The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. 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 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Petitioner Melvin Adams, was employed by Respondent's street department in February of 1991. He later worked with Respondent's solid waste department until his employment termination on January 27, 1992. In the course of his employment with the solid waste department, Petitioner drove Respondent's garbage truck. With some exceptions, Petitioner exhibited a good attitude and was usually a safe driver who got the job done. He had few disagreements with co-workers. Later Petitioner began to experience depression as a result of divorce proceedings and his job performance faltered. Although the specific dates of the incidents are unspecified, Petitioner was involved in an occasional "fender bender" with the garbage truck. On one occasion while stopping at the "Chicken Delight" Restaurant, Petitioner forgot to set the air brakes on the truck. As a result, the truck rolled back and into a deep ditch. The incident occasioned damages totalling approximately $500, including repairs to the truck and a tow charge to remove the truck from the ditch. Petitioner attended a city council meeting and expressed his opinion that he should be paid more. Petitioner's immediate supervisor, Respondent's city manager, disagreed with Petitioner. A main point of contention between the city manager and Petitioner was Petitioner's expressed strong belief that he was entitled to be paid the same amount as his predecessor driver on the garbage truck, $6.50 per hour. Petitioner at one point during his employment expressed the opinion that Ron Reed, the garbage truck back-up driver who is also black, could not handle the job. The city manager listened, but did not replace Reed at that time. On January 27, 1992, Petitioner reported to work at approximately 10 a.m. and informed the city manager that he, Petitioner, did not feel well and could not work. Exasperated with Petitioner's attitude and job attendance, coupled with a strong personal belief that Petitioner was going to quit Respondent's employment soon, the city manager informed Petitioner that he was fired. At the time, Petitioner was paid $6.21 per hour. He had accrued 33 hours of "comp" time and 10 days of sick leave. After terminating Petitioner's employment and finally acknowledging that Reed could not handle the position of garbage truck driver, the City Manager interviewed candidates for the vacancy pursuant to public notice. On February 5, 1992, he hired a white male for the position at the rate of $6.50 per hour. The new employee was the only candidate interviewed who could meet newly implemented federal requirements that the truck driver possess a commercial driver's license. This particular candidate would not accept the job for less compensation than $6.50 per hour. Respondent employs 19 black employees and 31 white employees.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 19th day of October, 1993, 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 19th day of October, 1993. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Respondent's Proposed Findings 1.-3. Accepted in substance, though not verbatim. Rejected, legal conclusion. Petitioner's Proposed Findings 1.-4. Accepted and addressed in major part, although not verbatim. Rejected, weight of the evidence. Rejected, unsupported hearsay. Accepted. Accepted, but not verbatim. Accepted with exception of reference to replacement driver's experience which is rejected as hearsay. Rejected, subordinate to HO findings. 11.-13. Rejected, unnecessary. 14. Adopted by reference. 15.-16. Rejected, credibility. COPIES FURNISHED: Melvin Adams 1417 Happy Street Madison, Florida 32340 Brian T. Hayes, Esquire 245 E. Washington Street Monticello, Florida 32344 Margaret Jones, Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 /Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 /Building F Tallahassee, FL 32399-1925
The Issue The issues are whether Petitioner received notice of the August 19, 2005, administrative hearing, and if not, whether Respondent discriminated against Petitioner based on his race.
Findings Of Fact Petitioner is an African-American male. In the fall of 2004, Petitioner's cousin, Barry Walker, worked for Respondent as a cook. Mr. Walker recommended that Respondent hire Petitioner as a dishwasher. James Pigneri, Respondent's owner, interviewed Petitioner and decided to hire him as a dishwasher on a trial basis. Petitioner began washing dishes for Respondent in September 2004. In October 2004, Petitioner began a 90-day probationary period as Respondent's dishwasher. At that time, PMI Employee Leasing (PMI) became Petitioner's co-employer. PMI has a contractual relationship with Respondent. Through this contract, PMI assumes responsibility for Respondent's human resource issues, payroll needs, employee benefits, and workers’ compensation coverage. On October 10, 2004, Petitioner signed an acknowledgement that he had received a copy of PMI's employee handbook, which included PMI's policies on discrimination, harassment, or other civil rights violations. The handbook states that employees must immediately notify PMI for certain workplace claims, including but not limited to, claims involving release from work, labor relation problems, and discrimination. The handbook requires employees to inform PMI within 48 hours if employment ceases for any reason. PMI's discrimination and harassment policies provide employees with a toll-free telephone number. When an employee makes a complaint or files a grievance, PMI performs an investigation and takes any corrective action that is required. The cook-line in Respondent's kitchen consist of work stations for all sauté and grill cooks. The cook-line runs parallel to a row of glass windows between the kitchen and the dining room and around the corner between the kitchen and the outside deck. Customers in the dining room and on the deck can see all of the cooks preparing food at the work stations along the cook-line. On the evening of December 18, 2004, Respondent's business was crowded with customers in the dining room and on the deck. On December 18, 2004, Petitioner was working in Respondent's kitchen. Sometime during the dinner shift, Petitioner was standing on the cook-line near the windows, talking to a cook named Bob. Petitioner was discussing a scar on his body. During the discussion, Petitioner raised his shirt, exposing his chest, arm, and armpit. The cook named Bob told Petitioner to put his shirt down. Erin Pigneri, a white male, is the son of Respondent's owner, James Pignari. As one of Respondent's certified food managers, Erin Pigneri must be vigilant about compliance with health code regulations when he works as Respondent's shift manager. Erin Pigneri has authority to recommend that employees be fired, but his father, James Pigneri, makes the final employment decision. On December 18, 2004, Erin Pigneri, was working as Respondent's manager and was in charge of the restaurant because his father was not working that night. When Erin Pigneri saw Petitioner with his shirt raised up, he yelled out for Petitioner put his shirt back on and to get off the cook-line. Erin Pigneri was alarmed to see Petitioner with his shirt off on the cook-line because customers could see Petitioner and because Petitioner's action violated the health code. Petitioner's reaction was immediately insubordinate. Petitioner told Erin Pigneri that he could not speak to Petitioner in that tone of voice. Erin Pigneri had to tell Petitioner several times to put his shirt on, explaining that Petitioner was committing a major health-code violation. When Petitioner walked up to Erin Pigneri, the two men began to confront each other using profanity but no racial slurs. Erin Pigneri finally told Petitioner that, "I'm a 35- year-old man and no 19-year-old punk is going to talk to me in that manner and if you don't like it, you can leave." Erin Pigneri did not use a racial slur or tell Petitioner to "paint yourself white." After the confrontation, Erin Pigneri left the kitchen. Petitioner went back to work, completing his shift without further incident. Petitioner did not have further conversation with Erin Pigneri on the evening of December 18, 2004. Erin Pigneri did not discuss Petitioner or the shirt incident with any of the waiters or any other staff members that night. On Monday evening, December 20, 2004, Erin Pigneri was in the restaurant when Petitioner and his cousin, Mr. Walker, came to work. Petitioner was dressed in nicer clothes than he usually wore to work. Mr. Walker approached Erin and James Pigneri, telling them that they needed to have a meeting. Erin and James Pigneri followed Petitioner and Mr. Walker into the kitchen. The conversation began with Mr. Walker complaining that he understood some racist things were going on at the restaurant. Mr. Walker wanted talk about Erin Pigneri's alleged use of the "N" word. Erin Pigneri did not understand Mr. Walker's concern because Mr. Walker had been at work on the cook-line during the December 18, 2004, shirt incident. According to Petitioner's testimony at the hearing, Mr. Walker had talked to a waiter over the weekend. The waiter was Mr. Walker's girlfriend. Petitioner testified that the waiter/girlfriend told Mr. Walker that she heard Erin Pigneri use the "N" word in reference to Petitioner after Erin Pigneri left the kitchen after the shirt incident on December 18, 2004. Petitioner testified that neither he nor Mr. Walker had first- hand knowledge of Erin Pigneri's alleged use the "N" word in the dining room. Neither Mr. Walker nor the waiter provided testimony at the hearing. Accordingly, this hearsay evidence is not competent evidence that Erin Pigneri used a racial slur in the dining room after the "shirt incident." During the meeting on December 20, 2004, Erin Pigneri explained to Petitioner and Mr. Walker that the incident on December 18, 2004, involved Petitioner's insubordination and not racism. Mr. Walker wanted to know why Erin Pigneri had not fired Petitioner on Saturday night if he had been insubordinate. Erin Pigneri told Mr. Walker that he would have fired Petitioner but he did not want Respondent to lose Mr. Walker as an employee. Apparently, it is relatively easy to replace a dishwasher but not easy to replace a cook like Mr. Walker. Erin Pigneri asked Mr. Walker and another African- American who worked in the kitchen whether they had ever heard him make derogatory racial slurs. There is no persuasive evidence that Erin Pigneri ever made such comments even though Petitioner occasionally, and in a joking manner, called Erin Pigneri slang names like Cracker, Dago, and Guinea. Petitioner was present when Mr. Walker and Erin Pigneri discussed the alleged racial slurs. Petitioner's only contribution to the conversation was to repeatedly ask whether he was fired. Erin Pigneri never told Petitioner he was fired. After hearing Mr. Walker's concern and Erin Pigneri's explanation, James Pigneri specifically told Petitioner that he was not fired. James Pigneri told Petitioner that he needed to talk to Erin Pigneri and that they needed to work things out, man-to-man. After the meeting, Mr. Walker began his work for the evening shift on December 20, 2004. Petitioner walked around talking on his cell phone, telling his mother that he had been fired and she needed to pick him up. James Pigneri told Petitioner again that he was not fired, that Petitioner should go talk to Erin Pigneri, and that Erin Pigneri was waiting to talk to Petitioner. Erin Pigneri waited in his office for Petitioner to come in to see him. Petitioner never took advantage of that opportunity. During the hearing, Petitioner testified that James Pigneri made an alleged racial slur in reference to Petitioner at some unidentified point in time. According to Petitioner, he learned about the alleged racial slur second-hand from a cook named Bob. Bob did not testify at the hearing; therefore, there is no competent evidence that James Pigneri ever made a racial slur in reference to Petitioner or any other employee. Contrary to PMI's reporting procedures, Petitioner never called or informed PMI that he had been harassed, discriminated against, fired, terminated, or ceased working for Respondent for any reason. On December 22, 2004, PMI correctly concluded that Petitioner had voluntarily terminated or abandoned his employment. When Petitioner filed his Employment Complaint of Discrimination on January 11, 2005, Petitioner listed his address as 6526 Lance Street, Panama City, Florida, which is his mother's residence. On April 18, 2005, FCHR sent the Determination: No Cause to Petitioner at 6501 Pridgen Street, Panama City, Florida, which is the address of one of Petitioner's friends. When Petitioner filed his Petition for Relief on May 25, 2005, Petitioner listed his address the same as his mother's home. FCHR transmitted the petition to the Division of Administrative Hearings, indicating that Petitioner's address of record was the same as his friend's home. Therefore, the June 9, 2005, Notice of Hearing, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing were sent to Petitioner at his friend's address. During the hearing, Petitioner admitted that between January 2005 and August 2005, he lived back and forth between his mother's and his friend's residences. When he lived with his friend, Petitioner did not check his mail at his mother's home every day. However, Petitioner admitted that he received the June 9, 2005, Notice of Hearing, scheduling the hearing for July 18, 2005, and the July 12, 2005, Order Granting Continuance and Re-scheduling Hearing for August 19, 2005. Petitioner testified that he knew the first hearing was rescheduled to take place on August 19, 2005. According to Petitioner, he misplaced the "papers" identifying the location of the hearing at the Office of the Judges of Compensation Claims in Panama City, Florida. Petitioner asserts that he went to the county courthouse on August 19, 2005, based on his erroneous belief that the hearing was to take place at that location. After determining that there was no administrative hearing scheduled at the county courthouse on August 19, 2005, Petitioner did not attempt to call FCHR or the Division of Administrative Hearings. On December 1, 2005, the undersigned sent Petitioner a Notice of Hearing, scheduling the hearing after remand for January 25, 2005. The December 1, 2005, Notice of Hearing was sent to Petitioner at his mother's and his friend's addresses. The copy of the notice sent to his friend's home was returned as undeliverable. During the hearing on January 25, 2005, Petitioner testified that he used one of the earlier notices (dated June 9, 2005, and/or July 12, 2005) to locate the hearing site for that day. This was necessary because Petitioner had misplaced the December 1, 2005, Notice of Hearing. All three notices have listed the hearing site as the Office of the Judges of Compensation Claims, 2401 State Avenue, Panama City, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 23rd day of March, 2006. 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 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. Post Office Box 550770 Jacksonville, Florida 32255-0770 Marlow Williams 6526 Lance Street Panama City, Florida 32404
Findings Of Fact The Petitioner was employed with the Respondent from August 3, 1985 until May 10, 1986, as a waitress in the dining room of the Kings Inn Restaurant in Pensacola, Florida. In March, 1987, the Petitioner became pregnant. She then informed her employer, Mr. Judge of her pregnancy. He told her initially that she could work as long as the doctor allowed her to. Shortly thereafter, he told her that she could not work after five months of pregnancy. On another occasion, his assistant manager, Mr. Dungan, told her that she could not work after she "started showing." Once the Respondent, Mr. Judge, learned of the Petitioner's pregnancy, he began a regime of harassing treatment. For instance, Mr. Judge made her do the "side work," filling up all the salt and pepper shakers and sugar bowls for all of the waitresses and waitress stations. It had always been uniform policy that each waitress had the responsibility to do her own side work for her own station and tables. Mr. Judge also began yelling and cursing at her in front of her workers and customers, causing her great humiliation and embarrassment. He criticized her publicly about her posture and the way she serviced customers, although she had always had an excellent record as a competent waitress and had no complaints from customers or former employers, before announcing that she was pregnant. Mr. Judge also began a practice of constantly questioning other employees about the Petitioner's job performance, although he apparently learned of no substandard performance in both her duties and her attitude toward her customers. He also took her to task about her "charge tips" being less than other employees, apparently the measure he used to determine if a waitress was serving her customers appropriately and adequately. This situation, however, was caused by his discriminatory conduct toward her in giving her fewer tables to serve and thus, reducing her tip income. Mr. Judge additionally assigned her to clean up a portion of the kitchen area, particularly the "bread shelves" when normal policy had been for kitchen personnel to perform all kitchen clean-up duties, with any clean up of the bread shelf area being rotated amongst the dining room personnel. The Petitioner, however, was singled out for this duty exclusively after it became known that she was pregnant. The Petitioner was also required to stay late and perform certain closing duties at the end of business late at night, much more often than other waitresses. In addition to performing restaurant closing duties, she was frequently required to wait on cocktail tables as late as 2:00 in the morning on many of the "late duty" occasions, even though she was hired as, and until she became pregnant worked exclusively as, food waitress. Petitioner's testimony and Petitioner's exhibit 2, in evidence, establishes that, although Petitioner was only scheduled to stay late three times in March, three times in April and once in May that, in fact, she worked late, that is, after all other employees or waitresses had been released for the evening seven out of nine days that she worked in March; nine out of twelve days she worked in April; and six out of the seven days she worked in May. Indeed, on May 10, 1986, the last day she worked for the Respondent, Mr. Judge required her to stay late and to "bus" all the tables, that is clean all the tables, in the dining room, allowing the waitress who was scheduled to stay late that night to leave early. The Petitioner became quite upset at this turn of events and resigned her position, due to the repeated pattern of harassment as described herein. Although Mr. Judge initially told the Petitioner that she could work as long as the doctor allowed her to during her pregnancy, in fact, on April 11, 1986, Mr. Judge hired the Petitioner's replacement. He hired Pamela Modes and had the Petitioner train her in her waitress duties. He stated to Ms. Modes privately when hiring her "that he needed a food waitress" because "he's got a girl that's pregnant." Additionally, he told the Petitioner that he objected to her working because of her pregnancy and claimed his insurance would not allow him to employ her after she was five months pregnant. These statements, coupled with the statement by his assistant manager, Mr. Dungan, to the effect that she would not be employed there "once she started showing" reveal an intent by the employer to terminate the employee, the Petitioner, because of her pregnancy. Instead of terminating her outright, the Respondent chose to put sufficient pressure on the Petitioner through extra, unscheduled work duties and the other above-mentioned forms of harassment, so as to coerce her into leaving the Respondent's employ. The Petitioner thus made a prima facia showing that she was forced to terminate employment due to her sex and her pregnancy, and no countervailing evidence was adduced by the Respondent.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record and the candor and the demeanor of the witnesses, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida Human Relations Commission finding that an unlawful employment practice has occurred through the Respondent's discrimination against the Petitioner because of her sex (pregnancy) and that she be accorded all relief allowed under the above- cited section, including backpay and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ORDERED this 21st of March, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 21st day of March, 1989. COPIES FURNISHED: Debra A. Larson, Pro Se 9742 Aileron Avenue, Apt. 606 Pensacola, Florida 32506 Dracut Corporation d/b/a Kings Inn Restaurant Lawrence F. Judge, Jr. Owner/General Manager 1309 Maldonado Pensacola Beach, Florida 32561-2323 Donald A. Griffin Executive Director Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent is guilty of employment discrimination against Petitioner.
Findings Of Fact Petitioner was born in Spain and is of Hispanic origin. At all material times, he has been employed by Respondent. Since 1992, he has been employed as a truck driver. At the time of the incident described below, Respondent was a Waste Truck Driver. His job was to drive a 66,000-pound truck in Miami to collect garbage from the utility customers. On February 28, 2006, Petitioner was operating his truck along Northwest 54th Street. This is a major east-west arterial through central Dade County. At the location of the incident, this busy road contains five lanes of traffic. Leaving a strip mall, from which he had just collected garbage, Petitioner drove the truck across this arterial, crossing double-yellow lines in the middle, in order to save time in driving to the next pick-up location. Petitioner was not at an intersection and knew that the double-yellow lines meant that his maneuver was illegal. Petitioner "explains" that he chose to do this maneuver at the urging of the Waste Collectors riding on the back of the truck and with the knowledge that other truck drivers had done it too. Unable to clear all of the lanes at one time, Petitioner was forced to stop the truck around the middle of the highway at an angle closer to perpendicular than parallel to the direction of the traffic flowing around him. A collision resulted when a passenger car tried to pass the garbage truck on the left at the same time that Petitioner moved his truck forward to try to complete his maneuver. After an investigation, Petitioner's supervisor, who is black, decided to demote him to Waste Collector, which resulted in a small decrease in pay, but presumably less-preferred tasks involving more direct contact with solid waste. The supervisor weighed Petitioner's substantial experience with Respondent as a driver against the facts that he could have prevented this accident, even though he did not receive a citation, and that he has had five other preventable accidents while driving Respondent's vehicles. Respondent had previously required Petitioner to take good-driving courses on three occasions due to avoidable accidents. He had also been given progressive discipline for his driving mishaps, culminating in an eight-day suspension for his last accident, which was in December 2004. Petitioner claimed to his supervisor that he had done nothing wrong, that he had not violated any rules, and that everyone drives like he did. The supervisor was unfavorably impressed by his failure to accept responsibility for the accident and his nonchalant attitude. The supervisor legitimately concluded that this attitude combined with Petitioner's driving history unreasonably raised the risk of additional accidents caused by Petitioner. Petitioner's attempt to show disparate treatment was unpersuasive. Either similar discipline was imposed for a similar number of similar offenses, supervising personnel were different, or the similarity of past offenses could not be determined. Petitioner's supervisor testified that she did not demote him because he is Hispanic, and this testimony is credited.
Recommendation Based on the foregoing, It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2009. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Eric A. Rodriguez, Esquire Office of Dade County Attorney 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1930 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue presented is whether Respondent Patrick E. Buday is guilty of the allegations contained in the Notice of Specific Charges filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent was employed by Petitioner as a Material Handler II assigned to one of Petitioner's warehouses. Under the collective bargaining agreement covering Respondent's employment, unauthorized absences totaling ten or more workdays during the previous twelve-month period constitute evidence of excessive absenteeism. Excessive absenteeism, in turn, constitutes grounds for termination of employment. On April 29, 1997, Respondent's supervisor held a conference-for-the-record with Respondent to address Respondent's excessive absences. At the time of the conference, Respondent had accumulated eight and one-half days of unauthorized absences during the preceding twelve-month period. The conference resulted in a written warning that further disciplinary action, including termination of employment, could occur if Respondent's unauthorized absences totaled ten or more in the previous twelve-month period. In May 1997, after accumulating seven unauthorized absences in the previous twelve-month period, Respondent was again warned in writing that he could be terminated if he accumulated ten or more unauthorized absences. During a two-week pay period in June 1997, Respondent was tardy four of the ten workdays. Respondent received a written warning. In July 1997, Respondent was again warned regarding his excessive absenteeism after he had accumulated eight unauthorized absences in the prior twelve-month period. In October 1998, Respondent accumulated ten and one- half days of unauthorized absences, a number sufficient to warrant his dismissal. Rather than terminating his employment, however, Respondent's supervisor again warned Respondent in writing about his excessive absenteeism. Despite this written warning, Respondent, just six months later, accumulated ten days of unauthorized absences as of April 1999. Respondent was warned that he could be fired for such excessive absences. In an effort to assist Respondent in correcting his deficiencies, Respondent's supervisor referred Respondent to the School Board's Employee Assistance Program. Respondent, however, declined to participate. Nevertheless, Respondent continued to accumulate unauthorized absences. In November 1999, Respondent was warned that he had accumulated nine and one-half days of unauthorized absences. In March 2000, after accumulating ten unauthorized absences during the previous twelve-month period, Respondent was again warned that he could be fired for excessive absences. During the conference-for-the-record to address his unauthorized absences, Respondent gave no explanation as to why he was repeatedly absent without authorization. After the conference, Respondent was referred a second time to the Employee Assistance Program due to his excessive absenteeism. Respondent, however, failed to appear for his scheduled appointment. By June 2000, Respondent had again accumulated ten unauthorized absences during the prior twelve-month period and was warned that he could be terminated from employment on that basis. Thus, in the twenty-month period between October 1998 and June 2000, Respondent accumulated ten or more unauthorized absences during the prior twelve-month period on four separate occasions. On August 31, 2000, Respondent lost his driver's license as a result of driving while intoxicated. Even though he knew he needed a driver's license for his job, Respondent did not tell his supervisor that he no longer had a driver's license. Respondent's supervisor only learned that Respondent had lost his driver's license after a routine records check was performed by the School Board's Office of Professional Standards. Under School Board Rule 6Gx13-4A-1.21, Respondent was under an affirmative duty to report to his site supervisor that he no longer had a driver's license. On February 5, 2001, a Judgment was entered finding Respondent guilty of driving under the influence and revoking Respondent's driver's license for ten years. Respondent signed a copy of the Judgment indicating that he had received a copy and that he understood its contents. That Judgment has not been overturned, amended, or corrected. On March 5, 2001, a conference-for-the-record was held with Respondent by the Office of Professional Standards to address the information regarding Respondent's driver's license which Petitioner had obtained through its routine employee records check. Following the conference, Respondent's supervisors recommended his dismissal from employment for failure to maintain minimum job qualifications. On May 16, the School Board suspended Respondent from his employment and initiated this dismissal proceeding. The minimum qualifications for a School Board employee holding the position of Material Handler II, such as Respondent, include possession of a valid Class D driver's license. The license is required because materials and equipment must be delivered all over the county. Material handlers are routinely assigned to assist the regular drivers with deliveries and are sometimes assigned to different warehouses than those to which they are regularly assigned. Material handlers are called upon to assist with driving duties on the average of three to four times a week, and sometimes daily. The inability of material handlers to drive can impact the School Board's ability to move around employees and materials as needed to fulfill its mission. Respondent knew he was required to have and maintain a valid driver's license to be employed as a material handler. Under the collective bargaining agreement, an employee may be terminated from employment for failing to maintain minimum job qualifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Counts I and II of the Notice of Specific Charges, finding Respondent guilty of the allegations in Count III of the Notice of Specific Charges, ratifying his suspension without pay, and terminating his employment by the Miami-Dade County School Board. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 16th day of November, 2001. COPIES FURNISHED: Roger C. Cuevas, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 James A. Robinson, General Counsel Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400 Timothy A. Pease, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Courtney B. Wilson, Esquire Shook, Hardy & Bacon, L.L.P. Miami Center, Suite 2400 201 South Biscayne Boulevard Miami, Florida 33131
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment practice against Petitioner based on his sex and race in violation of Section 760.10(1), Florida Statutes (2003); and (b) whether Respondent committed an unlawful employment act by retaliating against Petitioner in violation of Section 760.11(7), Florida Statutes (2003).
Findings Of Fact Petitioner is a black male. He began working as a truck driver for Respondent on May 29, 2002. Mike Helms, Petitioner's supervisor, was responsible for hiring Respondent's truck drivers. During the year and a half that Mr. Helms worked for Respondent, 80 to 90 percent of the truck drivers hired were black. During the hearing, Petitioner testified that he repeatedly requested Respondent's mechanics to repair the leak in his truck cab beginning in August 2002. Petitioner stated that Respondent's mechanics did not repair the truck cab until sometime after August 2003 when he was not working and a white female truck driver was driving his truck. Petitioner's allegations of disparate treatment involving the repair of the truck have not been considered here because the record does not reflect that they were raised in Petitioner's original or amended complaint or during FCHR's subsequent investigation. Because the allegations were not raised in either of Petitioner's complaints, FCHR never considered them, which would have allowed consideration in the contested hearing. Petitioner also testified that Respondent did not enforce the no-smoking policy in the driver's lounge until Mr. Helms became ill with a heart condition. The allegations that Mr. Helms dismissed Petitioner's complaints without explanation prior to that time were not included in Petitioner's original or amended complaint. There is no record evidence that Petitioner ever raised an issue involving the no-smoking policy during FCHR's investigation or that FCHR ever considered Respondent's alleged failure to enforce the no-smoking policy, which would have allowed consideration in the contested hearing. Respondent provided its truck drivers with radio/ telephones so that they could communicate with each other and with the office. Each driver had an assigned radio/telephone that he or she used every day. Each night the drivers would leave their telephones in an unsecured area of the truck office that was accessible to all employees. Typically, each telephone was programmed to identify incoming calls by the number of the unit making the call. In other words, the unit number of the person initiating the call would appear on the recipient's screen. However, the recipient's telephone could be programmed to show the name of the incoming caller instead of his or her unit number. On February 17, 2003, Petitioner was using the telephone usually assigned to him. During the day, he noticed that the word "nigger" was programmed into his internal telephone directory. Petitioner made this discovery when he scrolled through his internal telephone directory to place a call to another unit. Petitioner realized that someone had programmed his telephone to show the racial slur when unit 12 called him. Unit 12 was an extra phone, used by the drivers when their phones were not working properly. Therefore, the person who programmed the racial slur into Petitioner's assigned telephone did not know necessarily which driver would be using unit 12 on February 17, 2003. It follows that the driver who used unit 12 on February 17, 2003, might not have known that the derogatory name would appear on Petitioner's screen when unit 12 contacted Petitioner. Petitioner first checked with a couple of drivers who verified that their internal telephone directories were not programmed to identify unit 12 as "nigger." Petitioner concluded that he was the only target of the epithet. Petitioner then called unit 12/"nigger" and discovered that Ed Wight was using the spare telephone that day. Petitioner believed that only a few drivers knew how to program names into an internal telephone directory. He assumed that Mr. Wight was responsible for tampering with his telephone. Petitioner waited to confront Mr. Wight at Respondent's pit. Petitioner put the radio in Mr. Wight's face and asked him if he had programmed the name in the telephone. Petitioner told Mr. Wight that he did not "play that way" and did not appreciate it.1/ Next, Petitioner drove his truck into Respondent's parking lot at a high rate of speed. Mr. Helms, who was standing outside, feared the truck would not stop before it struck him. After Petitioner's truck slid to a stop, he emerged yelling and screaming. Petitioner then threw his telephone at Mr. Helms. Mr. Helms did not understand why Petitioner was so upset until Petitioner showed Mr. Helms the racial slur in Petitioner's internal telephone directory. Petitioner then got into his truck and sped away. Mr. Helms later learned that Petitioner had confronted Mr. Wight at the pit, accusing him of programming the racial slur into Petitioner's telephone. In the meantime, Mr. Helms instructed Petitioner to go home and not to return to work until Mr. Helms called him. When Petitioner returned to work, he met with Mr. Helms and Mr. Wight. During the meeting, Petitioner apologized to Mr. Wight for confronting him. Mr. Helms advised Petitioner that he was suspended for two days for his conduct toward Mr. Wight and for driving into the parking lot in an unsafe manner. There was no evidence that Mr. Wight was responsible for the racial slur. Therefore, Mr. Wight was not disciplined. During the hearing, Petitioner admitted that he does not know who programmed the racial slur into his telephone. He acknowledged that no one at work ever called him by that name again. Petitioner testified that he has never heard Mr. Helms or anyone else in a position of authority at Respondent's place of business make a racially derogatory comment in his presence. Respondent took appropriate steps to ensure that future racial slurs could not be programmed anonymously into the telephones. Specifically, Mr. Helms padlocked the doors that led to the room where the telephones were stored when they were not in use. This was inconvenient for Mr. Helms because he had to be at the office every time a driver picked up or returned a telephone. Nevertheless, Mr. Helms knew it was important to secure the telephones to prevent any recurrence of the problem experienced by Petitioner. Mr. Helms did not believe that a driver would admit to being responsible for the racial slur. Therefore, he did not interview all of the drivers. Instead, Mr. Helms spoke to a couple of drivers, asking them to come forward with any information that might reveal the identity of the guilty person. Mr. Helms hoped the drivers he talked to would cooperate by sharing information circulating among the employees. For these reasons, Mr. Helms considered his investigation to be ongoing. However, neither Mr. Helms nor any other member of Respondent's management team ever found out who was responsible for the racial slur. Respondent did not conduct any special meeting to educate the drivers about Respondent's intolerance of racial discrimination. Respondent's employee handbook clearly prohibits any type of racial discrimination, including but not limited to, "racial and ethnic slurs, jokes or other derogatory remarks about or directed toward minority groups." Respondent required all employees to acknowledge that they have received and read the employee handbook. Petitioner signed the employee acknowledgement on January 10, 2003. The handbook states that failure to comply with safety rules is an offense that may subject an employee to discipline. The handbook also states that an employee may be discharged for threatening another employee or showing disrespect for a supervisor. On May 1, 2003, approximately two and a half months after the telephone incident, Respondent promoted Petitioner to the position of crew chief. Mr. Helms made the decision to promote Petitioner. As crew chief, Petitioner was responsible for leading a group of drivers and was eligible for a monthly bonus in the amount of $250.00 if no accidents or traffic violations occurred during the month. Petitioner resigned his position as crew chief in August 2003. He made the decision to step down as crew chief because he did not believe the compensation was sufficient. During the hearing, Petitioner testified that he believed Mr. Helms treated four specifically-named male drivers more favorably than Petitioner. Petitioner testified that three of these drivers were black males and one was a white male. Petitioner did not include allegations of Mr. Helm's alleged favorable treatment of the four male drivers in his original or amended complaint. There is no record evidence that FCHR investigated or considered these allegations, which would have allowed consideration in the contested hearing. On October 1, 2003, Petitioner hauled a load of dirt to Respondent's dump. The person responsible for telling drivers where to dump and for pulling them out when they got stuck in the mud was David Cochran, a white male. On this occasion, Petitioner followed Mr. Cochran's instructions and got stuck. Because Mr. Cochran ignored Petitioner's request for assistance in getting his truck out of the mud, Petitioner called Mr. Helms to report that Mr. Cochran was not providing assistance. After waiting for 40 to 45 minutes, Petitioner's crew chief, Tommy Bennett (a black male), and another driver, Leonard Glover (a white male) came by to speak to Petitioner. Petitioner explained that he was waiting for Mr. Cochran to pull his truck out of the mud. Mr. Glover then hooked his truck to Petitioner's truck and freed Petitioner's truck from the mud. Approximately one half hour later, Petitioner returned to the dump. He saw a white female truck driver stuck in the same location. Mr. Cochran immediately pulled her truck from the mud. At this point, Petitioner decided that Respondent was discriminating against him. First, he called a television station. Next, he called FCHR regarding the process of filing a complaint. He then called Vicki Goodman, Respondent's director of human resources, requesting documentation regarding the February 17, 2003, telephone incident. Petitioner did not tell Ms. Goodman about the incident with Mr. Cochran. When Ms. Goodman inquired why Petitioner wanted the documents, he responded that he was dissatisfied with Ms. Goodman's and Mr. Helms' response to the telephone incident. Ms. Goodman advised Respondent that there was no information about the telephone incident other than as discussed with Petitioner eight months before. She also told him he was not entitled to a copy of the report of that incident. Ms. Goodman then inquired whether Petitioner was concerned about something else that was occurring in the workplace. Petitioner responded by saying, "I really don't want to talk about it right now. You'll find out soon enough." During the hearing, Petitioner testified that he told Ms. Goodman, "[s]omeone from FCHR would be contacting her soon." In papers submitted to FCHR, Petitioner claimed he responded to Ms. Goodman's inquiry by stating that "[s]omeone would be contacting her in the near future in reference to the information that [he] was requesting.” Petitioner's testimony that he informed Respondent on October 1, 2003, that he was filing a complaint with FCHR is not persuasive. On October 5, 2003, Petitioner signed a written Charge of Discrimination. He filed the charge with FCHR on October 7, 2003. In the meantime, Mr. Helms received a complaint from a female truck driver, Tina Pincumbe, on October 6, 2003. The complaint involved allegations of sexual harassment by Petitioner toward Ms. Pincumbe and other female truck drivers.2/ Upon hearing Ms. Pincumbe's complaint, Mr. Helms referred her to Ms. Goodman. He made the referral because he felt Ms. Pincumbe would be more comfortable talking with another female. Ms. Pincumbe went to Ms. Goodman's office and made a statement that was reduced to writing. During the interview, Ms. Goodman told Ms. Pincumbe that it was important for other women who were uncomfortable with the way Petitioner was treating them to come forward. Later on October 6, 2003, Janice Simpson voluntarily visited Ms. Goodman's office. Ms. Simpson also signed a written statement, accusing Petitioner of sexual harassment. On October 7, 2003, Sheila Nichols, a female truck driver, was working light duty in the office. Ms. Goodman approached Ms. Nichols as part of her investigation. Ms. Nichols subsequently signed a written statement containing allegations of unwanted advances by Petitioner. On October 7, 2003, Cathie Corrie, a female truck driver, approached Mr. Helms with allegations about Petitioner's unwanted advances. Mr. Helms referred Ms. Corrie to Ms. Goodman. On October 8, 2003, Ms. Corrie signed a statement alleging sexual harassment by Petitioner. On October 8, 2003, Ms. Goodman interviewed Mr. Helms and several male truck drivers. On October 9, 2003, Ms. Goodman interviewed Petitioner, who denied all allegations of sexual harassment in a written statement. Respondent placed Petitioner on administrative leave pending completion of the sexual harassment investigation. Based on her investigation, Ms. Goodman concluded that the allegations of sexual harassment by the four females had merit. She completed a written report and recommended that Behzad (Steve) Ghazvini, Respondent's owner, discipline Petitioner. Mr. Ghazvini and Mr. Helms met with Petitioner either October 10, 2003, or October 13, 2003.3/ During the meeting, Mr. Ghazvini informed Petitioner that he was discharged from employment for violating Respondent's policy prohibiting sexual harassment. Mr. Ghazvini terminated Petitioner's employment based on the similarity of the sexual harassment complaints by the female truck drivers, Ms. Goodman's judgment that the women were telling the truth, and out of concern that Respondent would be morally and legally responsible if Petitioner harmed the female employees. When Mr. Ghazvini made the decision to fire Petitioner, neither he nor anyone on Respondent's management team were aware that Petitioner had contacted FCHR to file a discrimination complaint. Respondent received notice about the discrimination complaint for the first time on October 15, 2003. The next two truck drivers that Respondent hired after terminating Petitioner were Troy Rowells, who was hired on October 21, 2003, and Darrell Butler, who was hired on October 22, 2003. Both men are black.
Recommendation Based on the forgoing Findings of Facts and Conclusions of law, it is ORDERED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 25th day of August, 2004. END NOTES 1/ Mr. Wight did not testify at the hearing. Testimony that Mr. Wight denied programming the racial slur into Petitioner's telephone is inadmissible hearsay. 2/ Neither Ms. Pincumbe nor any of the other female truck drivers testified at the hearing. Any reference here to their allegations of sexual harassment is inadmissible hearsay except to show Respondent's reaction to the complaints. 3/ The record is not clear whether Respondent met with Petitioner to terminate his employment on Friday, October 10, 2003, or Monday, October 13, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Vicki Goodman Sandco, Inc. 2811 Industrial Plaza Drive Tallahassee, Florida 32310 Craig J. Brown, Esquire Brown & Associates, L.L.C. 223 East Virginia Street Tallahassee, Florida 32301 Brian S. Duffy, Esquire McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Gary R. Wheeler, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. Post Office Box 550770 6816 Southpoint Parkway No. 500 (32216) Jacksonville, Florida 32255-0770
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent, P.A.T. Auto Transport, Inc., committed the violations alleged in the relevant Stop-Work Order and the Fourth Amended Order of Penalty Assessment, and, if so, what, if any, penalty is warranted.
Findings Of Fact The Petitioner is an agency of the State of Florida, charged with the responsibility of enforcing the Workers' Compensation coverage requirements embodied in Section 440.107, Florida Statutes (2008), whereby Florida employers must secure the payment of workers' compensation insurance coverage and benefits for their employees. See § 440.107(3), Fla. Stat. The Respondent, P.A.T., is a corporation conducting a trucking business, headquartered in Pensacola, Florida. The Respondent's services include transporting motor vehicles using a fleet of some 61 highway tractors and associated auto transport trailers. Michelle Newcomer is an investigator employed by the Petitioner. Her duties include conducting inspections and investigations of businesses who may be workers' compensation employers, to determine if they are required to have workers' compensation coverage under Florida law, and the extent and compliance of that coverage. Ms. Newcomer conducted an inspection of the Respondent at 6732 Rambler Drive in Pensacola, Florida, on March 18, 2009. She determined that two companies, or businesses, operated at that address, the Respondent and MNT Enterprises (MNT). MNT had a workers' compensation policy covering its employees and was statutorily compliant. Ms. Newcomer also investigated the Respondent and learned that the principal stockholder, George Hedges, was exempt from coverage. She inquired about the status of the truck drivers working for the company and was told by Tracie Hedges that they were independent contractors. She was unable to witness any violations occurring at that time and concluded the investigation. Later, in April 2009, she received information that led her to believe that the Respondent's truck drivers were employees and not independent contractors. She had an opportunity to see a pay stub for a truck driver who had worked for the company who had been injured and had a workers' compensation issue. She noticed that the pay stub reflected that Federal Income Tax withholding had been deducted, along with various other deductions, such as Social Security and Medicare. She felt this might be indicative of an employee relationship, rather than the drivers being independent contractors. She returned to the Respondent's address later that month and issued a written Request for Production of Business Records to the Respondent and to an associated company called TK131. She issued a Stop-Work Order for the Respondent due to its purported failure to comply with workers' compensation coverage requirements for employees. The Respondent did provide the required business records. She reviewed the records provided to her and was able to ascertain that the Respondent employed more than four employees. Additionally, she learned that, although the Respondent, through a leasing arrangement for its office employees, had workers' compensation coverage for them, the 59 drivers and corporate officers did not appear to be covered by workers' compensation insurance. Thereafter, the Stop-Work Order was amended to include the purported failure to secure payment of workers' compensation coverage as required by Chapter 440, Florida Statutes. That resulted in a Stop-Work Order and Penalty Assessment. The Department also issued a Stop-Work Order and Penalty Assessment to DTS, LLC, which included the predecessor company, Darts Transport. The Stop-Work Order and Penalty Assessment issued to DTS was later revoked, however. The Department takes the position that the Respondent, P.A.T., paid its drivers through the entity known as "DTS", or directly with P.A.T. checks during the audit period, and that the number of drivers paid for their services was more than four employees and closer to 59 drivers for the 61 tractor-trailers owned by the Respondent. The Department does concede that a small number of the drivers were clearly owner-operators and no longer contends that they were employees. The Department thus contends that at no time pertinent hereto did the Respondent have a workers' compensation policy or an employee leasing arrangement in place by which workers' compensation coverage was provided for the drivers. The original Order of Penalty Assessment covered the period April 22, 2006, through April 22, 2009. The 4th Amended Order of Penalty Assessments for those dates, which is at issue in this case, also included a $108,000 fine for the Respondent's working in violation of a Stop-Work Order. The total fine assessed and sought by the Petitioner is $1,564,707.91. The Department maintains that the drivers working for the company are employees and therefore should have been covered with workers' compensation insurance, but the Respondent disputes that claim, asserting that the drivers are independent contractors and therefore do not need to be covered by workers' compensation insurance. The Petitioner maintains that office workers employed by the Respondent were required to be covered by workers' compensation insurance as well. The Respondent maintains that these were covered through coverage obtained from an employee leasing company, through an employee leasing program. The Department also maintains that three employees, as corporate officers, were not properly qualified to be exempt. The Respondent maintains that the required Exemption Request forms were properly delivered to the Department and therefore it complied with the law in obtaining exemptions from workers' compensation coverage. Finally, the Department maintains that certain named individuals were employees of the Respondent and should have been covered by workers' compensation coverage or insurance, but the Respondent maintains that these employees, who essentially performed incidental, non-recurring tasks for the Respondent, were not employees and did not have to be covered by such insurance. Moreover, the Respondent claims that it has a contingent liability insurance policy in place which served as a policy of workers' compensation insurance and for this reason it is compliant also. The parties agree that Florida Administrative Code Rule 69L-6.035 defines "payroll" as the basis for calculating a penalty. Payroll can include any of ten variations of payments from or through an employer to or on behalf of an employee. These include the payment of traditional wages and also bonuses, un-repaid loans to employees, expense reimbursements that are not documented on the employer's business records, payments binding an employer to a third party on behalf of an employee for services rendered by the employee, among others. Investigator Newcomer relied on Florida Administrative Code Rule 69L-6.035(1)(a) to define payroll for the office workers and truck drivers paid directly from the Respondent's account. The drivers were paid from the P.A.T. account from July 16, 2008, through April 22, 2009. Investigator Newcomer opined that the drivers' payroll prior to July 16, 2008, could not be included on the Penalty Worksheet based upon Rule 69L- 6.035(1)(a), but rather was based on Rule 69L-6.035(1)(i). Ms. Newcomer did not rely on Rule 69L.6.035(1)(b),(d),(e),(f),(h), or (j) to define P.A.T.'s payroll. The Department included payments to various child support enforcement agencies, made on behalf of drivers, on the Penalty Worksheet, by authority of Florida Administrative Code Rule 69L-6.035(1)(c), defined as payments made to a third party on behalf of the employer for services rendered to the employer by the employee. The Department also included as payroll on the Penalty Worksheet loans made to drivers, maintaining that these have not been repaid and should be deemed as part of payroll under Rule 69L-6.035(1)(g). There is no proof that this is the case, however, because neither Ms. Newcomer nor Ms. Hedges offered any evidence to establish that there is proof that some or all of the loans remained unpaid. The Petitioner, through the testimony of Investigator Newcomer, takes the position that payments made by P.A.T. to Darts Transports or DTS,LLC are properly included on the Penalty Worksheet by authority of Florida Administrative Code Rule 69L.- 6.035(1)(i). Those payments were made prior to July 16, 2008, before P.A.T. began making payments directly to drivers. The Rule provision in question, concerns payments made to an alleged non-compliant employer who has contracted with the customer, if the contract includes payment for labor and materials. If it is impossible to segregate the cost of materials from the employee payroll in such a contract, then under this Rule provision, 80 percent of the total contract price shall be presumed to be the employer's payroll, with regard to that customer and contract. The unrefuted evidence, however, establishes that the drivers in this situation were paid a flat 25 percent commission of the hauling fee charged by P.A.T., after deduction of the cost of fuel for the trucks. P.A.T.'s customers paid the fuel surcharge to P.A.T. There is no evidence that P.A.T. provided customers with any materials. Its business operation involves solely and simply the transportation of customer-owned vehicles. The Department also maintains that corporate officers Bradley Hedges and Gregory A. Hedges, as well as Teri Kimberly Forret, corporate officers of P.A.T., are non-exempt employees. It contends that under Rule 69L-6.035(2) their compensation constitutes "payroll," under the default formula in that Rule provision, for defining payroll to a corporate officer, if the ten factors under sub-section(1) of that Rule do not address the means of compensation received by those corporate officers. The quintessential question in this case, however, concerns whether the drivers are independent contractors or employees. If they are independent contractors, then there is no obligation on the part of the Respondent to ensure payment of workers' compensation benefits for them. This would mean that the Respondent cannot be adjudicated non-compliant by the Petitioner Department and payments to the drivers would not constitute payroll and would be stricken from the Penalty Worksheet calculation. Independent contractor status is defined in Section 440.02(15)(d)1.a.(I)-(VI) and b.(I)-(VII), Florida Statutes (2008). Under the former statutory provision, four of the six criteria must be met for independent contractor status to be established. Under the latter provision, any of the seven conditions named in that provision may be satisfied and independent contractor status thus established. With regard to the criteria in Section 440.02(15)(d)1.a.(I)-(VI), the preponderant weight of the evidence shows that some of the truck drivers are independent contractors with federal employer identification numbers and some are sole proprietors who are therefore not required to obtain a federal employer identification number under pertinent state or federal regulations. § 440.02(15)(d)1.a.(II), Fla. Stat. The evidence also shows, for purposes of Subsection(15)(d)1a.(V) of this statutory provision, that the drivers are permitted to work or perform work for other entities or companies needing their services, in addition to the Respondent, at the election of the driver. There is no showing that an employment application must be completed to perform such tasks for other unrelated entities. The drivers must use the unrelated company's truck for work assigned to them by such other companies or entities. They are not permitted to use P.A.T. trucks for non-P.A.T. transportation work (driving) they have agreed to perform. Moreover, all the drivers are compensated for completion of a task or set of tasks according to a flat 25 percent commission of the hauling charge imposed by P.A.T. There is no evidence that clearly shows a contractual agreement which expressly states that an employment relationship exists between the drivers and P.A.T. Even if the status and operations of the drivers referenced above does not meet four of the criteria listed in sub-subparagraph a. Subsection 440.02(d)1., they may still be presumed to be independent contractors and not employees, based upon a full consideration of the nature of their individual situation with regard to satisfying any of the conditions or criteria referenced in Section 440.02(15)(d)1.b.(I)-(VII). With regard to the first criteria under that provision, the drivers perform the services of driving for a specific amount of money in the form of a 25 percent commission. They control a substantial amount of the means of performing the services or work. The driver is asked to deliver vehicles from point A to point B for that commission. He gets paid that commission whether it takes one day or six days to accomplish the task. The driver determines the route to be driven. The driver, within the limits of the Department of Transportation rules, determines when to begin driving and when to pull over to sleep. The driver is free to decline to accept a hauling job. There is no detrimental action taken against a driver for declining to accept a given hauling job, unless it happens too frequently for satisfactory conduct of P.A.T.'s operations. The driver must provide the incidental tools and equipment, such as binding chains and maintenance tools to operate the truck and securely transport the load of vehicles he is required to transport. The driver is responsible for maintaining current driver's license qualifications and DOT physical examination requirements. The driver is responsible for paying for any necessary badges authorizing entry at maritime ports, a frequent occurrence in the transportation of foreign-manufactured vehicles. The Respondent, P.A.T., either owns or leases the trucks used by the drivers and pays for the insurance policies for the trucks. P.A.T. also pays for routine maintenance of the truck. If the driver causes damage of any sort to the truck, the driver must bear the financial responsibility for repair of the damage. The driver must also bear responsibility for any damage to the vehicles being transported on the trucks. It can thus be seen that both the Respondent and the drivers control a substantial portion, respectively, of the means of performing the services or work. Clearly, the unrefuted evidence shows that the drivers receive compensation for the work or services performed (driving services, incidental loading and unloading and protection responsibilities, with regard to the vehicular cargo), for a commission or per job basis and not on any other basis. Therefore criterion number IV, cited last above, is clearly met. Concerning criterion (II) under the last-referenced provision cited above, the drivers incur expenses for costs of their commercial driver's license, repair costs for any vehicle damage to the truck or to the vehicles which are being transported by the truck; any DOT fines incurred by the drivers; any badge expenses, as port entry and exit fees, must be borne by the drivers; lodging and meal expenses on the road during a haul must be borne by the drivers, without reimbursement. Concerning criterion (III), the driver is responsible for the satisfactory completion of the work or services that he or she agrees to perform, in the operational sense, in that the driver will not be paid if the delivery of the vehicles ordered to be transported is not satisfactorily accomplished. The privity of contract, however, for a given hauling job runs between the customer and P.A.T., the Respondent, who the customer actually contracts with to have the vehicles transported. The drivers, for purposes of criteria (V), (VI), (VII), of the last-referenced statutory provision, as established by the unrefuted testimony of Ms. Hedges, stand to realize a profit, or suffer a loss, in connection with performing the transportation driving services. They have continuing or recurring business liabilities or obligations aside from the expense of owning or leasing the truck, insuring the truck, or the fuel expense which they do not bear. They do, however, have recurring or continuing business liabilities or obligations which have a direct effect on whether they realize any net gain from a commission on a given hauling job. The success or failure of their business, even as sole proprietors, depends on the relationship of their receipts, under their 25 percent commission arrangement, and their expenditures for each hauling job for which they earn that commission. Drivers often complain of losing money due to vehicle repair bills, fines, towing charges, etc. Additionally, as referenced above, although when transporting loads for P.A.T., the drivers must use P.A.T. owned or leased trucks, the drivers are free, under their arrangement, to engage in hauling for other companies or customers, if they are not currently engaged in the middle of a hauling job for P.A.T. They may do so for other companies using other trucks, so long as they do not engage in such transportation services for other entities with P.A.T.'s truck. This factual arrangement tends to also militate in favor of the drivers not being employees. Many of the drivers have the standard federal tax withholdings deducted from their commission payments, as well as, in some cases, court-ordered child support payments. While this might be deemed to militate in favor of an employer/employee relationship, the unrefuted testimony of Ms. Hedges establishes that this is a service that drivers have come to P.A.T.'s management and requested, because in view of their many hours and days spent on the road, and for other reasons, involving their business management abilities, it is an assistance to them to have the tax liabilities simply withheld from their commission payments. This helps to avoid personal difficulties involving arrearages to the Internal Revenue Service. Status of Non-Driver P.A.T. Workers and Corporate Officers Persuasive testimony offered by Tracie Hedges, established that Regina Davis, Robin Hand, Stanley Warren, William Bertelsen, Cecil Hannah, Chipley Atkinson, Kristene Viverios, Katherine Flores, Laura Dunn, Amber Taylor, Amy Murphy, and Ms. Hedges herself, are office workers of P.A.T. They are covered by a policy of workers' compensation insurance through AES Leasing, a worker leasing company. Apparently the Petitioner no longer disputes this. Ms. Hedges reviewed, in her testimony, the final Penalty Worksheet concerning the status of various named persons who the Petitioner contends were employees, not covered by workers' compensation coverage. Ms. Hedges established with persuasive testimony that Arthur Nicolas was not a P.A.T. employee, but did some improvements on the office building (i.e. in the nature of carpentry). Alex Sibbach and Witt Davis did not ever work as employees for P.A.T. They may have performed some yard work or sold some equipment to P.A.T., but were never employees. She also established that Richard Burrson and Robert Marra were dump truck drivers for a company by the name of MNT Enterprises and had never been P.A.T. employees. Bradley and Gregory A. Hedges and Kimberly Forret are officers of P.A.T., or were at times pertinent to this case. The Petitioner contends that they had not established an exemption from the requirement of being covered under a policy of workers' compensation insurance. This is because of the Petitioner's contention that no corporate officer exemption had been filed or made effective. Bradley Hedges and Gregory A. Hedges are children of owners Greg and Tracie Hedges. Kimberly Forret is Tracie Hedges' sister. Ms. Forret is an office worker at P.A.T. and both Bradley and Gregory A. Hedges work at P.A.T. on a part-time basis while attending school. Ms. Hedges completed exemption forms for all three of them and delivered them to Investigator Newcomer's office on Burgess Road in Pensacola, Florida. Investigator Newcomer took the position that the exemptions for these people had not been established or filed based on her examination of agency computer records. The computer program or site failed to establish to her that the three individuals in question had established exemptions. Exemption status is triggered by compliance with Section 440.05, Florida Statutes (2008).1/ Tracie Hedges established with persuasive testimony that the exemption applications for the named three officers had been hand-delivered to the Burgess Road office of the Department of Financial Services. Janice Evers is a staff worker at that office. She testified that her research could neither confirm nor deny that the exemption applications were delivered to her office, but acknowledges their receipt by the Department. It must be concluded that the applications were delivered to the office on Burgess Road but were never forwarded to the Tallahassee office by Ms. Newcomer's or Ms.' Evers staff. Investigator Newcomer's business address is 610 East Burgess Road in Pensacola, the location where Ms. Hedges testified that the exemption applications were delivered. When the Department made a Discovery Request for Production of the Business Records of the Respondent, it required that those records be produced at that same business address in Pensacola, Florida. It is thus "an office of the Department" for purposes of Section 440.05(c), Florida Statutes (2008). Ms. Hedges established that the exemption applications were delivered during the 2005 calendar year although she was unable to provide an exact date of delivery. Ms. Evers acknowledges that fact in her testimony. The Stop-Work Order at issue in this case by statute can only date back as early as April 22, 2006. Even if the applications were delivered on December 31, 2005, the three officers in question would be exempt from workers' compensation coverage requirements prior to April 22, 2006, when the time period, or audit period, related to the Stop-Work Order began. It is determined that at least by January 30, 2006, exemptions had been established, by delivery at least 30 days prior thereto, for Bradley Hedges, Gregory Hedges, and Terri Kimberly Forret. It is found that the exemptions were shown by persuasive evidence to have been delivered during the 2005 calendar year. Inasmuch as they were "received" by the Department in 2005, then they would have become effective, by operation of law, on or before January 30, 2006, well before the effective date of the Penalty Assessment of April 22, 2006.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, dismissing the Stop-Work Order and Fourth Amended Order of Penalty Assessment, in its entirety. DONE AND ENTERED this 29th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 January, 2010.
