Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the deposition testimony received in evidence, I make the following findings of fact: On October 30, 1985, the Florida Department of Transportation ("FDOT") received and opened sealed bids on State Project Number 72270-3431, in Duval County, Florida. Five bids were submitted for this project. The lowest bid, in the amount of $6,235,948.35, was submitted by Hubbard Construction Company ("Hubbard"). The amounts of the other bids were as follows: the second low bidder, $6,490,796.91; the third low bidder, $6,519,447.90; the fourth low bidder, $7,470,941.74; and the fifth low bidder, $7,477,038.49. All bids submitted were more than seven per cent over FDOT's estimate of the project price. The two lowest bids also appeared to be unbalanced and, as set forth in more detail below, the Hubbard bid was in fact unbalanced in several particulars. It is FDOT policy to give special review to bids that are more than seven per cent above the estimated price of the project. All bidders were made aware of this policy by the following language on the first page of the Notice To Contractors: Bidders are hereby notified that all bids on any of the following projects are likely to be rejected if the lowest responsive bid received exceeds the engineer's estimate by more than seven per cent (7 percent). In the event any of the bids are rejected for this reason, the project may be deferred for readvertising for bids until such time that a more competitive situation exists. Upon review of the bids submitted on the subject project, FDOT decided to reject all bids. By notices dated December 6, 1985, all bidders were advised that all bids were rejected. The stated reasons for the rejection of all bids were as follows: All bids were too high; the apparent first and second low bidder's bids were unbalanced and the apparent first low bidder failed to meet the WBE Requirements. Hubbard submitted its formal written protest to the FDOT regarding the proposed rejection of its bid on the subject project on January 3, 1986. This protest was made pursuant to Section 120.53, Florida Statutes (1985), the instructions to bidders and bid information provided by the Department, and rules of the Department, including Rules 14-25.04 and 14-25.05, Florida Administrative Code. Unbalancing occurs when a contractor puts a higher price on a particular item of work in the project in anticipation of using more of that item than the FDOT has estimated will be required. Unbalancing can also occur when a lower than estimated price is placed upon a particular item. When a bid appears to be unbalanced, the bid is submitted to the Technical Awards and Contract Awards committees for review. In this case, the FDOT's preliminary estimate personnel discovered six items that were unbalanced within Hubbard's bid. The first item of concern was an asphalt base item for which the FDOT's estimate was $4.00 per square yard and the Hubbard bid was $19.29 per square yard. The second item was clearing and grubbing for which FD0T's estimate was $50,000 and Hubbard's bid was $200,000. The third item was removal of existing structures for which FDOT's estimate was $190,762 and Hubbard's bid was $38,000. The fourth item was installing new conductors for which FDOT's estimate was $251,000 and Hubbard's bid was $141,000. The fifth item was removal of existing pavement for which FDOT's estimate was $78,000 and Hubbard's bid was $153,000. Finally, the sixth item was surface asphalt items for which FDOT's estimate was $98,000 and Hubbard's bid was $169,000. The FDOT has a policy that any bid that is seven per cent or more over the estimate will go before the Awards Committee for review. Further, the FDOT has a policy that whenever the bids are more than seven per cent higher than the estimate, the FDOT's Bureau of Estimates will then review their estimate and the apparent low bidder's bid to determine whether the original estimate was correct. The FDOT maintains a Women's Business Enterprises ("WBE") program. The FDOT's program requires that successful bidders provide for participation of women owned and controlled business in FDOT contracts. The program is implemented by the setting of so-called "goals" for certain projects. The goal is stated as a percentage of the total dollar bid for each project. Thus, the WBE goal for a project requires that the bidder utilize FDOT certified WBE's in constructing the project to the extent that the FDOT's goal is a percentage of the total bid. The FDOT has implemented rules to effectuate its WBE program. Rule 14- 78, Florida Administrative Code (amended effective May 23, 1984). In submitting a bid, the rules offer the bidder the option of meeting the WBE goals or submitting proof of a good faith effort to meet the goal and if a good faith effort is sufficient, the FDOT may waive the goal. The FDOT's bid package and specifications, as furnished to contractors, in no place referred to the Department's rule providing that only 20 percent of the amount of subcontracts with WBE suppliers shall count toward the goals on Federal aid projects. The specifications clearly state that WBE suppliers may be counted toward the goals. The specifications as furnished by the Department also imply that the 20 percent rule applies only to non-federal aid jobs. The project in question in this case is a Federal aid project. There is a conflict between the rule and the language of the specifications which creates an ambiguity in the specifications, as well as a trap for the unwary bidder who overlooks the requirements of the rule. The FDOT is in the process of amending the specifications to make them conform to the rule. The Special Provisions contained within the bid specifications established certain minority participation goals for this project--ten per cent for Disadvantaged Business Enterprises (DBE) and three per cent for Women Business Enterprises (WBE). FDOT personnel analyzed the bid documents submitted by Hubbard according to the criteria set forth at Rule 14-78, Florida Administrative Code, and determined that Hubbard exceeded the DBE goal but failed to meet the WBE goal. Hubbard's WBE participation was two per cent. All other bidders on the project met both of the DBE and WBE goals. When Hubbard submitted its bid on this project, Hubbard thought that it had complied with the three per cent WBE goal by subcontracting 3.5 per cent of the contract price to WBE certified firms. However, 2 per cent of the contract price was to be subcontracted to a WBE for supplies to be furnished by a WBE who was not a manufacturer. Accordingly, when the 20 per cent rule discussed above was applied to that 2 per cent, the total amount of WBE participation which could be counted toward Hubbard's compliance with the rule was approximately 2 per cent, which was less than the 3 per cent goal. Once it was determined that Hubbard had failed to meet the WBE goal, FDOT personnel analyzed Hubbard's good faith efforts package pursuant to Rule 14-78, Florida Administrative Code. Hubbard's good faith efforts package failed to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Similarly, Hubbard's evidence at the hearing in this case was insufficient to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Most telling in this regard is that all four of the other bidders on this project were successful in meeting or exceeding the DBE and WBE goals.
Recommendation For all of the foregoing reasons, it is recommended that the Florida Department of Transportation issue a Final Order rejecting all bids on Federal Aid Project No. ACIR-10-5 (76) 358 (Job No. 72270-3431). DONE AND ORDERED this 24th day of March 1986, at Tallahassee, Florida. MICHAEL M. PARRISH 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 24th day of March 1986. APPENDIX TO RECOMMENDED ORDER IN DOAH CASE NO. 86-0O24BID The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on findings proposed by the Petitioner, Hubbard Construction Company The substance of the findings of fact proposed by the Petitioner in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, and 8. The substance of the first sentence of paragraph 6 is accepted. The remainder of paragraph 6 is rejected as an unintelligible incomplete statement. Paragraph 7 is rejected as not supported by competent substantial evidence. (The Standard Specifications for Road and Bridge Construction were not offered in evidence.) Paragraph 9 is rejected for a number of reasons, including not being supported by competent substantial evidence, being to a large part irrelevant, being predicated in part on an erroneous notion of which party bears the burden of proof, and constituting in part legal argument rather than proposed findings of fact. The first and third sentences of paragraph 10 are accepted in substance. The second and fourth sentences of paragraph 10 are rejected as irrelevant. The last sentence of paragraph 10 is rejected as irrelevant and as not supported by competent substantial evidence. Paragraph 11 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 12 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 13 is rejected as not supported by competent substantial evidence and as being contrary to the greater weight of the evidence. Rulings on findings proposed by the Respondent, Department of Transportation The substance of the findings of fact proposed by the Respondent in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, 6, 7, and 8. Paragraph 9 is rejected as irrelevant. COPIES FURNISHED: John E. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Larry D. Scott, Esquire Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 Thomas Drawdy, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32301-8064
The Issue This proceeding concerns the Respondent's rejection of all bids for construction of its new middle school "FF". Petitioner has challenged that intended action, arguing that it was arbitrary and capricious and contrary to the law. The parties disagree as to the basis for the intended action. Initially the School Board considered rejecting all bids for failure to meet MBE/WBE goals, and Petitioner protested. Later, the Respondent determined that significant revisions to the construction documents were required, and the bids were all rejected on that basis. Petitioner protested again, but contends that the original basis for intended action is still at issue. For reasons set forth in the following recommended order, the MBE/WBE goal issue is moot. The central issue for determination, therefore, is whether Respondent properly rejected all bids based on its determination that substantial changes are required, and Petitioner's motion to consolidate its two protests is DENIED.
Findings Of Fact Petitioner, Mark C. Arnold Construction Co., (Arnold), is a commercial general contracting firm located in Orange County, Florida, but well-experienced in building public facilities throughout the state. Arnold currently is engaged in constructing school "EE" for Respondent, Orange County School Board (School Board, or Board). In January 1992, the school board promulgated an advertisement for bid soliciting bids for the construction of a new school project known as Middle School "FF". The advertisement for bid was published five (5) times in the Orlando Sentinel on January 7, 14 and 28 and on February 4 and 1, 1992. The board also compiled a project manual which among other things contained a copy of the advertisement for bid and instructions to bidders which governed the bidding process. The advertisement for bid reserved the school board's "right to reject any or all bids and to waive any informality or irregularity in any bid received". (Joint Exhibits 1 and 2) The instructions to bidders also reserved the school board's "right to reject any and all bids when such rejection is in the interest of the school board of Orange County, Florida...". (Joint Exhibit 5) The project manual also contained a bid form to be used by bidders. In it the bidder agrees "that the Owner reserves the right to reject this bid, or to waive informalities in any bid,...". Such language was contained in the bid submitted by Arnold. (Joint Exhibits 7 and 9) By addendum dated February 5, 1992 the school board amended and replaced Section A-12 of its project manual and instructions to bidders. Such amendment, among other things, established goals for minority/womens business enterprise (MBE/WBE) subcontractor and supplier participation in the project, and it required any bidder who failed to attain the goals to demonstrate a good faith effort to do so; otherwise, the bid of such bidder would be rejected. (Joint Exhibit 8) Arnold's bid showed that Arnold had no MBE/WBE subcontractor or supplier participation. (Joint Exhibit 9) Arnold's bid was the lowest of eleven bids received by the school board. Arnold's bid was in the amount of $10,977,000.00. The next lowest bid was in the amount of $11,075,000.00. After bids were opened, Arnold promptly contacted the MBE/WBE manager of the school board, and was advised by her to try to obtain MBE/WBE participation to meet the goals; within several days after bid opening Arnold was able to get a total of about 13.5% MBE/WBE subcontractor/supplier participation. Contrary to the MBE/WBE manager's instruction, the addendum to the project manual and bid instructions proscribed any effort after bid opening to attain the MBE/WBE goals and to thereby make a bid responsive. In spite of Arnold's attempt to demonstrate to the MBE/WBE manager that it had made a good faith effort to attain the goals prior to bid opening, the MBE/WBE Manager determined that no sufficient good faith effort was shown by Arnold. On March 5, 1992 the school board furnished to Arnold a written notice of its intended decision to reject all bids because of the failure of all contractors (bidders) to attain the MBE/WBE goals and/or to show compliance with the good faith effort requirement of the contract documents. (Joint Exhibit 11) On March 10, 1992 Arnold and its attorney attended a meeting of the school board for the purpose of appealing the MBE/WBE manager's decision that Arnold had not demonstrated a good faith effort to meet the goals. Mark C. Arnold spoke at length to the school board itemizing actions which Arnold contended showed its requisite good faith effort to solicit MBE/WBE participation. Arnold's attorney also made a presentation at the meeting. By a 6 to 1 vote, the board initially sustained the findings of the MBE/WBE manager that a good faith effort was not shown by Arnold, and rejected all bids because of the failure of all contractors (bidders) to meet the minority participation goal and/or to show compliance with the good faith effort requirements of the contract documents. (Joint Exhibits 12 and 15) Following a work session after its initial meeting on March 10, the board convened again in regular session on March 10, at which time it unanimously voted to reconsider its earlier action of rejecting all bids, and it voted to postpone action of the award of a contract for the construction of Middle School "FF". The effect of that action was to rescind its earlier action rejecting all bids and determining that Arnold had not shown a good faith effort to solicit MBE/WBE participation; and also to postpone action on the entire matter to a future time. (Joint Exhibit 13). On March 20, Arnold filed Formal Protest directed to the board's March 5th Notice of Intended Decision and directed to the March 10 action rejecting Arnold's bid. During or about the first week in April, engineers for the school board met with the school board's attorney, William M. Rowland, Jr., to inform him that significant revisions needed to be made in the site work and sewer plant plans for the Middle School "FF" project. The engineers recommended that because of the need to make such revisions all bids for the project should be rejected and the project should be rebid after the plans were revised. As a result of the early April meeting with the engineers, the board's attorney prepared and delivered a memorandum dated April 7th advising the school board of its engineers' recommendations. The attorney also submitted a resolution which, if adopted, would serve to reject all bids and require a rebidding of the project. (Joint Exhibit 16) On April 10th the school board furnished to Arnold an amended notice of intended decision, which by its express terms replaced, amended and superseded its prior notice of intended decision dated March 5th, and notified Arnold of its intent to reject all bids on the project because of the need to make significant revisions in the construction documents. (Joint Exhibit 17) Said amended notice rendered moot the March 20 formal protest filed by Arnold. At its meeting held on April 14th, the board considered the April 7th memorandum from its attorney. At that meeting, the board heard from its staff engineer, Chuck Greif, who pointed out the revisions needed to the site plans for the Project. (Joint Exhibit 20, pages 59-62, 77-78) Mark Arnold also spoke, contending that the site revisions could be handled by change orders if Arnold's bid were accepted. (Joint Exhibit 20, pages 76-77) Bob Gallardo, the school board Director of Facilities and Planning, advised of problems encountered in the site work and of the need to make significant revisions in the site plans. (Joint Exhibit 20, pages 87-92) As the geotechnical engineer on the job, Charles Cunningham stressed the significance of the site plan changes. (Joint Exhibit 20, pages 96-97) Derek Burke, engineer on the project, confirmed that major redesign needs to be done. (Joint Exhibit 20, page 64) Attorney Rowland advised that the prior intended decision to reject all bids because of failure of all bidders to comply with the MBE/WBE requirements of the bid documents, was moot and no longer before the board for action, and that the only resolution before the board for action was the resolution to reject all bids because of the need to make significant site plan revisions for the project. (Joint Exhibit 20, pages 72-76) The school board unanimously adopted that resolution. (Joint Exhibit 20, pages 97-99; Joint Exhibit 18) On April 23rd Arnold timely filed the written formal protest which is the subject of these proceedings. At the time of the meeting held by on April 14th, there was a need to make significant changes in the site work and sewer plant for the Middle School "FF" project. Such changes formed a valid and legitimate reason for the board to reject all bids. Even at the time of this administrative hearing, some details regarding the site work still needed to be worked out. For example, an outfall is needed for the percolation pond underdrain but it was not included in the project design. The site work and sewer plant changes and revisions could have been handled by change orders between Arnold and the school board, had the board accepted Arnold's bid, since any changes in a project can be accomplished by change orders; however, revising the nature and quantity of construction work by change orders involves the potential for excessive cost to the project owner and change orders always require agreement between the parties. Prudence dictates that when it is known that changes must be made, the bid advertisement should include those changes up front to remove the uncertainty of costs and to put all bidders on equal footing. There has been no showing of any illegality, fraud, oppression or misconduct in the actions of the school board in rejecting all bids on the Middle School "FF" Project and in opting to seek new bids for the project. There has been no showing in these proceedings that the school board's rejection of all bids had the purpose or effect of defeating the object and integrity of competitive bidding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the bid protests by Petitioner. DONE AND RECOMMENDED this 10th day of July, 1992, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Charles Evans Davis, Esquire 170 East Washington Street Orlando, FL 32801 MARY CLARK 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 10th day of July, 1992. William M. Rowland, Jr., Esquire 1786 North Mills Avenue Orlando, FL 32803 Dr. James L. Schott, Superintendent Orange County School Board P.O. Box 271 Orlando, FL 32802
The Issue This is a bid protest proceeding to determine which of several competing bidders should be awarded contracts to perform work related to the Everglades restoration activities of the Respondent. The primary issues litigated at the hearing related to the sufficiency of the bids of the Petitioner and of each of the Intervenors regarding the M/WBE requirements of the bid specifications.
Findings Of Fact On May 9, 1997, the District issued a RFB for project number C-ECP. The purpose of the RFB was to solicit responsive bids from responsible bidders for the construction of two stormwater treatment areas: STA-1W and STA-2. The STA-1W project involves the construction of a wetland of approximately 6700 acres, including more than 12 miles of canal and levee construction, concrete spillways, culverts, telemetry controls, and ancillary facilities. The STA-2 project involves the construction of approximately 6430 acres, including 45 miles of canal and levee construction/enlargement, concrete water control structures, culverts, telemetry controls, and ancillary facilities. Prior to the issuance of the RFB, the District put substantial time and effort into M/WBE outreach activities. These activities included: (1) coordinating with and identifying M/WBE resource agencies to assist contractors in finding available and interested M/WBE subcontractors; (2) hiring a consultant to contact M/WBE firms and inform them of the contracting opportunities available for the C-ECP project, including subcontractor work; (3) conducting workshops for contractors to meet potential M/WBE subcontractors; (4) expediting the M/WBE certification process of M/WBE applicant firms; and (5) holding both mandatory and voluntary pre-bid meetings to explain the requirements of the RFB specifications and the M/WBE requirements. The District made extensive efforts to ensure that contractors knew about the project and the availability of M/WBE subcontractors. Subsequent to issuance of the RFB, the District issued ten addenda. Addendum Number 1 established a minimum M/WBE participation goal of sixteen percent and included a list of M/WBE contractors (the "vendor list"). The vendor list was prepared by the District to identify M/WBE subcontractors who might be available to work on the project. It was prepared in consultation with the District’s project managers and identified work components of the project based on commodity codes located within the District’s database. Addendum Number 9 required the bidders to execute and submit a Good Faith Efforts Checklist form and included a revised vendor list. The RFB provided in the Supplemental Conditions, Basis for Bid Award, that: Bidders may bid on Option "A" STA-1W, and/or Option "B" STA-2, and/or Option "C" combination of STA-1W and STA-2. Bid award will be made based on the lowest responsive and responsible bid amount from Option "A" and Option "B", or the combined amount in Option "C", whichever is lower in total dollars for the completion of STA-1W and STA- 2, after considering bid incentives (as applicable) in accordance with the District’s M/WBE Rule 40E-7.628, F.A.C. The RFB identified the project as "C-ECP, Construction of STA-1W & STA-2, Palm Beach County, Florida." However, contractors and subcontractors used various names in identifying the project, including C-ECP, STA-1W, STA-2, and construction of STA-1W and STA-2. The RFB sets forth the M/WBE requirements for the project in Article 7 of the Instructions to Bidders. Section 7.03 provides in part that: Bidders not meeting the established M/WBE goal shall make and document the good faith efforts used to meet established goals. The Bidder’s efforts shall be designed to ensure that available M/WBE’s are identified, properly noticed, and provided the maximum opportunity to compete for and perform work under any contract awarded as a result of this solicitation. EVIDENCE OF GOOD FAITH EFFORTS IS REQUIRED TO BE SUBMITTED WITH THE BID IF THE BIDDER DOES NOT MEET THE SPECIFIED M/WBE GOAL. The original deadline for submission of bids was June 25, 1997, but the deadline was extended three weeks by Addendum Number 3. The new submission deadline for bids was July 15, 1997, at 2:30 p.m. Six bids were submitted for Option "A," six bids were submitted for Option "B," and three bids were submitted for Option "C." The low dollar bid for Option "A" was submitted by Harry Pepper in the amount of $18,334,100. The low dollar bid for Option "B" was submitted by the Petitioner in the amount of $24,537,450. The second low dollar amount was submitted by Bergeron in the amount of $24,570,500. The low dollar bid for Option "C" was submitted by the Petitioner in the amount of $42,577,669. The Petitioner’s bid for Option "C" was $326,931 lower than the sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B." When the lowest bidder does not meet the M/WBE participation goal, Rule 40E-7.628, Florida Administrative Code, mandates that the next lowest bidder(s) meeting that goal shall be awarded the contract if the difference in bid amounts between the lowest and next lowest bid(s) falls within the maximum bid incentive amount. For this RFB, the bid incentive for the project was one percent of the lowest bid amount which in this case resulted in a maximum bid incentive amount of $425,776. The difference between the combined sum of Harry Pepper’s bid for Option "A" and Bergeron’s bid for Option "B," and the amount of the Petitioner’s bid for Option "C," was less than the bid incentive amount of $425,776. Soon after the bids were opened on July 15, 1997, Carolyn Williams, Director of the Office of Supplier Diversity and Outreach ("SDO"), received the sections of the bids relating to compliance with the District M/WBE requirements for her review and analysis. Mrs. Williams is responsible for making the ultimate recommendation as to whether or not a bid is responsive with regard to the District’s M/WBE requirements. By the afternoon of July 16, 1997, Mrs. Williams had reached a final determination that the Petitioner’s bid was nonresponsive due to failure to meet the M/WBE requirements of the RFB. The specific analysis of the Petitioner’s failure to document good faith efforts was subsequently memorialized in a memorandum dated July 29, 1997, from Mrs. Williams to Glenn Miller of the District’s Office of Counsel. Subsequent to making the determination of nonresponsiveness, the SDO office surveyed firms listed on a spreadsheet submitted as part of the Petitioner’s good faith efforts documentation (the spreadsheet titled "Everglades Nutrient Removal Project Potential Quotations"). The purpose of contacting these firms was an effort to understand what had actually transpired in the course of the Petitioner’s efforts to meet the M/WBE requirements and to assist the District in future procurements. Information obtained from these subcontractors was not a factor in Mrs. Williams’ determination that the Petitioner’s bid was nonresponsive. On July 21, 1997, the District issued its Notice of Intent to Award a contract to Harry Pepper and Bergeron for Options "A" and "B," respectively, for the C-ECP project. The Petitioner’s low bids for Options "B" and "C" were deemed nonresponsive on the grounds that the Petitioner had failed to meet the minimum participation goal of 16 percent and that the Petitioner failed to document its good faith efforts to meet such goal. This determination was set forth in Mrs. Williams’ memorandum to the Procurement Director dated July 21, 1997, and attached to the Notice of Intent to Award On July 24, 1997, the Petitioner filed a Notice of Protest. Subsequently, the Petitioner filed a Formal Written Protest/Petition for Formal Hearing on August 8, 1997, and an Amended Formal Written Protest/Petition for Formal Hearing on August 22, 1997. Harry Pepper submitted a bid for Option "A" that indicated an M/WBE subcontractor participation of 16 percent. Harry Pepper’s Schedule of Subcontractor/Minority Business Enterprise (M/WBE) Participation ("Schedule of Participation") form indicated that two M/WBE subcontractors would be utilized by Harry Pepper to achieve the M/WBE participation goal of 16 percent: Suca Pipe Supply, Inc. ("Suca") and Atlantic Environmental Inc. ("AEI"). Harry Pepper provided executed Statement of Intent to Perform as a Subcontractor ("Statement of Intent") forms from both Suca and AEI. Suca and AEI were identified by the District as M/WBE businesses available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. Suca’s Statement of Intent indicated that it would supply roller and slide gates and corrugated metal pipe to Harry Pepper. Suca is a stocker and distributor of underground utilities, pipes, valves, fittings, and construction related materials. In addition to supplying materials, Suca provides service activities to contractors, including handling of shop drawings, picking up materials from the manufacturer, getting missing parts to the job site and, on occasion, overseeing the installation of the materials. Suca maintains a warehouse and office facility of approximately 4,000 square feet with six offices and a conference room on approximately 1.5 acres of land. Bergeron submitted a bid for Option "B" that indicated an M/WBE subcontractor participation of 17 percent. Bergeron’s Schedule of Participation form indicated that one M/WBE subcontractor, Gulf Construction Group, Inc. ("Gulf"), would be utilized by Bergeron to achieve the M/WBE participation goal of 16 percent. Bergeron provided an executed Statement of Intent form from Gulf stating that it would provide "pipe and structures" for an agreed price of $4,176,985. Gulf was identified by the District as an M/WBE business available for use by any bidder as set forth in addendum number 1 and addendum number 9 to the RFB. In the blank space for the Project Number on the Statement of Intent form, Gulf wrote: "Construction of STA-1A Works & STA-2 Works."2 The name of the subject project as stated on the RFB is "Construction of STA-1W & STA-2, Palm Beach County, Florida." The number of the subject project as stated on the RFB is "C-ECP." Obviously, Gulf wrote the "name" of the project where it should have written the "number" of the project. The Statement of Intent Form does not request information as to whether the M/WBE subcontractor is agreeing to perform work on option "A," "B," or "C" of the subject project. Bergeron committed to using Gulf to perform $4,176,985 worth of work on the STA-2 contract by submitting the Schedule of Participation form, which indicates the total amount of work to be performed by Gulf and the total amount of Bergeron’s bid for that contract alone. In reviewing the Bergeron bid, the District considered the entirety of the bid package, including Bergeron’s Schedule of Participation form and the face of the bid, itself, which indicated that Bergeron was bidding only on Option "B." It was clear to the District that the documents submitted by Bergeron, including the documents from Gulf, were intended to apply only to the Option "B" bid. Gulf’s use of the project name instead of the project number is not a material deviation from the requirements of the RFB. Gulf’s use of the project name instead of the project number did not afford to Bergeron any competitive advantage not enjoyed by the other bidders. Gulf’s use of the project name instead of the project number did not provide the District with any more or any less information about what Gulf intended to do than if Gulf had used the project number. Gulf did not mark the box on the Statement of Intent form indicating whether it would perform as a corporation, partnership, individual, or joint venture. Gulf’s failure to mark the "corporation" box was not a material irregularity. There was no confusion created by the omission as Gulf obviously is not a partnership, individual, or joint venture. The abbreviation "Inc." is in Gulf’s name and appeared on the form. Moreover, it was apparent that Gulf was not proposing to perform in the capacity of a joint venture. The Petitioner submitted a bid for Option "C" that indicated an M/WBE subcontractor participation of 5.6 percent. The Petitioner’s Schedule of Participation form indicated that two M/WBE subcontractors, F.R.S. Associates, Inc. ("F.R.S.") and Contract Site Services, Inc., would be utilized. The Petitioner attached an executed quotation from both subcontractors to the Statement of Intent forms. However, because the Statement of Intent from F.R.S. was not signed by the subcontractor, as required by Section 7.05, A.2. of the RFB, the District reduced the Petitioner’s M/WBE participation to 4.78 percent.3 Inasmuch as the Petitioner’s M/WBE participation did not meet the 16 percent goal, the Petitioner submitted documentation of its good faith efforts as part of its bid. Until the last few hours before the bid submission deadline, the Petitioner intended to, and expected to, achieve the goal of at least 16 percent M/WBE participation. Only a few hours before the bid submission deadline the Petitioner realized that it would not be able to achieve the M/WBE participation goals, and that it would have to include documentation of its good faith efforts with its bid. The good faith efforts documentation submitted by the Petitioner included the following: a good faith efforts checklist executed by the President and CEO of the Petitioner; a cover document describing certain of the attached documentation and listing several newspapers in which the Petitioner purportedly advertised; a summary of the Petitioner’s M/WBE participation in federal contracts; a copy of the District’s M/WBE vendor activity report (Addendum 9, attachment 13 to the RFB) with annotations added by the Petitioner to indicate dates of contacts with M/WBE firms and notations of responses; a spreadsheet entitled Everglades Nutrient Removal Project Potential Quotations ("ENR spreadsheet") with columns indicating disciplines, names and dates of contacts, whether the firms were M/WBE’s, and notations of responses received; a form letter addressed to "All Offerors;" a copy of the District’s Commodity Vendor List, a copy of the District’s Detail Vendor Lists for Option "A" and Option "B," and a series of untitled lists of names and addresses (Enclosure One); a form letter "To Whom it May Concern" together with a list of M/WBE resource organizations (Enclosure Two); a copy of an announcement identified in the cover document as a posting on the Petitioner’s internet home page (Enclosure Three); a copy of the ABC Membership Directory/Buyers Guide and a copy of the Associated General Contractors of America Regional Membership Listing (Enclosure Four); and copies of a number of envelopes apparently returned to the Petitioner because of incorrect addresses. The Documentation of Good Faith Efforts Checklist required that a bidder providing documentation of good faith efforts include a written cover letter summarizing the bidder’s efforts and identifying the bidder’s attached support documentation. The Petitioner included a one-page cover document in its good faith efforts package to meet that requirement. The cover document stated that an announcement had been sent to firms on the District’s vendor lists, that M/WBE support organizations had been contacted, that an announcement had been posted on the Petitioner’s internet home page, that certain other contractors had been contacted and that advertisements had been placed in listed newspapers. The document further stated that 1131 total vendors and 531 M/WBE vendors had been contacted. The document did not indicate how many quotations had been received from M/WBE businesses. The Petitioner’s cover document did not identify all of the documents provided in the good faith efforts package. Further, the cover document did not explain the meaning of the annotations on the District’s vendor list, did not explain what the ENR spreadsheet represented, and did not explain the relationship between the vendor list and the spreadsheet. The good faith efforts documentation requirements are addressed in Section 7.08 of the RFB, which sets forth the material criteria of good faith efforts. For each of the criteria, the RFB first identifies the factors to be considered by the District in reviewing good faith efforts documentation and then describes the specific documents or evidence to be submitted. In determining what process the contractor used to identify M/WBE firms and contracting opportunities, Section 7.08, and 2. of the RFB contains the factors to be considered and states as follows: The Bidder shall identify available M/WBE firms and identify contracting opportunities for M/WBE participation. The Bidder shall be deemed to have made a good faith effort if documentation is provided that states the Bidder: selected portions of the project to be performed by available M/WBE firms, including dividing contracts or combining elements of work into economically feasible units, areas or quantities to facilitate maximum participation and increase the possibility of meeting the M/WBE goal; and determined M/WBE availability and developed a proposed M/WBE subcontractor/ supplier list by requesting and using the assistance of the DISTRICT’s SDO Office, state and local minority/woman business development agencies or contractor’s groups with knowledge of M/WBE availability. The "process" criterion requires the bidder to indicate to the District the process that the bidder used in identifying available firms and matching them to contracting opportunities for the project which have been identified by the bidder. The District assists the bidders in identifying contracting opportunities by providing them with a list of available M/WBE firms listed by commodity code as a starting point. The bidder is expected to review the project and apportion the work into subcontract units or components. The District also assists the bidder by providing a list of resource agencies for the bidder to use in identifying firms other than those on the District’s vendor list. The documentation needed to demonstrate compliance with Section 7.08, 1.A. is described in Section 7.08, 1.B.1 through 4 as follows: The DISTRICT, in determining good faith efforts made under subsection 1.A., shall require information including: copies of letters/transmittals to all resource agencies used to identify available M/WBE firms, including the proposed M/WBE subcontractor/supplier list developed; and the telephone numbers and the primary contact for each M/WBE firm listed; and a complete list of subcontract/supplier opportunities on the project; and identification of those opportunities for which available M/WBE firms were solicited. With respect to the requirement that the bidder provide copies of letters to all resource agencies used to identify available M/WBE firms, the Petitioner submitted with its good faith documentation package an undated form letter to the list of resource agencies which stated: To Whom it May Concern Please post and/or distribute the attached announcement conveying IT Corporation’s interest in receiving proposals from M/WBE organizations to support the South Florida Water management District’s project entitled, 'Construction of Stormwater Treatment Areas STA-1W and STA-2, Palm Beach County, Florida.' The District found the form letter to be insufficient because the letter was not drafted in a manner that was reasonably calculated to get an effective response from M/WBE organizations. It was unclear whether or not the letter was soliciting organizations for assistance in identifying available M/WBE firms or soliciting proposals from M/WBE organizations. Additionally, the letter failed to clearly state the purpose for which it was being sent, and there was no indication as to whether the letter was sent in sufficient time to elicit responses from resource agencies. With respect to the telephone numbers and the primary contact for each M/WBE firm listed, the Petitioner provided the ENR spreadsheet, the annotated copy of the District’s vendor list, and a series of untitled lists of names and addresses. The District found the Petitioner’s submission to be insufficient because it was difficult to determine whether the lists included in the good faith efforts submission included all M/WBE firms contacted. Additionally, the untitled lists did not identify which firms listed were M/WBE’s. The District was initially uncertain as to the applicability of the ENR spreadsheet to this project because it incorrectly referenced a project that the District had recently bid and awarded; consequently, there was a concern that the Petitioner had inadvertently included the spreadsheet from another project. The District was eventually able to confirm that the spreadsheet was relevant, by calling a number of the firms on the list to determine whether they had been contacted by the Petitioner. Nevertheless, the District found the document to be insufficient to meet the good faith efforts requirements. With respect to the requirement that a complete list of subcontractor opportunities for the project be provided, the Petitioner submitted the District’s annotated vendor list, which included District commodity codes, and the ENR spreadsheet, which included a column identifying disciplines in which quotations were being requested. The Petitioner utilized the scopes of work identified by the District and further broke the project down by Construction Specification Institute Code. It was the Petitioner’s expectation that the subcontractors would identify those parts of the project for which they wished to submit a quotation. The District found the Petitioner’s submission to be insufficient to meet the requirements of Section 7.08, 1.B.3. because the use of the District’s identification of scopes of work should only be a starting point in defining opportunities for subcontractors. Further, it is not sufficient for the bidder to rely solely on the M/WBE subcontractors, themselves, to identify portions of the project appropriate for subcontracting opportunities. It is the responsibility of the bidder to break out the project into potential subcontracting opportunities. With respect to those opportunities for which available M/WBE firms were solicited, the Petitioner submitted a form letter to "All Offerors" and the District’s annotated vendor list. The form letter read as follows: IT Request for Proposal No. 772125 FIELD(Contact Name) FIELD(Company) FIELD(Street Address) FIELD(City, State, Zip) FIELD(Telephone) TO ALL OFFERORS: IT Corporation is actively pursuing the following project: South Florida Water Management District Construction of STA-1W & STA-2 Palm Beach County, Florida Number: C-ECP DATE Therefore, your expression of interest in participating with us is being solicited. Your project scope letter, including any inclusions, exclusions, and terms and conditions must be received on or before: July 7, 1997 @ 2:00 p.m. Faxed proposals will be accepted. Contract documents, specifications, and drawings can be reviewed or purchased at the following locations: The South Florida Water Management District Procurement Office, B-1 Building 3301 Gun Club Road West Palm Beach, Florida 33406 561/687-6391 IT Corporation Miami Lakes Office 14505 Commerce Way, Suite 400 Miami Lakes, Florida 33016 305/819-2335 All technical questions for this solicitation should be directed to Phil Wasler or Frank Pescatore at 412/372- 7701. We look forward to receiving your proposal. IT Corporation 2790 Mosside Boulevard Monroeville, Pennsylvania 15146-2792 Fax No: 412/856-9912 Telephone No: 412/372-7701 It was the Petitioner’s position that the form letter adequately identified the project opportunities as construction work. The District found the letter to be insufficient, primarily because the letter was generic and did not identify specific portions of the project for which individual subcontractors were being solicited. In determining what methods the bidder has used in notifying M/WBE firms of opportunities, Section 7.08, 2.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The methods used by the Bidder to notify and inform available M/WBE firms of the contracting opportunities shall be specified. The Bidder shall be deemed to have made a good faith effort under subparagraph 2. of this rule if: the Bidder provided written notice to available M/WBE firms concerning subcontract/supplier opportunities on the project in sufficient time (minimum two [2] weeks) to allow response and effective participation; and the Bidder advertised subcontract/supplier opportunities in general circulation, and/or minority-focused, media in sufficient time to allow response; and the Bidder followed up with interested M/WBE firms to provide detailed information about: presolicitation meetings; statement of work; Bidder’s project manager; assistance the Bidder offered subcontractors with insurance requirements; payment schedules; proposal addenda; minority/woman business assistance agencies, etc. The "methods" criterion is intended to ensure that the contractor used appropriate and effective methods to notify M/WBE firms of subcontracting opportunities. Since there is a perception in the M/WBE community that contractors often do not make a genuine effort to reach out to M/WBE subcontractors, it is important that the bidder use effective methods in matching identified subcontracting opportunities to available and capable M/WBE firms. The documentation needed to demonstrate compliance with Section 7.08, 2.A. is stated in Section 7.08, 2.B.1. through 4. as follows: The DISTRICT, in determining efforts made under subsection 2.A., shall require information with the sealed Bid, including: copies of individually addressed letters and/or requests for quotations issued to M/WBE firms; and the individual letters or requests for quotations must reference the type of work the M/WBE firms were being solicited to perform; and the advertisement or the tear sheet from newspapers used, the follow-up correspondence to M/WBE firms and/or minutes of meetings held with M/WBE subcontractors or suppliers. With respect to the requirement that the Petitioner submit copies of individual letters and/or requests for quotations issued to M/WBE firms which referenced the type of work the M/WBE firms were being solicited to perform, the Petitioner submitted a form letter to "All Offerors" stating the Petitioner’s intent to bid on construction of STA-1W and STA-2, and Enclosure One to the good faith efforts package, which contained various lists of firms, both M/WBE and non-M/WBE. The Petitioner did not include any copies of individually addressed letters. The Petitioner was of the view, based on modern business practice, that it was not important to provide copies of individually addressed letters since the form letter had blank fields to fill in the name, address, and telephone numbers of those to whom the letter was sent. There was no documentation indicating when letters might have been mailed other than dates on copies of a few returned envelopes that were submitted with the Petitioner’s good faith efforts package. The District found the Petitioner’s documentation to be insufficient because the Petitioner did not provide copies of any of the individual letters. The form letter that the Petitioner provided failed to identify specific services or products for which subcontractor proposals were being solicited. Further, it was not possible to determine from an undated letter whether notice had been given in sufficient time to allow M/WBE firms to respond to the solicitation. The form letter did not identify the scope of work for which any individual subcontractor was being solicited. Instead, the Petitioner expected the subcontractors to identify those parts of the project they were interested in. With respect to the requirement that the Petitioner provide a copy of the newspaper advertisement or tear sheets, the Petitioner submitted a cover document referencing seven newspapers in which it claimed to have placed advertisements. The failure to provide the actual advertisement or tear sheet was an oversight on the part of the Petitioner. The District found the Petitioner’s documentation to be insufficient because it was not possible to verify that the advertisements had been placed in the listed newspapers and several papers listed in the Petitioner’s cover document were not readily identifiable. Additionally, without proof of publication, the District could not determine whether any of the newspaper advertisements had been placed in sufficient time to allow M/WBE firms to respond. With respect to the requirement that the Petitioner submit documentation of follow-up correspondence to M/WBE firms or minutes of meetings with M/WBE subcontractors, the Petitioner submitted the ENR spreadsheet which contained a column labeled "Response." Under that column the Petitioner had made notations such as "will bid," "sent scope," or "will call back." The Petitioner’s good faith efforts package did not include any minutes of any meetings between the Petitioner and any M/WBE subcontractors. The District found the Petitioner’s submission to be insufficient because there were no documents in the good faith efforts package that constituted follow-up correspondence or minutes of meetings held with M/WBE subcontractors. The Petitioner’s own notations on the ENR spreadsheet are not sufficient to document whether follow-up correspondence was sent to or whether meetings were held with M/WBE subcontractors. In determining whether a bidder has used good faith efforts in evaluating the M/WBE firms and in contracting with them, Section 7.08, 3.A.1. through 3. of the RFB contains the factors to be considered and states as follows: The DISTRICT shall evaluate the good faith efforts used by the Bidder in evaluating each M/WBE subcontractor’s response and contracting with M/WBE firms. The Bidder shall be deemed to have made a good faith effort under subparagraph (3) of this rule if the Bidder: documented and considered all negotiations held from M/WBE subcontractors, not rejecting M/WBE subcontractors as unqualified without thoroughly investigating their capabilities; and documented reasons why quotations with M/WBE subcontractors were not used and followed up with notices to the unsuccessful M/WBE subcontractors indicating such reason(s); and has utilized M/WBE subcontractors or suppliers on major projects within the past 12 months. The "evaluation" criterion is intended to ensure that, once initial contacts have been made, firms are not rejected out of hand without fair consideration of their capabilities or because their price is a little higher than another non-M/WBE firm. To obtain that assurance, the District requires evidence of quotations actually received from M/WBE firms; documentation of attempts to assist the M/WBE firms to reach a competitive price; and an explanation of why quotations submitted by the M/WBE firms were not selected. The documentation needed to demonstrate compliance with Section 7.08, 3.A. is set forth in Section 7.08, 3.B. of the RFB and states as follows: The DISTRICT, in determining efforts made under subsection 3.A., shall require as part of its information: documentation on negotiations held with and quotations received from unsuccessful M/WBE subcontractors and a M/WBE Utilization Plan specifying the M/WBE firms that will be used during the project. With respect to the requirement that the Petitioner document its negotiations held with and quotations received from unsuccessful M/WBE subcontractors, the only documents the Petitioner submitted were the ENR spreadsheet and the annotated vendor list. The Petitioner provided a five-year summary of utilization of M/WBE subcontractors on major projects and a utilization plan showing that it intended to use two M/WBE subcontractors, F.R.S. and Contract Site Services. The District found that the Petitioner had submitted insufficient documentation to demonstrate compliance with this requirement because the District needed to see both actual quotations and substantive documentation regarding negotiations between the bidder and the subcontractor to determine whether an M/WBE subcontractor was properly evaluated by the bidder. While the column in the ENR spreadsheet labeled "Response" indicates that some M/WBE firms had submitted quotations, no copies of actual quotations were provided to the District. Moreover, there was no documentation explaining why M/WBE firms which had submitted quotations were not used. Although the "response" column on the ENR spreadsheet was intended to indicate that negotiations had taken place with some, but not all, of the listed M/WBE firms, that intent was not explained in the Petitioner’s cover document. Based on the foregoing, the District reasonably determined that the Petitioner’s good faith efforts documentation was insufficient to meet the standards set forth in each of the three areas of good faith efforts criteria.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the South Florida Water Management District issue a Final Order in this case to the following effect: Dismissing the petition and amended petition in this case and denying all relief requested by the Petitioner and awarding the subject contracts to the Intervenors. DONE AND ENTERED this 15th day of October, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1997.
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner by discriminating against her based on sex and race and by retaliating against her.
Findings Of Fact Ms. Jones is an African-American female. From May 29, 2007, to December 5, 2007, Ms. Jones was employed by Spherion. Spherion provides temporary employees to businesses. Spherion had a contract with American Automobile Association (AAA) to provide temporary employees for an AAA call center in Lake Mary, Florida. AAA does not pay the Spherion employees, Spherion does. AAA can request that Spherion terminate a Spherion employee from an assignment at AAA. Ms. Jones was employed as a customer service representative (CSR) at the AAA site in Lake Mary, Florida. Her duties included taking calls from AAA customers who were in need of roadside assistance. At the time Ms. Jones was working at the AAA site, approximately 150 to 200 Spherion employees were assigned to the AAA call center. Approximately 60 to 70% of the Spherion employees were female, and approximately 60 to 70 of the female employees were members of racially protected classes. Ms. Jones received the CSR Performance Participant Guide, which is provided to all CSRs working on-site at AAA. On May 21, 2007, Ms. Jones executed an acknowledgement of having received the Spherion Workplace Harassment policy, the Spherion Attendance and Punctuality policy, and Spherion’s Policies and Procedures – Application Supplement. She also executed an acknowledgement of having received Spherion’s Equal Opportunity Statement. On June 7, 2007, Ms. Jones executed an acknowledgement of having received Spherion’s Customer Service Quality Commitment policy. During her employment with Spherion, Ms. Jones was paid $10.00 per hour. Ms. Jones received approximately two weeks of training. She began taking live calls on her own on June 10, 2007. Spherion allowed Ms. Jones two months to learn her job before Spherion began to evaluate her calls for quality assurance purposes. Spherion has a progressive discipline policy. A verbal warning is first given followed by a written warning, and then a final warning. On July 30, 2007, Ms. Jones received a verbal warning for attendance. On August 23, 2007, she received a final warning for call avoidance because she had failed to follow Spherion’s policies and procedures related to receipt of incoming calls. On September 18, 2007, Ms. Jones received a verbal warning regarding safety because she did not use a safety statement in one or more of her calls. According to the policies of Spherion and AAA, the goal for each skill set for a CSR is 90%. On September 11, 2007, Ms. Jones’ performance for quality assurance (QA) for the month of August was rated as 79%. She was given a verbal warning for performance on September 7, 2007, for her poor performance in August. Ms. Jones was advised that immediate action was required to correct her performance, and that failure to meet the quality standards could lead to further discipline, including termination. Ms. Jones’ QA average for September was 69%. As a result of her QA average for September, Ms. Jones was given a Written Warning for Performance on October 11, 2007.1 Again, she was warned that she needed to take immediate action to improve her performance and that failure to do so could result in further disciplinary action, including termination. Ms. Jones received a QA average of 77% for the month of October. As a result of her October average, she received a Final Warning for Performance on November 2, 2007. Once again, Ms. Jones was reminded that she needed to take immediate action to improve her performance and that failure to do so could lead to further discipline, including termination. For the month of November 2007, Ms. Jones received a QA average of 78.2%. On December 2, 2007, Spherion received an e-mail from Matthew Cooper, an AAA supervisor, directing Spherion to terminate Ms. Jones assignment at AAA for failure to achieve QA from August through November, 2007.2 As a result of her poor performance, Ms. Jones’ assignment with AAA was terminated on December 7, 2007. At the time her assignment was terminated, Ms. Jones was being paid $11 per hour and was working 40 hours per week. AAA has requested that other Spherion employees assigned to the AAA call center have their assignments terminated for low performance for four months, and Spherion complied with those requests. Such employees included a white male, an African-American/Hispanic female, and an Asian/American male. The termination of an assignment to the AAA site did not mean that Ms. Jones was terminated from employment with Spherion. If Ms. Jones desired to seek an assignment with another Spherion client, she could have contacted the Spherion branch office. Ms. Jones did not contact Spherion for another assignment. Ms. Jones filed for unemployment compensation and received one check for $182.00.3 During the second week of January 2008, Ms. Jones began to work for Kelly Services. She worked approximately 25 hours per week until she left Kelly Services during the first week of June 2008. Her hourly rate of pay was $10.75 per hour. From June 23, 2008, to September 22, 2008, Ms. Jones was employed by Careers USA. She worked approximately 40 hours per week, and her hourly rate of pay was $10.75. After leaving Careers USA, Ms. Jones went to work for Comcast, where she is currently employed. She works 40 hours per week, and her hourly rate of pay is $10.75. Spherion has a workplace harassment policy which was provided to Ms. Jones at the time of her hiring. The policy provides in pertinent part: Spherion Corporation, including all of its divisions, business groups and subsidiaries [“Spherion”], is committed to providing a work environment free of unlawful harassment. Harassment based on an individual’s race, religion, color, national origin, citizenship, marital status, sex, age, sexual orientation, veteran status, disability or any other legally protected status is strictly prohibited and will not be tolerated at Spherion. Employees have a right to be free from harassment from managers, co-workers, and non-employees with whom Spherion employees have a business, service, or professional relationship, including, but not limited to, vendors, clients and client employees. Every Spherion manager and supervisor is responsible for ensuring that the spirit, intent, and goals of this anti-harassment policy are achieved. * * * All employees must report incidents of harassment. Any employee who believes that he or she is being harassed by a co-worker, supervisor, manager, or other individual at the workplace — whether employed by Spherion or not — or believes that his or her employment is being adversely affected by such conduct, should immediately report such concerns to his or her supervisor, next-level manager, or other manager or the HR department. A human resources representative may be contacted at – Human Resources, c/o Spherion Corporation, 2050 Spectrum Boulevard, Fort Lauderdale, FL 33309, 800- 839-1965, or employeerelations@spherion.com. If a Spherion employee has a complaint about an AAA employee, the Spherion employee is to contact Spherion, not AAA. Spherion has the responsibility to look into the matter. When Ms. Jones first became employed with Spherion, she made a complaint that one of the AAA security guards was rude to her concerning the use of a restroom. April Jaques, who was a Spherion client service supervisor and responsible for staffing and human resources at the AAA call centers, followed up on Ms. Jones’ complaint and learned that Ms. Jones had been using a restroom that was off limits to employees after the building was closed for the night. The security guard had correctly advised Ms. Jones about the use of the restrooms. Ms. Jaques explained to Ms. Jones which restrooms could be used by overnight employees. Ms. Jones claimed that John Sherwood, who was not her supervisor, had discriminated against her based on her gender because he was disrespectful and rude and had accused her of destroying a computer. Her basis for claiming discrimination was that she “didn’t see him talking to men that way.” She also claimed that Mr. Sherwood had retaliated against her because she had complained to management about his being rude and disrespectful. Her testimony was not clear how he retaliated against her. Mr. Sherwood had no control over Ms. Jones’ pay, benefits, or terms and conditions of employment. While Ms. Jones was assigned to AAA, Anthony Hinton was an AAA supervisor. Because Mr. Hinton was employed by AAA, Spherion could not discipline Mr. Hinton. Mr. Hinton has been described as a “by-the-book kind of guy,” who sometimes “rubs people the wrong way.” He expected all employees to follow policy regardless of the employee’s race or gender. There were some complaints about his abrasive management style. Some complaints were made by employees who are not members of a protected class. The evidence does not support Ms. Jones’ assertions that Mr. Hinton was hostile only to African-American women or women of color. In November 2007, AAA required him to attend some anger management sessions with a therapist. He completed the therapy sessions. On September 6, 2007, Ms. Jones sent an e-mail to Mike Fratus, an employee of AAA, complaining about Mr. Hinton. She stated that Mr. Hinton had been rude and hostile to her on her first day of work on the call center floor. She complained that Mr. Hinton had put her on notice because of her footwear,4 but had not said anything to an employee who was sitting nearby and wearing similar footwear. She further added, “[t]he word going around is he is hostile and demeaning to Black women only.” Ms. Jones did not specifically name any other Black women to whom Mr. Hinton was rumored to be hostile and demeaning. Mr. Fratus forwarded the e-mail to April Jaques on September 11, 2007. Ms. Jaques scheduled a time to speak with Ms. Jones regarding her concerns. It was Ms. Jaques’ understanding that AAA would follow-up regarding the complaint against Mr. Hinton because Mr. Hinton was an AAA employee. Mr. Hinton credibly testified that he spoke to Ms. Jones about her inappropriate footwear, but that he did not see any other employee at the time with similar footwear. Mr. Hinton has spoken to non-African-American men and women about their attire. On September 19, 2007, Ms. Jones sent an e-mail to April Jaques. Ms. Jones complained that Mr. Hinton had talked to her about logging in early.5 She denied that she had logged in early and asked that “[n]o action be taken.” She further stated: Again after speaking with you and being counseled on compliance regarding my time I immediately wanted to correct the issue. This is just very disturbing to me especially after sharing with you and Mike how he [Hinton] discriminates with his treatment toward women of color. Ms. Jaques discussed the e-mail with Ms. Jones. Ms. Jones did not give Ms. Jaques any names of women that were being discriminated against by Mr. Hinton. Because Mr. Hinton was an employee of AAA, Ms. Jaques sent a copy of the e-mail to AAA. In October 2007, Jamie Jordan, a dispatcher who was employed by Spherion, complained to Mike Fratus about an incident concerning Ms. Jones that happened on the call center floor. Mr. Jordan had approached Ms. Jones about some information that was missing from a call that had been received requesting a tow truck. Mr. Jordan felt that Ms. Jones was rude and disrespectful to him when he approached her. Mr. Fratus sent an e-mail to Ms. Jaques, outlining Mr. Jordan’s complaint. On October 5, 2007, Ms. Jaques spoke to Ms. Jones about the incident between Ms. Jones and Mr. Jordan. Ms. Jones claimed that Mr. Jordan was rude and harsh to her. During the conversation, Ms. Jones became angry and accused Ms. Jaques of discrimination and harassment. Ms. Jaques attempted to calm Ms. Jones and told Ms. Jones that she would investigate the incident. Ms. Jones gave Ms. Jaques the names of some employees who had witnessed the incident with Mr. Jordan. Ms. Jaques investigated the issue, including talking with other employees who had heard the altercation. Ms. Jaques concluded that both Mr. Jordan and Ms. Jones were to blame for the incident. Based on Ms. Jones’ testimony, as of November 1, 2007, she had filed an employment discrimination complaint against Spherion with the Florida Human Rights Association. The complaint was forwarded to the Equal Employment Opportunity Commission. Ms. Jones filed an amended complaint on December 17, 2007. On November 11, 2007, Ms. Jones sent an e-mail to Simon DeYoung, an employee of AAA, complaining of sexual harassment, verbal abuse, and retaliation. Specifically, she was claiming that there were supervisors and a team leader who were listening to her calls and referring them to the quality assurance section; thus, her calls were not being monitored on a random basis. She also claimed that she had made a recommendation that the Dispatch section make return calls to members for updated information rather than having a CSR get the correct information and that Dispatch was upset with her for making the recommendation. Simon DeYoung forwarded the e-mail to Spherion management. Stacy Futch was Spherion’s on-site client service representative at the AAA site in St. Mary. She met with Ms. Jones on November 11, 2007, concerning Ms. Jones’ e-mail to Mr. DeYoung. Ms. Futch asked Ms. Jones about her claim of sexual harassment, and Ms. Jones said that it had happened months ago and that she had not brought the matter up before because she did not think that the issue would be addressed. Ms. Jones did not go into detail with Ms. Futch about the alleged sexual harassment actions. Ms. Jones felt that Mr. Jordan was sexually harassing her based on some comments that he had made to her. Mr. Jordan was not Ms. Jones’ supervisor. During the first week of Ms. Jones’ employment with Spherion, Mr. Jordan asked her if she would like to go fishing. Mr. Jordan admitted that he had told Ms. Jones that he thought she was beautiful, but that he had never seriously asked her to marry him. Ms. Jones went to Mr. Jordan and asked him to stop making comments to her. Three days later he told her that she looked nice. Ms. Jones testified that in October 2007, Mr. Jordan told her that he was drinking milk and that he was growing. Ms. Jones said she took the comment to mean that his penis was getting larger. Mr. Jordan denied he made any comments about drinking milk. Given Ms. Jones’s conversation to Ms. Futch in which she told Ms. Futch on November 11, 2007, that she had not experienced any sexual harassment for several months, and Ms. Jones’s testimony that after the October 5, 2007, altercation with Mr. Jordan that there had been no further incidents involving him, I find that Ms. Jones’ testimony about the milk to lack credibility. Ms. Jones did not make a complaint to Ms. Jaques about Mr. Jordan’s comments. Ms. Jones claims that her low performance scores were a result of her scores being manipulated by either AAA or Spherion as retaliation for making a complaint of discrimination and harassment. The evidence does not support Ms. Jones’ claim that her scores were manipulated. Ms. Jones had heard that some supervisors were dismissed for manipulating scores, and she concluded that if other scores could be manipulated then her scores must have been manipulated. The rumors that Ms. Jones had heard about supervisors had nothing to do with the manipulation of QA scores and Ms. Jones’ claim of manipulation is based on pure speculation. Ms. Jones claims that two other employees Jessica Robart and Marci Palumbo, who were white females, had low QA scores and were not dismissed for poor performance. Ms. Jones’s claim is unfounded. Ms. Robart had low performance scores for the last two weeks in June 2007 and for the last two weeks in July 2007. Marci Palumbo, referred to as Ricky or Marsha by Ms. Jones, had a low performance score for August 2007. Neither Ms. Robart nor Ms. Palumbo had four consecutive months with low performance scores. At least one non-minority male employee’s employment has been terminated for poor performance relating to QA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing Ms. Jones’ Petition for Relief and denying Spherion’s request for attorney’s fees and costs. DONE AND ENTERED this 2nd day of April, 2009 in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of April 2009.
Findings Of Fact On August 22, 29, and September 5, 1994, Respondent, School Board of Dade County (School Board), advertised for bids for Project No. KS-0004, Roof Repair/Replacement and Asbestos Removal at American Senior High School. The advertisement stated that "The mechanical and electrical trades have been set aside to be performed by a minority-owned and operated firm." The advertisement made no mention of any requirement that the set-asides were to be performed by minority-owned and operated firms certified by Dade County Public School/Division of Business Development and Assistance (DBDA). The bid and contract documents which were delivered to all interested bidders including Petitioner, Murton Roofing Corporation (Murton), contained page 00030-2 providing various definitions, including the definition of "minority owned and operated business participation" as follows: MINORITY OWNED AND OPERATED BUSINESS PARTICIPATION - This bid is limited to those individuals and businesses (51 percent) owned and controlled by African-American, Hispanics, and Women which are so listed by the Dade County Public Schools/Division of Business Development & Assistance prior to bidding, or to provide sufficient data to verify and certify such ownership and control at the time of the bid. Award will be made to the low bidder meeting this and other project specifications and requirements. Page 00030-2 had been included in the project specifications section dealing with legal advertisements. By addendum issued September 8, 1994, the School Board deleted this page from the bid documents. Section I A of the Special Provisions, page 1 defines Minority/Women Business Enterprises as follows: Any legal entity which is organized to engage in commercial transactions and which is at least 51 percent owned and controlled by minority persons. Minority person means a person who is a citizen or lawful permanent resident of the United States and who is: An African American, a person having origins in any of the black racial groups of Africa; An hispanic, a person of Spanish or Portuguese culture including, but not limited to persons with origins in Mexico, South America, Central America or the Caribbean Islands regardless of race. A woman. The Project Manual defines a "M/WBE Certification Application" as a "statement signed by an M/WBE contractor, containing certain information with respect to the ownership and control of the firm (See Attachment B-FM 3920)." Page 16 of the Project Manual states that "[a]t any time there is a change in ownership or control of the firm, the M/WBE shall, immediately following the change, submit a new M/WBE Certification Application." Page 2 of Section 1 A of the Special Provisions provides: A subcontractor is qualified to do specific work if it meets all of the following criteria: It has or is able to obtain any and all bonds, insurance and licenses required to do such work; It has the necessary experience, financial ability, organization, technical qualifications, skill and facilities to do such work; It is able to comply with the performance schedule reasonably needed for such work; It does not have an unsatisfactory record of integrity, judgment or performance; It is able to meet the applicable equal employment opportunity requirement if stipulated; and It is not otherwise ineligible to perform such work under applicable law and regulations. Nothing delineated herein shall be interpreted to waive the requirement that the Subcontractor be legally licensed and certified at the time it is scheduled to perform such work. Section III, titled Bid Documents, Section III A, Submittals, states: As a condition of responsiveness, all bid submittals shall contain the documents and information required below. Non-submittals or incomplete submittals shall be cause for finding a Bidder nonresponsive and for the contract not to be awarded to the Bidder. Failure to submit completed forms and other required information, within the time period specified, can neither be cured by supplementary submittals and testimony at hearings, nor shall the nonresponsiveness of the bid be waived, negotiated or compromised. In its bid, Murton listed Goral Enterprises (Goral) as the subcontractor for the mechanical work on the project. Murton indicated on the subcontractor list that Goral was a woman business enterprise. At the time that Murton submitted its bid, Goral was not certified as a M/WBE by DBDA and Murton did not submit with its bid an application from Goral for certification as a M/WBE by DBDA. Goral was certified as a Disadvantaged Business Enterprise (DBE) by Metropolitan Dade County's Department of Business and Economic Development. Murton relied on Goral's DBE certification to met the M/WBE requirements of the project specifications. The DBE program is a separate program from the School Board's M/WBE program. The School Board does not give reciprocity to contractors who are certified as DBE's for acceptance in the School Board M/WBE program. Goral had been denied certification as an MBE by the Commission on Minority Economic and Business Development approximately two weeks prior to Murton submitting its bid for the project. The project specifications do not state that a contractor certified as a DBE will be deemed to meet the criteria of a M/WBE. Intervenor, A-1 Duran Roofing, Inc., also submitted a bid on the project; however, its bid was rejected as nonresponsive. By letter dated October 13, 1994, the School Board advised Murton that it was not in compliance with the special provisions of the project specifications because Goral was neither certified as a M/WBE nor had certification pending; therefore Goral could not be used to meet the M/WBE requirements for the mechanical work on the project. By letter dated October 14, 1994, Murton requested a meeting with the Contract Administrator to discuss the Notice of Noncompliance issued the day before. A meeting was held on October 18, 1994. On October 21, 1994, the School Board issued a Final Notice of Noncompliance. On October 26, 1994, the School Board issued a Revised Final Notice of Noncompliance, wherein it inaccurately stated that the legal advertisement required that the M/WBE's be certified by the DBDA at the time of submittal or that the bid submittal contain sufficient data to verify and certify M/WBE qualification. However, the Revised Final Notice of Noncompliance also stated that the bid document when read as a whole required that the M/WBE be either certified or pending certification at the time of bid submittal or that a certification application be submitted with the bid. The notice stated that Goral did not meet the requirements of the bid documents for a M/WBE. Murton requested an appeals hearing before the Certification Appeals Committee (Committee). The hearing was convened on October 26, 1994, at which time it became apparent to the Committee that the October 21, 1994 letter contained an error in that the paragraph stating that M/WBE's must be certified by the DBDA prior to bidding or provide sufficient data to verify or certify such ownership and control at the time of bid had not in fact appeared in the advertisement and the second page of the advertisement in the project manual which represented that this language had been a part of the advertisement had been removed by addendum. The meeting was recessed in order to review and obtain clarification of documentation presented by Murton. The Committee reconvened on November 15, 1994. At that time, upon reviewing the project manual and other documentation, the Committee determined that the language remaining in the Project Manual, read as a whole, did require DBDA certification and voted to uphold the determination of noncompliance. The School Board has interpreted similar project specifications to require that the proposed M/WBE be certified by DBDA at the time of bid submittal or that the bidder submit sufficient data with the bid to be able to determine whether the entity qualifies as a M/WBE. Such data is to be submitted on the application form contained in the project specifications as Attachment B- FM 3920, which is the form used by DBDA for application for certification as a M/WBE. The School Board has on numerous occasions rejected bidders for failure to submit either currently certified M/WBE's as subcontractors or for failure to submit an application for DBDA certification for the subcontractor with the bid. School Board Rule 6Gx13-3G-1.02 delineates the objectives for its M/WBE program. The rule states that the program's objectives may be accomplished by affirmative actions which include set aside contracts, subcontracting goals, prime contracting and designated scopes of work. In the instant case the School Board had designated certain portions of the work of the project to be performed by M/WBE firms. School Board Rule 6Gx13-3G-1.02 IV. provides: In order to ensure that business firms seeking to participate in the M/WBE Program are at least fifty-one (51) percent legitimately owned, operated and controlled by minorities, each M/WBE firm shall be required to be certified as to its minority ownership at the time of each bid award. Such certification shall be on the basis of a completed M/WBE Certification Application with supporting documentation, submitted by the firm, sworn to by an officer of the firm, invest- igated and verified by the Division of Business Development and Assistance, prior to any contract award. The School Board desires to rebid the project. On January 9, 1995, the School Board placed a new legal advertisement for bid on the project, specifically indicating that it would require and accept only DBDA certified M/WBE's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Murton Roofing Corporation's Petition and rejecting all bids for the project and rebidding the project. DONE AND ENTERED this 1st day of March, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-6919 To comply with the requirement of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-5: Accepted in substance. Paragraph 6: Accepted that Goral was certified as a DBE but rejected that DBE certification meant that Goral was qualified as a M/WBE. Paragraphs 7-11: Accepted in substance. Paragraph 12: Accepted that that portion was deleted, but rejected to the extent that it implies that section was the only portion of the bid documents relied upon by the School Board. Paragraphs 13-15: Rejected as not necessary. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting argument. Paragraph 18: Accepted to the extent that that was his testimony. Paragraphs 19-22: Accepted in substance. Paragraphs 23-24: Rejecting as constituting argument. Paragraphs 25-26: Rejected as subordinate to the facts actually found. Paragraph 27: Rejected as constituting argument. Paragraph 28: There is no paragraph 28. Paragraph 29: Rejected as constituting argument. Paragraphs 30-31: Rejected as not supported by the greater weight of the evidence. Respondent's Proposed Findings of Fact. Paragraphs 1-3: Accepted in substance. Paragraph 4: The first two paragraphs are rejected as unnecessary. The remainder is accepted in substance. Paragraphs 5-10: Accepted in substance. Paragraphs 11-12: Rejected as constituting argument. Paragraph 13: Rejected as subordinate to the facts actually found. Paragraph 14: The first sentence is rejected as constituting argument. The second sentence is accepted in substance. COPIES FURNISHED: Vincent F. Vaccarella, Esquire Elder & Kurzman Grand Bay Plaza, Suite 702 2665 South Bayshore Drive Coconut Grove, Florida 33133 Phillis O. Douglas Board Attorney Dade County Public Schools School Board Administration Building 1450 Northeast Second Avenue Miami, Florida 33132 Steven M. Rosen, Esquire 5601 Building 5601 Biscayne Boulevard Miami, Florida 33137 Octavio J. Visiedo, Superintendent Dade County School Board 1450 Northeast Second Avenue, #403 Mimai, Florida 33132-1308 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. Petitioner, Joyce C. Hallowell, was employed by Respondent as a part- time commission sales associate in the electronics department of Brand Central during the relevant period of time including June 1993. Petitioner worked for Respondent on-and-off for a period of 20 years in various sales positions and both in a full and part-time capacity. Petitioner is an American woman, born: October 14, 1948, who was 44 years of age during the relevant time and a member of a protected class. William Henley became the Store General Manager of the Melbourne, Florida Sears store in May 1993. Accordingly, Henley was, during the relevant time period, the Store General Manager of the Melbourne, Florida Sears store. As Store General Manager, William Henley has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions. Herman Payne became the Brand Central Manager of the Melbourne, Florida Sears store in 1993. Accordingly, Payne was, during the relevant time period, the Brand Central Manager of the Melbourne, Florida Sears store. As Brand Central Manager, Payne supervised all four departments in Brand Central. He has responsibility for, inter alia, making employment decisions, including hiring, firing, transferring and promotion decisions for personnel in his department. Payne was 41 years old during the relevant time period. Frances Pagan Cusick is the Human Resources Manager for the Sears Melbourne, Florida store. As Human Resources Manager Cusick has responsibility for, inter alia, administering the hiring, equal-employment, and compensation policies of Sears. Cusick was 43 years old during the relevant time period. Brand Central consists of four departments: computers, electronics, small appliances and home appliances. Sales associates work in each of the four Branch Central Departments. Both full-time and part-time sales associates work in Brand Central. Each of the sales associates in Brand Central are paid on the basis of commissions earned from sales. As a consequence, each sales associate's earnings are dependent on the number of sales made. At the time of Henley's and Payne's arrival at the Melbourne, Florida Sears store in May, 1993 and June, 1993, respectively, the store, including Brand Central, was in need of numerous changes and improvements, including improvements in appearance and presentation. In June, 1993, Henley and Payne initiated a cleanup "campaign" throughout the store, including Brand Central, in an effort to make the store more presentable to the public. As part of the clean-up "campaign" in Brand Central, Payne recruited the assistance of all Brand Central employees. Petitioner was uncooperative and refused or was reluctant to assist in various efforts to improve the appearance of Brand Central. She also complained to management about others in her department and their lack of diligence in the clean-up campaign. Hallowell's attitude problems were a serious concern to the management of the Melbourne, Florida Sears store. The management of the Melbourne, Florida Sears store counselled her and documented Petitioner's attitude problems. In June, 1993, a need arose for additional part-time help within the appliance department of Brand Central. A transfer from one section of Brand Central to another is not considered a promotion; rather, it is simply a transfer from one department to another. Henley and Payne ultimately decided who would be transferred to the appliance department of Brand Central. The criteria utilized by Respondent in determining who would be transferred to the appliance department included: (i) satisfactory job performance; (ii) satisfactory customer service; and (iii) a positive attitude. Given the nature of Respondent's business, it is important for Respondent's employees to maintain satisfactory job performance, customer service, and to exhibit a positive attitude. The criteria utilized by Respondent in determining who would be transferred to the appliance department were essential to building a highly motivated team of sales associates. Seniority was not a factor utilized by Respondent in determining who would be transferred to the appliance department. Age was not a factor utilized by Respondent in determining who would be transferred to the appliance department. In June 1993, Petitioner expressed to Herman Payne a desire to transfer from the electronics department to the appliance department of Brand Central. Three individuals were considered for the available, part-time position in the appliance department of Brand Central, to wit: Barbara Gehrlein, Terry Giordano and Petitioner. The transfer which Petitioner sought to the appliance department of Brand Central was not a promotion. However, Petitioner felt that she could earn a higher commission in that department over time. Barbara Gehrlein, who was over fifty at the time, elected not to be considered for the transfer to the appliance department of Brand Central because she was not interested in a part-time position. Gehrlein's preference was to remain in a full-time position. Terry Giordana, who was under forty years of age at the time, was selected for the transfer to the appliance department of Brand Central. Henley and Payne decided that she exhibited a positive attitude and satisfied the other qualification criteria utilized by Respondent. Petitioner was not chosen for the part-time position in the appliance department of Brand Central because of the poor attitude she exhibited during the clean-up campaign. After the selection of Terry Giordano for the part-time position in the appliance department of Brand Central, Petitioner continued to exhibit a poor attitude. Prior to the selection by Respondent of the individual to be transferred to the appliance department of Brand Central, Petitioner admitted to her supervisor, that she had been uncooperative and that she had a "chip on her shoulder." Respondent maintains an Affirmative Action Policy. Sears' Affirmative Action Policy provides, inter alia, that: Sears is proud to reaffirm its commitment of the principles of equal employment opportunity and affirmative action. It is our policy to provide equal employment opportunity in all areas of our employment practices and to assure that there will be no discrimination against any associate or applicant on the grounds of race, color, religion, sex, age, national origin, ancestry/ethnicity, citizenship, sexual orien- tation, disability, veteran status, marital status, or any other reason prohibited by law. This policy extends to all of the Sears employment practices including recruitment and hiring, job assignments, education and development, promotions, compensation and benefits, use of company facilities, and all other privileges, terms, conditions of employment. It is further the goal of Sears to provide an atmosphere where all our associates can grow and optimize their performance in an environment free of intimidation and harassment of any form. No direct evidence exists supporting Petitioner's contention that she was denied a "promotion" because of her age. Respondent did not fail to "promote" Petitioner. Respondent did not fail to "promote" Petitioner because of her age and Respondent did not discriminate against Petitioner on the basis of her age. With respect to targeted earnings, studies showed that an employee in the appliance department would earn less than an employee in the electronics department, given certain assumptions. Assuming a total store sales volume of $3 million, it is expected that an employee in the appliance department would earn $10.38 per hour, while an employee in the electronics department would receive $10.43 per hour. With respect to targeted earnings, studies showed that an employee in the appliance department would earn slightly more than an employee in the electronics department, given certain other assumptions. Assuming a total store sales volume of $3-6 million, it is expected that an employee in the electronic's department would earn $11.50 per hour, while an employee in the appliance department would receive $11.67 per hour. During the relevant time period, of the 13 individuals who worked in the appliance department of Brand Central, eight of them (or 61.5 percent) were at least 40 years old. During the relevant time period, of the 23 individuals who worked in all of Brand Central, 13 of them (or 56.5 percent) were at least 40 years old. During the relevant time period, of the 20 sales associates who were promoted at the Melbourne, Florida Sears store, five of them (or 25 percent) were at least 40 years old. During the relevant time period, of the 213 sales associates who were working at the Melbourne, Florida Sears store, 85 of them (or 39.9 percent) were at least 40 years old.
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 which DENIES the Petition for Relief. DONE AND ENTERED this 22nd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1995. APPENDIX The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent: Accepted in substance: paragraphs 1, 2, 3 (in part), 4, 5, 6 (in part), 7, 8, 9 (in part), 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, and 53. Rejected as irrelevant, immaterial or subsumed: paragraphs 3 (in part), 6 (in part), 9 (in part), 31, 32, and 41. COPIES FURNISHED: Joyce C. Hallowell 1498 Beche Street, S.E. Palm Bay, Florida 32909 Carlos J. Burruezo, Esquire 390 North Orange Avenue, Suite 1285 Post Office Box 3389 Orlando, Florida 32802-3389 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts 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 this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
Findings Of Fact Introduction On March 31, 1983, Respondent, Department of Transportation (Department), gave notice to qualified contractors that it would receive sealed bids on the following project: BROWARD COUNTY: FEDERAL AID PROJECT NO. I-iD-75-4(38)225 (JOB NO. 86075-3417), SR-93, (I-75), from S. of Nova Dr. to S. of S.W. 13th St.. Work consists of Extra Heavy Embankment; Pav't. of Alt. 10" Limerock Base or 9", 7" or 6" Asph. Base Cse. (Type 1, 2 or 3) and Section of Alt. 8" Limerock Base of 7 1/2", 6" or 5" Asph. Base Cse. (Type 1, 2 or 3) all with Type S Structural Cse. and Asph. Conc. Fri-tion Cse. (FC-2), Shoulder Pav't.; Two Bridges (OAL 821') of Conc. Slab Deck and Prestr. Conc. Beams on Conc. Piers and Spread Footings; Conc. Handrail (Barrier and Sidewalk); Conc. Box Culverts; Storm Sewer and Small Drainage Structures; Conc. Curb and Gutter and Shoulder Gutter; Staked Silt Barrier; Guardrail (Rdwy.); Fencing; Roadway Signs; Pav't. Markings (Rer. Pav't. Markers and Thermoplastic Striping); and Incidental Items. Length 1.914 miles. (B. I. 440803) cost $20.00 FEMALE GOAL 1 percent M.B.E. GOAL 5 percent TOTAL M.B.E. GOALS 6 percent NOTE: ON-THE-JOB TRAINING WILL BE REQUIRED FOR THIS PROJECT. (Approx. 550 Cal. Days) The project is also known as the "Nova Drive Project". Such bids were to be received by the Department no later than April 27, 1983. Seven construction firms submitted bids on the project. As is pertinent here these included petitioner, Badgett Resources, Inc. (Badgett), a firm located in Fort Lauderdale, Florida, and respondent, Capeletti Brothers, Inc. (Capeletti), a firm with principal offices located in Miami, Florida. Capeletti submitted a bid for $6,917,515.50, which was the lowest bid on the project Badgett's bid was for $6,922,625.50, or $5,110.00 higher than the Capeletti bid, and was the next lowest bid. On April 27, 1983 the Department opened the sealed bids. Because certain information was not furnished with Capeletti's bid, Capeletti made another submittal on May 9, 1983. After reviewing this information, and having further communications with Capeletti, the Department finally concluded on May 17, 1983, that Capeletti met all applicable requirements. Thereafter, on May 20, 1983 the Department posted the bids and designated Capeletti as the lowest responsive bidder. On May 23, 1983 Badgett filed its notice of protest in which it requested a formal hearing prior to the award of the contract to Capeletti. That same day the Department notified Badgett that because it believed the failure to proceed with the award of the contract "would result in an immediate and serious danger to the public health, safety and welfare", it intended to immediately award the contract to Capeletti pursuant to Subsection 120.53(5)(c), Florida Statutes. It did so since the project was federally funded with Discretionary Interstate Lapse Funds, and if work did not commence prior to June 27, 1983, the State would suffer the loss of those funds. Capeletti began construction on the project prior to June 27 and has actively continued such work since that time. Bid Specifications According to the notice requesting bids, all work related to the project had to comply with the "Plans, Specifications and Special Provisions of the State of Florida Department of Transportation." These bidding requirements are more commonly known as the Bid Specifications. As is pertinent here, the Bid Specifications included a requirement that each bidder comply with the Minority Business Enterprises (MBE) requirements developed by the Department. The Department has a policy that firms owned and controlled by minorities or women shall be given the maximum opportunity to participate in the performance of contracts let by the Department. In this vein it has established overall minority goals in Rule 14-78.03, Florida Administrative Code, for its MBE program. These include contract goals for minority business enterprises (firms owned and controlled by minorities) and contract goals for women business enterprises (firms owned and controlled by women), both of which applied to the project in question. The MBE goals for the Nova drive Project were 5 percent for minority business enterprises and 1 percent for women business enterprises. This meant that 5 percent and 1 percent of the estimated total dollar value of the contract should have been performed by certified minority and women controlled enterprises respectively. However, Rule 14-78.03(1)(c)2. provides that if the successful bidder cannot meet the 5 percent and 1 percent goals, it "must satisfy the Department that the contractor has made good faith efforts to meet the goals." In this regard, the Rule requires that the bidder "actively and aggressively" attempt to comply with the goals, and sets forth nine relevant factors or types of effort that may be considered in determining whether a good faith effort has been made. (Rule 14-78.03(1)(c)2.a.i.-ix). The Rule cautions that "pro forma" good faith efforts are unacceptable. Department rules and the Bid Specifications made it quite clear that in order to be eligible to participate as MBE's the Department must first certify the firm. The specific requirements for certification are set forth in Rule 14- 78.05, Florida Administrative Code. A failure to comply with these requirements can result in the denial of a bid award. The Bid Specifications provided the following requirement pertaining to the submission of information showing compliance with the MBE goals: The Florida Department of Transportation prefers the Minority Business Enterprises Form I to accompany the bid documents. If this is not possible, the form must be received by the Florida Department of Transportation's Office of Minority Programs, attention MBE Liaison Officer, no later than ten (10) calendar days after the bid opening date. (Emphasis added) The term "calendar day" is defined in the Bid Specifications as "every day shown on the calendar, ending and beginning at Midnight". Since the bid opening date was April 27, 1983, a strict interpretation of this standard required that the MBE submissions by the bidders to be filed with and received by the Department's Office of Minority Programs no later than Saturday, May 7, 1983. This is confirmed by a memorandum prepared by the Secretary of the Department on June 4, 1982 which was sent to all prequalified contractors and clarified the requirements relative to MBE's. There he stated that "(i)t must be remembered that all the above information (including MBE Utilization Form No. 1) is to be in the Department's hands within ten (10) days following the bid opening as opposed, for example, to simply being mailed within the ten-day-period." However, it-has been an informal Department policy for many years to require a document to be filed on the next following Monday when the original deadline falls on a Saturday or Sunday. The Minority Business Enterprises Certification Form No.1 to be submitted in conjunction with the bid, or ten days thereafter, is a two-page Department prescribed form that identifies each minority subcontractor to be used on the project by the contractor, the class of work, dollar amount of work, percent of contract, sex, type of minority, and whether the subcontractor has been certified by the Department as an MBE. The Bid Specifications provide not only that "(t)he MBE Utilization Form No.1. . .only include firms which are certified by the Department", but also that they be ". . .certified prior to the submission of the. . .Form". (Emphasis added). MBE Submissions by the parties Badgett submitted its MBE Utilization Form No.1 with its bid on April That form reflected that Community Asphalt, Post Office Box 9179, Pembroke Pines, Florida, would perform the paving portion of the project at a cost of $1,022,853.97, or 15 percent of the total contract. Community is Hispanic owned and controlled, and was represented on the form as being certified by the Department. A female controlled firm identified as Triple J, Post Office Box 6321, Fort Myers, Florida, was listed as the grassing subcontractor, which represented 2 percent of the total contract. These percentages exceeded the 5 percent and 1 percent goals established by the Department. Badgett did not utilize the lowest bid it received for grass work since that was submitted by a non-MBE firm. Had it done so, its bid on the project would have been $7,111.63 lower, or approximately $2,000 less than the overall bid submitted by Capeletti. Capeletti did not submit an MBE Utilization Form No. 1 or its MBE "good faith efforts" submittal with its sealed bid. Neither did it make such submissions by the tenth calendar day, or May 7, 1983. On the following Monday, May 9, Capeletti filed an incomplete MBE Utilization Form No. 1 and a "good faith efforts" submittal. Form No. 1 reflected that Pro Contracting, Inc., 15111 Falkirk Place, Miami Springs, Florida, a Hispanic owned and controlled firm, would perform 5.04 percent of the total contract work. In answer to the question of whether the firm has been certified by the Department, Capeletti answered that such certification had been "applied for". Capeletti also listed three female owned and controlled firms, Len Hazen Painters, Inc., Advance Barricades and Signing, Inc., and C & G Specialties, Inc., as being subcontracted to perform 1 percent of the total contract price. The first two firms were shown as being certified by the Department while Capeletti indicated that, like Pro Contracting, certification for C & G Specialties had been "applied for". The percentage levels (5.04 percent and 1 percent) met the Department established goals. Although Capeletti indicated on its Form No. 1 that MBE certifications had been "applied for", this was incorrect. Neither Pro Contracting or C & G Specialties had in fact filed such an application on that date. Further, C & G Specialties had not applied for certification as of the time of the final hearing in mid-August. Both firms were also conspicuously omitted from the directories published by the Department which listed all MBE firms qualified to participate in Department contracts. On May 10, 1983, the Department Minority Programs Coordinator reviewed the Capeletti filing and found it to be deficient. He then telephoned Capeletti's MBE liaison officer, R. S. Stoddard, and informed him of "possible noncompliance" because of the non-certification of the two firms listed on the Form. He also advised Stoddard that Capeletti would have to submit other "qualified" MBE or WBE firms or provide the Department with evidence of its good faith efforts to meet the contract goals. The next day, May 12, the president of Pro Contracting flew to Tallahassee with an application for certification. Why he waited until after the deadline to seek certification was not disclosed. In any event, by 5:30 p.m. that day, it had been given a "temporary" certification good for ninety days, or until August 12, 1983, subject to a follow-up on-site evaluation of the firm by the Department. The temporary certification was given despite the application being incomplete in several respects and there being an admonition on the form itself that "INCOMPLETE FORMS WILL BE RETURNED." The less than twenty-four hour turnaround time for reviewing the application was by far the quickest time such an application had ever been processed, and a firm issued an MBE certification. In the past, such certifications had taken weeks or months since the Department has up to ninety days to review such applications pursuant to its rules. However, the Coordinator explained that "time was a factor", and justified the expedited approval on this basis. The temporary certificate expired on August 12 without being renewed, but the Coordinator stated it would be changed to a permanent certification on August 22, 1983. There are no Department rules which provide for "temporary" certification. However, the evidence reveals that this type of certificate had been issued to other subcontractors in the past, including Community Asphalt, which was used by Badgett. Because the 1 percent WBE goal was not met, it was necessary that Capeletti satisfy the Department it had made good faith efforts to meet the unmet goals. A "Good Faith Efforts" form specifying the information required to meet this test was sent by the Department on April 28, 1983. The form contained nine questions pertaining to the contractor's effort to meet the contract goal and tracked the criteria enumerated in the Rule. Although the form itself was not returned, Capeletti responded by letter dated May 6 and stated that it had mailed a letter to 85 WBEs and 10 MBEs on April 12 1983 soliciting quotes, and mailed the same letter to various WBE and MBE associations in the State of Florida. It also submitted a list of MBE/WBE firms that had subcontracted on Capeletti jobs in recent years. The reply by Capeletti essentially satisfied four of the nine suggested criteria in Rule 14-78.03(1)(c)2.a.i.-ix. It did not respond to the other five factors. Notwithstanding the failure of Capeletti to fully respond to all of the requested information, the Department recommended that 72 percent of the 1 percent WBE goal be waived since Capeletti had made a good faith effort to meet that goal. In so doing, the Department relied solely upon Capeletti's letter of May 6 as a basis for that determination. This recommendation was concurred in by a representative of the Federal Highway Administration on May 16. This was necessary since federal funds were being used on the project. On May 17, 1983, the Department determined that Capeletti had complied with the Department MBE requirements. This determination was based on the utilization of Pro Contracting to meet the entire 5 percent MBE goal, and the Federal Highway Administration's waiver of 72 percent of the 1 percent WBE goal of the project. On May 20 the Department posted the bids and designated Capeletti as the lowest responsive bidder for the project. The Status of Community Asphalt Respondents have raised the issue of whether Community Asphalt was a certified MBE at the time the bids were submitted on April 27. That subcontractor was used by Badgett to meet the 5 percent MBE goal. Community Asphalt was incorporated on September 22, 1980. Fifty-one percent of the stock is held by two Hispanics while the remaining 49 percent is held by non-Hispanic shareholders, one of whom owns Badgett. The purpose of the business was to qualify as a minority business enterprise for paving work on construction projects. The corporation is structured so that the Hispanic shareholders have ultimate control of the business and can elect the majority of the board of directors. Although Capeletti contended that the 49 percent block of stock can control the corporation's operations, or prevent it from bidding on jobs, sufficient provisions are available in the by-laws, articles of incorporation and statutes to allow effective Hispanic control. Community Asphalt was first certified on a temporary basis by the Department as a minority business enterprise for a 3-month period beginning October 28, 1981. A renewal application for continued certification was filed with the Department around January 7, 1982. That application was never acted upon by the Department despite numerous written and oral inquiries by the applicant and its attorneys over an extended period of time. The lack of action was caused in part by a shortage of personnel in the Department MBE office. Community was orally advised in June, 1982 by a Department MBE representative that its application had been approved and it would be placed on the approved list of MBE subcontractors for participation in Department contracts. Community relied upon this representation and did not pursue the matter further. Thereafter, Community's name appeared in the Department MBE directory provided to contractors for Department projects, including the updated directory used for the April, 1983 letting of projects. Most recently, it was again included in the June, 1983 directory. Badgett relied upon these directories to comply with the MBE goals. Although the Department "routinely" advises MBE contractors in writing whenever their certifications have expired, the Department did not do so in Community's case at the end of its 90-day certification on January 28, 1982, or at any time thereafter. The Department attributed this to an oversight and shortage of personnel. In March, 1983 Badgett submitted a bid on the I-75 and SR 84 Department project in Broward County. On that particular job it had also received a bid quote from Community Asphalt. The Department awarded the contract to Badgett and authorized Community Asphalt to be used to meet the MBE contract goals. It is now performing the contract. Further, Community consistently submitted bids from January, 1982 until the Nova Drive project without any question being raised by the Department and participated in numerous Department jobs over that period of time. Department Practice on MBE Submissions and Waiver of Irregularities The Department views the MBE program as being an opportunity for minority and female owned companies to participate in the road and bridge construction program. According to its Coordinator, the policy in the past has been to "stretch" the rules if necessary to afford MBEs such an opportunity. The MBE Coordinator could not recall ever rejecting a contract for noncompliance by a bidder with the MBE good faith requirements. In situations where a contractor has not submitted its good faith efforts in conjunction with its bid, the Coordinator has allowed contractors to supply such information after the tenth calendar day and even up to twenty-five days thereafter where "continuous communication" occurs, and the contractor is attempting to fulfill the requirements. The Department internally created an awards committee some fourteen years ago which reviews all bids whenever irregularities, discrepancies or unbalancing of bid items occur on a particular job. In determining how to resolve such problems, the committee's primary concerns are to protect the integrity of the competitive bid system and do whatever is in the best interest of the State. The committee did not get involved in the Nova Drive Project, but the director of the division of construction, who sits on the committee, considered the tardiness of Capeletti in complying with the MBE requirements to be a "minor deficiency" and a "waiverable irregularity". He described "major" deficiencies as being a failure to submit a bid bond or not signing the bond, either of which would warrant rejecting an apparent low bidder. Section 3-1 of the Florida Department of Transportation Standard Specifications for Road and Bridge Construction (1982 edition) provides in part as follows: Until the actual award of the contract, however, the right will be reserved to reject any and all proposals and to waive technical errors as may be deemed best for the interest of the State. (Emphasis added) Effects of Cancelling the Contract As noted earlier Capeletti has been performing under the contract since the latter part of June, 1983. Should the contract be cancelled, Capeletti estimates its reimbursable costs from the State to range from $500,000 to $1,000,000. This amount represents expenditures already made for such things as earth-work, drainage structures and pilings and beams ordered or already made. This amount was not considered to be unrealistic by a Department representative. The contract specifications call for the contract to be completed in approximately 550 calendar days. If the work is done at an even pace, around 20 percent of the job will have been completed at the time this recommended order is issued. However, from a construction standpoint, performance of the contract can be terminated at any time and the construction completed by another contractor.
Recommendation Based on foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Transportation enter a final order immediately terminating the contract awarded to Capeletti Brothers, Inc. on the Nova Drive Project, and that the remaining portion of the work under that project be relet for bids. DONE and ENTERED this 10th day of October, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1983.
The Issue The issues presented here concern the entitlement of the petitioner to be certified as a Minority Business Enterprise (female) in keeping with Rule 14- 78.05, Florida Administrative Code. In particular, it is to be decided whether the request for certification should be denied premised upon Respondent's assertion that: (1) Princess Construction Company is lacking in independent business status; and (2) that the female owners do not have bona fide control of the operations of Princess Construction Company.
Findings Of Fact Princess Construction Company, Petitioner, was incorporated on February 3, 1981, upon the filing of its articles of incorporation as a Florida corporation. The directors of the corporation were, and remain, Lucy B. Jensen, Mary Anna Jensen and Stephen F. Jensen, and they are individually the holders of 1,000 shares of stock and serve as officers in the capacity of president, secretary and treasurer, respectively. Minutes of the corporation organizational meeting held in Jacksonville, Florida, on February 3, 1981, show the election of the officers. See Respondent's Exhibit 2. As shown in Respondent's Exhibit 2, which is the application for Minority Business Enterprise certification, hereinafter referred to as MBE certification, Petitioner is engaged in the business of constructing concrete sidewalks, curb and gutter and ditch paving. The corporation also is involved in priming and sanding and equipment leasing. The minority ownership of the corporation consists of two (2) Caucasian females who own 66.6 percent of the corporation. Lucy B. Jensen, President, is one of the female employees and has additional employment as Secretary of Jensen of Jacksonville, Inc. That latter corporation pays her a salary of $300.00 per week and petitioner pays her $5.00 per week, with her time of employment being equally divided between the employers. The second female owner of the Princess Construction Company is Mary Anna Jensen who is an Assistant Secretary of Jensen of Jacksonville, Inc., and is paid $260.00 by Jensen and $5.00 by Petitioner. Her time is divided 75 percent with Princess Construction and 25 percent with Jensen. The third member of the ownership group in Princess is Stephen F. Jensen who is an Assistant Treasurer of Jensen of Jacksonville, Inc. Lucy B. Jensen is the mother of Mary Anna Jensen and Stephen F. Jensen, and her husband is the principal authority in Jensen of Jacksonville. Schedule A of the application for MBE certification, which schedule is part of Respondent's Exhibit 2, indicates that policy-making in Princess Construction is done by all owners; that financial decisions are made by Stephen Jensen; that dismissal of management personnel is a function of Lucy Jensen; that decisions to bid jobs are made by Stephen Jensen, as well as job estimating; that purchase of equipment and supervision of field operations are handled by Stephen Jensen and Mary Jensen; that payrolls are signed by any of the three (3) owners and that surety and insurance bonds are signed by Lucy Jensen. At the time of the initial application, Schedule A indicated that the firm owned and/or leased no equipment and had not completed any projects. By the date of hearing, there had been some changes in the overall responsibility of the principal officers within Princess Construction. Lucy Jensen was then the individual involved with the day-to-day operation of Princess Construction, including review of the work with the job foreman or field supervisor, one Caesar Moultrie. She also was primarily responsible for estimating for priming and sanding and had had occasion to fire an employee of the corporation. At the point of hearing, Mary Anna Jensen was involved in liaison with the field operations of the corporation and office functions. She had on occasion operated the concrete curb machine on a contract completed by the Petitioner corporation, handled payroll matters and had done estimating work on concrete projects. In addition, she was responsible for handling problems that might arise concerning the delivery of the concrete material to the job sites, by contacting the materials supplier. Stephen Jensen was taking a less active role in the corporation on December 13, 1982, in view of his enrollment in a university program. At present he only participates in major policy decisions, in the routine affairs of the corporation. At the point of hearing, Princess Construction owned a crew-cab truck and two (2) heavier trucks that were being prepared to assist in the work activities of the corporation. These vehicles are variously depicted in Petitioner's Exhibits 8 through 12, which are photographs of the equipment. The application for certification at Schedule A, Respondent's Exhibit 2, shows that Lucy B. Jensen has been a corporate secretary of Jensen of Jacksonville, Inc., and in charge of office management and some field scheduling in the years 1967 through 1981. It is also shown that she had held various secretarial and clerical jobs in construction and manufacturing industries in the years 1949 through 1967. Mary Anna Jensen is shown to have been employed with Jensen of Jacksonville, Inc., as payroll supervisor and safety director or as assistant secretary, responsible for payroll and safety programs and a certified multi- media Red Cross instructor in the years 1978 through 1981. It is indicated that Mary Anna Jensen has held various summer employment positions with Jensen of Jacksonville, as a job clerk, and other clerical positions and as a laborer. This was in the years 1974 through 1978. Within that same time frame, she achieved a Bachelor of Science degree from the University of Florida with an emphasis on health, business management and recreation. Stephen F. Jensen, in the key profile portion of Schedule A is identified as having various summer employment with Jensen of Jacksonville, Inc., as laborer, operator and supervisor and as having worked on various co-op endeavors with companies in Georgia and Europe, in the years 1975 through 1980. At the time of the preparation of the schedule, Stephen Jensen was shown to have graduated from Georgia Institute of Technology with a BS degree in Civil Engineering, emphasis on construction and management. The time spent in achieving this degree was between the years 1976 and 1981. When the hearing was convened, the profile related to the corporate owners, who are the Key personnel in the corporation, had changed to the extent of increased or decreased job responsibilities within the corporation which have been previously discussed and which will be subsequently mentioned in these fact's. Following receipt of the application for certification as Minority Business Enterprise, a copy of which is found as Respondent's Exhibit 2, a desk audit was performed on that application. The desk audit was done by Sunil B. Nath, presently Supervisor of Budget and Planning for the Department of Transportation, who was an MBE liaison officer with that Department at the time of the application. Following the audit, Nath determined that the application should be denied for lack of independent business status, in that the Petitioner was linked to another business, namely Jensen of Jacksonville, Inc., and was sharing facilities, equipment, etc.; for lack of equipment on the part of Princess Construction; for lack of capability; for lack of minority owned control in the "day-to-day" sense of that term; and for lack of experience and technical know how to enable the corporation to control and train its employees. On January 13, 1982, the formal statement of denial was mailed to the corporation, setting forth those items indicated in the Issues statement of this Recommended Order as the basis for the denial of the application. A copy of that letter of notification may be found as Respondent's Exhibit 1, admitted into evidence. Petitioner did not accept the proposed agency disposition of the application and the formal hearing was conducted following the Department's request that the Division of Administrative Hearings conduct a formal Subsection 120.57(1), Florida Statutes, hearing. In addition to the general observations which have been made about the business posture of the corporation at the point of application and at the time of hearing, a number of more specific facts concerning the corporation's status were established through witnesses who appeared at the final hearing. One (1) of these persons who gave testimony on the question of entitlement to certification was Charles P. Caddell, President of Caddell Construction Company of Jacksonville, Florida. Caddell has known Mr. Jensen, the husband of Lucy Jensen and father of the other two (2) Principals to Princess Construction, for a period of approximately fifteen (15) Years. During that time, Jensen of Jacksonville and Caddell Construction have pursued joint ventures related to Department of Transportation projects. Caddell is knowledgeable of the fact of Lucy B. Jensen and Mary Anna Jensen's work experience in the construction industry related to office operations. He is also aware of the field experience of Mary Anna Jensen related to the teaching of a first aid course. In particular, Caddell has had involvement with the female contingent of Princess Construction while they were working with Jensen of Jacksonville and Princess, in the area of bookkeeping, cost data, rental of equipment and crews and movement of equipment. Charles H. Barco who is the President of C. H. Barco Contracting Company, testified on the subject of two (2) contracts which he had ventured with Princess Construction Company. One (1) of these contracts in 1981, has been completed and the second one is still underway. The completed project was fully performed by Princess Construction. Barco has known Lucy Jensen for twenty to twenty-five (20-25) years and has worked with her husband in an unrelated company. One of the two projects mentioned, which is referred to as the southside connector project, was one in which Barco's knowledge of Lucy B. Jensen's participation related to her involvement with general administrative matters on the project. He had no knowledge of the exact participation of Mary Anna Jensen. Eugene F. Fulgham, Sales Manager and Vice President of M. D. Moody and Sons, indicated that Lucy B. Jensen recently purchased sand spreading equipment for the Petitioner corporation. This refers to items installed or to be installed on the heavy trucks depicted in the photographs that have been previously identified. Fulgham has been involved with Jensen of Jacksonville since 1968, in establishing purchasing and payment schedules for equipment related to that corporation. Lucy B. Jensen has contacted Fulgham in the past on the topic of acquisition of equipment from Moody for the benefit of Jensen of Jacksonville. He knows of Mary Anna Jensen through her work with Jensen of Jacksonville while in high school. That work pertained to transportation of parts. At princess she has been involved in the solicitation of quotations of rental equipment related to the activities of the corporation, and the delivery of equipment. At the time of hearing, Princess had no lease arrangements with Moody and Sons; however, Fulgham stated that he would lease or rent equipment to Petitioner in the future. Minna Strickland, Assistant Vice President with Florida National Bank of Jacksonville, testified on the topic of loans which were made to Princess Construction for the purchase of two (2) Mack Trucks, the two (2) heavier work trucks which are shown in the aforementioned photographs. The loan was secured by the trucks following a down payment of 10 to 20 percent and personally endorsed by Lucy Jensen. Princess, to the knowledge of Strickland, has no other loans with that bank. Strickland had also dealt with Lucy B. Jensen in connection with Jensen of Jacksonville, which has an account with the Florida National Bank; however, this arrangement by Jensen of Jacksonville was not a determining factor in deciding to loan the money for the purchase of Petitioner's trucks. A. B. Lynch, Jr., Vice President of Surety Associates, which is a banking company, indicated that his company had issued a bid bond in the amount of $10,000.00 to $15,000.00, for the benefit of Princess Construction. His involvement with Lucy B. Jensen has been in the administrative and financial realm related to bonding. He has known Mrs. Jensen for fifteen (15) years or more and has dealt with her on the projects of Jensen of Jacksonville concerning bonds. Petitioner's bonding capacity is in the range of $100,000.00 to $150,000.00. Stanley L. Storey, an insurance agent with C. W. Powell and Company, gave testimony on the subject of the insurance coverage provided for Princess Construction Company. Storey also has regular business dealings with Jensen of Jacksonville through Lucy B. Jensen. He has no knowledge of Mrs. Jensen's abilities in the construction industry other than as they relate to the administrative function, such as provision of insurance coverage. In each instance of affiliation as related by the various witnesses, identified before, it was the opinion of those individuals that Princess Construction Company is a viable business entity. Caesar Moultrie, the foreman of Princess Construction Company, testified. Moultrie is a minority male but he does not have ownership interest in Princess Construction Company. He has served as foreman for a period of four or five (5) months and has worked for the company for seven (7) months. He supervises a crew of five (5) men normally and the work activities of Moultrie and his crew include the installation of curbs, working gutter, sidewalks, ditch paving, other paving, flag work and driveways. He supervises the men in the field in the sense of instructing them about jobs to be performed. He also orders concrete and other necessary material. He is visited on the job sites by the three (3) principals in the corporation, the Jensens, and inquiry is made of him to establish if the job is going smoothly. According to Moultrie, Lucy B. Jensen visits the job site on a routine basis. Lucy B. Jensen is his immediate supervisor and on one (1) occasion when it was necessary to dismiss a crew member, that dismissal was made by Lucy B. Jensen, upon recommendation of Moultrie. (This is the personnel action spoken of before.) As established by Moultrie, Lucy B. Jensen does not involve herself in the technical aspects of the job, i.e., the ongoing operations of the corporation in its field operations. Mary Anna Jensen's testimony at the hearing established that she is the payroll clerk for Princess Construction. Furthermore, her principal training for her position with Princess Construction came through her involvement with Jensen of Jacksonville. In the way of field operations, she has operated the concrete machine for three (3) or four (4) days on one project and has run concrete for curb and gutter on other projects for two (2) days. She relies on Moultrie when questions arise on the technical aspects of the job in the field, to the extent of indicating that she depends "very heavily" on his expertise related to field operations. Mary Anna Jensen's testimony pointed out that Princess Construction Company is located at 5334 Whitney Street, Jacksonville, Florida, and shares office space with Jensen of Jacksonville, for which fifteen dollars ($15.00) per month is paid and the primary equipment is constituted of a kitchen table and file cabinet. Her testimony established that, while at Jensen of Jacksonville she has done accounts payable, been involved with the payroll, typed letters and answered the phone; however, her involvement has not included supervision of field operations or job estimating. With Princess, she has estimated concrete work and prepared the estimates related to contracts in evidence as Petitioner's Exhibit 1 and 2. She visits the job site two (2) or three (3) times a week to check the progress of work on the ongoing Princess job and to inquire on the topic of the employees' satisfaction with their positions. She coordinates and deals with problems that might arise with the delivery of concrete by dealing with the material supplier. Finally, Mary Anna Jensen is familiar with the overall capabilities of the equipment owned by Princess Construction. Lucy B. Jensen's testimony described the office location of the construction company as being the residence of her family. In addition to the items which have been spoken to concerning her duties with Princess Construction, she mentioned writing crew letters, answering complaints and filling out forms. She clarified her status as Secretary with Jensen of Jacksonville by establishing that she was the office manager and a board member of that corporation, but without any stock ownership. She indicated that Princess had owed money to Jensen of Jacksonville in the past, however, no debt is outstanding at present. Her management duties are performed by conferring with Moultrie on the night before the work day, and sometimes on the day of job assignments. She has specific understanding of priming and sanding through the use of a distributor truck and this is an activity which Princess would like to be engaged in but has yet to undertake. Princess Construction has been certified pursuant to Section 337.14, Florida Statutes, in the work class ratings minor bridges, grading and flexible paving. See Petitioner's Exhibit 7, admitted into evidence.
