The Issue Whether Respondent, MThree Corporate Consulting, LTD (“MThree”), subjected Petitioner, Sidara Chau, to unlawful employment practices on the basis of her race or her sex in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are made based on the exhibits admitted into evidence and the testimony presented at the final hearing: Ms. Chau, an Asian (Cambodian) woman, was at all times material to this matter employed by MThree. Petitioner alleges that Respondent discriminated against her on the basis of her race and sex. FCHR determined there was no reasonable cause to find Respondent discriminated against Petitioner. Dissatisfied with FCHR’s findings, Petitioner filed her Petition for Relief from Unlawful Employment Practices and Request for Administrative Hearing requesting this hearing. MThree is an international corporation that provides consulting services to assist clients with technology projects. An arm of MThree’s business includes the Alumni Associate program, which hires recent college graduates, provides training, and places the program associates with clients with the goal of the client hiring MThree’s program associates as permanent employees of the client. Given that MThree is an international corporation, and given the number of known employees, MThree is an employer. See § 760.02(7), Fla. Stat. By letter dated August 31, 2017, MThree hired Ms. Chau as an Alumni Associate for production support with the expectation that she would be assigned to work onsite with one of MThree’s clients. Ms. Chau’s job responsibilities included assisting customers with instruments and client data quality checks. Based on the offer letter, Ms. Chau would be paid an annual salary with periodic increases subject to successful performance reviews after every six month of being onsite, through the end of the agreement. After training, Ms. Chau earned $42,000 per year. She anticipated receiving an increase to $45,000 after her six month review. Throughout her employment with MThree, Ms. Chau’s supervisor was Emily Keefe. As an Alumni Associate, Ms. Chau was required to complete training for approximately four weeks before beginning work onsite at the client’s business location. The training class included 18 other new employees. The trainers for the training class, Keith Dauris (general trainer for Jacksonville production class) and David Hodgins (primary trainer for the production class), expressed concerns about perceived deficiencies in Ms. Chau’s performance during the training. Specifically, Mr. Dauris conducted an assessment of the performance of each trainee based on categories described as follows: Very Good: No issues at all. Will hit the ground running; Good: No major concerns. Should settle in well on site; Behind on the learning curve: Still need work. Will take time to settle in on site and will need support; and Major concerns: Serious concerns as to their ability to hold down the job. Mr. Darius placed Ms. Chau in the category of “major concerns” and further commented, “Really does not understand coding at all. General problem skills is [sic] lacking. Serious concerns about her ability to perform on site.” Mr. Dauris shared his assessment with Mr. Hodgins who then communicated his concerns with Ms. Keefe. Similar to Mr. Dauris, Mr. Hodgins was concerned about Ms. Chau’s struggle with technical content, and asked whether she could benefit from additional training. Despite the concerns about Ms. Chau’s performance, she was assigned to work at Deutsche Bank. In October 2017, Ms. Chau began working at Deutsche Bank as a production support analyst. Ms. Chau’s supervisor at Deutsche Bank was Ranjith S. Nair, a line manager and permanent employee of Deutsche Bank. At all times material to this matter, Mr. Nair was not employed by MThree. Ms. Chau testified that Mr. Nair treated her unfairly by refusing to help her on projects and refusing to train her. Instead, he helped other employees namely, Boubacar Barry. Ms. Chau stated that when she expressed interest in disaster recovery projects, Mr. Nair refused to give her the opportunity to complete the training. She also claimed that he did not train her on other work tasks. While Ms. Chau did not believe the training Mr. Nair provided at Deutsche Bank was sufficient, there is no evidence in the record that she asked for training through MThree until after her performance review. Ms. Chau also testified about two incidents where her work performance was impacted by Mr. Nair’s mistakes. The first incident was related to an assignment request, which required Mr. Nair’s approval to complete. Mr. Nair delayed the necessary approval, which caused the work she performed to be cancelled. The second incident involved Mr. Nair yelling at her when she was asked to enter a particular command on a website and the website failed. Ms. Chau testified that Mr. Nair claimed she was responsible but he gave her the incorrect website. Mr. Nair did not testify at the hearing and there was no evidence offered at the hearing to corroborate Ms. Chau’s assertions. Ms. Chau testified that she never received complaints about her work performance while she worked at Deutsche Bank. However, Mr. Nair’s review reflects he had concerns with her performance. On or about April 18, 2018, Mr. Nair completed a six month performance review for Ms. Chau. The review assessed her performance in several areas, including: 1) application of skills in core role; 2) behavior at work and collaboration; 3) objectives; 4) meeting objectives; and 5) rating. The overall performance rating scale was as follows: Rating 5 All objectives fully achieved and most have been exceeded throughout the year and Outstanding levels of the required [behaviors] are always demonstrated across the majority of job competencies Rating 4 All objectives fully achieved and some have been exceeded throughout the year and All required [behaviors] have been demonstrated and consistently exceeded Rating 3 Fully achieved key objectives throughout the year and All required [behaviors] have been demonstrated Rating 2 One or more key objectives not achieved and/or Further development required for current role and/or behavior compares les [favorably] relative to expectations Rating 1 Performance unacceptable and/or Objectives not achieved and/or [behavior] levels not achieved A second rating scale used by line managers focused on potential for improvement, which provided as follows: A-Very high potential Capable of thinking of the “bigger picture,” is a good problem solver and very self-motivated B-High potential Performs very well in current role with potential to do more if given stretch assignments to help prepare for the next level C-Medium potential More focus on “tactical” thinking than “strategic” thinking but coaching and/or mentoring would help broaden that focus D-Low potential A valuable asset but requires encouragement to develop further in a number of areas Effective performer, but without coaching on how to become more innovative, achieve more lateral thinking etc. they may have reached their career potential C-Very low potential[1] No evidence that potential would improve even with extensive coaching or mentoring Consider reassignment or exit from the organization The review format permitted the associate to review him or herself, and then the manager would provide a final review. Petitioner provided favorable comments on her own behalf regarding her work performance in all categories. Ms. Chau’s evaluation of her performance was a clear contrast from Mr. Nair’s evaluation. In the evaluation, Mr. Nair identified a number of issues with Ms. Chau’s work performance. He commented that Ms. Chau needed improvement with the quality of her work, adhering to deadlines, and improvement of organization and communication skills. Mr. Nair reported 1 The rating range designated for managers only included to rating designated as “C.” However, a reasonable inference can be made that the second “C’ was due to a typographical area and was intended to be an “E” rating. that Ms. Chau needed to improve commitment to completion of assigned tasks. He also noted that Ms. Chau needed to be able to operate independently and proactively contribute to team tasks. The objectives set for Ms. Chau were also an area where Mr. Nair believed Ms. Chau could improve. Specifically, he stated that “Objectives/ Targets required by role is [sic] not met. Expect improvements in all areas noted in earlier sections.” Overall, Mr. Nair assigned a 2 out of 5 performance rating and “D” potential rating. In addition to the ratings, he commented that Ms. Chau’s performance was below the standard expected at the bank. He recommended that Ms. Chau improve her technical and organizational skills and engage in effective dialogue with stakeholders. Despite the low performance review, Mr. Nair was willing to give Ms. Chau additional time to improve her performance. After the evaluation, Mr. Nair discussed his concerns with Ms. Keefe who communicated the results to the MThree leadership team. Ms. Nair discussed the review with Ms. Chau. A few days later Ms. Chau emailed Ms. Keefe with concerns about her review and complaints that Mr. Nair treated her unfairly related to “something else personal.” Ms. Chau later withdrew her request for Ms. Keefe to escalate her complaint because she had spoken with Mr. Nair about areas for improvement. By June 2018, Deutsche Bank was prepared to progress toward terminating Ms. Chau from her assignment at Deutsche Bank due to low performance. Patti Burge, Director of Safety and Soundness at Deutsche Bank, and Ms. Keefe agreed Ms. Chau’s last day at Deutsche Bank would be July 27, 2018. Although Ms. Chau’s last day working onsite was July 27, 2018, she received payment from MThree through August 31, 2018. Ms. Keefe could not find a suitable different job site at which she could place Ms. Chau, and, thus, she was terminated from her employment with MThree as well. Ms. Chau offered Mr. Barry, an African man, as a comparator in this case. She believed Mr. Barry was similarly-situated and treated more favorably than her. He was trained on different projects and received help when needed. She asserted that he also received a six month raise for the same job. However, during training, Mr. Barry was placed in the “good” category and was assigned a 4 out of 5 rating for his work performance. Finally, Ms. Chau testified Mr. Barry was permitted to work from home, which Ms. Chau believed was favorable treatment. However, Ms. Chau by her own admission was also permitted to work from home. While not offered as a comparator, another associate, S.W., an African- American man, also scored 2 out of 5 for his six month review and was terminated on the same day as Ms. Chau. It is clear Petitioner believed she was treated unfairly by Respondent and by Mr. Nair in particular. However, Petitioner identified no instance of racially-disparaging direct comments or behavior directed toward her. There was also no evidence of disparaging comments related to her sex. In fact, Ms. Chau wrote in her email that her supervisor, Ms. Keefe, was like a sister to her. Although Respondent terminated another person at the same time as Ms. Chau, there was no evidence of a pattern of conduct, or inference of racial discrimination directed toward Asian women. Further, there was no evidence to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race or sex. Rather, the decision was based on dissatisfaction with Petitioner’s job performance while assigned to work at Deutsche Bank. There was also no evidence to prove that a person of a different race or sex than Petitioner, who was otherwise similarly-situated to Petitioner, was treated more favorably than Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S Yolonda Y. Green Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Sidara Chau 705 Pennsylvania Avenue Winchester, Virginia 22601 (eServed) Ian M. Jones, Esquire Smith, Gambrell & Russell, LLP 50 North Laura Street, Suite 2600 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of employment discrimination by reason of his being terminated, allegedly on account of his physical disability.
Findings Of Fact The Petitioner is an "employee" as defined in Chapter 760, Florida Statutes, and the Respondent meets the statutory definition of "employer" appearing in that Chapter. The Petitioner is a truck driver by occupation and was employed by the Respondent, Gurley Refining Company, in that capacity from February, 1982 until February 11, 1988, with the exception of a very brief period of time when he performed some other duties for that firm. This cause arose under the auspices of the Florida Human Relations Commission, an agency of the State of Florida constituted in Chapter 760, Florida Statutes. It is charged by that Chapter with oversight of working conditions and circumstances between employers and employees in Florida to the extent that the agency, under the mandate of Chapter 760, provides a procedure whereby employee claims of employment discrimination on account of race, age, sex, religion, national origin or disability can be adjudicated in a due process hearing environment, including hearings before the Division of Administrative Hearings in the event such claims culminate in formal disputes. During the course of the Petitioner's employment with Gurley Refining Company, in addition to being employed as a truck driver (the vast majority of his duties with that company), the Petitioner also had significant experience as a warehouse employee, handling the company's inventory and freight. The Petitioner had an unblemished record as a truck driver for the Respondent company. He had no disciplinary altercations with his supervisors and his attendance record was characterized by very few absences, sick leave and little tardiness. In approximately early January of 1988, the Petitioner suffered an acute myocardial infarction (heart attack), which necessitated his absence from work for a period of approximately thirty days. His treating physician, a cardiologist, Dr. Story, of Orlando, released him approximately a month after his heart attack, but admonished him to engage in light duties, and restricting him against lifting weight in excess of seventy pounds. During the course of his illness, the operations manager of the Respondent's Lake County facility and Petitioner's supervisor, Mr. Kenny Hart, had assured the Petitioner that his job would be waiting for him as soon as he recovered from his illness. In fact, however, in early February, when the Petitioner was released by his doctor to return to his job, with the restrictions mentioned above, the Petitioner requested his former job back and was refused. Mr. Hart indicated to the Petitioner that he would not hire him back, and in fact terminated him due to his medical condition, as Mr. Hart explained it. The Petitioner's doctor had not restricted him from doing his same job or from working an eight hour day, but merely had restricted him against lifting more than seventy pounds at any one time. When Mr. Hart refused to put him back to work in his old job, the Petitioner requested to be assigned to duties in the company's warehouse or bottling plant. The company had an operation involving bottling of windshield washer detergent fluid. The Petitioner had had substantial experience in those operations, especially as a checker of merchandise and as a forklift operator in the company warehouse. His physical disability would not preclude him from performing those functions. Mr. Hart, and his superior, Mr. Helton of the company's office in Memphis, Tennessee, declined to place the Petitioner in such an employment position with the company. There have been a number of instances in which the company accommodated employees by placing them at work at various positions in the company operations during the period of time they were on medical restrictions by their doctors due to some disability or illness. The Petitioner described one case in particular involving an employee who had surgery for amputation of his leg and who was allowed to come back to work performing various minor jobs during his convalescence in order to allow him some gainful employment, later being restored to more meaningful permanent duties. The Petitioner was not thus accommodated, however. The Petitioner could have performed any of the types of duties mentioned above, involving the warehouse or the bottling plant or driving a truck once again, because all were within the scope of his years of experience with the company and his physical abilities, even as restricted by his doctor. The Petitioner was making $7.80 an hour when he was terminated and during the year after his termination from February 11, 1988 to approximately February 1, 1989, the Petitioner was not able to get regular employment. For a time after termination, he was receiving unemployment compensation and thereafter worked at casual labor jobs involving loading and unloading trucks for a trucking company. He also worked at laying sewer lines, doing manual labor. During the year after his termination, the Petitioner and his wife earned approximately $18,000. Four thousand dollars of that sum was from the wife's part-time employment. The Petitioner had grossed approximately $30,000 in the past full year he worked for the Respondent company, that is, 1987. In February, 1989, the Petitioner again obtained full-time employment in a truck driving position with another firm. He is again making approximately $30,000 gross salary per year. At the time Petitioner was off work from his job with the Respondent due to his heart condition, and at the time of his termination, no mention was made or information given him about any right to medical disability to leave. The Petitioner apparently missed approximately thirty days of work, and then was terminated under the above conditions and circumstances.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, and the candor and the demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered by the Human Relations Commission finding that an unlawful employment practice occurred by Respondent's discrimination against the Petitioner on account of his handicap, and that he be accorded all relief allowed under the above-cited authority, including back pay of $16,000 and related benefits in accordance with the requirements of Section 760.10(13), Florida Statutes. DONE and ENTERED this 16th of October, 1989, at Tallahassee, Florida. P MICHAEL RUFF Hearing Officer Division of Administrative Hearings, The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1989. COPIES FURNISHED: Mr. Allen Reynolds 2356 Oliver Avenue Leesburg, FL 32748 Mr. R. D. Helton Director of Operations Gurley Refining Company Post Office Box 626 Memphis, Tennessee 38101 Dana Baird, General Counsel Florida Commission on Human Relations Suite 240, Building F 325 John Knox Road Tallahassee, FL 32399-1570 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 =================================================================
The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue is whether Respondent unlawfully failed to obtain workers' compensation insurance coverage for five employees between May 1995 through April 1998 and, if so, what is the proper amount of the penalty.
Findings Of Fact Respondent has been a residential painting subcontractor in Florida for the past 12 years. From May 1995 through April 1998, Respondent provided no workers' compensation insurance coverage for any persons whom he hired to work as painters. Respondent has treated such persons as independent contractors, rather than employees. On April 29, 1998, one of Petitioner's investigators visited a residential job site in the Rotunda development in Englewood. He found two painters working inside a new home that was under construction. Interviewing Respondent, the investigator learned that Respondent was in charge of the painting crew and was supplying the painting labor and material for the house. Respondent stated that he was paid by another contractor, who was paid by the general contractor. Respondent admitted that he paid his crew on an hourly rate for the work that they performed each week. Respondent's testimony at the hearing that he paid his crew by the job, and not a specific hourly rate, is discredited. Dale Keaser, one of the two painters, testified. He has worked for Respondent since August 1996. At all times, Respondent paid Mr. Keaser $10 per hour. Respondent never paid Mr. Keaser by the job, and Mr. Keaser never incurred any expenses in connection with the work, except for occasional use of his truck, for which Respondent reimbursed him for gas. Respondent invariably supplied the materials necessary to do the work. Respondent directed Mr. Keaser what to do and when to do it, and Respondent inspected the work frequently. Mr. Keaser never had an exemption from workers' compensation coverage and never provided Respondent an affidavit attesting to his satisfaction of the criteria defining independent contractors. Respondent paid Mr. Keaser wages of $400 in 1996, $11,095 in 1997, and $3080 in 1998. The premium rate of the National Council on Compensation Insurance for each of these years was, respectively, 32.18 percent, 28.47 percent, and 28.92 percent. The resulting unpaid amount of workers' compensation premium is thus $4178.21. Petitioner has failed to prove by admissible evidence that the other persons working for Respondent were employees.
Recommendation It is RECOMMENDED that Petitioner enter a final order assessing Respondent a penalty of $8356.42, plus any lawful interest. DONE AND ENTERED this 4th day of December, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Patrick Jackey Bert's World of Color 365 South Oxford Drive Englewood, Florida 34223 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
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.
The Issue The issues are whether Respondent failed to obtain required workers' compensation insurance and, if so, the penalty that should be imposed.
Findings Of Fact Manuel Farinas owns Respondent, which has been in existence since 2001 or 2002. He is an officer of the company, as is his wife. Respondent provides construction services-- specifically, the installation of decorative tiles and stones in residences--as a subcontractor to residential contractors. Prior to forming Respondent, Mr. Farinas performed similar services, but he has never previously owned a corporation such as Respondent. On March 24, 2006, an investigator of Respondent visited a worksite at 6620 Holmberg Road in Coconut Creek. The investigator saw several contractors enter and exit the residence. Among them was Respondent and another man, who were installing stone at the residence. During the course of their work, they went back and forth from the residence to a work van marked with Respondent's name. The investigator approached the two men, who were Mr. Farinas and his assistant, Christopher Crespo. The investigator asked Mr. Farinas for proof of workers' compensation coverage, but he was unable to provide it because Respondent had not obtained any workers' compensation insurance. Clearly, Mr. Farinas was an employee of Respondent. For purposes of withholding taxes and paying Social Security, Respondent treated Mr. Farinas's assistants as independent contractors, issuing them Form 1099s at the end of the year. However, they were clearly involved in the construction industry, although the evidence fails to establish that they were not independent contractors, for the purpose of workers' compensation coverage, prior to 2004. By Amended Order of Penalty Assessment dated April 12, 2006, Petitioner noted that it had issued a stop-work order to Respondent on March 24, 2006, determined that Respondent had failed to obtain workers' compensation insurance, and assessed a penalty of $13,835.37. Attached to the Amended Order is a worksheet that lists a dozen payees on which Petitioner relies in calculating the total penalty. Mr. Farinas candidly testified that the following payees were, from time to time, assistants who helped him install decorative stone and tile: Mr. Crespo, Jahmar Suarez, Michael Sanchez, Roberto Carvahal, Roberto Arquello, Guillermo Gonzalez, Mikel Gonzalez, and Yunier Nunez. The penalty attributeable to these persons totals $3172.10. Mr. Farinas is also a payee on the worksheet. The penalty attributeable to him totals $2554.72. The worksheet lists three other payees: Martineax Stone Service, for which the penalty is $5602.80; "subcontractors," for whom the penalty is $2482.62; and Ana Gonzalez, for whom the penalty is $23.13. However, Martineax was a supplier of stone and tile, not an employee or independent contractor, so Petitioner improperly used the payments to Martineax to calculate the penalty. Ms. Gonzalez was not a stoneworker, but an officeworker, so Petitioner used an excessively high rate to calculate the unpaid premium. "Subcontractors," though, is a legitimate inclusion because, during the January 1 to June 1 period covered by this category, no other listed payee received any payments from Respondent. After reducing the proposed penalty for the amounts of the penalty improperly attributed to Martineax and Ms. Gonzalez, the penalty is $8209.44. However, for the reasons set forth in the Conclusions of Law, Petitioner has failed to prove that the penalty should be based on any payments to independent contractors prior to 2004. Excluding from this adjustment two payments to Martineax (to avoid a double reduction), the portion of the penalty improperly attributed to these pre-2004 payments is $2676.50. The correct penalty is thus $5532.94.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of Financial Services enter a final order finding Respondent guilty of failing to obtain workers' compensation insurance, imposing a penalty of $5532.94 on Respondent, and maintaining the stop-work order until Respondent complies with all applicable workers' compensation laws. DONE AND ENTERED this 21st day of February, 2007, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Finacial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahssee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahssee, Florida 32399-0307 Colin M. Roopnarine Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael A. Shaffir Carlton Fields, P.A. 100 Southeast Second Street, Suite 4000 Miami, Florida 33131
The Issue The central issue in this case is whether the Respondent is indebted to the Petitioner for agricultural products and, if so, in what amount.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner, Oglesby Nursery, Inc., is a commercial nursery providing a variety of landscape agricultural products. The principal office for Petitioner is located at 3714 SW 52nd Avenues Hollywood, Florida. Respondent, Garden of Eden Landscape and Nursery, Inc., is an agricultural dealer with its office located at 3317 So. Dixie Highway, Delray Beach, Florida. Respondent, Garden of Eden, is subject to the licensing requirements of the Department of Agriculture and Consumer Services. As such, Garden of Eden is obligated to obtain and to post a surety bond to ensure that payment is made to producers for agricultural products purchased by the dealer. To meet this requirement, Garden of Eden delivered a certificate of deposit from Sun Bank of Palm Beach County to the Department. On or about August 22, 1986, Garden of Eden ordered and received delivery of $7673.40 worth of agricultural products from Petitioner. This purchase consisted of nine may pan coconuts and thirty green malayans trees. All of the trees were accepted and no issue was made as to their condition. On or about September 2, 1986, Garden of Eden ordered and received delivery of $1190.00 worth of agricultural products from Petitioner. This purchase consisted of seven coconut malayans dwarf trees. All of the trees were accepted and no issue was made as to their condition. The total amount of the agricultural products purchased by Garden of Eden from Petitioner was $8863.40. The total amount Garden of Eden paid on this account was $5000.00. The balance of indebtedness owed by Garden of Eden t o Petitioner for the purchases listed above is $3863.40. Petitioner claims it is due an additional sum of $247.77 representing interest on the unpaid account since the assessment of interest to an unpaid balance is standard practice in the industry and since Respondent took delivery of additional products knowing interest on past due accounts to be Petitioner's policy. No written agreement of acknowledgment executed by Garden of Eden was presented with regard to the interest claim.
Findings Of Fact The Respondent, K-Mart Corporation, d/b/a Waldenbooks, Store 1313 (Waldenbooks), hired the Petitioner, Timothy D. Wood, as a part-time bookseller trainee in April, 1985. Wood's initial pay was $3.35 an hour. Wood completed his training period in July or August, 1985, and became a part-time bookseller. Wood suffers from epilepsy. On five different occasions during 1985, Wood suffered various kinds of seizures while on the job at Waldenbooks. Waldenbooks' manager, Jane Burke, reacted kindly to Wood, allowing him to take as much time as he needed to rest before returning to his work. When Wood went back to work, usually a matter of minutes later, he was able to function normally. Burke did not downgrade Wood's performance evaluations on account of the seizures and did not report the seizures to Waldenbooks because she did not view then as affecting his performance. Burke appraised Wood's performance in accordance with Waldenbooks' personnel policies. Based on the overall "good" evaluation she gave Wood in September, 1985, Wood got a pay increase to $3.55. However, in "Loss Prevention" Wood was rated just "marginal." On November 4, 1985, Wood got a "Performance Discussion Record" for company policy violations involving improper processing of a credit card sale. On November 14, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper handling of a cash sale and the inadvertent offending of a customer by inappropriately asking if the customer was retired. This time Burke warned Wood: "Further violations of any of the loss prevention policies and cash handling procedures could result in possible termination." On November 24, 1985, Wood received another Performance Discussion Record for a company policy violation involving the improper destruction and disposal of valuable inventory (books) resulting in a monetary loss to the company. Through March, 1986, Wood was not evaluated and received no raises or performance discussion records. Burke erroneously believed that Wood was not due for a reevaluation during this time. Actually, Waldenbooks was expecting a reevaluation for the period September 1 to December 1, 1985, and December 1, 1985, to March 1, 1986. Burke was notified of her error by April 2, 1986. Meanwhile, on Sunday, March 23, 1986, a day Wood was scheduled to work, Wood had double grand mal seizures and, in the course of the seizures, severely bit his tongue. Wood was unable to talk, much less work. Wood's mother notified Burke by telephone and advised her also that Wood would be seeing his doctor the next day. The doctor advised Wood not to work for a few days. Wood followed the doctor's advice, and his mother again called to notify Burke. Wood returned to work on Thursday, March 27, 1986. Because Wood was a part-time employee who did not get sick leave, Burke had no need to and did not report on or explain Wood's absences to Waldenbooks. On April 2, 1986, Burke completed two belated performance appraisals on Wood. Both rated Wood "good" overall, and Burke recommended Wood for pay raises to $3.66 an hour effective December 1, 1985, and to $3.77 an hour effective March 1, 1986. However, in light of the three performance discussion records Wood got in November, 1985, the performance appraisal for the period from September 1 to December 1, 1985, again rated Wood "marginal" in Loss Prevention and noted that, during the appraisal period, Wood was "on probation for violation of Loss Prevention policies." Wood commented on the appraisal: "I totally agree about the concenous [sic] of this performance appraisal." The performance appraisal for the period from December 1, 1985, to March 1, 1986, noted improvement and rated Wood "good" in the area of Loss Prevention. On April 22, 1986, Burke's assistant manager called Burke at home to tell her that $200 worth of magazines to be returned to a distributor for credit were missing. 1/ Burke went to the store and called each of the three employees on duty, one of whom was Wood, individually to the office at the back of the store to ask them whether they had thrown the magazines away. The first two denied it. Burke then confronted Wood with the situation and asked Wood if he threw away the magazines. Wood answered, "yes, I believe I did." Burke sent Wood back up front to work and consulted with some of her superiors. A short time later, Burke again called Wood back and notified him that he was being terminated because he had caused the loss of magazine credit and had "repeatedly violated loss prevention policies [the November, 1985, performance discussion records] resulting in loss to the company [the loss of magazine credit]." Burke told Wood she was sorry she had to terminate him but that she had the support of her superiors. It was not proved that Burke and Waldenbooks discriminated against Wood or terminated him on the basis of his epilepsy. For unexplained reasons, Waldenbooks did not produce the "Loss Prevention Hotline" memo which Burke testified she sent to the company to report the $200 credit loss either before or at final hearing (although she testified that a copy probably was in her office at the local store.) Nor was it explained why Waldenbooks did not produce the "return list" which Burke testified was the source of her information that the $200 worth of magazines were missing. (Burke testified that she had not retained a copy of the "return list" but that a copy might be in Waldenbooks' headquarters.) These two documents would have helped to refute Wood's argument that the loss of valuable magazines was a fabrication and pretext for his termination, and Waldenbooks' failure to produce them or explain its failure to produce them raises suspicions. But, in the end, Wood's case turns on the comparative credibility and reliability of his (and, to some extent, his parents') testimony versus Burke's testimony. Based on careful consideration of the testimony and demeanor of all of the witnesses under questioning, Burke's testimony is found to be the more credible and reliable despite Waldenbooks' failure to produce, or explain the failure to produce, the "Loss Prevention Hotline" memo and the "return list." It is found that Wood did discard magazines that would have entitled Waldenbooks to a credit on their return and that Waldenbooks, through Burke, terminated Wood based on this and other company loss prevention policy violations.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Florida Commission On Human Relations enter a final order dismissing the Petition For Relief filed by Timothy D. Wood. RECOMMENDED this 29th day of June 1988 in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1988.
Findings Of Fact David F. Ramsey, Respondent, is a registered professional engineer holding registration No. 15307 and a registered land surveyor holding registration No. 2545 and at all times relevant hereto he was so registered. In April 1974 Respondent was President and qualifying professional engineer for Ramsey and Associates, Inc. , the engineering firm retained to prepare plans and specifications for a mobile home park known as Heritage Village. Approved financing for this project was near expiration date and the plans had not been approved by Indian River County officials. Before the plans for the sewage treatment plant and percolation pond associated therewith could he approved, a subsoil percolation test was required. On April 24, 1974, Respondent, in company with Larry Brown, General Manager of Brown Testing Laboratory, a wholly owned subsidiary of Ramsey and Associates, Inc., proceeded to the site of the Heritage Village project. There five test holes were dug to obtain subsoil conditions and prepare Subdivision Analysis Form (Exhibit l) for submission to Indian River County so the plans could be approved. No hole was dug deeper than 3.2 feet. Brown testified only a posthole digger was available for digging while Respondent recalled a hand auger also being available. Since Brown did the digging, his memory may be the better. During the procedure, Respondent took notes as the holes were excavated. Hardpan was found 2-1/2 to 3 feet below the surface, but the thickness of this hardpan was not ascertained. No water was put in the holes to ascertain the percolation rate for the subsoil. After the testing was completed, Respondent and Brown retired to the Holiday Inn for lunch where Respondent prepared page 4 of Exhibit 1, which is titled "Survey of Subsoil Conditions". Thereon for the 5 holes reported he included the percolation time for water in the test holes to drop one inch. These figures were estimated by Respondent based upon the type of soil observed in the holes. These figures were certified by Respondent to be representative of existing subsoil conditions at the time the test was made. It is this certification, which was submitted to Indian River County to get the plans approved, which forms the basis for the charge here under consideration. While Respondent was under investigation, and after being fully advised of his rights, he told an investigator that he had estimated the percolation rates because no water was available in the vicinity and submission of the subsoil report was urgent due to the financing deadline. In his defense, Respondent did not deny the percolation figures submitted on Exhibit 1 were estimates rather than the measurements they purported to be, but contended that the percolation rates and subsoil conditions shown on Exhibit 1 accurately represent conditions as they existed. Evidence to support this position was included in the tests conducted and reported in Exhibit 3. Standard procedure for taking percolation tests is to fill the hole with water and observe the time it takes the water level to drop three inches. It is also standard to dig a 6-foot deep hole. Here it was testified that hardpan prevented the hole depth from exceeding 3.2 feet. However, when a proper test was made shortly before the hearing, no difficulty was encountered getting to a depth of 6 feet using a hand auger. It is difficult to dig deeper than about 3 feet with a posthole digger.
