Findings Of Fact Respondent is currently a registered farm labor contractor with Social Security Number 248-92-9496 and certificate number 4-92-9496-G87R. On or about February 11, 1986, Respondent acted as a farm labor contractor without a certificate of registration which was in full force and effect, and in her possession. While acting as a farm labor contractor in February, 1986, she failed to display prominently at the site where work was to be performed, and also failed to display on all vehicles she used to transport employees, a written statement in the workers' language showing the rate of compensation she received from the grower, and the rate of compensation she was paying her employees. In connection therewith, Respondent also failed to submit evidence to Petitioner that each vehicle she used to transport employees complied with the requirements of Chapters 316 or 320, Florida Statutes, prior to transporting farmworkers, or in lieu thereof, bore a valid inspection sticker showing the vehicle had passed the inspection in the state in which it was registered. She also failed to submit proof that she had taken out a policy of insurance to insure against liability for damage to persons or property arising out of the operation or ownership of a vehicle she used in February, 1986, to transport workers in connection with her acting as a farm labor contractor. Respondent failed to prominently display a copy of her application for a certificate of registration at the site where work was being performed in February, 1986 and also on all vehicles she used to transport employees. Prior to contracting for the employment of farmworkers, Respondent did not insure that the farm labor contractor displayed to her a current certificate of registration issued by Petitioner.
Recommendation Based on the foregoing, it is RECOMMENDED that Petitioner enter a Final Order assessing an administrative penalty of $2600.00 against Respondent. DONE AND ENTERED this 8th day of June, 1987, in Tallahassee, Leon County, Florida. DONALD CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security 2562 Executive Center Circle East Montgomery Building Tallahassee, Florida 32399-2152 Mary L. White 13 Garvey Lane Frostproof, Florida 33843 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2151
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on September 12, 2011.
Findings Of Fact The events at issue concern Embarq's termination of Mr. Garcia's employment on September 13, 2010. At the time of his termination, Mr. Garcia was a 45-year-old male. His national origin is Puerto Rico, and he is of Hispanic descent. Further, Mr. Garcia suffered from migraine headaches, which were the result of a work-related injury. He had been an employee of Embarq, and its predecessor companies, since August 10, 1998. Before his termination, Mr. Garcia worked as a technician servicing business and residential customers. His base of operations was at the customer service center located in Winter Park, Florida, referred to by Embarq as the Winter Park "Railroad Avenue" Center. As a service technician, Mr. Garcia would receive his daily customer calls through a computer system that sent out work orders. Mr. Garcia would drive the Embarq vehicle to the customer's house or business to complete the service. The Embarq vehicle was equipped with a global positioning satellite (GPS) monitor tracking the vehicle's location, including the time the vehicle left and returned to the Embarq office. Finally, Mr. Garcia's work time was recorded by Embarq's computer system, named SAP, in which Mr. Garcia would enter a code indicating the tasks accomplished in customer service, the time when the task began and the time when he completed the task. As a service technician, Mr. Garcia was required to truthfully and accurately enter his time worked into the SAP system. Ms. Smith was Embarq's area operations manager for the Central Florida area, including the Winter Park center where Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that some of the Embarq vehicles were returned to the customer service centers before the end of the work day at 4:30 p.m. Consequently, she asked the customer service center supervisors to examine all employee time records and determine whether or not a problem existed. Ms. Smith learned from Charles Clendenny (Mr. Clendenny), the acting manager for the Winter Park customer service center, that the examination showed some questionable activities. Based on Mr. Clendenny's report, Ms. Smith asked Ms. Trinder to conduct an independent review of all the employees at the Winter Park “Railroad Avenue” center. Ms. Trinder was Embarq's human relations business-partner, and part of her duties involved conducting employee investigations. Ms. Trinder examined the GPS documentation, the SAP time sheets, and the computer systems work force management assignments for all of the Winter Park “Railroad Avenue” employees. Her examination revealed questionable activities by four employees: Mr. Garcia, Scott Somner, James Shaunessy, and William Allison. The record showed that Mr. Somner is an African American and was approximately 48 years old at the time; that Mr. Shaunessy is a Caucasian, age in his sixties; and that Mr. Allison is an African American, age in his twenties. Of the four employees, only two were terminated, Mr. Garcia and Mr. Somner. Ms. Trinder and Ms. Smith credibly testified that during the interviews, they had learned that Mr. Shaunessy and Mr. Allison had received approval from their prior supervisor, Joe Venezia, to leave work early on the specific dates. Further, the data from the three computer systems confirmed Mr. Shaunessy's and Mr. Allison's explanations for leaving work early for the specific dates. Both Mr. Shaunessy and Mr. Allison were given training by Ms. Smith and Ms. Trinder concerning Embarq's work attendance polices. As to Mr. Garcia, Ms. Trinder's examination showed that Mr. Garcia had falsified his time records, and that he had unscheduled work absences. At the conclusion of the interview, Ms. Trinder typed a statement of Mr. Garcia's interview. The statement indicates that Mr. Garcia stated he did not know why he had entered that he had worked on two unscheduled work days, July 2, 2010, and July 14, 2010, and that he had mistakenly entered 4.75 hours as worked on an August 3, 2010, a date he actually took unscheduled time off. The result of these time entries was that Mr. Garcia was paid for work days on which he did not work, and that he avoided discipline for missing work. The Embarq employee handbook shows that employees are subject to discipline, if the employee misses work on a scheduled work day. The record shows that Mr. Garcia had previously been trained by his supervisor about the problem of missing work without providing the required 24-hour notice. On September 10, 2010, Ms. Smith sent a request to Ms. Susan Sarna, vice president/general manager, recommending that Mr. Garcia be terminated. Similarly, Ms. Trinder sent a recommendation to her supervisor recommending Mr. Garcia's termination. On September 13, 2010, Mr. Garcia was terminated as an Embarq employee. Mr. Garcia clearly testified that even though he had migraines that he had not requested any type of accommodation from his supervisors or from Embarq. Mr. Garcia did not bring forward any evidence, either direct or indirect, showing that Embarq's termination of his employment was the result of an unlawful employment practice. Mr. Garcia did not bring forward any evidence showing that Embarq's offered explanation that it terminated Mr. Garcia for attendance and time falsification was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner failed to show that Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2012.
Findings Of Fact The Respondent, Ralph Woodson, requested a formal administrative hearing on or about March 6, 1987, with respect to civil penalties which the Petitioner proposed to levy on the Respondent. P. Ex. 5. A formal administrative hearing was initially set for June 23, 1987, by notice of hearing mailed to the Respondent at his address at Route 1, Box 410B, Groveland, Florida 32236. This was the address that was recorded for Ralph Woods on the Farm Labor Contractor Registration Complaint which was forwarded to the Division of Administrative Hearings by the Department of Labor and Employment Security as pertaining to the request for hearing by the Respondent. That same document is P. Ex. 1. On May 26, 2987, a continuance was granted in the case, and an amended notice of hearing was sent to the Respondent, Ralph Woodson, at the same address. The amended notice of hearing scheduled the case for 9:00 A.M., December 4, 1987, room 532, Curtis Petersen Building, 200 N. Kentucky, Lakeland, Florida. The Hearing Officer was in the above hearing room until after 10:00 A.M. on December 4, 1987, but the Respondent did not attend the hearing. The Respondent had adequate notice of the formal hearing. On May 13, 1986, Mr. Woodson was observed by the compliance officer, William R. Brooks, driving a Ford van carrying three workers. When he arrived, Mr. Woodson gave directions to the workers as to where to go in the grove and what to pick. Mr. Woodson admitted to Mr. Brooks that he was the crew leader for those workers as well as other workers in the grove at that time. On May 13, 1986, the Respondent was working as a labor crew leader or farm labor contractor in an orange grove in Indian River County. The Ford van had numerous safety defects. There were rust holes in the floor boards, the tires were slick (no tread) so as to be likely to cause failure, and the benches upon which the workers were sitting as they rode into the grove were not secured to the floor properly. The Ford van had been used by Mr. Woodson to transport workers 120 miles one-way on the day in question. Mr. Woodson had an expired state registration with him but was not registered with the State of Florida as a farm labor contractor on May 13, 1986. Mr. Woodson had a State of Florida registration application in his possession stating that he intended to be a farm labor contractor and not transport workers. Notwithstanding that fact, he was transporting workers. The van in which Mr. Woodson was transporting workers was not covered by any motor vehicle insurance. Mr. Woodson was aware that he was supposed to have postings in his vehicle and at the work site, but did not.
Recommendation It is therefore recommended that the Department of Labor and Employment Security enter its final Order finding that the Respondent, Ralph Woodson, has violated the above enumerated statutes and assessing a civil penalty of $2,600. DONE and RECOMMENDED this 14th day of December, 1987, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 1987. COPIES FURNISHED: Moses E. Williams, Esquire Department of Labor and Employment Security Suite 117, Montgomery Building 590 Executive Center Circle East Tallahassee, Florida 32399-2152 Ralph Woodson Route 1, Box 410B Groveland, Florida 32236 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Kenneth Hart, Esquire General Counsel Department of Labor and Employment Security 131 Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32399-2152
The Issue Whether Respondent's contract of employment as a cafeteria worker should be terminated.
Findings Of Fact Dorothy Golden was employed as a lunchroom worker at Cottondale High School. She had been employed as a lunchroom worker since 1984. Ms. Golden's contract of employment was for one year and expired in the latter part of April, 1991. The contract was not renewed for the 1991-92 school year. During the 1990-91 school year, Dorothy Golden's immediate supervisor was Dorothy Barnes. Dorothy Barnes became the Cafeteria Manager at Cottondale High School after the retirement of Lela V. Gardner in approximately 1988. Although Ms. Golden inquired about assuming the manager's position at the County office, she never submitted an application because she decided she did not want the responsibility of the job. Ms. Golden did not resent the fact that Dorothy Barnes was hired as the Cafeteria Manager at the high school. Dorothy Barnes was supervised by the principal, Henry Ezell and the food service director, Ralph Harrison. Both Ms. Barnes' supervisors thought highly of Ms. Barnes because she had turned the cafeteria into a paying enterprise for the school. Over time a personality conflict gradually developed between Ms. Golden and Ms. Barnes because of Ms. Barnes' dictatorial style of management. In fact, Ms. Barnes could be so overbearing that at least two lunchroom employees who worked with Ms. Barnes testified that they would resign their jobs rather than work under her supervision again. 1/ Over the years Ms. Golden and Ms. Barnes had several minor conflicts. These conflicts basically stemmed from the personality conflict between the two women and Ms. Barnes' perception that Ms. Golden was unwilling to perform the duties Ms. Barnes assigned to her and/or that Ms. Golden was not prompt in the performance of such assigned tasks. Ms. Golden tried her best to get along with Dorothy Barnes. Ms. Golden felt that she could never do enough to satisfy Ms. Barnes. Apparently, until March, 1990, none of the alleged problems between Ms. Golden and Ms. Barnes were sufficient to justify a downgraded evaluation in any particular category or a failure to recommend her for reemployment for the following year. In fact, for each of the school years 1984-85 through 1989-90, Ms. Golden received satisfactory evaluations and had her annual contract of employment renewed. Given these facts and the supportive testimony of Ms. Golden's co- workers, the School Board has failed to demonstrate any cause for terminating Ms. Golden which could be attributed to the period of time prior to March 28, 1991. On March 28, 1991, Ms. Golden was sick with a temperature. Even though she was ill, Ms. Golden went into work with the intention of going to see the doctor during the day. She informed Ms. Barnes that she was sick and was going to see the doctor. However, the doctor could not see Ms. Golden on March 28. Ms. Golden therefore continued to work throughout the day. Near the end of the March 28 workday, Ms. Barnes instructed Ms. Golden to grind five pounds of cheddar cheese and five pounds of white cheese. The cheese was needed for the next day's meal. Because she felt so bad and had time the next day to grind the cheese, Ms. Golden asked Ms. Barnes if she could wait until the next day to grind the cheese. When Ms. Barnes did not tell her not to, she assumed she had permission to wait until the next day. The next day, March 29, 1991, a Friday, Ms. Golden attempted to grind the cheese. Ms. Barnes had revised her instruction to require that Ms. Golden grind 45 pounds of cheese even though only 10 pounds were needed for that day's meal. Clearly, the remaining 35 pounds of cheese would have to be stored in some fashion. The usual practice was to store cheese in bulk in one large freezer bag. The practice did not include using several small used bread bags in lieu of one large freezer bag. Ms. Golden attributed the practice of using one large freezer bag to prior instructions from the health inspectors. The cheddar cheese ground properly. However, Ms. Golden had difficulty grinding the white cheese because it was not frozen solid and gummed up in the grinder. Ms. Rouhlac, a co-worker of Ms. Golden, observed Ms. Golden's difficulties in grinding the white cheese and told her to get Ms. Barnes to help her. Ms. Golden said that she would rather clean the machine and try it one more time before seeking assistance from Ms. Barnes. The white cheese continued to gum up the grinder. In order to come up with enough cheese for that day's meal, Ms. Golden used some other cheese which was already shredded along with the amount that she had ground. Ms. Golden placed the remaining cheese in a large bag in the refrigerator to return to later. Ms. Golden continued to perform other tasks for the remainder of the day until Ms. Barnes requested her to place the cheese in smaller bread bags. Ms. Barnes' request was made ten minutes before quitting time. Ms. Golden searched for smaller bags to put the cheese in but could not find any. Ms. Golden asked Ms. Rouhlac about bags in her area. Ms. Rouhlac looked for some small bags but could not find any. Consequently, Ms. Golden placed the cheese back in the refrigerator until she could get some bags. Ms. Golden suspected that Ms. Barnes was responsible for the bags disappearing based on Ms. Barnes' previous practice of playing little tricks on employees by hiding things. The search for the small bags took up the remainder of the work day. Ms. Golden was not allowed to stay after normal working hours and she left for the weekend. On Monday, April 1, 1991, Ms. Golden was washing lettuce in prepartion for making a green salad. Ms. Golden was using one half of a double sink to wash the lettuce. The other half of the sink had dirty utensils soaking in it. Ms. Golden had previously been instructed that the side of the sink with the utensils in it was for the cook and not to use that side of the sink. Ms. Barnes told Ms. Golden to wash the sink. Ms. Barnes intended the word "sink" to refer to both sides of the double sink being used by Ms. Golden. Ms. Golden understood the word "sink" to mean one side of the double sink. She washed the side of the sink she was working in. A short time later, Ms. Barnes again told Ms. Golden to wash the sink. Ms. Golden told her that she had already washed her sink. After a brief discussion on this issue between the two women and Ms. Barnes made her intent clear, Ms. Golden washed both sides of the sink in accordance with Ms. Barnes' instructions. Later that evening, Mrs. Golden attended a meeting of food service workers at which there was a discussion about how to get along with someone at work who was difficult to deal with. The advice given was to simply "turn the other cheek" and be silent so as not to exacerbate the problem. Mrs. Golden decided to take this approach with Mrs. Barnes in the hope that it would avoid further instances of Mrs. Barnes "jumping down her throat" for no apparent reason. On Tuesday, April 2, 1991, Ms. Golden, following the advice she had received the night before, did not reply verbally to Ms. Barnes when she was greeted the next morning. She simply went about her work in silence, avoiding Ms. Barnes where possible to avoid a controversy. During this time, Ms. Barnes instructed Ms. Golden to refill the milk shake machine. Having performed this task many times before, Ms. Golden knew exactly what to do and simply verified which day of the week it was to determine which flavor of milk shake mix to put in the machine. To avoid conflict with Ms. Barnes, Ms. Golden directed these questions to her fellow employees. Ms. Barnes, angry over her perceived rebuke when she greeted Ms. Golden, chastised Ms. Golden for her inquiry. The evidence indicates that Ms. Barnes apparently misheard some of Ms. Golden's inquiry. 2/ On Wednesday, April 3, 1991, Ms. Golden came to work and began preparing a salad. Ms. Barnes came in and angrily slammed the cheese from the cooler down in front of her and shouted "Stop what you are doing right now and bag this cheese." Ms. Golden had inadvertently forgotten about the cheese in the refrigerator. She said she would bag the cheese if there were some small bags available. When she went to look for bags, there were plenty of small bags in the place where such bags are normally kept, but which was empty the previous Friday. When Ms Golden discovered the return of the small bags she said to the other employees present "These bags must have walked back." Following the discovery of the small bags and within a few seconds of Ms. Barnes slamming down the cheese, Ms. Christmas, a co-worker of Ms. Golden, came over and helped Ms. Golden bag the cheese in small bags. During the bagging of the cheese a shouting match erupted between Ms. Golden and Ms. Barnes. When they were finished bagging the cheese, Ms. Golden went to Ms. Barnes' office to ask her whether she wanted the cheese in the cooler or in the freezer. The shouting match continued. Ms. Barnes was on the phone talking to someone whom Mrs. Golden assumed was Ralph Harrison because Mrs. Barnes was always threatening to call Ralph Harrison out to the school as a means of intimidating Ms. Golden. Later, Ms. Golden realized from comments made by Ms. Barnes that it was the Principal, Henry Ezell, to whom she was talking. During the conversation, Ms. Golden asked Ms. Barnes to permit her to tell her side of the story when she was through. Ms. Barnes became very angry and stated that "Here she is again telling me what to do," and threw the phone down, bouncing it off the floor. Later, both Ms. Barnes and Ms. Golden met separately with Mr. Ezell and Mr. Harrison. During Ms. Barnes' meeting, Ms. Barnes stated essentially that she had had enough of Ms. Golden and that something must be done about Ms. Golden or she would not continue to work in the cafeteria. During Ms. Golden's meeting, Ms. Golden answered the questions asked of her. When she was asked whether she would comply with Ms. Barnes' instructions Ms. Golden stated that she was doing everything she could to comply with Mrs. Barnes' directives. She told them that she felt that nothing she could do seemed to satisfy Ms. Barnes, but that she would continue to try and get along with Mrs. Barnes and to do her job as she had been. Mr. Ezell and Mr. Harrison interpreted Ms. Golden's response to mean that she did not believe there was a problem between her and Ms. Barnes and that she would not follow Ms. Barnes' directives. Ms. Golden meant just the opposite by her statements. Based on the above interpretation and to satisfy Ms. Barnes, the entire blame for the perceived problems Ms. Barnes was having with Ms. Golden was placed on Ms. Golden. Ms. Golden was told, by Mr. Harrison, that either the manager had to go or she had to go. Later, Ms. Golden was informed that she was suspended with pay pending a recommendation of dismissal. Written documentation to that effect followed. The evidence in this case, demonstrated that Ms. Barnes and Ms. Golden were not very good at communicating with each other. The difficulty in communication resulted not so much from disliking each other as from an imbedded inability in each women's personality and social skills to relate their meaning to each other. Ms. Barnes' failure was her overquick perception that she was not being obeyed, lack of pateince with Ms. Golden because of her perceptions about her and her lack of flexibility in manner of performance for a given task. Ms. Golden's failure was that she was somewhat slow in understanding and lacked flexibility in performing her functions because of her slowness. The evidence relating to the specific incidents outlined above clearly demonstrates that there was no failure on the part of Ms. Golden to perform her functions in the cafeteria. In each instance, there was never a refusal to comply with Ms. Barnes' directives but simply a failure to understand the directive or a disagreement about what was necessary to accomplish the task. All tasks were eventually performed once a meeting of the minds was achieved. None of the incidents outlined above warrant the early termination of Ms. Golden since she essentialy successfully and satisfactorily performed her job as a lunchroom worker during the time period from March 28, 1991-April 3, 1991.
Recommendation It is accordingly, recommended that the School Board of Jackson County enter a Final Order awarding Respondent backpay for the period of time from her suspension until the School Board's action not to renew her contract. RECOMMENDED this 28th day of February, 1992, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1992.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent possessed a Certificate of Registration as a Farm Labor Contractor, issued under the provisions of Chapter 450, Part III, Florida Statutes. The Certificate number is C-04-387166-D-88-R. It was issued on June 15, 1987, and expired on April 30, 1988. The Department of Labor and Employment Security is the state agency charged with regulating farm labor contractors. At the time Respondent applied for his certificate, on June 4, 1987, he gave as the address for sending documents, P.O. Box 2186, Lake Placid, Florida, 33852. At approximately 9:00 am on June 4, 1987, Larry Coker, a DLES Compliance Officer, observed the Respondent drive his 1980 Ford van up to a convenience store in the town of Ona, on State Road 64, in Hardy County, Florida. At the time, Respondent had thirteen migrant workers in the van with him. Mr. Coker's examination of the van at the time revealed that the seats in the van were not secured to the floor or the frame of the vehicle, and the vehicle was not insured. Mr. Coker attempted to discuss the matter with the Respondent, who had stopped at the store to purchase gas and ice, and to give the workers an opportunity to purchase food for lunch. However, Respondent indicated that he had to get to work, and Mr. Coker followed Respondent to a watermelon field where he and the other workers were to cut watermelons. Though at the hearing, Respondent denied that he was the contractor for the workers in question, at the field, on June 4, 1987, he had indicated that he paid his workers in cash on a daily basis, did not deduct for social security, did not keep names, addresses, or other records, nor did he give a wage statement to the workers. At the hearing, Mr. Crowl admitted making the statement, but contended that he was referring to his routine practice on those occasions when he served as a labor contractor. He unequivocally denies, however, that the workers in his van on June 4, 1987, were his employees. He insists they were the employees of another contractor whose van had broken down beside the road and to whom he was giving a ride, merely to assist them in getting to work. When Mr. Coker discussed the matter with the grower, Randall Roberts, and the crew leader in the field, Mr. McGahey, Roberts indicated that he had just hired Respondent, and that he paid Respondent, who was responsible for paying the workers. Under the circumstances, and considering the relative probabilities of the testimony, it is found that the workers in question were Respondent's employees, and that he did improperly manage them under the terms of Chapter 450, Florida Statutes. It is also found that Mr. Crowl's prior Farm Labor Contractor Certificate of Registration expired in February, 1987. Even though expired, it should have been posted either at the work site or in the van, but was not. Respondent, also, was not authorized to transport workers in his van. As a result, Mr. Coker cited Respondent for failing to register as a contractor, (based on the expired certificate); failing to make, keep or preserve records; failing to provide wage statements to workers; failing to assure the safety of transportation vehicles; failing to obtain prescribed vehicle insurance; and failing to post his certificate of registration as required. The complaint was forwarded to DLES headquarters in Tallahassee. On June 29, 1987, Rod Willis, Chief of the Bureau of Agricultural Programs for the DLES, by letter, notified Respondent that the Department was assessing a civil money penalty against him for the above cited six violations in the total amount of $2,450.00. Under the terms of the letter, Mr. Crowl was given twenty-one days to remit the amount of penalty due, or to request a hearing under Section 120.57, Florida Statutes. The letter was sent by certified mail to the address listed by Mr. Crowl in his application for registration, but was subsequently returned undelivered. Mr. Crowl contends that he never received the letter because shortly after the date of the incident here, he left for New York and did not return until November, 1987. Because requirements outlined in the certified letter referenced above were not complied with, on January 25, 1988, the acting director of the DLES entered a Final Order imposing the $2,450.00 fine, and advising Respondent of his right to appeal. No appeal was taken. On January 28, 1988, Mr. Willis, again by letter, notified Respondent of the Division's intention to revoke his Florida Farm Labor Contractor's Certificate of Registration, citing his failure to pay the previously assessed civil money penalty or to request a hearing. Mr. Crowl was again advised of his right to request a hearing on the revocation, and this hearing was the result. At the hearing, counsel for Petitioner indicated that if Respondent was willing to make arrangements for the payment of the $2,450.00 civil money penalty assessed, he would consider recommending to the Division Director a settlement that might result in allowing Respondent to retain his Contractor's Certificate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED, that Respondent, Erastious Crowl, be ordered to pay the previously assessed civil money penalty in the amount of $2,450.00, with the condition that if the payment of the penalty is not paid within a time period satisfactory to the Department, his Certificate be revoked. Recommended in Tallahassee, Florida, this 9th day of May, 1988. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1988. COPIES FURNISHED: MOSES E. WILLIAMS, ESQUIRE DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY MONTGOMERY BUILDING, SUITE 117 2562 EXECUTIVE CENTER CIRCLE TALLAHASSEE, FLORIDA 32399 ERASTIOUS CROWL POST OFFICE BOX 2186 LAKE PLACID, FLORIDA 33852 HUGO MENENDEZ, SECRETARY DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY 206 BERKELEY BUILDING 2590 EXECUTIVE CENTER CIRCLE, EAST TALLAHASSEE, FLORIDA 32399-2152
The Issue The issue in this case is whether Respondent violated Sections 450.33(5), (6), (9), and (10) and 450.35, Florida Statutes (1997), by failing to make, keep, or preserve payroll records; failing to maintain the required inspection of a vehicle used to transport workers; failing to maintain insurance on such a vehicle; utilizing an unregistered crew leader; allowing an unlicensed driver to transport workers; driving without authorization; transporting workers without authorization; and, if so, what penalty, if any, should be imposed. (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating farm labor in the state. Respondent is a registered farm labor contractor and crew leader pursuant to certificate of registration CO4-957228I98R. Respondent’s certificate of registration was effective through September 30, 1999. On December 10 and 11, 1998, Respondent and his crew were harvesting fruit in Polk County, Florida. Compliance Officer Teresa McCutchen approached the crew and asked for the crew leader. Respondent identified himself as the crew leader and produced his certificate of registration. The registration did not authorize Respondent to drive or transport farm workers. Respondent transported his crew to the field on December 10, 1998, through Respondent’s employee, Mr. Roberto Gomez-Gonzalez. Mr. Gomez-Gonzalez is an unlicensed driver and acted as a farm labor contractor, within the meaning of Section 450.28(1)(a), without being registered as a farm labor contractor. At Respondent’s direction, Mr. Gomez-Gonzalez drove Respondent’s crew to the field on December 10, 1998, in a blue 1984 Chevrolet van. The license plate on the van was issued to Respondent for a 1994 Pontiac two-door sedan. The 1984 Chevrolet lacked insurance coverage for the transportation of farm workers and had not received the required safety inspections. Respondent did not maintain required payroll records for his crew. On December 11, 1998, Officer McCutchen returned to the field with Compliance Officer Joe Machado to interview the Spanish-speaking crewmembers. That morning, Respondent had driven the crewmembers to the field in the 1984 blue Chevrolet van. Respondent has a prior history of similar violations. On January 7, 1997, Respondent entered into a settlement agreement with Petitioner. Petitioner had assessed a civil penalty of $1,250 against Respondent for failure to maintain insurance on a vehicle used to transport workers, failure to maintain safety inspections, and the unauthorized transportation of workers. Pursuant to the settlement agreement, Respondent paid a civil penalty of $1,000. Section 450.35 authorizes Petitioner to impose a civil penalty up to $7,000 for the seven violations in the Administrative Complaint. The $5,750 civil penalty is reasonable based on the facts in this case and Respondent’s prior disciplinary history involving similar violations. Failure to impose a civil penalty would result in an economic inducement for Respondent to violate state requirements to maintain vehicle insurance, safety inspections, and payroll records. Respondent could reduce the cost of goods sold by evading the cost of insurance premiums, vehicle maintenance required to comply with safety inspections, and accounting fees for record keeping. A civil penalty operates to negate the economic benefit to Respondent from violating applicable law and also tends to reduce the competitive advantage Respondent’s violations give him over other businesses which comply with state law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of the allegations in the Administrative Complaint and imposing a civil penalty of $5,750. DONE AND ENTERED this 7th day of December, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1999. COPIES FURNISHED: Mary Hooks, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Francisco R. Rivera, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Porfirio Loredo Post Office Box 5503 Eloise, Florida 33880
The Issue The issue is whether respondent should have a $1,000 civil penalty imposed for allegedly violating Section 450.30, Florida Statutes (1989) and Rule 38H-11.003, Florida Administrative Code (1989) by acting as a farm labor contractor without a certificate of registration.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This controversy arose on May 1, 1989, when Don R. Symonette, who is a compliance officer with petitioner, Department of Labor and Employment Security, Division of Labor, Employment, and Training (Division), made an inspection of a farm owned by Ovid Barnett some seven or eight miles east of Immokalee, Florida. The testimony as to what transpired during the course of the inspection is sharply in dispute. In resolving these conflicts, the undersigned has accepted the more credible and persuasive testimony, and that testimony is embodied in the findings below. As Symonette drove by the farm that day, he observed a crew of approximately eighteen workers picking bell peppers in a field. Thereafter, Symonette drove his vehicle onto the premises for the purpose of determining if pertinent statutes and Division rules were being followed. He initially observed respondent, Abel Flores (Abel), standing by a pickup truck in the same field where the laborers were harvesting the peppers. The two were acquainted from several meetings over the prior years. Symonette asked respondent what he was doing, and respondent answered that he was helping his brother, Alfredo, who is a registered farm labor contractor. Respondent also volunteered that he was being paid by his brother and received approximately $40 per day in compensation. Abel further acknowledged, and the Division records show, that he is not certified as a farm labor contractor. At that point, Symonette decided to give Abel the benefit of the doubt and to interview respondent's brother, Alfredo, who was supervising a crew in an adjacent field. During the course of the interview, Alfredo advised Symonette that he (Alfredo) was the supervisor in charge of the crew and it was he who had contracted with the farm to supply the workers. Even so, Symonette concluded that because Abel was the only person standing in the other field, he was "supervising" the other crew and was doing so without a certificate of registration. Accordingly, Symonette filled out a summary of violations which cited Abel for failing to register as a contractor. After discussing the summary with Abel, Symonette had Abel sign the document. He also prepared a site review and inspection check list which Abel reviewed and signed. On April 27, 1990, or almost a year later, the Division issued an administrative complaint charging Abel with acting as a farm labor contractor without having a certificate of registration. On June 7, 1990, Symonette sent by mail a form to Ovid Barnett requesting information regarding Abel's employment. On an undisclosed date, the form was returned to Symonette and contains what purports to be Barnett's signature. However, the contents of the completed form are hearsay in nature and cannot serve as the basis for a finding of fact. Moreover, even if the response was not hearsay, it fails to disclose the nature of Abel's employment with the farm and whether the hourly compensation allegedly given Abel was being paid at the time the form was completed in June 1990 or when the inspection occurred thirteen months earlier. In this regard, it is noted that at hearing Abel produced pay stubs from April and May 1989 which indicate that his salary was either $4.325 per hour or $5.00 per hour, depending on whether he was driving a tractor in the fields or a truck from the fields to the packing house. The former amount is the same as was being paid a number of other farm workers whose job responsibilities were not disclosed. Abel's testimony on compensation is accepted as being credible and comports with the statement made by Abel to Symonette that he was being paid around $40 per day for a full day's work. All compensation received by Abel was from his employer, Ovid Barnett. In some cases, he was paid by check from the farm, and in other cases, he was paid by his brother who had in turn been paid by the farm. To the extent the allegation is relevant, there is insufficient evidence to establish that Abel received double compensation during May 1989 by being paid by both his brother and Barnett at the same time. To bolster Abel's contention that he was not acting as a farm labor contractor on May 1, 1989, a supervisor at Barnett's farm established that Abel was driving trucks between the field and the packing house when the inspection occurred, and as such, it was necessary for Abel to stand by his truck while the workers loaded the truck with produce. As a driver, Abel had the responsibility of overseeing the loading of produce on his truck and, when necessary, to direct the workers on how to properly do so. It is noted that at hearing, Symonette did not describe the activities being performed by Abel except that Abel was simply "standing" around his truck and "appeared" to be supervising the work crew. Accordingly, it is found that Abel was not performing the duties of a farm labor contractor on May 1, 1989.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the administrative complaint, with prejudice. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD 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 20th day of August, 1990. APPENDIX Petitioner: 1-3 Partially adopted in finding of fact 2. 4. Partially adopted in finding of fact 4. Note - Where a finding has been partially used, the remainder has been rejected as being irrelevant, cumulative, a conclusion of law, unnecessary, subordinate, or not supported by the evidence. Copies Furnished: Hugo Menendez, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-0658 Moses E. Williams, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658 Abel Flores P. O. Box 1611 Immokalee, FL 33934 Steven D. Barron, Esquire 307 Hartman Building 2012 Capital Circle, S. E. Tallahassee, FL 32399-0658
The Issue Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?
Findings Of Fact Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season. Mr. St. Laurent responded to the advertisement. Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015. Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned $4,816. In addition, Mr. St. Laurent would have been paid a $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order that: Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A. St. Laurent, solely because of his age; Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2016.
Findings Of Fact Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees. There has been no showing that the reason stated for the termination was pretextual. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired." Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me." The store manager then asserted they were not brothers. He called Petitioner a "damn nigger." Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.
Recommendation Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case. RECOMMENDED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 17th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618 Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #5 - #7. Accepted. See HO #6. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees. Rejected. Contrary to fact. See HO #7 and #9. Accepted. Accepted. See HO #15. Rejected. Contrary to fact. See HO #9. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #3. 3. Accepted. 4. Accepted. See HO #6. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #10. 8. Accepted. See HO #13. 9. Accepted. See HO #14 and #15. COPIES FURNISHED: ALBERT A WHITE 809 GRANITE RD BRANDON FL 33510 DONALD C WORKS III ESQ RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL 200 E BROWARD BLVD PO BOX 1900 FT LAUDERDALE FL 33302 RONALD M McELRATH EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570 DANA BAIRD ESQ GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570
