The Issue The issue in this case is whether Petitioner is entitled to payment from Respondent for sod that it sold.
Findings Of Fact Petitioner grows sod and sells it to persons who are in the business of installing sod. Respondent installs sod for its customers, such as homeowners, businesses, and schools. Both parties are experienced in the sod business, although Respondent has more experience than Petitioner with Floratam sod. Respondent is a large user of sod. Petitioner sold from 3-6 loads daily to Respondent from July to October, 1993. Until the loads in question, there were no problems, and Respondent paid for the sod. On October 5, 1993, Petitioner sold Respondent 18 pallets of Floratam sod. At the agreed-upon rate of 6 cents per square foot, the price of this sod was $432. The next day, Petitioner sold Respondent 36 pallets of Floratam Sod for $864. On October 11, Petitioner sold Respondent 34 pallets for $816. The next day, Petitioner sold Respondent 18 pallets for $432. And on October 14, Petitioner sold Respondent 18 pallets for $432. The total price of the Floratam sod sold to Respondent was thus $2976. For each sale, Petitioner cut the sod and loaded it on the truck of an independent contractor hired by Respondent to transport the sod to the customer's site for installation. For each load, the driver signed an invoice indicating the amount of sod and stating: Your signature acknowledges acceptance. Any claims must be made within 24 hours of delivery or pick up. A 1.5 percent (18 percent per annual) service charge will be added to all accounts 30 days past the invoice date. In the event it is necessary to turn the invoice over for collection or the same has to be collected upon demand of an attorney[,] purchaser agrees to pay all attorney's fees and costs for such collection. The sod was in below-average condition. Petitioner agreed to sell it, and Respondent agreed to buy it, in "as is" condition. The sole warranty attaching to the sod was that Respondent could assert a claim against Petitioner if the claim was asserted within 24 hours of pick up. Sod harvested in early October has undergone the stress of summer weather, in which heat and moisture can damage the grass and leave it in weakened condition. There was little sod left in the area, Respondent's demand for sod due to contractual commitments was great, and Respondent was left with few options but to try to use Petitioner's sod. The price paid by Respondent was somewhat reduced to reflect the below-average condition of the sod. Several factors militate against Respondent's claim that the sod was of such poor quality as to warrant cancellation of the invoiced amounts. First, Respondent did not timely assert a claim against the sod. Respondent did not assert a claim within the 24 hours set forth in the invoices. More important, Respondent ignored subsequent billings for the sod and did not complain about the sod until Petitioner's president spoke with Respondent's president and demanded payment. This conversation took place about 70-80 days after the sales. Other important factors undercutting Respondent's defense are the satisfaction of other purchasers of sod in the same time period and the questionable cultivation practices of some of Respondent's customers. Several persons bought Floratam sod from Petitioner in late September and early October. In most cases acknowledging that the sod was in below-average condition, these purchasers reported that they knew that the sod was purchased in "as is" condition and that, with appropriate irrigation and fertilizing, the sod was successfully established in the customers' property. The record suggests that the some of Respondent's customers, including a major institutional customer, may not have been as careful in maintaining the newly installed sod that was already in somewhat stressed condition.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order finding Respondent liable for the sum of $2976, plus interest at 18 percent annually, and, if Respondent does not pay said amount, ordering the surety to pay said amount, up to the amount of the bond. ENTERED on April 20, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1994. APPENDIX Rulings on Petitioner's Proposed Findings 1-8: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1-2: adopted or adopted in substance. 3-6: rejected as subordinate. 7-8: adopted or adopted in substance. 9: rejected as subordinate. 10-14: adopted or adopted in substance. 15: rejected as subordinate. 16-22: rejected as unsupported by the appropriate weight of the evidence. 23: rejected as unsupported by the appropriate weight of the evidence to the extent of implication that Respondent initiated the call to express his concerns about the sod quality. 24-26: rejected as subordinate. 27: rejected as recitation of evidence and subordinate. 28-30: rejected as subordinate. 31: [omitted from proposed recommended order]. 32: rejected as irrelevant given "as is" nature of subject transaction, as well as limitation of this remedy to sod against which timely claims are made. COPIES FURNISHED: Hon. Bob Crawford Commissioner of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Richard Tritschler, General Counsel Department of Agriculture The Capitol, PL-10 Tallahassee, FL 32399-0810 Brenda Hyatt, Chief Bureau of Licensing and Bond Department of Agriculture 508 Mayo Building Tallahassee, FL 32399-0800 Attorney Kristy C. Shaffer P.O. Drawer 1820 LaBelle, FL 33935 John Charles Coleman Coleman & Coleman 2300 McGregor Blvd. Ft. Myers, FL 33901 Ohio Casualty Insurance Co. Legal Department 136 North Third St. Hamilton, OH 45025
Findings Of Fact Union Trucking is a Florida corporation engaged in the business of trucking. Its net worth is less than $2,000,000.00 In DOAH Case NO. 87-4007, the Department sent Petitioner a letter dated August 6, 1987, denying Petitioner's request for certification as a minority business enterprise pursuant to the Department's Rule 14-78.005, Florida Administrative Code. The reason stated in the letter was that Petitioner was not actually under the control of a minority person. On August 25, 1987, Petitioner timely requested a hearing and the case was sent to the Division Of Administrative Hearings on September 11, 1987. By Notice of Hearing dated September 23, 1987, hearing was scheduled for November 16, 1987 and later continued until February 10, 1988. Rule 14-78.002, Florida Administrative Code, was amended on September 21, 1987. The amendment effectively removed DOT's reason-for denial of Petitioner's certification. However, on February 11, 1988, well after the rule change came into effect, DOT formally decided to certify Petitioner. Petitioner was therefore forced to proceed for several months in preparation for an action which Respondent admits it had no basis for after the rule change took effect. Respondent's initial decision occurred on August 6, 1987, when Respondent notified Petitioner of its denial of minority business status. At some point in time, Respondent had filed its proposed rule change. Petitioner failed to demonstrate the time of the proposed change. Depending on the facts surrounding the rule change as to its likelihood of adoption at the time Respondent initiated this action, no findings regarding substantial justification can be made at the time of the agency's initial action on August Most certainly after September 21, 1987, the date the MBE rule was amended, Respondent lacked any substantial justification to continue to litigate this matter. The Final Order of the Department recognized the earlier certification of Petitioner and dismissed the action. However, the Final Order of Respondent did not dispose of the attorney's fees issue which had also been raised during the principal action. The order, therefore, did not dispose of substantially all the issues raised in the principal action. Additionally, there was no settlement of this case since a written settlement agreement was drafted and signed by Petitioner, but refused by Respondent. Respondent's unilateral certification is not enough to force a settlement on Petitioner, especially since Respondent elected to enter a Final Order in this case. Petitioner, therefore, became a prevailing party when Respondent entered its Final Order on April 18, 1988. Section 57.111(4)(b)(2) , Florida Statutes. The application and affidavit which initiated this action were filed on May 23, 1988. The application substantially meets the requirements of Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code, in that it fairly put Respondent on notice of Petitioner's claim. The application and affidavit were timely, having been filed within 60 days after the date on which Petitioner became a prevailing small business party. According to the affidavit of Frank M. Gafford, Petitioner incurred legal fees of $3,572.86. These fees and costs are found to be reasonable. The Department does not dispute the reasonableness of the fees in this case.
The Issue Pursuant to section 760.10(7), Florida Statutes (2015), the issue is whether Respondent has unlawfully discriminated against Petitioner in employment for opposing unlawful employment discrimination.
Findings Of Fact Petitioner is black and originally from Trinidad. He appears to be at least 50 years of age. Petitioner failed to prove that he is a Seventh-Day Adventist, but this omission is immaterial for the reasons set forth below. At all material times, Respondent has employed Petitioner as a Heavy Equipment Operator. Several years ago, after, on three occasions, Respondent declined to promote Petitioner to Pipefitter Supervisor. Petitioner complained to Respondent and later to the Florida Department of Environmental Regulation that Respondent had hired for this position three persons who lacked a Water Distribution Level III license and instead improperly used Petitioner's license to satisfy a requirement of the agency for the employment of a person holding such a license. It may be inferred that Respondent did not welcome these complaints, regardless of their merits. Petitioner's proof as to his attempts to secure a position as a Pipefitter Supervisor is sketchy, but, regardless of any evidentiary shortcomings, it appears that, at the time, he opposed Respondent's actions, not as actions of unlawful employment discrimination, but as a violation of an agency rule and improper use of Petitioner's license. The sole potentially retaliatory act identified by Petitioner occurred, several years later, when, in April 2015, Respondent refused to sustain Petitioner's appeal of a reprimand that he received for causing $25 worth of damage to a third party's mailbox while operating heavy equipment within the scope of his duties as a Heavy Equipment Operator. However, the evidence fails to prove that the refusal to sustain the appeal was retaliatory. Petitioner did not deny that his operation of heavy equipment damaged the mailbox. Although $25 is a modest amount of damage, heavy equipment is inherently dangerous and its negligent operation may require punishment, even when the damage is slight, in order to deter future negligence that might result in more serious damage or loss of life. Petitioner unpersuasively links the denied appeal of the ensuing reprimand to his job-related complaints several years earlier. Even if Petitioner had established that these complaints constituted opposition to unlawful employment discrimination, which he did not, Petitioner cannot link the evidently reasonable punishment of a reprimand for negligent operation of heavy equipment, years later, to Respondent's decisions not to promote him to Pipefitter Supervisor. As it is, Petitioner proved only that he is a member of several protected classes; several years ago, he complained that Respondent hired unqualified persons as Pipefitter Supervisors and used Petitioner's license to satisfy a state agency's rule; several years later, while operating heavy equipment for Respondent, Petitioner damaged a mailbox; and, as a consequence, Respondent reprimanded Petitioner and denied his appeal of the reprimand.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on September 16, 2016. DONE AND ENTERED this 25th day of July, 2017, in Tallahassee, Leon County, Florida. S Robert E. Meale 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 25th day of July, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) William X. Candela, Esquire Dade County Attorney's Office 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128 (eServed) Selwyn Don Titus Apartment 601 14030 Biscayne Boulevard Miami, Florida 33181 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2016), by failing to secure the payment of workers' compensation coverage, as alleged in the Stop-work Order.1/
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent, M.C. Jennings Jr. Construction Corp., is an active Florida for-profit corporation with its principal office located at 3125 Mundy Street, Miami, Florida 33133. Miles Jennings, Jr., is Respondent's president and registered agent. Respondent admits that during the time period of January 8, 2014, to January 7, 2016, Respondent was a business engaged in the construction industry. The Investigation On January 6, 2016, the Department's compliance investigator, Humberto Rivero, conducted a compliance check at Respondent's business address in response to a public referral. Prior to visiting the business, Mr. Rivero checked the Division of Corporations' website to obtain the federal employee identification number and information on the corporate officers. After this, Mr. Rivero searched the Coverage and Compliance Automated System ("CCAS") to verify whether or not Respondent is covered with workers' compensation insurance and whether there is an exemption for the corporate officers. Mr. Rivero also searched the National Council on Compensation Insurance ("NCCI"). Mr. Rivero routinely checks for coverage before going out for a site visit in response to public referrals. Upon searching the NCCI database and the CCAS database, Mr. Rivero learned that Respondent had no workers' compensation coverage and so the referral appeared to be accurate. Mr. Rivero also determined there were no exemptions. Next, Mr. Rivero arrived at the business address for Respondent, went into a fenced yard, up the steps to a trailer, and identified himself and the reason he was there. Mr. Rivero described the office trailer as the type he goes into on construction projects. There was a desk, manuals, schedules, and drawings or blueprints on a rack. Mr. Rivero did not personally observe any construction activity at the site. Mr. Rivero spoke with Shawn Denise Welch-Perryman. Ms. Welch-Perryman indicated she did not have access to information on workers' compensation and could not get Mr. Jennings because he was in a meeting and could not to be disturbed. Ms. Welch-Perryman said Ms. Hallman, the property manager for Respondent, may be able to help. Mr. Rivero contacted Darlene Hallman by telephone. Ms. Hallman indicated she did not have access to information on workers' compensation. Ms. Hallman admitted she is an employee of Respondent and has been there for several years. Ms. Hallman said she gets paid by company check, but did not want to disclose how much. After this, Mr. Rivero interviewed Ms. Welch-Perryman, as he had with Ms. Hallman, and Ms. Welch-Perryman admitted to being an employee of Respondent. Ms. Welch-Perryman also gets paid by company check. Mr. Rivero was provided with the name Ed Fowler, Respondent's insurance agent. Mr. Rivero talked to Mr. Fowler to check on whether Respondent was covered. Mr. Fowler said the company did not have coverage, but it was working on it. This information was consistent with the searches Mr. Rivero performed prior to his visit at Respondent's business location. Mr. Rivero told Ms. Welch-Perryman to have Mr. Jennings call him by the end of that day, January 6th. Mr. Jennings did not call Mr. Rivero on the 6th. On January 7, 2016, Mr. Rivero spoke with Mr. Jennings by phone. During this conversation, Mr. Jennings confirmed that the two women were his employees and he did not have insurance, but was working on securing it. Mr. Jennings agreed to meet with Mr. Rivero at the office trailer at 1 p.m. When Mr. Rivero returned that afternoon, the site was locked with the fence closed by padlock. Mr. Rivero called Ms. Welch-Perryman and Ms. Hallman to see why the site was locked and left messages, but received no response. Mr. Rivero called his supervisor, Scarlet Aldana, to inform her of what he found. She advised Mr. Rivero to call Mr. Jennings and tell him of the consequences of not being there and not having insurance. Mr. Rivero called Mr. Jennings and left a message. After waiting about 15 minutes, Mr. Rivero called his supervisor again to explain the situation. Ms. Aldana authorized a Stop- work Order to be issued and posted in a prominent place. Mr. Rivero posted the Stop-work Order on Respondent's mailbox and photographed it. While at the business location, Mr. Rivero was with senior investigator Julio Cabrera. Mr. Rivero was directed by Mr. Cabrera to photograph a dump truck on site with a general contractor's number on it. According to Mr. Rivero, there were many more pieces of equipment, but he focused on photographing the posting of the Stop-work Order and the dump truck. According to the records of the Department of Business and Professional Regulation, an active general contractor license number belongs to Mr. Jennings and Respondent. On January 15, 2016, Mr. Jennings contacted Mr. Rivero to say he had come into compliance by purchasing coverage for nine employees. Mr. Rivero asked for the broker's name and phone number so he could verify coverage. Mr. Rivero spoke by phone with Stan Shelton at Madison Insurance Company. Mr. Shelton verified the company had coverage for nine employees, paid a down payment of $500, and the premium was $31,763. On January 19, 2016, Mr. Rivero met with Mr. Jennings and went over the business records request, informing Mr. Jennings that in order to calculate a penalty, the Department needed certain records. Mr. Jennings was informed of the ten business days he had to submit the records. Penalty Calculation Penalty Auditor Sarah Beal was assigned to calculate the penalty in this case. Ms. Beal did not receive any records from Respondent in response to the business records request. Without any records, Ms. Beal had to impute the gross payroll which is equal to two times the average weekly wage that was in effect when the Stop-work Order was issued. Ms. Beal determined the period of noncompliance to be the full two years of January 8, 2014, to January 7, 2016. Ms. Beal identified the employees on the penalty worksheet from the investigator's on- site observations and narrative. Based on Mr. Rivero's observations on January 6, 2016, and the information he had gathered, Ms. Beal initially used the classification code 8810 listed in the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). Classification codes are four-digit codes assigned to various occupations by the NCCI to assist in the calculation of workers' compensation insurance premiums. Classification code 8810 applies to clerical workers and Ms. Beal preliminarily used this code for Ms. Hallman, Ms. Welch-Perryman, and Mr. Jennings. Ms. Beal then utilized the corresponding approved manual rates for those class codes and the period of noncompliance to determine a penalty, which she submitted to her supervisor for review. Ms. Beal was subsequently directed to change the class code for Mr. Jennings to Scopes Code 5606, a construction class code for construction foreman/project manager. On April 8, 2016, based on Ms. Beal's re-calculation, using class code 5606 for Mr. Jennings, the Department issued an Amended Order of Penalty Assessment to Respondent. The Amended Order of Penalty Assessment assessed a penalty of $8,753.66.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order upholding the Stop-work Order and the Amended Order of Penalty Assessment and assess a penalty against Respondent in the amount of $8,753.66. DONE AND ENTERED this 27th day of June, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 27th day of June, 2016.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was discriminated against through an adverse employment decision by the Respondent, because of the Petitioner's age.
Findings Of Fact The Petitioner was hired by the Respondent on or about April 27, 1998, as a salesperson. When the Petitioner was hired he was 77 years of age. He is currently 84 years of age. Apparently the principal reason the Petitioner was hired was because of his substantial business contacts and principal client, which was Winn Dixie Stores, Inc. The Petitioner had sold food, principally seafood, to Winn Dixie for a substantial period of time. The Petitioner worked for a division of the Respondent known as the Great Fish Company. The Great Fish Company began operations in October of 1998. Mr. Carter, the president of Great Fish Company was the Petitioner's supervisor. During his employment with the Respondent, the Petitioner worked from his home. He sold seafood to customers, principally Winn Dixie, for which he was primarily paid on a commission basis. During his term of employment his compensation plan was periodically changed by the Respondent. Some of those changes financially benefited the Petitioner in some years and other changes served to reduce his commission or compensation. During the term of the Petitioner's employment with the Respondent, the Respondent also periodically changed the compensation plans of other employees of the Respondent; some of those changes involved reductions of their compensation plans and some involved increases. This depended upon the sales volume of those individual employees or the revenue situation of the company overall. In or about June of 2003, the Respondent changed the Petitioner's compensation plan. This change did not benefit the Petitioner but represented a reduction in compensation. This change to his compensation plan, however, was based upon legitimate business and financial reasons and was non- discriminatory, because it was based upon a down-turn in business, sales, and revenue for the company. Around the same period of time, the Petitioner advised the Respondent that he believed he was underpaid on earned commissions. Because of this the Respondent performed an audit of the Petitioner's commissions to determine if indeed he had been underpaid. The results of that audit did not establish that the Petitioner had been underpaid but rather that he had been overpaid by approximately $9,000.00 dollars. The audit results were provided to the Petitioner and the Petitioner disputed the results. The Petitioner never complained during his employment to any employees of the Respondent or supervisors suggesting that any employees or supervisors had discriminated against him or retaliated against him because of his age or because of his dispute concerning compensation, during his term of employment. There is no evidence that the Petitioner was singled-out or treated less favorably than other employees, including other employees of different ages, in terms of his compensation or other employment conditions. Indeed, there was no persuasive evidence presented at hearing that the Petitioner was treated less favorably in any way than other employees of the Respondent, regardless of their ages. There apparently came a time after June of 2003 and during 2004 when the Petitioner earned very little or no commissions from the Respondent. His employment was never actually terminated by the Respondent. The Petitioner rather either voluntarily quit his employment sometime prior to the final hearing or his sales opportunities dropped off so that, essentially, he was earning little or no compensation from the Respondent, while working out of his home in accordance with their arrangement. This down-turn in business apparently had a great deal to do with the severe financial circumstances his principal customer, Winn Dixie Stores, Inc., found itself in during this same period of time. In any event, the reduction in the Petitioner's commissions and compensation was not shown to be due to any effort or intent by the Respondent to single him out because of his age and reduce his compensation in some effort to force him to resign or retire. The reduction in his compensation was for the business reason of a decrease in revenues generated by the Petitioner himself or being experienced by the company as a whole, necessitating reduction of not only the Petitioner's but other employee's compensation, as a matter of a prudent business practice by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and argument of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of August, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Wyn Samuel 130 Willow Pond Lane Ponte Vedra Beach, Florida 32082 J. Scott Hudson, Esquire 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801 Robert J. Stovash, Esquire Stovash, Case and Tingley, P.A. SunTrust Center 200 South Orange Avenue, Suite 1220 Orlando, Florida 32801
The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
Findings Of Fact Petitioner was employed by Respondent from May, 1981 until January, 1985. On January 17, 1985, Petitioner arrived at work at approximately 7:00 A.M. and began preparation for her day's work. At approximately 7:30 A.M. her supervisor, James A. Spencer, called her into his office to inform her about complaints he had received concerning Petitioner. Spencer did not intend to, and in fact did not, discipline Petitioner, but simply wanted to counsel her about the complaints. Spencer informed Petitioner that other employees had complained about her discussing religion while on the job, and also her offensive body odor and personal hygiene. Spencer simply felt Petitioner should know about these complaints so she could take corrective action concerning personal hygiene and discontinue discussing religion with other employees while on the job. Petitioner asked Spencer to tell her which employees had complained about her. When Spencer refused, Petitioner became very upset, angry and loud, saying she could not continue to work while co-workers were talking about her like this. Spencer asked her to settle down, relax, go to the ladies' room to regain her composure, and then return to work. Instead of following Spencer's directions, Petitioner returned to her work station, gathered her personal items and left without punching out. She left because she was upset and did not ask for, or receive, permission to leave work. When Petitioner was employed she received a copy of Respondent's rules and regulations. Rule 8 is as follows: To leave the plant before the end of your shift, you must have the approval of your supervisor. In case of an emergency, be sure to notify your assistant production manager prior to leaving if you cannot locate your supervisor. Petitioner did not inform either her supervisor or assistant production manager when she left the plant on January 17, 1985. Approximately two or three hours after leaving her job, Petitioner returned to work. Petitioner was not allowed to resume her job because Respondent's policy is to treat employees who walk off their job in violation of Rule 8 as having quit. Further, Respondent's policies do not allow rehiring employees who quit without proper notice. Arthur Wallace, Vice President, testified about the policy which precludes rehiring of Petitioner, and it does appear that Respondent's written company policies expressly deal with the situation of rehiring former employees. Respondent's rule provides: Former employees who left the Company voluntarily or through no fault of their own may be considered for re-employment. This rule is applicable because although Petitioner left her job while extremely upset and without notice, she was not asked to leave by her supervisor. She was deemed to have quit her job due to actions which were her own fault. Spencer told her to go back to work after going to the ladies' room to regain her composure. To the contrary Petitioner left work on her own, without permission, and was therefore considered to have quit her job. Thus, the above cited company rule precludes her re-employment. Respondent has rehired other employees when those employees gave proper notice and voluntarily quit, but no evidence was produced to show other employees who had violated Rule 8 had been rehired by Respondent. Respondent's company rules also allow for immediate termination, without notice, for flagrant insubordination. Petitioner left her job without informing her supervisor, or seeking his permission. She disregarded directions and acted inappropriately while he was counseling with her by becoming loud, angry and upset. Her failure to inform Spencer that she was leaving gave him no opportunity to transfer someone else to her job for the day. Instead, she impaired the operations of the company since her work was not completed during her absence. Petitioner's actions in violation of Rule 8 therefore constituted flagrant insubordination for which termination would have been appropriate, had she not been deemed to have quit. Petitioner filed a charge of discrimination with the Equal Employement Opportunity Commission and the Florida Commission on Human Relations on February 7, 1985 alleging discrimination based on sex and religion. The case was deferred to the Clearwater Office of Community Relations on February 11, 1985, which thereafter conducted an investigation and attempted conciliation.
The Issue The issue to be determined in this proceeding is whether Respondents Wilson and Son Sales, Inc. (Wilson), and Ohio Casualty Insurance Company, as surety, are indebted to Petitioner for certain Florida-grown agricultural products.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is a producer of several vegetable crops in Hardee County. Wilson is a dealer in agricultural products. More specifically, Wilson operates an agricultural broker business in Plant City. Wilson’s surety is Ohio Casualty Insurance Company. Although Wilson has written contracts with some producers, Wilson does not have written contracts with all producers. In the absence of a contract, the terms of Wilson’s broker services are almost always the same; that is, Wilson gets a commission of 10 percent on the sale of the produce and $.35 per box for palletizing and pre-cooling the produce, in return for which Wilson makes a reasonable and good faith effort to sell Petitioner’s produce for the best price. Petitioner contacted Wilson in January 2007, about bringing flat beans to Wilson to sell. Wilson expressed interest and informed Petitioner about Wilson’s standards terms as described above. These terms were agreeable to Petitioner and he brought the beans to Wilson later that month. Although Petitioner and Wilson had no written contract, the parties’ mutual understanding of the terms of their agreement created an enforceable oral contract. Wilson sold Petitioner’s beans and no dispute arose from this first transaction. The parties’ subsequent transactions for other produce were undertaken pursuant to the same oral contract terms. Because Wilson works on a commission basis, it is generally in Wilson’s self-interest to sell growers’ produce for the best price. Petitioner contacted Robert Wilson, Wilson’s owner, by telephone in February 2007, and informed Wilson of his plans to grow wax beans and “hard squash.” It was not stated in the record whether all three varieties of hard squash later grown by Petitioner, butternut squash, acorn squash, and spaghetti squash, were discussed by Petitioner and Robert Wilson during their February 2007 telephone conversation. A major dispute in the case was whether the parties’ February discussion about hard squash created some obligation on the part of Wilson beyond the oral contract terms described above. Petitioner claims that Wilson encouraged him to plant the squash and that Petitioner would not have planted the squash otherwise. Petitioner never made clear, however, what additional obligation was created by Robert Wilson’s encouragement beyond the obligation to accept delivery of and make good faith efforts to sell Petitioner’s squash at the best price. Petitioner did not use the word “guarantee,” but his claim seems to be that Wilson became obligated to guarantee that the squash would be sold for a price close to the price published in the Columbia (South Carolina) Market Report, a periodic publication of produce prices. Such an obligation on the part of a broker is contrary to the general practice in the trade. Petitioner’s evidence was insufficient to prove more than that Robert Wilson thought he could sell Petitioner’s squash and had a genuine interest in acting as broker for Petitioner’s squash. The evidence was insufficient to prove the existence of a contractual guarantee that Wilson would obtain a certain price for Petitioner’s hard squash or do more than was promised with regard to the beans that Wilson had sold for Petitioner; that is, to try to sell the produce for the best price. When Petitioner’s wax beans were picked in late April, he brought them to Wilson to sell. No dispute arose regarding the sale of the wax beans. Petitioner brought squash to Wilson in five deliveries between May 12 and May 29, 2007. Petitioner said that on one of these deliveries, he had to leave the boxed squash in the parking lot of Wilson’s facility because there was so much cantaloupe that had been delivered ahead of him. Petitioner says he was told by a Wilson employee that the squash would not be put in the cooler. Petitioner thinks Wilson was more interested in moving the cantaloupe than the hard squash. Petitioner thinks his squash was not put in the cooler or was put in too late. Wilson denies that Petitioner’s squash was not put into the cooler or was put in late. Robert Wilson claims that he made many calls in an effort to sell Petitioner’s squash, but he could not find interested buyers for all of the squash because (1) the demand for hard squash dried up, (2) some of Petitioner’s squash was of low quality, and (3) the squash began to spoil. Petitioner denied these allegations. Petitioner received invoices and other paperwork from Wilson showing that Wilson sold Petitioner’s first delivery of 490 boxes of acorn squash for $10.18 per box. It sold Petitioner’s second delivery of 519 boxes of acorn squash for $2.08 per box. For Petitioner’s third delivery of 110 boxes of acorn squash and 240 boxes of spaghetti squash, Wilson “dumped” the acorn squash by giving it to away for free to the Society of St. Andrews food bank, and sold the spaghetti squash for $5.15 per box. Wilson sold petitioner’s fourth delivery of 279 boxes of butternut squash for $.55 per box.1 Competent substantial evidence in the record established that it is a regular occurrence for agricultural products awaiting sale to decay and become unsellable, and for the broker to dump the products in a landfill or give the products to a charitable organization and then provide the grower a receipt for tax deduction purposes. It was undisputed that Wilson did not notify Petitioner before disposing of his squash. Petitioner claims he should have been notified by Wilson if the squash was beginning to spoil. However, Petitioner did not prove that prior notification was a term of their oral contract. Petitioner claims further that the federal Perishable Agricultural Commodities Act required Wilson to notify Petitioner before dumping the squash and to have the squash inspected to determine whether, in fact, it was spoiled. As discussed in the Conclusions of Law below, this federal law is not applicable. Competent substantial evidence in the record established that the market for agricultural products fluctuates and, at times, can fluctuate rapidly. For hard squash, which is normally prepared in an oven, the market demand can drop dramatically due to the onset of warm weather simply because people tend not to cook hard squash dishes in warm weather. Petitioner’s squash was being marketed in May, which means the beginning of warm weather for most areas of the United States. This fact supports Wilson’s claim that the demand for hard squash had been good, but fell rapidly just at the time Wilson was trying to sell Petitioner’s squash. The problem with the claims made by Petitioner in this case is simply one of insufficient proof. It is not enough for Petitioner to offer theories about what he thinks happened or to raise questions which are not fully answered. Petitioner had no proof that his squash was not put in Wilson’s cooler, that his squash did not begin to decay, that the demand for hard squash did not fall rapidly, that Wilson did not make reasonable efforts to sell the squash, that Wilson had willing buyers for Petitioner’s squash at a better price, or that Wilson sold squash from other growers at a better price. Petitioner’s evidence for his claims consisted primarily of market price reports that he contends show the approximate price Wilson should have gotten for the hard squash. Market price reports have some relevance to the issues in this case, but competent evidence was presented that the prices quoted in the publications are not always reliable to indicate the price a grower can expect to get on any given day, because there are factors that cause the published market price to be an inflated price (and applicable to the highest grade of produce) and because the market price can change rapidly with a change in demand for the product. The oral contract between Petitioner and Wilson required Wilson to try to get the best price for Petitioner’s squash, not some particular price appearing in a particular market price report. Petitioner did not show that Wilson got a better price for hard squash of equal quality, or that other brokers in the area got a better price for hard squash of equal quality at the times relevant to this case. Petitioner’s evidence was insufficient to prove that Wilson did not make a reasonable and good faith effort to sell Petitioner’s squash at the best price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter a final order dismissing Petitioner’s amended claim. DONE AND ENTERED this 7th day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2008.
