Findings Of Fact The following findings of fact are made based upon an examination of the challenged procedures: Appendix-L of the Respondent's Manual of Policies and Procedures (the Manual) is entitled "Disciplinary Action Procedures For Career Service Employees." One of the stated purposes of this procedure is to recommend standard ranges of disciplinary actions for various deficiencies and offenses and to encourage consistency in disciplining department employees. Appendix-L is effective by its terms only to provide guidelines, subject in application to the discretion of Department of Education supervisors. Non discretionary directives contained in Appendix-L generally instruct the supervisor regarding documentation of action taken and check list items to ensure completeness and consistency once a decision has been made regarding disciplinary action. See, Respondent's Exhibit A. Appendix-M of the Manual is entitled "Department of Education Grievance Procedures." These procedures apply only to conditions in the workplace and within the Department of Education. While Appendix-M does contain mandatory language, this language is primarily directed toward processing a grievance once an employee elects to file and pursue one. The possibility of a co-worker's grievance resulting in disciplinary action against the Petitioner does not result from the challenged procedure but from the ultimate discretion exercised by the supervisory authority based upon facts ascertained during the grievance process. See, Respondent's Exhibit B. Neither of the challenged Appendices to the Manual are self executing nor do these procedures purport, in and of themselves, to create or adversely affect any private interests or rights of the employees involved.
The Issue The dispute in this case arises out of Petitioner's termination of Respondent's Employment with the Monroe County School District.
Findings Of Fact Having determined, for the reasons detailed below, that the Division of Administrative Hearings lacks jurisdiction in this cause, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation It is RECOMMENDED that Petitioner dismiss Respondent's request for an administrative hearing for lack of jurisdiction. DONE AND ENTERED this 29th day of September, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 29th day of September, 2010.
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2018.
The Issue Whether, Respondent, the Florida Department of Transportation (“Respondent” or “Department”), engaged in unlawful employment practices as alleged by Petitioner, Dajin Liu (“Petitioner”), in violation of the Florida Civil Rights Act (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Respondent Department of Transportation The Department is a state agency in the State Personnel System, within the executive branch of the State of Florida. §§ 20.04, 20.23, 110.107(30), and 216.011(1)(qq), Fla. Stat., and Fla. Admin. Code R. 60L- 29.002(6). Pursuant to section 20.23, Florida Statutes, the Department is charged with overseeing the construction and maintenance of transportation facilities, including roadways. Florida’s Turnpike Enterprises has additional authority under section 338.2216, Florida Statutes, to plan, maintain, and manage the Florida Turnpike system. Respondent adheres to rules established by the Department of Management Services (“DMS”), including Florida Administrative Code Rule 60L-33.003(2), which defines “Probationary Status” of employees in the Career Service System. The rule provides that while in probationary status the employee serves at the pleasure of the agency head and has no notice or appeal rights pursuant to section 110.227 and chapter 120, Florida Statutes. Respondent has written policies and procedures governing the conduct of employees. New employees are required to sign and acknowledge receipt of these written policies and procedures at the time of employment. Among the forms provided to new employees are: ADA Request Accommodation 275-000- 001-c; Disciplinary Actions 250-012-011-j; EEO Affirmative Action Policy 001- 275-001-v; and Employment Discrimination Complaints 275-010-001-l. Respondent’s written policies and procedures specifically prohibit any employee from engaging in employment discrimination, workplace harassment, or retaliation. Moreover, Respondent has established detailed written procedures for reporting and investigating all allegations of discrimination, harassment, or retaliation, consistent with Florida and Federal law. Petitioner’s Employment with Respondent On December 19, 2018, Respondent advertised Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, which is part of the Construction section of Respondent’s District 5. The advertisement included a statement regarding Respondent valuing and supporting the employment of “individuals with disabilities.” Further, the advertisement specifically read, “[q]ualified individuals with disabilities are encouraged to apply.” The advertisement provided notice that Respondent complies with section 110.112, has a “Disabilities Affirmative Action Plan,” and will provide a reasonable accommodation upon request. With this advertisement, Respondent was seeking a qualified individual to review “moderately complex” structures plans and technical documents. The successful candidate would offer professional recommendations, resolve design issues, and work collaboratively with Review Committees working on projects in Respondent’s Construction section. The employee would perform structural analysis, design, and calculations, as well as, prepare plans for bridges and highway structures, and offer structural engineering support to both Respondent and consultant staff. The Knowledge, Skills, and Abilities (KSAs) for the position included knowledge of Respondent and industry’s standards, specifications, and manuals, as well as software related to road and bridge construction and design. The candidate would need to be skilled in solving engineering problems, utilizing structural design/analysis software, reading and interpreting structures and roadway construction plans, preparing project scopes of services, and labor costs estimates. The candidate needed to have the ability to “effectively coordinate and communicate with others,” both verbally and in writing, adapt to the needs of various sections within whom they would collaborate, and to establish and maintain effective work relationships. The position required the selected candidate to be able to respond to emergencies, which mandated the candidate be reliable and dependable at times of urgency to restore transportation to normalcy. Finally, the new employee would need to be an effective and professional representative of Respondent, and make recommendations or decisions consistent with Respondent and industry standards. Petitioner submitted a State of Florida application and resume. Petitioner represented his work history on his application as: 3/01/1992-03/31/1995 – Fong & Associates – left for “other opportunity” 2/07/1997-08/31/2006 – Parsons – left for “other opportunity” 07/01/2012-12/31/2016 – TranSystems – left for “other opportunity” 01/01/2017-11/30/2017 – Globetrotters – reason for leaving “slow” 04/01/2018-09/302018 – David Liu (Petitioner seems to indicate he was self-employed) – reason for leaving was “slow” Petitioner’s resume, which accompanied his application, indicated his work history as: 04/18-09/18 – GAI Consultants 01/17-11/17 – Globetrotters (reason for leaving is slow) 07/12-12/16 – TranSystems (Reason for leaving is other opportunities) 12/97-08/06 – Parsons (Reason for leaving is other opportunities) 03/92-03/95 – Fong & Assoc. As required by the position, Petitioner was licensed in the state of Florida as a Professional Engineer, effective November 11, 2018. Petitioner was notified via letter dated January 25, 2019, he was selected for Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, in Respondent’s District 5, effective Monday, January 28, 2019. Petitioner was advised his position was a Career Service position assigned to Broadband Code 17-2199-04, Broadband Title “Engineering.” Petitioner was also advised he would be evaluated at least once annually, and that he would be in probationary status for a period of one year. Further, Respondent’s letter explained that while on probationary status, Petitioner was not considered permanent in the Career Service, would serve at the pleasure of the agency, and would be subject to various employment actions at the discretion of the agency, without right of appeal, in accordance with chapter 60L-33. Petitioner signed Respondent’s Receipt Acknowledgment Form affirming notice and receipt of Respondent’s policies, rules, and procedures, which included the Equal Employment Opportunity/Affirmative Action Policy, Sexual Harassment, Equal Employment Opportunity and Affirmative Action Rule, and Employment Discrimination Complaints Procedure. At hearing, Petitioner testified his disabilities are “diabetes” and “brain cancer,” the latter being diagnosed in January 2017. He admitted never disclosing either of these conditions to Respondent. Petitioner’s Termination After being in the position for just two months, Petitioner was terminated from his position with Respondent effective March 30, 2019. According to the testimony of Respondent’s witnesses, Petitioner was terminated due to his failure to successfully complete his probationary period. Specifically, Petitioner engaged in conduct which violated Respondent’s Standards of Conduct, and failed to meet performance standards during his brief employment with Respondent. According to an internal e-mail from Marisol Bilbao, the District 5 Human Resources Manager, the following conduct led to Petitioner’s dismissal: Does not seem to keep track of his assignments (ERC/emails); Frequently away from his desk, wandering the halls; Does not actively engage in his project assignments; Badge swipe-in log shows inconsistent work schedule since joining Respondent; Has fallen asleep during meetings with consultants in attendance; He was disruptive during meetings, and would leave to take calls which did not appear to be work related; High use of leave time for last-minute personal issues; Does not engage with co-workers on learning Respondent processes (Timesheet, ITP); Has difficulty keeping his work area clean; Stated he did not have time to finish an assignment given to him a week prior and not due for two (2) days; Asking female coworkers out on dates; Asking coworkers to take care of his pets. Gary Skofronick was Petitioner’s direct supervisor. Mr. Skofronick testified that, despite his efforts to assist Petitioner in succeeding in his new position, Petitioner did not seem “interested or engaged or wanting to learn about what we were actually doing in our unit.” Further, as Mr. Skofronck explained to Petitioner, the importance of being engaged is that it “prevents errors” in the construction of bridges and other road projects, which might otherwise lead to catastrophic events. Mr. Skofronick testified to incidents when Petitioner would claim to have just received an email on an assignment shortly prior to the due date, when in fact Mr. Skofronick had sent the email in ample time for Petitioner to complete the assignment. In one instance, the assignment had been given weeks earlier. Mr. Skofronick felt Petitioner did not take “ownership” of his projects. This created a safety risk and potentially impacted the longevity of the structure. According to Mr. Skofronick, Petitioner was far more focused on doing what he wanted to do, versus being accountable for producing a quality work product. Mr. Skofronick testified he had grave concerns about Petitioner’s performance prior to a Value Engineering (“VE”) workshop where Petitioner fell asleep and was a distraction with leaving and making personal phone calls. He was told by several employees of Petitioner’s disruptive conduct and lack of participation in the workshop. At hearing, Petitioner offered no evidence to refute the truth of any of the events or behavior described above. Petitioner’s Charge of Discrimination In his Petition, Petitioner alleges his dismissal from the Department was an act of discrimination based upon his age, race, and disability. Petitioner appeared at the final hearing pro se, and so his testimony was given in narrative form, with some questions posed by the undersigned. When asked to explain “exactly what happened and why it is that you feel you have been discriminated against,” Petitioner testified as follows: MR. LIU: Yeah. In my case, I think that before I was terminated, about, like, two weeks before I was terminated, I went to—they called a VE engineering study in a—in a conference room for a week. So then they—well, I don’t know. It’s hard to tell whether I was sleeping during the meeting or not. It’s hard to tell because I had a disability. I was taking, like, a lot of medication at the same time, so making me very drowsy. And then I—after the—that engineering study, while the roadway manager, who hosted the—the meeting then, he told my boss I was sleeping at the –the study. So I explained to him I had the disability and I was taking lots of medications. An the—so it’s hard to tell I was sleeping or not because I tried to be—I mean, I made a lot—I asked lots of questions during the study, I mean. Then I didn’t see any pictures showing I’m sleeping. So I can tell—because I asked should I report my disability to the HR—HR. They said no. Then they terminated me. I mean I was the department manager when I was working for another consulting firm. Before you terminate somebody you should be—have to conduct a meeting with the employee you are going to terminate. Tell them you need to improve your performance in couple weeks or in couple months. But they—they didn’t conduct such a meet— meeting. They just terminated me right away. And also, I was in this business for 20 plus years. I never see a white person was terminated due to the disability. * * * ADMINISTRATIVE LAW JUDGE WATKINS: Okay. All right. You also testified that you believe that a white employee would not have been terminated under the same circumstances that you were. What is the basis for that belief? MR. LIU: Well, I’m in this business—well, in US, for more than 20 years. I work for, like, a more than, like, ten different firms. Well once I can tell in the—after I was diagnosed with brain cancer, I was terminated, like, eight times for the ten job I have for the last three, four years. Petitioner admitted to sleeping in the meeting but testified it was out of his control; and he admitted to taking personal phone calls during the meeting. He would later attempt to refute this admission, asking to be shown proof, or making a general self-serving claim of others making personal calls. Petitioner refused to accept any responsibility for causing a disruption during the meeting, and attempted to minimize the extent of his involvement. Petitioner could not identify any similarly situated comparator of any other race or age, or anyone with or without a disability, who was permitted to sleep in the meeting, or did in fact sleep in the meeting. Petitioner testified he never asked for an accommodation relating to his handicap, nor did he provide documentation of any medical condition during his employment with Respondent. He then claimed he told the Respondent “verbally” about his disability, but acknowledged he did not provide information about his disability during the recruitment and selection process. Petitioner stated that he was fired from a previous job in 2017 the day after he told his boss he had brain cancer. According to Petitioner, as a result of this experience, he learned not to tell prospective employers he had a disability. Petitioner testified he believed his age was a factor in his termination based upon observations from his past employment, not while working for Respondent. Petitioner testified he has no evidence, other than his opinion, that age was a factor in his termination by Respondent. Petitioner admitted he has no knowledge whether any of his supervisors had issues with his race, age, or disabilities, in general. He admitted his claims are merely his opinion or presumption; or are based upon his experiences which occurred prior to his employment with Respondent. He readily acknowledged that he had no direct evidence of discrimination, nor examples of any statement or conduct motivated by, or related to, his age, race, or disability. In his post-hearing filing (denominated his “Facts Statement”), Petitioner focused on his assertion that he was a “very good employee,” and has an employment history to support that assertion. Attached to his Facts Statement was Petitioner’s resume and list of his publications. There were no proposed findings of fact that in any way supported his allegations of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 8th day of February, 2021, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Adrienne Del Soule, Esquire Florida Department of Transportation Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Dajin Liu Extended Stay America Room 136 1181 North Rohlwing Road Itasca, Illinois 60143 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
Findings Of Fact The factual allegations contained in the Stop-Work Order for Specific Worksite Only and Order of Penalty Assessment issued on May 12, 2010, the Amended Order of Penalty Assessment issued on June 22, 2010, the Amended Stop-Work Order and Order of Penalty Assessment issued on July 30, 2010, the 4th Amended Order of Penalty Assessment issued on January 19, 2011, the Notice of Voluntary Dismissal, and the Order Closing File which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop-Work Order for Specific Worksite Only and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the Amended Stop-Work Order and Order of Penalty Assessment, the 4th Amended Order of Penalty Assessment, the Petition for Administrative Review, the Notice of Withdrawal, and the Order Closing File, and being otherwise fully advised in the premises, hereby finds that: 1. On May 12, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order for Specific Worksite Only and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-139-D1 to JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. 2. On May 12, 2010, the Stop-Work Order for Specific Worksite Only and Order of Penalty Assessment was personally served on JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. A copy of the Stop-Work Order for Specific Worksite Only and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On June 22, 2010, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-139-D1 to JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. The Amended Order of Penalty Assessment assessed a total penalty of $88,153.87 against JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. 4. On June 23, 2010, the Amended Order of Penalty Assessment was served by certified mail on JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On July 20, 2010, JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING filed a Petition for Administrative Review (“Petition”) with the Department in response to the Amended Order of Penalty Assessment. A copy of the Petition is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On July 30, 2010, the Department issued an Amended Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-139-D1 to JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. 7. On August 12, 2010, the Amended Stop-Work Order and Order of Penalty Assessment was served by certified mail on JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. A copy of the Amended Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On January 19, 2011, the Department issued a 4th Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-139-D1 to JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. The 4th Amended Order of Penalty Assessment assessed a total penalty of $18,003.57 against JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. 9. On January 28, 2011, the 4th Amended Order of Penalty Assessment was served by United States mail on JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING. A copy of the 4th Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On May 19, 2011, the Petition was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 11-2577. 11. On May 26, 2011, JODY L. GRIFFIS, D/B/A GRIFFIS CUSTOM FRAMING filed a Notice of Voluntary Dismissal. A copy of the Notice of Voluntary Dismissal is attached hereto as “Exhibit F” and incorporated herein by reference. 12, On May 31, 2011, an Order Closing File was entered in Division of Administrative Hearings Case. No. 11-2577. A copy of the Order Closing File is attached hereto as “Exhibit G” and incorporated herein by reference.
The Issue What amount of attorney's fees is to be paid to Petitioner pursuant to the award of fees in the Final Order Awarding Affirmative Relief from Unlawful Public Accommodation Discrimination. What amount of costs is to be paid to Petitioner pursuant to the award of costs in the Recommended Order and Final Order.
Findings Of Fact A Recommended Order was entered by Daniel M. Kilbride, Administrative Law Judge, on October 17, 2002, awarding affirmative relief as follows: Finding that Respondent discriminated against Petitioner based on her race (African-American); Awarding Petitioner $500 in compensatory damages; Issuing a Cease and Desist Order prohibiting Respondent from repeating this practice in the future; and Awarding a reasonable attorney's fee as part of the costs. Respondent filed Exceptions to the Administrative Law Judge's Recommended Order, but did not file a transcript of the hearing as required in administrative proceedings. As a result of the failure, FCHR ordered the Exceptions stricken. FCHR's Final Order adopted the Recommended Order's Findings of Facts, Conclusions of Law, and remedies for the discrimination. No appeal was filed by Respondent. Respondent filed statement of defenses to the Motion for Hearing on Attorney's Fees and Costs in which Respondent denied that its action in the underlying proceeding was not justified and contended that the award requested by Petitioner would be unjust. The amount of reasonable attorney's fees and costs was sought pursuant to Section 509.092, Florida Statutes (2003), unfair discrimination by the operator of a public lodging establishment. Section 509.092, Florida Statutes (2003), which establishes a right of action pursuant to Section 760.11, Florida Statutes (2003), specifically states that an award of attorney's fees should be interpreted in a manner consistent with federal case law involving a Title VII action. Petitioner testified in the prior hearing that she was badly hurt by the treatment received at the Sleep Inn. When she was discriminated against, she threatened a suit against the hotel that night because she wanted them to give her a room. When she did not receive a room, she felt she had been treated in a humiliating fashion and was emotionally injured. She sought counseling professionally, then continued counseling with her sister, who was a licensed psychologist. Petitioner determined that the Sleep Inn was not going to apologize to her or do anything except back-up its staff member. She felt she had to leave it to legal remedies to secure relief for herself and others. When an offer was received from Respondent's attorney in a letter dated January 28, 2002, offering a sum to save costs of litigation, but denying any liability on the part of Respondent, Petitioner wanted to go forward with the matter to receive public acknowledgement that she had been discriminated against by Sleep Inn. Thus, Petitioner was satisfied with the Recommended Order and the Final Order of FCHR, even though the dollar amount awarded to Petitioner was only $500.00. Petitioner was aware that there were financial differences in damages for filing an administrative proceeding versus a civil action in circuit court. Petitioner understood that monetary damage for pain and suffering could not be awarded in the administrative procedures. Only documented economic damages could be awarded to Petitioner along with affirmative relief declaring that she was discriminated against and directing Respondent to stop condoning discriminating acts. Petitioner retained Tricia A. Madden, Esquire, on June 13, 2000, to represent her in seeking relief from the discriminatory act and signed a contingency contract. The contract states that Petitioner's attorney will be paid the greater of a reasonable attorney's fee awarded through the administrative process or a percentage fee from the total recovery. The contract further states that if the client prevails or if the contract is terminated, the client must pay the costs listed on the contract to include all costs in investigation, research, and litigating the claim, including, but not limited to, telephone charges, copying costs, postage, and transportation charges. A charge of discrimination was filed on October 18, 2000, with FCHR. When the charge could not be quickly identified as received by FCHR, a second charge was filed on May 23, 2001. Determination of Cause in favor of Petitioner was received after an investigation was conducted by FCHR. Respondent continued to deny liability and made no offers to accept liability or provide any relief to Petitioner. Thereafter, Petitioner's Petition for Relief was timely filed. An attorney appeared for Respondent and filed a Motion to Dismiss. It was withdrawn after discussions with Petitioner's counsel when Respondent's counsel was made aware that the specific motion was inapplicable to a public lodging discrimination case. Stephen F. Baker, Esquire, was substituted as counsel for Respondent on January 6, 2002. He filed a Motion for Summary Judgment on grounds which were not applicable to a public lodging establishment case and outside the jurisdiction of the Administrative Law Judge. The Motion for Summary Judgment was denied by the Administrative Law Judge. Petitioner's counsel has practiced law for 20 years and has practiced in the area of discrimination law in various types of cases, including public lodging establishment cases, employment discrimination cases, Americans with Disabilities Act cases, and education cases for disabled children in civil court and in administrative proceedings. She regularly takes such cases on a contingency basis, believing it is necessary in order to give Petitioner access to the courts. Petitioner's counsel said that although she had a very capable paralegal and staff to assist her in other cases, her paralegal and staff were not qualified to provide more than secretarial assistance in handling discrimination cases; and she has never been able to find a paralegal who was knowledgeable in discrimination cases. Therefore, all of the legal work, including directing the investigation, contact with witnesses, and all pleadings were handled by her in discrimination cases. Her time on the case covered three and a-half years, when the Final Order was entered, and Mr. Indest was attorney-of-record for 13 months. Mr. Indest testified on behalf of Petitioner as an expert on attorney's fees and costs and provided his curriculum vitae. Mr. Indest testified to extensive experience in teaching seminars and classes and writing publications on the subject of attorney's fees and the law, standards, and method of determining the reasonable amount of fees and costs. Mr. Indest is familiar with Florida Patients Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985); Standard Guaranty Insurance Company v. Quanstrom, 555 So. 2d 828 (Fla. 1990); and the Rule Regulating Florida Bar 4-1.5 and testified to each factor identified in the rule. Mr. Indest had a previous opportunity to observe Ms. Madden's skills when they were opposing counsel in a nursing home case and when Ms. Madden testified for him as an expert witness on issues, not attorney's fees, in an administrative hearing case where he represented a Petitioner versus the Department of Children and Family Services. He testified that Ms. Madden had a reputation in the community of being a very skilled and aggressive attorney with 20 years' experience representing plaintiffs and petitioners. He further testified she was the only attorney that he was aware of who took discrimination cases on a contingency basis and one of only three attorneys he knew that regularly took discrimination cases on behalf of an employee. Mr. Indest testified he had specifically surveyed other attorneys in the Orlando area as to the fees charged in administrative proceedings and discrimination cases. He testified the range of fees for handling discrimination cases and administrative cases in the Orlando metropolitan area is from $250.00 to $450.00 per hour for one attorney who had only 15 years of experience and from $400.00 to $500.00 for one attorney with 30 years of experience. Other attorneys with 20 years of experience charge fees from $300.00 to $450.00 per hour. Mr. Indest charges $350.00 per hour and is raising his fee as of January 1, 2005, to $400.00 per hour. Mr. Indest said Ms. Madden had only requested $300.00 per hour in this case and should raise her fees to be commensurate with her skills, knowledge of the area of law, and the fees usually charged in the Central Florida area. It was his opinion that $300.00 per hour was a very reasonable fee in the local market for this case. Mr. Indest reviewed the taxable costs submitted on the amended costs list and said that with exception of the Westlaw figures, which Ms. Madden had withdrawn, all costs were reasonable and had to be paid by Petitioner. They were less than he and others would have charged, were applicable, and should be awarded to Petitioner. Mr. Indest testified he had spent eight hours prior to the day of hearing and approximately two more hours before the hearing reviewing the file on the Vanessa Brown case and asking questions on the case and proceedings. He stated he had reviewed the file, but had not read the depositions in detail, although he had scanned the six depositions. He noted Ms. Madden's time for preparation and attendance included travel time, depositions, research, investigation of the witnesses, and the trial of the case. He had read the Recommended Order and, in his opinion, the necessary testimony to support the case was detailed. It was his opinion that it took a high level of skill to prosecute the case successfully. He stated the 122 hours claimed by Petitioner's counsel were very reasonable and that he would have probably had to spend closer to 200 hours preparing the case. He said Petitioner's counsel demonstrated her expertise and efficiency in handling the case by the fact that she prepared for and tried the case at hearing with successful results of her client with only 122 hours of work. Mr. Indest noted Respondent's counsel billed no preparation time for depositions and hearings. He found that unusual and puzzling, and stated that preparation time was certainly necessary for a petitioner's counsel. He said Petitioner had to carry the burden of proof and had to marshall the evidence and witnesses. Mr. Indest stated he could accept that Ms. Madden put in 11 hours or more on any given day at times on this case since he often had to work more than 11 hours a day. Mr. Indest observed that the Proposed Order prepared by Petitioner's counsel was well prepared. Respondent's attorney testified he had been an attorney since 1976 and had been retained by Respondent sometime in December 2001. Respondent's attorney said he felt the case was always a money case from his initial involvement. In the Proposed Recommended Order, Petitioner had asked for $15,000.00 as a monetary consideration. However, the monetary award was only $500.00. He agreed that the court costs claimed were reasonable. He would have discussed an apology if that was what Petitioner wanted with his client, who was a businessman. However, contrary to this suggestion that his client would have admitted liability, settlements normally do not admit liability or fault on the part of the defendant. Respondent's attorney said he spent 44 hours on this case with six depositions and two witnesses at trial. He argued that Petitioner's counsel claimed that she had 140 other active cases and could not possibly have spent three weeks' preparation time on this case. Mr. Young testified that he has practiced since 1976 and has handled a variety of cases. He said he has been involved in discrimination cases as the attorney for the City of Davenport and later the City of Winter Haven. He stated on cross-examination that he has not gone to trial on a discrimination case; that they were always settled before litigation. He reviewed Respondent's file to prepare his Affidavit for an hour and a-half. He spent another hour and a- half the day of the hearing to review Respondent's file to refresh his memory and review Petitioner's counsel's hours. He testified that the outcome of the case should have been apparent from the first, and it was a routine case. He did not read the depositions, but he read the Recommended Order and felt it was a simple case of limited complexity. He said in his opinion the case could have been done in five days of work altogether, with one-half day for all pleadings and one day to both prepare and try the case. It was a straight-forward presentation and story, and the fee should only be $200.00 per hour. He had not surveyed any other attorneys who had litigated discrimination cases or who represented plaintiffs/petitioners in discrimination cases. He said in Central Florida, fees are all over the block; and they had attorneys in Winter Haven who charged up to $450.00 per hour. He said litigation should be a last resort, and it was a public interest case with no monetary recovery. He was of the opinion that 40 hours at $200.00 was reasonable, and he had reduced the fee to $6,000 based on results obtained. The expert witness for Respondent alleged that the delay in response to interrogatories and a Request to Produce were demonstrations that Petitioner's attorney had not performed her role efficiently, had wasted the time of Respondent's counsel, and time for such actions should not be billed or awarded to Petitioner. Respondent wasted Petitioner's counsel time also with two erroneous motions, but Respondent's counsel billed his client for his motion as noted in his time statement. Urging clients to complete discovery is a known time requirement of attorneys, and the delay was caused by Petitioner's personal problems, not by Petitioner's counsel. Ms. Madden voluntarily withdrew the entry of eight hours on her item slips listed as time spent proofing the attorney's fees time delineation. Entitlement to attorney's fees and costs had already been established by this tribunal in the Recommended Order and Final Order. Petitioner's counsel also voluntarily deleted $356.35 for Westlaw research, as a cost not chargeable to Respondent.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that a final order be entered: Awarding attorney's fees to Petitioner in the sum of $54,900.00; and Awarding costs to Petitioner in the sum of $8,315.79, which includes $4,200.00 to be paid to Petitioner for payment of Petitioner's expert witness, George F. Indest, III, Esquire. DONE AND ENTERED this 23rd day of November, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 2004. COPIES FURNISHED: Stephen F. Baker, Esquire Stephen F. Baker, P.A. 800 First Street, South Winter Haven, Florida 33880 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Tricia A. Madden, Esquire Tricia A. Madden, P.A. 500 East Altamonte Drive, Suite 200 Altamonte Springs, Florida 32701 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, the Dade County Police Benevolent Association (Respondent) was the collective bargaining agent for the bargaining unit of the City of Hialeah Police Department (CHPD). Warren D. Brown (Petitioner) is a black male. At all times material hereto Petitioner was a law enforcement officer with the CHPD, a member of the bargaining unit and a dues paying member of the Respondent. On or about May 11, 1992, Petitioner was attempting to exit a secured and locked double doorway located on the east side of the CHPD's building. Upon pushing a switch, a lock mechanism releases the lock, and a door can be opened. However, at this particular time, the lock was not immediately released. Petitioner applied greater force to the door, which caused it to swing open forcefully (when the lock did release) and strike another officer who was attempting to enter the building through the same door. Petitioner was heard to chuckle after exiting the door. Approximately two to three days later (May 13 or 14, 1992), the officer who was struck by the door filed an internal complaint against Petitioner. The officer had discussed the incident with a CHPD sergeant who had had problems with the Petitioner in the past and who had filed several internal complaints against Petitioner. The officer alleged in his complaint that Petitioner intentionally hit him with the door. The internal complaint was referred to CHPD's Internal Affairs for investigation. The investigation included taking statements from Petitioner, the officer and any witnesses. When the internal complaint was filed against Petitioner, he contacted Respondent for assistance, and Respondent's Senior Attorney, James Casey, represented Petitioner. Casey was present with and represented Petitioner at the initial questioning by Internal Affairs. On or about June 16, 1992, Internal Affairs issued its findings to CHPD's Chief of Police (Chief). The Internal Affairs investigator concluded that Petitioner had intentionally hit the officer with the door. On July 7, 1992, the Chief issued a disposition of the complaint. The Chief determined that the complaint against Petitioner was sustained and that the appropriate discipline was a 10-hour suspension without pay. Further, the Chief scheduled a pre-disciplinary hearing for July 21, 1992. On or about July 13, 1992, the Chief had prepared a recommendation to the Mayor of the City of Hialeah that Petitioner be suspended without pay for 10 working hours from the CHPD. The letter included a summary of the incident, the rules and regulations violated by Petitioner and the disciplinary action for such violations. However, the recommendation was never forwarded to the Mayor for his approval. 1/ The pre-disciplinary hearing was held and, as a result of that hearing, a CHPD Captain was requested to view the photographs of the door which were taken at the time the incident occurred and to examine the door itself. On August 3, 1992, in a memorandum to the Chief, the Captain indicated that it was possible that the door did stick and that Petitioner was not aware of the officer's presence. Furthermore, the Captain recommended that one of the doors be labeled for entering and the other for exiting and that a caution zone be established to alert individuals that they should use caution when opening the doors. Casey was also present with and represented Petitioner at the pre- disciplinary hearing. After the pre-disciplinary hearing, Petitioner contacted Respondent almost on a weekly basis inquiring about the status of his case. Each time Respondent had nothing to relate to Petitioner indicating that nothing had been done by the CHPD and the Mayor. In August 1992, Casey terminated his employment with Respondent. He was replaced by Michael Braverman. Petitioner continued his weekly inquiry to Braverman and received the same response as before. On or about October 20, 1992, the Chief changed the discipline to a written reprimand. However, again, this disciplinary recommendation was not forwarded to the Mayor for his approval. On or about November 19, 1992, Braverman recommended to Petitioner that he accept oral counseling, or an oral reprimand, and end the matter. Petitioner refused. Finally, on or about December 6, 1992, Petitioner forwarded an internal memorandum to the Chief inquiring about his case, reminding him that, according to the collective bargaining agreement, the complaint should have been resolved within 60 days and allowing him five working days to resolve the complaint before he appealed to the next level. On or about December 11, 1992, the Chief informed Petitioner that the complaint was sustained for violation of courtesy conduct but that the disciplinary action (a written reprimand) was rescinded due to "unreasonable delay in imposing the written reprimand." Even though the written reprimand was rescinded, the Chief recommended to the Mayor that Petitioner receive oral counseling which was in essence the same as an oral reprimand. The Mayor approved the oral counseling. Petitioner contacted the Mayor who confirmed that the sanction was oral counseling. Article 26, entitled "Disciplinary Review Procedures," Section 2 of the collective bargaining agreement entered into between the City of Hialeah (City) and Respondent 2/ provides in pertinent part: k. The employee who is the subject of a complaint or allegation shall be promptly notified of the disposition upon the conclusion of the investigation. In any investigation in which the charges against the officer cannot be substantiated, the officer shall be deemed to have been exonerated of any charges. * * * o. Any internal investigation, except where criminal charges are being investi gated, shall be completed within sixty (60) days from the date the officer is informed of the initial complaint. No officer may be subjected to any disciplinary action as a result of any investigation not completed within that time period. Oral counseling is not considered by Respondent or the City as discipline. As a consequence, there is no appeal of such an action against an employee of the City who is also a member of the bargaining unit represented by Respondent. However, oral counseling is considered "progressive discipline" which means, in essence, that CHPD can consider it if another complaint against Petitioner is sustained involving a violation of courtesy conduct and impose a sanction which is considered disciplinary. Because of this possibility of a disciplinary sanction being imposed in the future, Petitioner objected to the oral counseling. Petitioner contacted Respondent to appeal the oral counseling. Petitioner discussed the situation with Braverman, Respondent's attorney. Braverman informed Petitioner that there was nothing to appeal since oral counseling was not discipline but that, pursuant to the collective bargaining agreement, Petitioner could respond in writing to the oral counseling and have the response placed in his personnel file. Consequently, Braverman informed Petitioner that Respondent could provide no representation. Article 44 of the collective bargaining agreement, entitled "Personnel Records," provides: Section 1. Each bargaining unit employee shall have the right to respond, in writing, to any and all derogatory material placed in their personnel file and have that response placed in their personnel file. Section 2. Employees who complete two (2) years of discipline free service shall have all counseling and/or written reprimands removed from their personnel files pursuant to State of Florida Department of Archives guidelines. This complaint against Petitioner was not the first complaint against him but was one of many. The Chief and certain uniformed supervisors of the CHPD have a history of filing complaints for internal investigation against Petitioner. 3/ Respondent was well aware of that history and has, in fact, represented Petitioner in many of the complaints. Historically, Respondent has not been free of discriminatory practices toward black officers. In 1972 a federal court held that the Miami PBA 4/ had discriminated against black officers by not permitting them to become members of the PBA, but permitting white officers to become members. The federal court ordered the Miami PBA to allow black officers to become members and to offer them the same benefits as white officers. Adams v. Miami Police Benevolent Association, 454 F.2d 1315 (5th Cir. 1972), cert. denied, 409 U.S. 843 (1972). However, since that federal case, there has been no legal showing of discrimination by Respondent. Contrastingly, through court action, Respondent eliminated a discriminatory practice by the City that benefited a black officer. Sometime in 1980, 5/ several white officers and one black officer 6/ were denied the opportunity to take the examination for police chief by the City. They contacted the Respondent for legal assistance,which represented the officers in a court action against the City. The court ordered the City to administer the exam to the officers. Notwithstanding, the City permitted the white officers, but not the black officer, to take the police chief exam. The black officer again approached Respondent for legal assistance. Respondent denied him such assistance. Respondent's position was that, even though the court had ordered the City to permit him to take the police chief examination, at that point in time the City had already appointed the police chief. Furthermore, Respondent indicated that to pursue the matter further would provide no meaningful redress. Respondent's Policy No. 84-2, entitled "Request For Legal Assistance" (Legal Assistance Policy), controls the Respondent's legal representation of its members. The Legal Assistance Policy defines legal assistance as "the representation of Association members at administrative and disciplinary hearings as well as taking judicial action on behalf of Association members, in accordance with the provisions of this policy." Under this Policy, a member of the Respondent is eligible for legal assistance "if the matter arises out of the scope of the member's employment" and the member was in "good standing" 7/ at the time of the incident and remained in good standing throughout the course of any legal action pertaining to the matter. Also, pursuant to the Legal Assistance Policy, a member who is approved for legal assistance must accept Respondent's attorney for representation. Other counsel may be used only when the Respondent's attorney has a conflict and when approved by the Legal Assistance Coordinator or the Board of Directors. Furthermore, benefits provided pursuant to the Legal Assistance Policy are applicable only to administrative and trial level actions and may be applicable to appellate level actions under certain specific situations. The Legal Assistance Policy also defines "Legal Defense Benefit" as Respondent's Policy No. 3-80 which provides "coverage for members, in good standing, for incidents within the scope of employment resulting in criminal or civil prosecution." Policy No. 3-80 (Legal Defense Benefit Policy) provides that Respondent will provide its members with this benefit "only in those cases where a lawsuit or criminal indictment results from professional acts or omissions which arise out of and in the scope of their duties as a law enforcement officer." Further, it provides that the benefit consists of Respondent paying "attorney's fees and directly related Court costs." Petitioner never requested the Respondent to file an action against the City or the CHPD on the grounds of racial discrimination in the CHPD's disciplinary action(s) against him. Petitioner believed that he was not required to make such a request because it was obvious what the City or CHPD was doing and that the Respondent should have taken the initiative and filed a discrimination action. Even though the Respondent's action of allowing the CHPD to continue the investigation of the complaint against Petitioner for several months beyond the 60-day limitation is suspect, there was insufficient evidence of any disparity presented at hearing to conclude that the Respondent had acted any differently when dealing with the same or similar complaints against white officers who were members of the Respondent. Moreover, there was no evidence presented that the Respondent acted any differently with white officers who had been given oral counseling as a result of a complaint against them. There was no evidence that the Respondent failed to appeal Petitioner's oral counseling because of race, and there was insufficient evidence of any conduct by Respondent from which it can be inferred that the actions of Respondent were based on race. The Respondent's failure to insist upon no disciplinary action against the Petitioner at the expiration of the 60-day investigation limitation was nondiscriminatory. Moreover, the Respondent's failure to appeal Petitioner's oral counseling was legitimate and nondiscriminatory and its denial to appeal was without discriminatory motivation.
Recommendation Based upon 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. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of April 1994. ERROL H. POWELL 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 7th day of April 1994.
The Issue Whether Respondent, Department of Transportation, discriminated against Petitioner, Charles Bean, on the basis of his age and retaliated against him, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2004).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Respondent is a public agency of the State of Florida. It has offices throughout Florida commensurate with its responsibilities. Petitioner is a Caucasian male. He is a long-time employee of Respondent. By letter of July 1, 2003, Petitioner was dismissed from his position as a technician for insubordination and conduct unbecoming a public employee. Petitioner did not offer any evidence of his actual age or that, other than his stated opinion, his age was the reason he was discharged. He did indicate that his age and experience were mentioned referable to his capacity to teach inexperienced employees and to perform his job. Petitioner did not offer any evidence regarding a replacement for the position from which he was discharged or of any employee who was treated differently than he. Petitioner did not offer any evidence of retaliation. He made a vague statement that he was the victim of retaliation, but did not offer any basis for his opinion. Petitioner refused to complete work assignments in a timely manner. These assignments were appropriate for his job responsibilities. When questioned by his supervisor regarding his failure to complete a particular job responsibility, Petitioner became defiant refusing to provide a written explanation; his angry response to the request included expletives. He then threatened a fellow employee who overheard the exchange between Petitioner and his supervisor. Petitioner's immediate supervisor does not believe age had any bearing on Petitioner's discharge. In addition, he supervises two other employees, aged 53 and 63. Petitioner's conduct violated the published Disciplinary Standards for State of Florida Employees.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 9th day of August, 2005, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 9th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 J. Ann Cowles, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Charles Bean 431 Buffalo Street West Melbourne, Florida 32904 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
