The Issue The issue is whether Petitioner filed his complaint against Respondent for race discrimination more than 180 days after the occurrence of the alleged unlawful employment practices contrary to Section 760.10(10), Florida Statutes (1989).
Findings Of Fact The parties' Stipulated Statement of Undisputed Material Facts constitute the following findings of fact: The Petitioner, Floyd Peacock, Jr., a black male, was hired by the Respondent, Air Products and Chemicals, Inc., on August 22, 1980. The Petitioner was initially hired and employed by the Respondent as a maintenance mechanic at the hire (entry) level. On August 22, 1980, James Coleman, a white male, was hired by the Respondent as a maintenance mechanic. On August 25, 1980, Elvin Higgins, a white male, was hired by the Respondent as a maintenance mechanic at the second year step level. The Respondent has had two means of filling the vacancies that arose in the plant. First, whenever someone left the Respondent's employ due to retirement, a voluntary discharge, or involuntary termination, that vacancy would be posted on a job board on the Respondent's premises. Employees wishing to transfer to the department where the vacancy arose were then allowed to apply, or bid, for the posted vacancy. Bids are awarded based upon job skills and seniority. For positions within the operations department, seniority is determined by the amount of time the employee had with the company. For maintenance positions, seniority is determined by the amount of time the employee had with the maintenance department. The second method used by the Respondent to fill vacancies was a "back- fill" procedure. When an employee's bid was awarded and that employee then transferred to another department, the vacancy created in the transferring employee's department was "back-filled" with a new hire from outside of the company. Additionally, a position that was opened for bids but not bid upon was also back-filled with new hires from outside of the company. In 1982, the Petitioner, whose pay level as a mechanic with the Respondent was at the "second step/year level," became interested in a three- year position in the ammonia methanol area and inquired about bidding for the job. He was told by the personnel manager, Laura Finn, that since he was at the two-year level, he did not qualify for the three-year position. The Petitioner did not bid for the job. Two white males, Roy Mony and Clayton Perry, who were previously employed as mechanics with Carroll Construction, as had the Petitioner, were hired at the "third step/year level" and placed in the two "third step/year level" mechanics jobs. The Petitioner filed no charge or complaint with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission concerning his not bidding for the "three step/year level" mechanics position or the hiring and assigning of the two white males "three-step" mechanics to those positions in 1982. At the time of his "fifth-year step" mechanic's interview in 1985 for obtaining his "five year/step" pay increase, the Petitioner confirmed with his supervisor that James Coleman had been made senior mechanic and had been advanced to the "senior mechanic" pay level. The Petitioner was given a "fifth year/step" mechanic's pay increase. Soon after the 1985 pay increase interview, the Petitioner went to the Respondent's Personnel Department with his supervisor to inquire about why James Coleman had been made a senior mechanic before the Petitioner. When the personnel manager was unable to provide the reason, the Petitioner talked with a staff member of the Escambia-Santa Rosa Human Relations Commission about his being given a "fifth year/step" mechanic's pay increase while James Coleman received a senior mechanic's title and pay increase. However, the Petitioner did not file any complaint with that agency or with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission. In June, 1986, the Respondent had a reduction in force (RIF) that resulted in some employees' employment being terminated and other employees being reassigned to other lower level and lower paying jobs. The following actions were taken as part of the RIF process in June, 1986: Maintenance mechanics hired prior to June 10, 1977, continued in their positions. Maintenance mechanics hired after June 20, 1977, but before the Petitioner's date of hire of August 22, 1980, were assigned permanent operator positions. Fifteen or sixteen maintenance mechanics who had been hired on or after the Petitioner's date of hire were placed in a temporary job position designated as "utility operators." Among the mechanics retained in the employ of the Respondent but assigned as utility operators was Elvin Higgins, a white male senior mechanic, and the Petitioner. The remaining mechanics were discharged as a result of the RIF in June, 1986. Among the mechanics who were discharged at that time were Roy Mony and Clayton Perry, whose hiring dates were after the Petitioner's date of hire. The utility operator position was a new, temporary position created in response to the RIF. In lieu of being discharged, fifteen employees, including Petitioner, were placed in the utility operator position. Utility operators worked at reduced pay, performing work previously accomplished by independent contractors. As vacancies arose in other departments of the company, one by one, each of the utility operators were to fill these vacancies until no one remained in the utility operator position. The respondent provided the utility operators with two means of transferring out of the utility operator position into a regular, higher paying position. First, utility operators were allowed to bid on any position that was subject to the Respondent's customary bid procedure. The second means that the utility operators had for leaving the utility operator position was through the assignment of a "back-fill" position. Instead of back-filling positions with new hires from outside of the company, as was the procedure before the RIF, utility operators were to be assigned to the back-fill positions. A utility operator would be back-filled into any vacancy that had been opened up for bids under the customary bid procedure, but on which no one had bid. Second, utility operators could be back-filled into a secondary vacancy created when another employee transferred from one position to another. The utility operators were to back-fill these non-bidded [sic] positions and secondary vacancies in order of seniority with the company (i.e., by date of hire). In June, 1986, when Elvin Higgins was reduced from senior mechanic to a utility operator because of the reduction in force (RIF), the Petitioner first became aware that Elvin Higgins had previously received senior mechanic status. On July 28, 1987, Aubry Garrett, one of the utility operators, used the normal bid procedure and successfully "bid-out" of the utility operator's position and took an operator's position. The Petitioner did not bid for this position. Between the time of the RIF in June, 1986, and the time the first back-fill position arose in September, 1987, the Respondent had not provided its employees with a finalized written or oral statement about how the back-fill positions would be administered after the RIF; however, during this period before the Petitioner refused the first back-fill position, when asked about this procedure by employees, Ernest Labadie, the personnel manager, told them that utility operators would be assigned back-fill positions in the order of the employees' length of service with the company. In September, 1987, two operator positions became available for utility operators to "back-fill" as secondary vacancies. The Petitioner, as the most senior utility operator based on date of hire, was offered one of the positions, but he refused the job because it was rotating shift work and he desired to work only "day hours" like he was working as a utility operator and had worked as a maintenance mechanic. Elvin Higgins and Gene Moore, the next senior utility operators based on date of hire, accepted the "back-fill" positions and were assigned those positions in early October, 1987. At the time of the Petitioner's refusal to "back-fill" and accept the available advancement to operator, the Petitioner was informed by Ernest Labadie, the personnel manager, that the Petitioner would be placed at the bottom of the list of the utility operators for future "back-filling" of jobs by utility operators. The Petitioner made no complaint to anyone or any agency about his being placed at the bottom of the list of utility operators for "back-filling" purposes in September, 1987, and believed at that time that his placement at the bottom of the list was fair and not discriminatory. Gary Kent is a white male who is senior the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department. Before the reduction in force (RIF) in June, 1986, Mr. Kent was a mechanic, but as a result of the RIF, he was transferred to an operator's position in the amines area of the company. The amines job was not shift work. On November 24, 1987, Mr. Kent bid for an operator's position in the PVC area and received the job on December 8, 1987. His move to the PVC area from the amines area resulted in an operator vacancy (secondary vacancy) in the amines area that would be "back- filled" from the utility operators' list (i.e., without the need for bidding for the vacant position). On December 8, 1987, the vacant operator position in the amines area was "back-filled" by David Hart, who was the next utility operator on the "back- fill" list since the Petitioner was at the bottom of the list. The Petitioner became aware of this assignment, or surmised that the assignment of Mr. Hart to the amines area would occur, before the announcement of the assignment was posted and when he heard that Mr. Kent had bid for the PVC area operator position. In November or December, 1987, the Petitioner spoke with the personnel manager, Mr. Labadie, about the Petitioner's chances of getting the vacant amines area operator position that was to be "back-filled" since Gary Kent had bid for the PVC operator's position. The Petitioner was interested in this operator position because it was not a rotating shift job. The Petitioner was told that consistent with the personnel manger's discussions with the Petitioner in October, 1987, the Petitioner was not eligible to "back-fill" the position because he was at the bottom of the "back-fill" list. The Petitioner accepted the explanation and understood the policy and procedure for "back-filling." The Petitioner made no complaint to anyone about assigning the amines area operator's job to Mr. Hart instead of to the Petitioner. In January, 1988, Bruce Holiday, a white male who is senior to the Petitioner by amount of time in the Respondent's maintenance department and who has been working as an operator after the reduction in force, bid for and received on February 1, 1988, the assignment back into the maintenance mechanic. The Petitioner had bid for this position but has no complaint of racial discrimination about his not being awarded the position because Mr. Holiday was a senior to the Petitioner for the maintenance mechanic position by the amount of time in the maintenance department. In February, 1988, the Petitioner and the other two last remaining utility operators, Randy Mock and Lawrence Pearce, were assigned and "back- filled" to operator positions. The Petitioner made no complaint and has no complaint about this assignment. In November, 1988, Gary Kent, who was also senior to the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department, bid for and received on November 20, 1988, an assignment back into the maintenance department as a maintenance mechanic, a position subject to the customary bidding procedures. The Petitioner had also bid for this position. The announcement of Mr. Kent's assignment was posted on the bulletin board for employees to see. The Petitioner became aware of the assignment of Mr. Kent to maintenance on or before the posting of the announcement on November 16, 1988. On or about November 16, 1988, the Petitioner discussed with Mr. Labadie, the personnel manager, Mr. Kent's bidding and being assigned into the maintenance department as a mechanic. The Petitioner complained that since Mr. Kent had previously bid and received the PVC position in December, 1987, Mr. Kent, in the Petitioner's view, had decided at that time that Mr. Kent did not want to go back into the maintenance department. Therefore, the Petitioner surmised that, even though Mr. Kent would later be the senior person eligible to be awarded a maintenance mechanic job if he had bid it, Mr. Kent should have been "placed at the bottom of the list" for purposes of bidding on any maintenance mechanic positions. The Petitioner asserted that this would be consistent with his being placed at the bottom of the "back-fill" list when he refused to accept the "back-fill" assignment in September or October, 1987. Mr. Labadie asserted in response to the Petitioner that there was nothing inconsistent since Mr. Kent's assignment was pursuant to and consistent with the Respondent's bidding procedures and policies for maintenance department positions which were in effect and used both before and after the RIF (and under which the Petitioner was allowed to bid and did bid for mechanic's positions); while the Petitioner's assignments from utility operator to the operator positions were governed by the "back-fill" procedure. The Petitioner personally did not agree with and did not accept this explanation, although he understood the two different procedures, and told Mr. Labadie that it was Petitioner's opinion that the bidding and "back-filling" should operate the same way. In January, 1989, the Petitioner again had a similar conversation with Mr. Labadie about Mr. Kent's bidding and being assigned a maintenance mechanic's job and the Petitioner's being put at the bottom of the "back-fill" list for assignment to operator positions. In late February, 1989, Ricky Cook and John Rink, both white males who are senior to the Petitioner by the amount of time in the Respondent's maintenance department and who had been working as operators after the June, 1986 reduction in force, bid for and received assignments back into the maintenance department as mechanics. The Petitioner has no complaint, based on racial discrimination or otherwise, as to these assignments. The Petitioner's employment discrimination charge was filed with the Florida Commission on Human Relations on March 27, 1989, and filed with the Equal Employment Opportunity Commission on March 31, 1989. On or about March 29, 1989, the Petitioner bid for and received assignment to maintenance mechanic in the Respondent's maintenance department, along with Larry Perritt, who is a white male and who was a senior to the Petitioner by the amount of time in the Respondent's maintenance department. The Petitioner was assigned the job on April 16, 1989, at the senior mechanic pay level. The Petitioner has no complaints about any of these assignments. The Petitioner received a pay increase at the "top level" of senior mechanic in October, 1989, after serving six (6) months in that position. In October, 1989, Elvin Higgins, after bidding for the position, was assigned to maintenance mechanic at the senior mechanic pay level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charges. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1995. COPIES FURNISHED: Richard E. Johnson, Esq. Spriggs & Johnson W. College Ave. Tallahassee, FL 32301 Ralph B. Peterson, Esq. Beggs & Lane P. O. Box 12950 Pensacola, FL 32576-2950 Sharon Moultry, Clerk Human Relations Commission John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue Whether Respondent discriminated against Petitioner because of his race or age when he was not selected as Lead Mechanic in Area I KA/Nitric.
Findings Of Fact Petitioner is a black male who was over 40 at the time he applied for the Area I (One) Lead Mechanic position. At the time Petitioner applied for the Area I Lead Mechanic position, he was a lead mechanic in the Central Maintenance Compressor and Gear Box shop, pay grade level 28 position. Pay grade level 28 is the highest nonexempt pay grade at Solutia, Inc. On January 25, 1999, Solutia posted a job opening for a lead mechanic position in Area I KA/Nitric, a pay grade level 28 position. Petitioner applied for the Area I Lead Mechanic position. Had Petitioner been selected for the Area I Lead Mechanic position, it would have been a lateral transfer and not a promotion because Petitioner was already at a level 28 pay grade. No evidence was received that the incumbent of the Area I Lead Mechanic position would have had more authority or promotion opportunities than the position previously held. Petitioner, along with three other mechanics, interviewed for the Area I Lead Mechanic position. The other three applicants were: William G. Cook (a white male); Joseph S. Mann (a white male); and David Wolfe (a white male). Petitioner admits that all the applicants were qualified for the Area I Lead Mechanic position. Respondent used a ranking procedure to evaluate the applicants for the Area I Lead Mechanic position. The applicants were ranked by subjectively grading their answers to questions in five areas: 1) problem-solving and decision-making ability; 2) teamwork and coaching ability; (3) communication ability; (4) honoring differences; and (5) results orientation and initiative. The applicants were given a score from one to five by each panel member based upon the panel members' subjective assessment of applicants’ answers on each of the five criteria. Five was the highest grade and one being the lowest. The points were totaled and converted into a percentage score. The applicant having the highest overall score was selected to fill the job. The applicants were interviewed by a panel composed of six employees: Nikki Owens; Mike Conley; Darren Dobson; Tony Williams (a black male); Terry Wilcox (who was over 40 at the time of the interview); and Greg Barker. All of these persons were from Area I. The majority of the panel worked regularly with the person ultimately selected. Petitioner admits that there was no overtly discriminatory questions or activity in the interview. There were no questions or discussions amongst the panel members about the applicants' race or age. The panel members scored each applicant separately without knowing how the other panel members scored the applicants. The panel members scored the applicants as follows: W. Cook S. Holly J. Mann D. Wolfe Nikki Owens 45% 77% 90% 67% Michael Conley 53.3% 63.3% 70% 63.6% Darren Dobson 40% 63% 70% 67% Greg Barker 40% 57% 73% 57% Tony Williams 57% 73% 67% 50% Terry Wilcox 33% 66.6% 76.6% 57.7% After the individual panel members totaled their respective scores, the applicants were ranked. Joseph Mann was ranked first by five of the six panel members, and one panel member, the black male, ranked Petitioner first. The panel discussed the results and reached a unanimous consensus to offer the Area I Lead Mechanic position to Joseph Mann. The panel prepared and provided feedback to all the applicants. Petitioner's shortcoming was that he failed to give specific examples to questions posted during his interview. When he was not selected, Petitioner complained about the outcome, believing he was the most qualified applicant and was rejected for racially motivated reasons. Rachel Gold (a black female) and Lerissa Rowe, who both worked in Respondent's Human Resources Department, investigated Petitioner's complaint. During their investigation, it came to their attention that a panel member, Terry Wilcox, stated to a co-employee, "I don't think that there would ever be two black people in charge of a group of white mechanics in a shop." After learning of Terry Wilcox' comment, Respondent took the following action: (a) Respondent recalculated the panel's score leaving out Terry Wilcox' score; and (b) Respondent disciplined Terry Wilcox by suspending him for two days without pay. After recalculating the scores, Joseph Mann still had the highest overall score. Petitioner's overall score remained the same. Petitioner remained with Respondent until he voluntarily retired effective November 1, 1999. No one forced Petitioner to retire. The decision was Petitioner's alone, prompted in part by a change in Respondent's retirement plan. Petitioner admits that none of the panel members had ever discriminated against him because of his race or age prior to the complained of selection. Since retiring, Petitioner has not sought employment elsewhere. He is basically enjoying retirement.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the instant petition. DONE AND ENTERED this 30th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2001. COPIES FURNISHED: Sylvester A. Holly, Jr. Post Office Box 301 Cantonment, Florida 32533 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32596 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether Ronnie L. Ricks, has been a victim of an unlawful employment practice allegedly perpetrated by the employer, the Respondent, City of Gainesville (City), because of its termination of him, allegedly because of his race.
Findings Of Fact The Petitioner, Ronnie L. Ricks, was employed by the City of Gainesville as a Motor Equipment Operator I from June 9, 2003 to August 6, 2003. The Respondent, City of Gainesville, is a municipal corporation organized under the laws of the State of Florida, and is an employer for purposes of Chapter 760, Florida Statutes. Upon accepting employment with the City, the Petitioner was made aware of the written job description including the job functions and selection factors specified in the job description. He was also provided and made aware of the written City of Gainesville Policies and Procedures, including policy number 6 relating to and describing the six-month probationary period applicable to all new employees. Upon being hired by the Respondent and commencing work as a Motor Equipment Operator I, on June 9, 2003, the Petitioner's continued employment was subject to the satisfactory completion of a six-month probationary period. The Respondent's written policy relating to the probationary period stated that, "The probationary period shall be regarded as an integral part of the selection process and shall be utilized for closely observing the employee's work for securing the most effective adjustment of a new or promoted employee to the position and for rejecting any employee whose performance or conduct is not satisfactory." Further, the policy stated, "During the probationary period, the supervisor and Department Head may discharge an employee who is unable or unwilling to perform the duties of the position satisfactorily or whose habits and dependability do not merit continuance in the employ of the City." At all times relevant to this action, the essential job functions of the position of Motor Equipment Operator I included a requirement that the employee, "Attends work on a continuous and regular basis." Additionally, among the "non-essential job functions" was a requirement that the employee, "Makes minor repairs and adjustments to equipment. Checks oil and tires." One of the selection factors listed in the written job description for the position of Motor Equipment Operator I was, "Ability to work effectively with co-workers and the general public." The Petitioner claims to have suffered discrimination when his crew leader allegedly told other employees that the Petitioner was a "policeman." He maintains this caused black co-workers to shun him or refuse to speak to him. He also contends that his supervisor allegedly made comments about his clothes and his car. Apparently, he means that his choice of clothing for work was criticized because he allegedly wore "designer clothes" for a job which required more casual work clothes. He also feels he was discriminated against because of his supervisor's alleged comments concerning the type or model car he drove. The Petitioner maintains he was harassed by his supervisor when he refused to mow a retention pond in an area he was assigned to maintain. He claims the retention pond had a hole in it and he felt it was dangerous to mow it on the tractor. When he refused to do the job, his supervisor Ed Sams completed the job. The Petitioner also contends he was discriminated against because he had to complete a City of Gainesville Accident Analysis form after damaging a tractor by bending the metal roof of the tractor when he hit an overhanging tree limb. He maintains that white employees were not disciplined for such conduct. Aside from his contention that white employees were not disciplined for damaging equipment and he was, the Petitioner did not testify that any of the alleged discriminatory or harassment acts he cited were in any way related to his race or other protected status. There was no substantial evidence offered at hearing to support the Petitioner's claim that his crew leader Ed Kersey, ever referred to the Petitioner as a "policeman" or other similar term. The Petitioner made that accusation in his testimony based on uncorroborated hearsay, the relator of which was not present as a witness. His crew leader, Ed Sams, testified that he did not make such a statement and further testified that his father was a career law enforcement officer and he had a great deal of respect for such a position and would not have used "policeman" or a similar term in a derogatory way. The Petitioner claimed that his supervisor, Ed Sams, made derogatory comments about his clothes and car. The Petitioner claims that those comments were inappropriate but did not indicate that they were discriminatory on the basis of race or in any other way. Supervisor Sams testified that he has no recollection of making comments about the Petitioner's clothes and did not recall him dressing inappropriately during his brief employment with the City. He was never reprimanded or otherwise disciplined concerning the clothes he wore. Supervisor Sams did acknowledge making comments about the Petitioner's vehicle in that he testified he had merely asked the Petitioner's opinion concerning the various qualities of that vehicle because he was considering purchasing a similar one for himself. Concerning the Petitioner's testimony about being "harassed" by being ordered to mow a retention pond he considered to be an unsafe site, Supervisor Sams testified regarding that incident. He showed it to be an example of the Petitioner's unwillingness to work effectively with co-workers and his poor attitude toward supervision. On that occasion, Mr. Sams witnessed the Petitioner sitting near an unmowed retention pond and inquired why he was not working. The Petitioner responded that he was going to "let Ed do it." "Ed" was crew leader Ed Kersey, one of the Petitioner's supervisors. Supervisor Sams testified that he was somewhat taken aback by the Petitioner's attitude toward both the assigned work and to his direct supervisor. Ultimately, Mr. Sams performed the required mowing operation and clearly demonstrated that it could easily be safely done. The Petitioner indicated he felt harassed by this incident or this direction to mow the retention pond, but he gave no testimony whatever to indicate that it was racially discriminatory toward him. The Petitioner maintains that he felt harassed when drove his tractor into a tree limb causing damage to the tractor's aluminum canopy. He was required to complete a "City of Gainesville Accident Analysis form," but in spite of his testimony that he was disciplined, there is no evidence to show he was disciplined for the incident. Despite the clear language on the accident analysis report completed as a result of the accident, the Petitioner apparently failed to understand that he was not being disciplined or "written up" for the accident. He was not treated differently from the white employees he maintained were not disciplined for damage to equipment. The Petitioner was merely required to complete the accident analysis report in order to maintain a record of incidents involving City equipment. Under the section entitled "corrective action," the report merely indicated, "reinstruct employee." There was no discipline imposed. Mr. Sams testified that he did not issue a warning, reprimand, re-assignment, or job change as a result of the tractor damage incident. Mr. Sams testified that the Petitioner's obstinance regarding the completion of the accident report form was a further example of difficulties encountered in supervising the Petitioner. Ed Kersey is a Labor Crew Leader II who reports to Mr. Sams and who directly supervised Ricks. In addition to the incident where Ricks refused a directive to mow the retention pond, Mr. Kersey also encountered the Petitioner's obstinance and failure to follow supervision, on occasions when the Petitioner was angry or upset and would mow over litter or trash on the ground rather than pick it up, or have it picked up, before running the mowing machine over it. He also had a tendency to show up late for equipment maintenance work. He was verbally counseled for this, although never "written up," but kept doing it even after being counseled about it. During less than nine weeks in which the Petitioner was employed in the relevant position, he was absent from work for four days. He left early on one occasion without permission and was late at least twice without excuse. When he left early, he left two and one quarter hours early from work without permission. The four days missed from work were without leave or permission. He arrived late for job assignments on the two occasions. His poor attendance in a nine-week period is more egregious because the Petitioner was only working a four-day work week. The Petitioner frequently missed the designated maintenance times set aside for the motor vehicle equipment operators to work together to maintain their equipment. This is a part of their job description. Crew leader Ed Kersey established that this time was specifically designated in recognition that workers could maintain their equipment if they cooperated with each other. When the Petitioner frequently failed to attend the group maintenance sessions, he would complain about the difficulty of performing maintenance tasks alone. In summary, the evidence fails to establish that the Petitioner was discriminated against due to his race or any other protected status. The preponderant evidence showed that the Petitioner's employment was terminated during his probationary period, because his habits and dependability did not merit continued employment. Specifically, the preponderant evidence establishes that the Petitioner's poor attendance record, sub-standard equipment maintenance, and unresponsive and confrontational attitude towards his supervision were all legitimate, nondiscriminatory reasons justifying the termination of the Petitioner's employment, especially considering that he was in his probationary period. The Petitioner offered no persuasive evidence that, as a member of a protected class, he was treated differently or worse in any employment decision or category as compared to similarly situated employees outside his protected class. Additionally, based upon the above-found instances of deficient performance and deficient attitude toward supervision, the Petitioner did not offer persuasive evidence that he was qualified for the position in question from which he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition in its entirety. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ronnie L. Ricks 3531 Southwest 30th Terrance, Unit 50-B Gainesville, Florida 32608 Daniel M. Nee, Esquire 200 East University Avenue, No. 425 Gainesville, Florida 32601
Findings Of Fact On September 21, 1987, petitioner, Terrell Oil Company (TOC), filed an application for renewal of its certification as a disadvantaged business enterprise (DBE) with respondent, Department of Transportation (DOT). TOC had been previously certified as a DBE for a two-year period commencing in January 1986. After reviewing the application, DOT advised TOC by letter dated January 20, 1988, that its application had been denied on the grounds the firm "(did) not appear to be performing a commercially useful function nor (was) it an independent business entity as required by D. O. T. Rule 14-78.05, Florida Administrative Code." 2/ The letter of denial precipitated this proceeding. Later correspondence from DOT on February 8, 1988, advised TOC that its existing certification would remain in effect until this proceeding was concluded. According to its original application dated September 21, 1987, TOC was established on February 5, 1986, and engaged in the business of "oil-gas- petroleum products." Its offices were then located at 1908 West Cass Street, Tampa, Florida. The application identified Grady F. Terrell, Jr., a black man, as being the sole stockholder in the firm, its president and chairman of the board. Other directors included Richard W. Gilliam, a white man, and Walter Scott, a black man. The application represented that Terrell served as president and treasurer of TOC while Gilliam held the positions of vice president and secretary. The application reflected also that Terrell and Gilliam shared the power in the areas of policy making, financial decisions, job estimating, bidding and supervising field operations and that Terrell alone had the power to dismiss employees and sign checks. Finally, the application represented that the corporation owned no equipment, it had earned $14,000 in calendar year 1986, Terrell had invested $6,000 of his own money in the firm, and it had two full-time and two cart-time employees. After receiving the original application, two DOT employees made an on- site investigation of the business and conducted an interview with Terrell on October 20, 1987. They found no sign on the building at 1908 West Cass Street indicating that TOC occupied the premises, but they were directed by the landlord to a small 8' x 10' rear corner office. During the interview, Terrell was asked for copies of TOC business contracts but had none. Also, he did not have any cancelled checks, insurance coverage or bonding at that time. Terrell stated he had no employees so no insurance was needed. He represented further that he was "self-employed" by TOC and devoted 100% of his time to that endeavor. When the parties reviewed the application item by item and found several discrepancies or incorrect responses, Terrell agreed to amend his application in the presence of the DOT representatives. As amended, the application reflected that Terrell, Gilliam and J. Anthony Belcher, a white man, were the current directors, the firm had one full-time (Terrell) and no part- time employees, Terrell, Gilliam and Belcher served as president, vice-president and treasurer, respectively, while William V. Gruman, a white man and attorney, served as secretary, and there were no written, oral or tacit agreements concerning the operation of the firm between any persons associated with the firm. Terrell denied that Belcher worked for Belcher Oil Company (BOC), a large oil concern, and described him as a retired individual serving as an independent consultant for TOC. As to Gilliam, Terrell described him as an independent contractor who worked on a 100% commission basis and solicited business for the firm. During the same interview, Terrell represented that the $6,000 investment in capital was actually a loan from a local bank and denied that TOC owned or leased any equipment. Terrell could offer no proof that the firm had earned $14,000 in 1986 and indicated the firm had no projects underway. He described his business as being a broker of gasoline, diesel fuel and motor oil and that other persons supplied and delivered the fuel. According to Terrell, business transactions were conducted in the following manner. He first determined the market price of fuel from BOC, his principal supplier, and based upon that price, submitted a bid on a job. If TOC was successful, Terrell made a telephone call to BOC requesting that the fuel be delivered to the buyer. Through BOC, Terrell was able to purchase fuel two percent below the "rack" rate. TOC then added a percentage of profit to its sales price. In actuality, TOC never had physical possession of the fuel and, accordingly, needed no equipment to engage in this activity. At the same inspection, the DOT personnel confirmed through reading the firm's bylaws that each of three directors had one full vote, regardless of the number of shares held. Thus, the two white directors could outvote Terrell on any TOC decision. Also, a quorum of the directors could convene a meeting and theoretically conduct business without Terrell's knowledge. On November 23, 1987, or a little over a month after the DOT visit was made, TOC adopted a corporate resolution authorizing any one of the three directors to execute binding contracts on behalf of TOC. Thus, either of the two white directors had the authority to enter into contracts without Terrell's approval. A copy of the resolution has been received in evidence as respondent's exhibit 12. Shortly after the above resolution was approved, Gilliam and Belcher were given the opportunity to each purchase 19% of TOC's stock while Gruman was allowed to purchase the remaining 2%. This meant the three white officers now owned 40% of the stock while Terrell owned the remaining 60%. On December 1, 1987, TOC and BOC entered into an agreement whereby TOC agreed to buy fuel and petroleum products from BOC for resale to customers, and in return, BOC extended TOC a $200,000 line of credit. The agreement has been received in evidence as respondent's exhibit 1. Under the agreement, TOC's invoices to customers had to be approved by BOC, and the customers were required to remit moneys due for fuel to a special bank account controlled by BOC. That firm then sent its invoices to the bank and was paid out of the proceeds. The remainder in the account was for the use of TOC. This agreement was negotiated on behalf of TOC by Belcher, whose family once owned BOC, and until 1987 served as a consultant to that oil company. Because of numerous concerns raised during the October 10 visit, DOT continued its investigation of TOC. Besides learning about the above resolution, stock sale and agreement, DOT obtained various corporate records of T0C, including tax returns, cancelled checks, records of fuel sales and applications for minority certification with other governmental entities. Through its investigation, DOT uncovered the fact that Terrell did not devote 100% of his time to TOC as he had earlier claimed but had been employed as a car salesman by Crown Pontiac in St. Petersburg, Florida, on a full-time basis since July 1987. Indeed, Terrell worked there more than fifty hours per week. Contrary to Terrell's representation, authority to sign TOC checks had been delegated to Gilliam who had done so on numerous occasions prior to and after the application was submitted. As to Terrell's contention that TOC owned no equipment, the firm's corporate income tax return indicated it purchased a small tank truck in 1986 and carried the same on its books. The claim that Terrell alone controlled the business was refuted by the firm's corporate records which reflected that the two white board members could effectively control all management decisions and run the business on a day-to-day basis. DOT learned also that, although TOC had five customer accounts in 1988, of which four came from the private sector, the fifth account was with Hillsborough County, a governmental entity, and comprised more than 99% of its total business. In addition to the DOT application, TOC has sought minority business status from the City of St. Petersburg, the City of Orlando, Hillsborough County, Broward County and the federal government. A review of these applications revealed a maze of conflicting information submitted to the respective agencies. For example, Terrell represented to Hillsborough County that one Noble Sissel (a black man) was TOC's vice-president, secretary, treasurer and board member when in fact Sissel never held any of those positions. Terrell represented to Hillsborough and Broward Counties that TOC had two full-time employees while the amended DOT application reflected that TOC had only one. Further, Terrell gave conflicting answers to the various agencies as to the equipment owned by TOC and the purported gross receipts of the firm. In order to perform a commercially useful function, a DBE must manage and perform at least 51% of its work. In other words, the firm cannot subcontract out more than 49% of its business. Also, there is a requirement that a DBE's principal customers be entities other than governmental agencies in order to perform a commercially useful function. Through testimony and admissions of its officers, TOC acknowledged that it was merely acting as a broker. In industry parlance, this means that TOC did all its work by telephone, obtained a seller and buyer and then obtained a common carrier to deliver the product. As such, TOC never took physical possession of the product on its own equipment since it owned none, and it was not responsible for the movement of the product from the terminal to the customer. Further, since TOC purchased virtually all of its fuel from BOC, and under an agreement customer checks went directly to that firm, TOC was, in essence, conducting a broker operation for BOC. Therefore, TOC was not performing a commercially useful function. At hearing, Gilliam was TOC's only witness, and he attempted to establish TOC's entitlement to certification. Besides pointing out that Terrell was a black man and the majority shareholder in the firm, Gilliam attempted to show that Terrell actually controlled and ran the business. Also, he attempted to demonstrate the commercially useful function of the firm by the fact that 80% (4 out of 5) of TOC's five accounts are nongovernmental customers. Although not reflected on the amended or original applications, Gilliam acknowledged that TOC owns one 1200 gallon truck capable of making fuel deliveries. Gilliam contended further that Terrell had made an initial contribution to the corporation of $120,000 of his own funds. However, no proof of this claim was submitted. Given the overwhelming contradictory evidence of record, and the numerous inconsistencies in the testimony of TOC representatives, Gilliam's testimony is not accepted as being credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered denying the application of Terrell Oil Company for certification as a Disadvantaged Business Enterprise. ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of November 1988.
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
Findings Of Fact At all times relevant thereto, respondent, William Reinhart, was licensed to operate a commercial driving school called Easy Method Auto Driving School at 920 North Dixie Highway, Suite 144G, Pompano Beach, Florida. He is holder of commercial driving instructor certificate card number 6634 and commercial driving school license number 2460 issued by petitioner, Department of Highway Safety and Motor Vehicles, Division of Driver Licenses (agency or Division). Reinhart has owned and operated his driving school since 1976. The school presently has four instructors, including Reinhart. Beginning in April, 1986 respondent undertook the driving instruction of Kathleen McKeever, a thirty-two year old female who resides in Boca Raton, Florida. Prior to their lessons, the two had never met. She selected respondent's firm by chance out of the telephone directory. McKeever took approximately five or six one-hour driving lessons from Reinhart between April and June, 1986. On the first two lessons, Reinhart placed his hand in McKeever's lap while she was driving. She thought this was unusual but believed it might have been necessary in the event Reinhart had to suddenly grab the wheel. 1/ She did not voice any objection to his actions at that time. On the third or fourth lesson, the two drove on I-95 in Fort Lauderdale. While heading north on that roadway Reinhart reached over and placed his hands on her breasts and "private areas." McKeever at once began "squirming" in her seat. Reinhart then asked her if she minded him flirting with her, and she responded "yes", but he did not stop. The actual length of time in which Reinhart fondled McKeever was not disclosed, but McKeever stated she feared having an accident on I-95 while this occurred. After the lesson was over, McKeever did not disclose the incident to her family or friends because she was embarrassed and afraid it would upset her mother, who was home recuperating from heart bypass surgery. Fearing possible distress to her mother if she suddenly quit her lessons, McKeever decided to return for another driving lesson in June, 1986. At the beginning of the lesson, Reinhart placed his hand in her lap but she pushed it away. Later on, Reinhart offered McKeever $100 if she would give him a "blow job." She told him she wasn't a prostitute. The lesson ended a few minutes later when McKeever stalled the car in a parking lot and it would not restart. She was forced to telephone her family to get a ride home. After the lesson, McKeever telephoned a local television station (WPLG) and asked if the station would send a reporter to investigate the incident. When the station declined, she reported the incident to the Division. The emergency suspension of respondent's two licenses followed on July 21, 1986. According to the chief of the Division's driver improvement bureau, Reinhart's conduct constituted a lack of good moral character as well as a threat to the safety of others since the incidents occurred while a student (McKeever) was driving the vehicle in traffic. He also stressed the fact that an instructor should have good moral character because of the trust which students place in their instructor. Respondent offered two witnesses on his behalf, one a current instructor and the other a former office manager of the driving school. The office manager related that McKeever had never voiced any complaints to her, and that it was not unusual for every instructor to receive complaints from students at one time or another. However, she acknowledged that no complaints had ever involved sexual harassment. The second witness, an instructor, characterized the job of an instructor as being difficult because of the nervous and erratic nature of students. Although he stated it was necessary to keep his left hand near the student for the purpose of grabbing the steering wheel, he acknowledged that this would not require an instructor to place his hand in the student's lap. Respondent denied McKeever's allegations stating she had concocted the story because McKeever was not progressing well in her training and needed an excuse for ending the lessons. Through cross-examination of his counsel, he also suggested that McKeever might have long-standing psychological problems which prompted her to fabricate the story. However, Reinhart's version of events and contentions concerning possible psychological problems on the part of McKeever are not deemed to be credible and are accordingly rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent's instructor certificate card number 6634 be REVOKED for violating Rules 15A-2.09(2)(a) and 15A-2.11(1)(a), Florida Administrative Code. The charges concerning respondent's driving school license number 2460 should be DISMISSED and the license immediately reinstated. DONE and ORDERED this 26th day of September, 1986, 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 26th day of September, 1986.
The Issue The issue is whether Petitioner is entitled to a vocational evaluation for formal training and education sponsored by the Division of Worker’s Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact On April 30, 1996, Petitioner herniated a disc while lifting materials in the course of his employment as an electrician with General Electric Contracting. He was working at the time as a lead electrician doing residential and commercial installations and repairs. Petitioner underwent low-back surgery about a year later. On May 21, 1997, the surgeon determined that Petitioner had reached maximum medical improvement. The surgeon assigned Petitioner a 9 percent impairment rating and restricted him to lifting up to 35 pounds occasionally, up to 20 pounds frequently, standing and walking four to six hours during an eight-hour day, and driving five to eight hours during an eight-hour day. The surgeon advised Petitioner to avoid bending, squatting, and crawling. Petitioner is 50 years old. He has a high school diploma. Apart from one year's additional coursework in business at a community college, Petitioner has no other formal education. At the time of his injury, Petitioner had been employed as an electrician at General Electric Contracting for six or seven years. After high school, Petitioner served in the U.S. Navy from 1966-70, specializing in weapons. After his honorable discharge, Petitioner worked for two years in route sales--the first year selling ice cream and the second year selling pet supplies. After these jobs, Petitioner began working as an electrician. Petitioner has since worked continuously as an electrician except for the period from 1975-78. During this time, Petitioner opened a sporting goods store in East Fort Myers devoted exclusively to hunting and fishing. Failing to obtain financing for his business, which was not very profitable, Petitioner tried to sell the store, but could obtain no more than the cost of the inventory. He then returned to work as an electrician. Due to his physical limitations occasioned by his work-related injury and surgery, Petitioner can no longer work as an electrician. At the time of his injury, Petitioner was earning an average weekly wage of $554.86. Petitioner has vigorously attempted to find suitable appropriate employment, given his past earnings and current physical limitations. Respondent has given him two job leads as a Code inspector. However, Petitioner failed to get the first job. His application for the second is still pending, but he has not been called for an interview in the six weeks since submitting his application. There is some question whether Petitioner can do the job, which may require bending, squatting, and lifting, but Petitioner has nonetheless pursued this opportunity enthusiastically. On July 9, 1997, Petitioner submitted a request for screening to determine his suitability for a vocational evaluation. Respondent conducted the screening and determined that Petitioner has sufficient transferable skills to allow him to return to suitable gainful employment without a vocational evaluation or vocational training or education. In defending this decision, Respondent's witnesses emphasize the negotiation and marketing skills that Petitioner has presumably developed in his long career as an electrician. However, there is no evidence that Petitioner has developed such skills in any of his prior employment. Respondent's witnesses also emphasize the managerial and bookkeeping skills that Petitioner has also presumably developed, but, again, the record does not reveal that Respondent developed marketable skills of these types in his prior employment. Besides the two leads as a Code inspector, the other leads that Respondent has supplied Petitioner are unsuitable due to physical demands or pay, require skills that Petitioner does not possess, are unavailable in Southwest Florida, or present little chance for employment for a person of Petitioner's education, age, and background. In satisfying his burden of proving entitlement to a vocational evaluation in order to obtain suitable gainful employment, Petitioner's months of good faith, but unsuccessful, job searching persuade more than Respondent's well-intentioned, but speculative or unsuitable, job leads. It is now time for Respondent to provide Petitioner with a vocational evaluation.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order granting Petitioner’s request for training and education sponsored by the Division. DONE AND ENTERED this 13th day of May, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902-2485 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189 Edward A. Dion, General Counsel Office of the General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact In May, 1983, DOT advertised for bids to separately lease the 11 service stations on the Florida Turnpike. Prospective bidders were prequalified before being allowed to submit bids. Bids were to be awarded to the bidder submitting the highest responsible bid and based solely on the amount per gallon to be paid to DOT on each gallon of motor fuel sold at the service plaza. The existing leases were all due to expire and an attempt to get bids in 1982 had been dropped after litigation delayed completion of the bid process. Turnpike prices for motor fuels are regulated somewhat by DOT, in that the Turnpike prices must be comparable to prices at off-Turnpike stations in the vicinity which offer similar services. Those stations selected for comparative prices must be acceptable to the Turnpike station operator and DOT. Equipment at the existing service plazas has been in use for many years and in the bid offering in May, 1983, several new provisions were included, as were many provisions of the expiring leases. To insure competent and qualified service to motorists on the Turnpike, retained lease provisions require the stations to be open 24 hours per day, to provide wrecker service, and to have a mechanic on duty. Few off-Turnpike stations meet these requirements. Accordingly, "comparable" stations within SD miles east-west of the Turnpike and in the vicinity of a specific service plaza may not be readily available. The bid offering provided that these "comparable" stations will be selected by mutual agreement of the parties but makes no provision for settling a dispute between the lessor (DOT) and the lessee. This is significant because another of the lease provisions contained in the bid offering is that the prices at which the service plazas sell fuel must not exceed by more than two cents per gallon the prices at these selected comparable stations. New provisions in this bid offering required the successful bidder to replace all dispensing equipment (gas pumps) with modern equipment, and to provide for sale of motor fuels at self-service pumps. The bid offering contained no specifics as to where the self-service pumps are to be located with respect the existing service islands, whether self-service motor fuels are to be available by credit card or cash only sale, or whether there could be a different price for cash sales than for credit card sales. The bid offering provided that no one entity could be awarded the lease of more than five service stations on the Turnpike, and no bond was required to be posted by any bidder. DOT expected the successful high bidders to submit bids in the vicinity of eight cents per gallon. This was based on DOT's knowledge from surveys taken at frequent intervals over a long period of time, of the price motor fuels was selling bat comparable stations off the Turnpike; of the tank wagon costs of motor fuels to the station operators; of the sales of tires, batteries and accessories historically made by these stations, the profits from which are not included in the lease price; of the uncertainties inherent in the profits engendered by the to-be-offered self-service sales; other changes which increased the field of bidders; and the expected stability of motor fuel prices. When the bids were opened on September 12, 1953, the first, second, and third highest bids received for each of the 11 service plazas are as follows: Service Plaza First Second Third (Number) Highest Highest Highest Bid Bid Bid Snapper Creek (601) 13.51 12.34 5.40 Crocco, Inc. Gus Crocco William Crocco Pompano (611) 14.35 Crocco, Inc. 14.33 Gus Crocco 9.75 William Crocco Pompano (612) 14.33 Crocco, Inc. 12.76 Gus Crocco 9.20 Super Service West Palm Beach (623) 15.67 15.67 11.55 Gus Crocco Crocco, Inc. William Crocco West Palm Beach (624) 15.67 14.53 11.55 Gus Crocco Crocco, Inc. William Crocco Ft. Pierce (635) 15.67 14.83 13.90 Gus Crocco Crocco, Inc. Super Service Ft. Pierce (636) 15.67 14.53 12.40 Gus Crocco Crocco, Inc. WMG, Inc. Ft. Drum (647) 16.20 Super Service 15.67 Gus Crocco 14.53 Crocco, Inc. Canoe Creek (658) 15.67 Gus Crocco 14.90 Super Service 14.53 Crocco, Inc. Turkey Lake (669) 14.34 Gus Crocco 14.20 Super Service 13.43 Crocco, Inc. Okahumpka (670) 14.34 13.25 5.67 Crocco, Inc. Gus Crocco Gulf Oil Although Crocco, Inc., and Gus Crocco were the apparent high bidders for 10 of the 11 Turnpike service station leases, DOT, with only 20 days to award or reject bids, on October 3, 1983, issued a notice of intent to enter into leases with the high bidders. Before such leases could be executed, a petition to protest the award of these bids was filed by parities who are the intervenors herein, the case was referred to the Division of Administrative Hearings and was assigned DOAH Case No. 83-3539. Gus Crocco and William Crocco are brothers, are shareholders in Crocco, Inc., are shareholders in WMG, Inc., and have operated service stations on the Florida Turnpike for the past several years. All entities named in the above sentence submitted bids for Turnpike leases at this offering. Super Service General Partnership, the high bidder for the lease at Ft. Drum service plaza, is composed of a partnership consisting of Ralph Girvin and two other partners. Girvin prepared the bid submitted by Super Service General Partnership which, at 16.02 cents per gallon of motor fuel sold, was the highest bid submitted for any lease. Gus Crocco, Crocco, Inc., William Crocco, and WMG, Inc., submitted the three highest bids for five of the 11 service station leases. During discovery in preparation for the hearing in Case No. 83-3539, it was disclosed that Gus Crocco prepared the bids submitted by Gus Crocco and Crocco, Inc.; that no market survey was taken by Gus Crocco or Ralph Girvin before establishing the selling prices for motor fuels upon which their bids were predicated; that the profit per gallon of motor fuel assumed by Crocco included a rebate from the supplier of approximately six cents per gallon even though no rebate has ever been given at a Turnpike service station for more than a short period of time; the profits to be made per gallon did not take into consideration county taxes that are applicable to some of the service plazas; that existing prices at stations accepted as comparable in the past were much lower than the sale prices which Gus Crocco and Ralph Girvin used to arrive at a bid price; that absent a requirement for the posting of a bond the high bidder could withdraw his bid without financial penalty or liability; that some communication between the Crocco brothers had taken place before the bids were submitted; that Ralph Girvin hand attempted to contact Gus and William Crocco before submitting his bid; that the data upon which Gus Crocco, Crocco, Inc., and Super Service General Partnership based their bids was insufficient to account for all expenses to be incurred; and that there was a high probability that the service station could not provide adequate service to the motorists while paying the price bid for the leases and selling motor fuels at a price comparable to that charged by off-Turnpike stations in the vicinity. This information was passed to DOT. Sam Roddenberry, Turnpike engineer for DOT, is the individual primarily responsible for the operation of the Turnpike in accordance with policies established by DOT. He was the DOT employee primarily responsible for the provisions of the bid proposals and lease, for the award of the lease to the highest qualified bidder, and for the policy changes, including the sale of motor fuel at self-service pumps. After receiving information discovered during trial preparation for Case No. 83-3539, Roddenberry compared Gus Crocco's projected selling price of $1.239 per gallon of regular leaded self-service gasoline with the 1983 average price in Jacksonville of $1.0991; compared the Crocco price estimate for unleaded self-service gasoline of $1.349 per gallon with the Jacksonville price of $1.1789; and the Crocco price estimate of $1.3996 for self-service super unleaded with the Jacksonville price of $1.2997. A similar comparison was made with respect to Super Service General Partnership's bid. These comparisons, the close relationship between the three high bidders at all stations (except for Super Service) and his knowledge that rebates, when given, are good only for short periods of time, led Roddenberry to conclude that all bids should be rejected. On October 1, 1984, Chapter 84-276, Laws of Florida, became effective. This discontinued the high-bid system upon which the bids here involved were solicited and substituted therefor a request for proposal (RFP) system upon which the Department selects the applicant deemed best qualified to satisfy the statutory criteria established by this statute. On June 25, 1984, each of the high bidders was notified by DOT that Respondent intended to withdraw its notice of intent to award leases and that it intended to reject all bids. These bidders at the same time were advised of their right to a Chapter 120.57 hearing, and the petitions for hearing, here involved, followed.
