. Adopted in substance. 7-8. Adopted. 10. Adopted, except that first sentence is rejected as legal argument and reference to licensure in eight other states is rejected as unnecessary. 11, 14 and 16. Rejected as unnecessary. 12-13, 15. Adopted. 17. Adopted, except that reference to Ms. Kent's work hours is rejected as unsupported by the greater weight of the evidence. 18-19. Adopted. 20, 24-25. Adopted in substance. 21. Rejected as legal argument. 22-23 and 26-27. Adopted. COPIES FURNISHED: Irene M. Kent Diversified Tech, Inc. 2296 Matthew Circle Deltona, Florida 32738 Deborah S. Rose, Esquire Department of General Services 452 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955 Susan Kirkland General Counsel Department of General Services 457 Larson Building Tallahassee, Florida 32399-0955
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, by terminating Petitioner for allegedly using an electronic device while operating a FedEx vehicle.
Findings Of Fact Petitioner, Preston Pamphile ("Petitioner") worked for Respondent as a driver/courier at its Tallahassee station from 2006 until his termination in May 2010. Petitioner is African- American. Respondent, Federal Express Corporation ("Respondent" or "FedEx") is an express delivery company. The Employment Complaint of Discrimination filed by Petitioner alleges discrimination based upon race/color. Specifically, the Discrimination Statement reads as follows: I am an African American. I was subjected to different terms and conditions and discharged because of my race. I worked for Fedex as a Driver. I was falsly accused of talking/texting on my cell phone while operating a company vehicle. I tried to tell my supervisor (Tony Henderson) that I was not using my phone. I offered to show him my phone bill. Mr. Henderson said “I know what I saw.” On May 6, 2010, I was terminated. However, a white employee (Robert Fitzsimmons) was reported by another employee for talking on his cell phone while operating a company (vehicle) and he was not disciplined. I believe I was terminated because of my race. In addition to the claim of race discrimination, the Petition for Relief filed with the Commission also asserts a claim of retaliation. In Petitioner's written statement accompanying the Petition for Relief, Petition explains the basis for the retaliation claim: I feel that he retaliated because when I came to work at 2:50 a.m., I saw him in the back of the building with a female employee. The same female employee I saw him in back of the building with is his employee that is under his management. And I feel that Tony Henderson is trying to protect his marriage because of me seeing him in back of the building with the female employee. FedEx's "Three-Strikes You're Out" Policy At all relevant times during his employment with Respondent, Petitioner was aware of FedEx's Acceptable Conduct Policy. Under this policy, an employee who receives any combination of three warning letters and/or performance reminder letters during a twelve-month period is subject to termination. Petitioner conceded that this policy was uniformly applied by Respondent, and Petitioner did not contend that Respondent committed any unlawful conduct in applying this policy. On February 5, 2009, Petitioner received a warning letter for failing to report traffic citations he received while operating his personal vehicle. The warning letter reminded Petitioner that "3 notifications of deficiency (i.e., any combination of warning letters and/or reminders) received within a 12-month period" would result in his termination. On September 1, 2009, Petitioner received a second warning letter for crossing a moving conveyor belt during a morning sorting operation. This letter stated: "This is your second deficiency notification within 12 months. If you receive a third notification within 12 months, regardless of the type, you will be terminated." On January 6, 2010, Petitioner received a third warning letter for failing to report a traffic citation he received while operating a FedEx vehicle. Petitioner was informed that this was his "third disciplinary letter within 12 months." Petitioner acknowledged that he could have been terminated at that point pursuant to the “Three Strikes” policy without issue. However, rather than immediately terminating his employment, Petitioner was given another opportunity by Respondent. In Petitioner's words, two managers "stuck their necks out" for Petitioner and gave him "another shot." Petitioner was clearly warned in the January 6, 2010, warning letter, however, that "If you receive another [disciplinary letter], whether a warning letter or performance reminder, within 12 months, you will be terminated." The letter went on to state that Petitioner's employment with FedEx was "precarious," and that one more warning letter or performance reminder at any time during the next 12 months would result in his termination. FedEx's Prohibition on Use of Cell Phones Respondent's Safety Manual Policy 4-5 strictly prohibits drivers/couriers from using electronic devices while operating a FedEx vehicle. Petitioner acknowledged he was fully aware of Respondent's policy about using electronic devices while operating a vehicle. Indeed, Petitioner received and signed an Electronic Devices Memorandum, authored by the district manager responsible for the Tallahassee station. The memorandum specifically lists cellular telephones as a type of electronic device that may not be used while a driver is operating a FedEx vehicle. The memorandum further provides: "If you carry a cellular phone or Nextel with you when you are on the road, you MUST keep it in the rear cargo area of your vehicle so that you are not tempted to use it while operating the vehicle," and "You are NOT to have your phone on your person while on the clock." (Emphasis in original) The memorandum also prohibits the use of "I-POD type products" and "any other device or activity that would cause distraction while operating a vehicle." The memorandum concludes with the admonition that: "Violations of this policy will be addressed by management using Policy 2-5 of The People Manual (Acceptable Conduct). Violations may result in disciplinary actions up to and including termination." The Mahan Drive Delivery On May 6, 2010, Petitioner made a delivery to the building complex at 2727 Mahan Drive in Tallahassee. Petitioner had his cell phone with him in the FedEx vehicle, and was using the phone to listen to music. Respondent's operations manager, Tony Henderson ("Henderson"), was present at the complex that morning and was parked in the parking lot. As Petitioner was pulling into the complex, Henderson personally observed Petitioner operating his cell phone while driving the FedEx vehicle. Petitioner pulled up to a building in the complex, delivered his packages, and then left the complex. Henderson attempted to follow Petitioner in his vehicle, but was unable to keep up with him. Henderson then proceeded to the Tallahassee station, where Petitioner arrived approximately one hour later. Upon his arrival at the station, Henderson confronted Petitioner and asked whether he had been using an electronic device while operating a FedEx vehicle. Petitioner responded that he was not talking or texting on his cell phone, but rather had been changing the radio station on the phone. Petitioner was thereafter placed on paid suspension pending an investigation into whether he had violated Respondent's policy by using an electronic device while operating a FedEx vehicle. Two days later, on May 8, 2010, Henderson issued a warning letter to Petitioner for violation of the policy prohibiting the use of electronic devices while operating a FedEx vehicle. This was, again, Petitioner's third warning letter within a 12 month period. Consistent with Respondent's Acceptable Conduct Policy, as well as the prior warning to Petitioner, Respondent terminated Petitioner's employment. On May 17, 2010, Petitioner wrote a statement concerning the events of May 6, 2010. In that statement, Petitioner admitted to using his cell phone to listen to music while operating a FedEx vehicle.1 Allegations of Disparate Treatment Petitioner has alleged that he was subjected to different terms and conditions because of his race, and that white employees that violated Policy 4-5 were treated less harshly than he. Petitioner cited two instances of cell phone usage by FedEx employees in support of this claim. On or about January 29, 2010, Henderson personally observed FedEx courier Dan Workman operating a FedEx vehicle. Workman is white. Judging by what he saw, Henderson believed Workman might have been engaged in a conversation on a cell phone while operating the FedEx vehicle. Henderson contacted another FedEx operations manager, Sam Karvelas, and asked him to confront Workman about using a cell phone while operating a FedEx vehicle. When confronted by Karvelas, Workman admitted that he had been talking on his cell phone while operating the vehicle. On February 1, 2010, Workman received a warning letter for using an electronic device while operating a FedEx vehicle. On October 15, 2008, Henderson personally observed FedEx courier Elizabeth Christian talking on a cell phone while operating a FedEx vehicle. Christian is white. On that same day, Christian received a warning letter for using an electronic device while operating a FedEx vehicle. At hearing, Petitioner testified that a white FedEx employee, Blake Fitzsimmons, had recounted to Petitioner that he had been observed by Henderson using a cell phone while operating his FedEx vehicle, and had not received any form of discipline. However, Henderson's testimony on this issue was that prior to Petitioner's termination from FedEx, Henderson had never personally observed Fitzsimmons using a cell phone or electronic device while operating a FedEx vehicle. On cross- examination, Petitioner admitted he had no personal knowledge of whether Henderson has ever shown preferential treatment to white employees over black employees. Basis for the Retaliation Claim Approximately three to four months before Petitioner received the warning letter for using his cell phone while operating a FedEx vehicle, Petitioner claims he saw Henderson alone with a female FedEx employee. Petitioner testified he arrived at the Tallahassee station at 3:00 a.m., and saw Henderson leaning over the driver's side door of a truck. Petitioner testified "I can't say what I saw, but I saw him -- when they saw me, they parted ways." Petitioner further testified, "Pretty much he leaned over in the driver's side door and whatever they did, if they kissed, they kissed. I'm not sure what they did, but, yes, that's what I saw at three in the morning." Petitioner told several of his friends and co-workers what he had seen but did not report the incident to anybody in management or Human Resources.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 24th day of August, 2011, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 24th day of August, 2011.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a closely held corporation owned and operated by Salvatore Studiale and his family, including his wife, Celia, their son Jack Studiale and their daughter, Caroline Greenlaw. Respondent owns and operates Tropical Acres Steak House, a restaurant located in Broward County, Florida. Respondent erected a sign in 1975 in Broward County ninety feet north of Griffin Road adjacent to I-95 that is the subject of this proceeding. In a 1976 proceeding involving the same parties to this proceeding, Petitioner cited the same sign that is the subject of these proceedings for having been erected without certain permits in violations of Sections 479.02, 470.07(1), and 479.111(2), Florida Statutes (1975). Thereafter the case was referred to the Florida Division of Administrative Hearings (DOAH) and assigned DOAH Case No. 76-473. A formal administrative hearing was held in Case No. 76- 473 by a DOAH Hearing Officer who entered a Recommended Order. The following findings of fact, taken from the Recommended Order entered in Case No. 76-473, are consistent with the evidence presented before me and are hereby adopted as my findings of fact: In July, 1975, Salvatore Studiale and his wife Celia purchased certain real estate located between Interstate Highway I-95 and Griffin Road, Fort Lauderdale, Florida. On August 1, 1975, Salvatore Studiale, President of Respondent Corporation, and his wife, leased the property to Respondent. A variance for the erection of the sign was required from Broward County and this was approved on the condition that frontage of the property be deeded to the county. This was done on December 8, 1975. The property deeded to Broward County was of a value of approximately $18,000. Subsequently, Respondent had a sign erected which read "Tropical Acres Steaks [and] Seafood 1/2 Mile". Investigation by Petitioner's representatives in the Spring of 1976 revealed that no state permit had been applied for prior to erection of the sign and that no permit tag was affixed thereto. The premises of the business establishment advertised in Respondent's sign is located at a place other than the property on which the sign was erected. In early June, 1976, Respondent changed the copy on its sign to delete the words "1/2 Mile" and substitute therefor the word "Lessee". The Hearing Officer in Case 76-473 concluded that the subject sign was exempt from Petitioner's permitting requirements: ... because Section 479.16(11)1/ excepts from the provisions of Chapter 479 "Signs or notices erected or maintained upon property giving the name of the owner, lessee or occupant of the premises". The copy on the sign that reads "Tropical Acres Steaks Seafoods" (sic) adequately reflects the name of the lessee of the property. In fact, since the alleged violation was noted, Respondent has even added the word "Lessee" to the copy on the sign. It is concluded that Respondent properly falls with the exception stated above. The Hearing Officer in Case No. 76-473 recommended that "the allegations against Respondent be dismissed". Thereafter on August 12, 1976, Petitioner entered a Final Order in Case 76-473 which found that the findings of fact and the conclusions of law contained in the Recommended Order were correct and adopted the Recommended Order as its Final Order. The site of the subject sign had been the location of a gasoline service station before the Studiales purchased the property. When the sign was erected, the site was located in unincorporated Broward County. In July 1990 the site was annexed so that at the time of the formal hearing the sign was located within an incorporated municipality. In 1978, Respondent's sign was damaged by a wind storm. With Petitioner's approval, the sign was restored. On June 13, 1991, Petitioner's investigators inspected the subject sign. At an undetermined time between 1978 and June 13, 1991, a strip was attached to the supporting posts beneath the main faces of the sign so that two additional sign faces, one facing north and the other south, were created. The message that was placed on each face of this smaller sign was "1/2 Mile West" together with directional arrows. This addition was for the purpose of directing traffic to Respondent's restaurant, which was located 1/2 mile west of the sign. The directional message on each face of the smaller sign was removed prior to the formal hearing that was held in this proceeding. No permit for the sign has been applied for by Respondent or the Studiales and no permit has been given by Petitioner. Petitioner does not charge any permit fee for a sign unless a permit has been issued. There was a dispute as to whether Respondent had been charged and had paid annual fees for the subject sign. The greater weight of the evidence establishes that in 1986 and 1987 Respondent received billings from Petitioner for the subject sign as a result of computer error and that Respondent paid those billings. It is clear, however, that the Studiales were aware that no permit had ever been issued for this sign and that they relied on the determination made in Case 76-473 that the sign was exempt from permitting. Respondent has attempted to establish that it has placed great reliance in making its business plans on Petitioner's representations and assurances that the subject sign was a legal structure. Although it is clear that the subject sign is important to Respondent's business because it serves to direct customers to the restaurant location, Petitioner's delay in challenging the legality of the sign has not prejudiced Respondent. Respondent has been benefitted by the continued existence of the subject sign. The size of the sign exceeds 10 square feet. On June 20, 1991, Petitioner issued a notice of alleged violation of Sections 479.07(1), 479.105, and 479.07(9)(a)1, Florida Statutes (1991), for the subject sign, based on its determinations that the sign was not exempt from pertinent permitting requirements, that it did not have a permit, and that it was improperly spaced.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that the status of Respondent's sign is "nonconforming" and which rejects Petitioner's contention that the sign is illegal. DONE AND ORDERED this 2 day of April, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 2 day of April, 1992.
The Issue The issue in this matter is whether Respondent, Management & Training Corporation1 (“Respondent”) subjected Petitioner, Songa Y. Clark (“Petitioner” or “Ms. Clark”), to employment discrimination. 1 Management & Training Corporation is the correct name of Petitioner’s former employer. Thus, the case style has been amended accordingly.
Findings Of Fact Pursuant to notice, on June 1, 2021, this matter was scheduled for hearing on July 19 and 20, 2021. The hearing was initially scheduled for an in-person proceeding. On July 15, 2021, the undersigned issued an Amended Notice of Hearing, with the hearing to be conducted on the same dates by Zoom teleconference. The Notice of Hearing and Amended Notice of Hearing by Zoom Conference were not only placed on the online docket, but were mailed to Petitioner at her address of record (900 Timberlane Road, Bainbridge, Georgia 39817). Furthermore, the Zoom teleconference information was emailed to the email address for Petitioner provided in her Complaint and Petition. The final hearing began on July 19, 2021, at 9:30 a.m., as scheduled, Petitioner was not present when the hearing convened. Counsel for Respondent was present and prepared to present Respondent’s case. The hearing reconvened at 10:15 a.m., but Petitioner was still not present. During preliminary matters, the undersigned considered Respondent’s two Motions to Dismiss,2 which the undersigned denied. The hearing was again recessed at approximately 10:20 a.m. and reconvened at approximately 10:25 a.m. Petitioner had not appeared at the hearing, or contacted DOAH or Respondent. The hearing was then adjourned without Petitioner making an appearance herself or through representation. The Complaint alleged that Petitioner was the subject of employment discrimination based upon religion. FCHR issued a Notice of Determination of finding: “No Reasonable Cause.” Thus, Petitioner was entitled to an administrative hearing before DOAH regarding whether Respondent subjected Petitioner to unlawful employment action. Petitioner presented no evidence in support of her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations issue a final order dismissing the petition with prejudice. DONE AND ENTERED this 27th day of July, 2021, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Lindsay Dennis Swiger, Esquire Jackson Lewis PC 501 Riverside Avenue, Suite 902 Jacksonville, Florida 32202 Christina Pignatelli 500 North Marketplace Drive Centerville, Utah 84014 Songa Y. Clark 900 Timberlane Road Bainbridge, Georgia 39817 Katherine B. Brezinski, Esquire Jackson Lewis P.C. 501 Riverside Avenue, Suite 902 Jacksonville, Florida 32202 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
