The Issue The issue in this case is whether Petitioner, Conval-Care, Inc., is entitled to the payment of attorney fees and costs pursuant to Section 57.111, Florida Statutes, from the Agency for Health Care Administration, the successor in interest to the Respondent, the Department of Health and Rehabilitative Services.
Findings Of Fact By letter dated November 4, 1991, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department"), notified Conval-Care, Inc. (hereinafter referred to as "Conval-Care"), that it intended to impose an administrative fine on Conval-Care pursuant to Section 409.913(9)(c), Florida Statutes. Conval-Care contested the proposed fine and requested a formal administrative hearing, including a request that it be awarded attorney fees and costs pursuant to Section 57.111, Florida Statutes. The matter was designated case number 92-0126 and was assigned to the Honorable Judge Robert T. Benton, then Hearing Officer Benton. On June 30, 1993, following a formal hearing held on March 24, 1993, Hearing Officer Benton entered a Recommended Order recommending dismissal of the sanctions letter of November 4, 1991. The findings of fact made by Hearing Officer Benton, in Conval-Care, Inc. v. Department of Health and Rehabilitative Services, DOAH Case No. 92-0126, are hereby adopted to the extent relevant to this proceeding. On September 19, 1993, the Department entered a Final Order. The Department accepted and incorporated into its Final Order the findings of fact made by Hearing Officer Benton. The Department, however, rejected Hearing Officer Benton's conclusions of law to the extent that he not had concluded that Conval-Care lacked authority to reject the demand for its records which was the subject of the proceedings. The Department concluded that, in light of the fact that Conval-Care had acted on the advice of counsel, it would reduce the fine from $25,000.00 to $5,000.00. The Department's decision was appealed by Conval-Care. On December 16, 1994, the District Court of Appeal, First District, filed an opinion reversing the Department's Final Order. Mandate from the First District was entered January 3, 1995. On February 14, 1995, Conval-Care filed a Petition for Attorneys Fees and Costs in this case. Conval-Care requested an award of $15,000.00 as a small business party pursuant to the provisions of Section 57.111, Florida Statutes. Attached to the Petition were the Final Order entered by the Department, the Recommended Order, the First District's Opinion and Mandate, an Attorney's Affidavit stating the nature, extent and monetary value of the services rendered and costs incurred in the proceedings, the Petition for Formal Administrative Hearing filed by Conval-Care in 1991 and the Department's November 4, 1991 sanctions letter. On March 2, 1995, the Agency for Health Care Administration, the successor in interest of the Department (hereinafter referred to as "AHCA"), filed a Response in Opposition to Petition for Attorney's Fees and Costs. 10 In its Response, AHCA admitted all of the allegations contained in paragraphs 1 through 6 and 8 through 9 of the Petition. AHCA denied the allegations of paragraph 7 of the Petition. Paragraph 7 of the Petition alleged the following: 7. The action of DHRS, in filing the admini- strative complaint against CCI, was not sub- stantially justified because there was no reasonable basis in law or fact to support the issuance of its letter seeking to impose an administrative fine upon CCI. Attached to the Response was an Affidavit from John M. Whiddon in support of its position that its actions were substantially justified. The Affidavit does not add any alleged credible justification not presented to Hearing Officer Benton or the First District Court of Appeal. AHCA did not assert in it Response the following: that the costs and attorney's fees claimed in Conval-Care's affidavit were unreasonable; that Conval-Care is not a prevailing small business party; that circumstances exist that would make an award unjust; or that AHCA was a nominal party only. AHCA also did not "either admit to the reasonableness of the fees and costs claimed or file a counter affidavit [specifying each item of costs and fee in dispute] along with its response." Finally, AHCA did not request an evidentiary hearing in its Response. The only issue which AHCA asserted in its Response was at issue in this proceeding is whether AHCA's actions were substantially justified. On April 6, 1995, an Order to Provide Information was entered. Although the parties had not requested an evidentiary hearing, the undersigned entered the Order soliciting input from the parties before the undersigned decided whether a hearing was necessary on the one issue raised by the Department. In the Order, the parties were given an opportunity to provide input concerning the procedures they believed should be followed to resolve this matter. The parties were specifically requested to answer certain specified questions, including the following: 1. Do the parties believe that an [sic] hearing is necessary to resolve any factual disputes and/or for purposes of oral argument before a decision is rendered? * * * 5. Do the parties agree that the documents attached to the Petition and the Response should be considered in rendering a decision in this case? . . ." Conval-Care filed a response to the April 6, 1995 Order indicating that there was no need for a hearing. Conval-Care asserted that a hearing would be improper unless Conval-Care consents to one. Conval-Care also asserted that all of the documents attached to petition should be considered. AHCA filed a response to the April 6, 1995 Order indicating that "[t]he Respondent feels a hearing in this matter is essential." AHCA did not provide any explanation of why it believed a hearing was necessary or any discussion of whether a hearing was authorized under the applicable statutes and rules. AHCA also indicated in its response that it "agrees that the documents attached to the Petition and Response should be considered in this case " On May 19, 1995, an Order Concerning Final Order was entered. Based upon a review of the pleadings and the lack of explanation from either party to justify an evidentiary hearing, it was concluded that no evidentiary hearing was necessary. Therefore, the parties were informed in the May 19, 1995 Order that a hearing would not be held in this case. The parties were also informed that they could file proposed final orders on or before May 30, 1995. Conval-Care filed a proposed order. AHCA did not. Neither Conval-Care nor AHCA timely requested an evidentiary hearing in this case. Both parties agreed that the documentation filed with Conval- Care's Petition and AHCA's Response could be relied upon in reaching a decision in this case. Based upon AHCA's failure to contest most of the relevant issues in this proceeding, the only issue which requires a decision if whether the Department's actions against Conval-Care were substantially justified. The documents, including the Mr. Whiddon's Affidavit filed by AHCA with its Response, sufficiently explain why the Department took the actions it took against Conval-Care which led to this proceeding. No evidentiary hearing was, therefore, necessary. The weight of the evidence failed to prove that the Department's actions in this matter were substantially justified. The Department could have sought the information it wanted by pursuing available discovery. Counsel for Conval-Care even remained the Department of the availability of discovery. The Department, however, rather than pursuing the information which it indicated it needed, elected to pursue a punitive action against Conval-Care rather than obtaining the information through discovery. The Department's reason for pursuing punitive actions against Conval-Care was not convincing to Hearing Officer Benton. Despite this fact, the Department entered a Final Order upholding its actions and imposing a fine of $5,000.00 for refusing to provide it with information which it could have obtained through other means. The First District Court reversed the Department's Final Order opining that the Department "lacked a legitimate investigatory purpose for demanding the records" which gave rise to its action against Conval-Care. Finally, the entire record in this case failed to indicate that there was any basis in law or fact to substantially justify the actions of the Department.
The Issue The issues remaining to be resolved in this proceeding concern whether the above-named Petitioner is a "small business party" as described in Section 57.111(3)(d)1.a. b. and c., Florida Statutes (2007); whether the action of the above-named Agency in the underlying case was substantially justified in law and fact and whether an award of attorney's fees and costs would be unjust.
Findings Of Fact In the instant case the Respondent Agency (Department) does not dispute the amount of attorney's fees and costs sought in this proceeding and does not contest that the Petitioner is a prevailing party. Moreover, the Department admits that it was a real party in interest in the underlying proceeding involving the Administrative Complaint and was not merely a nominal party. The parties also waived an evidentiary hearing in this attorney fee proceeding. The parties, rather, submitted memoranda and affidavits in support of their respective positions. The present Petition for Attorney's Fees and Costs is based upon the above-referenced Administrative Complaint action brought against Wittmer and JR. Wittmer's Remodeling, Inc., by the Department, which came before the Division of Administrative Hearings by a request for formal hearing filed by Wittmer. Prior to filing that Administrative Complaint the Department performed an investigation related to the Complaint which had been filed by Kenneth Hatin of Palm Coast, Florida, against Wittmer. The Complaint by Hatin alleged that on August 10, 2005, he and Wittmer had entered into a contract for the building of an addition to the complainant's home in Palm Coast, Florida. Hatin had alleged and testified at hearing that Wittmer was unlicensed to perform the work under the contract and had been paid in excess of $30,000.00 for the project. Hatin maintained that Wittmer had abandoned the job before completion and that he had to hire another person or entity to complete the work, at further expense. The Department considered the results of its investigation, in the form of an investigative report, and considered the investigative file it had developed concerning Hatin's complaint. This included the original contract on JR. Wittmer's Remodeling, Inc.'s, stationary, signed by Wittmer, as well as copies of original checks amounting to approximately $30,000.00 written to Wittmer and/or his company or business. It also considered a copy of the local licensing records concerning Wittmer, revealing an expired occupational license, as well as records of the Department showing that Wittmer was unlicensed as any sort of contractor in the State of Florida. The Department also considered various invoices and receipts regarding the work contracted by complainant Hatin with another person or entity, to finish the job purportedly abandoned by Wittmer. During the investigation, the complainant and the complainant's fiancée were interviewed and made no mention of any familial relationship or friendship relationship between Wittmer and the complainant and his family members at the time of the investigation. Wittmer himself was interviewed by the investigator and did not mention any familial or personal relationship he had with the complainant or the complainant's family. The familial or friendship relationship between Wittmer and the complainant and the complainant's family only arose through the evidence adduced at the hearing. That evidence became a significant portion of the reason for the Findings of Fact and Conclusions which resulted in the Complaint against Wittmer being ultimately dismissed. JR. Wittmer's Remodeling, Inc., was dissolved by the State of Florida, Department of State, Division of Corporations on September 16, 2005, for failure to file required annual reports or Uniform Business Report. This fact was confirmed by Wittmer's affidavit submitted on January 18, 2008, in this proceeding, attesting that his corporation was dissolved and that it ceased business due to "financial hardship of the business." As a result of the hearing it was determined in the Recommended Order (with Findings of Fact adopted in the Final Order) that Wittmer performed work on the subject construction project without making any profit. It was performed, in essence, as a cooperative project between family and friends of Wittmer, in the sense that Wittmer's fiancée was related to the complaining witness's family and/or they were close friends. The circumstances established by preponderant evidence did not show that Wittmer was actually performing contracting, as defined in the above-referenced statutory authority underlying the charges in the Administrative Complaint. It was also determined, based upon the preponderant evidence at that hearing, that Wittmer made no profit on the project after paying all the subcontractors. The Department, in essence, adopted the Recommended Order of the Administrative Law Judge (with non-dispositive modifications of several Conclusions of Law) and entered a Final Order dismissing the charges in the Administrative Complaint. The subject Petition for Attorney's Fees and Costs was thereafter filed and this case ensued. The Department proceeded against Wittmer by naming as Respondents, in the underlying, case JR Wittmer's Remodeling, Inc., which corporation had actually already been dissolved at the time of the filing of the Administrative Complaint. It also named in that Complaint, and proceeded against, Willis Wittmer, Jr., personally. The Petitioners herein have established that Wittmer never had more than 25 full-time employees or a net worth in excess of two million dollars, whether functioning as JR Wittmer, Jr., an individual or as JR Wittmer's Remodeling, Inc. The Petitioner has also established that the construction contract at issue in the underlying case was entered into by the Petitioner herein under the name "JR Wittmer's Remodeling" and not "JR Wittmer's Remodeling, Inc." Moreover, that contact was not signed by Mr. Wittmer as president of JR Wittmer Remodeling, Inc. Aside from the fact that the Department filed the original Administrative Complaint against JR Wittmer Remodeling, Inc., it also named JR Wittmer individually as a Respondent in that Administrative Complaint, so he had defend against the action personally, regardless of the question of whether the corporation was in legal existence at the time of the filing of the Administrative Complaint. The evidence, as referenced above, shows that he met the requirements of having less than 25 full- time employees and a net worth of less than two million dollars. Thus, the totality of the evidence shows that Mr. Wittmer has standing, as the sole proprietor of an unincorporated business, to pursue the subject attorney's fee claim as a sole proprietor, even if not as a corporation or the president of the originally named, but now dissolved corporation. The Petitioner contends that the Department should have recognized the lack of a factual basis for the Administrative Complaint and, before finding probable cause, should have been able to determine that the construction arrangement between Wittmer and Hatin did not meet the legal definition of contracting or contracting services based upon the familial/friendship relationship of the protagonists. The Department, however, conducted a reasonable investigation and has been shown to have had a reasonable basis to determine, before hearing, that contracting and contracting services had been, in a legal sense, performed by Wittmer, based upon the results of its investigation (interviews, etc.). This is especially the case since Wittmer himself, when interviewed, had not revealed such exculpatory facts to the Department.
Findings Of Fact The applicant, Eugene Harold Givens, worked 30 hours per week from January of 1974 until June, 1976, for I. H. Givens, a Class "A" private investigator. The applicant surveilled and investigated prostitution and drug trafficking for a total of 3900 hours during this two-and-a-half-year period at the San Carlos Hotel in Pensacola, Florida. The applicant worked 200 hours for I. H. Givens in interviewing witnesses, locating witnesses and taking statements from witnesses for attorney James A Johnston. The applicant worked 10 hours per week for two years, 1977 and 1978, for Ronald McNesbitt attempting to gain information concerning illegal drug trafficking and stolen property in Escambia County, Florida. This constituted a total of 1040 hours. The applicant worked on various cases for I. H. Givens between 1976 and 1978 for a total of 780 hours as indicated: 20 hours investigation of stolen tax checks; 40 hours investigation and surveillance in a child custody case; 80 hours investigation into the cause of death of the son of Charles Walker; and 640 hours of surveillance and general private detective work with various attorneys and individual clients of I. H. Givens. The applicant worked 20 hours per week for four months for I. H. Givens in investigation of stolen property for a total of 320 hours. This investigation was conducted in conjunction with the offices of the sheriffs of Escambia and Santa Rosa Counties. The total number of hours worked by the applicant was 6240 hours. Applying the Department of State's procedure of dividing the number of hours worked by an applicant by 40 hours, the work hours in a full-time week, the applicant worked a total of 156 weeks, or three years.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Department of State approve the application for licensure of Eugene Harold Givens as a Class "A" private investigative agency. DONE and ORDERED this 9th day of July, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 James A. Johnston, Esquire Number 1 North Palafox Street Pensacola, Florida 32501
Findings Of Fact Bernard M. Tully, M.D. served by mail his Motion to Tax Attorney's Fees and Costs pursuant to Chapter 57, Florida Statutes, on May 19, 1987; same was filed with the Division of Administrative Hearings on May 21, 1987 and was assigned DOAH Case No. 87-2265F. This instant cause is a fee and costs case pursuant to Chapter 57, Florida Statutes, arising out of Department of Professional Regulation, Board of Medical Examiners v. Bernard M. Tully, M.D.; DOAH Case No. 85-3175. The Department of Professional Regulation has moved to dismiss Tully's Motion to Tax Attorney's and Costs, (hereafter, "Fees and Costs Petition") upon allegations that the claim was not filed in a timely manner pursuant to Section 57.111(4)(b)2, Florida Statutes, and upon allegations that the Fees and Costs Petition did not comply with the requirements of Section 57.111(4)(b), Florida Statutes, in that the claimant had not submitted an itemized affidavit of the nature and extent of the services rendered as well as the costs incurred. A Voluntary Dismissal was served by mail by Petitioner Department of Professional Regulation in DOAH Case No. 85-3175 on March 6, 1987, and filed with the Division of Administrative Hearings on March 10, 1987. The Order closing the Division file in that case was entered March 18, 1987, but is largely superfluous since a Voluntary Dismissal by the party bearing the burden of proof dismisses a cause by operation of law as of the date of filing of the Voluntary Dismissal. Tully's Fees and Costs Petition was served (May 19, 1987) and filed (May 21, 1987) well beyond the 60 day timeframe (May 11, 1987) provided in Section 57.111(4)(b)2, Florida Statutes, for the filing of such claims. Tully's Fees and Costs Petition attached schedules itemizing costs incurred and pleadings filed in DOAH Case No. 85-3175. The Petition was not verified and no affidavits are attached. In these respects, the Fees and Costs Petition failed to comply with Section 57.111(4)(b)1, Florida Statutes, and Rule 22I-6.35, Florida Administrative Code. Neither does the Fees and Costs Petition or any accompanying affidavit allege whether or not Tully requests an evidentiary hearing; that he is a small business party; where his domicile and principal office are located; how many employees he has; whether or not he is a sole proprietor of an unincorporated business, and, if so, whether or not his net worth exceeds $2,000,000; whether or not he operates as a partnership or corporation i.e. professional practice, and, if so, whether or not the net worth exceeds $2,000,000; whether the agency's actions were substantially unjustified; and whether or not circumstances exist that would make the award unjust; or whether or not the agency was a nominal party only. There were also no documents upon which the claim was predicated attached to the Fees and Costs Petition. in these respects, the Petition failed to comply with virtually all of Section 57.111(4)(b), Florida Statutes, and Rule 22I-6.035(1)(2), and (3), Florida Administrative Code. Tully timely filed a Response to Order to Show Cause wherein he acknowledged as true and accurate the dates as found in Finding of Fact 4, supra. Moreover, his Response concedes that pursuant to Section 57.111(4)(b)2, Florida Statutes, the application for an award of attorney's fees must be made within 60 days after the date that a small business party becomes a prevailing small business party, but his Response asserts that nothing in the applicable statute provides that an application for costs must be made within 60 days, and therefore at least his application for costs must be deemed timely. The Response further sets out an itemization of costs incurred and is sworn to by Tully's attorney of record. No leave to amend the Petition was granted by the Order to Show Cause.
The Issue Whether Respondent, Malcom Thompson, as Clerk of the Court for Osceola County, Florida, violated section 112.313(6), Florida Statutes (2011),1/ by using his position to intimidate Osceola County Clerk of the Court employees in order to enhance his personal and political power and, if so, the appropriate penalty.
Findings Of Fact At all times relevant to this case, Mr. Thompson was the Clerk of the Court for Osceola County, Florida. On December 29, 2011, Mr. Thompson was working in his office with his administrative assistants Ms. Ramdani and Ms. Lay. It was the day before the New Year's holiday, and Mr. Thompson directed Ms. Ramdani to remove Christmas cards that were on display. Ms. Ramdani told Mr. Thompson that she wanted to keep the Christmas cards up until after the holidays. Mr. Thompson became agitated with her, and he placed his open hand on Ms. Ramdani's shoulder and pushed her into a door. Ms. Ramdani did not receive any physical injury from Mr. Thompson's action, but she became angry and started complaining that he had pushed her. In response, Mr. Thompson said that he did not push her, and that he apologized. After this exchange, Mr. Thompson decided to leave Ms. Ramdani alone. Ms. Lay, who was working in the office, witnessed the incident. On January 4, 2012, after returning from the New Year's Day holiday, Ms. Lay told Ms. Hennecy, the Deputy Clerk of the Court, about Mr. Thompson pushing Ms. Ramdani, and how upset Ms. Ramdani had been about the incident. Ms. Hennecy thought the allegation was serious and contacted the Clerk's Human Relations (H.R.) Director, Ms. Zander. Based on Ms. Hennecy's report, Ms. Zander began an investigation. She interviewed Ms. Ramdani and corroborated the allegation that Mr. Thompson had pushed her. During the interview, Ms. Ramdani told Ms. Zander that she was afraid of Mr. Thompson. There is no evidence that Ms. Ramdani filed a written complaint against Mr. Thompson based on the December 29, 2011, incident. However, it was Ms. Zander's opinion that Ms. Ramdani made a verbal complaint to H.R. Ms. Zander then interviewed Mr. Thompson, and he stated that "he did it again." He explained that he had been joking around with Ms. Ramdani, and that she had gotten mad with him. Mr. Thompson then told Ms. Zander to interview Ms. Lay, and that she would corroborate his story. Ms. Zander interviewed Ms. Lay, who corroborated that Mr. Thompson had pushed Ms. Ramdani, but disputed that it had been unintentional or a joke. It was Ms. Lay's impression that Mr. Thompson had pushed Ms. Ramdani in anger. Ms. Zander, in a lack of candor, told Mr. Thompson that Ms. Lay had confirmed aspects of his story, neglecting to tell him the key difference. Based on H.R.'s standard practice of separating employees who may have a conflict, Ms. Zander determined that it was best to move Ms. Ramdani's work space from Mr. Thompson's office on the sixth floor of the courthouse to the H.R. department located on the second floor. Ms. Zander made this recommendation to Ms. Hennecy and Mr. Thompson on January 4, 2012. Mr. Thompson agreed that Ms. Ramdani could be moved if it was her choice. Initially, on January 4, Ms. Ramdani informed Ms. Zander that she did not want to relocate her office. However, the next day Ms. Zander informed Ms. Ramdani that her work space was being moved to the second floor from Mr. Thompson's office based on safety concerns. On January 5, 2012, Mr. Thompson learned that Ms. Ramdani was being relocated to the second floor. He told Ms. Zander and Ms. Hennecy that Ms. Ramdani was to be treated like any other employee, and not given any privileges. Apparently, Mr. Thompson allowed Ms. Ramdani more leeway in his office suite than other employees, such as telephone privileges, extended breaks, religious holidays, and leaving work early, if she worked through lunch. Further, Ms. Ramdani was to be under Ms. Zander's supervision, and written up if she did not follow the rules. Mr. Thompson restated his position to Ms. Zander that the whole incident was being blown out of proportion. Generally, whenever there is an allegation of a conflict between employees, Ms. Zander, as H.R. director, would conduct an investigation and offer a resolution to the conflict. However, Ms. Zander credibly testified that she did not feel comfortable with investigating the allegation that Mr. Thompson had pushed Ms. Ramdani because he was "my boss." Some time during the beginning of her investigation, Ms. Zander decided to speak with Captain Toomey, an Osecola County Sheriff's officer, who worked in the courthouse. Ms. Zander asked Captain Toomey whether she had a duty to report the incident. Captain Toomey asked for more details and initially said that the victim, Ms. Ramdani, had to come forward. Later, Captain Toomey called and indicated that he had a responsibility to report the incident. Mr. Thompson went on scheduled annual leave for the week of January 9 through 13, 2012. Some time on January 9, 2012, the Florida Department of Law Enforcement (FDLE) sent an officer to investigate the allegation that Mr. Thompson had pushed Ms. Ramdani. The officer interviewed Ms. Ramdani and other Clerk of the Court employees concerning the incident and informed them that the on-going investigation was confidential and that the employees were not to discuss the matter. Ms. Zander shared with Ms. Hennecy that the FDLE investigation was on-going, and that it was confidential. Ms. Ramdani told the FDLE officer what happened and stated that she did not want to pursue any criminal charges against Mr. Thompson. Ms. Ramdani credibly testified that she did not want to pursue any action for religious reasons, and based on her fear of embarrassment to her family and being in the news. The FDLE officer informed Ms. Zander that Ms. Ramdani did not want to pursue any criminal charges against Mr. Thompson. On January 9, 2012, at the end of the day, Ms. Hennecy called Mr. Thompson to give him an update on the office. One item of interest reported concerned a call Ms. Hennecy had received from Gary Ketchum, the spouse of one of Mr. Thompson's political opponents. Mr. Ketchum had called to confirm an allegation that Mr. Thompson has pushed an employee and had used a derogatory slur against the employee. Mr. Thompson became very upset when he heard about Ketchum's call. Not surprisingly, Mr. Thompson cut his vacation short and returned to the office bright and early the next day, January 10, 2012. It was Mr. Thompson's intention to meet with Ms. Ramdani and "smooth things over." As Ms. Ramdani was parking her car, Mr. Thompson called her cell phone and said that he wanted to speak with her. Ms. Ramdani told Mr. Thompson that she did not want to speak with him, and then she noticed his car pulling into the courthouse parking lot. Ms. Ramdani was surprised and worried to see Mr. Thompson driving into the parking lot because he was supposed to be on vacation. Ms. Ramdani parked her car and proceeded into the courthouse. Mr. Thompson parked his car and entered the building in a side entrance. That morning, Ms. Cubero was the first person to arrive for work in the H.R. department. As she opened the door and turned on the lights, she was startled to see Mr. Thompson standing in the office. She was surprised because Mr. Thompson was supposed to have been on vacation. Mr. Thompson asked to see Ms. Zander, but was told that she had not yet arrived. Within a minute or so, Ms. Ramdani arrived at the second floor office. Mr. Thompson, again, asked Ms. Ramdani to come upstairs and speak with him. Ms. Ramdani initially declined his invitation, but then changed her mind after Mr. Thompson gave assurances that everything would be fine. While Mr. Thompson and Ms. Ramdani left the second floor, Ms. Cubero sent Ms. Zander a text message that Mr. Thompson was looking for her and that he had taken Ms. Ramdani upstairs for a meeting. Ms. Zander, who had just pulled into the parking lot, decided she needed to interrupt the meeting between Mr. Thompson and Ms. Ramdani. Ms. Zander credibly testified that she was worried about Ms. Ramdani's safety. At first, Ms. Zander attempted to find a male employee or Captain Toomey to accompany her to the meeting on the sixth floor because she was afraid. Ms. Zander explained that she wanted to find a male to go with her because Mr. Thompson had a "temper" and that he was a large man. Because Ms. Zander was unable to find the male employee, and Captain Toomey would not go with her, Ms. Zander took two H.R. employees with her to the meeting, Ms. Cubero and Ms. Benoit. Ms. Ramdani and Mr. Thompson rode separate elevators up to the sixth floor. On entering the office suite, Ms. Ramdani told Mr. Thompson that she did not want to meet with him in his conference room, so they sat in Ms. Lay's work area. Ms. Lay was already working at her desk. Ms. Lay credibly testified that Mr. Thompson was agitated, appeared angry, and indicated that he was going to "get to the bottom of things," and going to identify who "leaked" the December 29, 2011, incident to the public. Ms. Lay was fearful that Mr. Thompson thought that she was the "leak." Consequently, Ms. Lay told Mr. Thompson about the FDLE investigation. Ms. Lay's information about the FDLE investigation thunderstruck Mr. Thompson, and he became extremely angry. He immediately grabbed the phone and began attempting to call his lawyer. Ms. Lay and Ms. Ramdani attempted to calm him. However, Mr. Thompson was extremely angry because he felt betrayed that his Deputy, Ms. Hennecy, and his employees had not told him about the FDLE investigation, and he believed the whole thing was being blown out of proportion. Ms. Zander, Ms. Benoit, and Ms Cubero entered the sixth floor office. Ms. Zander began telling Mr. Thompson that he could not conduct this meeting with Ms. Ramdani. Mr. Thompson, in a highly agitated state, told Ms. Zander and the other employees "young ladies, grab a chair and sit down." Consequently, Ms. Zander, Ms. Cubero ,and Ms. Benoit joined Mr. Thompson, Ms. Ramdani, and Ms. Lay for this impromptu meeting. Mr. Thompson then began to loudly and angrily question Ms. Zander, "What have you done? Who gave you the right to contact FDLE?" Ms. Zander started to answer and moved in her chair, and Mr. Thompson sprung from his chair and stood over Ms. Zander angrily shaking his finger in her face and yelling at her: "don't jump up on me"; "don't raise your voice to me"; and "shut up little girl." All of the participants at the meeting credibly testified that Mr. Thompson was red in the face, visibly angry, and that they felt afraid. Sensibly, Ms. Ramdani told Mr. Thompson to sit back down, and put his hands in his pockets. He then complied with Ms. Ramdani's instruction. Because Ms. Cubero began crying at the meeting, Mr. Thompson asked her what was wrong, and whether she was afraid of him. Ms. Cubero stated that she was afraid of him. Mr. Thompson then asked each of the women at this meeting if they were afraid of him. All of the women stated that they were afraid of him. Although the employees were fearful, Mr. Thompson did not verbally threaten or touch anyone during this meeting. Rather, the employees' fear appeared to be caused by Mr. Thompson's explosive anger and his loud and aggressive manner. Mr. Thompson, in a complete lack of self-awareness, testified that he did not understand why the meeting participants said that they were afraid of him. During the meeting, Mr. Thompson said several times that he did not think there was a case against him because without a "complainant there is no complaint." It was Mr. Thompson's impression that Ms. Ramdani had not filed a formal complaint against him. There was no evidence that Mr. Thompson directed anyone at the meeting to dismiss the H.R. complaint or change their story, or that he sought to discredit Ms. Ramdani. The length of this meeting was approximately two and a half hours. It is undisputed that the portion of the meeting where Mr. Thompson stood over Ms. Zander lasted just a few moments. Near the conclusion of the meeting, Ms. Ramdani expressed the concern that Mr. Thompson would terminate the employment of her and the others at the meeting. Mr. Thompson told them that as long as he was Clerk of the Court they would not lose their jobs. Ms. Ramdani then asked for Mr. Thompson to give this promise in writing. Oddly, Mr. Thompson wrote his promise on a "post-it" note, but refused to sign it. This "post- it" note was not offered into evidence. At the conclusion of the meeting, Mr. Thompson was of the impression that it had been a productive meeting and ended pleasantly. However, Ms. Zander, felt differently and eventually filed a criminal assault charge and the ethics charge against Mr. Thompson for his behavior during the meeting. The day after the January 10, 2012, meeting, Ms. Ramdani decided to move back to her office in Mr. Thompson's office suite on the sixth floor. Ms. Ramdani credibly testified that she decided to move back to the sixth floor because she could not get any work done in the second floor office. Further, she credibly testified that she did not want to pursue the criminal action against Mr. Thompson, or the ethics charge against Mr. Thompson. Further, Ms. Ramdani agreed with the description of Mr. Thompson as a "good boss." On January 20, 2012, Mr. Thompson had another meeting with Ms. Zander with his general counsel present. Mr. Thompson asked her "what was her end-game" and "what would it take to make this go away." Ms. Zander indicated that she did not have a plan on how to resolve the issue concerning Ms. Ramdani's allegation, and that Mr. Thompson would have to resolve the issue with Ms. Ramdani. Mr. Thompson is credited in his testimony that his meaning of "end-game" referred to him asking how Ms. Zander planned to resolve the allegations, not as showing any wrongful intent. There was no evidence that Mr. Thompson took any employment or retaliatory action against the employees that attended the January 10, 2012, meeting. A jury acquitted Mr. Thompson on the charge that committed a battery of Ms. Ramdani. Further, in a separate case, the trial judge entered a judgment of acquittal on Ms. Zander's claim that Mr. Thompson assaulted her during the January 10, 2012, meeting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics find that Mr. Thompson did not violate section 112.313(6), Florida Statutes. DONE AND ENTERED this 6th day of March, 2013, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2013.
Findings Of Fact Petitioner is the sole proprietor of an unincorporated business engaged in the practice of psychology. Petitioner's business does not employ more than twenty-five (25) full-time employees and has a net worth not exceeding $2,000,000.00. Petitioner's residence, business domicile and principal office are located in Georgia. Petitioner's residence, business domicile and principal office have been so located since 1982. In DOAH Case No. 89-6811, the Department of Professional Regulation, Board of Psychologists, filed an Administrative Complaint, dated July 20, 1989. An Amended Administrative Complaint was filed on December 8, 1989. The Administrative Complaints alleged that the Petitioner was guilty of sexual misconduct in the practice of psychology. The case was voluntarily dismissed by the Department of Professional Regulation prior to the final hearing. The voluntary dismissal was adopted and incorporated into the Final Order entered by the Board in this matter. The Petition for Attorney's Fees and Costs filed pursuant to Rule 221- 6.035, Florida Administrative Code, and Section 57.111, Florida Statutes, was timely, having been filed within sixty days (60) after the date on which the Petitioner had prevailed. According to the initial Affidavit filed by Petitioner's attorney, Petitioner initially incurred legal fees in the amount of $5,106.50 and costs in the amount of $210.05 in DOAH Case No. 89-6811. However, Petitioner is not entitled to an award of attorney's fees and costs since the evidence clearly demonstrated that Petitioner's business or professional practice is neither domiciled in Florida nor has a principal office located in Florida. See, Section 57.111(1)(d)a., Florida Statutes.
Findings Of Fact The Parties. The Petitioner, June M. Smith, is a female. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration. The Department's Division of Facilities Management. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division: K. Wayne Smith was the Chief of the Bureau. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members. The Department's Decision to Employ Ms. Smith. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms. Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary. Ms. Smith's First Supervisor. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys." The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct. The evidence failed to prove that Mr. Medlock touched employees in a sexual way. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way. Ms. Smith's Second Supervisor. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt: Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller; Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition; Ms. Smith believed that Mr. Miller had trouble relating to people. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following: Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol; Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith; Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management; Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew leader instead of other crew members who had been with the Division much longer than Ms. Smith. Safety Meetings. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew. Troy Sullivan's Employment by the Department In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department. Mr. Sullivan was assigned to Ms. Smith's crew. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable. Ms. Smith also complained to Mr. LeDew about the decision not to promote her. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay. Bricks in Your Pants. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller. Jack Smith reported his comment to Mr. LeDew. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded. I. Ms. Smith's Third Supervisor. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner." The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted. The door to the restroom used by Ms. Smith and a few male employees had been kicked in. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex. The Incinerator Incident. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's complaint, or the lack of effort to follow up on the problem, was related to her sex. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident. When asked if there were any other problems she was having, she replied "no". Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines. Raymond Hines' Inappropriate Comment to Ms. Smith. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority. Ms. Smith and Mr. Earnest worked with Mr. Hines. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies." When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive. Mr. Ojala. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex. Ms. Smith's Final Supervisor. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision. Ms. Smith's Next to the Last Day of Reporting to Work. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr. Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence. Ms. Smith's Last Day of Employment with the Department. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence. Sexual Harassment Policy/Training. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5. The Department's rules on sexual harassment were provided to all new employees of the Department. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6. A copy of the Department's employee handbook was provided to all new Department employees. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex. The Use of Vulgar Language. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following: The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section. Violation of this requirement will result in disciplinary action being taken against the offender. The normal progression, depending on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed. See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker. The General Treatment of Ms. Smith. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex. Miscellaneous Complaints. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other. Ms. Smith's Subsequent Employment. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left. Ms. Smith's Complaint. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.
The Issue Whether Petitioner, Dr. Herbert R. Slavin, is entitled to an award of attorney's fees and costs in an amount not exceeding $50,000 pursuant to section 57.111, Florida Statutes (2011).
Findings Of Fact Dr. Slavin, a licensed physician who specializes in internal medicine, has practiced in the state of Florida since 1981. In or around 2008, Dr. Slavin formed, and is the sole shareholder of, "Ageless Medicine Associates," a subchapter S corporation1/ under which he practices medicine. On October 31, 2011, the Department filed an Administrative Complaint that charged Dr. Slavin with two statutory violations, both of which were ultimately dismissed by the Board of Medicine. In connection with that proceeding, Dr. Slavin now seeks an award of attorney's fees and costs pursuant to section 57.111. As explained later in this Final Order, a party seeking fees and costs pursuant to section 57.111 must demonstrate that he or she was a "small business party" at the time the underlying action was initiated by the state——in this instance, October 31, 2011. Section 57.111(3)(d) contemplates that a small business party can take four alternative forms, only two of which require discussion here: a partnership or corporation, including a professional practice, that, during the relevant timeframe, had 25 or fewer full-time employees or a net worth of not more than $2,000,000 (section 57.111(3)(d)1.b.); or an individual whose net worth did not exceed $2,000,000 during the relevant period (section 57.111(3)(d)1.c.). The evidence establishes that, as of October 2011, Ageless Medicine Associates had fewer than 25 employees and a net worth that did not exceed $2,000,000. The problem, though, and as discussed elsewhere in this Order, is that section 57.111(3)(d)1.b. has no application where, as in this case, the underlying complaint was filed against a licensee individually, rather than the partnership or corporation under which the licensee conducts business. As for Dr. Slavin's personal finances, his 2011 tax return reflects income of $171,810, virtually all of which comprises wages and business income derived from Ageless Medicine Associates, and an adjusted gross income of $161,400. The remainder of Dr. Slavin's financial picture (including, for example, any assets on hand that did not generate taxable income) during October 2011 is nebulous, however, for nearly all of his testimony focused incorrectly on his finances at the time of the final hearing: Q. Are you, doctor, currently worth $2,000,000? A. No. * * * Q. Dr. Slavin, do you own a home? A. Yes. Q. How much, if you know, is that home worth? A. Probably around $300,000 to $350,000. Q. And do you have a mortgage on that home? A. Yes. Q. How much is the mortgage; do you know? A. $145,000. Q. And do you have any cash in the bank? A. Yes. Q. How much? A. Around $10,000 . . . . * * * Q. Do you own any boats? A. No. Q. Do you own any vacation homes? A. No. Q. Do you own any interest in any other businesses? A. No. Q. Do you have a lot of stock accounts? A. No. * * * Q. Okay. Is there any other asset that you have that has not been mentioned; your home, your business? Do you own your vehicles? A. No, they're leased. Q. Do you own any other stocks or bonds that provide you with an income or that are worth money, that you know of? A. No. * * * Q. Dr. Slavin, you testified that -- You were asked by counsel whether or not you had a lot of stocks or bonds as assets and you stated no. Do you -- what does a lot mean? A. Well, I have -- I don't have any direct ownership of stocks or bonds. There are some annuities I have that have, I guess, investments and mutual funds or something. You know, I'm not -– * * * Q. Dr. Slavin, have you presented any information or any documentation as to what items are within your home? A. Not that I'm aware of. I have a television, -- Q. Do you have -- A. -- a refrigerator and -- Q. Do you have furniture in your home? A. Yeah. I have furniture, a refrigerator, stove, microwave. I have -- Q. Do you have computer equipment in your home? A. I have laptop computers in the home. Q. Do you have any personal items; jewelry, watches in your home? A. I have -– Yes, I have watches. Final Hearing Transcript, pp. 23; 25-28; 30-31 (emphasis added). Even assuming, arguendo, that Dr. Slavin's testimony had been properly oriented to the relevant time period (which it was not, in nearly all instances), his overall evidentiary presentation was simply too fragmentary to permit the undersigned to independently determine the value of his net worth——a figure derived2/ by subtracting total liabilities from total assets. For example, Dr. Slavin provided: no information concerning his annuities and mutual funds, the value of which could be non- trivial due to the remunerative nature his profession and his length of time in practice; no details regarding the value of his household assets; and no credible evidence regarding the value of his home.3/ In light of these gaping holes in the evidence, which preclude anything more than rank speculation concerning the value of Dr. Slavin's personal net worth, it is determined that status as a small business party has not been proven.4/ Because Dr. Slavin's failure to establish his status as a small business party is fatal to his application for attorney's fees, it is unnecessary to determine whether the underlying proceeding was substantially justified.
The Issue Is Petitioner entitled to attorney's fees and costs pursuant to Section 57.111, Florida Statutes, The Florida Equal Access to Justice Act, and Rule 22I- 6.035, Florida Administrative Code?
Findings Of Fact Petitioner herein, Jules G. Minkes was the Respondent in a license disciplinary proceeding styled Department of Professional Regulation, Board of Osteopathic Medical Examiners, DOAH Case No. 88-3749. That underlying case was resolved by a Notice of Voluntary Dismissal served by the Department of Professional Regulation attorney on December 9, 1988. It was filed with the Division of Administrative Hearings on the same date. On December 16, 1988, the undersigned entered an Order providing in pertinent part, "This cause came on for consideration upon Petitioner's Notice of Voluntary Dismissal, which, by operation of law, dismisses this cause and the file of the Division of Administrative Hearings is accordingly CLOSED." On February 13, 1989 the Petition and Affidavit for attorney's fees, together with supporting documents and a Memorandum in support of the petition were filed with the Division of Administrative Hearings. The Petition was served by mail on February 10, 1989. It does not specifically request an evidentiary hearing. This fees and cost cause was subsequently styled as Minkes v. Department of Professional Regulation, Board of Medical Examiners, DOAH Case No. 89-0792F. On February 28, 1989, Respondent filed an Answer which was "sworn and subscribed" by the DPR attorney. The Answer constitutes a general denial of all allegations and demands "strict proof" of the attorney's fees and costs set forth by Petitioner's pleadings, but contains no itemized counter-affidavit challenging the reasonableness of the attorney's fees and costs claimed by Petitioner as contemplated by Rule 22I-6.035(4) and (5)(a), Florida Administrative Code. The answer also alleges substantial justification for the underlying action and "special circumstances" which would render unjust any award of fees and costs. These latter two allegations are made without any particularity as to what constitutes the "justification" or the "special circumstances." The Answer makes no specific request for evidentiary hearing beyond the demand for "strict proof" of "whether and/or to what extent" fees and costs were incurred by Petitioner. No counter-affidavit or request for evidentiary hearing has been filed to date. See, Rule 22I-6.035(4), (5) Florida Administrative Code.
