The Issue The Petitioner has alleged, in essence, that he has been discriminated against because of his race by a racially hostile work environment during his employment with the Respondent and by direct discrimination by being denied employment advancement and by being given more and broader job duties, with no additional compensation, as compared to less experienced co- workers of other races. Specifically the Petitioner contends a racially hostile work environment caused his constructive termination; that he completed training books which should have advanced him to a higher position; and that less experienced white workers were advanced ahead of him.
Findings Of Fact The Petitioner Thomas Hall, was hired as a crew member by the Respondent Mex of Santa Rosa d/b/a as Taco Bell on March 9, 1996. He began working at a Taco Bell restaurant owned by the Respondent in Milton, Florida. The Petitioner maintains that while he worked at the Taco Bell restaurant he was subjected to racially negative comments concerning his relationship with a white woman, his fiancé, and regarding the fact that they were about to have a child together. He maintained that the racially derogatory comments were made by the General Manager, Dawn Young and the Assistant Manager Eileen McRae. Dawn Young is White. Eileen McRae is Black. The Petitioner maintains that the racially negative comments were so frequent, so hostile and hurtful that he suffered by being employed in a racially hostile environment because of these actions by his superiors in management. He maintains, in effect, that it caused his constructive discharge because he could no longer tolerate the racially derogatory comments concerning him, his fiancé and his family. The Petitioner left his employment after giving two weeks notice on May 29, 1996. Thus, he worked approximately two months and twenty days. The Petitioner maintains that he attempted to complete several employee workbooks and the tests on those workbooks, which were designed to help employees earn promotions. He maintains that he got no help completing the workbooks while White employees did get help from management in completing the workbooks. He maintains that White employees were promoted sooner than he or Black employees and within their 90-day probation period. He also contends he was given extra job duties which were beyond his job description and for which he was given no extra compensation. The Petitioner's child was born on June 2, 1996, immediately after his leaving employment. The Petitioner had given a two-week notice on May 29, 1996, but the General Manager, Dawn Young, told him that it would not be required that he work out the remainder of his two-week notice, so he quit on May 29, 1996. He left his employment after he had been to a job interview during his employment, on a day when he reported that he was sick as the reason for his absence from his employment. That interview resulted in his getting a job at the "convalescent center" at a higher rate of pay, which was his reason for leaving of his employment at Taco Bell. The Respondent had a consistent policy of requiring all employees to complete a 90-day probationary period when first hired. This policy was applied to all new employees regardless of race and no person of any race hired after the Petitioner was promoted or advanced ahead of the Petitioner. In fact, Josh Bond, the example that the Petitioner used in his testimony of a White employee, who had allegedly been promoted ahead of him and sooner than he was, did not actually get any promotion (to crew leader) until he had worked for the Respondent for one and one- half years. Josh Bond had to complete several training manuals and request a promotion, which he did not receive initially. Later, he was promoted to shift manager after he had worked for Taco Bell for almost four years. He was employed on January 2, 1996, and thus had worked at Taco Bell about two months before the Petitioner was employed. No employee ever got raises until after the 90-day probationary period elapsed and then an employee would get a standard raise, ten-cents per hour. Later it was fifteen-cents per hour. The Petitioner, Mr. Hall, worked on Josh Bond's shift but never told Bond of any problems involving racial discrimination or criticism of his inter-racial relationship. Mr. Bond established that an employee's promotion speed depended on his work habits and the quality of his performance including the completion of the training manuals or workbooks. Even so, no employee got a promotion merely by completing the training manuals and serving a 90-day probationary period. It depended on the employee's performance, as well as completing the training manuals. Mr. Bond also established that the part- owner of the store, Mr. Carpenter, was at the store one or two hours every day, that he was open to employees talking with him and employees were encouraged to bring their problems to him. Dawn Young worked for Taco Bell for four or five years. She is the daughter of Mr. Carpenter, part-owner of the Respondent corporation at times pertinent hereto. Dawn Young started working as a crew member, received training and did shift work at first. She became a general manager after working for Taco Bell for three years. Shalinda McRae, who is Black, was the Manager who trained Dawn Young as did Shalinda's sister Eileen McRae. When Dawn Young was made Manager of the Milton, Florida store, involved in this case, Eileen McRae was first offered the job as General Manager. She turned it down for family-related reasons. Shalinda McRae, was given the job of General Manager of the Taco Bell store in Pace, Florida, nearby. Dawn Young and Eileen McRae interviewed the Petitioner and decided to hire him when he first came to work. During his tenure, however, they had problems with his being absent from work and not wearing his uniform properly. The testimony of Dawn Young and Eileen McRae establishes that the Petitioner never completed his training manuals; nor did he complete the required 90-day probationary period. Rather, the Petitioner voluntarily left employment to take a job at the local convalescent center, which could pay him more money than the Respondent could. He never indicated to anyone in management nor to co-worker Bond that he had any racial or other issue upon which he disagreed with the Respondent's management. Neither Dawn Young or Eileen McRae ever heard the Petitioner make any racially-related complaints. The company and that store had a consistent racial and sexual harassment policy which requires that they conduct weekly meetings to discuss such matters and to advise employees of how to avoid them. Racial discrimination was not tolerated at any of the Taco Bell stores owned by the Respondent, including the one where the Petitioner worked. In fact, Mr. Carpenter once fired an employee summarily, on the first offense, for purportedly making a racially derogatory joke. Eileen McRae has worked for Taco Bell for 10 years, seven years as an Assistant Manager or Manager. The Petitioner worked on her shift. She and her sister Shalinda, now the Manager of another store, helped to train the Petitioner. Eileen McRae, like Dawn Young, never heard the Petitioner complain of any racial statements and never heard any racially derogatory comments made concerning who the Petitioner, or any other person, was in a personal relationship with. The Petitioner never complained to her or other supervisors of any racial issues in either a verbal or written complaint. She has never heard anyone, Dawn Young included, speak in a negative way concerning the Petitioner being involved with a woman of another race or any woman working for the company being involved with a man of another race, nor make disparaging comments concerning the race of any child of such a couple, including the child of the Petitioner. Eileen McRae established that all Black employees are treated with respect at the Taco Bell store and by the Respondent corporation. Ms. McRae knows of no instance concerning any staff member where an issue was raised or derogatory statements made concerning inter-racial dating, inter-racial marriage or people having children of mixed race, during the course of her employment for the Respondent corporation. Eileen McRae's daughter dates a person of another race herself and Eileen McRae testified that as far as she is concerned it is a matter of "to each his own." The testimony of both Josh Bond and Dave Carpenter, the part-owner of the store and the Respondent corporation, established that all employees are required to train in each phase of the employment at a Taco Bell store. This was what the Petitioner was doing during the course of his duties there. He was not merely given extra duties for which he was not compensated; all employees, of all races, have to learn to perform every job at the Taco Bell store, as part of their training preparatory to the possibility of being promoted. In fact, the 90-day probationary period was considered a 90-day training period in which new crew members would learn every job in the store. Dave Carpenter, the part-owner of the Respondent corporation and the ultimate supervisor of the subject Taco Bell store, is a retired Master Chief in the U.S. Navy. Much of his naval duties involved working in the personnel branch. He thus has extensive experience teaching training courses in race relations. Using this experience, he developed a policy, as a corporate officer of the Respondent, of tolerating no form of racial discrimination at any of the Respondent's stores. He and the corporation had frequent training sessions in racial relations, on almost a weekly basis. He has had no reports from employees, his managers, or through his own observation, of any problem involving racial discrimination or racially-related derogatory comments as alleged, or of any other nature, at the subject Taco Bell store during the Petitioner's tenure there or before or after. In summary, it is not found that any employees of any race were promoted who were less entitled to it than the Petitioner, in terms of tenure, training or performance. It is determined that the Petitioner was not required to do extra duties for which he was not compensated, since all employees were required to be trained and therefore work in all functions required of any employee at the Taco Bell store. It is also found that the Petitioner was not eligible for promotion because he had not finished his 90-day probationary period and did not finish the training manuals and testing required to be completed. Moreover, it is found that preponderant evidence has not been presented that the purported racially derogatory statements were made concerning the Petitioner his fiancé and their child, or concerning Lori Wilson, who testified for the Petitioner, about her inter-racial relationship and her mixed- race child (Wilson is White). Both the Petitioner and Wilson have litigation pending against the Respondent corporation and it is deemed that their testimony may be colored by that adversarial relationship. The witnesses and testimony presented by the Respondent (Eileen McRae, Dawn Young, Josh Bond and Jennifer Day in particular) are deemed more creditable.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner was employed as a line cook with Smitty's Restaurant of Sanibel from January 20, 1988 until approximately August 4, 1988. On or about August 1, 1988, Petitioner and the kitchen manager at the restaurant became embroiled in a verbal confrontation with regard to the time off Petitioner had recently taken. Petitioner had had a doctor's note to take two days off for rest in connection with treatment the Petitioner was receiving for back pain (the specific nature of Petitioner's malady was not disclosed at hearing nor made a part of this record). Apparently, the kitchen manager had had to cover Petitioner's work shift in his absence. In any event, Petitioner and the kitchen manager had unpleasant words and the Petitioner believed he had been fired. Consequently, he left the premises and did not return to work. Contrary to Petitioner's belief, and supported by the record in this cause, the kitchen manager did not have the authority to terminate the Petitioner's employment. When Petitioner chose to leave the premises on August 1, 1988, he did so contrary to the direct verbal instruction of the restaurant manager, Martin Howard, and the company policy regarding terminations. On at least two prior occasions, Respondent had allowed Petitioner to take time off for personal or medical reasons. Petitioner presented no evidence that the Respondent discriminated against him because of a handicap.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final determination of no cause in connection with Petitioner's discrimination claim. DONE AND ENTERED this 30th day of November, 1990, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1990. APPENDIX CASE NO. 90-3806 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 14 are accepted. COPIES FURNISHED: Stephen J. Iwaniszek 922 Countington Lane, Apt. J Fort Myers, Florida 33919 Douglas L. Waldorf, Jr. SMOOT ADAMS JOHNSON & GREEN, P.A. P.O. Box 06259 Fort Myers, Florida 33906-6259 Acting Executive Director Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Dana Baird General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner certified Respondent as a law enforcement officer and issued him certificate number 02-31445 on March 26, 1982. At all times material to this proceeding, the Virginia Gardens Police Department, Virginia Gardens, Florida, employed Respondent as a reserve or part- time police officer. During the ten years that he had been employed in that capacity, Respondent's certification had never been disciplined. Respondent also was part owner of the "Gun Doc", a gunsmith business in Dade County. On January 14, 1992, Respondent was working in his private capacity collecting weapons for repair and restoration from his customers. About 2:00 p.m., Respondent was enroute to his part-time business, traveling south on the Palmetto Expressway. He was driving his personal vehicle, a black convertible Mustang. The weather was clear, sunny, and dry. The Palmetto Expressway is a divided asphalt and concrete road which runs north and south with four (4) lanes in each direction in most places. On January 14, 1995, at approximately 2:00 p.m., Metro-Dade Police Department (MDPD) Sergeant John Petri was driving an unmarked undercover vehicle, a grey and white Chevolet Blazer, south on the Palmetto Expressway. Around the 102nd Street and the Palmetto Expressway intersection, the Respondent's vehicle approached Sergeant Petri from the rear at a high rate of speed that was substantially over the posted speed limit of 55 miles per hour. The traffic in the area was heavy at the time. Sergeant Petri braced himself for impact because he felt he would be hit by Respondent's vehicle. At the last moment, in a sudden move, Respondent's vehicle swerved around Sergeant Petri to the left. Sergeant Petri maintained visual contact with the Respondent's vehicle as it continued south on the Palmetto Expressway and through the intersection of South River Road. Respondent's vehicle was weaving in and out of traffic, cutting off cars, pulling behind others at a high rate of speed and slamming on his brakes. Respondent used the right shoulder of the road as a passing lane even though the traffic was flowing smoothly and there were no obstacles blocking the roadway. MDPD rules and regulations prohibit officers in unmarked cars from making traffic stops. Consequently, Sergeant Petri dispatched Respondent's vehicle tag number to the MDPD communication center and requested that a uniform unit or a trooper stop Respondent. Meanwhile, Respondent's vehicle came up behind Drug Enforcement Administration (DEA) Special Agent Pierre Charette at a high rate of speed. Special Agent Charette saw that Respondent's vehicle was being trailed by a Bronco/Blazer type vehicle. Special Agent Charette, driving an undercover DEA vehicle, thought he was going to be struck by the Respondent's vehicle but Respondent's vehicle suddenly swerved avoiding a collision. Next, Respondent's vehicle came over into Special Agent Charette's lane almost causing a collision with other cars. Respondent's vehicle and Sergeant Petri passed Special Agent Charette and continued southward on Palmetto Expressway. Around 74th Street, the traffic on Palmetto Expressway became more congested. At that point, Respondent's vehicle was in the right lane. A guardrail was to his right. Due to the approaching overpass, Respondent was forced to slow down. Sergeant Petri, driving in the right center lane, pulled up along the left side of the Respondent's vehicle. Both vehicles came to a rolling stop. The driver's window of Respondent's vehicle was down. Sergeant Petri put the passenger's window down on his undercover car. After showing his gold badge, Sergeant Petri identified himself as a police officer and told Respondent to slow down. Respondent made eye contact with Sergeant Petri but did not give a verbal response. Instead, Respondent made a gesture with his middle finger. Sergeant Petri did not get out of his vehicle. As Special Agent Charette drove past Respondent and Sergeant Petri, he noticed that the individual in a grey and white Chevolet Blazer was holding up what appeared to be law enforcement credentials. Believing that everything was under control, Special Agent Charette continued south on the Palmetto Expressway. When traffic in front of him began to move, Respondent began passing cars by pulling onto the right shoulder of the road. At one point, the rear end of Respondent's vehicle began to fishtail when he was on the grassy dirt area of the road's shoulder. Special Agent Charette noticed Respondent's vehicle approaching from the rear again. Respondent almost caused a collision with other cars when he cut in front of Special Agent Charette's vehicle. Between the 74th Street and 58th Street intersection, Special Agent Charette turned on his lights and siren and began to pursue Respondent. Respondent zigzagged in and out of traffic with Special Agent Charette following about two (2) car lengths behind. In response to Special Agent Charette's lights and siren, other cars moved out of the way. Respondent exited the Palmetto Expressway at the 58th Street intersection. He was aware that Special Agent Charette was behind him. Sergeant Petri lost visual contact with Respondent as he made the exit. Respondent headed west on 58th Street which is an asphalt and concrete roadway with a total of five (5) lanes; the center lane is a middle turning lane. Special Agent Charette followed Respondent at speeds of 50 to 80 miles per hour. Special Agent Charette and Sergeant Petri routinely use the 58th Street exit when traveling to their respective offices. Respondent zigzagged around traffic and ran a red traffic light at the intersection of 58th Street and 79th Avenue almost causing another accident. Special Agent Charette hesitated at that intersection to avoid colliding with other automobiles then followed Respondent at speeds of 45 to 50 miles per hour. Respondent turned south on 82nd Avenue and went into a warehouse area. He parked in the first space in front of his business, The Gun Doc. Special Agent Charette followed and blocked the entrance to The Gun Doc with his light and siren still activated. Respondent got out of his vehicle, looked at Special Agent Charette and started to go inside The Gun Doc. Special Agent Charette displayed his credentials and badge and identified himself verbally as a federal narcotics law enforcement agent. Special Agent Charette advised Respondent that Metro police were on the way. Respondent responded derogatorily and went into The Gun Doc. Special Agent Charette notified DEA dispatch of his exact location and need for backup from Metro police. He also requested a tag check on Respondent's vehicle. Meanwhile, DEA Special Agents Lewis Perry and John Fernandez were monitoring their DEA radio in close proximity to The Gun Doc. They asked Special Agent Charette whether he needed assistance and went to the scene in an unmarked government vehicle. When they arrived at the scene, the blue light on Special Agent Charette's dashboard was still on. After their arrival, Respondent came out of The Gun Doc and asked who they were. Special Agents Perry and Fernandez identified themselves as federal agents with DEA and at least one of them showed his credentials. Respondent again responded derogatorily and went back into his business. At approximately 2:00 p.m. on January 14, 1992, United States Marshal Lorenzo Menendez was traveling in his unmarked vehicle on the 836 Expressway heading toward the Palmetto area. He was returning to the High Intensity Drug Trafficking Area (HIDTA) office in the Koger Executive Center. Marshal Menendez had two (2) radios in his vehicle and was scanning the DEA and MDPD radio frequencies. He heard Sergeant Petri requesting help. Later the Marshal heard that the subject vehicle had exited Palmetto Expressway at 58th Street. He also heard Special Agent Charette asking for help and learned the address of The Gun Doc as the address of the vehicle's owner. Marshal Menendez responded to the calls for help. When he arrived at The Gun Doc, Special Agents Charette, Perry and Fernandez were already there waiting outside next to their cars. When Respondent came out of his shop and approached his vehicle, Marshal Menendez walked up to Respondent's vehicle. With his silver star badge hanging around his neck and his photo identification in his hand, Marshal Menendez verbally identified himself as a U.S. Marshal. Respondent told Marshal Menendez that he too was a police officer but refused to show his credentials. About the time that Marshal Menendez and Respondent began to converse, Sergeant Petri arrived at the scene. The MDPD dispatcher had given him the address of The Gun Doc as the address of the owner of the black convertible Mustang. Respondent objected when Marshal Menendez looked in Respondent's car. Without any threat or provocation, Respondent shoved Marshal Menendez by placing both hands on the Marshal's chest causing him to fall backwards. Marshal Menendez then advised Respondent that he was under arrest and attempted to handcuff him. Respondent reacted by refusing to obey the Marshal's commands and trying to break free. Special Agents Charette, Perry, and Fernandez assisted Marshal Menendez in subduing and handcuffing Respondent who resisted by kicking, jerking, and thrashing about. When the struggle was over, Respondent was handcuffed face down on the ground. Respondent again informed the officers that he was a policeman. One of the officers took Respondent's badge and identification from his rear pocket. Respondent's Chief of Police arrived at the scene and asked that Respondent be allowed to get up. At that time, Respondent was not bleeding. However, his face and neck was bruised in the struggle to subdue him. The federal agents intended to charge Respondent with assault on federal officers. However, an assistant United States Attorney deferred to state charges of reckless driving and battery. upon a police officer. Respondent testified that when he first encountered Sergeant Petri and Special Agent Charette on the Palmetto Expressway, they were traveling in a convoy with a third vehicle and driving recklessly. He claims he did not know they were law enforcement officers. Respondent asserts that he had to drive defensively to escape them because he feared they were attempting to hijack the weapons in his possession. Respondent's testimony in this regard is less persuasive than evidence indicating that Respondent was driving recklessly before he encountered Sergeant Petri and Special Agent Charette. After Sergeant Petri identified himself as a policeman and Special Agent Charette turned on his siren and blue light, Respondent endangered the lives of others in an attempt to avoid being stopped. Upon arrival at his place of business, Respondent called 911 seeking assistance from a uniform unit. He also called his Chief of Police to ask for advice. Respondent's brother, David Pruitt, was in the shop when these calls were made. After making these calls, Respondent testified that he was attempting to keep Marshal Menendez from entering his vehicle when Marshal Menendez suddenly lunged and grabbed Respondent by the throat. The criminal trial testimony of Respondent's brother and of another criminal trial witness, Maribel Aguirre, tend to corroborate Respondent's version of the facts leading up to the altercation with Marshal Menendez. However, the undersigned finds the testimony of Respondent, his brother and Ms. Aguirre less persuasive in this regard than the testimony of Marshal Menendez, Sergeant Petri, and Special Agents Perry and Fernandez, supported by the criminal trial testimony of Special Agent Charette. Clear and convincing record evidence indicates that Respondent was guilty of reckless driving and battery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, recommended that Petitioner enter a Final Order suspending Respondent's certification and the privilege of employment as a law enforcement officer for a period of two (2) years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of April 1994. SUZANNE F. HOOD, Hearing Officer 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 26th day of April 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact 1.- 3 Accepted in paragraphs 1-2. 4 - 6 Accepted in paragraphs 3-4. 7 - 16 Accepted in substance in paragraphs 5-8. 17 - 22 Accepted in substance in paragraphs 9-12. 23 - 32 Accepted in substance in paragraphs 14-17. 33 - 39 Accepted in substance in paragraphs 19-22. 40 - 48 Accepted in paragraphs 23-27. 49 - 61 Accepted in substance in paragraphs 28-32. 62 - 75 Accepted in substance in paragraphs 33-37. 76 - 87 Accepted in substance in paragraphs 38-40. 88 - 93 Accepted in substance in paragraphs 41-46. Respondent's Proposed Findings of Fact 1 - 4 Accepted as if incorporated in paragraphs 1-2. Accepted in part in paragraph 3. Reject last sentence as not supported by persuasive evidence. - 9 Rejected. No competent substantial persuasive evidence. Accept in part in paragraphs 26-27 but siren engaged before arrival at gun shop. - 12 Accept that Respondent made telephone calls in paragraph 44 but reject his reasons for doing so as not supported by competent substantial persuasive evidence. 13 - 15 Accepted in substance as modified in paragraphs 31-36. First and last sentence rejected as not supported by competent substantial persuasive evidence. The rest is accepted in substance as modified in paragraph 36. Rejected as not supported by competent substantial persuasive evidence. Accepted as modified in paragraph 39; the other officers did not "join the attack." Rejected as not supported by competent substantial persuasive evidence. Accepted in paragraphs 39-40. Rejected as not supported by competent substantial persuasive evidence. See paragraph 42 re: criminal charges. Balance rejected as not supported by competent substantial persuasive evidence. Accept that Ms. Aguirre's criminal trial testimony tends to support Respondent but reject this testimony as less persuasive than the contrary testimony of the law enforcement officers. COPIES FURNISHED: Karen D. Simmons Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. P. Walter, Jr., Esquire 235 Catalonia Avenue Coral Gables, Florida 33134 A. Leon Lowry, II, Director Div of Crim. Just. Stds. & Trng. P. O. Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel P. O. Box 1489 Tallahahssee, Florida 32302
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on May 18, 23, 24, and 31, 2018, as charged in the agency action letter dated June 25, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Baker as the utility service worker in the patch services division (“the patch crew”). Mr. Baker acknowledged on April 22, 2013, that a copy of the Manual was made available to him. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. Mr. Baker usually performed asphalt repairs or assisted other patch crew members with their tasks. The patch crew’s supervisor assigns work to the patch crew each day. If the crew completes all of its assigned tasks prior to 3:30 p.m., there is no policy or Manual provision allowing them to leave work early and count that as work time. Mr. Baker would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. Many ECUA vehicles carry global positioning devices (“GPS”) that transmit the vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA vehicle #1622 had such a device and was normally driven by Mr. Baker or Tadarel Page. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. In addition to monitoring the GPS reports from the vehicles, ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their work or lack thereof. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Findings Regarding the Allegations from May 18, 2018 The May 18, 2018, GPS report for vehicle #1622 records that the truck was parked at a local seafood restaurant on 610 South C Street from 11:43 a.m. until 1:17 p.m. Because the patch crew is only allotted a 30-minute lunch break, this extended stop at the local seafood restaurant would almost certainly amount to a violation of multiple Manual provisions unless weather conditions (such as heavy rain) made it infeasible to attempt asphalt repairs. Mr. Baker testified without contradiction that it was raining when the patch crew was at the seafood restaurant, and there was no evidence as to whether ECUA had a policy governing what the patch crew was to do when it was raining. With no evidence to contradict Mr. Baker’s testimony about the weather conditions or what the patch crew is capable of doing when it is raining, ECUA did not prove by a preponderance of the evidence that Mr. Baker falsely claimed that he worked eight hours and took a 30-minute lunch on May 18, 2018. Findings Regarding the Allegations from May 23, 2018 The May 23, 2018, GPS report for vehicle #1622 indicates that the truck was parked at Mr. Baker’s home from 9:33 a.m. to 9:46 a.m. Mr. Baker does not dispute that he stopped at his home at that time. However, he asserts that he took no actual lunch break on May 23, 2018. Therefore, he argues that the 13-minute stop at his home should be of no concern to ECUA. Nothing in the Manual specifies that ECUA employees must take their lunch break at a certain time. The May 23, 2018, GPS report indicates that vehicle #1622 stopped at 3116 Godwin Lane from 11:43 a.m. to 12:47 p.m. However, there is no record evidence indicating what is at that address. Therefore, it cannot be found that the stop at 3116 Godwin Lane amounted to a lunch break. The ECUA failed to prove by a preponderance of the evidence that Mr. Baker effectively abandoned his work when he drove vehicle #1622 to his home and stayed for 13 minutes on May 23, 2018. Findings Regarding the Allegations from May 24 and May 31, 2018 Mr. Baker’s timesheet for May 24, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 24, 2018, Mr. Willette observed Mr. Baker at 12:59 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 12:56 p.m. on May 24, 2018. Mr. Baker’s timesheet for May 31, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 31, 2018, Mr. Willette observed Mr. Baker at 3:09 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 3:10 p.m. on May 31, 2018. Mr. Baker does not dispute that he left work at 12:59 p.m. on May 24, 2018, and at 3:09 p.m. on May 31, 2018. Mr. Baker testified that he had permission from Greg Rigby, the patch crew’s supervisor, to leave early on those days. As for why his timesheets indicated that he left at 3:30 p.m. on both days, Mr. Baker explained that the individual patch crew members did not fill out their timesheets. Instead, Mr. Rigby or his assistant supervisor, Robert Boyd, Sr., entered each patch crew member’s time into the timekeeping system. ECUA proved by a preponderance of the evidence that Mr. Baker’s timesheets for May 24, 2018, and May 31, 2018, were inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Dalton B. Baker violated Section B-3, attendance records; and Section B-13 A (33), violation of ECUA rules or guidelines or state or Federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 18th day of September, 2018.
Findings Of Fact On August 4, 1995, the Department issued request for proposal Number 95-CO-6740 titled "Appreciating Racial, Cultural, and Gender Diversity" (the "RFP") for the delivery of instruction addressing racial, cultural, and gender diversity issues in the correctional work place, as well as workplace diversity issues relating to the American with Disabilities Act (ADA). The proposal called for the training of 1,500 of its employees, thirty persons per session, at sites throughout the state. Four of the sessions were to be "train-the trainer" sessions, which would prepare Department employees to carry on the training after the expiration of the Contract. No protest challenging the terms and conditions of the RFP was filed. The RFP contained a description of the scope of the work to be performed, and of the required contents of the proposals to be submitted, as well as expectations for the prevailing offeror. Proposals were submitted to the Department on September 6, 1995 and were reviewed and evaluated by five (5) employees of Respondent who comprised the Evaluation Committee. Proposals were scored on a 100-point scale consisting of 50 evaluation points and 50 cost points. The 50 evaluation points were comprised of 10 points for "qualifications of offeror," 10 points for "previous related experience," and 30 points for "work plan and course outline." The proposal with the lowest cost per student was awarded 50 cost points. The cost points of all other proposals was determined by the formula 50(1-A/B). A being the difference between the cost-per student of the proposal being scored and B being the lowest cost per student. Petitioner New Day was a responsible bidder to the RFP. Out of a possible 50 points for the evaluation of its proposal, Petitioner New Day received an average of 43.8 points and Zanco received an average of 32.0 points. Out of a possible 50 points for its price per student, Petitioner received 31.4 points and Zanco received the full 50 points. Adding committee points and cost points, Zanco's proposal received the highest overall score with 82.0 points and New Day received the second highest score with 75.2 points. Respondent issued its intent to award the bid to Zanco. Petitioner seeks to compare its proposal with Intervenor's. This is contrary to the instructions given to the bidders and the evaluation committee. The evaluation committee guidelines stated, in part: 3.a. DO NOT evaluate by comparing one bid/proposal with another; each must be evaluated independently of the others. (Emphasis in original). Petitioner argues that Zanco's proposal was non-responsive because it did not comply with the mandatory requirements of the RFP. Petitioner argues that Zanco's proposal did not demonstrate a comprehensive knowledge of trends related to diversity and demographic changes. Relating to the mandatory requirements, sections 5.1 and 5.10 of the RFP provide as follows: 5.1 The State has established certain requirements with respect to responses to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Request for Proposal indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if the deficient response is not in substantial accord with this Request for Proposal require- ments, provides an advantage to one bidder over other bidders, has a [potentially signifi- cant] effect on the quantity or quality of items proposed, or on the cost to the State. [Material deviations cannot be waived]. (Emphasis in original). 5.10. Any RFP response which fails to meet the mandatory requirements stated in this Request may be rejected. Section 2.1 of the RFP lists the mandatory requirements. Section 3.1 of the RFP, titled "RFP response format," describes the format in which an offeror is to assemble the requirements in its proposal. On the issue relating to the offeror's knowledge of trends, section 2.1.1 of the RFP provides as follows: The offeror must demonstrate a comprehensive knowledge of racial, cultural and gender diversity issues and trends with particular emphasis on methods of improving racial cult- ural and gender interaction in the work place. The offer must also demonstrate comprehensive knowledge of diversity as described as above and as it pertains to ADA. Contained in Zanco's executive summary is the following statement: By the year 2000, just five brief years from now, minorities and women will completely dominate the demographics of the United States - a fact which will revolutionize the way in which our society will have to operate. Gone will be the days of the traditional majority - replaced by large groups of women, older and handicapped persons, Hispanics, Afro-Americans, Asians, Native Americans and others. Petitioner argues this statement is incorrect because the traditional majority will continue to be white Americans. Zanco's statement does not imply that white Americans will not be the majority. Zanco's statement merely separates white women from white men and predicts that there will be many more white women, along with men and women of other backgrounds, than white men. The United States Department of Commerce, Bureau of the Census, predicts that by the year 2000, there will be approximately 96 million white men compared to approximately 178 million combined white women and Hispanic, Black, American Indian, Eskimo, and Aleut, and Asian and Pacific Islander men and women in the workplace. Zanco's statement is correct and supported by the evidence. Zanco's proposal demonstrated a comprehensive knowledge of racial, cultural and gender diversity issues and trends. Petitioner argues that Zanco's proposal did not contain training goals or behavioral objectives. On this issue, section 2.1.2 of the RFP provides as follows: The offeror must provide specific training goals and behavior objectives along with a course outline depicting areas to be addressed in the instructional program. Petitioner argues that a behavior objective focuses on what participants are expected to do. They are expressed in behavior terms with verbs, such that a participant will distinguish, identify, or list. Petitioner bases this opinion on chapter 9 of Foundations of Education. This book, although a useful source book, was neither included in nor referenced by the RFP. Thus, Foundations of Education is relevant for the limited purpose of supporting the opinion of Petitioner as to the definition of a behavioral objective. Foundations of Education can not be the basis by which to determine whether Zanco's proposal includes training goals and behavioral objectives. Zanco's proposal includes training goals and behavioral objectives. For example, the training goal of session two is to establish a common language. The training goal of session three is to relate diversity to every day life. The behavioral objective of session six is to raise awareness and reduce attitudinal barriers. The training goal of session seven is to lead to effective cross-cultural relationships. The behavioral objective of session nine is the management and controlling of prejudicial thinking. The behavioral objective of session 11 is to have participants view others and themselves as greater than the sum of their parts. The behavioral objective of session 13 is to understand how a community's reaction to differences adversely affects everyone's humanity. The behavioral objective of session 16 is to become aware of our natural inclination to generalize and apply assumptions. The behavioral objective of session 20 is responding effectively to changes. The behavioral objective of session 21 is understanding differences and valuing uniqueness. The behavioral objective and training goal of session 22 is creating an environment for diversity in order to establish effective working relationships in which employees can succeed. The behavioral objective of session 23 is encouraging listening and responding constructively to others' views. Zanco also includes behavioral objectives in tab one of its proposal, its executive summary, as follows: Zanco helps employers think differently about the way people learn and develop, about employees [sic] capacity to achieve maximum performance, about how attitudes, actions and policies affect the climate of the workplace and, ultimately, its mission capability. . . Zanco's programs inspire individual contri- butors to take responsibility for improving the effectiveness of their organization, under- standing that those individuals who can work effectively with coworkers and inmates from a variety of backgrounds will be best equipped to contribute to their organization's goals and to fulfill their own career aspirations. Zanco's proposal included training goals and behavioral objectives. Petitioner argues that Zanco's proposal did not show comprehensive knowledge of familiarity with federal and state laws. On this issue section 2.1.3 of the RFP provides as follows: The offeror must demonstrate comprehensive know- ledge of all state and federal laws, rules and guidelines governing affirmative action, equal opportunity employment issues, and ADA. Under previous task-related experience, Zanco's proposal included an outline of the Florida Education Equity Act which was prepared pursuant to training clients in the education field based in Florida. Zanco's proposal refers to the ADA in its previous task-related experience and in its course outline. Zanco's proposal demonstrated comprehensive knowledge of all state and federal laws governing affirmative action, equal opportunity employment issues, and the ADA. Petitioner argues that Zanco's proposal does not show that it knows of the composition of the Department's work force. On this issue section 2.1.4 of the RFP provides as follows: The offeror must demonstrate reasonable aware- ness of the composition of the corrections workforce and of the corrections workplace/ environment. Zanco's proposal substantially demonstrates a reasonable awareness of the composition of the Department's work force. Petitioner argues that Zanco's proposal did not include visual or printed materials to be used in the program delivery process. On this issue section 2.1.5 of the RFP provides as follows: Instructional methods employed in the program delivery process must include appropriate visual and printed materials, hands-on experi- ence and performance-based participant interaction. This is a requirement for the successful offeror that is awarded the contract. It is not a requirement for an offeror to put in its proposal. Thus, it is irrelevant whether Zanco's proposal included visual or printed materials. Petitioner argues that three of the five references listed by Zanco were for the same training exercises. On this issue sections 2.1.11 and 3.1.3.1 of the REP provide as follows: The offeror must provide a listing of at least four (4) previous clients who are able to provide evaluative [sic] information regarding the offeror's instructional performance. The vendor shall provide a list of four (4) different previous clients as references. References shall provide a description of services performed with enough detail to allow the evaluation committee to easily determine whether the work was similar to that being requested by the state in this Request for Proposal.... Zanco listed the following four clients: the School Board of Charlotte County, the School Board of Sarasota County, the School Board of Manatee County, and the Florida Department of Labor and Employment Security. The RFP did not request the vendor to list five references that received different types of training. Rather, the RFP requested a list of four previous clients that received training similar to that being sought by the Department. Zanco's proposal listed four clients and described the services performed with sufficient detail to determine that the work was similar to that being requested by the Department. Petitioner argues that Zanco's proposal fails to include relevant measurement instrument samples. On this issue section 2.1.9 of the RFP provides as follows: The offeror must provide samples of relevant and measurement instruments, including performance evaluations, objective tests and course/instructor evaluation surveys. Zanco's proposal included samples of relevant measurement instruments. Zanco's proposal fails to list the education of Inez Bracy in its resume. On this issue section 3.1.2 of the RFP provides in pertinent part as follows: The vendor shall include resumes of the specific individuals proposed to work on this contract, specifying education and work experience that relates directly to appreciating racial, cultural and gender diversity. If Bracy's education were not directly related to appreciating racial, cultural and gender diversity, by a plain reading of section 3.1.2 if would not need to be specified. However, the first sentence in Bracy's resume states "I have taught in the Palm Beach District School System for fifteen years." Moreover, Section 3.1.2 did not ask for only the education of the trainer but prior work experience. Bracy's work experience was listed and includes coordinating a conference titled "Building Global Bridges" and teaching "sensitivity in a multicultural classroom" to the Palm Beach County Classroom Teachers Association. Zanco's proposal substantially demonstrates the educational background and work experience of Inez Bracy. Zanco's proposal indicates that it is entering its fifth year of business, but Petitioner argues that Zanco's references begin in 1994 and that Zanco does not have relevant experience that predates 1994. On this issue, Section 3.1.3.2 of the RFP provides as follows: The Department prefers vendors who have been in business for at least three years. Vendors which have not been in the instructional delivery business for at least three years will receive a five (5) point deduction. Zanco's proposal includes a statement that Zanco "is entering its fifth year as a specialist in the Diversity and Equity instructional delivery business." The RFP did not request references corresponding to every year a vendor is in business. Further, if Zanco had been in business for only one or two years, Section 3.1.3.2 of the RFP would only effect the score assigned to Zanco and not the responsiveness of Zanco's proposal. The score, reduced by 5 points, would still exceed Petitioners score. Petitioner argues that Zanco's proposal does not contain a work plan. On this issue, Section 3.1.4 of the RFP provides as follows: [Tab 4, Workplan and Course Outline] - This section shall include a proposed workplan describing how the vendor will approach this training including training aids, trainee interaction, etc. plus a proposed course out- line for the 3-day session. There shall be a workplan and outline for both the staff training and the train-the-trainer training. (Emphasis in original). Petitioner argues that this requirement mandates that a course outline and workplan must be separate documents. The RFP, however, does not state that two separate documents must be provided. It states that both must be present. Zanco's work plan is mixed with its outline. Zanco's proposal contained a work plan. Petitioner argues that the score given to Zanco's proposal was arbitrary because the proposal did not include a work plan or an outline for the three-day session. The 50 evaluation points consisted of 10 points for "qualifications of offeror", 10 points for "previous related experience", and 30 points for "work plan and course outline". Petitioner does not challenge the 50 cost-points given to Zanco. Zanco received an average of 32.0 evaluation points. Petitioner received an average of 43.8 evaluation points. For qualifications of offeror, Zanco received 5, 7, 10, 9, and 5 points for an average of 7.2 points. For previous related experience, Zanco received 10, 5, 10, 9, and 5 points for an average of 7.8 points. For work plan and course outline, Zanco received 20, 15, 15, 15, and 20 points for an average of 17.0 points. Petitioner proffered that 5 points was logical for Zanco's qualifications, and that 5 points was logical for Zanco's previous related experience. In Petitioner's witness Thompson's opinion, however, any score given to Zanco's qualifications or previous related experience above 5 points was arbitrary. Petitioner argues that Zanco should have received no points for its work plan and course outline because Zanco did not include a separate work plan. Petitioner argues that it was arbitrary for Zanco to have received any points for its work plan and course outline. By Petitioner's interpretation of the RFP, the work plan had to be separated from the course outline, and that Zanco did not include a separate three-day course outline. Zanco's three-day course outline is contained in its proposal. Each of the 25 sessions listed by Zanco in its diversity training outline is approximately 45 minutes to an hour in duration. It would take roughly 24 hours to cover 25 45-minute to one-hour sessions, or three eight-hour days. There was no requirement in the RFP that the work plan and course outline had to be on separate pages or located under separate tabs. Zanco's work plan is mixed with its outline. The evaluation committee did not award points for Zanco's work plan and course outline in an arbitrary or capricious manner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order denying the relief requested by Petitioner and recommending that a Final Order be entered awarding the contract for RFP Number 95-CO-6740 to Intervenor, Zanco. DONE AND ENTERED this 16th day of February, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, 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 February, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-5803BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in substance: paragraph 1, 2 (partially addressed in Preliminary Statement), 3, 4 (Preliminary Statement), and 5. Rejected as against the greater weight of evidence: paragraphs 6(A), (B), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), (M), (N), and 7. Respondent's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 51, 52, 53, 54, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 71, 72, 73, 75, 76, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 119. Rejected as subsumed, or irrelevant and immaterial: paragraphs 21, 49, 50, 55, 69, 70, 74, 77, 113, 114, 115, 116, 117, 118, 120, 121, 122, and 123. Intervenor's Proposed Findings of Fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 10 (in part), 12, 13 (in part), 14, 15, 16 (in part), 17, 18 (in part), 19 (in part), 21 (in part), 22 (in part), 24 (in part), 25, 26, 27, 28, 29, 30, 31, 32, 33, and 34. Rejected as subsumed, or irrelevant and immaterial paragraphs 9, 10 (in part), 11 (in part), 13 (in part), 16 (in part), 18 (in part), 19 (in part), 20 (in part), 21 (in part), 22 (in part), 23, 24 (in part), 25 (in part). COPIES FURNISHED: Norberto S. Katz, Esquire Katz and Veliz, P.A. 2211 East Michigan Street Orlando, Florida 32806 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 M. Christopher Bryant, Esquire Oertel, Hoffman, Fernandez and Cole, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Louis A. Vargas, General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Darlene Andert-Schmidt, President Management Concepts 2562 Southwest 27 Place Cape Coral, Florida 33914
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on April 20 and May 30, 2018, as charged in the agency action letter dated June 25, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During all times relevant to the instant case, Mr. Reiter was a utilities service worker assigned to ECUA’s patch services division (“the patch crew”); and he acknowledged on January 4, 2017, that a copy of the Manual was available to him. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break and two 15-minute breaks. A significant part of the patch crew’s work involves filling holes left after other ECUA employees have performed utility work. Mr. Reiter drives a truck that delivers sod, asphalt, and/or dirt to work areas. He begins and ends each workday at an ECUA facility on Sturdevant Street in Pensacola, Florida. ECUA’s management received information from an anonymous source alleging that the patch crew was loafing and abusing ECUA’s overtime policy. As a result, ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their daily activities. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Findings Regarding the Allegations from April 20, 2018 On April 20, 2018, Mr. Willette observed Mr. Reiter and a coworker leaving an ECUA facility in an ECUA truck at 4:00 p.m. and arriving at Woerner Turf on Creighton Road in Pensacola at 4:16 p.m. The preponderance of the evidence does not demonstrate that Mr. Reiter deliberately extended his workday by taking a circuitous route from the ECUA facility to Woerner Turf. After picking up sod, Mr. Reiter and his coworker left Woerner Turf at 4:38 p.m. and arrived at Intendencia Street in downtown Pensacola at 5:16 p.m. At this point, Mr. Willette received a call to follow another ECUA employee and discontinued his surveillance of Mr. Reiter. There was conflicting testimony regarding the shortest possible route that Mr. Reiter could have taken upon leaving Woerner Turf. Given that Mr. Reiter was driving to downtown Pensacola just before “rush hour” on a Friday afternoon, 38 minutes is not an unreasonable amount of time to drive from Creighton Road to Intendencia Street in downtown Pensacola. The preponderance of the evidence does not demonstrate that Mr. Reiter deliberately extended his workday by taking a circuitous route from Woerner Turf to the worksite on Intendencia Street. A “daily overtime report” for April 20, 2018, indicates Mr. Reiter worked from 3:30 p.m. to 6:30 p.m. and claimed three hours of overtime. To whatever extent that ECUA takes issue with the total amount of overtime claimed by Mr. Reiter on April 20, 2018, there is no evidence as to what work Mr. Reiter performed after Mr. Willette discontinued his surveillance of Mr. Reiter shortly after 5:16 p.m. that day, and thus there is no support for a finding that Mr. Reiter dragged out his workday or artificially increased his overtime hours on that date. Findings Regarding the Allegations from May 30, 2018 On May 30, 2018, Mr. Willette photographed Mr. Reiter taking PVC pipe belonging to ECUA and placing it in his personal vehicle. Mr. Reiter acknowledged during his direct testimony that he took the PVC pipe without authorization from a supervisor. He testified that the PVC pipe was “spent material” and that such material is always discarded. Mr. Reiter testified that he ultimately returned the PVC pipe in question. The preponderance of the evidence demonstrates that Mr. Reiter took the PVC pipe without authorization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Michael J. Reiter violated: Section B-13 A (4), conduct unbecoming an ECUA employee; Section B-13 A (27), theft or stealing; and Section B-13 A (33), violation of ECUA rules or guidelines or state or federal law. DONE AND ENTERED this 25th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 September, 2018.
The Issue Is Petitioner entitled to attorney's fees and costs under Section 57.111, Florida Statutes, the Florida Equal Access To Justice Act?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The action in this case was initiated by the Respondent, a state agency. The Respondent was not a nominal party. Petitioner was the prevailing party in the administrative action brought against his license by Respondent in Department of Business and Professional Regulation, Board of Veterinary Medicine vs. William H. Jernigan, D.V.M., Case No. 95-4487 in that Respondent voluntarily dismissed the case. Petitioner incurred attorney's fees and costs in excess of $15,000, and there is no dispute as to the reasonableness of attorney's fees and costs. There are no special circumstances which would make an award of attorney's fees and costs unjust. At all times pertinent to this proceeding, Petitioner's veterinary practice was organized as a sole proprietorship under the fictitious name of Sebring Animal Hospital located in Sebring, Florida. Petitioner is the sole proprietor of Sebring Animal Hospital, an unincorporated business. Both Petitioner and Sebring Animal Hospital are domiciled in the State of Florida. At all times pertinent to this proceeding, Petitioner through Sebring Animal Hospital employed less than 25 employees. At no time pertinent to this proceeding, did Petitioner and Sebring Animal Hospital have a combined net worth in excess of two million dollars. Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. On or about September 23, 1993, a dog was presented to the Sebring Animal Hospital for boarding and grooming. On or about October 1, 1993, a hospital employee, during the course of grooming the dog, left the dog unattended. While unattended, the dog either fell or jumped off the grooming table and accidentally hanged herself with a leash that was being used to restrain her. The dog's owner was notified of the accident on October 1, 1993. Petitioner was not present in the hospital at the time of the accident. The owner of the dog subsequently filed a complaint with the Respondent on March 28, 1995. An investigation of the incident was conducted by an investigator from the Department of Business and Professional Regulation (Department). The investigator prepared an Investigative Report which included, among other things, the Investigator's interview with the complainant and Petitioner's response. The factual allegations of the incident contained in the Investigative Report are the same as those set out in findings of fact 9, 10, and 11. The Investigative Report was presented to the Probable Cause Panel (PCP) of the Board of Veterinary Medicine. The members of the PCP reviewed the Investigative Report prior to its meeting and discussed the Investigative Report at the PCP meeting on June 29, 1995. The PCP found probable cause and issued a Memorandum of Finding of Probable Cause but did not state the statutory violations upon which the finding of probable cause was based. The PCP directed the Department to file an Administrative Complaint. Although the Board's attorney was present at the PCP meeting on June 29, 1995, none of the panel members made an inquiry of the Board's counsel as to whether under the facts presented there was a violation of Chapter 474, Florida Statutes, specifically Section 474.214(1)(o), Florida Statutes. In fact, the PCP made no inquiry of anyone as whether the facts as presented constituted a violation of Chapter 474, Florida Statutes. Of all the evidence considered by the PCP, there was no evidence which would reasonably indicate that a violation of Chapter 474, Florida Statutes, had occurred. As directed by the PCP, the Department filed an Administrative Complaint against Petitioner alleging a violation of Section 474.214(1)(o), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, ORDERED that Petitioner's Application for Attorney's Fees is Granted and the Respondent shall forthwith pay Petitioner the sum of $15,000 for attorney's fees and costs. ORDERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. COPIES FURNISHED: Richard T. Ferrell Secretary Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Sue Foster Executive Director Board of Veterinary Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Bert J. Harris, III, Esquire SWAIN, HARRIS, SHEEHAN and MCCLURE, P.A. 212 Interlake Boulevard Lake Placid, Florida 33852 James E. Manning, Esquire Department of Business and Professional Regulation Suite Number 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
