Findings Of Fact When Petitioner applied to take the Florida Real Estate Salesman's Licensure Examination in approximately 1971 or 1972, it was discovered that criminal charges were still pending against Petitioner as a result of a check which had "bounced" in 1962, or 1963. He therefore made restitution on that check, even though the charges had been pending for almost ten years, and Petitioner was allowed to take the licensure examination. He failed to achieve a passing score. Petitioner did not immediately attempt to sit for the licensure examination a second time but rather simply continued operating his retail florist business. In 1976 he had a dispute with an intermittent employee who had just left Petitioner's employment and started working for one of Petitioner's competitors. When an insurance/salary reimbursement check made payable to petitioner's florist shop and that employee arrived, Petitioner endorsed the names of both payees and cashed the check. Charges arising from that $46.00 check were dismissed after Petitioner had been arrested and had made restitution. For approximately three years before her death in 1973, Petitioner and his wife "cared for" his mother-in-law who was in a nursing home. During that time her only source of income was her Social Security checks, and Petitioner had a power of attorney to sign her name and cash her checks. After her death the checks continued to come although Petitioner called and wrote the Social Security Office. He started collecting them and storing them in a box. In 1975 his florist business encountered financial difficulties, and Petitioner signed his name and his deceased mother-in-law's name to the checks he had been collecting and cashed them. He was subsequently arrested by the F.B.I. and charged with 46 counts of uttering forged U.S. Treasury checks, one count for each check. On December 12, 1977, Petitioner plead guilty and was found guilty. He was committed to some type of work release program on one count. As to counts two through 46, sentence was withheld and he was placed on probation for a period of three years with the additional condition that restitution be made. Petitioner did make restitution. Toward the end of 1982 Petitioner realized that his educational credits would soon expire and he again wished to apply to take the Real Estate Licensure Examination. Where questioned on his application whether he had ever been arrested or charged with any offenses, Petitioner responded in the affirmative and listed the 1963 bad check which was paid, the "1977" check which was paid, and a 1978 three year probation with restitution. Based upon that information, Respondent denied Petitioner's application to take the licensure examination.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of August, 1984. COPIES FURNISHED: Mildred Smith Brown, Esquire 4173 Southwest LeJeune Road Miami, Florida 33146 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32001
The Issue The issue is whether Respondent, Michael’s Store, Inc. (“Michael’s”), committed an unlawful employment practice against Petitioner (“Mr. Hughes”) by discharging him.
Findings Of Fact Michael’s operates a store in Clermont, Florida. During all times relevant to the instant case, Amy Wsol was the manager of the Clermont store. Mr. Hughes was the Clermont store’s operations manager and subordinate to Ms. Wsol. Elisa Griffin was a cashier at the Clermont store. In April of 2015,1/ Ms. Griffin notified Michael’s human resources department that Ms. Wsol was not enforcing or not complying with Michael’s procedures regarding e-mail captures and other cashier practices.2/ Michael’s conducted an investigation during the summer of 2015 and concluded in August or September of 2015 that no action would be taken. Michael’s notified all employees interviewed during the course of the investigation that there would be no retaliation against Ms. Griffin. Nevertheless, immediately after the investigation’s conclusion, Ms. Wsol mandated that the other managers in the Clermont store document all of their interactions with Ms. Griffin and place those documents (“the allegedly retaliatory documents”) in Ms. Griffin’s personnel file. Mr. Hughes had the additional task of using an in-store surveillance system to monitor Ms. Griffin during her shifts. Mr. Hughes felt that Ms. Wsol’s orders regarding the monitoring of Ms. Griffin were contrary to Michael’s directive that Ms. Griffin was to suffer no retaliation because of the investigation. Mr. Hughes also felt that Ms. Wsol’s orders were immoral and unethical. The stress associated with complying with those orders had an adverse effect on Mr. Hughes’ health. Mr. Hughes is an insulin dependent diabetic, and his blood sugars became unmanageable. At one point, his endocrinologist advised him that hospitalization may be necessary if his condition did not improve. In December of 2015 or January of 2016, Mr. Hughes applied for an assistant manager position at a store that Michael’s was about to open in Orlando, Florida. While the position in the Orlando store would have been a lateral move for Mr. Hughes, it appealed to him because the Orlando position would be salaried, and Mr. Hughes was an hourly employee at the Clermont store. In January of 2016, Mr. Hughes reported Ms. Wsol’s orders regarding the allegedly retaliatory documents to Michael’s Human Resources Department. At this time, he also made copies of the documents so that he would have evidence that Ms. Wsol violated the directive that Ms. Griffin was to suffer no retaliation. Mr. Hughes did not have any authorization from Michael’s to copy the contents of Ms. Griffin’s personnel file. In February of 2016, Mr. Hughes met at the Clermont store with Dennis Bailey, one of Michael’s district managers, regarding Mr. Hughes’ allegations about Ms. Wsol. Mr. Bailey told Mr. Hughes that his allegations were being investigated. As for his request to be transferred, Mr. Bailey told Mr. Hughes that he would not be forced by a complaint to transfer Mr. Hughes to a different location. While Mr. Bailey did not completely rule out the possibility of transfer, he stated that Mr. Hughes would probably have to accept a demotion and a loss of benefits. In March of 2016, Ms. Wsol went on medical leave, and Mr. Hughes ran the Clermont store until April Skidmore arrived in April of 2016 to serve as acting store manager. At the end of May 2016, Ms. Griffin asked Mr. Hughes how she could obtain a copy of her personnel file. Mr. Hughes told her that she could request a copy from Ms. Skidmore or from Michael’s Human Resources Department. On June 14, 2016, Mr. Hughes received a call from Leah Frye, who worked in the Human Resources Department. Ms. Frye asked Mr. Hughes if Ms. Griffin had approached him about obtaining a copy of her personnel file. Mr. Hughes responded affirmatively and relayed that he had instructed Ms. Griffin on how she could obtain a copy of her personnel file. Mr. Hughes did not tell Ms. Frye that he had made a copy of the allegedly retaliatory documents in January of 2016. After Ms. Griffin received a copy of her personnel file, she stated to Mr. Hughes on June 15 or 16, 2016, that certain documents were missing. Ms. Griffin made that statement because she had expected to see documentation of compliments paid to her by customers. Ms. Griffin was also expecting to see documentation regarding the investigation of Ms. Wsol. However, none of those documents were in her personnel file. Mr. Hughes then examined Ms. Griffin’s personnel file, and discovered that the allegedly retaliatory documents were not there. Mr. Hughes then told Ms. Griffin about the missing documents and stated that he would transmit a copy of them to her upon receiving a request from her attorney. Mr. Hughes received such a request on June 17, 2016. At that point, Mr. Hughes elected to make a copy of his own personnel file because he was worried that its contents would be altered in an effort to retaliate against him. Accordingly, Mr. Hughes asked Mary Pearman, one of the other assistant managers at the Clermont store, to watch him copy his personnel file and sign a statement indicating that the documents he copied represented its complete contents. On June 29, 2016, Mr. Hughes received a call from Chad Romoser, the Director of Michael’s Human Resources Department. Mr. Romoser asked Mr. Hughes if he had made a copy of his personnel file and if he had asked a coworker to witness him doing so. Mr. Hughes responded affirmatively and stated that he copied the contents of his personnel file because the allegedly retaliatory documents had disappeared from Ms. Griffin’s file. Mr. Hughes then asked Mr. Romoser why the allegedly retaliatory documents were not transmitted to Ms. Griffin after she requested a copy of her personnel file. Mr. Romoser responded by stating that Michael’s Human Resources Department had no knowledge of the documents. Mr. Hughes then inquired about the status of the investigation pertaining to his report about the allegedly retaliatory documents. Mr. Romoser stated that after Mr. Bailey had met with Mr. Hughes in February of 2016, Mr. Bailey reported that Mr. Hughes was a “whiny individual” attempting to force Michael’s to give him a promotion. On June 29, 2016, Michael’s initiated an investigation of Mr. Hughes. Mr. Hughes was suspended with pay and required to relinquish his keys to the Clermont store. On July 6, 2016, Michael’s discharged Mr. Hughes. Mr. Hughes learned through a telephone conversation with Mr. Romoser that he had been discharged from Michael’s for intimidating Ms. Pearman3/ and for lying to the Human Resources Department. Mr. Hughes did not learn until filing his Charge of Discrimination with the Commission that Michael’s also discharged him for releasing personal and confidential information. Mr. Hughes was a credible witness. The undersigned finds that his testimony reflected his best recollection of the events pertinent to this case. However and as discussed below, even if all of Mr. Hughes’ testimony were to be accepted as true, Mr. Hughes has failed to present a prima facie case of retaliation under the Florida Civil Rights Act.
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 dismissing Thomas C. Hughes’ Petition for Relief from an unlawful employment practice.5/ DONE AND ENTERED this 19th day of October, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 19th day of October, 2017.
The Issue The issue in this case is whether the Respondent, R & R Sod Contractors, Inc., owes the Petitioner for sod purchased from the Petitioner and, if so, the amount presently owed.
Findings Of Fact The Petitioner is in the business of raising and selling sod in the State of Florida. During the past few years, R & R has been a frequent customer of the Petitioner and has purchased large amounts of sod from the Petitioner. Prior to April of 1998, R & R had a credit account with the Petitioner. The terms of the credit agreement included the following: "In the event the account becomes delinquent, and will be referred to a licensed collection agency or an attorney, Customer agrees to pay all costs and expenses of collection including reasonable attorney's fees, court costs, and costs incurred on appeal." During April of 1998, R & R's account with the Petitioner became delinquent. The Petitioner referred the delinquent account to an attorney. The attorney filed a lawsuit against R & R and also filed a complaint with the Department to collect the delinquency by asserting a claim against the bond posted by R & R. The 1998 account delinquencies were resolved in December of 1998, when the Department issued a check to the Petitioner in the amount of $48,431.00. That check paid the full amount of all unpaid invoices from the Petitioner to R & R as of December of 1998. In the process of collecting the $48,431.00 debt from R & R during 1998, the Petitioner incurred costs and attorney's fees in the amount of $1,644.00. These costs and attorney's fees were in addition to the $48,431.00 debt that was paid by the check from the Department. In January of 1999, the Petitioner again began to sell sod to R & R, but only on a cash basis. In the latter part of February of 1999, R & R bought approximately $2,500.00 of sod from the Petitioner which they paid for with a $2,500.00 cashier's check payable to the Petitioner. Although the cashier's check was given to the Petitioner by R & R, the face of the cashier's check identified the remitter as "Ely Sod, Inc." 3/ At the time the Petitioner received the $2,500.00 cashier's check described above, the Petitioner had an unsatisfied judgment against Ely Sod, Inc. When the cashier's check first went through the Petitioner's bookkeeping system, it was treated as a payment by Ely Sod, Inc., to the Petitioner, and was applied to reduce the amount of the judgment owed by Ely Sod, Inc. Consequently, none of the $2,500.00 cashier's check was initially applied towards the amounts owed by R & R. The misapplication of the proceeds of the $2,500.00 cashier's check discussed above apparently produced a great deal of confusion between the Petitioner and R & R regarding the status of R & R's account with the Petitioner. In this regard the Petitioner was especially concerned about the fact that R & R, which was supposed to be on a "cash only" basis, appeared to be $2,500.00 in arrears in its payments to the Petitioner. During the course of resolving the issue of the misapplied cashier's check, the Petitioner became aware of the fact that R & R had never paid the Petitioner's costs and attorney's fees related to the 1998 litigation. Ultimately, it was agreed between the attorneys representing the Petitioner and R & R that the proceeds of the $2,500.00 cashier's check should be applied to pay the costs and attorneys fees in the amount of $1,644.00 incurred by the Petitioner in the 1998 litigation, and that the balance of $856.00 would be paid to R & R or would be applied to any outstanding debts of R & R. Consistent with the agreement, $1,644.00 was applied to pay the Petitioner's costs and attorneys fees, and $856.00 was applied towards the unpaid amounts owed by R & R for sod purchased from the Petitioner Review of the invoices, payments, and accounts between the Petitioner and R & R reveals that, after the agreed application of funds described in paragraph 7, above, R & R still owes the Petitioner the amount of $1,844.00 for sod purchased from the Petitioner. 4/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order (1) finding that R & R is indebted to the Petitioner in the amount of $1,844.00; (2) directing R & R to make payment to the Petitioner in the amount of $1,844.00 within 15 days following the issuance of the order; and (3) announcing that if payment in full of this $1,844.00 indebtedness is not timely made, the Department will seek recovery from ICNA, R & R's surety. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 April, 2000.
The Issue Whether Respondent Employer discharged Petitioner because of her sex, in violation of Section 23.167(1), Florida Statutes (1979).
Findings Of Fact Based on the evidence presented at hearing, the following findings are determined and organized in accordance with the allocation of proof applicable to employment discrimination cases. I. The Parties The EMPLOYER is an incorporated condominium association responsible for the operation and maintenance of Regency Towers Condominium, a 171-unit condominium in Panama City Beach, Florida. In 1977, the developer of Regency Towers relinquished responsibility for and control over the completed condominium to the nearly formed association. The association ("EMPLOYER") is owned by the Regency Tower Condominium unit owners who elect a Board of Directors; the Board, in turn, hires and supervises a condominium manager who directs and is responsible for the day-to-day operations and maintenance of the facility. (Testimony of Pettigrew.) COMPLAINANT, a female, was employed by EMPLOYER as its manager from February 1976, until September 5, 1978, when she was terminated by its Board of Directors. In addition to her salary, the EMPLOYER allowed COMPLAINANT to engage in resale of condominium units through the office of a local real estate broker. (Testimony of Pettigrew.) During 1978, the calendar year preceding COMPLAINANT's termination, EMPLOYER employed 15 or more employees during 20 or more calendar weeks. In this connection, Findings of Fact Nos. 1 through 10 as contained in the previous Order Denying Respondent's Motion to Dismiss, entered on August 6, 1980, are adopted and incorporated by reference. (Order Denying Respondent's Motion to Dismiss, dated August 6, 1980.) II. Complainant's Initial Burden: Establish Prima Facie Case of Employment Discrimination Based on Sex COMPLAINANT presented evidence sufficient to establish a prima facie case of employment discrimination on the basis of her sex, the EMPLOYER admits such prima facie showing was made. (See Respondent's Suggested Findings of Fact, p. 1.) COMPLAINANT is a female who was discharged by EMPLOYER; thereafter, her position was filled by a male, David Lacey. Prior to and after her termination, there was a small but vocal group of condominium unit owners who openly expressed a view that the job of condominium manager cold not be performed by a woman: that it could be better done by a man. Remarks were made such as: "we need a man to run this business"; (Tr. 79) "the place won't run with a woman in there . . ." (Tr. 116); "a man could do . . . [the job] better," (Tr. 131) and "a man [is] needed to have that position, that a woman could not . . . adequately fill, [or] fulfill the job." (P-2, p. 13) The COMPLAINANT testified that the sole basis for her termination was her sex. (Tr. 236) One of the owners who articulated such a bias in favor of a male, as opposed to a female manager, was Henry Christmas; he was also a member of EMPLOYER's Board of Directors, and made the motion which resulted in COMPLAINANT's termination. 2/ (Testimony of Pettigrew, Truman, Sullivan, Williams, Johnson, Christmas.) EMPLOYER's actions toward COMPLAINANT, infra, standing alone, support a reasonable inference that she was terminated because of her sex. The burden, therefore, shifts to EMPLOYER to articulate some legitimate, nondiscriminatory reason for its action. III Employer's Burden: Articulate Legitimate Nondiscriminatory Reason for Complainant's Termination EMPLOYER denied that its termination of COMPLAINANT was motivated by her sex, and supplied a legitimate, nondiscriminatory reason: her poor work performance. Members of EMPLOYER's Board of Directors had received numerous complaints concerning COMPLAINANT's job performance from owners, renters, and employees. At the Board's meeting on September 3, 1978, the decision to terminate COMPLAINANT was preceded by a discussion of numerous examples of her inefficiency, ineffectiveness, and failure to satisfactorily perform her job. Specific deficiencies discussed and offered as cause for her termination were her: Refusal to implement Board directives; Inability to get along with owners; Inability to supervise and get maximum efficiency from employees, including high turnover and expense involved in training and hiring new employees; Failure to submit to the Board a job description for herself and other employees; Failure to place ads in newspapers for the condominium's rental program; and Failure to keep adequate records and daily check sheets required by the rental program. (Testimony of Truman, Hodges, Lee, Christmas, Rosborough; R-2) During 1978, complaints had been received by Board members from owners, renters, and employees claiming she: Failed to adequately maintain grounds, parking lot, walkways, and shrubbery; Was unable to get along with owners and renters; Was verbally abusive and rude toward renters and owners; and Inadequately managed employees. (Testimony of Lee, Hodges, Truman) EMPLOYER having articulated the above legitimate, nondiscriminatory reason for its termination of COMPLAINANT, the burden then shifts to the COMPLAINANT to show that the stated reason--poor work performance--is, in fact, a pretext or mask for a discriminatory decision. IV. Complainant's Burden: Show Employer's Stated Nondiscriminatory Reason is Pretextual COMPLAINANT did not establish or provide a sufficient basis to infer that EMPLOYER's stated reason for her termination was pretextual, or a mask for a discriminatory motive. Events which occurred before and after COMPLAINANT's termination substantiate EMPLOYER's contention that there were numerous and serious deficiencies in COMPLAINANT's job performance, and increasing criticism of her actions by owners. (Testimony of Webb, Johnson) Charles T. Webb served as president of EMPLOYER's Board of Directors from September 1977 through August 1978. He had regular contact with COMPLAINANT and received numerous complaints from owners concerning her job performance and attitude toward owners. It occurred to him that, during 1978, COMPLAINANT became increasingly unable to effectively carry out her duties. She would call him at his business and his home--sometimes late in the evening--to discuss matters which, in his view, she should have routinely handled. (Testimony of Webb) Since her hiring in 1977, there was a small group of owners who openly and constantly criticized COMPLAINANT. J. H. Christmas and Otis Rosborough were its most vocal members. On most days, they and several others could be found in the lobby in the vicinity of COMPLAINANT's office. There, over coffee, they would continually criticize her actions in the presence of owners and employees. Sometimes they would interfere with her directives to employees, and attempt to undermine her authority. It seemed to the head housekeeper that nothing that COMPLAINANT did was acceptable to these critics, that they could not be satisfied. It is clear that the actions of this handful of owners were, at least in part, motivated by their frequently voiced belief, that a woman could not properly do the job, that a man could do it better. (Testimony of Williams, Pettigrew, Weaver, Truman, Williams, Lilly) The unrelenting criticism of this small group of owners, the pressing and sometimes unreasonable demands of owners and renters, employee turnover and complaints--all imposed a heavy burden on COMPLAINANT. Owners increasingly began to complain about her rude treatment; her job performance began to deteriorate. Friction and conflict between COMPLAINANT and others became more frequent. Incidents would upset her, and sometimes she would be crying when she called Webb for his assistance. Owner dissatisfaction became so widespread that, several times during Webb's term as president, the Board of Directors considered terminating her. (Testimony of Webb, Truman, Pettigrew, Williams; R- 7, R-9) In July 1978, Webb met with COMPLAINANT to discuss her worsening work performance. He gave her the choice of resigning, or improving her performance. She indicated she desired to remain. At 2:00 a.m., on July 21, 1978, she called him, in tears, to relate an incident involving an owner. On July 22, 1978, Webb wrote her a letter listing problems with her work performance, including her difficulties with employees and owners, and her failure to carry out one of his previous requests. He asked for attention to those problems, "so that no other administrative action will be necessary." (R-7) (Testimony of Webb, Pettigrew; R-7) On September 1, 1978, at the end of his term of office as president of the Board of Directors, Webb wrote the newly elected Board describing his problems with COMPLAINANT's work performance. He cited her "continuous turmoil" with owners and renters, her failure to carry out the Board's directives, and her inability to handle routine management problems. Two days later, the newly elected Board of Directors discussed numerous deficiencies in COMPLAINANT's performance and terminated her employment. (Testimony of Webb, Truman; R-6, R-2) At the time of COMPLAINANT's termination, the owners had split into factions opposing and supporting her. On September 21, 1978, Lomax Johnson, one of the owners who supported COMPLAINANT, polled, by written ballot, all unit owners and members of EMPLOYER for the purpose of "trying to right a wrong that has been done to an individual . . ." (R-3) The principle question on the ballot was whether they agreed or disagreed with the Board's termination of COMPLAINANT. Of the 54 owners' ballots responding, 26-27 disagreed with her termination, 24 agreed, and 3-4 abstained. (Testimony of Johnson; R-4) In a lengthy explanatory letter accompanying the ballot, Johnson gave COMPLAINANT's answer to each of the reasons given as cause for her discharge. He defended her work performance, and maintained that she had been unjustly treated. However, in criticizing the Board's treatment of COMPLAINANT, Johnson did not assert that it was motivated by sex discrimination. (Testimony of Johnson; P-3) The Board of Directors which terminated COMPLAINANT contained both males and females. Board members who testified denied that their action was motivated by her sex, and no member testified otherwise. Prior to and after her termination, both male and female owners expressed dissatisfaction with COMPLAINANT's job performance. The fact that some of the complaints were unwarranted and self-serving does not negate their existence or the Board's belief that complaints were occurring with increasing frequency. (Testimony of McKay, Wade, Thigpen, Davis, Martin, Lee, Truman, Webb; P-2, R-4)
Conclusions Petitioner established a prima facie case of sexual discrimination; Respondent stated a legitimate, nondiscriminatory reason for its action. Petitioner, however, failed to prove that Respondent's stated reason--her poor work performance--is a pretext for a discriminatory motive. The Commission on Human Relations should, therefore, enter an order finding Respondent not guilty of the alleged unlawful employment practice, and denying Petitioner's petition for relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order finding the EMPLOYER not guilty of the unlawful employment practice alleged by COMPLAINANT, and denying her petition for relief. DONE AND ENTERED this 20th day of January 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January 1981.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on January 7, 1998.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this discrimination case, which has an extremely limited factual record and is replete with hearsay, Petitioner, Thornton Alan Bline, who was 52 years of age in October 1997, contends that Respondent, Automax and Pearson Group, unlawfully terminated him on account of his age. Respondent denies the allegation and contends that Petitioner was terminated because of poor performance. A preliminary decision on the merits of the claim was never reached by the Florida Commission on Human Relations (Commission). Respondent is a car dealer that began business in the summer of 1997. Although there is no specific evidence on the issue of whether Respondent is an employer within the meaning of the law, monthly compensation reports received in evidence as Respondent's Exhibits 1 and 2 reflect that during August and September 1997, Respondent employed five team leaders, including Petitioner. Thus, the total number of employees would have been greater. Even so, the record does not show the precise number of persons employed by Respondent, and the undersigned is unable to determine if Respondent is an employer within the meaning of the law and thus subject to the Commission's jurisdiction. Petitioner was hired by Respondent on May 30, 1997, as a floor manager. That position required Petitioner to manage a small team of salespersons who assisted customers in purchasing automobiles. The team's performance was measured by the number of automobiles (units) sold each month. In August and September 1997, Petitioner's team had the lowest sales volume of any team. More specifically, in August 1997, out of 80 units sold by all teams, Petitioner's team sold only 10 units; in September 1997, out of 97 units sold by all teams, Petitioner's team sold only 4. At hearing, Petitioner agreed that these numbers were accurate and that his sales "were down" during that period of time. On October 1, 1997, Petitioner was summoned to the office of the general manager, "Bud" Holian, who advised him that he was being terminated due to low sales performance. At that brief meeting, Holian explained that he "felt bad" about the decision, especially "with all [Petitioner had] done," but that he had to let Petitioner go. Petitioner contended that during the conversation, Holian had also stated that the company needed "someone younger and fresher to liven up the team." He further contended that another floor manager named "Rick" overheard the conversation and could confirm these remarks. However, Rick did not appear and testify. Neither was there was any other corroborating or independent evidence to confirm this allegation. Holian, who is older than Petitioner, denied making the comment. He also established that after Petitioner was terminated, he hired two other salesmen who were older than Petitioner. Finally, the record does not show who replaced Petitioner and the age of that individual. In light of the foregoing, there is insufficient evidence to find that Respondent's employment decision was grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the employer in its actions. Rather, the more persuasive evidence supports a finding that Petitioner was terminated solely because of poor sales performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Charge of Discrimination. DONE AND ENTERED this 9th day of August, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 9th day of August, 2000. COPIES FURNISHED: Thornton Alan Bline 5720 Northeast 4th Street Ocala, Florida 34470 Bernard B. Holian, General Manager Automax and Pearson Group 1918 Southwest 17th Street Ocala, Florida 34470 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Frank Bowder began his employment with Exports, Inc., under the tutelage of Kenneth L. Kellar, President and sole stockholder of Exports, Inc., at the office in Washington state approximately 20 years ago. He became very knowledgeable about the company's business, and approximately 15 years ago he was sent by Kellar to operate the company's Florida office. He was given the title of general manager of the Florida office and remained an excellent employee until his recent death. Kellar considered Frank Bowder to be an excellent manager of the product of Exports, Inc., but recognized that Frank Bowder had a large turnover of employees. His wife Mae Bowder was also an employee of Exports, Inc., and was considered by Kellar to be "the best cleaning woman there is." She was in charge of cleaning and maintenance duties at the Florida office. At some point Mae Bowder began representing to people that she was the office manager of the Florida office. That information was brought to Kellar's's attention on several occasions, and he corrected that information by explaining that she was simply in charge of maintenance. At some point Mae Bowder's son, Wayne Evans, became employed by the Bowders in the Florida office and was given the title of warehouse manager. Within the last several years, Frank Bowder allowed his wife to "become" the office manager. When Kellar found out, he fired her because he believed that she was "not office material." Approximately a year later Kellar found out that Mae Bowder was once again the office manager. He spoke to Frank about it, and Frank explained, essentially, that Mae was giving him so many problems at home about it that he had to hire her back. Kellar fired her once again. Sometime thereafter, Kellar found out that Frank was ill. He came to the Florida office and discovered Mae Bowder once again employed as "office manager." He again discussed the matter with Frank and determined the extent of Frank's illness, which was terminal. He told Frank that Frank was too ill to be running the office full time and told Frank that he should only come to the office a few hours a day. Frank responded that he did not know what to do about his wife. Kellar then went to Mae Bowder and discussed with her the fact that he only wanted Frank to be at the office a few hours a day and that it was too difficult for Frank to continue working full time. He also told Mae Bowder that she should be staying home and taking care of Frank because Frank was so sick. Mae Bowder specifically asked Kellar if he were firing her, and Kellar responded "no" but that she should be staying home to take care of her husband. Mae Bowder "got in a huff," threatened two of the female office personnel, and left. Kellar did not see her again until the final hearing in this cause. Kellar began investigating the operations of the Florida office at that point and began discussing with the other employees there how the office had been managed. He discovered problems. He was told that the Bowders gave highly preferential treatment to Wayne Evans in comparison to the other employees. He discovered that Mrs. Bowder did not like to hire black employees, and the black employees who were hired were not given keys to the office. There was a stated policy by Mrs. Bowder to not hire people with children. Specifically, one black employee did not tell Mrs. Bowder that she had a child when she was hired. When she later became pregnant, Mrs. Bowder was furious. The employee was given one month for unpaid maternity leave and when she called at the end of that month, Mrs. Bowder told her she had been laid off. When she called two months later, the time by which her baby who was sick could be left with someone else, Mrs. Bowder returned her call a week later telling her she could come back to work because another black employee had left. Lastly, the other employees reported that Mrs. Bowder would yell and curse at them, threaten to hit them with an upraised hand, and even pushed and shoved an employee on one occasion because that employee had made a mistake in her work. The employees had previously not made these complaints because they could have only complained to the general manager who was the husband of the person about whom they would be complaining. Kellar brought an employee from the Washington office down to the Florida office to assist Frank Bowder and continued to pay Frank Bower his salary until he died. No evidence was offered that Kellar would not have continued to pay Mae Bowder her salary if she had reduced her hours in order to take care of Frank rather than walking out when Kellar tried to discuss the matter with her. No one else was present when Kellar and Mae Bowder had their discussion at the time when Mae Bowder resigned. Later that day, according to her son, Kellar made a comment that the Bowders had been the last of the married couples working for the company. Such a statement, if it were made, is susceptible of many interpretations, including sadness for the end of an era. Kellar did not fire Mae Bowder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is therefore, RECOMMENDED that a Final Order be entered finding Exports, Inc., not guilty of committing an unlawful employment practice and dismissing Petitioner's Petition for Relief filed in this cause. DONE and RECOMMENDED this 26th day of May, 1989, in Tallahassee, Florida. LINDA M. RIGOT 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 26th day of May, 1989. COPIES FURNISHED: James R. McGlynn, Esquire 4633 10th Avenue North Lake Worth, Florida 33463 Kenneth L. Kellar President/Owner Exports, Inc. Post Office Box 449 Blaine, WA 98230 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent engaged in an unlawful employment action based on Petitioner's race.
Findings Of Fact Mr. Maderazo is of the Asian race. Davis, Inc., is a corporation doing business in Florida and employed from 200 to 240 persons, during times pertinent, in four restaurants in Okaloosa County, Florida. Charles W. Davis is the owner and president of Davis, Inc. Mr. Maderazo was employed by Davis, Inc., for a total of about 12 years. He was first hired as a crew person in Mary Esther, Florida in 1993. It was during his employment as a crew person that Davis, Inc., management became aware of him. In 1994 Mr. Maderazo terminated his employment with Davis, Inc., and moved to California. Davis, Inc., rehired him when he returned in 1996. Mr. Maderazo was promoted several times within the Davis, Inc., organization until he reached the position of store manager in Niceville, at McDonalds No. 26203. During the course of this upward mobility, he was sent to various schools by Davis, Inc., which the corporation funded, including a course at McDonald Corporation's Hamburger University in Chicago, Illinois. A store manager at a McDonalds restaurant is charged with supervising workers; ordering supplies; maintaining a clean and orderly operation; keeping track of cash; filing invoices; and generally ensuring that the store is profitable. Mike Smith, a Davis, Inc., an employee for 24 years, and who appears to be an African-American, and C. W. Davis, the principal of C. W. Davis, Inc., who appears to be of the Caucasian race, were intimately aware of Mr. Maderazo's capabilities as a McDonalds employee. Indeed, they had known him personally as an employee for at least 12 years. After Mr. Maderazo's promotion to store manager, both Mr. Smith and Mr. Davis visited his store on a frequent basis and observed his performance. Although Mr. Davis has the ultimate power to promote an employee to a position of high responsibility, such as store manager, Mr. Davis and Mr. Smith confer prior to making promotional decisions and other decisions involving personnel. Both Mr. Davis and Mr. Smith agreed that, at least until May 3, 2004, Mr. Maderazo was a capable and hard-working employee who deserved to be a store manager. In April 2004 a meeting was held which the store managers, including Mr. Maderazo, attended. The meeting was hosted by Mr. Davis and Mr. Smith. At the meeting management issues were discussed in general but a substantial part of the meeting specifically addressed the handling of cash and the necessity for store managers to ensure that two bank deposits were accomplished each day. It was a policy of Davis, Inc., that no more than one deposit bag should be in a store at one time. An exception to the deposit rule could be made if a law enforcement escort was not available during the hours of darkness. In that case, the deposit could be deferred until the following morning. This policy has been in effect since about 1980. There was a great concern about cash management at the stores because of a previous incident where a portion of daily receipts went missing. Frequent deposits are an important part of cash management. During the meeting in April 2004, Mr. Davis told each store manager that their failure to abide by the requirement to make two deposits each day, subject to the exception noted, would result in serious consequences to them. Mr. Davis ensured that each of the attending store managers told him specifically that he understood the guidance provided. Mr. Maderazo, specifically, looked in the direction of Mr. Davis and nodded in the affirmative, indicating that he understood. At times pertinent, the McDonalds stores owned by Davis, Inc., conducted almost all transactions in cash. Therefore, cash would accumulate if deposits were not made on a daily basis. The accumulation of large amounts of cash, which could amount to $20,000 or more over a weekend in a single store, could result in losses through "mysterious disappearance." Insurance policies maintained by Davis, Inc., did not cover losses through "mysterious disappearance." The excess accumulation of cash is also a safety issue. A person harboring a criminal inclination, who would not commit larceny or robbery at a McDonalds for a few thousand dollars, might conclude that the risk was worth the reward if the stake was $20,000 or more. Additionally, Davis, Inc. had suppliers to pay and without receipts being timely deposited, the business could experience cash flow disruption. The deposit policy was grounded in reasons that were obvious to any store manager, and this had to have been obvious to Mr. Maderazo. Despite the instructions given to Mr. Maderazo at the April meeting of managers, and despite the fact that Mr. Maderazo was undoubtedly aware of the downside of cash accumulation, he failed, during the weekend preceding May 3, 2004, to ensure that he or his assistant managers made deposits on a daily basis. On May 3, 2004, a Monday, Mr. Maderazo arrived at the store early in the morning and checked the deposit bags that had accumulated over the weekend. Five deposit bags should have been present that morning in the store safe. One bag, however, had gone missing. Mr. Maderazo followed many of the procedures for lost cash by conducting a search of the store and calling the bank that would have been the recipient of the deposit and calling the assistant managers. He did not immediately inform Mr. Davis or Mr. Smith of the loss, which was contrary to company policy. Around noon, Mr. Smith entered the store and inquired why the store was in a state of disarray. Shortly thereafter, Mr. Maderazo revealed to Mr. Smith that a deposit bag with approximately $3,000 had gone missing. Mr. Smith informed Mr. Davis of the loss. The local police department was informed, interviews of employees were conducted, and surveillance tapes were reviewed. These activities did not result in explaining the disappearance of approximately $3,000 in cash. Mr. Smith asked Mr. Maderazo why the deposits had not been made over the weekend. Mr. Maderazo informed him that he had been keeping the weekend deposits in the safe and then having Mollie Jimmerson, one of the assistant managers, take the weekend deposits to the bank on Sunday evenings. Neither Mr. Davis, Mr. Smith, nor law enforcement authorities considered Mr. Maderazo to be criminally involved in the loss. Mr. Smith and Mr. Davis discussed on several occasions, following these events, whether or not Mr. Maderazo should be terminated or given a chance to continue working for Davis, Inc. They determined that he should be retained but should be demoted to assistant store manager and transferred to another store. Mr. Maderazo was informed of this decision in a meeting between him, Mr. Davis, and Mr. Smith, on May 10, 2004. In a letter dated May 11, 2004, Mr. Maderazo provided Mr. Davis with a letter of resignation, effective May 11, 2004. In the letter he stated that he believed that the demotion and transfer were unfair. He also stated, "You've been great to me and it is part of the reason why I stayed and as [sic] been as loyal to your organization." In the letter he also thanked Mr. Davis for the opportunities provided to him for almost 12 years. In response, Mr. Davis provided Mr. Maderazo, on that same day, a written acceptance of his resignation. Subsequently, although he was under no obligation to do so, Mr. Davis directed Davis, Inc., to provide Mr. Maderazo with a severance payment in the amount of $700. Mr. Maderazo's position was eventually filled by a person named Billy Jordan who is of the Caucasian race. Once, several years prior to this incident, it was reported to Mr. Maderazo that Mr. Smith had referred to him as a "Filipino Jew." This is the sole reference to race that was produced by Mr. Maderazo and was in the form of hearsay which is accorded minimal weight. Mr. Maderazo's salary with Davis, Inc., at the time he resigned was net $1163 biweekly. After his resignation he was unemployed for one week. Thereafter he went to work for another McDonalds (which was not owned by Davis, Inc.) and received $1,000 net biweekly.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 18th day of May, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 18th day of May, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Romeo C. Maderazo 605 McKinney Street Niceville, Florida 32578 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.
Findings Of Fact Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following: Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first." Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 10th day of April, 1990. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected, not supported by the weight of the evidence. Adopted in substance, though not verbatim. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim. Adopted in substance. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact. 6 Rejected, not supported by the weight of the evidence. Rejected, relevancy, conclusion of law. Adopted in substance as to firing and date of same. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence. Respondent's Proposed Findings 1.-3. Rejected, unnecessary. Modified to extent that Dunphy operated Respondent's Tampa office. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance. Adopted by reference. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities. Adopted in substance. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point. 16.-19. Adopted in substance. 20. Rejected, relevancy. 21.-23. Rejected, relevancy. 24. Adopted by reference. 26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance. 29.-30. Rejected, relevancy. Rejected, cumulative. Rejected, cumulative. 33.-34. Rejected, unnecessary. Adopted in substance. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point. Adopted in substance, though not verbatim. 38.-41. Adopted in substance, though not verbatim. 42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary. 49.-66. Rejected as argumentative of proposed findings postulated by Petitioner. COPIES FURNISHED: Donald A. Griffin Executi
Findings Of Fact During the year 1976, for several years before, and until February or March of 1977, petitioner worked in the comptroller's office of the University of West Florida. From at least as early as December of 1976, until she left the comptroller's office, she worked as an account clerk II in the student receivable section of the office, under the direct supervision of Ms. Wynell Collins Heidema. One of petitioner's responsibilities was the collection of checks returned to the University for insufficient funds. Dishonored checks, like all other checks that arrived in the mail, went first to a secretary in the comptroller's office who logged in checks of all kinds on a form called a mail transmittal. The mail transmittal, together with the checks, then went to the head cashier who verified the accuracy of the mail transmittal and sorted the checks into different categories. After segregating checks which had been returned for insufficient funds, the head cashier gave them to Brenda Hill, a teller, who recorded the checks on journal vouchers. When Ms. Hill finished this task, she gave both the checks and the journal vouchers to petitioner. Putting the journal vouchers to one side and working from the checks, petitioner filled out a "collection effort card" for each check and mailed a form letter to the person who had drawn the check, asking that the check be made good. She noted the date the letter was mailed on the collection effort card. Afterwards, the checks were placed in a notebook. If necessary, petitioner followed up the original letter with additional efforts to secure payment of the returned check. This procedure was followed with respect to most, but not all, of the dishonored checks returned to the University. If the returned check was drawn by a faculty member, the faculty member was likely to be notified by a telephone call instead of by a letter. In September of 1976, a University vice president wrote a check against insufficient funds. When the vice president's check was returned to the University by the bank on which it was drawn, it was rerouted before petitioner saw it and Mr. Charles E. Clark, the University's comptroller, personally took the check to the vice president. One day in the fall of 1976, petitioner's brother promised petitioner that, in partial repayment of a loan petitioner had made to him, he would deposit fifty dollars ($50.00) in her checking account on a specified date before December 8, 1976. Petitioner wrote a check in the amount of twenty dollars ($20.00) on December 8, 1976, and cashed it at the University. She did not learn until later that her brother had failed to deposit the money he had promised to deposit. When the University's bank presented the check to petitioner's bank for payment, petitioner's bank dishonored the check and mailed notice of its action to petitioner. As a routine matter, the University's bank presented petitioner's check for payment a second time. Petitioner's bank again refused to pay it because the funds in petitioner's account were still insufficient. On December 21, 1976, the University received in the mail from the bank the twice dishonored check. A day or two before the check arrived, petitioner had told her supervisor, Ms. Heidema, that it would be coming. The secretary who opened the mail on December 21, 1976, recorded petitioner's returned check on the mail transmittal The teller who received the returned checks from the head cashier recorded petitioner's check on a journal voucher, saying aloud to nobody in particular that a check drawn by petitioner had been returned. When petitioner received the returned checks from the teller, she logged them all in. She wrote letters and filled out collection effort cards for each of them, except for her own check. She put all of the checks, including her own, in the notebook she used for filing returned checks. Ms. Heidema, testified that the dishonor of petitioner's check was the first such incident in five years' time and that she did not feel it was necessary to ask petitioner to redeem the check because she knew that petitioner would do it on her own. On January 3, 1977, Mr. Clark happened to notice petitioner's check among the other returned checks in the notebook. The following day he investigated and discovered that petitioner had not prepared a collection effort card for her own check and that there was no other indication that she had written herself a letter. He then "discussed the check" (R13) with the assistant comptroller, Mr. Norris, and with Mr. Cordell, an employee in the comptroller's office, neither of whom had previously been aware that petitioner's check had been returned. The three of them "agreed that [they] would wait the rest of the week to see if Mrs. Josey would redeem the check on her own. (R13) About this time, Mr. Clark learned of a letter petitioner had sent to Chancellor York in which she expressed "grave concern about the management of the Controller's Office at the University of West Florida," petitioner's exhibit No. 1, reported the resignation of several long time employees of the comptroller's office, asked that a managerial audit of the office be performed, and asked that her letter be treated as confidential. On January 7, 1977, petitioner was summoned to Mr. Norris' office where Mr. Cordell was also present and was asked when she intended to redeem her bad check. She answered that she would do it as soon as possible. Mr. Norris directed her to do it before the end of the day. Within a matter of hours, she brought Mr. Norris a one hundred dollar bill. In the course of her discussions with Mr. Norris and Mr. Cordell, petitioner felt her honesty was called into question and was not as polite as she would have been otherwise. Messrs. Norris and Cordell recommended to Mr. Clark that petitioner be suspended. Mr. Clark was initially reluctant to act on this recommendation for fear it would appear to disinterested observers that he was acting in retaliation for the criticisms petitioner had leveled in her letter to Chancellor York, but he overcame this reluctance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent pay petitioner the money she would have earned if she had been permitted to work on January 10, 11 and 12, 1977. DONE and ENTERED this 20th day of January, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Donna S. Josey Route 5, Box 121 Thomas Town Estates Pace, Florida 32570 Mr. J. J. Menge, Esquire Shell, Fleming, Davis and Menge Post Office Box 1831 Pensacola, Florida 32501 Mrs. Dorothy Roberts Appeals Coordinator Room 530, Carlton Building Tallahassee, Florida 32304
The Issue Whether the Respondent, Sevalp Corporation, committed an unlawful act of discrimination as alleged by the Petitioner.
Findings Of Fact The Petitioner contacted the Respondent regarding the possible rental of an apartment on or about February 5, 2004. At that time, according to the Petitioner, she was approximately 8.5 months pregnant. Whether or not the Petitioner’s pregnancy was obvious is unknown. Petitioner claims her state was self-evident. Mr. Intriago claims he did not notice that she was pregnant. Mr. Intriago is the apartment manager for the buildings owned by the Respondent at 915 Palermo Avenue, Miami, Florida. It is undisputed that Mr. Intriago showed the Petitioner an apartment at the cited address and that Petitioner expressed an interest in leasing the unit. The Petitioner did not, however, fill out an application for the apartment, did not pay a deposit to hold the apartment, and did not have approval from the Respondent to rent the apartment. The Petitioner believes that the Respondent violated Florida law by refusing to rent to a pregnant female. The Respondent did not have an application from the Petitioner to consider. Had the Petitioner filled out an application, however, the Respondent would have rejected the Petitioner as a tenant based upon a history of misadventures with the Petitioner. The Respondent accepts applications from all ethnic and familial groups. The complex Petitioner desired does have family residents. It is not a “singles only” or a “no children” complex. The primary reason the Respondent would not rent to Petitioner (had she filed an application and paid the deposit) is that the Petitioner had broken a lease with the Respondent in the past. Additionally, the Petitioner on yet a second unit had failed to take occupancy when she was supposed to causing the Respondent to lose rental income. In addition to the foregoing, on at least one occasion in their prior business dealings the Petitioner gave the Respondent an insufficient funds check.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner’s claim. S DONE AND ENTERED this 2nd day of December, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Celeste Montalvo 2851 Southwest 38th Avenue Miami, Florida 33134 Arthur Ross Sevalp Corporation 923 Catalonia Avenue Coral Gables, Florida 33143
