The Issue Whether Petitioner was subjected to a hostile work environment condoned by Respondent due to his sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The School Board of Orange County, Florida, (Respondent) is an employer within the definition found in Section 760.02, Florida Statutes. Dexter V. Thomas (Petitioner) was an employee of Respondent, as defined in Section 760.02, Florida Statutes, during the relevant time period. Petitioner timely filed his Charge of Discrimination (Charge) with the Commission, pursuant to the Florida Civil Rights Acts of 1992, on August 4, 1995. The Commission failed to make a Cause/No Cause Determination within 180 days of the filing of the Charge. Petitioner filed a form with the Commission on January 27, 1998, seeking to withdraw his Charge and filed a Petition for Relief to proceed to an administrative hearing. Petitioner has not filed a Petition with the Commission. However, the Commission forwarded Petitioner's Charge to the Division of Administrative Hearings for a formal hearing on February 2, 1999, and this proceeding followed. Petitioner is an adult male and a United States citizen of African-American descent. Petitioner worked as a custodian at Apopka Middle School on the day shift from 1989 until his termination on November 22, 1995. Petitioner testified that he had received good evaluations until the fall of 1994, when a new principal took charge of the school. Shortly thereafter, it was Petitioner's perception that he was being harassed because of certain statements that he made to other school employees about the faculty and staff at Apopka Middle School which he believed to be true. The statements made by Petitioner were defamatory in nature. In addition, they were perceived by other school board employees as threatening to the safety and welfare of staff and students. Due to these statements and his general conduct while working his shift, Petitioner was relieved of duty with pay on September 21, 1995. On October 4, 1995, Petitioner was directed to be examined by a licensed psychiatrist at the expense of the school board. Petitioner refused to be examined by the school board's licensed psychiatrist on the grounds that it was part of the continuing conspiracy to silence him about illegal activities he believed were going on at Apopka Middle School. Petitioner was subsequently terminated by action of the school board on November 22, 1995. None of the testimony and other evidence produced by Petitioner, taken as true, could be construed to establish a prima facie case of sexual harassment by employees or supervisors of Respondent. Petitioner failed to offer any credible evidence that he was subjected to any unwelcome sexual advances, request for sexual favors, or other conduct of a sexual nature by employees of Respondent. Petitioner appears to have mistakenly checked the "race" box on his Charge of Discrimination. At the hearing, Petitioner did not raise any contentions that he suffered discrimination on the basis of race while in the employ of Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered as follows: The Charge of Discrimination should be dismissed, as Petitioner's request for administrative hearing was not timely filed under Chapter 760.11(4),(6), and (8), Florida Statutes. In the alternative, Petitioner has failed to prove that he was discriminated against on the basis of his sex by being subjected to a hostile work environment and the Petition should be dismissed. DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2000. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Orange County School Board Post Office Box 3471 Orlando, Florida 32802-3471 Dexter V. Thomas 3920 Country Club Drive, Number 3 Orlando, Florida 32808 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dennis Smith, Superintendent Orange County School Board Post Office Box 271 Orlando, Florida 32302-3471
The Issue Whether Respondent has committed an unlawful employment practice in violation of Chapter 760, Florida Statutes, and if so, what remedy should be ordered?
Findings Of Fact Bonita Sneiderman, a/k/a Bonita Mattingly (Ms. Mattingly), is a Caucasian female born March 17, 1953. At the time of the events complained about in this proceeding, Ms. Mattingly was 53 years old. Ms. Mattingly was then known as Ms. Sneiderman and was single. Ms. Mattingly married and changed her name shortly before the hearing in this case. Dillards, Inc., is a corporation that operates a chain of department stores, referred to as Dillards. In many of the Dillards stores, there are styling salons. The Dillards department store at the Orange Park Mall in Orange Park, Florida is referred to as Store #232. During the time period relevant to this case, Susan Konstantatos was the Salon Manager of the salon at Store #232. On July 26, 2005, Ms. Konstantatos attended a manager's meeting, in which she received and discussed new policies for the salons. One such policy dealt with the schedules for salon employees and stated that all new hires would work five-day, full-time schedules. This policy, however, did not necessarily apply to employees already employed at the salons. For example, employees that worked in the Iveys salon before Dillards took over what used to be the Iveys store were considered to be "grandfathered in." Dillards honored whatever scheduling terms the employees had negotiated when taking their positions with Iveys. George Craywick, Cynthia Anderson and Marie Cox were three such salon employees. In September 2005, Ms. Mattingly applied for and received a position as a hair stylist in Dillards Store #232. Her application for employment with the store indicates that she applied for a full-time position. The application also indicates that she was hired for a full-time position. On September 21, 2005, Petitioner attended a new employee orientation session and signed the new employee orientation sheet, acknowledging that she had received orientation on Respondent's Associate Work Rules and Attendance Policy. Petitioner also signed an Associate Acknowledgment Form indicating that she received and understood Respondent's Associate Work Rules and General Policies. The Associate Work Rules and General Policies for Dillards reiterated the importance of attendance and provided notice that a "no show" would not be tolerated and would result in termination of employment. Among the stylists' job duties was an activity called "instant eventing." Instant eventing was an activity designed to generate interest in using the salon's services. Stylists could choose the type of instant eventing they would perform, such as handing out business cards, setting up a paraffin wax table and offering demonstrations, or setting up a color table with hair color swatches. Petitioner's chosen method of instant eventing involved setting up the paraffin wax demonstration. Instant eventing not only created interest in the salon, but hopefully helped new stylists to establish a following for their services. Stylists were expected to participate in instant eventing when they had no appointments. As a consequence, the more customers a stylist had, the less time he or she had to devote to instant eventing and the less stylists were expected to participate in the activity. Petitioner complains that George Craywick was not required to instant event and claims that she never saw him participate in any instant eventing activity. Mr. Craywick had more customers than any other stylist working at the Dillards salon. As a result of the number of repeat customers he served, he did not have the need for or the opportunity to engage in the same amount of instant eventing that Petitioner had. There is evidence that Mr. Craywick participated in a color table as an instant event, but it is unclear whether his participation in this activity was during the time that Petitioner was employed. Petitioner admitted that while she never saw Mr. Craywick participate in instant eventing, she had no knowledge as to whether he participated at times when she was not working with him. During May 2006, all of the salon's stylists at Store #232 were scheduled to work five days per week and one Sunday per month. When an employee worked on Sunday, Ms. Konstantatos attempted to schedule another day off for the employee during that week. Often the day off would be Monday, but the coverage needs of the salon would control. Mr. Craywick often worked on his scheduled days off at Ms. Konstantatos' request to ensure overage for the salon. Others sometimes did the same. Petitioner was scheduled to work Sunday, May 7, 2006. On or about May 1, 2006, Ms. Konstantatos checked the posted schedule and saw that Petitioner's name had been crossed off the schedule for Monday, May 8, 2006. Ms. Konstantatos had not removed Petitioner from the schedule and assumed that Petitioner had crossed her name off because she was working Sunday. Ms. Konstantatos needed Petitioner to work Monday, May 8, 2006, in order to ensure that the salon was adequately staffed. Petitioner had not worked the previous Monday. Ms. Konstantatos left Petitioner a note stating that Petitioner needed to work on Monday, May 8, 2006. After receiving the note, Petitioner called Ms. Konstantatos on Wednesday, May 3, 2006, and told her she could not work on Monday because she had made arrangements to go out of town that day. Petitioner's regular day off is Tuesday. Ms. Konstantatos advised that she needed Petitioner to work Monday to make sure that there was proper coverage for the salon, but that she could give Petitioner Wednesday off so that her days off would be consecutive. Petitioner insisted that she could not work on Monday, May 8, 2006. Ms. Konstantatos informed her that if she did not work on Monday, she would be considered to have abandoned her job and her employment would be terminated. Whether or not she worked on Monday, May 8, 2006, remained Petitioner's choice. Petitioner worked Thursday through Saturday, May 4-6, 2006. On Saturday evening, Petitioner packed up her belongings and left a note indicating that she had arranged for someone else to cover her shift on Sunday and would not be at work on Monday. She never returned to work because she considered herself to have been fired. On May 11, 2007, Respondent terminated Respondent for job abandonment. Between September 2005 and May 2006, Respondent terminated several other salon employees for job abandonment or excessive absenteeism. Those employees were both male and female, married and single. Their ages ranged from 21 to 35. After Petitioner's termination, Ms. Konstantatos hired Debra Doss as a stylist. At the time she was hired, Ms. Doss was a 49-year-old single female.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint of discrimination. DONE AND ENTERED this 10th day of October, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2007. COPIES FURNISHED: Bonita Y. Mattingly 2040 Wells Road, Apartment 2-E Orange Park, Florida 32073 Grant D. Petersen, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Florida Commission on Human Relations (Commission) has jurisdiction over Petitioner’s claims of discrimination.
Findings Of Fact Dr. Garcia is board-certified in emergency medicine and family medicine. Beginning on or about March 2007, Dr. Garcia had been given hospital privileges by Heart of Florida Medical Center to practice in its emergency department. Dr. Garcia was not employed by Heart of Florida Medical Center. His privileges came up for renewal in 2009. Because of unresolved concerns regarding Dr. Garcia’s ability to appropriately assess and treat emergency room patients as a result of a hearing deficiency, Dr. Garcia’s privileges with Heart of Florida Medical Center were not renewed. The non-renewal of his privileges at Heart of Florida Medical Center did not preclude Dr. Garcia from practicing medicine. It precluded Dr. Garcia from practicing medicine at Heart of Florida Medical Center. Dr. Garcia has practiced medicine in Texas since his privileges at Heart of Florida Medical Center were not renewed. There are other physicians in Florida who do not have privileges at Heart of Florida Medical Center and who practice medicine in Florida. The Board of Medicine licenses physicians in the State of Florida. Heart of Florida Medical Center does not license physicians. The non-renewal of his privileges at Heart of Florida Medical Center does not preclude Dr. Garcia from billing third- party insurance companies in connection with medical services he provides to insured individuals.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition for lack of jurisdiction. DONE AND ENTERED this 21st day of May, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 21st day of May, 2010.
The Issue The issue in this case is whether Respondent, The Exchange Club Center for the Prevention of Child Abuse of the Treasure Coast, Inc. ("Respondent" or "Exchange Club"), is liable to Petitioner, Tiffany L. Rusinko ("Petitioner" or "Ms. Rusinko"), for employment discrimination and retaliation.
Findings Of Fact Respondent was a child abuse prevention agency that provided services to families in Martin, St. Lucie, Indian River, and Okeechobee Counties. Among other things, Respondent sought to prevent child abuse and neglect through education and parenting skills classes to parents of at-risk children. All of Respondent’s programs were funded by outside sources including grants and fundraising. Respondent ceased operations in September 2020. Petitioner was hired by Respondent on March 1, 2013, as a "Parent Educator" with Respondent’s Safe Families Program on a full-time basis. Petitioner understood that during her employment with Respondent, she was required to adhere to the Human Resources Personnel Policies & Procedures Manual ("Policies & Procedures"), as well as the Code of Ethics of the National Association of Social Workers ("Code of Ethics"). Upon hiring, Petitioner received copies of the Policies & Procedures and the Code of Ethics. Petitioner was required to sign and acknowledge receipt and review of both. On February 27, 2017, Petitioner was promoted to the position of "Program Supervisor" for the Safe Families Program. Her salary in that position was $40,000. This was also a full-time position and, as part of her responsibilities as a Program Supervisor, Petitioner supervised four parent educators. In June 2017, Petitioner agreed to take on the role of a Supervisor in Respondent’s PAT Program in addition to her role as a Program Supervisor for Respondent’s Safe Families Program. Petitioner remained a full-time employee of Respondent and her salary was increased to $44,000. Between July 27, 2017, and August 11, 2017, Petitioner was late or did not report to work as required due to various personal matters. On or about September 27, 2017, Respondent hired a "Program Manager" to manage Parent Educators in the Safe Families Program. The new Program Manager was paid a higher salary than Petitioner, which Petitioner believed was due to Respondent discriminating against her because of her race and gender. Thereafter, Petitioner sent a text message to Respondent’s Executive Director expressing her displeasure with her responsibilities and her rate of pay. Petitioner demanded a salary increase commensurate with what Petitioner believed she should be paid. Petitioner communicated with Andrea Medellin about her responsibilities and salary, which contravened Respondent’s Policies & Procedures. Andrea Medellin was the Executive Director of an agency that funded one of Respondent’s programs. On February 12, 2018, Petitioner submitted a grievance to Respondent claiming that she was the subject of discrimination based on race and gender. Specifically, she claimed that her salary and job responsibilities varied from those of a co-worker who was a Black male, but who had a similar title and experience. On February 13, 2018, Respondent issued a Corrective Action Notice to Petitioner, which resulted in Petitioner being placed on probation for ninety days. Based on her prior demand, Respondent gave Petitioner a cost-of- living increase that commenced in her February 16, 2018, paycheck and continued until her termination. In February and March 2018, Petitioner had several e-mail exchanges with her supervisor, Respondent’s Human Resources Director, and Respondent’s Executive Director, wherein she raised concerns about her salary and job responsibilities. On March 13, 2018, Petitioner submitted another grievance to Respondent reiterating her prior allegations of discrimination and claiming that she was the subject of a campaign of harassment and retaliation. Respondent subsequently became aware that Petitioner was making disparaging remarks about Respondent on social media, in violation of Respondent’s Policies & Procedures. Petitioner also allowed Respondent’s clients to be present in her home in violation of the Code of Ethics. Although several witnesses testified that Petitioner was a dedicated employee, Respondent ultimately determined that her termination was appropriate based on her violations of the Policies & Procedures and Code of Ethics. Respondent terminated Petitioner’s employment on March 26, 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of May, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S BRITTANY O. FINKBEINER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Gary Shendell, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Tiffany Rusinko 615 Southeast Eighth Avenue Okeechobee, Florida 34974 Seth A. Kolton, Esquire Shendell & Pollock, P.L. 2700 North Military Trail, Suite 150 Boca Raton, Florida 33431
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue The basic issue in this case is whether the Respondent should award a contract for the publication of certain programs to the Petitioner or to the Intervenor. The Petitioner contends that it is entitled to the subject contract. The Respondent and the Intervenor contend that the subject contract should be awarded to the Intervenor.
Findings Of Fact Facts stipulated to by all parties The Performing Arts Center Authority ("Authority") was created in 1984 by special act of the legislature, Chapter 84-396, Laws of Florida (1984)("the Act"). It is a public body, corporate and politic, in Broward County, established for the limited purpose of planning, promoting, developing, constructing, and equipping, etc., facilities for holding any type of cultural, tourism or promotional events, civic, recreational, or similar events or activities. Chapter 84-396, Section 1. The Authority consists of seven members: three selected by the board of County Commissioners of Broward County who are not residetts of the City of Fort Lauderdale; three selected by the Commission of the City of Fort Lauderdale; and one selected by the Downtown Development Authority. Chapter 84-396, Section 2. All members must be residents of Broward County, and the Authority's jurisdiction is limited to the boundaries of Broward County. Chapter 84-396, Section 1. Southern Playbill Publishing, Inc. ("Southern Playbill"), and Media Publications, Inc. ("Media Publications"), are corporations engaged in the business of publishing theater prograMs. Southern Playbill publishes "PLAYBILL" and Media Publications publishes "ENCORE!". In February of 1990, the Authority informally and verbally initiated its search for a publisher for theater programs for the new Performing Arts Center in Broward County. On August 20, 1990, the Authority sent a letter requesting proposals for theater program books. Responses to the August 20, 1990 letter requesting proposals were submitted by Southern Playbill by Media Publications, and by Sun Controlled Ventures, Inc. (a company not a party to this proceeding). On September 26, 1990, the Authority sent a letter to all three companies who responded to the August 20, 1990, letter requesting proposals, informing th&?rn that each of the three responses were non-responsive in some respect. Further, this letter indicated that the Authority sought new proposals for the publication of theater program books. Southern Playbill sent a letter dated October 1, 1990, to the Authority. In response to two requet;ts for additional information by Southern Playbill the Authority provided additional information to both remaining proposers, Southern Playbill and Media Publications, on October 4 and October 5, 1990. Media Publications submitted a new proposal on October 10, 1990. With the permission of the Authority's Executive Director, Southern Playbill submitted a new "base bid" via fax on October 10; Southern Playbill was granted permission to file its supporting materials not later than close of business (5:30) on October 11. Sun Controlled Ventures declined to submit a new proposal by a memorandum dated October 3, 1990. On October 23, 1990, at a special meeting of the Authority, both Southern Playbill Publishing and Media Publications made presentations to the Authority about their proposals for the theater prograMs. After considering all information, the staff recommended to the Authority that Media Publications be awarded the contract for the publishing of the theater prograMs. The Authority awarded the contract to Media Publications at this meeting by a 3-2 vote. Jack Moss was the member of the Authority who made the motion to authorize the Authority to vote on which company to award the contract to. Subsequently he requested a new vote by letter. Facts established at the hearing In its Official List of Special Districts, the Department has classified the Authority as an "independent special district" within the meaning of Section 189.403, Florida Statutes. Leslie Feldman is the President of Southern Playbill, and Michael Kram is the President of Media Publications. Mr. Kram was the Editor-in-Chief of Southern Playbill from 1979 until 1989. PACE Management Corporation owns 100% of Media Publications and owns 80% of another corporation, PTG-Florida, Inc. Media Publications and PTG- Florida, Inc., are wholly separate entities; they are financially independent of each other and each provides different services. PTG-Florida, Inc., is in the business of theatrical presentation and Media Publications is in the program publishing business. Media Publications was not created solely for the purpose of bidding on the program publishing contract which is the subject of this proceeding. Instead, it was created as part of a long-term plan by PACE Management Corporation to get into the publishing business, as had been announced publically as far back as April 18, 1990. Since its formation, Media Publications has published a number of programs for theaters nationwide. After lengthy negotiations that began in early 1989, PTG-Florida, Inc., and the Authority signed a letter of intent to enter into an agreement for the p of Broadway shows, including Phantom of the Opera, at the Broward Center for the Performing Arts. The partnership between PTG- Florida and the Authority was announced at a press conference in February of 1990. Mr. Feldman attended the press conference and was aware from at least that date forward that PTG- Florida had an agreement with the Authority for the presentation of shows, although he was unaware of its terMs. The Authority did not enter into the final contract with PTG-Florida, Inc., until October 5, 1990, because the signing of that contract was dependent on the signing of a separate agreement between the Authority and the producer of Phantom of tee Opera, which was not accomplished until October 4. Under its agreement with the Authority, PTG- Florida, Inc., will receive 75% of the revenue from theater programs, regardless of which company publishes them. If Media Publications is ultimately awarded the contract in this case, Media Publications will not share in the money to be received by PTG- Florida, Inc., pursuant to PTG-Florida, Inc.'s, agreement with the Authority. When the Authority informally and verbally initiated its search for a program publisher, one of the first companies it contacted was Southern Playbil1. Within a month of initiating the search, the Authority had discussed the matter with representatives of Southern Playbil1. Those discussions culminated in early proposals by Southern Playbill and Sun Controlled Ventures, Inc., to publish programs for the Authority, and in a later proposal by Media Publications. When the Authority initiated its search for a publisher of the theater programs, it had expected that a contract would be signed for the theater's introductory show, Phantom of the Opera, within the very near future. Unfortunately, negotiations for Phantom of the Opera were long and protracted, and for a brief period of time it was even doubtful whether a contract for Phantom of the Opera would be signed. Due to the long period of time that had elapsed and due to the Authority's desire to have all potential proposals based on uniform standards, by separate identical letters dated August 20, 1990, the Authority rejected all pending proposals and requested new proposals. The letters of g5 20, 1990, did not contain any mention of the Authority's Notice And Protest Procedures, nor did they contain any mention of any right to protest or otherwise seek relief from the decision to seek new proposals. The letter of August 20, 1990, established a deadline of 5:00 p.m. on August 29, 1990, for submission of new proposals. The sole guidance as to what should be contained in the new proposals consisted of the following language in the letters of August 20, 1990: In your proposal please address the following: Editorial content Advertising Design Printing time frames and deadlines Physical plan location Advertising team location Corporate profile Financial statement Proposed revenues to the Center Please address how you will handle the following: Phantom of the Opera requires a flat guarantee for 96 performances February 26 through May 18, 1991, 260,000 in attendance. Intimate Theater Commemorative Program Southern Playbill did not file a notice of protest, a formal protest, or request for hearing concerning the rejection of all proposals by the August 20, 1990 letters. Instead, Southern Playbill, along with Media Publications and Sun Controlled Ventures, Inc., submitted new proposals. On September 26, 1990, the Authority sent a letter to all three of the companies that had submitted new proposals. The letter of September 26, 1990, advised all three of the prospective publishers as follows: We have had an opportunity to review the program book proposals submitted by each of your firms. After review by staff and legal counsel, it has become apparent that our request for proposals, dated August 20, 1990, caused confusion as to what information we were seeking. As a result of this confusion, each of the proposals received was non- responsive in some respect. Specific areas of concern include information in connection with the Intimate Theater, information regarding a commemorative program, the financial statements and the guaranty for Phantom of the Opera. In view of the fact that each of the proposals received was non-responsive in some respect, we have elected to reject all proposals and seek new proposals for the publication of program books for the Broward Center for the Performing Art'. Let me clarify by indicating that we are seeking proposals for publication of a program book for Phantom of the Opera in the center's Au- Rene Theater for ninety-six (96) performances from February 26, 1991 through May 18, 1991, with a projected attendance of 260,000. Additionally, we are seeking a proposal with regard to all productions in the Center's Intimate Theater from February 8, 1991 through May 26, 1991. Finally, we are requesting a proposal with regard to publication of a commemorative program specifically for the Gala Opening of the Center. In essence, there are the (3) types of programs: The Phantom of the Opera program, the programs for productions in the Intimate Theater and the commemorative program. In connection with each type of program, we are requesting that you address the following: editorial content, advertising, design, printing time frames and deadliies, physical plant location, advertising team location, and proposed gross revenues to the Center. Generally, we request that you provide us with a corporate profile and your corporation's (as opposed to a parent corporation's) financial statement for your most recent fiscal year. We would appreciate your submitting your proposals by October 6, 1990. The Performing Arts Center Authority reserves the right to reject any and all proposals. We apologize for any confusion created by our prior request for proposals and pledge careful consideration of all new proposals received. All three of the proposals submitted in response to the August 20, 1990, letter inviting new proposals failed to one extent or another to be fully responsive to thee Authority's concerns. This failure was in large part due to the somewhat vague and ambiguous wording of the Authority's August 20, 1990, letter and to the failure of the Authority to provide the prospective publishers with information necessary for a full response. In its response to the August 20, 1990, letter, Southern Playbill offered a guaranteed amount of $80,000, Sun Controlled Ventures, Inc., offered a guaranteed amount of $so,ooo, and Media Publications offered a guaranteed amount of $36,500. Southern Playbill became annoyed by the September 26, 1990, rejection of all proposals and on October 1, 1990, wrote a long letter summarizing the history of its participation in the process and complaining about the manner in which the Authority was handling the matter. The letter concluded with a suggestion that the Authority more fully advise all potential publishers as to what the Authority had in mind so that everyone could submit what would, hopefully, be a final proposa1. Southern Playbill's letter of October 1, 1990, did not purport to be a notice of protest, a formal protest, or a request for hearing concerning the September 26, 1990, rejection of all proposals. On October 3, 1990, Sun Controlled Ventures, Inc., sent a memorandum to the Authority in which it stated that it did not intend to submit another proposal regarding the programs for Phantom of the Opera. In response to Southern Playbill's request for additional information, on October 4 and 5, 1990, the Authority provided additional information to both Southern Playbill and Media Publications. Media Publications submitted a new proposal on October 10, 1990. That new proposal included more detailed information about the proposed intimate theater and commemorative programs, a detailed production timetable, and a letter from Media Publications' corporate parent guaranteeing performance should Media Publications default on its obligations. Acceptance of a corporate guarantee letter is an accepted practice when a corporation has not been in existence long enough to have its own financial statement. With the permission of the Authority's Executive Director, Southern Playbill submitted a new "base bid" via FAX on October 10; Southern Playbill was granted permission to file its supporting materials not later than close cf business (5:30) on October 11. On October 11, Southern Playbill filed the remainder of its proposal, which consisted of a copy of its previous proposal with a new page 13 included and sample program materials deleted. Staff determined that the proposals of both Southern Playbill and Media Publications were responsive. Although Authority staff opened Media Publicaticns' proposal prior to the deadline for submittal, ii was not publicly disclosed until Mr. Feldman asked to see it after the deadline had passed. Southern Playbill's proposal' were never opened before the deadline. Southern Playbill and Media Publications were informed that the Authority would have to vote to select the publisher and approve the contract award and would consider the matter at its October 23, 1990, meeting. At that meeting, both Southern Playbill and Media Publications mcde presentations to the Authority about their proposals for the theater programs. After those presentations, the Authority's Executive Director, William Farkas, made a presentation to the :Board regarding each proposa1. Mr. Farkas stated that both Southern Playbill and Media Publications were well qualified to produce the theater prograMs. However, based on the fact that Media Publications guaranteed the Authority $16,000 more than Southern Playbill on a net basis and appeared more enthusiastic than Southern Playbill, plus the fact that Media Publications' parent company was financially stronger than Southern Playbill, Mr. Farkas recommended that Media Publications be awarded the contract. The Authority awarded the contract to Media Publications by a 3-2 vote. The evidence supports the Authority's conclusions that Media Publications' parent company is financially stronger than Southern Playbil1. Media Publications submitted two years of audited financial statements for its parent and guarantor, Pace Management Corporation. Those financial statements showed that Pace Management was in sound financial condition and had in excess of $3 million in liquid assets. Southern Playbill submitted a compilation of its financial condition for one year, and refused the Authority's request that it provide additional financial information. The compilation revealed that Southern Playbill had only approximately $6,000 in liquid assets, that Southern Playbill had outstanding more than $600,000 in unsecured loans to Mr. Feldman and affiliated companies, that the collectibility of those loans was questionable, and that Southern Playbill had a negative cash flow, all of which raised questions about the continued viability of the enterprise. Southern Playbill's compila ion did not disclose a November 16, 1989, Final Judgment against it in the amount of $254,550.74, which information should be disclosed on a financial statement. Further, Southern Playbill never disclosed a July 9, 1990, Final Judgement against it in the amount of $256,000, nor did Southern Playbill disclose that it had granted a U.C.C. Security Interest in all of Southern Playbill's business on an ongoing basis, all accounts, and all the rest of its personal property and other assets to Graphic Productions Company pursuant to a Settlement Agreement which was incorporated into the Final Judgment. If Southern Playbill fails to pay the required $7,500 monthly payment required by the Judgment and Settlement Agreement, Southern Playbill's entire business may be in jeopardy, since the Security Agreement allows Graphic Productions to take possession of and sell Southern Playbill's business, or exercise such other remedies as are available under the Uniform Commercial Code. The Performing Arts Center Authority has adopted Notice And Protest Procedures for the disposition of disputes regarding proposed awards of contracts. Those procedures include the following relevant provisions: Notification. Bid Solicitation: The Authority shall provide notice of its decision or intended decision concerning a bid solicitation by: (1) advertising for bids, and (2) distribution of bidding documents by hand delivery or United States mai1. Contract Award: The nctice of a decision or intended decision ori contract award or bid rejection shall be given by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested to each bidder. Protest. Any person who is affected adversely by the Authority's decision or intended decision shall file with the Executive Director of the Authority a notice of protest in writing within 72 hours, excluding Saturday, Sunday and legal holidays, after receipt of the bidding documents or after the beginning of the posting period or other receipt of the notice of the Authority's decision or in.tended decision on contract award or bid rection if the protest is directed toward contract award or bid rejection. Thereafter a forinal written protest must be filed with tiie Executive Director within ten (10) days after the date the notice of protest was filed. The formal written protest shall state with specificity and particularity the facts add law upon which the protest is based. Failure to file a notice of protest or failure to file a formal written protest within the time prescribed in section 120.53(5), Florida Statutes, shall constitute a waiver of protest proceedings under Chapter 120, Florida Statutes. Any protest filed prior to posting of the bid tabulation or receipt of the notice of the agency decision or intended decision will be considered abandoned unless renewed within the time limit provided for protests. Authority Action. (a) ... (b) ... (c) ... If the protest is not sold by mutual agreement within said 7 days and if there is a disputed issue of material fact, the protest shall be referred to the Division of Administrative Hearings of tbe Department of Administration, State of Florida ("Division"), for proceedings under Section 120.57(1). (e) ... Southern Playbill filed a Notice of Protest pursuant to the Authority's Notice And Protest Procedures on October 24, 1990, and notified the Authority the following day that it intended its October 24 letter to be a Formal Protest within the meaning of the Authority's Procedures. On October 26, 1990, Media Publications noti:ied the Authority of its desire and intent to participate as a party in all proceedings to resolve Southern Playbill's protest. Southern Playbill subsequently served a Formal Protest on the Authority's law firm on Friday, November 2, 1990, and has taken the position that the October 24 letter was not a Formal Protest. Southern Playbill never filed its November 2, 1990, Formal Protest with the Authority's Executive Director, and the Executive Director never expressly authorized the Formal Protest to be filed late or to be filed at any place other than the Authority's offices. On Friday, November 2, 1990, the Authority's General Counsel advised legal counsel for Southern Playbill that he would accept service on behalf of the Authority's Executive Director of Southern Playbill's Formal Protest at the General Counsel's office in Miami, Florida. In accordance with such agreement, the document was hand delivered to the office of the Authority's General Counsel on November 2, 1990. The Authority's General Counsel thereafter delivered a copy to the Authority's Executive Director.
Recommendation Based on all of the foregoing, it is RECOMMENDED that the Performing Arts Center Authority issue a Final Order in this case to the following effect: Awarding the subject contract for printing programs to Media Publications, Inc., and Dismissing the Petition in this case. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of December 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-7O5OBID The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraph 1: Rejected as an oversimplification. More detailed findings have been made on this subject. Paragraph 2: Rejected as an over simplification and as not fully consistent with the greater weight of the evidence or with the stipulated facts. Paragraph 3: Accepted in substance, but with numerous additional clarifying details. Paragraphs 4 and 5: Accepted in substance. Paragraph 6: Rejected as irrelevant and immateria1. Paragraph 7: Rejected as contrary to the greater weight of the evidence. Paragraphs 8 and 9: Accepted in Paragraphs 10 and 11: Rejected as oversimplifications and as not fully consistent with the greater weight of the evidence. Paragraphs 12 and 13: Accepted in substance. Paragraph 14: First two sentences rejected as an over simplification. More detailed findings have been made on this subject. Last sentence is rejected as irrelevant. Paragraph 15: Accepted in substance, but with numerous additional clarifying details. Paragraph 16: Rejected as subordinate and unnecessary details and as argument. Paragraph 17: Rejected as argument. Paragraphs 18 and 19: Accepted in substance. Paragraph 20: Rejected as not fully supported by the evidence. Paragraphs 21 and 22: Accepted in substance. Findings submitted by Respondent: Paragraphs 1, 2, and 3: Accepted. Paragraph 4: Rejected as subordinate and unnecessary details. Paragraph 5: Accepted in substance with unnecessary details omitted. Paragraphs 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Accepted in substance with unnecessary details omitted. Paragraphs 12 and 13: Rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance with unnecessary details omitted. Paragraphs 15 and 16: Rejected as subordinate and unnecessary details and as irrelevant. Paragraph 17: Accepted. Paragraphs 18, 19, and 20: Accepted in substance with unnecessary details omitted. Paragraph 21: Rejected as irrelevant. Paragraph 22: Accepted. Paragraphs 23 and 24: Rejected as subordinate and unnecessary details. Paragraph 25: Accepted in substance. Paragraph 2 6: Accepted in substance with some subordinate and unnecessary details omitted. Paragraphs 27 and 28: Accepted in substance. Paragraph 29: First three sentences accepted in substance. Last sentence rejected as argument or conclusion of law. Paragraph 30: Accepted in substance. Paragraph 31: First two sentences accepted. Last sentence rejected as irrelevant. Paragraphs 32, 33, 34, 35, 36 37, and 38: Accepted in substance. Findings submitted by Intervenor: Paragraphs 1, 2, and 3: Accepted. Paragraph 4: Rejected as subordinate and unnecessary details. Paragraph 5: Accepted in substance with unnecessary details omitted. Paragraphs 6, 7, 8, 9, and 10: Accepted in substance. Paragraph 11: Accepted in substance with unnecessary details omitted. Paragraphs 12 and 13: Rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance with unnecessary details omitted. Paragraph 15: Rejected as subordinate and unnecessary details and as irrelevant. Paragraph 16: Accepted. Paragraphs: 17, 18, and 19: Accepted in substance with unnecessary details omitted. Paragraph 20: Rejected as irrelevant. Paragraph 21: Accepted. Paragraphs 22 and 23: Rejected as subordinate and unnecessary details. Paragraphs 24, 25, and 26: Accepted in substance. Paragraph 27: First three sentence accepted in substance. Last sentence rejected as argument or conclusion of law. Paragraphs 28 and 29: Accepted in substance. Paragraph 30: First two sentences accepted. Last sentence rejected as irrelevant. Paragraphs 31, 32, 33, 34, 35, and 36: Accepted in substance. COPIES FURNISHED: Dan Paul, Esquire Jorden Schulte & Burchette 701 Brickell Avenue, 24th Floor Miami, Florida 33131 Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell, P.A. Post Office Box 1900 Fort Lauderdale, Florida 33302 Paul R. Ezatoff, Esquire Katz, Kutter, Haigler, Alderman, Davis, Marks & Ruthledge, P.A. First Florida Bank Building 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 Mr. William Farkas Executive Director Performing Arts Center Authority 624 S.W. 2nd Street Fort Lauderdale, Florida 33312 Ms. Jane Podgurski General Manager Performing Arts Center Authority 624 S.W. 2nd Street Fort Lauderdale, Florida 33312
The Issue The issue is whether Respondent denied Petitioner access to a public accommodation on the basis of her disability in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on April 2, 2009, that reasonable cause exists to believe that Respondent denied Petitioner access to a public accommodation on the basis of her disability. Respondent requested a hearing, and the Department referred the matter to DOAH. Several facts are undisputed. Petitioner is a disabled female confined to a wheel chair. Mr. Chris Maganias is the owner and operator of the respondent company. The principal business of the company is the operation of a skating rink in Pinellas Park, Florida. Petitioner did not present a prima facie case of denial of access to a public accommodation. After the representative for Petitioner was placed under oath, the representative stated the issue that she was there to resolve, but testified to no substantive matters or other evidence. Her testimony lasted less than three minutes. There was no cross-examination. Petitioner did not testify. After excusing Petitioner's representative from her oath, the ALJ asked Petitioner if she wished to testify, and Petitioner stated that she did not want to testify. Petitioner's lone exhibit is a two-page affidavit that lists the allegations which make up the complaint against Respondent. However, the affidavit does not explain or supplement competent and substantial testimony, or other evidence, of the representative or Petitioner at the hearing. This is a de novo hearing and not an appellate review of a determination previously made by the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DOAH enter a final order no later than February 3, 2010, pursuant to Section 70-77(g)(13) of the Code, finding Respondent not guilty of the allegations in the complaint. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 31st day of December, 2009. COPIES FURNISHED: Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Melissa Cook c/o Eleanor Cook Johnson 15047 Georgey Boulevard Clearwater, Florida 33760 Peter Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Chris Maganias Astro Skate Pinellas Park, LLC 10001 66th Street North Pinellas Park, Florida 33782
Conclusions The complaint alleges, the Respondent admits and I find that it is a public employer within the meaning of Section 447.203(2) of the Act. The complaint alleges, the Respondent admits and I find that the Charging Party is now and has been at all times material herein, an employee organization within the meaning of Section 447.203(10) of the Act. The complaint alleges, the Respondent admits and I find that on or about December 2, 1976, the Public Employees Relations Commission issued a certification certifying the Charging Party as the exclusive bargaining representative for the public employees in the following unit: INCLUDED: Patrolmen, Patrolmen 1st class, Master Patrolmen, Evidence Technician, and Traffic Enforcement officer. EXCLUDED: All other employees of the Ocala Police Department including Sergeants who are shift commanders. The pleadings establish that during 1972, the Respondent, by and through its City Council, promulgated a City Ordinance (Chapter 13B of the Ocala Code) which regulates labor relations for its employees. Chapter 13B has remained in full force and effect and has never been approved by the Public Employees Relations Commission pursuant to Section 447.603, Florida Statutes (1975). Among other things, the ordinance provides that: "Solicitation for membership in a labor organization or the collection of dues therefor, or other internal affairs of a labor organization shall not be con- ducted by employees on working time, or on city premises. Labor organization literature, pamphlets, handbills and the like shall not be distributed in the work areas of the city premises at any time." (See Section 13B-8.) A summary review of the parties' joint exhibits demonstrate that Chapter 13B attempts to regulate nearly all aspects of a collective bargaining relationship. In PERC v. The City of Naples, 327 So.2d 41 (Fla. 2nd DCA 1976) the court determined that an entity may not assume jurisdiction of a public employee bargaining procedure until PERC has approved that procedure. In this case, no such approval has been granted by PERC as it is required pursuant to 447.603, Florida Statutes (1975). Further comparison of the provisions of Chapter 13B of the Ocala Code and Chapter 447, Florida Statutes, lends support to the conclusion that Respondent's employees' collective bargaining rights are not on a parity with those rights guaranteed them by Chapter 447, Florida Statutes. For example, 13B-1(c) of the ordinance defines "supervisor" and section 13B-1(b) defines "employee". Supervisors are excluded from the definition of employee and thereby from collective bargaining whereas Chapter 447 contains no definition of supervisor and the Commission consistently determines that supervisors are entitled to protections guaranteed by Chapter 447. See CWA and Hillsborough County Hospital and Welfare Board, case no. 8H- RC-752-0175, 2 FPER 46 (1976); Hillsborough County PBA and Florida State Lodge, FOP and City of Tampa, 2 FPER 72 (1976). Additional distinctions are found respecting the definition of confidential employees and the determination by despondent in its code of "bargainable" subjects. It was noted that Respondent does not consider itself required to negotiate with respect to wages, hours and terms and conditions of employment. See the May Department Stores Co., 191 NLRB 928 (1972). While Chapter 447 vests all authority respecting appropriate unit placement of employees with PERC, Chapter 13B-2(b)(1) authorized Respondent's City Manager to make such determinations. A further examination of Chapter 13B of the Ocala Code reveals that it makes a striking distinction between the authority guaranteed employees respecting the proper bounds for solicitation-distribution rules. Chapter 447.509, Florida Statutes, provides in pertinent part that during an employee's lunch hour, an employer may not restrict solicitation and distribution whereas Chapter 13B of the Respondent's Code restricts solicitation and distribution during working time and on the premises of the City, making no exception or distinction for lunch breaks and therefore Respondent's maintenance of such provisions amounts to unlawful interference, restraint and coercion within the meaning of Section 447.501(1)(a), Florida Statutes. Although the Respondent defends in part on the fact that no employee had been disciplined for violating the above referenced rules, legions of cases have held that the maintenance, without enforcement of an overly broad solicitation-distribution rule constitutes an unfair labor practice. (See for example Essex International, Inc., 211 NLRB 934, 86 LRRM 1411; Dreis and Krump Manufacturing, Inc., 221 NLRB 309, 90 LRRM 1647 (1975).
Recommendation Having found that the Respondent has violated the Act as stated above, I shall therefore recommend that it be ordered to: A. Post at its facilities, in conspicuous places, including all places where notices to employees are usually posted, on forms to be provided by the Commission, a notice substantially providing: that it will not in any like or related manner interfere with, restrain, or coerce its employees in the exercise of any of the rights guaranteed them under the Florida Public Employees Relations Act; that it will upon request of the above-named employee organization, rescind the applicability of Chapter 13B of the Ocala Code as it relates to the regulation of organizational rights of employees, without having been first approved by the Commission. RECOMMENDED this 30th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Seymour H. Rowland, Jr., Esquire 105 Legal Center 19 N.W. Pine Avenue Ocala, Florida 32670 Jane Rigler, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 Donald D. Slesnick, II, Esquire 2540 N.W. 29th Avenue Miami, Florida 33142
