Findings Of Fact The Petitioner, Vernon Thomas, who is black, began working at the Tampa plant of the Respondent, Davies Can Company, in 1971. By 1990, he was working as a mechanic in the production department. In April, 1990, the Respondent's three-year labor union contract with the United Steelworkers of America covering its plant in Tampa, Florida, was due to expire. Knowing it was opening three new plants closer to its new sources of supply of raw material (tin plate), the Respondent was unsure how long it would continue to operate the Tampa plant and would only agree to extend the union contract for one year. During quarterly profit-sharing meetings with the union and the Tampa plant employees, the Respondent kept the union and the employees apprised of the company's plans. All were aware of the distinct possibility that the Tampa plant would be closed at the expiration of the extended union contract in April, 1991. Some employees at the Tampa plant, primarily supervisory and office personnel, were transferred to one of the new plants during the course of the year. When office personnel ceased employment, they were replaced by temporary employees. Other positions in the new plants were being filled by new employees who applied directly to the new plants. At some point before the quarterly meeting on February 25, 1991, the Respondent made a decision to close the Tampa plant. At the quarterly meeting, the Respondent's director of employee relations, Joseph Frabotta, announced that the Tampa plant was being closed and that all Tampa employees were being permanently laid off. He stated that most would be laid off as of March 8, and the rest as of March 15, 1991. In response to questions regarding the availability of work at one of the Respondent's new plants, he also stated that he knew of no positions available at that time but that if anyone interested left an application for employment with him by the time he left Tampa on or about February 28, 1991, he would transmit the applications to the managers of those plants. After the general announcement at the meeting on February 25, 1991, individual interviews were scheduled to discuss the particulars of the benefits due individual employees. The Petitioner's interview was on February 27, 1991. As the senior hourly employee at the Tampa plant, the Petitioner was told that he would work until March 15, 1991. He also was told the particulars of the benefits due him. Finally, he again was told that there were no positions at the new plants available for the Petitioner at that time but that, if he was interested, he should leave a completed application for employment with Frabotta by the time he left Tampa on or about February 28, 1991, and it would be transmitted to the managers of those plants. During the Petitioner's individual interview on February 27, 1991, the Petitioner also raised the subject of a problem he was having with disability insurance benefits for a period of disability the Petitioner had suffered from approximately November 12, 1990, through January 1, 1991. The disability insurance policy provided by the Respondent for its eligible employees is provided through an insurance company, not by the Respondent itself directly. However, in order to insure proper follow up on behalf of its employees, the Respondent has a policy of having all claims forms mailed to its corporate offices in Solon, Ohio, for processing. During his period of disability, the Petitioner had asked the Tampa plant manager for the appropriate claims form. The plant manager said he would furnish the Petitioner one but never did. When the Petitioner returned to work on January 2, 1991, he again asked for the claims form. Again, the Petitioner was promised that one would be provided but none ever was provided. At his February 27, 1991, interview, the Petitioner reported all of this to Frabotta, whose investigation verified the Petitioner's information. Frabotta promptly arranged for the Petitioner's claims form to be submitted for processing, and in May, 1991, the Petitioner received the disability benefits to which he was due. One other black employee was not given disability claims forms, for a disability in June, 1990, because the supervisor of the personnel office at the Tampa plant told the employee that he was not eligible. When the Petitioner told his fellow employee about his individual interview with Frabotta on February 27, 1991, the fellow employee told the Petitioner about his June, 1990, disability. The Petitioner recommended that the fellow employee ask Frabotta about it during his individual interview. Frabotta investigated the matter, and the benefits eventually were paid. The Petitioner understands that, most of the time, disability benefits are paid within a two to three weeks after submission of a claim, and he is aware of some whites who timely received disability benefits. With all the claims forms the Respondent's corporate headquarters processes for employees, errors occasionally are made, having nothing to do with race, and Frabotta has to become involved in correcting errors, just as he did in the case of the Petitioner and his fellow black employee. The Petitioner did not prove that the delay he and his fellow black employee experienced in receiving disability benefits was the result of racial discrimination. The Petitioner did not give Frabotta an application for employment with one of the new plants before Frabotta left Tampa to return to Ohio. Instead, he mailed an application on or about March 25, which Frabotta did not receive until early April, 1991. On March 15, 1991, the Petitioner was asked to work one more day to prepare the equipment for shipment the following day to the new plant in Georgia. His last day at work was March 16, 1991. Soon after his last day at work, the Petitioner came under the belief that white hourly employees from the Tampa plant had been transferred to the new plant in Georgia. As the senior hourly employee at the Tampa plant, the Petitioner believed he was entitled to the work under the union contract. But the union contract did not apply at any plant other than Tampa, and it expired in April, 1991. The employees hired at the Georgia plant had given applications to Frabotta before February 28, 1991, and were hired by the Georgia plant manager when a need arose for their services on or about March 18, 1991, at a point in time before the Petitioner submitted his application. In addition to the two white hourly employees, a black hourly employee also was hired in that fashion at the Georgia plant. Later, the Petitioner learned that two white hourly employees were continued on the payroll for a certain period of time. The Petitioner believed that, if any work was available for hourly employees in Tampa, he should have gotten it under the terms of the union contract since he had seniority. But there was another provision in the union contract, known as the "super seniority" provision, under which the president and chief steward of the local union were to be kept on the payroll in the event of a reduction in the work force at the Tampa plant. These union officials were white. The local union insisted that these two people be kept on the payroll after March 16, 1991. (They were not paid after the expiration of the extended union contract in April, 1991.
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 in this case. RECOMMENDED this 29th day of April, 1992, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of April, 1992.
Findings Of Fact The parties stipulated to the fact that James Baskin holds registered contractor's license number BC 0011300. Raskin's registered general contractor's license was issued by the Florida Construction Industry Licensing Board. Prior to the commencement of the hearing, the Hearing Officer held that the record of the proceedings for the Cape Coral Board could be filed as a late filed exhibit in this cause in order that the Florida Construction Industry Licensing Board could review the Cape Coral Board's action pursuant to its authority under Section 468.112(2)(f), Florida Statutes. Ambassador Homes contracted with Sam and Marie Franzella for the construction of a single family residence to be constructed on the property located on Lots 41-42, Block 1224, Cape Coral Unit 19, Section 32-33, Township 44 South, Range 24 East. Stucky Well Drilling was initially contacted by an unknown agent of Ambassador Homes on January 1, 1975, and directed to drill a well, and install a deep well jet pump and tank at the location stated above. On January 20, 1975, Marion, a secretary for Ambassador Homes, called Stucky Well Drilling and directed that Stucky Well Drilling install the well and equipment as soon as possible. On January 21, 1975, a 210 foot well was drilled on the property described above and on January 23, 1975, a Mr. Green from Ambassador Homes called and requested that the tank and equipment be installed immediately. Mr. Hall, an employee of Stucky Well Drilling, installed all the equipment as ordered on January 23, 1975. On January 24, 1975, a bill in the amount of Six Fifty Dollars ($650.00) was sent to Ambassador Homes for the work performed on the property described above. Ambassador Homes was a corporation engaging in residential contracting and operating under the license of James Raskin. Ambassador Homes did not pay Stucky Well Drilling the bill for the drilling of the well and installation of the equipment on the property described in paragraph 3 above. Subsequently Stucky Well Drilling brought suit against Ambassador Homes, Inc., in the County Court of Lee County and obtained final judgment in the amount of Six Hundred Fifty Dollars ($650.00) plus costs. This judgment was entered on December 2, 1975.
Recommendation Based on the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida Construction Industry Licensing Board suspend the license of James Raskin as a registered general contractor until he presents satisfactory proof to the Board of his financial qualifications to engage in the contracting business. DONE and ORDERED this 27th day of May, 1977, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blacks tone Building Jacksonville, Florida 32202 James Raskin 1810 S. E. 44th Street Cape Coral, Florida 33904 Mr. J. K. Linnan Executive Director Florida Construction Industry Licensing Board Post Office Box 8621 Jacksonville, Florida 32211
The Issue The issues to be determined in this case are whether the Respondent, Kenneth Landers, violated state regulations related to the operation of a waste tire site, as charged by the Department of Environmental Protection ("Department"), and, if so, whether he should pay the administrative penalties and investigative costs and undertake the corrective actions that are demanded by the Department.
Findings Of Fact The Department is the state agency charged with the power and duty to protect Florida’s air and water resources and to administer and enforce the provisions of Chapter 403, Florida Statutes, and Florida Administrative Code Title 62. Respondent is a person doing business as Trackside Tires on property located at Zero 23rd Street East, Jacksonville, Duval County, Florida (“the property”). Respondent leases the property from its owner. Respondent sells used tires and recycles waste tires. Respondent is responsible for the day-to-day operation of the facility, including compliance with environmental regulations. Under Florida Administrative Code Chapter 62-711, the Department regulates waste tires. No person may maintain a waste tire site except as part of a permitted waste tire processing facility. Fla. Admin. Code R. 62-711.400(1). A "waste tire" is defined in Florida Administrative Code Rule 62-701.200(126) as a tire that has been removed from a motor vehicle and includes used tires. A "waste tire site" is defined in Rule 62-701.200(131) as a site at which 1,500 or more waste tires are accumulated. Respondent did not dispute that he had accumulated over 1,500 tires on the property. On July 29, 2009, Brian Durden of the Department's solid waste staff visited the property. He observed and measured a waste tire pile on the property which was 210 feet by 40 feet and averaged 6 feet in height. Using a method for estimating the number of tires in a pile by its cubic volume, and adding an estimate for the number of tires in four truck trailers on the property, Durden estimated that there were over 23,000 waste tires on the property. On July 29, 2009, the property was a waste tire site. In order to operate a waste tire site, a permit must be obtained from the Department. Respondent does not have a permit to operate a waste tire site. Respondent was previously cited by the Department for operating four other unpermitted waste tire sites, which was resolved by consent order in 2009. The consent order required Respondent to clean up the four sites and to pay penalties and costs. Respondent stated that he took many of the tires from the four sites and stored them in a warehouse, but was then forced to bring about 10,000 used tires to the property that is the subject of this proceeding because he lost the lease on the warehouse. On the day of the hearing, September 20, 2010, Respondent stated that he still had approximately 1,800 tires on the property that he could sell for reuse and other tires in trailers. He agreed with Durden's estimate that there are over 5,000 tires still on the property. In August 2009, the Department issued a warning letter to Respondent. The Department issued the NOV on May 8, 2010. Respondent contends that he is attempting to obtain a permit from the Department to operate a waste tire site. However, to date he has been mostly involved in "processing" tires at his property and has not made substantial progress in obtaining a permit.
Findings Of Fact Petitioner Cobo Company, Inc., is a mechanical contractor located in Miami, Florida, whose qualifying agent, Jose Cobo, is certified in that capacity pursuant to Chapter 489, Florida Statutes. By letter of August 18, 1980, Respondent Department of General Services confirmed Petitioner's annual prequalification as a potential bidder for building construction contracts pursuant to Section 255.29, Florida Statutes, for the "type or class as defined in your license." (Testimony of Cobo, Exhibit 1) At an undisclosed date, Respondent published an advertisement for bids for Project No. DGS-7969-C, "Major Repairs-Chiller Replacement, Graham Building, Miami, Florida." The advertisement required all bidders to submit prequalification data of their eligibility to submit proposals if not previously qualified for the current fiscal year. The advertisement and invitation for bids stated that bids must be submitted in full in accordance with the requirements of the drawings, specifications, bidding conditions, and contractual conditions, and that sealed bids would be opened on September 30, 1980. Section B-2 of the specifications required that the bidder present evidence that he was "authorized to perform the work required in these documents in accordance with the applicable provisions of Florida Statutes governing contractors." (Exhibit 4) Respondent's Instructions to Bidders further required that bidders submit evidence of ability to provide necessary performance and labor and material payment bonds, and that bids should be accompanied by a bid guarantee of not less than 5 percent of the amount of the bid. The instructions also required bidders to submit a list of previous contracts involving similar work which had been satisfactorily completed, and to list those qualified subcontractors which the bidder intended to be employed on the contract. They further required a bidder to indicate bid prices on the proposal form for the entire work and for any alternates on which he bids. The instructions stated that if the base bid was within the amount of funds available to finance the contract and the owner (Respondent) wished to accept alternate additive bids, contract award would be made to that responsible bidder submitting the low combined bid, consisting of the base bid plus alternate additive bids. Section B-24 of the contract document reads in part as follows: B-24 CONTRACT AWARD The Contract will be awarded by the Executive Direction, Department of General Services, as soon as possible, to the lowest qualified bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality on bids received when such waiver is in the interest of the Owner. The Agreement will only be entered into with reasonable contractors, found to be satisfactory by the Owner, qualified by experience and in a financial position to do the work specified. Section 01010 of the specifications provides in part as follows: SECTION 01010 - SUMMARY OF WORK 1. GENERAL DESCRIPTION. The project in general consists of the construction of the contract entitled Major Repairs-Chiller Replacement, Graham building, Miami, Florida, State Project NO. DGS-7069-C. A general description of the project and its scope include the following: Replacement of chiller for central air conditioning system. Install new cooling towers and pump. The contract drawings and specifications provided for the removal of a portion of an interior wall, and removal of an exterior wall window and masonry work below the window to provide access for removal of the existing chiller and its replacement with new equipment. In addition, the contract included electrical work incident to the installation of the chiller, removal of an existing hand rail for clear access to the equipment and later replacement, installation of pitch pans for pipes and other openings on the roof, and the erection and installation of structural steel cooling towers. The specifications call for painting, plaster work, replacement of flooring and ceiling, and installation of a window wall panel, as required in restoring the demolished area. They further called for a replacement demountable interior wall partition to provide future access to the air conditioning equipment, as an alternate portion of the project. Section 01021 of the specifications described the bid items as a Base bid, Additive Alternate No. 1 for using higher efficiency chiller, and Additive Alternate No. 2 for installation of the demountable partition. However, the specifications had been altered prior to the issuance of the bid invitation to provide for the higher efficiency chiller as part of the base bid, but Section 01021 had not been changed accordingly. Respondent's proposal form for use by bidders, however, had provisions for entry of only a Base bid and Alternate No. 1 for the installation of the demountable partition. (Testimony of Karagianis, Exhibits 4-6) Petitioner submitted its bid for the project on September 30, 1980. Its base bid was $225,440. It also bid on the alternate for installation of demountable partitions in the sum of $1,170, and added to the bid form an alternate for the use of higher efficiency chiller in the amount of $1,150. Seven other bids were submitted on the proposal ranging from $239,300 by Sam L. Hamilton, Inc., to a high bid of $430,624. Hamilton's additive bid for the alternate partitions was in the amount of $1,950. Petitioner enclosed with its proposal the required contractor's qualification statement showing previous experience as a mechanical contractor, bid bond, and other required information. It listed L. Milton Construction, Inc., as a general construction subcontractor and Sparta Insulation as an insulation contractor. Although Petitioner intended that Lloyd N. Jones perform the electrical work on the project, he was not listed as a subcontractor because Petitioner did not know at that time whether he would be a subcontractor of Milton or of his own firm. Petitioner included the alternate bid for the higher efficiency chiller because it was required under Section 01021 of the specifications. Milton's bid to Petitioner for the construction work on the contract was in the sum of $7,000. (Testimony of Cobo, Exhibits 2-3) By letter of October 7, 1980, Respondent informed Petitioner that it intended to contract with Sam L. Hamilton, Inc., which had been determined the qualified low bidder meeting the requirements of the specifications. The letter advised the Petitioner that is bid was rejected because it was not a certified or registered general or building contractor as required by Section 489.105, Florida Statutes. Attached to the letter was a copy of a letter of William J. Roberts, attorney for the Florida Construction Industry Licensing Board, to Respondent, dated October 18, 1977, setting forth a legal opinion that a mechanical contractor could not be the prime contractor on a state contract in which the bulk of the work is mechanical in nature, but the remaining portion is to be subcontracted to a general contractor. Roberts testified at the hearing that he had drafted legislation which changed the definition of "contractor" previously found in subsection 478.102(1), and in his view, under such definition, a mechanical contractor would not be authorized to become a prime contractor is it were necessary for him to subcontract any non-mechanical work called for under the contract provisions which he was not qualified to perform. (Testimony of Roberts, Exhibit 7) Respondent's project director estimates that the chiller replacement project was approximately 90 to 93 percent mechanical in nature, and 7 to 10 percent requiring general construction and electrical work. It was his understanding of departmental policy that if any portion of a contract involved general construction work, only a general contractor would be eligible to receive the award and that, in this case, Petitioner could not therefore be accepted as a prime contractor. Respondent's Chief of the Bureau of Construction has instructed Bureau personnel not to award contracts to mechanical contractors which involve non-mechanical work unless the contractor is certified in the non-mechanical area for which the work is required. Several contracts awarded by Respondent to mechanical contractors in 1980 which involved non-mechanical work were "incorrect" awards, in the view of the Chief of the Bureau of Construction. (Testimony of Karagianis, Scaringe, Composite Exhibit 8) General contractors and mechanical contractors are required to be licensed under Chapter 489, Florida Statutes. Any person who desires to be certified statewide in a particular contracting area must establish his competency and qualifications by a combination of education and experience, plus the successful completion of an appropriate examination. The general contractor's examination and mechanical contractor's examination have similar portions relating to applicable federal and state laws and regulations in the contracting field. The remaining and major portion of the mechanical contractor's examination deals with subjects of that specialty such as air conditioning, refrigeration, heating, and the like. The general contractor's examination primarily covers matters relative to construction, such as site work, excavation, structural steel, masonry walls, piles, columns, and form work. (Testimony of Allen, Composite Exhibits 9-10) In the opinion of an expert in the field of architecture, there are no parts of the chiller replacement project which require the services of a general contractor. The demolition of the interior partition and the window wall properly may be accomplished by a mechanical contractor and installation of demountable partitions in lieu thereof can be obtained from speciality suppliers. Other aspects of the project, such as concrete pads, installation of cooling tower, pitch pans, and painting similarly are all considered to be incidental work to a project that is basically mechanical in nature. Certain large mechanical contractors customarily employ qualified individuals to perform specialty tasks such as painting and demolition work, but smaller contractors accomplish such portions of a job by subcontract. (Testimony of Coxen) A recent contract award was made by Dade County to a mechanical contractor for a project similar to the one here in controversy. In that case, the mechanical contractor had listed a general contractor as a subcontractor for the project. (Exhibit 11)
The Issue The issue to be resolved in this proceeding concerns whether Ronnie L. Ricks, has been a victim of an unlawful employment practice allegedly perpetrated by the employer, the Respondent, City of Gainesville (City), because of its termination of him, allegedly because of his race.
Findings Of Fact The Petitioner, Ronnie L. Ricks, was employed by the City of Gainesville as a Motor Equipment Operator I from June 9, 2003 to August 6, 2003. The Respondent, City of Gainesville, is a municipal corporation organized under the laws of the State of Florida, and is an employer for purposes of Chapter 760, Florida Statutes. Upon accepting employment with the City, the Petitioner was made aware of the written job description including the job functions and selection factors specified in the job description. He was also provided and made aware of the written City of Gainesville Policies and Procedures, including policy number 6 relating to and describing the six-month probationary period applicable to all new employees. Upon being hired by the Respondent and commencing work as a Motor Equipment Operator I, on June 9, 2003, the Petitioner's continued employment was subject to the satisfactory completion of a six-month probationary period. The Respondent's written policy relating to the probationary period stated that, "The probationary period shall be regarded as an integral part of the selection process and shall be utilized for closely observing the employee's work for securing the most effective adjustment of a new or promoted employee to the position and for rejecting any employee whose performance or conduct is not satisfactory." Further, the policy stated, "During the probationary period, the supervisor and Department Head may discharge an employee who is unable or unwilling to perform the duties of the position satisfactorily or whose habits and dependability do not merit continuance in the employ of the City." At all times relevant to this action, the essential job functions of the position of Motor Equipment Operator I included a requirement that the employee, "Attends work on a continuous and regular basis." Additionally, among the "non-essential job functions" was a requirement that the employee, "Makes minor repairs and adjustments to equipment. Checks oil and tires." One of the selection factors listed in the written job description for the position of Motor Equipment Operator I was, "Ability to work effectively with co-workers and the general public." The Petitioner claims to have suffered discrimination when his crew leader allegedly told other employees that the Petitioner was a "policeman." He maintains this caused black co-workers to shun him or refuse to speak to him. He also contends that his supervisor allegedly made comments about his clothes and his car. Apparently, he means that his choice of clothing for work was criticized because he allegedly wore "designer clothes" for a job which required more casual work clothes. He also feels he was discriminated against because of his supervisor's alleged comments concerning the type or model car he drove. The Petitioner maintains he was harassed by his supervisor when he refused to mow a retention pond in an area he was assigned to maintain. He claims the retention pond had a hole in it and he felt it was dangerous to mow it on the tractor. When he refused to do the job, his supervisor Ed Sams completed the job. The Petitioner also contends he was discriminated against because he had to complete a City of Gainesville Accident Analysis form after damaging a tractor by bending the metal roof of the tractor when he hit an overhanging tree limb. He maintains that white employees were not disciplined for such conduct. Aside from his contention that white employees were not disciplined for damaging equipment and he was, the Petitioner did not testify that any of the alleged discriminatory or harassment acts he cited were in any way related to his race or other protected status. There was no substantial evidence offered at hearing to support the Petitioner's claim that his crew leader Ed Kersey, ever referred to the Petitioner as a "policeman" or other similar term. The Petitioner made that accusation in his testimony based on uncorroborated hearsay, the relator of which was not present as a witness. His crew leader, Ed Sams, testified that he did not make such a statement and further testified that his father was a career law enforcement officer and he had a great deal of respect for such a position and would not have used "policeman" or a similar term in a derogatory way. The Petitioner claimed that his supervisor, Ed Sams, made derogatory comments about his clothes and car. The Petitioner claims that those comments were inappropriate but did not indicate that they were discriminatory on the basis of race or in any other way. Supervisor Sams testified that he has no recollection of making comments about the Petitioner's clothes and did not recall him dressing inappropriately during his brief employment with the City. He was never reprimanded or otherwise disciplined concerning the clothes he wore. Supervisor Sams did acknowledge making comments about the Petitioner's vehicle in that he testified he had merely asked the Petitioner's opinion concerning the various qualities of that vehicle because he was considering purchasing a similar one for himself. Concerning the Petitioner's testimony about being "harassed" by being ordered to mow a retention pond he considered to be an unsafe site, Supervisor Sams testified regarding that incident. He showed it to be an example of the Petitioner's unwillingness to work effectively with co-workers and his poor attitude toward supervision. On that occasion, Mr. Sams witnessed the Petitioner sitting near an unmowed retention pond and inquired why he was not working. The Petitioner responded that he was going to "let Ed do it." "Ed" was crew leader Ed Kersey, one of the Petitioner's supervisors. Supervisor Sams testified that he was somewhat taken aback by the Petitioner's attitude toward both the assigned work and to his direct supervisor. Ultimately, Mr. Sams performed the required mowing operation and clearly demonstrated that it could easily be safely done. The Petitioner indicated he felt harassed by this incident or this direction to mow the retention pond, but he gave no testimony whatever to indicate that it was racially discriminatory toward him. The Petitioner maintains that he felt harassed when drove his tractor into a tree limb causing damage to the tractor's aluminum canopy. He was required to complete a "City of Gainesville Accident Analysis form," but in spite of his testimony that he was disciplined, there is no evidence to show he was disciplined for the incident. Despite the clear language on the accident analysis report completed as a result of the accident, the Petitioner apparently failed to understand that he was not being disciplined or "written up" for the accident. He was not treated differently from the white employees he maintained were not disciplined for damage to equipment. The Petitioner was merely required to complete the accident analysis report in order to maintain a record of incidents involving City equipment. Under the section entitled "corrective action," the report merely indicated, "reinstruct employee." There was no discipline imposed. Mr. Sams testified that he did not issue a warning, reprimand, re-assignment, or job change as a result of the tractor damage incident. Mr. Sams testified that the Petitioner's obstinance regarding the completion of the accident report form was a further example of difficulties encountered in supervising the Petitioner. Ed Kersey is a Labor Crew Leader II who reports to Mr. Sams and who directly supervised Ricks. In addition to the incident where Ricks refused a directive to mow the retention pond, Mr. Kersey also encountered the Petitioner's obstinance and failure to follow supervision, on occasions when the Petitioner was angry or upset and would mow over litter or trash on the ground rather than pick it up, or have it picked up, before running the mowing machine over it. He also had a tendency to show up late for equipment maintenance work. He was verbally counseled for this, although never "written up," but kept doing it even after being counseled about it. During less than nine weeks in which the Petitioner was employed in the relevant position, he was absent from work for four days. He left early on one occasion without permission and was late at least twice without excuse. When he left early, he left two and one quarter hours early from work without permission. The four days missed from work were without leave or permission. He arrived late for job assignments on the two occasions. His poor attendance in a nine-week period is more egregious because the Petitioner was only working a four-day work week. The Petitioner frequently missed the designated maintenance times set aside for the motor vehicle equipment operators to work together to maintain their equipment. This is a part of their job description. Crew leader Ed Kersey established that this time was specifically designated in recognition that workers could maintain their equipment if they cooperated with each other. When the Petitioner frequently failed to attend the group maintenance sessions, he would complain about the difficulty of performing maintenance tasks alone. In summary, the evidence fails to establish that the Petitioner was discriminated against due to his race or any other protected status. The preponderant evidence showed that the Petitioner's employment was terminated during his probationary period, because his habits and dependability did not merit continued employment. Specifically, the preponderant evidence establishes that the Petitioner's poor attendance record, sub-standard equipment maintenance, and unresponsive and confrontational attitude towards his supervision were all legitimate, nondiscriminatory reasons justifying the termination of the Petitioner's employment, especially considering that he was in his probationary period. The Petitioner offered no persuasive evidence that, as a member of a protected class, he was treated differently or worse in any employment decision or category as compared to similarly situated employees outside his protected class. Additionally, based upon the above-found instances of deficient performance and deficient attitude toward supervision, the Petitioner did not offer persuasive evidence that he was qualified for the position in question from which he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition in its entirety. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronnie L. Ricks 3531 Southwest 30th Terrance, Unit 50-B Gainesville, Florida 32608 Daniel M. Nee, Esquire 200 East University Avenue, No. 425 Gainesville, Florida 32601
Findings Of Fact In the fall of 1986, the Respondent, James A. Campbell, and his associate, David Ritchie, were operating a construction business known as Town & Country Construction Corp. of Tampa. Campbell was the company's qualifying contractor. At the same time, Campbell and Ritchie were in the process of starting a new company to be known as Bay City Builders, Inc. In the application for state registration of the new business, Campbell also was listed as the qualifying contractor. Campbell and Ritchie had business forms, including contract forms, printed in the name of Bay City Builders, Inc., so as to be ready to do business upon approval of the pending application. On December 5, 1986, an employee of Campbell's company, a Mr. Earl Mills, responded to a telephone inquiry from a Mrs. Josefina Rodriguez, who was interested in having a room added and some other renovations done to her home at 551 South Lois Avenue in Tampa. Mills erroneously committed Bay City Builders to a bid on the job before its application was approved. In addition, the bid was seriously low and committed to completion of the job in just 60 days, an overly optimistic time frame even on a reasonable bid. Rodriguez accepted the bid, and Mills obligated Bay City Builders to a contract with her on December 5, 1986, with an addendum dated December 18, 1986. When Campbell, who was out of town at the time, and particularly Ritchie found out what Mills had done, they fired Mills. But they decided to honor the contract. Work began timely during the last week of December, 1986. At the outset of the work, the plumbing subcontractor discovered seriously deteriorated pipes all the way to the street. It was agreed that the pipes would be excavated and replaced outside the contract, to be paid directly by Rodriguez. This delayed the performance of the contract for a limited period of time. Nonetheless, work progressed in a timely fashion through January, 1987. By January 12, 1987, Rodriguez had paid $7859 of the $12,300 due under the contract. By some point in January, 1987, the foundation footers for the 15' by 24' addition had been dug and put in, the rough plumbing had been done, the concrete slab for the addition had been poured, the concrete block walls had been laid, and the framing for the roof had been built. But then work stopped for several weeks. Mrs. Rodriguez became very concerned for several reasons. First, she was planning a trip to Puerto Rico from June to August, 1987, and, as she had explained to Mills and Ritchie, she wanted the work done before she left. Second, without a roof over the addition, water began to pool in the addition during rains and leak into the main part of the house. Third, she had had difficulty contacting the entity that had taken her money. Mills was gone, and Bay City Builders seemed to her not to exist. Campbell and Ritchie had withdrawn the application to qualify it after the Rodriguez fiasco, and it never did any business before or since. There never was a telephone listing for it. As early as February, 1987, Rodriguez sought help from the Better Business Bureau, which could not even find Bay City Builders, and filed a complaint with the Petitioner, the Department of Professional Regulation, that the contractor had abandoned the job. In mid-February, 1987, a crew returned to the job site and put plywood and tar paper roofing material on the roof. This stopped the water leakage into the main house. But then work came to a virtual standstill. All of the $7859 had been spent, and work had not progressed far enough for the next draw, $2000, under the contract. Ritchie tried to explain the situation to Rodriguez, starting from Mills' unrealistic bid. As it was, Ritchie explained, the work would be done but it was going to be long and slow. Ritchie wound up having to borrow money personally and prevailed upon sympathetic subcontractors to forebear in collecting their due in order for Ritchie to finish the project. Practically no work was done during the rest of February, any of March or the first part of April, 1987. In late April, 1987, without any prompting from the DPR or the Better Business Bureau, Ritchie managed to get workers to the job site to finish the dry wall in the addition, which would trigger the next $2000 draw under the contract, and to shingle the roof of the house (addition and pre-existing roof.) When this work was finished in May, 1987, Ritchie contacted Rodriguez to ask for the $2000 draw. Mrs. Rodriguez asked to be assured that the work would be finished before she left for Puerto Rico in June. Ritchie apologized but said it would be impossible under the circumstances. He asked her to allow the work to continue in her absence. Rodriguez refused and also refused to pay the $2000. She said if Ritchie couldn't finish the work before she went to Puerto Rico, she would get someone else to do it. That was the last Ritchie or Campbell heard about the Rodriguez job until DPR initiated this proceeding. Rodriguez did not contact another builder about finishing the work until the end of October, 1987.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Construction Industry Licensing Board enter a final order dismissing the Administrative Complaint against the Respondent, James A. Campbell. RECOMMENDED this 7th day of July, 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 7th day of July, 1988. COPIES FURNISHED: Belinda H. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 James A. Campbell 719 South 50th Street Tampa, Florida 33619 Fred Seely Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street 6 Tallahassee, Florida 32399-0750
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was employed by Tredit at that facility. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it, Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week, but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared. Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit, Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner. Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.
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 Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc. DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1999. COPIES FURNISHED: Ramon T. Lee, pro se 832 Augusta Street Lakeland, Florida 33805 Antonio Faga, Esquire 375 Twelfth Avenue South Naples, Florida 34102 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether just cause exists to terminate the employment of Respondent with the Escambia County School Board (School District or School Board).
Findings Of Fact At all times material to these proceedings, Respondent was employed as a leaderman mechanic assigned to the Transportation Department. In this position, he was responsible for ensuring that mechanics properly completed their work and their records. Respondent's direct supervisor was Terry Orso. The Transportation Department is responsible for maintaining and operating the School District's fleet of school buses, as well as the support vehicles which are generally known as the "white fleet." The Transportation Department, including the garage for the maintenance of Petitioner's vehicles, is within the same building as the Parts Department. The Parts Department, however, is separated from the garage by a wall to ensure the security of the stocks of parts until these parts are turned over for installation in and the maintenance of Petitioner's vehicles. As a leaderman mechanic, Respondent initiated "Repair Orders," which were also known as "Work Orders," and completed part of a "Request for Materials," also known as a "chit" so that parts could be ordered from outside vendors and installed in Petitioner's vehicles requiring repair. The School District form known as a "Repair Order" requires information, including the vehicle number assigned by Petitioner, mileage of the vehicle, and the vehicle make and year. The form includes a section to identify the repairs to be made. The practice within the School District is to complete the top portion of the Repair Order when the vehicle is brought in for repairs with the identifying information. Each Repair Order has an identification number. The person completing the Repair Order is usually, but not always, a leaderman mechanic. Once the vehicle is repaired, the leaderman mechanic initials the form to confirm the correct repairs have been made and that the vehicle has been inspected. The initials of the leaderman mechanic are also written next to the identification number when all repairs are completed. When a vehicle has been brought to the Transportation Department for repairs, the Parts Department issues a chit. Once the chit is issued, an employee from the Parts Department, which is usually a leaderman mechanic, completes the upper left portion of the chit. This section identifies the vehicle, the date the request for materials is submitted, the initials of the mechanic submitting the request, the work order number, and the year and make of the vehicle brought in for repair. A Parts Department employee completes the upper right hand portion of the chit with information identifying the date the request for materials is received, the vendor that is contacted, the name of the person from whom the part is ordered at the vendor, and time of the estimated delivery of the parts. In 2007, Petitioner received information from one of its employees, John Bodie, that parts had been ordered from a vendor at the School District's expense for installation in a private vehicle. Mr. Bodie delivered a letter to the superintendent with copies of Transportation Department records attached. Petitioner initiated an investigation based upon the allegations of Mr. Bodie and the records he provided. Mr. Bodie alleged that he had been approached by Garage Manager Terry Orso to repair a vehicle owned by another employee, Ms. Diana Archer. Mr. Bodie claimed that, at Mr. Orso's request, he took Ms. Archer's vehicle, which was a 1988 Chevrolet Blazer, to his home to assess the needed repairs. He made a list of the parts that were needed to repair the Blazer's front end. Mr. Bodie alleged that, after he agreed to make the repairs, Mr. Orso told him the parts were on Lanny's (Respondent's nickname) desk. Mr. Bodie needed two additional brake calipers and alleged he was told by Mr. Orso that the parts would be ordered. Mr. Bodie received the additional parts and completed the repairs on Ms. Archer's Blazer. Ms. Archer paid Mr. Bodie for his services. Ms. Archer's statement was admitted into evidence without objection. She stated that Mr. Bodie repaired her Blazer and that she paid him for the work. She alleged that Mr. Orso told her "not to worry about the parts" and that the cost of the repairs would be $300.00-$350.00. Since Mr. Bodie admitted to being untruthful in an earlier investigation, Petitioner took extra care when attempting to corroborate his allegations. The investigation revealed that through Repair Order #22721 for School District vehicle #8667, a Chevrolet C-10 pick-up truck, parts were ordered for that vehicle, including parts for "front end repair." A chit was then completed for vehicle #8667 with a request for materials received June 2, 2005. The chit ordered "front end parts." The parts were ordered from a vendor First Call and received at Petitioner's Parts Department the same day. The parts ordered through Repair Order #22721 for vehicle #8667, the C-10 pickup, would not fit that vehicle. Those parts did fit a 1988 Blazer owned by Ms. Archer and repaired by Mr. Bodie. Repair Order #22721 bears the initials of Respondent as confirmed by Ms. Karen Nobles, a forensic document examiner. She noted that Respondent has a distinctive style of handwriting and that there was no question that he had initialed the Repair Order in question. To further corroborate Mr. Bodie's testimony, the School Board Auditor David Bryant was directed to check Petitioner's records to verify whether Mr. Bodie ordered the two calipers after initially receiving the parts to complete the repairs to Ms. Archer's vehicle. Mr. Bryant first checked the service records on vehicle #8667. Finding no calipers ordered in June 2005 for that vehicle, he checked a similar vehicle, #8691, another Chevrolet C-10 pick-up truck. Mr. Bryant located Repair Order #24674 dated June 7, 2005, indicating that brake repairs were needed, specifically "R and R both front brake calipers--flex lines." Respondent's initials were found on Repair Order #24674 indicating that the work was requested, inspected, and completed. The Repair Order corresponds with a chit for vehicle #8691, and the work order corresponds with the purchase order for the parts. Ms. Nobles, through forensic examination of these initials, verified that they too belonged to Respondent. The chit, however, was not completed in the normal manner. It was completed by a Parts Department employee identifying "Lanny" as the person requesting materials and that the "parts were ordered by White Fleet direct." The parts that were ordered were two calipers. As was the case with vehicle #8667, the parts that were ordered would not fit vehicle #8691, a Chevrolet C-10 pick-up truck, but would fit Ms. Archer's Blazer. Dr. Alan Scott, Assistant Superintendent, received a call from a mechanic telling him that Respondent and another mechanic, Robert Hutto, were planning to bring the C-10 pick-up truck into the garage to make it look as though repairs had been done to the front end of the truck. Dr. Scott and Mr. Bryant moved the truck into an area covered by surveillance cameras and then called the Sheriff's Department. The truck was secured by the Sheriff's Department and removed to its impound yard to be inspected by Sheriff's Department mechanics. Sheriff's Department employee, Louie Kemp, inspected Petitioner's C-10 pick-up truck and found that no new parts had been installed on its front end. Mr. Bryant's investigation concerning vehicle #8691 demonstrated not only that the brake parts ordered would not fit the C-10 pick-up truck, but that the same brake repairs had been reported as completed on the same C-10 pick-up truck three times in 2005: on February 16, June 7, and October 20. The State Attorney's Office reviewed the same evidence and determined not to further prosecute the case against Respondent, entering a Nolle Prosequi in the matter of State of Florida v. Andrew L. Mardesich, Circuit Court Case No. 1707CF005289B, for the reason that insufficient evidence existed to prove the charge beyond a reasonable doubt. Respondent does not know nor does he have any relationship with Ms. Archer. Respondent never spoke with Ms. Archer or anyone else about parts or repairs for her Blazer. Mr. Bodie acknowledged that he never spoke with Respondent about parts he needed to perform the work on Ms. Archer's Blazer; nor did Mr. Bodie obtain any parts from Respondent; nor was Respondent present when Mr. Bodie allegedly got the parts from Respondent's desk to repair Ms. Archer's vehicle. Mr. Bodie testified via deposition that he never personally observed Respondent involved with the purchase and installation of parts in Ms. Archer's car in any way. Mr. Bodie was not aware of any benefit Respondent may have received as a result of the work being performed on Ms. Archer's Blazer. Mr. Bodie's only involvement with the parts was through Mr. Orso, Respondent's supervisor, who told him about the job to be performed on Ms. Archer's vehicle and where to find the parts on Respondent's desk. Petitioner relied upon Mr. Bodie's statement to take action against Respondent and Mr. Orso for the ordering and installation of parts in Ms. Archer's vehicle. Respondent denies that he ordered or was ever asked to order parts that were installed in Ms. Archer's vehicle or any other non-School District owned vehicles. He denies ever ordering parts at the School District's expense and approving or installing them on vehicles not owned by the School District. Based upon Respondent's long work history with Petitioner, as well as his demeanor and candor in responding to questions at the hearing, the undersigned finds Respondent's testimony to be credible. Petitioner's records establish that parts were ordered using one vehicle number and installed in other vehicles owned by the School District. Petitioner's investigation documents establish that parts were not always ordered using the correct vehicle numbers. Respondent acknowledged that the ordering of parts using one vehicle number and installed in another vehicle owned by the School District was done when budget constraints forced a department to reimburse at a later date for services needed right away. Mr. Bryant, as well as other School District employees who looked into Transportation Department practices, expressed concern about this practice. Respondent acknowledged that as a leaderman mechanic, due to the busy work schedule in the garage, sometimes he took other mechanics at their word that the repairs had been performed and he would initial the work orders without a thorough, or even any, inspection of the work performed. Respondent never completed any work documents using the name "Lanny" or ordering any parts directly. Parts were ordered by the Parts Department. Respondent's usual way of initialing repair orders was with "A.M." The preponderance of the evidence presented at the hearing demonstrates that a scheme existed to order parts and perform work on non-District owned vehicles, in this case, a 1988 Chevrolet Blazer owned by one of Petitioner's employees, Ms. Archer. Mr. Bodie performed the repairs on Ms. Archer's vehicle using the parts ordered under the School District's account. Respondent did not knowingly sign repair orders or order parts for repairs on non-District owned vehicles, such as the Blazer owned by Ms. Archer. Prior to the investigation and notice of termination, Respondent had voluntarily entered the Deferred Retirement Option Program (DROP). Once he received notice from Petitioner that his employment would be terminated effective October 17, 2007, Respondent advanced his DROP exit and regular retirement to be effective October 17, 2007.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Escambia County School Board, rescind Respondent's termination and compensate him for his lost salary and benefits, including accrued retirement benefits, since the date of his termination on October 17, 2007. DONE AND ENTERED this 6th day of November, 2008, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2008. COPIES FURNISHED: Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Tom Wazlavek Union of Escambia ESP 6551 North Palafox Pensacola, Florida 32503 Emily Moore, Esquire Florida Education Association 300 East Park Avenue Tallahassee, Florida 32301-1700 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502-5782
The Issue Whether the Petitioner, Johnny L. Torrence, was subject to an unlawful employment practice by Respondent, Hendrick Honda Daytona, on account of his race or his age in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner, who was at all times relevant to this matter an employee of Respondent, is African-American. There was no direct evidence of Petitioner’s age. However, Petitioner worked at the automobile dealership currently owned by Respondent since October 1987. During Petitioner’s questioning of Mr. Moreford, Petitioner indicated that the two had worked together at the dealership for virtually that entire period, beginning when they were 18 years of age, a statement with which Mr. Moreford appeared to agree. Thus, a reasonable inference can be drawn that Petitioner is more than 40 years of age. Respondent owns and operates an automobile dealership located in Daytona Beach, Florida, having purchased the dealership in September 2011. Respondent is part of a larger group of dealerships, with its corporate offices, including that of its human resources department, located in Charlotte, North Carolina. Respondent employs more than 15 full-time employees at any given time. Petitioner was initially employed by Respondent in October 1987. He worked as a detailer for some period, and more recently was employed as a lot attendant. His duties were generally to greet customers and take vehicle information, and move vehicles from place to place as needed by sales and maintenance personnel. On May 2, 2013, a customer brought his vehicle to Respondent for maintenance. The customer was a former employee of Respondent, and was known by Petitioner. The customer was initially met by an advisor other than Petitioner. The customer asked that his vehicle mileage be listed on the service ticket as 1,000 miles less than its actual mileage.2/ Recording a vehicle’s mileage as anything other than its actual mileage is contrary to Respondent’s policies. Thus, the request was refused. Petitioner was assigned to deliver the customer’s vehicle and paperwork to the service lane. After having his request to reduce the vehicle’s mileage on the service ticket refused, the customer asked Petitioner to do the same. Petitioner complied with the request, scratched through the correct mileage written on the service ticket, and wrote in the lower mileage requested by the customer. Upon delivery of the service ticket to the service lane manager, the scratched- through mileage was noticed. Petitioner was asked whether the mileage he had written on the ticket was correct, to which he replied in the affirmative. The vehicle’s mileage was subsequently confirmed as being 1,000 miles more than that written by Petitioner. Petitioner was called into a meeting by Respondent’s management to explain the situation. Petitioner explained that he only did what the customer wanted him to do -- a variant of “the customer is always right.” As a result of his action, Petitioner was given a written reprimand. Based on the testimony of Mr. Moreford, it was determined that the Employee Counseling Report was a business record as defined in section 90.802(6). In late September 2013, a customer brought her vehicle in to Respondent for two new tires. Her old tires were removed and taken to the dealership’s holding area, at which all used tires are marked for identification and collected for delivery to a used tire recycling facility. Respondent does not allow employees to take used tires from the holding area. After the customer’s new tires were mounted, the customer indicated that she wanted one of her old tires for use as a spare. An employee was sent to the holding area to retrieve one of the tires. Since the tires are marked, there would have been no mistaking them. After a search, the employee was unable to locate the used tires. Several employees, including Petitioner, were asked if they knew the whereabouts of the used tires. Petitioner admitted that his sister needed better tires on her car, and that he had given the customer’s used tires to her. Petitioner was instructed to retrieve the tires and return them so they could be provided to the customer. Petitioner left the premises to retrieve the tires. After having waited a reasonable period of time for Petitioner to return, Respondent was compelled to give the customer a new tire from its inventory for her to use as her spare. After the customer left, Petitioner returned to the dealership with two used tires that were not the ones removed from the customer’s vehicle. On or about October 2, 2013, Petitioner was called into a meeting with the service lane manager, Mr. Sandrowicz, along with Dale Lockwood and Ralph Moreford. Mr. Lockwood and Mr. Moreford had worked at the dealership, under its current and prior owners, for most if not all of the years of Petitioner’s employment. During the meeting, the attendees discussed the incident with the tires, which was a violation of Respondent’s policies. Petitioner stated that a younger Caucasian employee, Brandon Swift, had done the same thing without repercussions. Nonetheless, Mr. Moreford advised Petitioner that he was terminated from employment as a result of the incident. On October 7, 2013, Petitioner was provided with a Separation Report describing the incident and its consequences. Based on the testimony of Mr. Moreford, it was determined that the Separation Report was a business record as defined in section 90.802(6). After the meeting was over, Mr. Swift was asked if he had taken any tires from the used tire holding area. Mr. Swift denied that he had done so. The used tire holding area was searched, and the tires alleged to have been taken by Mr. Swift were located. Petitioner speculated that Mr. Swift may have returned the allegedly purloined tires in time to avoid detection, though there was no support for that supposition. Thus, Mr. Swift is not a useful comparator of any dissimilar disciplinary action based on race or age. Mr. Moreford and Mr. Lockwood testified that Petitioner’s race and age had no bearing on the decision to terminate Petitioner. Rather, they testified credibly that the decision was based solely on the fact that Petitioner had violated company policy after having recently received a written warning for a different violation. Mr. Lockwood knew of no employee other than Petitioner having taken used tires. Petitioner identified no instance of any racially disparaging comments directed at himself or any other employee by anyone affiliated with Respondent. Petitioner identified no instance of any ill-treatment directed at him due to his age. Petitioner identified two instances in addition to that involving Mr. Swift that he believed support his claim of discrimination. For some period of time, “J.D.” was Respondent’s service manager. Petitioner did not like the way J.D. talked to him. On one occasion, J.D. came to the back of the shop area and said all of the employees gathered there were “ignorant and stupid.” The group of employees included three African- Americans and one or two Caucasians. In Petitioner’s view, J.D. was generally unpleasant to everyone. Thus, Petitioner’s testimony supports a finding that J.D.’s disagreeable nature was visited equally on all subordinate employees regardless of race or age. As a second comparator, Petitioner alleged that Respondent’s African-American employees were charged for washing their cars at Respondent’s car wash, while Caucasian employees washed their cars, trucks, boats, and motorcycles free of charge. There was no corroborating evidence for Petitioner’s statement and, standing alone, it is insufficient to support a finding that such occurred. Furthermore, the allegation, even if proven, was not so similar to that forming the basis for the adverse employment action as to provide a useful comparison. Petitioner argued that “it wasn’t right the way they fired me.” He asserted that Respondent should have given him a written warning for the tire incident rather than firing him. While the act of taking two used tires that, but for the customer’s request to keep one as a spare, would have been destined for a recycling facility seems a relatively minor infraction, it was nonetheless a violation of Respondent’s policies. More to the point, regardless of the severity of the infraction and the perceived fairness of the sanction, Respondent’s decision to fire Petitioner was not based on racial animus or age bias. Ultimate Findings of Fact There was no competent, substantial evidence adduced at the hearing to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race or age. Rather, the decision was based on Petitioner’s decision to take two tires from Respondent’s used tire holding area in violation of Respondent’s policies, and his eventual return to the dealership with two tires that were not those taken. There was no competent, substantial evidence adduced at the hearing that persons who were not African-American or were under the age of 40 were treated differently from Petitioner, or were subject to dissimilar personnel policies and practices.
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 finding that Respondent, Hendrick Honda Daytona, did not commit any unlawful employment practice as to Petitioner, Johnny L. Torrence, and dismissing the Petition for Relief filed in FCHR No. 2014-00303. DONE AND ENTERED this 26th day of February, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of February, 2015.
