The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
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 that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
The Issue The issue in this case is whether Petitioners, Smith Child Care Center and Sarah Smith (Petitioners),1/ are entitled to an award of attorney's fees and costs to be paid by Respondent, Department of Children and Families (Respondent or the Department), pursuant to section 57.111, Florida Statutes (2009).2/
Findings Of Fact As fully described in the underlying proceeding, the disciplinary action against Petitioners arose primarily from an incident occurring on September 4, 2009, involving two licensed child care facilities owned and operated by Petitioner Sarah Smith--Petitioner Smith Child Care Center and another facility called Heaven's Little Angels. Events at the two facilities were inexorably intertwined, with Ms. Smith serving as the common denominator. As an abbreviated summary of the September 4, 2009, incident, Ms. Smith had been found to be out of compliance with square footage requirements for the number of children at Smith Child Care Center. To rectify that problem, she caused many more problems by having a young child transported from Smith Child Care Center, where the child was registered and where his file remained, to Ms. Smith's other facility, Heaven's Little Angels. The child was sick and became unresponsive while at Heaven's Little Angels, but the other facility did not have his file and did not even know his name. Emergency responders were called and had to deal with the sick child without his file and without any information about his medical history. Ms. Smith was called at Smith Child Care Center to come to Heaven's Little Angels with the file, but she brought the wrong file and had to go back for the correct file. The child ultimately recovered after being taken to the hospital, but the situation led to investigations at both facilities and to the disciplinary action litigated in the underlying proceeding. At the time of the September 4, 2009, incident, Ms. Smith's license to operate Smith Child Care Center was approaching its expiration, requiring an application by Ms. Smith for license renewal. On January 22, 2010, the Department issued a notice of intent to deny Ms. Smith's application for renewal of the license to operate Smith Child Care Center. As set forth in the notice, the proposed denial was predicated on charges of alleged violations of licensure rules, most of which stemmed from the Department's investigation of the September 4, 2009, incident. The notice was self- described as an Administrative Complaint, because the denial of the renewal application was a disciplinary action. On February 11, 2010, Petitioners filed a request for an administrative hearing to challenge the proposed agency action. On May 28, 2010, the Department moved to amend its notice of denial, which served as the charging document, and that motion was granted. The amended notice of denial was similar to the initial notice, except that it revised a charge of failure to respond to the emergency needs of a child, which was factually directed to Heaven's Little Angels. Instead, the charge predicated on the same incident was recast as a failure to adequately supervise a child in the care of Smith Child Care Center by transporting the child to the other facility (Heaven's Little Angels) without parental permission or knowledge and without the child's file.3/ Both the original charging document and the revised charging document included other charges arising from the same September 4, 2009, incident, the most serious of which was the alleged failure to transport the child in an appropriate child safety seat, a Class I violation presenting a serious risk of imminent harm to the child. Petitioners were also charged with violating the licensure rule requirements for maintaining transportation logs. Among other alleged deficiencies, the charging documents alleged that the transportation logs failed to reflect the transport of the child involved in the September 4, 2009, incident from Smith Child Care Center to Ms. Smith's other child care facility. In addition, both charging documents alleged a violation of the square footage requirements at Smith Child Care Center. The information on which the Department predicated its charges in both the original and the amended charging document is found in reports of inspections and investigations contemporaneously prepared by the Department staff who conducted the inspections and investigations. For the violations alleged, both the original and amended charging document proposed denial of the Smith Child Care Center renewal license. At some point before the final hearing in the underlying proceeding, Ms. Smith's other child care facility, Heaven's Little Angels, was closed. The circumstances of the closure were not established in the record. However, Petitioners acknowledged in their reply to the Department's response4/ that the former director of Heaven's Little Angels was disciplined for her role in the September 4, 2009, incident. The final hearing in the underlying proceeding was initially scheduled in early July 2010, but Petitioners sought and obtained an unopposed continuance, and the hearing was ultimately held on October 21 and 22, 2010. In the interim, Ms. Smith was allowed to continue to operate Smith Child Care Center, subject to frequent inspection monitoring by the Department. In an inspection conducted in December 2009, the Department inspector found only one noncompliance issue on a minor item. In two subsequent inspections conducted in 2010, no violations were found. The Department took into account the frequent inspections in the interim leading up to the final hearing in the underlying proceeding. Department witnesses attested to the increasing comfort they had with Ms. Smith operating Smith Child Care Center because of the recent track record of improved performance over time. In part, the improvement was attributed to the closure of Heaven's Little Angels, allowing Ms. Smith to focus her time and attention on ensuring regulatory compliance at a single facility. As a result, the Department announced at the beginning of the final hearing that it was changing the proposed penalty it would advocate for the alleged violations from denial of license renewal to granting the renewal application, but imposing conditions and other discipline as penalties. As detailed in the Recommended and Final Orders in the underlying proceeding, the Department proved by clear and convincing evidence the factual predicate for substantially all of its charges. The inspection reports in evidence were largely corroborated by the Department staff who conducted the inspections and who testified at the final hearing. The material allegations regarding the September 4, 2009, incident were established as charged; the serious Class I violation of failure to transport a child in an appropriate child safety seat was established as charged; the failure to adequately supervise the child who was inappropriately sent to Ms. Smith's other facility without his file and without his parent's permission or knowledge was established as charged; and the numerous defects in Smith Child Care Center's transportation logs were established as charged. Although the Department chose to remove from its charging document the charges directed at Ms. Smith's other child care facility, the record evidence showed the factual and legal support for those charges against Ms. Smith as the owner and operator of the other facility, the now-closed Heaven's Little Angels. Rather than drop those charges outright, the Department could have sought to amend the charging document to name Heaven's Little Angels as an additional Respondent, or the Department could have issued a second administrative complaint against Ms. Smith and Heaven's Little Angels, and then moved to consolidate the two related proceedings. There can be no doubt from the evidence in the underlying proceeding that the two facilities, linked by the common owner and licensee, were inexorably intertwined, particularly with respect to the September 4, 2009, incident. The record in the underlying proceeding does not support an inference that the Department did not pursue additional charges against Ms. Smith and the now- closed Heaven's Little Angels based on any perceived infirmity in the merits of such charges. The Department also chose to not pursue the charges against Smith Child Care Center for violating square footage requirements. However, Ms. Smith essentially admitted that this violation occurred and, indeed, it was the impetus for her decision to have a child transported (improperly, without child safety seat and without his file) to her other facility, Heaven's Little Angels. Ms. Smith had to reduce the number of children at Smith Child Care Center so that facility would comply with the square footage rule, which requires a certain number of square feet per child. Fla. Admin. Code R. 65C-22.02(3)(a). Given Ms. Smith's admission, it cannot be inferred that the Department chose to not pursue this charge based on a perceived lack of merits. One alleged violation that was actually litigated to final resolution and that was found not proven by clear and convincing evidence was the charge that Petitioners were transporting too many children at once, exceeding the maximum capacity of Petitioners' van. However, the failure of proof on this charge was due to another violation that was proven. Petitioners' transportation logs were in such disarray that they provided both reasonable cause to believe that the van's capacity was regularly exceeded and doubt to clearly establish that that was, in fact, the case. The only other charge that was actually litigated and that was not proven by clear and convincing evidence was the allegation that Petitioners twice violated the rule requiring that cleaning supplies be kept inaccessible to children. The Department established the first violation of the cleaning supply rule, but was unable to prove the second alleged violation, which was cited in the September 4, 2009, inspection report. The Department staff person who conducted the September 4, 2009, inspection testified that she prepared the inspection report contemporaneously with conducting the inspection and that she made the finding that cleaning supplies were accessible to children; however, more than one year later, she was unable to specifically recall what cleaning supplies she discovered or where exactly they were. At the final hearing, Ms. Smith denied that there was any such violation on September 4, 2009. The inspection report prepared by the inspector during her inspection on September 4, 2009, was adequate to provide a reasonable basis for this alleged violation, although it was not sufficiently specific and detailed to meet the exacting standard of clear and convincing proof, when coupled with Ms. Smith's contrary testimony. The section 57.111 petition seeks attorney's fees and costs for having to defend against the denial of Ms. Smith's license renewal for Smith Child Care Center. Petitioners acknowledge they did not prevail on all issues, but claim they prevailed on "significant issues." According to Petitioners, they prevailed because Ms. Smith was able to keep her license, and because the Department abandoned its charge of child abuse and neglect when it amended the charging document in May 2010. (See footnote 3 for a discussion of the child abuse and neglect reference in the charging documents, which was not dropped.) The affidavit of Petitioners' counsel includes time entries back to October 8, 2009, predating the initiation of the underlying proceeding by three and one-half months. The substantial majority of time entries and the substantial majority of fees sought were incurred after May 28, 2010, which was when the Department moved to amend the charging document to delete the count against Ms. Smith that was factually related to her other child care facility. Petitioners did not attempt to allocate the total fees and costs claimed to apportion the total between issues on which Petitioners argue they prevailed and issues on which Petitioners admit they did not prevail. Instead, Petitioners' request for attorney's fees and costs was expressly for the entire amount, including those incurred before the underlying proceeding was even initiated and those incurred in litigating issues as to which Petitioners admittedly did not prevail.5/
The Issue Did Respondent engage in unlawful employment practices against Petitioner on the basis of race, and if so, what remedies are available to redress the wrong? Sections 760.10 and 760.11, Florida Statutes.
Findings Of Fact Petitioner meets the definition of "person" in Section 760.02(6), Florida Statutes, entitled to assert claims for relief under the Florida Civil Rights Act. It was not disputed that Respondent is an "employer" within the meaning Section 760.02(7), Florida Statutes. Based upon the record it is inferred that Respondent is an employer subject to the Florida Civil Rights Act in the conduct of its employment practices. Respondent is a corporation with three shareholders who each have a one-third interest in the business. In the corporation the shareholders are Vehad Ghagvini and his brothers. Vehad Ghagvini is the president of the corporation and responsible for the day-to-day operation. Vicki Goodman serves as the Human Resources Administrator for the company and is responsible for matters associated with claims of discrimination by company employees. At times relevant Larry Smith was a supervisor for Respondent. On two separate occasions Petitioner worked for Respondent. The first occasion was from November 8, 1999, through June 7, 2000. His position with the company was that of a laborer. When he separated from employment on June 7, 2000, it was based upon his own decision. At that time it was indicated in his personnel record that Petitioner would be subject to being rehired and it was commented that Petitioner was considered to be a hard worker and reliable. The personnel records show the signature of Larry Smith as supervisor when Petitioner terminated his employment with Respondent on June 7, 2000. Petitioner returned to employment with Respondent in October 2000, and was involuntarily terminated on December 5, 2000, from his position of a laborer. According to the papers describing his separation from employment on December 5, 2000, he was terminated for "failure to attend job responsibilities; excessive absences on Saturdays." The form indicated that his work evaluation was poor. It was indicated that Respondent did not intend to rehire Petitioner beyond that date. Other comments in the discharge indicated that Petitioner "was a reliable and diligent worker during previous employment with the company but failed to work to same standards this time around." Petitioner was required to work on Saturday. He did not work on October 7, 2000, a Saturday, the Saturday of the week of October 9, 2000, the Saturday of the week of October 23, 2000, the Saturday of the week of October 30, 2000, the Saturday of the week of November 13, 2000, and Saturday, December 2, 2000. During this time frame Petitioner worked as a service truck operator with duties that included fueling Respondent's equipment on road construction jobs that were ongoing on the Saturday dates that Petitioner missed. Before his termination Petitioner had been counseled on October 17, 2000, and in November 2000 concerning his absences on Saturdays. Petitioner's testimony that he was only required to work on Saturday on a voluntary basis and that meant that he only needed to work one Saturday in his more recent employment is not accepted. Attached to Respondent's Exhibit numbered 5 is an EEO summary from Respondent pointing out that employees of various races had been subject to termination in a pattern that does not discriminate based upon race. Petitioner's termination on December 5, 2000, is in keeping with that practice. Petitioner has portrayed his dismissal from employment with Respondent as originating with his mistreatment by his supervisor, Larry Smith, not his absence from the job. As Petitioner describes it, about a week or two before he was terminated in December 2000, Larry Smith approached Petitioner and told Petitioner that he did not want Petitioner having conversations with females on the job. Petitioner is an African-American. At that time there were two Caucasian females working at the same location Petitioner worked. In particular, one of the females on the job asked Petitioner to take her position directing traffic on the roadway while she went to the restroom. Before she returned Mr. Smith pulled up and saw Petitioner holding the flag for directing traffic. Mr. Smith asked Petitioner why he was holding the flag. Petitioner explained that he was helping the female employee while she went to the restroom by directing traffic until she returned. Later Mr. Smith came back and told Petitioner that he did not want Petitioner having conversations with that female employee. Petitioner surmised that the reason that Mr. Smith had for Petitioner not speaking to the female employee was in relation to the difference in their races, Petitioner's race and that of the female employee. This opinion was reinforced in Petitioner's mind because a similar conversation about not speaking to the female employee occurred three times. Mr. Smith stated his position in such a manner as to have his comments pertain to both female employees on the job. Mr. Smith's remarks were not stated in a manner where he literally said that he did not wish Petitioner to speak to the female employees because Petitioner was an African- American or Black and that the other persons were Caucasian or White. Another incident described by Petitioner was one in which an African-American employee of Don Olsen Tire Company came to repair a tire on a piece of equipment belonging to Respondent. One of the female employees asked for a ride with that individual in his truck back to another location where her van was located. Petitioner, the Don Olsen truck driver, and the female employee rode in the tire repair truck. This was observed by Mr. Smith. Mr. Smith approached the female employee and told her that he did not appreciate that she was disrespecting him and his wife by being in the truck with two black guys. Later that day, a Friday, Mr. Smith approached Petitioner and stated that he did not want Petitioner having a conversation or anything to do with females on the job. The following Monday Petitioner was terminated. Petitioner believes that he was terminated because of the circumstances with the female employees of another race that have been described. Mr. Smith also told the Don Olsen employee that he did not want that individual back on the job site fixing anything because the white female employee had been in that individual's truck. There was no showing that Petitioner made Respondent's upper level managers aware of Mr. Smith's comments concerning conversations which Petitioner had with Caucasian females on the job. According to company records, at one time Petitioner had been informed by Respondent concerning the procedures for making complaints about employment practices related to issues of alleged discrimination. At the time that Petitioner was terminated, Mr. Smith pulled up beside him on the job site and commented to the effect "I don't need you no more." That was the only reason given at a subsequent time when Petitioner spoke to Mr. Ghagvini concerning Petitioner's termination. Mr. Ghagvini said that he had heard from Superintendent Smith and that he was going to leave it at that. Petitioner presented no evidence concerning his claim that Whites were allowed to stand around and talk and that black employees were not allowed to do so, or that black employees were in any manner worked harder than white employees. Notwithstanding the prospect that Mr. Smith's motives when telling Petitioner not to speak to female employees on the job was racially motivated, the reason for Petitioner's dismissal was in relation to his failure to attend his duties on Saturday at various times. That explanation was not created as a pretext to divert attention from racial discrimination. After his termination from Respondent, Petitioner filed for unemployment and received those unemployment payments until his eligibility ran out. In that time period he looked for jobs. Eventually Petitioner obtained a position as a pipe layer with Sayaler Utility. He began employment with that company in October 2002, and the employment was continuing at the time of the hearing. Petitioner receives $8.00 an hour for his work and works on an average 35 hours a week. When he was dismissed from his employment with Respondent, Petitioner was receiving $8.50 an hour and was working an average of 35 hours a week.
Recommendation Upon the consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered by FCHR dismissing Petitioner's Petition for Relief in all respects. DONE AND ENTERED this 14th day of February, 2003, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of February, 2003. COPIES FURNISHED: Lonnie Jennings Post Office Box 782 Greenville, Florida 32331 Vehad Ghagvini, President Vicki Goodman, Personnel Representative Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 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
The Issue The primary issue is whether the Department of Revenue (Department) acted illegally, fraudulently, arbitrarily, or dishonestly in awarding the child support enforcement (CSE) legal services contract for Palm Beach County intrastate cases to the Intervenor, Thomas & Associates, Attorneys at Law, P.A. (Thomas) The petitioner, Pickett, Fanelli, & O'Toole, P.A. (Pickett) timely challenged the proposed award. STANDARD FOR REVIEW Pursuant to section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined as evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957) The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the proceedings at the Division of Administrative Hearings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the agency is bound by that finding. RULING ON MOTION TO STRIKE The petitioner's motion to strike the respondent's and intervenor's exceptions to the recommended order is denied.
Findings Of Fact Effective July 1, 1994, the Department became the state agency responsible for CSE actions within the State of Florida. In order to procure legal services in connection with this responsibility the Department advertised a solicitation for the contract. Petitioner and Intervenor timely submitted proposals for the contract. By letter dated May 22, 1995, the Department advised Petitioner that the CSE contract had been awarded to Intervenor. The Petitioner timely filed a protest of that award. Prior to the advertisement of the solicitation, the Department issued a document entitled "Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers" (Instructions) to govern the solicitation, evaluation, and award of the contract at issue in these proceedings. The Instructions provided specific information to the district staff as to how these proposals were to be evaluated. In accordance with the Instructions, the solicitation package (Solicitation) was advertised in Palm Beach County in a timely manner from April 1, 1995, through April 5, 1995. The Department sent copies of the solicitation package to both the Petitioner and Intervenor. The Instructions were not given to the Petitioner and Intervenor with the Solicitation package. In fact, the parties did not obtain copies of the Instructions prior to the opening of the proposals. Completed proposals in response to the solicitation were required to be submitted by 3:00 p.m., May 12, 1995. The Department established a evaluation committee to review all proposals submitted in this matter. The evaluation committee members were: Dottie Howell, Sammy Austin, Jim Pichurski, Linda Martin and Sandra Prince. Each of the members of the evaluation committee was experienced in CSE and generally familiar with the type of services required under the subject contract. Under the time restraints imposed by the Department, the evaluation committee reviewed and evaluated all proposals. None of the evaluation committee members were attorneys. None of the evaluation committee members had any expertise in computer science or an understanding of what computer services might be beneficial to the Department in connection with the contract. In fact, other than the Instructions and the Solicitation, the evaluation committee was given no assistance in the evaluation process, even when clarification was requested. The review process employed two levels of evaluation. First, the evaluation committee was to determine if all mandatory requirements had been met. If any of the "Mandatory Requirements" identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was to be rejected and withdrawn from consideration. The evaluation committee did not reject the proposals submitted by Petitioner and Intervenor but continued with the evaluation and scoring process. As a result, the evaluation committee scored the Intervenor's proposal highest with the Petitioner's proposal being scored second highest. Mandatory Requirements The Instructions to the evaluation committee provided the following information pertinent to the mandatory requirements of the proposals: 4. Review for compliance with mandatory requirements: The evaluation committee member must review all the proposals to determine compliance with the "Mandatory Requirements". * * * The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. * * * Are the attorney/attorneys assigned to perform contract services members of the Florida Bar? Was a certificate of good standing [from] the Florida Bar attached for each attorney designed (sic) to do child support work? Yes/No Was a resume for each attorney designated to do child support work included with the proposal? Yes/No Additionally, the Solicitation provided the following information pertinent to the mandatory requirements: The following must be included with your proposal: Resumes on all attorneys who will be assigned to this contract. Attachments II, IV, VII signed by the authorized representative. Attachment III completed and signed by the authorized representative. Attachment VI must be accurately completed. Copy of Certificate of Minority Business Enterprise, if applicable. Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. * * * Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Attachment V (referenced in paragraph 23) to the Solicitation contained the following provisions: CATEGORY 1-MANDATORY REQUIREMENTS The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. If any of these requirements are not met, your proposal will not be considered further. All forms and certifications must be signed by the same representative who is authorized to bind the firm to the terms of the solicitation and the contract. Attachment VI is the cost presentation. This form must be completed in its entirety and there must not be any typo- graphical or mathematical errors. * * * The attorney/attorneys assigned to perform contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. The Intervenor's (Thomas') proposal set forth the following information under the heading "Time and Personnel to be devoted to child support work": (c) Palm Beach Intrastate: We would assign four full time attorneys with four paralegals and four legal secretaries in order to staff this contract. Again, Jeffrey F. Thomas, Esquire, would directly supervise all attorneys and personally appear at all hearing where the other party is represented by an attorney. In addition to Jeffrey F. Thomas, we would assign the following attorneys: Charles K. Willoughby, Esquire, L. Denise Coffman, Esquire, John C. Thomas, Esquire and Kim Nutter, Esquire. In the event we are awarded more than one contract, we would hire two more lawyers, two more paralegals and two more legal secretaries. The Thomas proposal did not disclose the names of the two additional lawyers who would be hired to perform services if Thomas were awarded two or more contracts, did not include their resumes, and did not include certificates of good standing from the Florida Bar. The evaluation committee knew of two other contracts for which Thomas sought award from the Department. Further, if Thomas receives this award, the retention of two additional attorneys would be required as a condition of the contract. The failure to include the resumes and certificates for the two attorneys was nonresponsive to the mandatory requirements of the Solicitation. References The proposals were also to include specific information regarding attorney references. Pertinent to this issue, the Instructions provided: 8. References: The evaluation committee must prepare a list of questions to ask references in the "References" portion of the evaluation. One member of the evaluation committee, usually the chairperson, asks the questions in the presence of the evaluation committee via speaker phone so all can simultaneously hear the responses of the references. Evaluation committee members should each make their own independent assignment of points for the references criterion for each proposal. These points shall not be communicated to the other members of the evaluation committee, but shall be indicated only on the evaluation sheets. * * * CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. The Solicitation set forth the requirements regarding such references. Pertinent to this case are the following provisions of the Solicitation: F. References (5 points) The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. Preference will be given to those proposals that furnish references demonstrating experience in child support and family law matters. The Department reserves the right to utilize references received by other sources provided to the Department. Again, the Solicitation was couched in mandatory terms of what a proposer was required to do under the heading "references." In this case, under "references" the Intervenor's proposal contained the following information: John E. Sherrard, Esquire, Board Certified Marital and Family Lawyer, 34 E. Fifth Street, Stuart, Florida 34994, (407) 283-9322 - former client in family law matters concerning child support, custody and related matters as well as adversary of Thomas & Associates in various family law matters. Mrs. Sharen Muller, P.O. Box 2595, Stuart, Florida 34994 (407) 286-8503 former client in family law matter regarding child support, custody and related family law matters. Edward Galante, Esquire, 789 South Federal Highway, Suite 103, Stuart, Florida 34994, co- counseled on a complicated custody dispute between paternal grandparents and natural mother upon the death of the custodial parent; as well as worked as opposing counsel on several other family law cases. See also recommendation from Honorable John Fennelly, Circuit Court Judge, Nineteenth Judicial Circuit, for recertification of Jeffrey Thomas in June 1994. The Intervenor listed only two references for whom the proposer had rendered services similar to those proposed. Intervenor's failure to provide three references as mandated by the Solicitation renders its proposal nonresponsive. Additionally, the evaluation committee was given explicit instructions as to the procedure for contacting references. The procedure was not followed. None of the Thomas references was contacted. The Thomas proposal received the maximum points available without verification of the references as required by the terms of the Instructions. Further, Petitioner's proposal received less than the maximum when one of the references, who was contacted under the correct procedure, did not use a specific adjective to compliment Pickett's work. Thus, the Petitioner arbitrarily received a smaller score than Intervenor whose proposal was not even rated in the same manner. Attorney Experience The proposals were also rated based upon the attorney experience. Pertinent to this issue are the following provisions of the Instructions: CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. * * * Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Experience: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Assign 2 points per year up to 10 maximum for single practitioners. More than one practitioner, compute average years. Example: 2 Attorneys, one with 5 years and one with 2 yrs. 2 pt.x5yrs=10 2 pt.x2yrs=_4_ 14/2=7pt Family Law Practice (0-5) 1 pt per year for single practitioner More than one practitioner, compute average year. Example: 3 Attorneys with 5, 4, 3 years. (5+4+3)=12/3=4 pts. Enforcement and Collection Practice (0-5) (Same as above) Trial and/or Appellate Experience (0-5) (Same as above) Based upon the Instructions, the evaluation committee presumed that attorney experience would be assessed based upon an averaging of years. In contrast, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * D. TIME AND PERSONNEL TO BE DEVOTED TO CHILD SUPPORT WORK (40 points) * * * Attorney Experience (25 points) Please indicate number of years of experience per attorney. Experience in Child Support Practice (10) Family Law Practice (5) Enforcement and Collection Practice (5) Trial and/or Appellate Experience (5) Attachment V to the Solicitation contained, in pertinent part: 4. Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Thus, based upon the Solicitation, proposers should have presumed (and therefore structured their proposals) that this category would be evaluated on a per attorney basis. Since twenty-five of the forty points available under this heading were to be assigned based upon the attorney experience set forth in the proposal, it is reasonable to find that the proposals should have considered staffing seriously. In the Petitioner's case, experienced lawyers were chosen whose compensation financially impacted other areas of the Pickett proposal. Had the averaging method been disclosed prior to submittal of the proposals, Petitioner could have computed mathematically a way to max out the attorney experience points at a reduced cost and thereby apply resources to another area of the proposal. In the alternative, had the proposals been scored as indicated in the Solicitation, Intervenor would not have received more than twenty points. Under the averaging method used, the Petitioner received twenty-five points and the Intervenor received 23.3 points for attorney experience. The Department has articulated no explanation for why the terms of the Solicitation were not followed in the assessment of points for attorney experience. Minority Ownership At the time of the evaluation of these proposals, Intervenor was not certified as a minority business enterprise. Under the heading "Minority Ownership" Intervenor's proposal stated: E. Minority Ownership: Mary B. Thomas owns 60 percent of Thomas and Associates, Attorneys at Law, P.A. Mrs. Thomas is an American woman who qualifies as a minority under Section 288.703(3), Florida Statutes. As such, Thomas and Associates, Attorneys at Law, P.A. has applied to become certified as a minority Business Enterprise (See application - for certification copy attached) The minority business enterprise application referenced above (of which only a portion was attached to the proposal) represented that the firm had been established on September 21, 1989, and that Mary B. Thomas, an American woman, had acquired 60 percent of the company's ownership on April 30, 1995. Jeffrey F. Thomas, Mrs. Thomas' husband, owns the remaining outstanding shares of the company. Question 11 of the minority business enterprise application referenced above sought the following information to which Intervenor gave the response indicated: (11) Is a trade or professional license required for the business: Yes XX No If yes, for each trade or professional license the company holds, complete the following for the licensee(s). NAME MINORITY STATUS LICENSE NUMBER ISSUING AGENCY Mary B. Thomas Am. Woman 391999 Florida Bar The Instructions allowed the evaluation committee to award from zero to five points for minority ownership. No explanation or definition of "minority ownership" was included within the Instructions. Similarly, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * E. MINORITY OWNERSHIP (5 Points) Qualifying under Section 288.703(3), Fla. Stat. If business has been certified as a Minority Business Enterprise, please so indicate. A copy of the certification must be attached. If business has not been certified, but has at least fifty one percent minority ownership, please so indicate. Minority ownership must be documented. While the Solicitation did not define "minority ownership" with a objective standard for review, it did provide that documentation for the claimed points must be provided. In this case, other than the assertions noted above, Intervenor provided no documentation. Members of the evaluation committee uncertain of how to assign points under this criteria requested assistance. They were directed to use their own judgment to assign points. Without supporting documents, Intervenor received five points from each of the evaluation committee members for minority ownership. The assignment of points for minority ownership without documentation violated the explicit language of the Solicitation. The Department has articulated no basis for why the terms of the Solicitation were not followed with regard to the assignment of points for minority ownership. Bias Each of the evaluation committee members were required to execute a conflict of interest questionnaire. One of the questions of that form provided: "Are there any other conditions which may cause a conflict of interest?" In connection with the foregoing form, one committee member answered the question by checking the "no" response. This member, Dottie Howell, has demonstrated a bias against the Petitioner. Ms. Howell has told Department employees that she was keeping a file on the Pickett firm in order to get it discharged. Ms. Howell has publicly expressed dissatisfaction with the services rendered by the Pickett firm. Ms. Howell has stated the Petitioner has a poor attitude and has attempted to interfere in policy decisions. Given Ms. Howell's opinions regarding the Petitioner, she should have declined service on the evaluation committee. The Solicitation provided, in pertinent part: II. STATEMENT OF NEED Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers. * * * V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. From the foregoing, the Department intended to ensure fair competition among proposers of this contract. As each member was to evaluate the proposals, each were to be qualified to perform the assessment. A biased evaluation member is not qualified to rate the proposals. At the minimum, by allowing such evaluator to be included gives the impression of a less than fair review. Except for Ms. Howell, all members of the evaluation committee were qualified to render the reviews.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Revenue enter a final order determining the Intervenor's proposal was nonresponsive to the mandatory terms of the Instructions and Solicitation. DONE AND RECOMMENDED this 5th day of September, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3138BID Rulings on the objections to deposition testimony filed in this matter: Objections noted by page (P) and line (L) Petitioner's objections per objections filed July 21, 1995: Don Edwards: P 41 L 7-11--deny motion to strike; P 42 L 19 (per deposition objection)--overruled; P 42 L 22 and 25 (per objection filed)-- overruled; P 43 L 12-15 (per objection filed)--overruled. John C. Thomas: none. Mary B. Thomas: none. Denise Coffman: none. Jeffrey F. Thomas: none. Kim Nutter: none. Jacquelynne Benefield: none. Mark Cullen: none. Terri Almond and Henry Smith: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. C. Patrick O'Toole, Karen Moree, and Nancy Partin: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. Linda Martin: P 42 L 2-4--overruled; P 42 L 23 through P 43 L 4-- overruled. Yvonne Whitfield: P 7 L 22-24--sustained; P 23 L 10-13--sustained; P 12 L 12-18--overruled (the objection does not relate to the cited record); P 31 L 23 through P 32 L2--overruled; P 32 L 12-15--overruled; P 32 L 21 (per depo objection)--overruled; P 33 L 9 (per depo objection)--overruled. Marsha Nims: P 46 L 12-21--sustained; P 46 L 22-25--sustained; P 47 L 1-4--sustained; P 47 L 5-9--sustained; P 47 L 10-13--sustained; P 50 L 10 (per depo objection)--overruled; P 51 L 2 (per depo objection)--overruled; P 51 L 9 (per depo objection)--overruled; P 52 L 12 through P 53 L 2--sustained; P 52 L 3 through P 55 L 8--sustained; P 55 L 9 through P 56 L 14--sustained. Sandra Prince: P 43 L 2-12--overruled; P 44 L 1-4--overruled. Jim Pichurski: P 34 L 5-8--overruled; P 34 L 8-14--overruled; P34 L 20 through P 35 L 1--overruled; P 35 L 2-7--overruled; P 36 L 7-17--overruled. Shirley Holmes: P 52 L 5-12--sustained; P 52 L 13-21--sustained; P 53 L 9-20--sustained; P 53 L 25 (per depo objection)--overruled; P 58 L 7-15-- sustained; P 58 L 16-22 overruled; P 60 L 6-17--sustained; P 61 L 20-25-- sustained; P 62 L 11--sustained; P 63 L 2 (per depo objection)--overruled; P 64 L 3-14--sustained; P 64 L 15 through P 65 L 2--overruled; P 65 L 3-5--sustained; P 65 L 6-15--sustained; P 66 L 9-15--overruled; P 67 L 10-11--sustained; P 67 L 12-21--sustained; P 68 L 2-19--sustained [this ruling renders depo objections at P 68 L 5 and P 68 L 17 moot]. Sammy Austin: P 63 L 5-8--overruled; P 63 L 9-13--overruled; P 63 L 18-20--overruled; P 64 L 2 (per depo objection)--sustained; P 65 L 14 (per depo objection)--sustained; P 66 L 20 through P 67 L 16 sustained; P 68 L 8 through P 69 L 11 sustained. Dottie Howell: P 109 L 1-12--sustained; P 110 L 22 (per depo objection)--overruled; P 111 L 13, 21(per depo objection)--sustained; P 112 L 8- 11--overruled; P 112 L 12-15--overruled; P 116 L 20 (per depo objection)-- sustained; P 117 L 11, 15 (per depo objection)--sustained; P 118 L 4 (per depo objection)--sustained; P 119 L 7-10--overruled. Intervenor's objections per objections filed July 21, 1995: Shirley Ann Holmes: P 32, L8-23--sustained; P 39 L 8-25--sustained. Dottie Howell: P 128 L 10 through P 129 L 17--sustained. Linda Martin: None stated in deposition or objections filed. Sandra Ann Prince: None stated in deposition or objections filed. James Pichurski: None stated in deposition or objections filed. Sammy Austin: P 25 L 24 through P 26 L 5--overruled; P 27 L 8-22-- overruled; P 35 L 2-9--overruled; P 46 L 21 through P 47 L 2--overruled; P 48 L 4-24--overruled; P 49 L 22 through P 50 L 8 per deposition (Asked and Answered)- -sustained; P 56 L 22 through P 57 L 10--sustained. The Department submitted no objections to the deposition testimony. Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 20, 22, 25, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 68, 69, 73, 74, 76, 79, 80 through 96, 106, 111, 114, 115, 120, 127, 128, 134 through 138, 141 through 148, 151, 152, 153, 154, 158, 162, 165, 166 through 171, 172a., 172b., and 172c. are accepted. Paragraph 21 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 23 and 24 are rejected as irrelevant. Paragraph 30 is rejected as irrelevant. Paragraph 34 is rejected as repetitive. Paragraphs 38 through 67 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves-Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraphs 38 through 43, 46 through 50, 52, 54 through 60, and 63 through 67 are accepted. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected argument and repetitive. Paragraph 51 is rejected as incomplete statement; the Intervenor's proposal acknowledged that two additional attorneys would be required which is precisely why it was incumbent upon it to disclose the names and documentation for such attorneys. Paragraph 53 is rejected as editorial comment or argument. Paragraph 61 is rejected as argument. Paragraph 62 is rejected as editorial comment or argument. Paragraphs 70 and 71 are rejected as contrary to the weight of the credible evidence. Paragraph 72 is rejected as irrelevant or contrary to the weight of the evidence. With regard to Paragraph 75 it is accepted that only one of the two reference letters specified "child support" as the service provided. The other letter addressed only "family law" issue. Paragraph 77 is rejected as argument or irrelevant since the contact interview with references wasn't made any way. Paragraph 78 is rejected as argument or irrelevant. Paragraphs 97, 98, and 99 are rejected as irrelevant. Paragraph 100 is rejected as argument or irrelevant. Paragraph 101 is rejected as irrelevant. Paragraph 102 is rejected as irrelevant. Paragraph 103 through 105, 107 through 110, 112, and 113 are rejected as irrelevant. Paragraphs 116, 117, 118, and 119 are rejected as contrary to the weight of the credible evidence. Paragraphs 121, 122, 123, 124, 125, 126 are rejected as contrary to the weight of the evidence or irrelevant. The evaluation committee relied on the information it was given, presumed it to be accurate, and rated the proposals on the limited criteria it was given. In retrospect, the guidelines should have been more precise. Regrettably (or not, depending on your view), the standard of review in this case does not allow the imposition of a better view from hindsight to correct perceived deficiencies. With regard to paragraphs 129 and 130, it is accepted that evaluation committee members did not distinguish between family law categories; however, such failure was not arbitrary or capricious and does not evidence a lack of qualification to serve on the committee. Therefore, the paragraphs are rejected as contrary to the weight of evidence. More likely, the committee members' failure to distinguish the subcategories evidenced a poorly drafted solicitation the terms of which were not timely challenged. Paragraphs 131, 132, and 133 are rejected as irrelevant. With regard to paragraph 139, given the past statements made about Petitioner, Ms. Howell should have declined service on the committee. With regard to paragraph 140, it is accepted as accurate as to the scoring but irrelevant to the overall scoring if Ms. Howell and the other members had given Intervenor no points for minority ownership or references. Had the committee properly scored those criteria at zero (assuming it could not deem it nonresponsive which is the correct finding), the results would not have been impacted by Ms. Howell's biased (and inaccurate) assessment of Petitioner's plan and resources. Paragraphs 149 and 150 are rejected as irrelevant. Paragraphs 155, 156, and 157 are rejected as irrelevant. The Intervenor's proposal was nonresponsive as to the undocumented, unnamed attorneys. The possible scoring of the proposal (which should not have been scored) is irrelevant. If scored on a per attorney basis as indicated in the Solicitation, the Intervenor would not have received the points awarded. With regard to paragraph 159, it is accepted that the manner of calculating attorney experience based upon averaging all years of experience inaccurately qualifies the level of representation. Mathematically, it would be possible for one attorney to associate with two attorneys with no experience and achieve a higher rating that three attorneys with experience. Although the Solicitation represented it sought the highest level of legal representation, given the nature of the work involved, and the direction given the evaluation committee, the Department may well have determined other factors were acceptable. The true issue is not that the averaging was done, but that it was not disclosed to the proposers. Petitioner might well have associated an attorney with 40 years experience, released the more seasoned associates, hired inexpensive new lawyers, used the savings elsewhere in the proposal, and presented an entirely different plan. Once it becomes a mathematical formula, the computation of what is needed to max out the points is relatively easy work. With the deletion of the first phrase (before the comma) which is rejected as contrary to the weight of the evidence, paragraph 160 is accepted. Paragraphs 161, 163, and 164 are rejected as irrelevant. Paragraph 172d. is rejected as contrary to the weight of the evidence or irrelevant. Paragraph 173 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Note: Rule 60Q-2.031(3), Florida Administrative Code, requires that proposed findings of fact be supported by citations to the record, unless the lack of a transcript makes citation impossible. The Department's proposed findings of fact failed to comply with this rule. Where proposed findings of fact could not be readily verified and a specific citation was not provided, they have been rejected for failing to comply with the rule. Paragraphs 1 through 9, 11, 13, 14, and 16 are accepted. Paragraph 10 is rejected in that it concludes the evaluation was impartial (at least one evaluation committee member was not impartial) and is, therefore, contrary to the weight of the credible evidence. The paragraph is comprised of multiple fact statements some of which are rejected as lacking appropriate citation to record, some irrelevant. Paragraph 12 is rejected as irrelevant. Paragraph 15 is rejected as argument. Paragraph 17 is rejected as contrary to the weight of the credible evidence, not supported by record cited, or irrelevant. Paragraph 18 is rejected as irrelevant. The first sentence of Paragraph 19 is rejected as argument. With the clarification that the Intervenor did not, in fact, attach a completed application for certification with all documentation included, the remainder of the paragraph is accepted. Intervenor attached only self-serving statements, not documentation as required by the Solicitation. Paragraphs 20 and 21 are rejected as argument, contrary to the weight of the credible evidence, or irrelevant as presented. Portions of the paragraphs which are accurate appear elsewhere in the form acceptable. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 14, 23 through 27, 29, 30, 31, 36 through 44, 46, 47, 48, 60, 61, 78, 83, 85, 86, 102, 103, 107 through 110, 125, 135, 136, 137, 138, 139, 140, 141, 142, 144, 152, 154, 155, 156, 158, and 170 are accepted. Paragraph 15 is rejected as not supported by the record cited. No stipulation of fact such as that represented appears in the prehearing statement filed July 10, 1995. Paragraph 16 is accepted as an accurate statement of the evaluation committee's finding but, as a statement of fact, is contrary to the weight of all evidence presented. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is rejected as not supported by the record cited and/or ultimate fact not supported by record. Paragraph 21 is rejected as irrelevant. The terms of the Solicitation are not in dispute. As to the overall computations, paragraph 22 is accepted as the evaluation committee's results but is erroneous as to the fact that the Intervenor's proposal should have been scored as the committee results indicated. At the minimum, if the Intervenor's proposal were to be deemed responsive (which is contrary to the conclusion of this order), the Intervenor should have received no points for references and no points as a MBE. If scored on that basis, the Intervenor would have not received a higher averaged score than Petitioner. Paragraph 28 is rejected as vague, irrelevant or contrary to the weight of the credible evidence. The evaluation committee members may have been "competent" in the performance of their regular job duties but at least one member was "incompetent" due to bias to serve on the review team. Further, the record is clear that committee members were uncertain as to how to score at least one section of the proposal, minority ownership, and that no definite criteria as to how to do so was provided. Paragraph 32 is rejected as irrelevant and contrary to the weight of the evidence since it is unlikely a biased employee would be selected for committee membership. Paragraph 33 is rejected as irrelevant as knowledge of the bias was not known at the time of the selection. Paragraph 34 is rejected as irrelevant. Paragraph 35 is rejected as irrelevant or repetitive. Paragraph 45 is rejected as incomplete statement of fact. Paragraphs 49 through 55 are rejected as irrelevant. To the extent that the fact stated in paragraph 56 attempts to reiterate the Instructions, it is accepted; however, the Solicitation, the Instructions, and the way committee members understood the evaluation process would be handled cannot be reconciled into one concise statement of fact. As to Paragraph 57, it is accepted the Instructions gave no criteria as to how to evaluate attorney experience in terms of case volume. Paragraph 58 is rejected as irrelevant and/or as contrary to the ultimate fact of this case; proposals containing "unidentified attorneys" were to be rejected, therefore, point assignment is irrelevant. The committee should not have evaluated a nonresponsive proposal. Paragraph 59 is rejected as irrelevant. Scores awarded to Petitioner have not been challenged. Paragraphs 62 through 76 are rejected as irrelevant to the extent that the accuracy of Intervenor's proposal is defended. The evaluation committee reviewed the proposals based upon the facts presented and were not required to verify the accuracy of the representations contained therein. The criteria they applied, or lack thereof, did not relate to years of practice, etc. Paragraph 77 is rejected as argument. Paragraph 79 is rejected as contrary to the weight of the evidence. The Solicitation required documentation of minority ownership in order to receive credit if the business has not been certified. Paragraph 80 is rejected as contrary to the weight of the credible evidence. Paragraph 81 is rejected as an incomplete statement of fact not supported by the weight of the credible evidence or irrelevant. It is accepted Mrs. Thomas purchased 15 shares of stock in the Intervenor for $15.00. With regard to paragraph 82, it is accepted that Mrs. Thomas executed an application for MBE certification representing she is an American woman. Paragraph 84 is rejected as contrary to the evidence presented. The application submitted was incomplete and did not document standing as a minority owner. With regard to paragraph 87, it is accepted that the portion of the application attached to the Intervenor's proposal was dated May 4, 1995, and represented that Mrs. Thomas had purchased the fifteen shares on or about April 30, 1995. Paragraphs 88 through 93 are rejected as irrelevant. With regard to paragraph 94, it is accepted that the $15.00 check represented to be that used to acquire Mrs. Thomas' shares was made payable to "Thomas + Associates." Paragraphs 95 through 100 are rejected as irrelevant or, if relevant, contrary to the weight of credible evidence. Paragraph 101 is rejected as argument. Paragraph 104 is rejected as contrary to the weight of the evidence. Paragraph 105 is rejected as contrary to the weight of the evidence. Paragraph 106 is rejected as argument or irrelevant. Paragraph 111 is rejected as argument or contrary to the weight of the evidence. Paragraph 112 is rejected as irrelevant or, if relevant, accepted as indicative of why committee members were confused as to the importance of following the Instructions and Solicitation guidelines to assure all proposers treated in fair manner. With regard to paragraph 113, it is accepted that the Intervenor's proposal was scored 5 points for references; however, such scoring was contrary to the terms of the Instructions, the Solicitation, and was arbitrary and capricious. Further, since Intervenor's references were nonresponsive to the directions, this proposal should not have been reviewed; if reviewed, it should have received no points. Paragraph 114 is rejected as contrary to the weight of all evidence. Paragraph 115 is accurate as to the score given the Petitioner's proposal but such score was entered arbitrarily and contrary to the Instructions and Solicitation directives. Paragraph 116 is rejected as irrelevant or, if relevant, indicative of why the scoring of references was unfair or prejudicial to Petitioner since written statements regarding references or from references were not specified under the Solicitation directions. Paragraphs 117 through 123 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves- Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraph 117 is accepted. Paragraph 118 is accepted. Paragraphs 119 and 120 are rejected as contrary to the weight of the evidence or an incomplete statement of fact. Paragraph 121 is a correct statement of the testimony but is rejected as contrary to the weight of all evidence presented. Paragraph 122 is rejected as contrary to the weight of all evidence. Paragraph 123 is rejected as irrelevant. Paragraph 124 is rejected as argument. Paragraph 126 is rejected as irrelevant. Paragraph 127 is accepted to extent that the named attorneys were to work on the cited contract; however, they were also identified to work on the other contracts as were two unidentified attorneys. Thus, the Intervenor contemplated more attorneys would be needed to cover the work encompassed by the three contracts. Paragraph 128 is accepted to the extent that the named attorneys were documented; however, it is un-refuted that two additional unnamed attorneys, who Intervenor acknowledged would be required, were not documented. Paragraphs 129 and 130 are rejected as irrelevant. With regard to paragraphs 131, 132, and 133, it is accepted that the evaluation committee failed to require the documentation specified by the Instructions and the Solicitation and reviewed the Intervenor's proposal anyway. This was arbitrary and capricious. The Department has not articulated a rational basis for the decision to waive the requirements for one proposer when the proposal itself clearly represented two attorneys would be hired in order to perform the work. Paragraph 134 is rejected as contrary to the weight of credible evidence. Paragraph 143 is rejected as argument or irrelevant. With regard to Paragraph 145, it is accepted that Ms. Howell's perception (erroneous) of the Petitioner's firm was that it had failed to computerize; however, her scoring of the Petitioner's plan and resources was tainted by her lack of unbiased opinion of the firm from past experience unrelated to the proposal or the Department's future plan. Paragraphs 146 through 150 are rejected as irrelevant. Paragraph 151 is rejected as repetitive, unnecessary, and addressed above. Paragraph 153 is rejected as irrelevant. With regard to paragraph 157 it is accepted that if Ms. Whitfield knew of a bias, she would not knowingly appoint or recommend that individual to an evaluation committee; otherwise rejected as irrelevant to the facts established in this case. Paragraph 159 is rejected as argument. Paragraphs 160 through 168 are rejected as irrelevant. Paragraphs 169 and 171 are rejected as not supported by the weight of credible evidence. Paragraphs 172, 173, and 174 are rejected as not supported by the record cited. Paragraph 175 is rejected as irrelevant. COPIES FURNISHED: Gary P. Sams Carolyn S. Raepple Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Jeffrey F. Thomas Thomas and Associates, P.A. 789 South Federal Highway Suite 209 Stuart, Florida 34994 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32314-6668 Linda Lettera General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner by refusing to hire the Petitioner because of Petitioner's race.
Findings Of Fact The Respondent is the School Board of Alachua County, Florida. The Respondent advertised to hire a senior drafting technician in June of 1993. The minimum qualifications for this position were "graduation from High School or Completion of GED; three (3) years experience in drafting and architectural design under the direction of an architect or engineer; or an equivalent combination of training and experience. Graduation from a college of architecture or engineering preferred." The Petitioner, Monroe Lee, is a Black male who attended North Florida Junior College from 1970 to 1973, obtaining a 1080 hour certificate in engineering design. In 1979-80, the Petitioner completed another training program in civil engineering design. The Petitioner has been employed as a engineering draftsman by several architecture and engineering companies since 1973. His duties have included drafting, project design, and project management. Since 1991, he has been self-employed in his own architectural firm employing an architect. In August 1993, the Petitioner applied for the senior drafting technician's position advertised by the Respondent. Attached to the application was an card entitled "Data for Affirmative Action", which asked for information on the race, sex, and similar information from the applicant. This card is separated from applications by the personnel office and maintained for tracking compliance with affirmative action laws. Completion of the card is not required, but the Petitioner filled out the card attached to his application. Approximately 25 applications were received for this position. The applications were screened in the fall of 1993 by the Respondent's Supervisor of Personnel, who selected to be interviewed seven individuals, who she determined were the most qualified. Interviews were conducted on January 10 and 11, 1994, by a committee from the Respondent's Planning and Construction Department. Ultimately, no hiring decision was made because of uncertainty about the availability of funds due to a budgetary crisis. During the pendency of his application, the Petitioner made numerous inquiries at the personnel office regarding the status of his application. It appeared that his application was misplaced, and the personnel office had difficulty responding to his inquiries. Because of his visits, the Petitioner became well known to the Respondent's staff. In January or February, 1994, the Petitioner filed a complaint of discrimination in hiring against Respondent regarding this application. The complaint was investigated by the Florida Commission of Human Relations, and the Respondent answered inquiries from the Commission on March 1, 1994. It was determined that the Respondent had not discriminated against the Petitioner. In March 1994, the Respondent readvertised the position of Senior Drafting Technician. Applications were accepted between March 14-18, 1994, and the Petitioner reactivated his application for the position. The Supervisor of Personnel again screened the applications. Again, the Petitioner was not selected to be interviewed. Of those selected to be interviewed, at least one was Black, and one female applicant had a Bachelors degree in fine arts and two female applicants had Bachelors degrees in interior design. Of those not selected for employment at least two individuals had training and experience equal to the Petitioner's. The Supervisor of Personnel emphasized selection on the basis of applicants having degrees. Harry Burns, a White male, applied for the position when it was readvertised. Burns obtained an A.A. from Santa Fe Community college in 1990 and a B.A. in building construction from the University of Florida. Burns had also completed technical courses in the U.S. Air Force. He had worked for four employers since 1987 as a carpenter, managing projects, field surveying, doing traffic counts, drafting, and using a computer. Burns was hired for the position on May 9, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petitioner's complaint. DONE and ENTERED this 31st day of October, 1995, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1995. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-2044 Respondent submitted findings which were read and considered. The following states which of the findings were adopted, which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 1 Paragraph 2 Paragraph 2 Paragraph 3 Paragraph 3 Paragraph 4 Paragraph 3 Paragraph 5 Paragraph 4 Paragraph 6 Paragraph 6 Paragraph 7 Paragraph 7 Paragraph 8 Paragraph 8 Paragraph 9 Paragraph 2 Paragraph 10 Paragraph 9 Paragraph 11 Paragraph 9 Paragraph 12 Irrelevant COPIES FURNISHED: Monroe Lee Post Office Box 43 Alachua, FL Thomas L. Wittmer, Esquire Alachua County School Board 620 East University Avenue Gainesville, FL 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, FL 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol Tallahassee, FL 32399-0400 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether level 2 screening pursuant to Section 435.07, Florida Statutes (2003), mandates denial of an application of a potential foster parent who has a prior DUI-manslaughter conviction.
Findings Of Fact Based upon observation of the witness and his demeanor while testifying in person and the documentary materials received in evidence, official recognition granted, evidentiary rulings during the final hearing, and the entire record complied herein, the following relevant and material facts are found: Petitioner, D.S., applied to become licensed as a foster parent with the Department on July 11, 2003. However, Petitioner is not seeking nor requesting that the Department assign foster children to his home, should his application be granted. Petitioner is seeking to become the foster parent of his nephew, C.N.L., a 16-year-old male. After the death of his mother, more than five years ago, C.N.L. was moved in with Petitioner who has continuously provided shelter, supervision, care, and support for his nephew. Petitioner is now seeking to become the foster parent of his nephew because C.N.L. is the age (16) where "authority of a parent or guardian" will be necessarily required in his future. Other than Petitioner, C.N.L. has no other known relatives and has not been adjudicated or declared a dependent child pursuant to Section 39.507, Florida Statutes (2003). There is no other pending action by the Department regarding this minor child except the issue under consideration in this cause. The Family Profile form submitted by Petitioner detailed his current family information. Therein, Petitioner listed himself, white male, divorced, as prospective parent 1, and Daniel Walrad, white male, single, as prospective parent 2. Petitioner included therein, and acknowledged at the hearing, that as the result of one automobile accident that occurred on December 17, 1989, of which Petitioner was the driver, the passenger in the vehicle died. As a result, Petitioner was found guilty and convicted of a felony. Law enforcement did not arrest Petitioner at the time of this accident but charged Petitioner with felony DUI-manslaughter. With private counsel, Petitioner entered a nolo contendere plea to the charge of "homicide"-negligent vehicle manslaughter, Section 316.193, Florida Statutes (1989). The Circuit Court, Ninth Judicial Circuit, Orange County, Florida, accepted the plea of Petitioner, entered an adjudication of guilt, and convicted Petitioner on the charge. The Court sentenced Petitioner to and he successfully completed five years of probation and two years of community control. Petitioner, as a demonstration of his remorse and rehabilitation, has not drunk alcohol since the accident 13 years ago. As evidence of his commitment to caring for his nephew, Petitioner is currently attending Model Approach to Partnership in Parenting (MAPP) classes that are required for potential foster parents. Petitioner, with the understanding that C.N.L. has not been declared a "depending child" and is, therefore, not registered in the Department's system as a dependent child, concluded that he is free to and would, should the Department deny his foster parent application, move his current family, including C.N.L., to the State of New Hampshire. The above Findings of Fact are undisputed by either party to this proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order denying the application of Petitioner, D.S., to be licensed as a foster parent. DONE AND ENTERED this 17th day of December, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 17th day of December, 2003.
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Ann K. Hubert, is a thirty-five year old female. On February 4, 1992, she began employment with respondent, Darroch, Inc. d/b/a Dockside Imports (Dockside), as a part-time cashier at respondent's store in Newberry Square in Gainesville, Florida. After a promotion to a full-time position some six weeks later, she continued working until May 11, 1992, when she was terminated for what respondent says was poor job performance. Petitioner contends, however, that she was actually terminated because of her pregnancy. These contentions form the basis for this controversy. Dockside has a chain of retail stores selling items ranging in size from figurines to furniture. Each store has a manager, assistant manger, and an assistant to the assistant manager known as the first, second and third keys, respectively. In addition, each store employs stock clerks, usually males, to assist in the more physically demanding activities. Except on a few isolated occasions, at least two, and sometimes three, employees would be present in the store at any one time. During petitioner's tenure as a full-time employee at Dockside, she occupied the position of third key. All of the key positions were held by females. During her first days on the job as a part-time cashier, petitioner was described by her former manager, Betty Hill, as being a "go-getter," "wonderful," and "fantastic." Based on that performance, in March 1992 petitioner was promoted to third key, a full-time position. Within a short period of time, however, her work performance began deteriorating, and Hill began hearing complaints from virtually every other store employee concerning petitioner's performance and attitude. In addition, Hill had at least one customer personally lodge a complaint against petitioner. These complaints began before petitioner learned she was pregnant and continued until her termination. In March 1992, petitioner first suspected that she might be pregnant and she promptly advised Hill of her suspicions. Hill counseled her to make a doctor's appointment as soon as possible to confirm her pregnancy. This was done in early April 1992 and was reconfirmed "a couple of weeks later." After her second visit to the doctor, petitioner advised Hill that, pursuant to her doctor's orders, she could not lift items weighing more than fifteen to twenty pounds since she had suffered a miscarriage in 1977. Petitioner described Hill's reaction to her pregnancy as being positive, and that Hill "was pretty good about making sure that (she) didn't lift anything heavy." Indeed, Hill instructed the stock clerk that petitioner was to do no heavy lifting. Except for this precautionary measure, petitioner's job responsibilities were not changed. Before and after she discovered she was pregnant, petitioner's job duties included operating the cash register, waiting on customers, setting up stock, opening the store in the morning, helping customers carry items to their cars, cleaning, shelving, and the like. She was also responsible for moving small boxes from trucks to the stock room several times per week when shipments arrived. When heavy items required moving, the stock clerks were available to perform this task. Because the delivery of heavy items occurred infrequently and was known several days in advance, petitioner was not required to carry heavy furniture items from the truck to the store since extra persons could be scheduled to be on duty and perform that job. Hill's assistant, Elise Dees, came to work daily around 1:00 p. m. which was just before the end of petitioner's shift. Beginning in early March, Dees always found "nothing was done" by petitioner, including such tasks as shelving, cleaning the glass on tables and windows, vacuuming the floor and the like. In addition, petitioner would always complain she was not "feeling good." According to Dees, she found petitioner's job performance to be "unsatisfactory" at least three to four days per week. Dees also observed that petitioner was always sitting on a box at the back of the store rather than in the front area where she could assist customers. At hearing, petitioner says that she was forced to sit down due to dizziness caused by her pregnancy. In any event, Dees suggested petitioner sit on a bar stool by the cash register in the front of the store in order to be closer to the customers but petitioner declined to do so. During the week of May 4, 1992, petitioner took a previously scheduled one-week vacation to attend a wedding. While petitioner was on vacation, the district manager noticed that store morale and teamwork improved, and a "complete change" in the store environment occurred. Because of this, a decision was made to terminate petitioner immediately upon her return from vacation. It was decided that a demotion would not be practicable since this would not improve the decline in employee morale and teamwork if petitioner stayed in another position. When she returned to work on May 11, 1992, petitioner was met in the parking lot by Hill, who told her that she was being terminated effective immediately. Her position was filled that day by another individual whose gender is not of record. It is noted that petitioner was not dischargd because of a fetal protection policy, nor was she discharged because her pregnancy prevented her from performing her assigned tasks. Rather, she was terminated because of her poor work performance since early March 1992, including its negative impact on co-worker's morale and performance. Therefore, respondent did not commit an unlawful employment act in discharging petitioner. There was no evidence that Dockside had any previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had previously ever arisen. At the time of hearing, Dockside was employing at least one pregnant employee and was providing that employee the same type of accommodations offered petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 December, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Steven M. Scheck, Esquire 309 North East First Street Gainesville, Florida 32601-3338 Ms. Deborah Was 1155 South Semoran Boulevard Winter Park, Florida 32792
