Findings Of Fact KTT was incorporated in January, 1987, with F. Kay McDougald owning 90 percent of the issued stock and her daughter, Tracy McDougald, owning 10 percent of the issued stock. F. Kay McDougald is president, treasurer, and one director of the Corporation, and Tracy McDougald is secretary and the second of two directors. Paid in capital was $500. At the time KTT was incorporated, F. Kay McDougald held one-third of the outstanding stock in Florida Transport Services (FTS) with the balance of the shares held by her husband. The land upon which FTS has its office and keeps its equipment is owned by the McDougalds jointly. FTS pays monthly rent to the McDougalds. Upon the incorporation of KTT, the latter shared the space with FTS and paid monthly rent to the McDougalds. Since the incorporation of FTS, circa 1974, F. Kay McDougald has worked in the company with her husband. She has generally functioned as office manager, bookkeeper and in charge of all clerical-type functions. In addition, she performed operational functions by dispatching vehicles and making any and all operational decisions during the absence of her husband. By experience, she is fully qualified to operate KTT as an independent business. Since becoming incorporated, KTT has purchased one tractor-trailer, and has obtained lease operator agreements with the owner-drivers of eight vehicles, of which three are miniwheelers, four are tractor trailers, and one a tandem truck. All of these vehicles are capable of, and are used primarily for, hauling road aggregates. In continuing operations during 1987 to date of hearing, the net worth of KTT has increased to approximately $20,000. As a subchapter S corporation, the income of KTT is taxable to the owners. FTS also operates vehicles used in hauling road aggregates; however, most of FTS equipment is tractor trailers. Since KTT began operations, FTS has leased equipment to and from KTT. Due to many years working closely with competitors Mac Asphalt Company and Trans Phos, FTS and Kay McDougald developed a cooperative relationship with those companies, and KTT has been able to lease equipment from those companies when needed. No evidence was presented that Mr. McDougald exercises any control over, or has any interest in, the operation of KTT other than a spousal interest in his wife succeeding in the business. Some three years ago two or more contractors approached Mrs. McDougald to suggest that she form a corporation, obtain minority business certification, and bid to subcontract on DOT road building contracts for the hauling of road aggregates. After considering the concept for about two years, Mrs. McDougald formed KTT and initiated the application for certification here being considered.
The Issue The issues in this case are whether Respondent failed to provide workers' compensation coverage, and, if so, what penalty should be imposed.
Findings Of Fact Abash is a Florida corporation engaged in the business of demolition. James McCarthy (Mr. McCarthy) is the president and only officer of Abash. The Department received a call from the City of Fort Myers that Abash was doing demolition work at the location of a former Publix on Cleveland Avenue in Fort Myers, Florida, and that it was believed that Abash did not have workers' compensation coverage. Carol Porter, the supervisor for District 7 of the Department, assigned Jack Gumph (Mr. Gumph), a compliance investigator for the Department, to investigate the matter. On September 10, 2010, Mr. Gumph went to 3255 South Cleveland Avenue, where the former Publix was located. On arriving at 9:55 a.m., he saw a large truck at the site with the name Abash on its side. He went inside the structure and observed two Abash employees at work with a lift truck. One employee, Vincent Canzone (Mr. Canzone), was taking down light fixtures, and another employee, Dan Myers (Mr. Myers), was operating the truck. Mr. Gumph consulted the Coverage and Compliance Automated System (CCAS) to determine if Abash had workers' compensation coverage. The database showed that Abash had had workers' compensation coverage effective June 2, 2010, but that coverage had been cancelled September 7, 2010. Mr. Gumph checked the Department of State records and learned that Mr. McCarthy was the sole officer and director of Abash. Mr. Gumph again checked CCAS and learned that there was no exemption from coverage for Mr. McCarthy.2/ Mr. Gumph checked the database for the National Council of Compensation Coverage and learned that Abash had had workers' compensation coverage with National Union Fire Insurance Company of Pittsburg, Pa. (National Union Fire), but that the coverage had been cancelled September 7, 2010. Mr. McCarthy had received a notice of cancellation from National Union Fire, but he thought that they would give Abash a grace period and allow Abash to pay for back-coverage as long as Abash did not have any claims for the period in which there was no coverage in place. He was looking into alternative methods of coverage, including using a payroll service. Mr. McCarthy conceded at the final hearing that if an employee had been injured during the non-covered period that National Union Fire would not have honored the claim. Abash did enter into an employee leasing contract with Southeast Personnel Leasing on September 10, 2010; however, no evidence was presented establishing the time of day that Abash entered into the employee leasing contract, and the contract with the employee leasing company does not specify the time of day when Abash entered into the contract. The list of employees covered by the employee leasing contract does not include Mr. Myers, who was working for Abash when Mr. Gumph visited the work site. Mr. Gumph issued a Stop-Work Order and posted it on the job site the day that he visited the site. He called Abash and spoke with a secretary who advised that Mr. McCarthy was not in the office. Mr. Gumph mailed a copy of the Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation to Abash on September 10, 2010. Abash received the documents on September 14, 2010. Abash produced copies of its businesses records to the Department. Lynne Murcia (Ms. Murcia), a penalty calculator for the Department, calculated the penalty assessment based on Abash's business records. She reviewed Abash's records for the past three years and determined that the period in which there was no workers' compensation coverage was September 7 to September 10, 2010. Abash's financial records did not reveal that Mr. Canzone and Mr. Myers had been employees for Abash other than the day that Mr. Gumph visited the job site. The financial records identified seven other employees during the period of non-coverage, but there were no transactions listed for these employees for September 10, 2010. Ms. Murcia assigned a class code to each employee based on the type of work they did. The class codes are specified in the Florida Contracting Classification Premium Adjustment Program, which is published in the Florida exception pages of the National Council on Compensation Insurance, Inc. (NCCI), Basic Manual (October 2005 ed.). For seven employees, Ms. Murcia assigned a class code of 5445, which is for the installation of wallboard within buildings. Although the work was demolition of wallboards, the same class code applies. For two employees, a class code of 8742 was assigned. This class code deals with outside sales. One employee was assigned class code 5221, which deals with concrete work. Mr. McCarthy agreed at the final hearing that the class codes assigned were appropriate. The gross payroll is determined for each employee and divided by 100.3/ The resulting quotient is multiplied by the approved minimum rate for the class code to determine the premium that should have been paid for coverage. Ms. Murcia listed the premium that should have been paid for the non-covered period for all Abash employees, which was $170.48. The premium was multiplied by 1.5 to determine the penalty assessment for each employee, which Ms. Murcia determined was $255.75; however, section 440.107(7)(d)1. provides that the minimum penalty that can be assessed is $1,000.00. Because the employee leasing contract provided coverage for Mr. Canzone on September 10, 2010, the penalty calculation should exclude Mr. Canzone. There was no coverage for Mr. Myers on September 10, 2010. The penalty assessment for Mr. Myers and Mr. Canzone was $16.88 each. The penalty assessments based on the remaining employees were for days other than September 10, 2010. Excluding Mr. Canzone from the penalty assessment results in a penalty assessment of $238.87. However, the statutory minimum assessment is $1,000.00. On September 15, 2010, Mr. McCarthy went to District 7's office, where he was personally served with the Stop-Work Order, and an Amended Order of Penalty Assessment, assessing the penalty at $1,000.00 Mr. McCarthy paid the penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Abash failed to secure workers' compensation coverage and assessing a penalty of $1,000.00, which has been paid by Abash. DONE AND ENTERED this 22nd day of July, 2011, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 22nd day of July, 2011.
Findings Of Fact At all times pertinent to the allegations contained herein, the Petitioner, Department, was the state agency responsible for the regulation of the sale and operation of time-share condominiums in Florida. The Respondent, Association, is a successor owner organization made up of owners of time- shareperiods in the complex, Sarasota Sands, located in Sarasota, Florida. Joseph T. Aube is President of the Association and has held that office since 1986. He has been an owner at Sarasota Sands since 1981. At that time, the complex was controlled by the initial developer. The complex was sold out prior to 1982, but the initial developers still maintained control of the Association Board with the individual owners being a minority representation. In 1982, however, the initial developer turned over to the period owners control of the Association. When Mr. Aube became President of the Association, he asked the management company then holding the contract with the Association for the records developed by the initial developer which pertained to the Association, but the manager was able to come up with nothing. He was told at the time that the Board was not to be bothered with management but to satisfy itself with being mere figureheads, leaving management up to the initial developers and the management company they had hired. Notwithstanding, when Mr. Aube took over as President, he was under the impression that the initial developers owned only their own units as individuals and that the balance of the units had been sold out to investors. There was, then, no sales force on the premises. Though turnover was to have taken place at the June, 1982 meeting of the Board, the management company hired by the original developers continued to manage the Association's business until it was discharged by Mr. Aube when hetook over as President in 1986. After the first management company was dismissed, the Association became the management entity and remains so to this date, operating through a manager hired by and responsible to it. The 18 units in issue came into the possession of the Association as a result of foreclosure. On foreclosure, the units belong to the Association as a whole, and when they are resold, the Association gets the proceeds of the sale. Most of the units in issue had been owned by the initial developer which held mortgages on them. When Mr. Aube signed the contracts and deeds for resale, he signed as President of the Association as seller. The By-Laws of the Association call for the President to sign any documents which pertain to the business of the Association. The deeds in question refer to units which were sold by a licensed broker with whom the Association contracted to procure buyers and to whom a commission for each sale was paid by the Association. No escrow agreement was filed with the Division because the Association did not receive any of the deposit or other money pending closing. The deposits were held by the independent broker who handled the sale. The Association has never taken title to any units other than by foreclosure and it has never solicited or sold time-share units other than those which came into its possession through foreclosure. In addition, the Association did not file any documents with the Bureau of Time-Share that are required by developers prior to offering and selling time-share periods, nordid it provide a public offering statement, approved by the Division, to any of the 18 purchasers who contracted to purchase these 18 units through the independent broker. The contract forms used by Ms. Shenko for these sales did not include the language required for inclusion in time-share sales contracts by Section 721.06, Florida Statutes. Further, with respect to these sales, the Association failed to establish an escrow account for the deposit of any funds received from the purchasers of those periods sold through the broker. Since no escrow agreement was established, none was furnished to the Division for approval. On or about January 17, 1989, Wendy S. Holcomb, the Association's manager for the complex, prepared a check drawn on the Association's account with the First Florida Bank, in the amount of $126,719.95, payable to Barbara Ford-Coates, Tax Collector of Sarasota County. The check, which was signed by Mr. Aube and Ms. Holcomb, was payment in full of the entire amount due for ad valorem real estate taxes for 1988 on the Sarasota Sands Complex. This fund did not come from a tax escrow account. The Association does not maintain such an account, agreement or bond. It was paid from the operating account of the Association since there was sufficient funds therein to pay the taxes without first receiving the tax payments due from individual owners. Tax notices were sent to the owners in January, 1989 for the 1988 taxes, and the money was due from the owners by January 31. When it came in, the money was not placed into an escrow account but was used to reimburse the operating accountsince that account had advanced the funds to pay the taxes prior to the date they were due. This practice is still followed. In essence, Ms. Holcomb admittedly never holds any money which she received from the individual owners for taxes in escrow. Deposit money received from purchasers is held by the broker, not by the Association. Proceeds from sales are received only after closing and are used to reimburse the Association for money spent. No money utilized by the Association comes from any deposit money. The Association never even sees any deposit money except that which is forfeited by prospective purchasers and which is then released to it as liquidated damages under the terms of the purchase contract. Therefore, the Association did not have an independent escrow agent and received no funds from time share purchasers which had to go into an escrow account. So long as Ms. Holcomb has been an employee of the Association, since 1985, the Association has never solicited units for sale and has sold only those it has received through foreclosure. With regard to the current allegations, as manager of the Association, Ms. Holcomb claims she was contacted by the Department by mail in either March or April, 1991 and was furnished the Notice to Show Cause. Prior to receiving that document, however, she had had no contact from the Department regarding any allegations of misconduct. There was a prior visit by a Ms. Clark from the Department who asked for books and records but she claimed she was there only to review the operation. She made no referenceto specifics of the allegations involved here, and Ms. Holcomb interpreted her visit as a routine inspection and asked no questions. Ann Marie Shenko, a licensed real estate broker, who maintains her office in one of the units in the complex, arranged the sale of the 18 units in issue here. She drew up the contracts and prepared a few of the deeds. Most deeds, however, were prepared by a title company as is routine in the conveyance of residential real estate. Ms. Shenko did no outside advertising for Sarasota Sands. She makes all sales by referral from others. When she gets a deposit on a unit, she places it into her trust account with the Southeast Bank. The Association is not a party to that account. Any proceeds received from a consummated sale are ultimately disbursed by the title company which handles the closing. In March, 1989, Ms. Shenko received a letter from Mr. and Mrs Terry Estepp in which they requested the refund of the $560.00 deposit they had placed with her for the purchase of a time unit at Sarasota Sands. Ms. Shenko had determined to forfeit the deposit and sought the advice of the Real Estate Commission because the Estepps had failed to respond timely to several pieces of correspondence she had sent them about the property. When they finally decided not to go through with the sale and requested a refund of their deposit, she refused to return it until, after advice from the Real Estate Commission, she agreed to do so and wrote a check for the sum in question on her own business account. At no time was the Association involved in this transaction. Of the 18 contracts and deeds in issue, no one other than the Estepps requested a refund of their deposit. She claims never to have been contacted by the Department regarding how she conducts her business and feels the operation is routine. Of the 18 units in issue, all were acquired by foreclosure and none goes back unsold to initial construction. Eleven of the 18 purchasers were already owners at Sarasota Sands; 6 were RCI exchanges, (owners at other similar and related resorts); and 1 was the renter of an existing unit, (the Estepps). All had had some contact with time-shares and so far as she knows, the Estepps are still interested in purchasing a time-share period at Sarasota Sands. Ms. Shenko has a trust account as a part of her real estate business. It is not an escrow account. She has never sent an escrow agreement, reflecting she had such an account, to the Department. When she gets a time-share customer, she takes a deposit which goes into that trust account. The contract for purchase is then forwarded to a title company for closing. Upon payment in full at closing, the seller is paid and she gets her commission. The buyer gets title to the unit purchased. She is not instructed by the Association regarding the disbursement of sales proceeds and gets no compensation from the Association except a commission on the sales of units owned by it - only the 18 in issue here. Though Ms. Shenko maintains her primary businessoffice in the Sarasota Sands complex, she pays no rent or utility cost - only phone. She receives no salary or guarantee from the Association and has been compensated by the Association solely through the commissions she receives on those few sales for it. She does receive commissions from unit owners when she sells their units to someone else, just as any real estate agent would. The majority of her business is in transfers of units within the Sarasota Sands complex. As to the two previous Consent Orders involving the Association, involved neither the sale nor resale of units by the Association. In one case the Association paid a small fine for alleged irregularities relating to the dismissal of the former management company. In a ratification vote take subsequent to the discharge, 90% of the owners approved the Association's action of dismissal. The other prior action relates to an ad valorem tax account and again, while the Association was chastised and fined for failure to maintain an escrow account, there was no indication the taxes were not paid when due. In neither case were the actions the result of intentional disobedience of statutes or the Department's rules. In fact, in the Spring of 1989, after reading an article about successive developers, Mr. Aube had the Association's representative contact the Department for clarification and got no answer. Though counsel contacted the Department by letter, at no time, either directly or through counsel, did the Association receive any guidance from the Department. As a result it acted on advice of counsel.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Notice to Show Cause in this case be dismissed. RECOMMENDED in Tallahassee, Florida this 15th day of October, 1991. ARNOLD H. POLLOCK 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 15th day of October, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3652 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. & 3. Accepted and incorporated herein. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Accepted to the extent that Respondent did not file any documents with the Bureau of Time-share. Rejected that the requirement for filing pertained to Respondent. - 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. - 6. Accepted and incorporated herein. Accepted. Not a Finding of Fact but a Conclusion of Law. Accepted and incorporated herein. COPIES FURNISHED: Mark Henderson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007 Daniel E. Scott, Esquire 2710 Main Street Sarasota, Florida 34237 Janet E. Ferris Secretary Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1000 Henry M. Solares Director Division of Florida Land Sales, Condominiums, and Mobile Homes 725 South Bronough Street Tallahassee, Florida 32399-1007 Donald D. Conn General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32399-1007
The Issue Whether Respondent violated Section 112.313(6), Florida Statutes, and if so, what penalty should be recommended.
Findings Of Fact Respondent, Nancy J. Sands (Sands), served as the Welaka Town Clerk from May 28, 1993, until December 8, 1994. Welaka is a small town covering approximately one and one quarter square miles. The population is 560. While Sands was town clerk, it was not uncommon for local businesses to buy paper from the town if they ran out and needed paper immediately. Nor was it uncommon for employees of the town to make photocopies of documents for Welaka residents free of charge. The town council later voted to start charging residents for photocopies. Sands is friends with Grace Evans, a resident of Welaka, Florida. In September, 1994, Ms. Evans was at the Welaka Town Hall and saw Sands using a vacuum cleaner. Ms. Evans liked the vacuum cleaner and asked Sands where she had gotten it. Sands showed Ms. Evans a catalog from which Sands had ordered the vacuum cleaner for the town. Ms. Evans asked Sands if she could order her one. Sands agreed to place an order for Ms. Evans. There was no discussion concerning sales tax. Nor was there any thought given by either Ms. Evans or Sands concerning the payment of sales tax on the purchase of the vacuum cleaner. Based on the evidence, it is clear that neither Ms. Evans nor Sands intended to purchase the vacuum cleaner using the town's account number in order to avoid the payment of sales tax. On September 27, 1994, Sands ordered a vacuum cleaner and some accessories from the Wholesale Supply Company in Nashville, Tennessee, using the Town of Welaka's account number. The order was placed during Sands' working hours as the town clerk. Sands advised the Wholesale Supply Company that Grace Evans was the customer for whom the vacuum was being purchased because the invoice which the Wholesale Supply Company sent to the Town of Welaka stated that the customer was Grace Evans. The total price of the merchandise Sands ordered for Ms. Evans was $109.70 plus shipping and handling charges of $5.59. When Sands received the invoice, she wrote "Do not pay already mailed in" on the front of the invoice, indicating that the invoice was not to be paid by the town. The items were purchased at full price and Ms. Evans paid for the items. Ms. Evans did not pay any Florida sales tax on her vacuum cleaner purchase.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondent, Nancy Sands, did not violate Section 112.313(6), Florida Statutes, and dismissing the Complaint against her. DONE AND ENTERED this 18th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1998. COPIES FURNISHED: Bonnie Williams Executive Director Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool General Counsel Commission on Ethics Post office Drawer 15709 Tallahassee, Florida 32317-5709 Kerrie J. Stillman Complaint Coordinator Commission on Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James L. Padgett, Esquire Padgett and Morris 10 Central Avenue Crescent City, Florida 32112
The Issue The issue is whether the Petitioner is qualified for designation and certification as a minority business enterprise.
Findings Of Fact At the hearing, it became apparent that the reasons for denial were principally lack of independence and affiliation with a non-qualifying company. The parties stipulated to the following: Ms. Wendy Stephens, President and Secretary of WPS and sole stockholder WPS, possess the authority to, and does in fact, exercise complete control over the management, daily operations and corporate affairs of WPS. Ms. Stephens possesses the technical capability, managerial qualifications and expertise to operate WPS. The following facts were proven at hearing: Ms. Stephens is a white, female and is qualified as a minority person under the statute. In 1991, Charles Perry, Ms. Stephen's father and a white male, provided $7,000 for start up capital and a lease of 3 acres on his farm to house Alachua Greenery, a wholesale/retail nursery which Wendy Stephens began with assistance from Perry. Ms. Stephens has never made payments on the aforementioned lease. Charles Perry and Wendy Stephens were the sole stockholders in Alachua Greenery, each holding 50 percent of the shares in the corporation. Perry has contributed nothing more to the operation of the corporation, and has never exercised any control over the corporation, although he was initially a director. WPS is a Florida corporation, domiciled and doing business in the state. WPS is worth less than $3,000,000 and has three employees. Ms. Stephens is and always has been the sole stockholder of WPS, and has served as its President and Secretary since its incorporation. Ms. Stephens husband, Gary Stephens, was once a director of WPS upon the advice of counsel; however, he exercised no control over the corporation and resigned as a director on April 12, 1996. Gary Stephens sold a Bobcat tractor to Wendy Stephens upon which he has deferred payments. This Bobcat is used by WPS and Alachua Greenery. Gary Stephens has no other financial or other interest in WPS or Alachua Greenery. WPS was formed for the purpose of engaging in the retail landscaping business, which is a logical business expansion from the wholesale nursery business. WPS has engaged in the retail landscaping business for several customers. WPS shares equipment, land, vehicles, and employees with Alachua Greenery. There is no evidence that WPS, which has performed a number of contracts, has been a conduit of money to Alachua Greenery. On May 13, 1996, Perry gifted his share of Alachua Greenery to Wendy Stephens.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's application for minority business status be denied. DONE AND ENTERED this 27th day of June, 1996, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-0023 Both parties submitted proposed findings which were read and considered. The following states which of those findings were adopted, and which were rejected and why. References to numbered paragraphs in Petitioner's findings includes all letter subparagraphs unless otherwise noted. PETITIONER'S RECOMMENDED ORDER Paragraphs 1,2 Statement of Case Paragraph 3 Irrelevant Paragraphs 4-6 Statement of Case Paragraph 7a Paragraph 9 Paragraph 7b Subsumed in Paragraph 6 Paragraph 7c Subsumed in Paragraphs 6 & 8 Paragraph 7d Contrary to best evidence Paragraph 7e Irrelevant Paragraph 7f Subsumed in Paragraph 9 Paragraph 7g Irrelevant Paragraphs 7h,i Paragraph 7 Paragraphs 7j,k,l Subsumed in Paragraph 8 Paragraphs 7m,n,o,p Paragraph 4 Paragraph 7q Subsumed in Paragraph 12 Paragraph 7r Paragraph 11 Paragraphs 7s,t Irrelevant RESPONDENT'S RECOMMENDED ORDER Paragraph 1,2 Subsumed in Paragraph 8 Paragraph 3 Subsumed in Paragraph 10 Paragraph 4 Paragraph 4 Paragraph 5 Subsumed in Paragraph 10 Paragraph 6 Not necessary Paragraph 7,8 Paragraph 12 Paragraph 9 Not necessary COPIES FURNISHED: David L. Worthy, Esquire Peter A. Robertson and Associates 4128 Northwest 13th Street Gainesville, Florida 32609 Joseph L. Shields, Esquire Commission on Minority Economic and Business Development 107 West Gaines Street, Suite 201 Tallahassee, Florida 32399-2005 Veronica Anderson, Executive Administrator Commission on Minority Economic and Business Development Collins Building, Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner when her employment assignment with Respondent was terminated in November 2004.
Findings Of Fact Petitioner is a 48-year-old African-American female. On or about September 10, 2004, Petitioner was placed with AT&T Wireless as a customer service specialist by a staffing agency, AppleOne. Petitioner's job duties as a customer service specialist included answering phone calls from AT&T Wireless' customers about their bills and assisting them with problems that they were having with their accounts. For the most part, Petitioner received positive feedback regarding her job performance as a customer service specialist. That feedback, which is reflected on the Advisor Evaluation Detail forms received into evidence as Exhibit P7, came from her supervisors as well as from quality assurance specialists. Petitioner testified that she generally got along well with her co-workers,2 but that she preferred getting assistance and taking instruction from men rather than women. After AT&T Wireless was taken over by Cingular, Petitioner and the other customer service specialists working for AT&T Wireless were required to attend a two-week training class regarding Cingular’s policies and procedures. The training class attended by Petitioner was also attended by her supervisor, Wendy Miller. Ms. Miller is a white female. On the first day of the class, Petitioner was having trouble logging into the computer system that was being used in the training class. Ms. Miller, who was sitting directly behind Petitioner, attempted to ask Petitioner a question about the problems that she was having and/or provide her assistance, but Petitioner simply ignored Ms. Miller. According to Petitioner, she ignored Ms. Miller because she was trying to pay attention to the teacher. As a result of this incident, Ms. Miller sent an e-mail to AppleOne dated November 30, 2004, which stated in pertinent part: It has been decided by Sandy Camp and myself to end [Petitioner’s] temporary assignment due to insubordination. She has been coached on her attitude for which she is not receptive to and several other people have mentioned that they do not want to help her due to her not wanting to listen. The last incident was today during our CSE class where she demonstrated insubordination and disrespect to me. In a later e-mail, dated March 7, 2005, Ms. Miller described the incident in the training class as follows: [Petitioner] was one of the reps not able to get into [the computer] system so I was attempting to assist her because she was sitting directly in front of me. I attempted to ask her a question and she turned her back to me & put up her hand as to say “don’t speak to me” and she completely ignored me even as I kept speaking to her. . . . . The descriptions of the incident in Ms. Miller’s e- mails are materially the same as Petitioner’s description of the incident in her testimony at the hearing. On the evening of November 30, 2004, Petitioner was called by someone at AppleOne and told that her assignment with Cingular had been terminated. Petitioner was paid by AppleOne during her entire tenure with AT&T Wireless and Cingular. Petitioner’s salary while she was working at AT&T Wireless and Cingular remained constant at $10 per hour. Petitioner’s entire tenure with AT&T Wireless and Cingular was approximately two months. Petitioner testified that she did not receive any other assignments through AppleOne after her assignment with Cingular was terminated. She attributed her inability to get other assignments through AppleOne to the fact that AppleOne "sided with" Cingular, who was its client, but there is insufficient evidence to make such a finding. In January 2005, Petitioner filed separate charges of discrimination with the Commission against AppleOne and Cingular. According to Petitioner, she was paid $400 by AppleOne to settle her claim against that company. Petitioner testified that she sold vacation plans and did other “odd jobs” between November 2004 and mid-February 2005 when she was hired by Sears as a home delivery specialist. Her job duties in that position include contacting customers to coordinate the delivery of appliances purchased from Sears. Petitioner testified that her initial salary with Sears was $9 per hour and that as of the date of the hearing her salary was $10 per hour. Petitioner testified that other customer service specialists had “problems” or “personality conflicts” with Ms. Miller, but she was unable to identify any other employee (of any race or age) who was similarly insubordinate or disrespectful towards Ms. Miller (or any other supervisor) and who received discipline less severe than termination. Petitioner’s actions toward Ms. Miller during the training class were disrespectful, at a minimum. Petitioner testified that Ms. Miller acted like a white supremacist, but there is no credible evidence in the record to support that claim. Petitioner also testified that AT&T Wireless and Cingular did not have any permanent customer service specialists that were as old as she, but there is no credible evidence in the record to support that claim. Petitioner presented no credible evidence regarding the race, age, or other characteristics of the person who filled her position at Cingular after her assignment was terminated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Cingular. DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 25th day of October, 2005.
The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 13th day of September, 2005.
The Issue Whether Petitioner's application for certification as a minority business enterprise should be granted.
Findings Of Fact Virginia Valletti, an American woman, within the meaning of Section 288.703, Florida Statutes, holds 75 percent of the stock of Petitioner, Commercial Air Tech, Inc., (Commercial Air). Sam Valletti, the husband of Virginia Valletti, owns 15 percent of the stock of Commercial Air, and the two daughters of the Valetti's each owns five percent of the stock of the business. Sam Valletti is not a minority person as defined in Section 288.703, Florida Statutes. Article II, Section 1 of the bylaws of Commercial Air provides that "All Corporate powers shall be exercised by or under the authority of, and the business affairs of the corporation shall be managed under the direction of, the Board of Directors." The bylaws state that the corporation shall have two directors. Those directors are Virginia and Sam Valletti. Article III, Section 2 of the bylaws of Commercial Air sets out the duties of the President of the company as follows: The President shall be the chief executive officer of the corporation, shall have general and active management of the business and affairs of the corporation subject to the directions of the Board of Directors, and shall preside at all meetings of the shareholders and Board of Directors. Commercial Air provides heating, ventilation, and air conditioning (HVAC) services and is required by Florida statutes to be qualified by a licensed contractor. Sam Valletti holds the contractor's license which qualifies Commercial Air. Virginia Valletti testified that she does not believe that she could pass the contractor's test to become the qualifying agent for the company. Sam Valletti is authorized to sign checks on the account of Commercial Air, but Virginia Valletti signs the majority of the checks for the business. Sam Valletti signed the business lease for Commercial Air. Sam Valletti or a male employee, signs the contracts on behalf of the business. According to Virginia Valletti, the two men sign the contracts for appearance sake because the HVAC business is a male-dominated industry. According to the application submitted to the Respondent, Department of Labor and Employment Security, Minority Business Advocacy and Assistance Office (Department), Virginia Valletti's major responsibilities in the business are as follows: Open and close office Monday through Friday Transact all accounts receivables and payables Answer customer calls and inquiry's [sic] all on customers to insure their needs are being met Dispatch technicians to job sites Compose all company forms and form letters and contract forms Track job costs Analyze profit & loss statement, balance sheet and other financial reports Oversee office personnel - hire, review (all personnel) and fire (office only) Shop and purchase all insurance (workman's comp., liability, bond, etc) Figure payroll and all associated taxes Negotiate credit lines and loans Track truck maintenance and inventory Place orders with vendors and track shipments to job sites The application submitted to the Department lists Sam Valletti's major responsibilities as follows: Estimates jobs in construction and service Troubleshoots equipment problems with technicians Recommends and designs new installations with property managers and owners Keeps up to date on So. Florida code changes, labor laws, and union regulations Finds new resources and seeks out leading edge technological advances Customer liaison for technical questions Hires, reviews, and fires service personnel Purchases company vehicles Sam Valletti receives approximately $16,000 per quarter in wages from Commercial Air, and Virginia Valletti receives approximately $3,000 in wages.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Commercial Air, Tech Inc.'s request for certification as a minority business enterprise. DONE AND ENTERED this 28th day of April, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1998. COPIES FURNISHED: Joseph L. Shields, Esquire Florida Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edmond L. Sugar, Esquire 950 South Federal Highway Hollywood, Florida 33020 Douglas L. Jamerson, Secretary Department of Labor and Employment Security Suite 303, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
Findings Of Fact Petitioner Haul-It, Inc., is a trucking company in the business of hauling road building materials. It owns 19 trucks and 13 trailers worth about $106,000; and owes between $75,000 and $79,000 to a bank. Occasionally petitioner engages additional trucks and drivers. All but eight of its 15 or 16 employees are truck drivers. Haul-It, Inc., was organized in 1973. Jack Taylor and his father started the business but later sold out to Hubert E. Real, the president, half- owner and operator of Columbia Paving, and Wiley Jinwright, a 24-year employee of Columbia Paving. Mr. Jinwright became president of Haul-It, Inc., and Jack Taylor stayed on as truck foreman. Messrs. Real and Jinwright each owned 20 shares of stock, representing half interest in petitioner. Columbia Paving itself has never held any of the 40 shares of stock that petitioner has issued. In November of 1980, Mr. Real conveyed all 20 of his shares to his wife, Helen Real; and Mr. Jinwright conveyed one share to Mrs. Real. Both transfers of stock to Mrs. Real were gratuitous. She knew at the time that her ownership might help Haul-It, Inc., qualify as a minority business enterprise. In addition, Mr. Real "had had a couple of heart attacks" (T. 14) and Mrs. Real "thought it would be nice to have a related [to Columbia Paving] business." (T. 14.) The evidence did not reveal whether Mr. Real has spent more, less, or the same amount of time with petitioner's affairs since his divestiture as before. Mr. Real remains active as president of Columbia Paving. From November of 1980 to the time of hearing, Mrs. Real has owned 52.5 percent of petitioner's stock and Mr. Jinwright has owned 47.5 percent. Petitioner's only offices are housed in a trailer located on land owned by Columbia Paving. Haul-It, Inc., pays Columbia Paving rent for the land on which its office trailer, trucks, and other equipment are parked. At the time of the hearing, between 70 and 80 percent of Haul-It, Inc.'s work was being performed under contract to Columbia Paving. As far as the evidence showed, petitioner has always performed most of its services under contract to Columbia Paving. Although it has had other customers, Columbia Paving is petitioner's only regular customer. (T. 27.) Petitioner uses Columbia Paving's computer to keep its books and shares a bookkeeper with Columbia Paving. Each company pays the bookkeeper a separate salary. Mrs. Real sits on Columbia Paving's board of directors. Neither Columbia Paving nor any other entity uses petitioner's hauling equipment unless it has contracted to do so. When Haul-It, Inc., "bid[s] through Columbia Paving" (T. 39) in response to invitations by the Department of Transportation, Columbia Paving personnel check the bid over to make sure that it "fits whatever plan or whatever estimates they feel are in order." (T. 40.) Soon after she became owner of a majority of petitioner's Stock, Mrs. Real became petitioner's vice-president, secretary, and treasurer, even though she had had no prior experience in the trucking business. Mr. Jinwright remains president of Haul-It, Inc. It was also in November of 1980 that Haul-It, Inc., applied for certification as a minority business enterprise. At that time and for some months afterward, Mrs. Real was not working for Haul-It, Inc., on any regular schedule. On the basis of the information petitioner furnished with its application, respondent, in November of 1980, "certified them for 12 months, on the condition that an on-site review would be conducted and at that time the decision would be made as to the ownership and control and whether this minority business enterprise should be continued as certified." (T. 61.) In April of 1981, respondent's Mr. Nath conducted an on-site review. At that time, Mr. Nath requested additional documents which petitioner eventually mailed to respondent. In September of 1981, respondent for the first time communicated to Haul-It, Inc., its intention to disqualify petitioner as a minority business enterprise. After receiving this news, Mrs. Real began going to work for petitioner daily. She has an office in the trailer that she shares with Mr. Jinwright, whose role in Haul-It, Inc., was reduced to cosigning checks when Mrs. Real began working full time. Most of Mr. Jinwright's time is now spent as Superintendent of Columbia Paving's four asphalt plants. Even so, he still draws a salary from Haul-It, Inc., equal to Mrs. Real's salary. Despite their respective titles, both Mr. Jinwright and Mrs. Real act on the assumption that she, rather than he, has ultimate authority in the conduct of Haul-It, Inc.'s business. Mrs. Real has full authority to hire and fire, authority which she has delegated, in the case of the truck drivers, to Jack Taylor. She has the final say on all questions of policy and operations that arise in the business. Haul-It, Inc., cannot borrow money or make expenditures without her permission. Jack Taylor and two other employees buy for Haul-It, Inc., but she cosigns all checks with Mr. Jinwright. She has not learned how to prepare a written bid for the Department of Transportation, although she is involved with bidding. Mrs. Real relies heavily on Jack Taylor's bidding expertise, as have petitioner's other owners. Petitioner's proposed findings of fact and conclusions of law and respondent's proposed findings of fact, conclusions of law, and recommendation reflect the good work done in this case by counsel on both sides. To the limited extent proposed findings have not been adopted, they have been deemed immaterial or unsupported by the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny Haul-It, Inc., certification as a minority business enterprise. DONE AND ENTERED this 3rd day of March, 1982, in Tallahassee, Florida. ROBERT T. BENTON, II 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 3rd day of March, 1982. COPIES FURNISHED: Patrick E. Hurley, Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Vernon L. Whittier, Jr., Esquire Ella Jane P. Davis, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Paul A. Pappas, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301
The Issue Whether Petitioner was the subject of an unlawful employment practice as defined in Chapter 760, Florida Statutes.
Findings Of Fact On April 10, 1989, Petitioner, Mark Cleveland, a male, applied through Job Service of Florida, for employment as a telemarketer with Respondent, Sears Roebuck and Company at the Sears store located in Pensacola, Florida. Petitioner had several years of sales experience with at least six months of experience in telemarketing. He also had a good speaking voice as evidenced by the fact that he is currently employed as a disc jockey at a local radio station. Clearly, Respondent was qualified for the telemarketing position. The telemarketer position would enable Petitioner to earn approximately $85.00 a week or $365.50 a month. The telemarketing section at the Pensacola Sears store consisted of virtually all women with perhaps three or four rare male telemarketers. Petitioner had two separate interviews with two different Sears employees responsible for filling the telemarketing positions. During the Petitioner's interviews with the two Sears employees, Petitioner was repeatedly questioned on whether he could work with all women or mostly all women and be supervised by women. Petitioner assured his interviewers that he could since he grew up with six sisters and in general liked working with women. Petitioner left the interview with the information that he would be hired after another supervisor reviewed the applications and that he would be called once the supervisor's review was complete. After several days, Petitioner, being excited about what he thought was going to be his new job, called one of the two women who interviewed him. He was informed that the telemarketing positions had been filled. Later that same day Petitioner discovered that the positions had, in fact, not been filled and that he had been told an untruth. The telemarketing positions were eventually filled by women. Petitioner remained out of work for approximately four months before he was hired as a telemarketer by the Pensacola News Journal. A Notice of Assignment and Order was issued on August 27, 1991, giving the parties an opportunity to provide the undersigned with suggested dates and a suggested place for the formal hearing. The information was to be provided within ten days of the date of the Notice. This Notice was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent did not respond to the Notice. On October 10, 1991, a Notice of Hearing was issued setting the formal hearing for 11:00 a.m., September 11, 1990. The location of the hearing was listed in the Notice. The Notice of Hearing was sent by United States mail to the Respondent at the address listed in the Petition for Relief. Respondent's address and acknowledgment of this litigation was confirmed when Respondent filed its answer to the Petition for Relief with the Division of Administrative Hearings. Even though Respondent received adequate notice of the hearing in this matter, the Respondent did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Petitioner was present at the hearing. The Respondent did not request a continuance of the formal hearing or notify the undersigned that it would not be able to appear at the formal hearing. After waiting fifteen minutes for the Respondent to appear, the hearing was commenced. As a consequence of Respondent's failure to appear, no evidence rebutting Petitioner's facts were introduced into evidence at the hearing and specifically no evidence of a nondiscriminatory purpose was introduced at the hearing. 1/ Petitioner has established a prima facie case of discrimination based on his sex, given the fact that Sears tried to mislead him into believing the telemarketing positions had been filled when they had not, the positions were all eventually filled by women and Sears' clear concern over Petitioner's ability to work with women. Such facts lead to the reasonable inference that Sears was engaging in an unlawful employment practice based on Respondent being a male, a protected class, in order to preserve a female work force in telemarketing. Such discrimination based on sex is prohibited under Chapter 760, Florida Statutes, and Petitioner is entitled to relief from that discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the Commission enter a final order finding Petitioner was the subject of an illegal employment practice and awarding Petitioner $1,462.00 in backpay plus reasonable costs of $100.95 and an attorney's fee of $2,550.00. RECOMMENDED this 30th day of March, 1992, in Tallahassee, Florida. DIANE CLEAVINGER 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 30th day of April, 1992.
