The Issue Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.
Findings Of Fact Pleadings. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code. . . . On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss. Ms. Hunton's Failure to Timely File Her Petition. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief: I received a NOTICE OF REDETERMINATION: NO CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added]. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell. The Petition was not received (filed) by the Commission until Monday, March 2, 1992. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Gina M. Hunton, as untimely filed. DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1992. COPIES FURNISHED: Gina M. Hunton 4929 Fauna Drive Melbourne, Florida 32934 E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and Telegraph Company Suite 4300 675 West Peachtree Street, N.E. Atlanta, Georgia 30375 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether the Petitioner, Micheline Verello, timely filed a Petition for Relief in connection with a claim filed with the Florida Commission on Human Relations.
Findings Of Fact On or about March 15, 2003, the Petitioner, Micheline Verello, submitted an Amended Employment Charge of Discrimination with the Florida Commission on Human Relations. Such complaint alleged that the Respondent, United States Cellular Corporation, had discriminated against the Petitioner in an employment action based upon the Petitioner's age. On April 21, 2004, the Florida Commission on Human Relations entered a Determination: No Cause regarding the Petitioner's claim. That determination set forth that there was "no reasonable cause to believe that an unlawful employment practice has occurred." The Notice of Determination: No Cause was also entered and mailed to the Petitioner on April 21, 2004. The notice provided, in pertinent part: PLEASE TAKE NOTICE that a Determination has been made on the above referenced complaint that there is no reasonable cause to believe that an unlawful employment practice has occurred. A copy of the Determination is attached. Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial for Complainant to seek legal counsel prior to filing the petition. If the Complainant fails to request an administrative hearing with (sic) 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to section 760.11, Florida Statutes. The Notice of Determination: No Cause was dated April 21, 2004. The Petitioner received the Notice of Determination: No Cause on April 26, 2004. Based upon the date stated on the face of the Determination: No Cause, the Petitioner was required to file a Petition for Relief not later than May 26, 2004. The Petitioner did not mail her Petition for Relief until June 1, 2004. The Florida Commission on Human Relations received the Petition for Relief on June 3, 2004. Thereafter, the matter was forwarded to the Division of Administrative Hearings and filed for formal proceedings on June 9, 2004.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the claim filed by this Petitioner. DONE AND ENTERED this 29th day of July 2004, in Tallahassee, Leon County, Florida. S ___________________________________ 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 29th day of July 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Andrew DeGraffenreidt, III, Esquire Powers, McNalis & Torres Post Office Box 21289 West Palm Beach, Florida 33416 Adrianne Mazura, Esquire Piper Rudnick, LLP 203 North Lasalle Street, Suite 1800 Chicago, Illinois 60601-1293
The Issue The issue is whether Respondent discriminated against Petitioner based on Petitioner’s race.
Findings Of Fact Petitioner, Che Johnson, worked as a helper to full-time installers of hurricane shutters with Respondent. He was training to become a full-fledged installer. Respondent, AABC, d/b/a Roll-A-Guard (“Roll-A-Guard” or “Respondent”), is a company that installs hurricane shutters from its offices and warehouse in Largo, Florida. Petitioner filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations against Respondent, stating, under penalty of perjury, that Respondent had 15+ employees. When asked by Respondent’s president why he believed 15 people were employed by Respondent, he was unable to give an answer. Petitioner admitted he never saw 15 people at the warehouse when he was working there. Roll-A-Guard, between October 21, 2016, and January 20, 2017, which covers the entire time Petitioner was employed with the company, never had more than seven employees on the payroll. This was substantiated by a payroll report from Respondent’s Professional Employer Organization and by testimony of Respondent’s president. This number of employees is substantially below the statutorily required number of employees (15) for Roll-A-Guard to be deemed an “employer” for purposes of the Florida Civil Rights Act of 1992. Petitioner, an African-American male, claimed that he was discriminated against on the job by his boss and president of Roll-A-Guard, Andrew J. Ayers, referring to him in a racially discriminatory way when calling on customers on several occasions. Petitioner claims that Mr. Ayers asked customers on three to four occasions whether they thought Mr. Johnson “was as cute as a puppy dog.” This offended Mr. Johnson, and he believed the statement to be discriminatory against him on the basis of his race. Mr. Johnson offered no additional testimony, nor any additional evidence, other than his own testimony that these remarks were made by Mr. Ayers. Mr. Ayers denied, under oath, that he had ever referred to Mr. Johnson as a “puppy dog,” and was especially offended not only that Mr. Johnson never raised the issue with him, but that Mr. Johnson went to the company’s Facebook page after his employment was terminated, and posted comments about Roll-A-Guard being a racist company that discriminated against African- Americans. The other employees of Roll-A-Guard, who testified at hearing, also never heard the “puppy dog” remarks allegedly made, nor did they believe Mr. Ayers was prejudiced in any way against Mr. Johnson. Although the lack of 15 employees by Respondent fails to invoke the jurisdiction of the Civil Rights Act of 1992, the evidence at hearing demonstrates Mr. Johnson’s termination from employment was unrelated to his claim of having been called a “puppy dog” by Mr. Ayers. On the day Mr. Johnson was terminated from employment, January 20, 2017, Mr. Ayers informed the workers that no one should leave the warehouse for lunch due to a rush job on a substantial order of hurricane shutters. Despite Mr. Ayers’ warning, Mr. Johnson left for lunch in the afternoon and was unreachable by Mr. Ayers, who attempted to text him to order him to return to work. Mr. Johnson did not immediately respond to the texts. Although Mr. Johnson eventually responded to the texts from Mr. Ayers after 45 minutes to an hour, Mr. Ayers was perturbed by that point, and actually hired a new worker to replace Mr. Johnson, and told Mr. Johnson not to return to work since he was fired. Mr. Ayers fired Mr. Johnson, in part, because he believed Mr. Johnson was not only leaving for lunch, but for the weekend. Other witnesses working that day confirmed this by testifying they heard words to the effect of “See you Monday.” Mr. Johnson admitted he left for lunch, but testified that he intended to return that afternoon after he had eaten.
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 finding that Respondent, Roll-A-Guard, is not an “employer” and, therefore, not subject to section 760.10, Florida Statutes, or any of the provisions of the Civil Rights Act of 1992, and dismissing Petitioner’s charge of discrimination against Respondent. DONE AND ENTERED this 3rd day of January, 2018, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2018. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Che Johnson 2428 Fairbanks Drive Clearwater, Florida 33764 (eServed) Andrew J. Ayers Roll-A-Guard Suite 206 12722 62nd Street Largo, Florida 33773 (eServed) Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent Robin Audifredd d/b/a St. Francis Place a/k/a Family Ties (Respondent) operated an assisted living facility without a required license and, if so, what is the appropriate penalty.
Findings Of Fact Respondent is the sole owner of St. Francis Place. She has never done business as "Family Ties, ACLF, Inc." At all pertinent times, Respondent held a license from the Florida Department of Business and Professional Regulation to operate St. Francis Place as a boarding home. Respondent's license to operate St. Francis Place as a boarding house allows up to 16 residents. Respondent provides non-transient housing for her residents. During pertinent times, there were approximately 13 residents housed at St. Francis Place. Some residents of St. Francis Place have conditions such as alcoholism, dementia, schizophrenia, manic depression, memory loss, and head trauma. Most of the residents of St. Francis Place were placed by other agencies, such as the United States Veterans Administration (VA). In addition to housing residents for pay, at the time of the hearing, Respondent was providing housing to three former homeless residents free of charge. According to the Complaint, Respondent was operating St. Francis Place in a manner that required a license from the Agency as an ALF because she was providing "personal services"2/ to one or more residents who were not related to Respondent. A license from the Agency is not required for facilities that provide "personal services" to no more than two non-relative residents who do not receive optional state supplementation, if the owner or renter of the facility resides at the facility. See Conclusions of Law 65, infra. According to Respondent, she did not need to be licensed as an ALF because she resided at St. Francis Place and only provided "personal services" to one non-relative resident, who was not receiving optional state supplementation. There is no evidence that any resident of St. Francis Place was receiving optional state supplementation during the pertinent time period. Respondent owns the building located at 1030 Jo Jo Road, Pensacola, Florida, from which she operates St. Francis Place. Respondent also owns a home at 425 Belle Chase Way, Pensacola, Florida. According to Respondent, she "resides" at both 1030 Jo Jo Road and at 425 Belle Chase Way, in Pensacola, Florida. Respondent testified that she actually spends more time at 1030 Jo Jo Road, where St. Francis Place is located. Petitioner's employees provided testimonial evidence to the effect that Respondent spends a great deal of time at St. Francis Place. Their testimony supports a finding that Respondent spends three or four nights a week at St. Francis Place. Despite the evidence showing that Respondent spends a lot of her time at St. Francis Place, it is found that Respondent's residence is 425 Belle Chase Way, Pensacola, Florida, rather than 1030 Jo Jo Road, based upon the following findings which are supported by clear and convincing evidence: Respondent claims homestead exemption at 425 Belle Chase Way. Respondent receives her phone bill at 425 Belle Chase Way address. In 2009, Respondent's address was listed as 425 Belle Chase Way on the title listing Respondent as a co-owner of her mother's motor vehicle. Respondent had no regular room at St. Francis Place. Rather, she either slept on a couch near the main entrance or on a couch in a back room. Although Respondent would also occasionally sleep in a room set aside for residents when there was a vacancy, Respondent had no regular room at St. Francis Place to sleep or keep her clothes. In February of 2009, Respondent's attorney in Respondent's divorce proceedings listed Respondent's address as 425 Belle Chase Way. Prior to February 2010, the Florida Department of Motor Vehicles and Public Safety (DMV) listed Respondent's address as 425 Belle Chase Way. On February 13, 2010, the DMV issued Respondent a duplicate driver's license indicating that her address was 425 Belle Chase Way. By the time of the final hearing, the address listed on Respondent's Florida driver's license had been changed to 1030 Jo Jo Road. The change of address from 425 Belle Chase Way to 1030 Jo Jo Road was made on April 8, 2010, just five days prior to the final hearing. Despite the recent change, Respondent testified that she did not know what address was listed on her driver's license. That testimony was not credible. Neither was Respondent's testimony that she "resided" at St. Francis Place. The phone number and address for St. Francis Place is listed in the Pensacola area 2009 AT&T Real Yellow Pages (Yellow Pages) under the heading "Assisted Living." At the final hearing, Respondent explained that she never authorized the listing and has contacted Yellow Pages and asked them to remove the listing. Respondent's testimony in that regard is undisputed, and it is found that Respondent did not authorize St. Francis Place to be listed in the Yellow Pages under the heading "Assisted Living." On March 25, 2009, a site visit of St. Francis Place was conducted by the Medicaid Fraud Unit of the Florida Attorney General's Office. The next day, on March 26, 2009, the Agency for Health Care Administration conducted a survey of St. Francis Place. The undisputed testimony clearly showed that, when the site visit and survey were conducted, there was one resident, identified as "G. T.," who was totally contracted and required assistance with daily living such as bathing, dressing, feeding, and taking medications. Respondent admits, and it is found, that Respondent and her employees provided "personal services" to G. T. within the meaning of applicable ALF licensing laws. G. T. is a resident who has had multiple sclerosis for many years. Respondent has known G. T. for over 16 years. G. T. had been a resident of St. Francis Place since it first opened its doors approximately six years prior to the date of the final hearing. The Agency was aware that G. T. was a resident of St. Francis Place and was receiving personal services prior to the March 2009, site visit and survey. There is no indication, however, that the Agency took any action prior to March 2009, to alert Respondent that she was considered to be operating an ALF without a license. Katherine Cone and Norma Endress were members of the teams who conducted the site visit and survey of Respondent's St. Francis Place facility on March 25 and March 26, 2009, respectively. During her visit on March 25, 2009, Ms. Cone believed that resident G. T. was not receiving proper care and arranged for her transport to a local hospital. G. T. was treated and released back to St. Francis Place. According to Ms. Endress, who saw G. T. the very next day, she observed no demonstrated harm to any resident at St. Francis Place. The evidence is insufficient to conclude that G. T. was harmed while a residing at St. Francis Place.3/ After the site visit and survey, both Ms. Cone and Ms. Endress believed that, in addition to the personal services provided to G. T., there was evidence that staff at St. Francis Place was providing personal services in the form of assistance in administering medications or filling pill organizers for other residents. The evidence presented at the final hearing, however, was insufficient to show, clearly and convincingly, that personal services were rendered to other residents. The insufficient evidence included: Photographs and the surveyors' recollections of pill reminder or pill organizer boxes that looked as though they were full of medications; Photographs and the surveyors' recollections of medication containers stored in a centrally located medication cart with wheels; Photographs and Ms. Cone's recollection of documents in folders above the medication cart containing information related to transportation and outside services for residents such as pharmacies and transportation companies. Ms. Cone's testimony that one of Respondent's employees, Kathleen Wentworth, told her at the time of the site visit that she maintained pill organizers with medications for several residents, and that Ms. Wentworth had signed a statement to the effect that staff at St. Francis Place administered medications to residents. Ms. Endress' testimony that one of the residents told her that staff at St. Francis Place had filled his pill reminder box. The evidence was insufficient because it was not further supported. Respondent and her testifying employees explained, and other evidence indicated, that the medication cart remained unlocked and was accessible so that residents could retrieve their own medications. There was no testimony from a St. Francis Place resident, employee or Respondent, or anyone else with actual knowledge, indicating that either Respondent or her employees ever assisted any resident other than G. T., with their medications. As far as Ms. Cone's hearsay recollection of what Ms. Wentworth told her, Ms. Wentworth testified at the hearing that the conversation did not occur. In addition, while Ms. Cone remembered a written statement signed by Ms. Wentworth, no such document was entered into evidence. Finally, photographs and Ms. Cone's recollection of folders with documents about services available from other vendors, such as pharmacies or transportation providers, did not show that Respondent was providing personal services to her residents. According to Ms. Endress, prior to leaving St. Francis Place after the site visit on March 26, 2009, she informed Respondent that Respondent was operating without the requisite ALF license, and that Respondent would be hearing from the Agency within 10 days. In contrast, Respondent testified that one of the Agency's employees, Ms. Klug, told her that she could "care for two people without an ALF license," and that Ms. Endress had given her similar assurances. Consistent with Ms. Endress's recollection, the Agency sent a letter to Respondent dated March 27, 2009, which informed Respondent that the Agency "considers you to be operating as an Assisted Living Facility (ALF) without being licensed." Considering that letter, together with the recollection of Ms. Endress, and the comparative credibility of the witnesses testifying on this point, it is found that, while one or more Agency employees informed Respondent that there was an exception to the AFL license requirements, Ms. Endress informed Respondent on March 26, 2009, that Respondent needed an ALF license, and that Respondent would be hearing from the Agency within ten days. The Agency's letter mailed to Respondent on March 27, 2009, stated in its entirety: Dear Ms. Audiffred, You are hereby notified that the Agency for Health Care Administration considers you to be operating as an Assisted Living Facility (ALF) without being licensed. Based on Section 429.14(1)(m), Florida Statutes (Fla. Stat.), it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license under Chapter 429, Part I, F.S. Section 429.02(6), Fla. Stat., defines an ALF as "any building or buildings, section or distinct part of a building, private home, boarding home, home for the aged, or other residential facility, whether operated for profit or not, which undertakes through its ownership or management to provide housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator." The statute provides an exemption from licensure for not more than 2 adults who do not receive optional state supplementation (OSS) when the person who provides the housing, meals and personal services owns or rents the home and resides therein. This exception can be found in Section 420.04(2)(d), Fla. Stat. Based on evidence of unlicensed activity, the Agency intends to proceed with all available legal action, including bringing injunctive proceedings against you in a court of competent jurisdiction, to insure that you immediately cease and desist from offering these services. Further, Section 429.19(7), Fla. Stat., provides that "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day". [sic] If you believe you are not operating as an ALF in violation of law as described, you may submit in writing any information which would demonstrate that to the Agency within 24 hours of receipt of this notice. Any information you wish to have considered by the Agency must be actually received within 24 hours of your receipt of this Notice of Violation. If you have any questions, you may reach me at 850-922-8822. The letter was signed by Barbara Alford, R.N., B.S.N., Field Office Manager, and was copied to Alberta Granger, Assisted Living Unit Manager, and to the Regional Attorney. The fines set forth in the Complaint are premised upon penalties accruing at the rate of $1,000 per day from the day after the Agency's March 27, 2009, letter to Respondent, through July 21, 2009, when the Agency found that G. T. was still residing at Respondent's facility. According to paragraph 13 of the Complaint, "pursuant to § 408.812, Fla. Stat. (2009), the Agency notified the Respondent by certified mail that the facility was in violation of Florida Law on March 27, 2009." The Agency's March 27, 2009, letter, however, does not refer to section 408.812, contains a number of wrong citations to the law, and is equivocal on the issue of whether the Agency was actually requiring Respondent to cease and desist. The law in effect in March 2009 when the letter was written was the 2008 version of Florida Statutes, not the 2009 version referenced in the Complaint.4/ The first paragraph of the March 27, 2009, letter refers to section 429.14(1)(m), Florida Statutes, for the proposition that "it is unlawful to own, operate, or maintain an assisted living facility without obtaining a license. " There is, however, no section 429.14(1)(m) in either the 2008 or 2009 version of section 429.14. The next statutory reference in the letter is in the second paragraph which refers to section 429.02(6) for the definition of ALF. Both the 2008 and 2009 versions of section 429.02(6), however, define "chemical restraint," not ALF. Although, further down in the second paragraph, the letter correctly refers to section 429.04(2)(d), for the exception where no license is required; the third paragraph of the letter erroneously refers to section 429.19(7) for the quote "any unlicensed facility that continues to operate after agency notification is subject to a $1,000 fine per day." That language does not appear in either the 2008 or 2009 version of section 429.19, and has not appeared in chapter 429 since 2006. In fact, instead of providing for a $1,000 per day fine, section 429.19(7), Florida Statutes (2008), in effect on the date of the letter, provides: In addition to any administrative fines imposed, the agency may assess a survey fee, equal to the lesser of one half of the facility's biennial license and bed fee or $500, to cover the cost of conducting initial complaint investigations that result in the finding of a violation that was the subject of the complaint or monitoring visits conducted under s. 429.28(3)(c) to verify the correction of the violations. A provision for the imposition of a $1,000 per day fine from the date of notice does not appear in either the 2008 or 2009 versions of chapter 429. Rather, the authority to impose a $1,000 per day fine for operating an ALF without a license which was in effect in March 2009, when the letter was written is found in section 408.812(4), Florida Statutes (2008), which provides that "[a]ny person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance." Although the Complaint, served approximately 9 months after the letter, refers to section 408.812, the letter does not even mention chapter 408. In addition, the actual language of section 408.812(4) differs from the quote in the letter from an old version of section 429.19(7) that was no longer in effect. Aside from being inaccurate on the law, the letter does not explain why the Agency "considers" Respondent to be operating an ALF without a license, or what aspects of Respondent's operations required her to need a license beyond her license to operate a boarding house. Even though the letter fails to describe which aspects of Respondent's operations violate the law, and does not set forth the referenced "evidence of unlicensed activity," the letter advises Respondent that she may submit information to the Agency within 24 hours to demonstrate that she is "not operating an ALF in violation of law as described." Additionally, although suggesting that the Agency intends to proceed with legal action to insure that Respondent "cease[s] and desist[s] from offering these services," the letter does not identify which services or tell Respondent to stop operations. In addition to giving Respondent time to provide the Agency with information that she is not in violation of the law, the letter advises Respondent of the exception to the requirement of a license for not more than 2 adults "when the person who provides the housing, meals and personal services owns or rents the home and resides therein." While it has been found that Respondent did not actually reside at St. Francis Place, it is further found that Respondent believed that she could care for two patients without an ALF license as mentioned in the letter. Respondent received the Agency's March 27, 2009, letter on or about April 1, 2009. Within 24 hours after receiving the letter, Respondent sent the Agency an undated written response addressed "To Whom it May Concern." Respondent's written response mentioned that she had discussed with Ms. Endress, the one resident that they "give care to" and that Ms. Endress had advised, "Well legally you can take care of two people without a license." Respondent's written response further reported that a representative from the VA had suggested to several of Respondent's residents that they should move out. Respondent's written response also advised that a number of visits and surveys of St. Francis Place had been conducted in March 2009, by various agencies, including the VA, the Medicaid Fraud Unit from the Florida Attorney General's Office, the Florida Department of Children and Families, and the Agency. The last paragraph of Respondent's written response states: St. Francis Place is a liscenced [sic] non-transient rooming house and the arrangements provided by our business is stated below. The renters residing at St. Francis Place are responsible for their own medications, laundry, and living quarters. As a non-transient rooming house and being in operation for the past six years, we have always encouraged our renters to maintain their own independence. Six of the thirteen renters have their own Florida drivers liscence [sic]. Several of the renters attend school or maintain employment. Several renters perform odd jobs for pay at St. Francis Place, such as yard work, sweeping porches, or taking out trash etc. Monthly Rent includes: three meals a day accessible laundry room transportation upon request utilities garbage service use of telephone cable. On July 21, 2009, surveyors from the Agency once again visited St. Francis Place and observed that G. T. was still residing there and receiving personal services. Sometime after July 21, 2009, the Florida Department of Children and Families moved G. T. from St. Francis Place to a facility known as the "Villas" in an Alzheimer's lock-down unit. The Agency never sought an injunction to force Respondent to cease operating St. Francis Place. There is no evidence that the Agency suggested to Respondent corrective measures or actions that she could take to comply with the law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order finding that Respondent Robin Audifredd d/b/a St. Francis Place5/ operated an assisted living facility without a license in violation of section 408.812, but imposing no administrative fine or penalty. DONE AND ENTERED this 6th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
The Issue The issue is whether Respondent committed employment discrimination against Petitioner.
Findings Of Fact Petitioner is a Peruvian South American Indian and Hispanic. He is also a Spanish speaker, although he speaks English fluently. Respondent owns and operates a chain of grocery stores. Petitioner worked at Respondent's store in Fort Lauderdale from December 1992 until he was terminated in August 2005. Petitioner started as a produce clerk and, at the time of his termination, he had worked his way up to produce manager. He had been employed as a produce manager of the Fort Lauderdale store since April 2002. Petitioner enjoyed a good reputation among his coworkers. He was fair and a good manager. He enjoyed good rapport with customers and employees. Petitioner's employment record was unblemished except for one incident prior to the subject incident. On February 17, 2005, Petitioner received an Unsatisfactory Work Warning for misuse of Respondent's email system and inappropriate communication. Petitioner was one of several employees disciplined at this time for this offense. Under well-established and uniformly enforced rules, Respondent maintained a policy of terminating any employee who received any discipline within six months after receipt of an Unsatisfactory Work Warning. On August 3, 2005--which is within six months of February 17, 2005--Petitioner was approached by an employee whom he supervised. The employee asked Petitioner for an evaluation. Petitioner complied, informing the employee that his work merited a raise, but no money was available at the time for raises. The employee took his request to Petitioner's supervisor, who conducted a meeting with the employee and Petitioner. During the meeting, she explained Respondent's policy about raises, correcting the mistaken understanding of Petitioner that raises were not presently available. She approved the employee for a raise. The meeting was amicable and ended in this fashion. Later in the day of the meeting, Petitioner approached the employee, playfully tapped him with a small bundle of wire wraps used to bind produce, and asked him, jokingly, why he was trying to get Petitioner into trouble. The employee felt intimidated about the incident and reported it to Respondent's supervisor. Respondent has no tolerance for workplace behavior that may be perceived as intimidating to its employees. Based on this policy, Respondent determined that it was necessary to discipline Petitioner for the incident with the employee. But for the prior incident involving the company email system, Respondent would not have terminated Petitioner. However, because the second incident occurred within six months of the earlier warning, Respondent, consistent with its policy, terminated Petitioner. There is no evidence whatsoever that Respondent terminated Petitioner due to his race or national origin. Although the reason for terminating him does not withstand much scrutiny, it is abundantly clear that the cited reason for termination does not mask an unlawful basis for termination.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 7th day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 7th day of June, 2007. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan D. Jimenez 820 Northeast 19th Terrace Fort Lauderdale, Florida 33304 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jennifer L. Price, Esquire Stearns, Weaver, Miller, Weissler Alhadeff & Sitterson, P.A. 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on October 19, 2015.
Findings Of Fact Respondent manufactures and supplies residential windows and doors. On June 15, 2015, Petitioner was hired by Respondent to work as a Technician 1. Petitioner’s responsibilities included working on the manufacturing assembly line for windows. Petitioner’s employment with Respondent was subject to a 90-day probationary period which would have ended on or about September 15, 2015. However, on or about August 18, 2015, Respondent terminated Petitioner’s employment, and Petitioner contends that Respondent’s decision to terminate his employment resulted from unlawful discriminatory animus. Respondent disagrees with Petitioner’s allegations and contends that legitimate business reasons motivated its decision to terminate Petitioner’s employment with the company. Background Events Prior to August 4, 2015 The Employment Charge of Discrimination alleges that Petitioner believes that he was the victim of unlawful discrimination while working for Respondent. Petitioner alleges what will generally be described as three categories of conduct in support of his charge of discrimination.1/ First, Petitioner alleges that a white coworker named Adam “made a statement saying black people are a waste of space,” and that Petitioner’s immediate supervisor, Eric Christman, who is also white, laughed in Petitioner’s presence after hearing the offensive statement. Second, Petitioner claims Mr. Christman created a racially charged work environment by routinely segregating employees to work in groups based on race. Third, Petitioner claims that when he complained to Respondent’s office of human resources about Mr. Christman’s behavior, Mr. Christman retaliated against him by terminating his employment with the company, and that the decision to terminate his employment was the result of illegal racial animus. Adam Petitioner and an employee named Adam (last name unknown) were hired at the same time and worked on the same team. Although Adam did not testify during the final hearing, the undisputed evidence is that Adam is an individual who identifies as white. At some point during July 2015, Petitioner, Adam, Mr. Christman, Yvonnte Hartsfield, and a few other workers, were on lunch break when Petitioner and Adam started conversing. During the course of the conversation, Adam stated that “blacks are a waste of space.” Both Petitioner and Ms. Hartsfield were offended by Adam’s statement. Petitioner testified that Mr. Christman laughed in response to Adam’s statement and took no action against Adam for making the offensive remark. Ms. Hartsfield corroborated Petitioner’s testimony and testified that she also witnessed Mr. Christman laughing in response to Adam’s offensive statement. Petitioner did not report the incident to Respondent’s office of human resources or to anyone else working in a managerial capacity at the facility. Segregated Work Environment There were approximately 12 individuals who worked on Petitioner’s team while he was employed by Respondent. Petitioner testified that there were times during his employment when production volume in his assigned work area had decreased which resulted in Mr. Christman temporarily reassigning workers to other work-groups throughout the plant. According to Petitioner, it was routinely the case that Mr. Christman reassigned the black and Hispanic workers to other work-groups, while allowing the white workers to remain in their original work assignments. This practice by Mr. Christman resulted in the minority workers having a more labor intense work day, while the white workers in Mr. Christman’s group were essentially idle due to the lack of work. Two of Petitioner’s coworkers testified that they too had observed how the work environment had been segregated in this manner. According to former PGT employee Chris Russo, who is white, “[i]t was like, there was a bunch of, like, racist redneck people there, and they had black people over there, and they’d always keep us separated.” Ms. Hartsfield testified that it appeared to her that Mr. Christman sent the two black workers (her and Petitioner) and the Mexican worker to other production lines while the Caucasians workers remained at their regular work stations. Personal Cell Phone Usage Respondent provides to all of its employees a “PGT Team Member Handbook” (handbook), which Petitioner received on his first day of employment. The handbook, with respect to personal cell phone usage, provides as follows: While at work, team members are expected to exercise the same discretion using personal cell phones as they would using PGT phones. Personal calls and texting during work hours, regardless of the phone used, can interfere with productivity and be distracting to others. Team members are expected to make personal calls during breaks or lunch and should communicate with friends and family members to ensure they are aware of the policy. Team members must inform their leader of the need to use a cell phone while working on the line and obtain permission (which will be granted/denied on a case-by- case basis). Failure to do so may result in disciplinary action. In addition, company- issued cell phones should be turned off or set to silent or vibrate mode during meetings and in other locations where incoming calls may disrupt normal workflow. During July 2015, Mr. Christman, on several occasions, observed Petitioner using his cell phone while on company time. Apparently, cell phone use by employees while working in the production area had become an issue; so sometime in July 2015, members of Respondent’s management team called a group meeting and reminded Petitioner, and other members of the window assembly team, of the company’s cell phone usage policy. Within a few days of the group meeting, Mr. Christman, on August 4, 2015, received on his cell phone a photo image of Petitioner using a cell phone while on the production line. Adam had taken the picture and sent it to Mr. Christman. Soon after receiving the picture of Petitioner on his phone, Mr. Christman met with Petitioner and issued him a “confirmation of conversation,” which is the second step, following a verbal warning, on Respondent’s progressive discipline scale. The confirmation of conversation provides in part that Petitioner is expected “to be in compliance with company policy, [that] [i]mmediate and sustained improvement is expected, [and] failure to correct the [behavior] may result in further disciplinary action up to and including termination of employment.” On August 5, 2015, the day after Petitioner received the confirmation of conversation, he contacted Respondent’s office of human resources and complained that Mr. Christman had treated him unfairly and was discriminating against him on the basis of race. In response to Petitioner’s concerns, a meeting was held on August 6, 2015, where Petitioner was able to meet with Mr. Christman; Ron Clarke, who was Mr. Christman’s supervisor; and Karla Lugo, a representative from human resources. Petitioner requested a transfer to another unit, but after it was explained to him by Mr. Clarke that he needed to stay in his current unit to better learn the job, Petitioner agreed to remain in his position which was supervised by Mr. Christman. Petitioner suggests that Mr. Christman was motivated by racial animus when he disciplined him for unauthorized cell phone usage. Petitioner admitted during the final hearing that on the day in question he was in violation of Respondent’s cell phone usage policy. Nevertheless, Petitioner contends that employees often use cell phones while working and, to his knowledge, are not disciplined, as he was, for their transgressions. Yvonnte Hartsfield has worked for Respondent for several years assembling doors and windows. Ms. Hartsfield testified that she often observed employees using their cell phones while assembling window frames. Ms. Hartsfield testimony is, however, imprecise regarding when her observations were made in relation to the meeting that management had with employees in July 2015 during which employees were told that they were expected to comply with the company’s cell phone usage policy. Petitioner offered no credible evidence that he was treated differently from other employees who, after being reminded of the company’s cell phone usage policy, continued to use their cell phones while working on the production line. Retaliation In Petitioner’s Employment Charge of Discrimination, he mentions several times that he complained to human resources about Mr. Christman’s alleged racist behavior and that Mr. Christman treated him worse after learning of his complaints. The credible testimony establishes that Petitioner did not complain to management about any issues of discrimination until August 5, 2015, which is the day after Petitioner received the confirmation of conversation resulting from his unauthorized cell phone usage. Petitioner offered no credible evidence of any retaliatory actions taken against him by Mr. Christman between August 5 and August 18, 2015, the date upon which Petitioner’s employment was terminated. Respondent’s Reason for Firing Petitioner On August 13, 2015, Petitioner, while operating machinery known as a frame welder, caused the machine to malfunction, which resulted in damage to a window frame and a three and one-half hour loss of use of the machine while repairs were performed. Corey Marks, who works for Respondent as a maintenance technician, testified that he serviced the frame welder in question on August 13, 2015, after Petitioner caused the machine to fail. Mr. Marks credibly testified that he performed a failure analysis on the machine and determined that the problem in question occurred as a result of Petitioner not operating the machine properly. When questioned by Respondent about what caused the frame welder to malfunction, Petitioner offered two theories, neither of which were confirmed by Respondent’s investigation as to the cause of the malfunction. First, Petitioner advised that the machine unexpectedly started on its own, and second that the machine has a “hair trigger” which resulted in Petitioner inadvertently starting the machine. Mr. Marks’ failure analysis did not substantiate either of Petitioner’s theories as to why the machine failed. Respondent, when considering that Petitioner, while on employment probation, had been disciplined for unauthorized cell phone usage and, through inattentiveness, had caused a substantial delay on productivity by damaging the frame welder, decided to terminate Petitioner’s employment. The decision to terminate Petitioner was made by Respondent’s department of human resources. No Evidence of Pretext Petitioner claims that other individuals had damaged Respondent’s machines and were not terminated as a result thereof. Respondent, on cross-examination, elicited the following testimony from Petitioner: Q: You said earlier that there were white employees who broke machines with no action taken. Do you recall that testimony? A: Yes. Q: Who were those employees? A: I was new at the time. So I don’t know. Q: Can you name a single one? A: Nope. Q: Can you name a single machine that you saw broken by a white employee against whom no action was taken? A: No. Hearing Transcript, pgs. 82-83. Mr. Russo, who is white, testified that a frame welder malfunctioned once while he was operating the machine and that he was not disciplined as a result of the incident. The scenario described by Mr. Russo is not comparable to Petitioner’s situation because Petitioner’s incident occurred as a result of operator error, as opposed to an equipment malfunction. Petitioner has failed to offer evidence which establishes that Respondent’s reason for terminating his employment is simply a pretext for unlawful discrimination.
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 finding that Respondent, PGT Industries, did not commit an unlawful employment practice as alleged by Petitioner, Alain Blaise, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2017.
The Issue Whether the Petitioner timely filed her Petition for Relief from an Unlawful Employment Practice with the Florida Commission on Human Relations ("Commission").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Commission is the state agency charged with investigating and acting upon complaints filed under Florida's Civil Rights Act, Sections 760.01-760.11, Florida Statutes (2006).1 § 760.06, Fla. Stat. On August 14, 2006, the Commission issued a Right to Sue notice, in which it informed Ms. Williams, among other things, that the FCHR hereby issues this Right to Sue. Since it has been more than 180 days since your complaint was filed, and since no determination was made within 180 days, you are entitled to pursue the case as if the FCHR issued a Determination of Reasonable Cause. . . . (Citation omitted). You may pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter, or you may file a lawsuit in a circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more than four years from the date the alleged violation occurred. Pursuant to the terms of this notice, Ms. Williams was required to file her Petition for Relief with the FCHR no later than 35 days from the date of the August 14, 2006, notice, that is, no later than September 18, 2006. Ms. Williams completed and signed a Petition for Relief from an Unlawful Employment Practice on September 14, 2006. A receipt from the USPS establishes that, on September 17, 2006, the USPS accepted a letter from Ms. Williams addressed to the Commission; that the letter was sent via express mail; that neither next-day nor second-day delivery was selected; that a third option for delivery, "Add Del Day," was selected. The scheduled date of delivery stated on the receipt was September 20, 2006. Ms. Williams's Petition for Relief from an Unlawful Employment Practice was received by the Commission on September 19, 2006. The USPS tracking website shows that the letter assigned number EQ 628681913 US was delivered on September 19, 2006.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Teesha Williams. DONE AND ENTERED this 21st day of November, 2006, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 21st day of November, 2006.
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent, Pepsico, Inc. ("Pepsi") committed unlawful employment practices contrary to section 760.10, Florida Statutes (2012),1/ by discriminating against Petitioner based on his race, color, or national origin by discharging Petitioner from his employment.
Findings Of Fact Pepsi is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Pepsi manufactures and distributes snack food and beverages throughout the United States. Petitioner, a black male originally from Africa,3/ was employed by Pepsi as a delivery driver in Jacksonville from June 15, 2004, until February 21, 2012, when Pepsi terminated his employment. At the time he was hired, Petitioner received a copy of Pepsi Bottling Group's "Employee Handbook" and "General Rules of Conduct." Petitioner signed acknowledgements of receipt of each of these documents on June 15, 2004. The General Rules of Conduct provides an express list of actions that are "prohibited and may result in immediate termination," including "misrepresentation of facts or falsification of Company records or other documents." As a delivery driver, Petitioner was responsible for delivering Pepsi products to designated customers on a route provided to him by Pepsi. During the time of Petitioner's employment, all driver delivery routes were dispatched from Orlando. There were approximately 17 routes in the Jacksonville area. The routes were established and modified according to number of stops, number of cases of product delivered, and the time it took to complete the route. Because the drivers were paid on a commission basis, the dispatchers did what they could to keep the routes roughly equal in terms of stops, cases, and time. Local Jacksonville supervisors consulted with the Orlando dispatchers but had no control over route assignments. Delivery drivers must comply with U.S. Department of Transportation ("DOT) hours of service rules. See 49 C.F.R. part 395. Under the rules, drivers such as Petitioner are allowed to work up to 14 hours in one day and up to 60 hours in a seven-day period. The DOT rules are reviewed with the delivery drivers. In 2008, Petitioner signed an acknowledgement that he was subject to the DOT hours of service rules. Delivery drivers for Pepsi are responsible for clocking in and out of work each day by machine to accurately record their hours of work. They must also manually fill out and submit a DOT-prescribed grid log of their working and driving time. Drivers are also required to submit a hand-written time sheet each week. The driver is not required to manually fill in the time on the time sheet for days when the driver clocked in and out by machine. The driver must manually record his time on the time sheet for those days when the driver failed to clock in or out for some reason. On Friday, February 3, 2012, Petitioner forgot to clock in when he began his route in the morning. Delivery drivers carry handheld computers that contain all of their route information and that record the time at which the driver generates an invoice to the customer at each location on the route. The driver is not able to tamper with or alter the information contained in the handheld computer. According to Petitioner's computer, his last stop on February 3, 2012, was a Pizza Hut on University Boulevard South. The invoice generated by Petitioner indicated that he made the Pizza Hut delivery at 4:40 p.m. After completing the delivery at Pizza Hut, Petitioner returned to the Pepsi facility, where he checked in at the gate at 5:14 p.m. Petitioner then unloaded his truck, performed a post-delivery inspection, and entered the building to do a final accounting of the money he collected on his route that day. Records indicate that Petitioner generated a final settlement report for the day at 5:27 p.m. After generating his settlement report, Petitioner submitted his deposit and weekly paperwork in delivery supervisor Rich Herrmann's office.4/ The weekly paperwork included Petitioner's handwritten time sheet for the week of January 30 through February 3, 2012, and his DOT grid log. Because he had failed to clock in on the morning of February 3, Petitioner wrote both his time in and time out for the day on his time sheet. Petitioner's handwritten time sheet indicated that he began work at 4:30 a.m. and ended work at 4:30 p.m. Petitioner's DOT grid log also indicated that he worked twelve hours on February 3 and 60 hours for the week of January 30 through February 3. Delivery supervisor Christopher Quindoza testified that he was in his office working when he noticed Petitioner passing by his open door after dropping off his time sheet at Mr. Herrmann's office. Mr. Quindoza testified that it is customary in the office for the supervisor to work on time sheets on Friday afternoon so that the materials will be ready for submission on Monday morning. He had already picked up several time sheets and was working on them when he saw Petitioner pass. Mr. Quindoza went to Mr. Herrmann's office to retrieve Petitioner's time sheet. Mr. Quindoza saw that Petitioner's time sheet stated that he had worked until 4:30 p.m. He knew that this was incorrect. He stepped into the settlement room to confer with a few drivers there as to the time, then crossed out "4:30" on Petitioner's time sheet and wrote in "6:10," the time when Petitioner actually stopped work. He initialed the amendment and then signed the time sheet as Petitioner's approving supervisor. Mr. Quindoza testified that he amended the time sheet to ensure that Petitioner would be paid correctly and so that it would be correct for DOT reporting. If the time had been calculated as Petitioner submitted it, he would have been recorded as having worked exactly 60 hours for the week. Petitioner in fact worked more than 14 hours on February 3, 2012, which pushed his time for the week over the 60-hour limit imposed by DOT rule. Mr. Quindoza reported the discrepancies to his supervisor, Sales Operations Manager Kyle Lowens, who in turn notified Human Resources Manager Alex Pullen. Guided by the General Rules of Conduct and company precedent, Mr. Lowens instructed Mr. Quindoza to write up the incident as a termination of Petitioner's employment, pending approval from the human resources department. A meeting was convened on February 10, 2012. Present at the meeting were Petitioner, Mr. Quindoza, Mr. Lowens, and Mr. Pullen. Petitioner was presented with the incorrect time sheet and DOT grid log he submitted and was asked to explain why he had falsified his time records. Petitioner admitted that he did so to avoid exceeding the 60-hour DOT limit.5/ In 2007, Petitioner had received a written warning for exceeding the DOT guidelines when he worked 62.25 hours in one week. At the February 10 meeting, it was explained to Petitioner that if he had submitted his time correctly, he would have merely received another written warning or a verbal coaching for exceeding the 60-hour requirement. Petitioner was told that submitting fraudulent documents was a much more serious offense. On February 13, 2012, Petitioner was notified that he was suspended pending further investigation by the Pepsi human resources department. On February 21, 2012, Petitioner's employment was terminated for violation of the company's Rules of Conduct. At the hearing, Petitioner contended that he simply made a mistake on his time sheet and should have been allowed to correct it. He claimed that other drivers make mistakes "all the time," and that the practice had always been to give them a blank time sheet and tell them to fill it out correctly. Mr. Lowens has worked 18 years for Pepsi and has been sales operations manager for the last three. He testified that he was unaware of drivers frequently submitting incorrect time sheets and that it has never been the practice of Pepsi to do anything other than terminate employees for turning in false documents. He personally knew of two employees besides Petitioner who had been fired for submitting false time sheets. One of the fired employees was a black male, the other a white male. Petitioner's testimony regarding company practices as to errors on submitted time sheets was not credible. Mr. Lowens' testimony on that point is credited. At the hearing, Petitioner testified that Pepsi had long wanted to fire him. He claimed that a supervisor wanted to terminate him so that his route could be given to a white driver. No evidence of this conspiracy was presented beyond Petitioner's bare assertion. There was no credible evidence that Pepsi had been seeking a reason to fire Petitioner. To the contrary, in December 2010, a customer complained to Pepsi about Petitioner and requested that he not be allowed to deliver products to her place of business again. The customer complained that Petitioner had indulged in a long, loud rant against the Bush administration and the Iraq war in the presence of her own customers. Mr. Lowens testified that it is a terminable offense for a delivery driver to be banned from a customer's premises. However, he decided to first visit with the customer and try to persuade her to allow Petitioner back onto the account. Mr. Lowens and Mr. Herrmann met with the customer, who acknowledged that Petitioner did a good job and agreed to let Petitioner return to her premises provided he stop talking politics. The fact that Mr. Lowens went out of his way to save Petitioner's job indicates there was no plan afoot to terminate his employment. Petitioner claimed that Pepsi drove down his commissions by giving him more stops with fewer cases of products on his route. Also, for some reason, Pepsi did not want him to attend college, and gave him more stops to prevent him from getting off work early to attend class. He claimed that Pepsi would allow white employees to take off early for their classes. Again, Petitioner's bare assertions were unsupported by other testimony or documentary evidence. Petitioner never complained of discriminatory treatment or harassment to any supervisor at Pepsi. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Pepsi for his termination. He simply asserted that he made a "mistake" on his time sheet that he should have been allowed to correct. The weight of the evidence is consistent with the finding that Petitioner's false time sheet was not a "mistake" but an intentional act, an attempt to dodge the disciplinary consequences of having worked more than 60 hours in one week.6/ Petitioner offered no credible evidence that Pepsi's stated reasons for his termination were a pretext for race discrimination, national origin discrimination, or discrimination because of Petitioner's color. Petitioner offered no credible evidence that Pepsi discriminated against him because of his race, color or national origin in violation of section 760.10, Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Pepsico, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 2nd day of April, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 2nd day of April, 2013.
