The Issue By Administrative Complaint dated February 20, 1991 and filed with the Division of Administrative Hearings on April 23, 1991, the Department of Professional Regulation, Division of Real Estate, alleged that Respondent had obtained a real estate license by means of fraud in that Respondent had a prior criminal charge and 1976 conviction in New Jersey and had not disclosed same in his July 30, 1990 application for licensure as a real estate salesman, contrary to and in violation of Subsection 475.25(1)(m) F.S.
Findings Of Fact Petitioner is the state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints against real estate licensees pursuant to the laws of the state of Florida, in particular Section 20.30 F.S. and the rules promulgated pursuant thereto. Respondent is now, and was at all times material hereto, a licensed real estate broker in the state of Florida, having been issued license number 0566757 in accordance with Chapter 475, F.S. The last license issued was as a nonactive salesman, in care of 380 Mercers Fernery Road, DeLand, Florida 32720. On his July 30, 1990 application, Respondent made a sworn application for licensure as a real estate salesman with the Petitioner. Question No. 7 of the July 30 application read, in pertinent part, as follows: 7. Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? Under oath, Respondent answered "no" to the foregoing Question No. 7. Thereafter, Petitioner based this instant prosecution on a series of loose pages which purported to be a report from the U.S. Department of Justice, Federal Bureau of Investigation (Petitioner's Exhibit B). This item is not a business record of the Petitioner, and Petitioner has shown no reason this printed hearsay should be admitted and considered. Consequently, it has not been admitted or considered. Respondent was interviewed by Petitioner's investigator. The investigator, Mr. Miller, testified concerning his interview of Respondent, but nothing in their conversation constituted an "admission of a party opponent." Nor was anything said in that conversation sufficient to supplement or explain any other testimony or exhibit. See, Section 120.58(1) F.S. Likewise, the conversation did not even support the allegations of the Administrative Complaint. Respondent's testimony at formal hearing was disjointed and inconclusive but to the general effect that at some time he had been arrested in New Jersey in connection with a burglary of his dwelling and a subsequent police search thereof which produced a cache of marijuana. He denied telling a deliberate lie on his real estate application and stated he simply could not recall anything further about the New Jersey incident which he described.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the agency enter a Final Order dismissing with prejudice the Administrative Complaint. DONE and ENTERED this 27th day of June, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1990.
The Issue At issue in this proceeding is whether Respondent committed the violation of Section 475.25(1)(m), Florida Statutes, alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Business and Professional Regulation, Division of Real Estate (the "Department"), is a state government licensing and regulatory agency charged with the duty to prosecute administrative complaints pursuant to the laws of the State of Florida, including Chapters 455 and 475, Florida Statutes. Respondent, Maureen Teresa Mobley, is a licensed real estate salesperson in the State of Florida, having been issued license number 0647773. On or about January 22, 1997, Respondent filed an application with the Department for licensure as a real estate salesperson. Pertinent to this case, item 9 on the application required that Respondent answer "Yes" or "No" to the following question: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest), even if adjudication was withheld? This question applies to any violation of the laws of any municipality, county, state or nation, including traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." If you answered "Yes," attach the details including dates and outcome, including any sentence and conditions imposed, in full on a separate sheet of paper. Your answer to this question will be checked against local, state and federal records. Failure to answer this question accurately could cause denial of licensure. If you do not fully understand this question, consult with an attorney or the Division of Real Estate. Respondent answered item 9 by checking the box marked "No." The application concluded with an "Affidavit of Applicant," which was acknowledged before a Notary Public of the State of Florida, as follows: The above named, and undersigned, applicant for licensure as a real estate salesperson under the provisions of Chapter 475, Florida Statutes, as amended, upon being duly sworn, deposes and says that (s)(he) is the person so applying, that (s)(he) has carefully read the application, answers, and the attached statements, if any, and that all such answers and statements are true and correct, and are as complete as his/her knowledge, information and records permit, without any evasions or mental reservations whatsoever; that (s)(he) knows of no reason why this application should be denied; and (s)(he) further extends this affidavit to cover all amendments to this application or further statements to the Division or its representatives, by him/her in response to inquiries concerning his/her qualifications. (Emphasis added.) On March 3, 1997, Respondent passed the salesperson examination and was issued license number 0647773. From March 15, 1997, through April 7, 1997, Respondent was an inactive salesperson. From April 8, 1997, through the present, Respondent has been an active salesperson associated with Betty K. Woolridge, an individual broker trading as B. K. Woolridge and Associates, currently in Tampa, Florida. Steve Pence, Investigative Supervisor for the Department, investigated Respondent’s criminal history. He discovered that Respondent had "a problem" with a worthless check charge. Mr. Pence obtained a Certificate of Disposition from the Clerk of the Circuit Court for Hillsborough County, Florida. The Certificate indicated that on November 4, 1992, Respondent entered a plea of nolo contendere to a misdemeanor charge of obtaining property with a worthless check, an offense that occurred on July 25, 1991. The Certificate further indicates that adjudication was withheld. After Mr. Pence concluded his investigation, the Department filed the Administrative Complaint at issue in this proceeding which, based on Respondent's failure to disclose the aforesaid criminal disposition, charged that "Respondent has obtained a license by means of fraud, misrepresentation, or concealment in violation of [Section] 475.25(1)(m), Florida Statutes" and sought to take disciplinary action against her license. According to the complaint, the disciplinary action sought . . . may range from a reprimand; an administrative fine not to exceed $5,000.00 per violation; probation; suspension of license, registration or permit for a period not to exceed ten (10) years; revocation of the license, registration or permit; and any one or all of the above penalties. . . . At the hearing, Respondent testified that six or seven years ago, she wrote a check for $19.00 that was not cleared at her bank. She had moved during this period, and for some reason the notification did not reach her. When she found out the check had not been paid, she went directly to the intended payee and made the payment. A year later, she was stopped for a minor traffic violation and was arrested on an outstanding warrant for her arrest on the worthless check charge. At the time, she thought the matter had been taken care of and had no idea there was warrant out for her arrest. Respondent testified that she went before the judge, who noted that she had made good on the check more than a year before her arrest. Respondent admitted pleading no contest to the charge. However, Respondent’s understanding of "adjudication withheld" was that the judge had dismissed the charge, provided she pay the court costs. She never saw the Certificate of Disposition until Mr. Pence brought it to her attention several years later. Respondent's explanation for her failure to disclose the worthless check charge on her application is credited. It is found that, at the time she submitted her application, Respondent did not intend to mislead or deceive those who would be reviewing her application. In so finding, it is observed that Respondent's testimony was candid and her understanding of the disposition of the matter was reasonable, given the passage of time since the events in question, the minor nature of the underlying charge, and the fact that the judge acknowledged she had long since made good on the $19.00 check at issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be rendered dismissing the Administrative Complaint. DONE AND ENTERED this 30th day of March, 1999, in Tallahassee, Leon County, Florida. 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 30th day of March, 1999. COPIES FURNISHED: Daniel Villazon, Esquire Department of Business and Professional Regulation Division of Real Estate Post Office Box 1900 Orlando, Florida 32802-1900 Leonard H. Johnson, Esquire Schrader, Johnson, Auvil and Brock, P.A. Post Office Box 2337 37837 Meridian Avenue Dade City, Florida 33526-2337 William Woodyard Acting General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 James Kimbler Acting Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32302-1900
Findings Of Fact Respondent, Robert C. Akers, at all times relevant hereto, was a licensed real estate broker in Brooksville, Florida, having been issued license number 0000587 by Petitioner, Department of Professional Regulation. Victoria Weeks was employed by Respondent as a real estate salesperson. In May, 1978, Weeks negotiated the sale of a residence to be built on Lot 19, Block 7, Unit 2 of Hill 'N' Dale Subdivision in Hernando County, Florida, to Roseann Iannaccone. The sale was conditioned upon the buyer being approved by the Farmers Home Administration (FHA) for a mortgage loan of approximately $25,500. A part of the mortgage loan application was personally prepared by Iannaccone. Another part was prepared with the assistance of Akers' secretary. Respondent himself prepared or assisted in the preparation of two requests for verification of employment dated June 18, 1978, and April 3, 1979, respectively, which were a part of the application (Petitioner's Exhibit 1). Both verification sheets stated that Iannaccone was employed by Respondent in the position of secretary, that she earned approximately $30 to $40 per week, and that employment was considered to be "permanent". During the period of March, 1977, through August, 1980, Iannaccone was employed by Sam Sack, the developer of Ridge Manor, a subdivision in Hernando County. Sack shared office space with Akers' real estate firm, which handled sales within the subdivision. Although she worked for Sacks, Iannaccone also devoted a portion of her time to assist Akers and Weeks, who occupied the same office. She performed such jobs as typing, answering the telephone, sending out promotional letters, and cleaning the office. For this she was paid by Akers on a periodic basis, depending on the amount of work performed. Akers also advanced her money periodically which she "worked out" by performing various jobs in the office or at his home. The compensation averaged out to approximately $30 to $40 per week. This relationship continued until August, 1980, when Sam Sack left Brooksville; Iannaccone then moved from Brooksville to Seffner, Florida, where she now resides. During the time period in question, no payroll records were kept by Respondent, nor did he deduct her compensation for tax purposes. Similarly, Iannaccone did not report the money as income on her income tax return. When Iannaccone filed her application with the FHA, she was advised by the FHA to report all income on her application, regardless of whether it was for part-time employment, or whether it had been reported for income tax purposes (Respondent's Exhibit 2). For this reason, Akers filled out the verification of employment forms and reported that Iannaccone earned around $30 to $40 per week as his employee. Because her primary employer, Sam Sack, was expected to remain in the Brooksville area indefinitely, Akers also indicated that her employment with him would be permanent. Respondent has been a real estate broker-salesman in Brooksville for over 20 years. He has been president of the Hernando County Board of Realtors and is active in many civic and community affairs. He enjoys a reputation of honesty, integrity and fair dealing, and has never been the subject of any prior disciplinary proceedings. (Respondent's Exhibit 1).
Recommendation From the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the complaint against Robert C. Akers be dismissed. DONE AND ENTERED this 13th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1981.
The Issue The issue is whether Respondent is guilty of alleged acts and omissions constituting fraud, misrepresentation, concealment, false promises, false pretenses, dishonest dealing by trick, scheme or device, culpable negligence, or breach of trust in any business transaction, in violation of Section 475.25(1)(b), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed real estate broker, holding license number 0143761. As president of Mission Bay Homes, Inc., Respondent entered into a sales contract on February 13, 1995, with Edward and Debra Henderson. The contract contemplates that Mission Bay Homes, Inc., would construct a home on a lot and that, at closing, Mission Bay Homes, Inc., would present the Hendersons with an affidavit that the property was unencumbered by any liens for materials and labor. The closing took place on May 1, 1995. At closing, Respondent, as president of Mission Bay Homes, Inc., general contractor, executed and delivered an affidavit attesting that all parties had been paid except for two parties whose claims totaled $2796. The final paragraph of the affidavit states: In the event any of the matters herein sworn to, represented, and alleged, are not true and correct, affiants, jointly and severally (if more than one) agree to hold [the title company] harmless therefrom including all costs and reasonable attorneys fees i[n] connection therewith. On the same date, Respondent, as president of Mission Bay Homes, Inc., owner, executed and delivered another affidavit attesting that there were no liens against the property, without exception. In fact, Mission Bay Homes, Inc., had not paid, prior to closing, a plumbing subcontractor, Charlie Brown's Plumbing, Inc. Charlie Brown's Plumbing, Inc., filed a Claim of Lien on July 3, 1995, for work performed on April 19, 1995. The Claim of Lien is for $1175. The representative of Charlie Brown's Plumbing, Inc., who is the secretary and bookkeeper for the company and wife of the owner, admitted that the claim was excessive by $250. She testified that Respondent told her to combine their bills for the Henderson and other jobs. She also testified that she sent a Notice to Owner to Mission Bay Homes, Inc., on April 18, 1995. The representative of Charlie Brown's Plumbing, Inc., was not a credible witness. Besides admitting to filing a fraudulent Claim of Lien, which is a sworn document, and then filing an action in small claims court against the title company to recover this excessive amount, she could not produce a copy of the Notice to Owner that she claimed to have mailed to Mission Bay Homes, Inc., on April 19. She could only produce a copy of the return-receipt card, indicating that Mission Bay Homes, Inc., received something from her. However, she testified that she sent a statement that Mission Bay Homes, Inc., received on April 19. It is found that, prior to the closing, Charlie Brown Plumbing, Inc., sent Mission Bay Homes, Inc., a single document stating it was owed money on the Henderson job: this was a statement for $925. Charlie Brown Plumbing, Inc., sent the Hendersons a Notice to Owner, on May 16, 1995, claiming to be entitled to $1175. The Hendersons declined to pay. Charlie Brown Plumbing, Inc., later dismissed a small claims action against the title company after receiving $600 from the title company. Respondent's claim that he was unaware of an unpaid statement from Charlie Brown's Plumbing, Inc., is buttressed by the testimony of a former employee, who testified that she found no such invoice when she was preparing the closing papers. It is also unclear why Respondent would disclose two liens of nearly $2800 and conceal a third lien of about one- third as much. On the present record, it is impossible to find clear and convincing evidence that Respondent was aware of the invoice from Charlie Brown's Plumbing, Inc., prior to the Henderson closing. Charlie Brown Plumbing, Inc., sent an invoice, but it did not find its way into the Henderson file. At the time of this sale, Mission Bay Homes, Inc., was working on 20 homes involving millions of dollars. The record is relatively silent as to Respondent's actions following the commencement of the small claims action by Charlie Brown's Plumbing, Inc., and the $600 payment by the title company. More evidence as to Respondent's subsequent failure to honor his responsibilities might have provided a basis to infer a fraudulent intent at the time of closing. (Evidence of this later failure might have established a separate fraudulent act, but Petitioner did not charge Respondent with fraud for his acts and omissions after the closing.) On the present record, Petitioner has not proved by clear and convincing evidence its allegation that Respondent culpably failed to pay the plumbing invoice at the time of the closing.
Recommendation It is RECOMMENDED that the Florida Real Estate Commission enter a final order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 26th day of March, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1998. COPIES FURNISHED: Christine M. Ryall Senior Attorney Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900 Mark W. McFall, Esquire Post Office Box 60572 Fort Myers, Florida 33906 Lynda L. Goodgame, General Counsel Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Henry M. Solares, Division Director Division of Real Estate Department of Business and Professional Regulation Post Office Box 1900 Orlando, Florida 32802-1900
The Issue An Administrative Complaint dated October 21, 1998, alleges that Respondent committed violations of Chapter 475, Florida Statutes, by dishonest dealing, culpable negligence, or breach of trust; by failing to account for delivering certain funds; and by violating a lawful order of the Real Estate Commission. The issues in dispute are whether those violations occurred and if so, what penalty is appropriate.
Recommendation Based on the foregoing it is, hereby RECOMMENDED: that the Agency enter its Final Order finding Respondent did not commit the alleged violations and dismissing the Administrative Complaint. DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999. COPIES FURNISHED: Ghunise Coaxum, Esquire Department of Business and Professional Regulation Division of Real Estate 400 West Robinson Street N-308 Post Office Box 1900 Orlando, Florida 32802-1900 Howard Hadley, Esquire 2352 Carolton Road Maitland, Florida 32751-3625 Herbert S. Fecker, Division Director Division of Real Estate Department of Business and Professional Regulation 400 West Robinson Street Post Office Box 1900 Orlando, Florida 32802-1900 William Woodyard, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is a state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida, in particular, Section 20.30, Florida Statutes, Chapters 120, 455 and 475, Florida Statutes and the rules promulgated pursuant thereto. The Respondent, Patricia Sue Shelley, is now and was at all times material hereto a licensed real estate salesperson in the State of Florida having been issued license number 0454282 in accordance with Chapter 475, Florida Statutes. The last license issued was effective 3/10/92, with a home address of 2413 Euston Road, Winter Park, Florida 32789-3416. From July 9, 1990 to December 5, 1990, the Respondent was licensed as a real estate salesperson with Don Gallagher, Inc. t/a The Prudential Gallagher Properties (Petitioner's Exhibit #4). Her status was property manager. While employed as the property manager the Respondent collected $1,450 in rental funds during November and December 1990, but failed to deliver the rental funds to her employing broker. The Respondent and the broker had an ongoing commission dispute and the Respondent kept the $1,450 because she felt that the broker owed her the money. On December 7, 1990, the Respondent delivered a check from her personal account in the amount of $1,450, to the broker notated: "$ rent for Curry Ford and Dover Circle". These were properties being managed by the broker. (Petitioner's Exhibit #1). On December 8, 1990, the broker deposited the Respondent's check into escrow, but the check was returned annotated: "payment stopped do not redeposit." (Petitioner's Exhibit #2). On December 17, 1990, employing broker Don Gallagher sent the Respondent a demand letter, but the Respondent refused to deliver the trust funds to Don Gallagher. (Petitioner's Exhibit #3). Petitioner's husband recommended that she keep the rental money and get with Don Gallagher about the commission. He later recommended that she just give the money back and is not sure why she did not. She has been under a physician's care for manic depression for about 1 1/2 years. Ms. Shelley's license record includes no other alleged violations or discipline.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: that a Final Order be entered, finding Patricia Sue Shelley violated Sections 475.25(1)(e) and (k), F.S., suspending her license for two years, with the condition that the suspension be lifted anytime after 90 days, if restitution of $1,450 is made to her former employer/broker. After suspension is lifted, Respondent should be placed on probation for one year under such conditions as may be appropriate, including participation in continuing education courses regarding the handling of deposits and other funds received in trust. DONE and ENTERED this 29th day of October, 1992, at Tallahassee, Florida. MARY CLARK 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: Steven W. Johnson, Esquire Department of Professional Regulation Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802 Patricia Sue Shelley, pro se 2413 Euston Road Winter Park, FL 32789-3416 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32802-1900
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
The Issue Whether the Petitioner, Sheila A. Cunningham, was subject to an unlawful employment practice by Respondent, Florida Credit Union, on account of her race or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct testimony as to the number of persons employed by Respondent. However, given the testimony describing a large financial institution with multiple departments, including a data scanning department and a call center, there is sufficient competent, substantial evidence to establish an inference that Respondent employs more than 15 full-time employees at any given time. Petitioner was first hired by Respondent on November 20, 2007. On February 2, 2008, she was transferred to the position of Courtesy Pay Credit Advisor (CPCA), a position held until her termination on March 21, 2014. From 2012 through the time of her termination, Jennifer Perez was Petitioner’s direct supervisor. Ms. Perez reported to Mr. Colson, who supervised the credit advisor department. Over the years, Petitioner received a number of certificates and awards for good performance in her position. CPCAs are responsible for collections on delinquent accounts of members by bringing the account to a positive balance within 60 days of delinquency. If a credit union member’s account is delinquent for more than 60 days, it must be written off, resulting in a loss to Respondent. Failure to timely write-off a negative account can subject Respondent to fines and negative audit ratings. A common way of bringing an account current is to arrange a loan with Respondent to pay the delinquent balance. Loan types include a “bounce-free” loan and a “work-out loan.” Both are designed to allow for payment of the negative account in installment payments. The bounce-free loan has only the negative account balance involved, while the work-out loan combines the negative balance with another existing loan. CPCAs receive additional compensation for such loans, known as “incentives,” of $10 to $15, though the record suggests that a dispute over an incentive of $40 was a triggering cause of the adverse employment action in this case. CPCAs are also responsible for “packing” loans, which includes taking the loan paperwork to the optical department to input and image the documents into Respondent’s system. The optical department periodically provides reports on loans for which documentation has not been submitted for input and imaging. Petitioner testified credibly that the optical department would occasionally neglect to scan loans that were submitted. However, there was no evidence to suggest that to be a frequent or pervasive problem. Respondent routinely employs one or two CPCAs at any given time. The CPCAs are assigned a “queue,” which is an alphabetical assignment of member accounts. The evidence suggests that Petitioner served as the CPCA for all delinquent member accounts for a period of almost one year, a practice that ended when Vikki Martello was hired as a CPCA on February 27, 2012. Upon her hiring, Ms. Martello was assigned the accounts of members with last names beginning with the letters A through K, and Petitioner was assigned the accounts of members with last names beginning with the letters L through Z. Ms. Martello was transferred to another position on July 11, 2013. Jennifer Munyan was hired as a CPCA on May 20, 2013, and was assigned the A through K queue. Since Petitioner’s termination, Ms. Munyan has handled all delinquent accounts. Petitioner mentioned several incidents over the course of her employment that she believed to be evidence of her poor treatment by Respondent. These incidents appear to have occurred more than one year before Petitioner filed her employment complaint of discrimination. They are cited here for purposes of background. Petitioner testified that starting in 2010 or 2011, Respondent began to hire younger credit advisors on the basis of their friendship with management. The new employees engaged in childish activities such as throwing paper clips and blowing bubbles. Petitioner indicated that they were “written up” for those activities. There was no suggestion that either the hiring or the write-ups were based on race. For a period of time, Petitioner was assigned what she believed to be a disproportionate share of holiday weekend shifts. Mr. Colson “corrected that and then that was okay.” There was no suggestion that the issues with scheduling were based on race. Shortly after Ms. Martello was hired on February 27, 2012, she was asked to accompany Mr. Colson and Ms. Perez to a branch office to train employees. Petitioner felt “that was not right,” and that she was being excluded from performing certain job tasks. She testified that Respondent’s assignment of training and other duties to persons other than herself led to a sympathetic nick-name of “invisible credit advisor.” Petitioner admitted that, in her opinion, Ms. Martello was an excellent employee. Mr. Colson testified credibly that Petitioner was not asked to assist in the new hire training since she was already behind on managing her accounts, and that “[t]here’s no compensation or award or anything for training another employee, it's just additional work.” There was no suggestion that the decision to have Ms. Martello assist with training was based on race. Petitioner alleged that despite her requests, she was not allowed to shadow other employees, particularly in the call center, so that she could learn the responsibilities of the member service representative position. She testified that in response to her requests, Ms. Perez would say “okay, we'll see about it, but nothing never happened. And I asked like three or four times and it was always we'll see about it.” Petitioner did not claim in her testimony that she was denied these opportunities because of her race. Petitioner generally claimed she was denied promotional opportunities because she was not allowed to train as a back-up. However, she failed to present any evidence of an open and available position for which she had applied, or for which she was denied. Furthermore, there was no suggestion that race played a role in any such denial. Respondent’s employees are informed of work performance issues in several ways, including informal discussions, e-mail communication, individual or group meetings, coaching reports, and annual evaluations. On March 19, 2012, Petitioner received her annual performance review. Although Respondent was complementary of Petitioner’s improvements in her work, and spoke favorably of her interpersonal relationships and work ethic, the review noted a number of “improvement opportunities and development areas” to be implemented over the course of the following year. Deficiencies in job performance included Petitioner’s practice of making initial contact with a delinquent member by letter, rather than the more effective practice of a phone call; the failure to provide sufficiently descriptive account notations; the failure to “charge off” loans correctly resulting in errors for others to correct; the failure to close checking accounts after workout options or loans were complete resulting in further delinquencies; and the failure to set up loan distributions correctly, resulting in unwarranted loan delinquencies and resultant customer complaints. The performance review also cited issues with Petitioner’s negative accounts extending beyond the required time frame, which was noted in Respondent’s quarterly audit report. The deficiencies noted in the performance review resulted in higher than normal charge-offs, and losses to Respondent. Petitioner improved her performance in some areas, but only for short periods of time. Mr. Colson did not issue Petitioner any coaching reports in 2012 because he believed that Petitioner’s mistakes were not intentional, that she had a positive attitude, that she had no attendance issues, and that “she seemed to like her job a lot.” It was Mr. Colson’s belief that with additional training and a cooperative approach, Petitioner’s performance issues could be corrected. On February 27, 2013, Petitioner received her next annual performance review. Petitioner was again complemented on her interaction with members, her teamwork, and her general positive work ethic. It was noted that Petitioner had responded well to coaching such that she rarely made mistakes in setting up automatic loan payments. The review noted, however, a number of areas for improvement, including some that had not been resolved from the previous year’s review. Of particular concern was the high number of missing loan packets, some of which were months past due; the failure to meet consecutive deadlines for submitting completed work; and the failure to begin work on accounts in an appropriate and timely manner. Petitioner was again instructed to make initial contact with delinquent members by phone or email, rather than by letter; and was advised of several of her accounts that were charged-off after missing the 60-day deadline. Finally, Petitioner was provided with a printout of the 142 overdrawn checking accounts in her queue, only 40 of which (28 percent), had been worked in the previous 60 days. Although some early-stage overdraft accounts carried a “high self-cure rate,” the low number of accounts worked was deemed unacceptably low. After receiving her 2013 performance review, Petitioner improved in some areas of her performance, but again only for a short period of time. Beginning on July 15, 2013, Petitioner, Ms. Martello (until she completed her transfer from the collections department), and Ms. Munyan (upon her assignment to the collections department) were provided with periodic email updates from Ms. Perez on the number of loan packets for which each was responsible that had not been submitted to the optical department. The updates and related correspondence between Petitioner and Ms. Perez revealed the following: July 15, 2013 Petitioner - 37 missing loan packets Ms. Martello - 4 missing loan packets July 19, 2013 Petitioner - 36 missing loan packets Ms. Martello - 6 missing loan packets July 30, 2013 Petitioner - 34 missing loan packets Ms. Martello - 5 missing loan packets August 5, 2013 Petitioner - 29 missing loan packets Ms. Martello - 2 missing loan packets Ms. Munyan - 1 missing loan packet August 14, 2013 Petitioner - 31 missing loan packets Ms. Munyan - 2 missing loan packets August 19, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets August 27, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 4 missing loan packets September 3, 2013 Petitioner - 38 missing loan packets Ms. Munyan - 5 missing loan packets September 10, 2013 Petitioner - 42 missing loan packets Ms. Munyan - 5 missing loan packets September 16, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 4 missing loan packets On September 18, 2013, Ms. Perez sent an email to Petitioner and Ms. Munyan advising them that credit union auditors were scheduled to arrive on September 30, 2013. Thus, Petitioner and Ms. Munyan were instructed to “[m]ake sure all of your loan packets are up to date, so that no one comes to us requesting something that cannot be located.” October 1, 2013 (for loan packets through September 27) Petitioner - 38 missing loan packets Ms. Munyan - 3 missing loan packets The October 1, 2013, update further advised Petitioner and Ms. Munyan that “[t]he auditors are here for the next three weeks. If they review any of these loans, it will be a problem that we do not have them scanned yet and if we are missing documents. Please get these turned in this week!” On October 12, 2013, Petitioner sent Ms. Perez an email stating that “I worked on some loan packets on 10/12. Please don’t send email until I turn my loan packets in on 10/16.” October 25, 2013 Petitioner - 20 missing loan packets Ms. Munyan - 7 missing loan packets November 4, 2013 Petitioner - 28 missing loan packets Ms. Munyan - 4 missing loan packets November 12, 2013 Petitioner - 33 missing loan packets Ms. Munyan - 5 missing loan packets On November 15, 2013, Petitioner sent Ms. Perez an email stating that “Optical have some loan packets that were turned in today, please don’t send out list until after 11/18/13.” November 22, 2013 Petitioner - 35 missing loan packets Ms. Munyan - 7 missing loan packets December 11, 2013 Petitioner - 41 missing loan packets Ms. Munyan - 1 missing loan packet December 18, 2013 Petitioner - 32 missing loan packets Ms. Munyan - 2 missing loan packets On October 9, 2013, Mr. Colson met with Petitioner and Ms. Munyan to discuss the results of an attorney audit that was critical of several collections practices. In particular, too many accounts were not being worked until the later stage of delinquency; too much time was allowed to elapse between contacts with the members; and workflow notations were not properly completed. A spreadsheet provided during the October 9, 2013, meeting revealed that Petitioner had 92 accounts in her queue, 57 of which had never been worked. Ms. Munyan had 90 accounts in her queue, 25 of which had never been worked. In November of 2013, Petitioner spoke with Ms. Perez regarding an incident in which Petitioner alleged that Ms. Munyan claimed one of her incentive credits. Ms. Perez advised Petitioner to come back to her if it occurred again. Ms. Perez discussed the incentive issue with Mr. Colson. They determined that, due to a high volume of negative accounts anticipated over the upcoming holidays, and in recognition of the priority on not missing an opportunity to resolve negative accounts, a policy for incentives when a CPCA had to handle incoming calls and loan requests from members who were not in the CPCA’s queue was warranted. On November 19, 2013, Ms. Perez sent an e-mail to Petitioner and Ms. Munyan setting out the policy for handling calls when the other CPCA was not available. Outgoing calls and loan initiation were limited to customers within the CPCA’s queue. However, if a CPCA was not in the office or was unavailable to handle a customer request, the other CPCA was instructed to accept incoming calls from members not in their queue. The CPCA who first entered notes of a customer contact prior to a loan being booked was to receive the incentive. On December 9, 2013, Ms. Munyan received a communication from a member with a negative account, entered the first notes of contact with the member into the workflow history, and sent loan paperwork for a bounce-free loan to the member. On December 10, 2013, Petitioner spoke with the customer and took additional application information over the phone. Later that same day, Petitioner went to Mr. Colson to approve a refinance loan for the customer. Mr. Colson approved Petitioner to proceed with the refinance loan based on the customer’s income, but did not know at the time that Ms. Munyan had already started the loan process. Since Ms. Munyan made the first contact with the customer, the incentive was credited to Ms. Munyan. Petitioner proceeded to make several entries on the workflow history asserting her claim to the incentive. Petitioner apparently discussed the matter within the office, leading to her testimony that “[t]he department was upset about it because I showed it to them.” In December 2013, having been made aware of the workflow history comments regarding the disputed incentive; having received complaints regarding Petitioner from the manager of Respondent’s contact center; and having continuing issues with Petitioner’s failure to submit loan documents to the optical department, Mr. Colson prepared a series of coaching reports to individually address the issues. It was decided to issue separate coaching reports for each issue of concern, rather than a single lengthy report, in order to keep the issues separate. Respondent has previously issued multiple coaching reports to employees under comparable circumstances. On December 20, 2013, Petitioner was called into a meeting with Mr. Colson. She thought the meeting was to discuss the disputed incentive. Instead, she was presented with the coaching reports. The first coaching report was issued for Petitioner’s notations into the workflow system related to her intent to claim the disputed incentive credit. Petitioner had previously received training on the information to be entered in the workflow system. During the training sessions, which were conducted periodically, and which included the distribution of printed materials, it was stressed that the workflow notes should not be editorial or contain side comments. Mr. Colson explained that, in the event of a legal dispute with a member regarding their account, the collection record, including the notations entered into the workflow system, would be made part of a court record. As applied to Petitioner’s notations, Mr. Colson was concerned about having to testify about notations in the collection record regarding incentives or commissions for working on a work-out request. Petitioner alleged that Ms. Martello and other unidentified credit advisors made similar notations in the workflow system without being written up, but provided no evidence to support her assertion. Mr. Colson knew of no other instance of a CPCA making notations in the workflow system related to an incentive dispute or other internal employee dispute. Mr. Colson believed that the notations made by Petitioner regarding the incentive dispute were not pertinent to the collection record, thus violating Respondent’s policy and warranting the issuance of the coaching report. Petitioner signed the first coaching report, with the comment that “I thought that I was doing the right thing on this acct.” The second coaching report addressed Petitioner’s act of taking a fee refund voucher to Respondent’s contact center department for approval. The contact center has staff on duty beyond Respondent’s normal 8:30 a.m. to 5:00 p.m. business hours. The fee refund had to be done on November 25, 2013, since that was the 60th day of the negative account, after which the account would have to be written off. The fee refund was for an amount that exceeded Petitioner’s approval authority. Despite the time frame involved, Petitioner did not get the fee refund voucher approved by the clerk of the collections department, which would be the normal course, before the 5:00 p.m. close of business. During the December 20, 2013, meeting, Mr. Colson discussed the practice of taking vouchers to the call center for processing after 5:00 p.m. Mr. Colson had been approached by the assistant vice president of the contact center regarding Petitioner’s multiple visits after 5:00 p.m. to his department “to have transactions done, fees refunded, things of that nature on members' accounts.” As a result, call center employees were being pulled away from their normal tasks to do transactions that were not a normal function of their job. Petitioner alleged that other credit advisors went to the call center to have such transactions processed, including Ms. Martello, Melonice Lindsey, and Howard Miller, but provided no evidence to support her assertion. Mr. Colson had no knowledge of other credit advisors who engaged in this activity, or any other improprieties regarding the processing of fee refunds. The second coaching report addressed additional issues related to the November 25, 2013, fee refund transaction, including the fact that Petitioner did not work on the sixty-day negative account when she arrived to work that morning, and that she did not enter any notation in the workflow history regarding the fee refund. Mr. Colson believed that the issues regarding the fee refund transaction warranted the issuance of the coaching report. Petitioner signed the second coaching report, with the comment that “I didn’t do this intentionally. I forgot to get voucher back from Katie to give to [Mr. Colson] to sign.” The third coaching report addressed the ongoing problem of Petitioner’s failure to provide loan documentation to the optical department for input and scanning, the details of which are set forth in paragraph 22 above. Petitioner signed the report with the comment that “[s]ome of these loans have been turned into optical. I will review this matter.” Petitioner alleged that other employees had fallen behind on submitting paperwork, but were not written up or terminated. Petitioner did not identify, by name or race, any of the allegedly comparable employees, or establish that they had a comparable history of failing to submit loan documentation. The only evidence adduced at the hearing established that Ms. Martello and Ms. Munyan were not comparable to Petitioner in the number or frequency of late-submitted loan packets. Petitioner stated that she had previously advised Ms. Perez of her intent to work on Saturday, December 21, 2013, to catch up on her loan paperwork. Mr. Colson was not aware of Petitioner’s intent to do so but, given the length of time that the problem continued to exist, would still have issued the coaching report to Petitioner. At some point after January 2, 2014, during Mr. Colson’s daily review of compliance reports, he noted an account that was over 60 days, requiring that it be written off. The account was assigned to Petitioner, and Mr. Colson saw from the workflow history that Petitioner did not begin work on the account until it was 58 days past due. Working her accounts earlier in the delinquency stage had been previously addressed with Petitioner. On January 6, 2014, Petitioner was given a coaching report and placed on a 60-day probation for deficient work performance related to the written-off account. Petitioner signed the January 6, 2014, coaching report with the comment that “voucher was paperclip to another voucher by mistake. I usually check these daily.” Petitioner testified that other employees failed to timely charge-off accounts but were not counseled, but provided no evidence to support her assertion. The only comparator for whom evidence was received was Khrissy Adams, a Caucasian woman, who was given a coaching report and placed on a 30-day probation for failing to timely write-off an account. There was no evidence of Ms. Adams having received previous coaching reports so as to warrant a lengthier period of probation, as was given to Petitioner. As part of the process established after the December 20, 2013, meeting and coaching reports, Petitioner was to submit her loan packets to either Ms. Perez or Mr. Colson for review before they were sent to be scanned. That review revealed that a large number of the loan packets contained significant errors in the consumer lending plan, which is the contract a member signs to obtain a loan. Many of the consumer lending plans had missing signatures, and some packets had no consumer lending plan at all. Furthermore, Petitioner indicated that some members elected to purchase loan insurance when the member had, in fact, declined insurance, resulting in unapproved charges to a member. The errors noted by Respondent were serious, potentially resulting in the loan contracts being invalid and unenforceable. The errors could have been violative of Regulation Z, which governs fair lending practices and, if there were a sufficient number of instances, resulted in a class action lawsuit against Respondent, exposing it to considerable cost. Due to the ongoing performance issues, as well as the severity of the issues related to Petitioner’s completed loan packets, the decision was made that termination of Petitioner’s employment was appropriate. Petitioner was thereafter terminated from employment on March 21, 2014. Petitioner identified no instance of any racially- disparaging comments directed at herself or any other employee by anyone affiliated with Respondent. There was no non-hearsay evidence of any employee outside of Petitioner’s protected class who engaged in conduct similar to that of Petitioner, but without consequence, upon which to support a finding that the employee was treated more favorably. Mr. Colson testified credibly that Petitioner’s race had no bearing on the decision to terminate her employment. Rather, Mr. Colson testified convincingly that the decision was based solely on Petitioner’s continuing and increasingly poor job performance. Mr. Colson felt Petitioner’s poor performance was not due to a lack of trying on Petitioner’s part; it was simply the result of a lack of ability on her part. Petitioner asserted that she was written up, placed on probation, and subsequently terminated from employment in retaliation for complaining that Ms. Munyan improperly claimed her incentive. In that regard, she testified that: I know that by me going to management . . . it really started all this, I think, because I’m thinking to myself, if I would have just kept my mouth shut, maybe I would have had my job, but other employees have went to Mr. Colson before with problems like that . . . . But my thing is, after I went to management I get written up out of retaliation. I got blind-sided. I didn’t know that was going to happen. And, to me, that’s retaliation. Petitioner does not claim that she was denied the incentive credit because or her race. Finally, Petitioner complained that some of her personal belonging were damaged or not returned to her after her employment was terminated, testifying that “[t]hey broke up all of my things and, to me, that was not right. To me, that was discriminative.” Even if there were some evidence that Petitioner’s belongings had been damaged on purpose -- which there was not -- there was no evidence that such damage was the result of racial animus. A review of the entire record of this proceeding reveals not a shred of evidence that any of the employment actions of which Petitioner complains were the result of racial bias or discrimination. The only testimony that can be reasonably read as suggesting some racial bias behind the employment actions at issue are Petitioner’s testimony as follows: and I know that discrimination do exist. I do know that’s a problem all across the board in America . . . [a]nd if I did not feel that I was discriminated against I would never have did all this . . . but my thing is I know there’s favorites at that credit union. I know that certain people get away with things. To me, I was discriminated against, I'm gonna say for the record, because of my race, because if I think that I know within my heart if the tables were turned, if I was white and went to management, I would still had a job because to me it just got blown out of proportion by me going to management. And as everyone can clearly see, it all started from there, because if it wasn't started from there, why would I have gotten written up in first place for my work that happened prior to, you know, that -- you know, that year? So, that's what started that. So my point is, is that if I wouldn't have never said anything, I would have probably still been working there. In the absence of some corroborative evidence, Petitioner’s statements alone cannot provide the support to sustain a charge of racial discrimination. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race. Rather, the decision was based on Petitioner’s performance in her job as reflected in the employee coaching reports. Furthermore, there was no competent, substantial evidence adduced at the hearing that persons who were not African-American were treated differently from Petitioner, or were subject to dissimilar personnel policies and practices. There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made in retaliation for Petitioner’s opposition to an unlawful employment practice. Rather, to the extent there was some retaliation involved, it was for bringing an internal employee complaint over a disputed incentive to management, a complaint that had no implication of race.
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 Respondent, Florida Credit Union, did not commit any unlawful employment practice as to Petitioner, Sheila A. Cunningham, and dismissing the Petition for Relief filed in FCHR No. 2014-00645. DONE AND ENTERED this 6th day of May, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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, 2015. COPIES FURNISHED: Sheila Annette Cunningham 1835 Northwest 27th Avenue Ocala, Florida 34475 Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 R. Michelle Tatum, Esquire John E. Duvall, Esquire Ford and Harrison, LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
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 Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, 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 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, 2018.
