Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: Respondent, Affiliated of Florida, Inc. is engaged in the wholesale distribution of food and non-food items for the supermarket industry. The Respondent's main warehouse and offices are located in Tampa, Florida. The Respondent currently employs approximately 54 drivers. The drivers are responsible for the daily delivery of merchandise to various locations in Florida and Georgia. The Petitioner, Willie Hudson (a black male), was hired by the company as a driver trainee on March 18, 1985. Ray Scott (black male) a dispatcher for Respondent, and Willie Robinson (black male), Director of Security, were acquainted with Petitioner prior to his employment with Respondent and both recommended that he be hired. Scott also performs personnel interviews, recommends the hiring of all drivers, and supervises new drivers during their training period. When hired, all drivers are required to complete an initial training period of approximately one to two weeks. During this training period, drivers are assigned to ride with a full time driver trainer in order to become familiar with Respondent's practices and procedures. During Petitioner's employment the driver trainers were Leroy Johnson (black male) and John Flipowitz (white male). The alternate driver trainers were Relford Cooper (black male) and Steve Smith (white male). One of the driver trainee's responsibilities is to learn the company's system of preparing and submitting Merchandise Adjustment Tickets (MATs). If a driver makes a delivery and there is a shortage or damage, a MAT is filled out. The MATs must be filled out by the driver at the delivery location and submitted to Respondent's transportation department. The preparation and submission of MATs are necessary for the company to maintain accurate delivery records and are critical to the orderly operation of Respondent's warehouse and merchandise delivery business. The driver trainees are initially instructed by their assigned driver trainer as to how to prepare and submit the MATs. At the end of the training period, driver trainees are given a brief test by the company to ascertain whether they are capable of adequately preparing the MATs. The test consists of hypothetical situations in which a MAT would need to be utilized. The trainees must respond by filling out the MAT correctly. Once the test is passed and the driver trainer is satisfied that all other procedures have been learned by the trainee, the training period is terminated. The new driver is then allowed to make deliveries by himself. Another responsibility of the drivers, covered in the training process, involves the Respondent's system of accounting for trucks and other equipment which leave and return to the premises. A log sheet is kept at the security office that indicates, among other things, when equipment is taken out and brought back in. It is the driver's responsibility to go to the security office and complete the log sheets at the appropriate times. Driver trainees are instructed as to the procedures which must be undertaken in this regard. The Respondent requires that its drivers be punctual and display a positive attitude. Drivers must report to work on time so that merchandise is delivered promptly and must maintain a positive attitude while representing the company during deliveries. The Petitioner was initially assigned to work with driver trainer Relford Cooper. Toward the end of Petitioner's two week training period, Relford Cooper spoke with Raymond Scott and informed him that Petitioner seemed unable to properly fill out the MATs and that Petitioner had a "bad attitude." During the same period Willie Robinson, director of security, spoke with Scott and complained that Petitioner repeatedly failed to properly fill out the equipment log sheets as he was required to do. Scott spoke directly with Petitioner and explained to him how to complete the MATs and instructed Petitioner that the log sheets needed to be properly filled out and that if he had any questions he was to speak with Willie Robinson. At the end of the two week training period, Petitioner took the MAT test and failed it. No other driver had ever failed this test. Scott talked to Petitioner about the situation, and Petitioner explained that he did not think he was given enough time to fill out the MATs, and that he was not properly trained on how to fill them out. Scott decided to give Petitioner another chance by re- assigning him to another driver trainer, Jack Flipowitz, (white male). For the next two weeks, the Petitioner worked with Flipowitz as driver trainer. During this two week training period, Flipowitz went to Scott and complained that the Petitioner seemed unable to complete the paperwork, appeared to have an "attitude problem," apparently resented being trained by Flipowitz and would not take any instruction from him. Scott spoke with Petitioner and Petitioner said that he knew how to complete the MATs, but could not do so with "someone standing over his shoulder." Scott then talked to Flipowitz and told him to make sure that Petitioner had ample time to complete the forms. Scott also told Flipowitz to "back off" while Petitioner completed the MATs and perhaps return to the truck so that Petitioner would not feel so pressured. Shortly after the meeting, the Petitioner and Flipowitz made a delivery to Store 192. The customer at Store 192 wanted to return two cases of merchandise which was scheduled for delivery. Flipowitz gave the MAT to Petitioner to complete. Flipowitz then went out to the truck to allow Petitioner the opportunity to complete the form on his own. When Flipowitz returned from the truck, approximately 45 minutes later, he found that the Petitioner had not made any entries on the MAT. Flipowitz informed Scott of the incident which occurred at Store 192. Scott confronted Petitioner and Petitioner told him that he had "his own way of doing things" and that he wanted to fill the forms out at home. Scott informed the Petitioner that the forms needed to be completed at the store. At that point, Scott recommended that Petitioner be discharged. Petitioner was thereafter terminated on April 18, 1985, approximately four weeks after being hired. The driver training process employed by Respondent is informal and individualized. However, Relford Cooper and John Filpowitz provided Petitioner with substantially the same training and instruction given to all other driver trainees assigned to them. Of the 54 drivers employed by Respondent, 15 are black.
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 complaint and the petition for relief filed by Mr. Willie Hudson, Jr. In addition, it is RECOMMENDED that the Respondent's request for attorney's fees be denied. DONE and ORDERED this 10th day of June, 1986 in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1986. COPIES FURNISHED: Wayne L. Helsby, Esguire 201 S. Orange Avenue Barnett Plaza, Suite 740 Orlando, Florida 3280 Willie Hudson, Jr. 11705 Park Orchard Circle Apartment #3 Tampa, Florida 33612 Affiliated of Florida, Inc. 1102 N. 28th Street Tampa, Florida 33605 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Rnox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk of the Commission Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240, Tallahassee, Florida 32303 APPENDIX Rulings on Proposed Findings of Fact Submitted by the Petitioner (None submitted) Rulings on Proposed Findings of Fact Submitted by the Respondent The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 4. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 3. Partially adopted in Finding of Fact 10. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 19. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 10 and 11. Adopted in Finding of Fact 11. Adopted in Findings of Fact 12, 13 and 14. Adopted in Findings of Fact 14, 15, 16 and 17. Adopted in Findings of Fact 17, and 18.
Findings Of Fact In response to a newspaper advertisement, in May of 1990, Petitioner Peter Ballance submitted to Respondent Town of Palm Beach his employment application, together with an extensive resume, seeking a position as a Mechanic III with the Town's Public Works Department. On May 31, 1990, Petitioner was interviewed for that position by an interview panel of four persons: David Kyzar, Lloyd McCoy, William Krouse, and Leonard Greene. At the beginning of his interview, Petitioner spoke in a whisper. He explained that he stuttered and speaking in a whisper made it easier for him to communicate without stuttering. Within the first few minutes of his interview Petitioner relaxed and began speaking in a normal tone. The members of the interview team had no difficulty communicating with Petitioner, and Petitioner had no difficulty communicating with them. No member of the interview team had any concern about Petitioner's stuttering since one employee with a severe stutter already worked in the Town's Public Works Department, and one employee with a stutter worked as one of the Town's police officers. Further, the members of the interview team understood that the position for which Petitioner was applying would not require much verbal communication. During the interview, Petitioner spoke of his extensive qualifications. The position of Mechanic III is the Town's highest level mechanic position. According to both the job description and the discussion during the interview, a Mechanic III is expected to work with little or no supervision, is able to handle any repair job, and can perform the highest level of preventive maintenance on the Town's vehicles. During the interview Petitioner represented himself to be able to work on all vehicles based upon his 30 years' experience working on all types of engines and vehicles. Essentially, Petitioner represented that he could repair anything. Petitioner specifically advised that he did not like working in a flat rate shop. A flat rate shop uses a book which rates each job as to time so that the shop can give a customer a quote as to how much that job will cost. The book gives the maximum and minimum time periods for that job. Since it does not take mechanics the length of time to do the job which the flat rate book indicates is the appropriate time, the mechanic is actually paid for more time than the job took. It is easy, therefore, for a mechanic to be paid for 70 hours of work, for example, when he actually only worked a regular 40 hour work week. Petitioner explained that he thought the use of flat rates was an unethical practice and that Petitioner liked to take his time in repairing engines because he liked doing quality work. Petitioner's dislike of flat rate shops posed no problem to the interview team since the Town does not operate a flat rate shop. The interview team discussed with Petitioner his experience with diagnostic equipment. Petitioner specifically represented during the interview, as well as on his resume, that he is proficient in operating the Sun Interrogator II, an engine analyzer. Petitioner's experience with that machine was important since the Town used the Sun Interrogator II in its shop. Petitioner was the most qualified applicant for the position. All members of the interview team were favorably impressed with Petitioner's extensive mechanical ability and with how he handled himself during the interview. He was hired as a Mechanic III in the Town's Public Works Department. Petitioner began his employment on June 14, 1990, a Thursday. On that Thursday and Friday and for the following full week, Petitioner worked under Mike Sharpe, the mechanic foreman responsible for overseeing the operation of the Town's vehicle maintenance shop. Sharpe was Petitioner's immediate supervisor, and Sharpe's own immediate supervisor was David Kyzar, the vehicle maintenance supervisor and a member of Petitioner's interview team. Kyzar's immediate supervisor was Lloyd McCoy, the division manager who served on Petitioner's interview team with Kyzar. McCoy's immediate supervisor was Al Dusey, the Director of the Public Works Department of the Town of Palm Beach. During that first partial week and first full week while Petitioner's immediate supervisor Mike Sharpe was supervising his work, Sharpe began to question Petitioner's ability to perform his duties. Sharpe found that Petitioner took an inordinate amount of time to perform any job assigned to him and specifically noted that Petitioner did not know how to hook up the Sun Interrogator II. Sharpe gave Petitioner the manual for the Interrogator and thereafter observed Petitioner using the manual, not as a reference book, but, rather, Petitioner was following the manual step-by-step as he worked. Sharpe assumed that Petitioner was nervous at his new job since Petitioner's demonstrated lack of skill was contrary to the extensive experience Petitioner had represented, both verbally and in writing, that he had. Yet, Sharpe was concerned enough about Petitioner's apparent lack of ability that Sharpe contacted Kyzar who was on vacation to explain to Kyzar his concerns about Petitioner's performance. Starting the following Monday, Petitioner's second full week of employment, it was Sharpe's turn to be on vacation, and Kyzar returned from his vacation to oversee the operation of the vehicle maintenance shop while Mike Sharpe was on vacation. Sharpe continued to be concerned enough about Petitioner's performance that he called Kyzar from North Carolina where he was vacationing to ask Kyzar how Petitioner was doing. Kyzar explained that he was sharing the same concerns that Sharpe had, that is, Petitioner's extreme slowness in performing any task and Petitioner's apparent lack of skill. Kyzar began making personal notations which he kept in his desk regarding Petitioner's work. For example, he made a notation when a job which would normally take 20 to 30 minutes took Petitioner, a supposedly highly skilled mechanic, 4 hours to complete. Kyzar wrote such a memo almost every day. When he did so, Kyzar would speak with Petitioner about Petitioner's extreme slowness and poor performance in a position demanding a high level of skills. Petitioner responded to Kyzar by accusing Kyzar of picking on Petitioner because of his stutter. Kyzar repeatedly told Petitioner that Petitioner's stutter was not a problem but Petitioner's performance was. It was important to Petitioner to discuss with people his stuttering. During Petitioner's first two days of employment before Kyzar went on his one- week vacation, Kyzar took Petitioner through the orientation procedures for new employees. He introduced him to other employees; he took him on a tour of the facilities and showed him where vehicles to be repaired would be located; he made sure that Petitioner filled out the new employee forms required by the Town, and he went over Petitioner's job duties. During those two days, Petitioner on several occasions wanted to discuss with Kyzar Petitioner's speech impediment, and Kyzar listened to Petitioner's explanation and discussed it with Petitioner. After Kyzar returned from vacation and began supervising the vehicle maintenance shop while Sharpe was on vacation, Petitioner came to Kyzar's office several times to discuss Petitioner's stutter and also pulled Kyzar aside in the shop several times to discuss Petitioner's stutter. Kyzar eventually told Petitioner he did not have time to keep discussing Petitioner's stutter when Petitioner's stutter was not a problem. During Kyzar's supervision, Petitioner became critical and vocal regarding the fact that Petitioner did not like the brands of products being used by the Town to repair its vehicles and also did not like some of the procedures followed in the vehicle maintenance shop or followed by the Town. Kyzar's explanation to Petitioner, for example, as to why a governmental entity would have to purchase Goodyear tires rather than Michelin tires did not satisfy Petitioner. All persons are hired by the Town of Palm Beach as probationary employees. Petitioner's probationary period was six months. At the end of Petitioner's first month of employment, Kyzar, his supervisor, and his supervisor's supervisor met and discussed the sharp contrast between the representations made on Petitioner's resume and during Petitioner's interview and Petitioner's actual performance. It was clear to them that Petitioner did not possess the skills necessary to perform repairs at the level of a Mechanic III and, accordingly, did not possess the skills which Petitioner had represented, both verbally and in writing, that he possessed. Petitioner was terminated from his employment by the Town of Palm Beach on July 16, 1990. The sole reason for Petitioner's termination was his poor level of performance and apparent inability to perform the job for which he had been hired. Although the Town's vehicle maintenance shop was not a flat rate shop, the Town expected, and had a right to expect, that Petitioner would perform his duties within a reasonable time. Since Petitioner was either unable or unwilling to accomplish his repair jobs within a reasonable time, the Town had good cause for terminating Petitioner's employment if there had been a requirement for good cause in order to terminate a probationary employee. Petitioner's speech impediment did not cause or contribute to Petitioner's discharge. His speech impediment did not interfere with any of his communications relative to his employment with the Town of Palm Beach. Neither the Town of Palm Beach nor any of its employees discriminated in any way against Petitioner as a result of his stutter. Petitioner testified for a number of hours on two separate days during the final hearing in this cause. Even with the extra stress experienced by many people while testifying and otherwise participating in an evidentiary hearing, Petitioner's stutter did not interfere with his communication. In fact, Petitioner's stutter was barely noticeable and infrequent. Although Petitioner testified that he is able to work on any vehicle due to his extensive experience, he also testified that he should not have been expected to repair domestic vehicles as well as European vehicles since he had worked primarily on foreign vehicles both before and after he moved to the United States in 1983. Although there may be a difference between the nuts and bolts used in foreign cars and those used in domestic cars, there is no difference between foreign cars and domestic cars as far as the procedure for hooking up the Sun Interrogator II and no difference as to the mechanical work to be performed. Accordingly, Petitioner's testimony that he was a little slow because of his unfamiliarity with domestic cars is rejected since it is without factual basis and is contrary to the representations made by Petitioner to the Town in Petitioner's resume, during Petitioner's interview, and during the final hearing in this cause.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that the Town of Palm Beach did not commit an unlawful employment practice by discharging Petitioner and dismissing the Petition for Relief filed in this cause. DONE and ENTERED this 7th day of December, 1993, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. COPIES FURNISHED: Jonathan R. Kaplan, Esquire Lubin & Gano, P.A. Second Floor, Flagler Plaza 1217 South Flagler Drive West Palm Beach, Florida 33401 John C. Randolph, Esquire Jones, Foster, Johnson, et al. 505 South Flagler Drive P.O. Drawer "E" West Palm Beach, Florida 33402 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32302-4149
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
Findings Of Fact Petitioner is an African-American female. Respondent is a constitutional office of local government that appraises property for tax purposes. At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/ At the commencement of the disputed-fact hearing, Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions: (1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/ Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University. Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital. During her employment with Respondent, Petitioner also worked part-time in a cleaning job. Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance. While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties. In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance. In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year. From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee. There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.) Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position was stressful. Petitioner consistently received excellent performance reviews. In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/ In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from September 28, 2005, through November 14, 2005. Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee. During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity. While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position. Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent. The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female. According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone. Petitioner returned from sick leave on November 14, 2005. On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser. Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion. She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems. Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job. The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history. The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias. Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause." On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005. On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems." On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay. Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position. When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
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 and its subordinate Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 3rd day of November, 2006.
The Issue Whether the bid response of the Petitioner and/or the bid response of General Maintenance Corporation of Northwest Florida, Inc., was responsive to Invitation to Bid No. 88/89-027?
Findings Of Fact The Department issued Invitation to Bid No. DGS 88/89-027, titled "Exterior Repairs & Painting/Elliot Building/Tallahassee, Fl." (hereinafter referred to as the on September 9, 1988. No challenge to the specifications contained in the ITB was filed. Bids in response to the ITB were filed by the Petitioner, Professional Painting Services, Inc., and by General Maintenance Corporation of Northwest Florida, Inc. (hereinafter referred to as "General"), and others. When a bid response is received by the Department it stamps the time and date of receipt on the bid response. The time and date are used to determine whether a bid has been filed within the time specified in an invitation to bid. The time that a bid response is opened does not determine whether the bid response was filed within the time specified in an Invitation to bid. The bid responses in this case were to be opened at 2:00 p.m., October 26, 1988. Therefore, bid responses were required to be received by the Department before that time. The bid responses of the Petitioner and General were received by the Department before 2:00 p.m., October 26, 1988. The envelope in which the bid response filed by General was filed identified the Department and the Department's address, the title of the bid, the date the bid responses were to be opened and the time of the opening. The number of the ITB was not included on the envelope in which General's bid response was filed. Bid responses are generally filed by the Department by bid number, title and date. The bid responses to the ITB were filed in this manner. The Department does not consider the failure to include the number of a bid on a bid response to affect the responsiveness of the bid response. The bid response of General was misfiled by the Department. 11 The bid responses were opened by the Department on October 26, 1988, at 2:00 p.m. The bid response of General was not opened, however, because the Department had misfiled General's bid response. General's bid response was discovered later in the day on October 26, 1988. It was then opened by the Department. The Petitioner was notified by telephone that General's bid response had been misfiled and that it had been opened after the Department discovered its mistake. The winner of the bid on the ITB was not determined at the time when the bid responses were opened. The bid responses were evaluated first to determine who the winner was. The failure of the Department to open General's bid at 2:00 p.m. did not have any affect on the price bid by General. General was not able to modify or supplement its bid response as a result of the Department's error. Based upon the Department's evaluation of the bid responses it received on the ITB, the Department rejected the Petitioner's response as nonresponsive. The Petitioner's response was determined to be nonresponsive because the Petitioner had not submitted proof of automobile insurance as required by the ITB. Bidders were informed that General was the intended awardee of the ITB on November 2, 1988, by posting of a bid tabulation sheet. The ITB provided the following with regard to certain information to be provided concerning insurance (hereinafter referred to as the "Insurance Requirements"): NOTE BIDDER MUST SUBMIT WITH BID PACKAGE EVIDENCE OF THE FOLLOWING INSURANCE IN EFFECT, EQUAL TO OR EXCEEDING THE LIMITS REQUIRED BY THE BIDDING DOCUMENTS. PROOF OF INSURANCE TO BE ON STANDARD ACCORD FORM, AND IN THE CANCELLATION CLAUSE THE WORD ENDEAVOR MUST BE CHANGED TO SHALL: WORKER'S COMPENSATION INSURANCE CONTRACTOR'S COMPREHENSIVE GENERAL LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $300,000.00 Each Occurrence, Combined Single Limit AUTOMOBILE LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $100,000.00 Each Occurrence Combined Single Limit PLEASE READY [sic] CAREFULLY AND MAKE SURE TO COMPLY WITH ALL THE INSURANCE REQUIREMENTS OF BID DOCUMENTS. FAILURE TO COMPLY WITH THESE BID REQUIREMENTS WILL BE CAUSE FOR REJECTION OF YOUR BID. The Petitioner's bid response did not include proof of automobile insurance as specified in the Insurance Requirements. Subsequent to the date the bid was awarded, the Petitioner has attempted to provide proof of automobile insurance as specified in the Insurance Requirements. The information provided from the Petitioner indicates that insurance coverage was effective beginning on November 21, 1988, after the bid was awarded. The Petitioner has not provided proof that insurance in compliance with the Insurance Requirement was in effect as of time bid responses were due. The Department has rejected bid responses in other cases where bid responses did not comply with insurance requirements similar to the Insurance Requirements. Failing to provide proof of required insurance can affect the price of a bid and can give one bidder an advantage not enjoyed by other bidders. For example, a bidder that does not have insurance can wait until the bid responses are opened and, if the bidder does not want its bid accepted, for whatever reason, the bidder can refuse to acquire the required insurance. Or, if a bidder determines that it should go forward with its bid response, it can provide proof of insurance or even acquire the insurance. The Department will not be able to verify when insurance was required with an independent source. The ITB included an information questionnaire. Among other things not relevant to this proceeding, the information questionnaire requested the number of each bidder's current county occupational license number. The ITB did not require that a bidder have a current Leon County occupational license even though the job was to be performed in Leon County. General did not include its current county occupational license on the information questionnaire submitted with its bid response. The Department determined that General had a current county occupational license at the time it submitted its bid response by contacting the Okaloosa County Tax Collector's Office. The Department considers the failure to list a current county occupational license number to be a minor irregularity because the Department can verify whether a bidder has a county occupational license by checking with a Tax Collector's Office, a public entity. The Department has not rejected other bid responses for omission of a current county occupational license number. The ITB also required that the bid price submitted by any bidder was to be guaranteed for a period of sixty days. The ITB allowed the winning contractor forty-five days after the date stipulated in the purchase order to complete the contract. No credit was authorized by the ITB for bidders who indicated they would complete the contract in less than forty-five days. The Petitioner's bid response was not responsive to the ITB. General's bid response was responsive to the ITB. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987). Based upon the terms of the ITB involved in this proceeding, the Petitioner's bid response was not responsive. The ITB specifically requires that bid responses include evidence that the Insurance Requirements have been met. Bidders are warned that "[f]ailure to comply with [the insurance requirements] will be cause for rejection of your bid. Section 120.53(5), Florida Statutes, and Rule 13A- 1.006, Florida Administrative Code, provide the manner in which bid specifications may be challenged. The Petitioner has provided no evidence that it challenged the bid specifications quoted in finding of fact 18. The Petitioner has, therefore, waived any right it may have had to challenge the Insurance Requirements. Section 120.53(5), Florida Statutes; and Capeletti Bros., Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986). The Petitioner's failure to comply with the Insurance Requirements by the very terms of the ITB require that the Petitioner's bid response be rejected. Subsequent to the proposed award of a contract pursuant to the ITB, the Petitioner attempted to comply with the Insurance Requirements by providing additional information. Rule 13A- 1.001(13), Florida Administrative Code, provides the following definition of a "valid bid/proposal": A responsive offer in full compliance with the invitation to bid . . . by a responsible person or firm. The responsiveness of a bid . . . shall be determined based on the documents submitted with the bid . . . In order for the Petitioner's bid response to be considered a valid bid pursuant to Rule 13A-1.001(13), Florida Administrative Code, the response was required to be "in full compliance with the invitation to bid" based upon the "documents submitted with the bid." Since the Petitioner's bid response was not in full compliance with the ITB based upon the documents it submitted with its bid response, the Petitioner's bid response was not a valid bid. Because the determination of whether a bid response is valid is based upon documentation provided at the time a bid response is tiled, the Petitioner's bid response cannot be made a valid bid by filing required documentation after the deadline for filing bid responses. This conclusion is consistent with Rule 13A- 1.002(11), Florida Administrative Code, which specifically prohibits the modification of a bid response once bid responses have been opened. The rationale for not allowing modifications of bid responses was explained in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1978): [I]t is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. See also, Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982); Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, DOAH Case No. 88- 2211BID (June 28, 1988); and Tel Plus Florida, Inc. v. Department of General Services, DOAH Case No. 86-4701BID (May 6, 1987). The Petitioner's failure to meet the Insurance Requirements is not a minor irregularity which can be cured after the bid responses were opened. Nor is the Petitioner's failure to comply an irregularity which can be waived by the Department. Rule 13A-1.002(10), Florida Administrative Code, provides the following with regard to minor irregularities: The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid . . . . A minor irregularity is a variation from the invitation to bid . . . which does not affect the price of the bid . . . or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor cannot be waived. The court in Harry Pepper & Associates, discussed the waiver of minor irregularities: The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders. 352 So. 2d at 1193. The Petitioner's failure to meet the Insurance Requirements in this case is not a minor irregularity. The Petitioner's failure to meet the Insurance Requirements conceivably could have given it an unfair bidding advantage. If a bidder does not submit proof of insurance as required by an invitation to bid and is allowed to provide such proof after the bids are open, the bidder can decline to do so if the bidder determines that his or its bid is too low based upon the bids submitted by other bidders. Additionally, if a bidder decides to proceed with a bid, proof of insurance could then be provided or even obtained and the Department would not be able to verify with an independent source that the bidder had the insurance at the time bid responses were submitted. These possible situations would give a bidder an unfair competitive advantage. Although the Petitioner has not attempted to obtain such an advantage in this case, the potential for such an abuse was present when the aids were open. Based upon the foregoing, it is concluded that the Petitioner's failure to comply with the Insurance Requirements is not a minor irregularity. The Department cannot, therefore, waive the irregularity or allow the Petitioner to now supplement its bid response by providing proof that it meets the Insurance Requirements. Finally, even if the Petitioner's failure to meet the Insurance Requirements was a minor irregularity which could be corrected, the Petitioner has failed to meet its burden of proving at the formal hearing that it meets the Insurance Requirements. The failure of General to provide its county occupational license number does not render General's bid response nonresponsive. General's failure is a minor irregularity which can be waived by the Department. Unlike the Insurance Requirements, the Department can verify the existence of a County occupational license with a public entity, a tax collector's office. Bidder's are not able to obtain an occupational license after bid responses are open. Therefore, bidders who fail to provide a county occupational license number with their bid responses cannot gain a competitive advantage. While General may have a problem with Leon County because it may not have a Leon County occupational license, General's bid response was responsive to the ITB. Finally, the failure to open General's bid response at the same time other bids were opened should not affect General's right to an award of the contract for the ITB. Although General did not Include the number of the ITB on the envelope in which it submitted its bid response, it included sufficient information on the envelope for the Department to determine that the response was filed on the ITB at issue in this proceeding. The error in filing General's bid response was therefore the responsibility of the Department. General should not be disqualified for the Department's error. More importantly, the failure to open General's bid response when the other bid responses were opened did not give General any advantage over the other bidders. Therefore General's failure is a minor irregularity. Based upon the foregoing, it is concluded that the Petitioner's bid response was not response to the ITB and was properly rejected by the Department. It is also concluded that the Petitioner has failed to prove that the bid response of General should be rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by the Petitioner. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN, 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 9th day of February, 1989. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner failed to number the paragraph's of his proposed recommended order as instructed at the formal hearing. The "Proposed Finding of Fact Numbers" of the Petitioner referred to below correspond generally with the order in which each paragraph of the Petitioner's proposed recommended order appear. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page 1 1 See 7-9. See 23-24. The portion of this paragraph dealing with Leon County requirements is not relevant to this proceeding. Argument and quotation of testimony. 4 See 18-22. Page 2 1-2 Argument and quotation of testimony. Not supported by the weight of the evidence. Argument and quotation of testimony. Page 3 Continues with quotation of testimony. 1-2 Argument. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 18. 3 23. 4 27. 5 28. 6 11. 7 10-11. 8 6. 9 4. 10 13. 11 14. 12 8. 13 7. 14 15. 15 9. 16 15. 17 19. 18 16. 19 17. 20-22 20. 23-24 23. 25 24-25. 26 25-26. 27-28 26. 29 21. 30 2. 31-32 22. 33 29. 34 30. COPIES 35 FURNISHED TO: Not relevant to this proceeding. RONALD W. THOMAS, EXECUTIVE DIRECTOR DEPARTMENT OF GENERAL SERVICES 133 LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FL 32399-0955 JOHN A. TENNANT, PRESIDENT PROFESSIONAL SERVICES, INC. POST OFFICE BOX 20803 TALLAHASSEE, FLORIDA 32316 ROBERT D. STINSON, ESQUIRE OFFICE OF GENERAL COUNSEL DEPARTMENT OF GENERAL SERVICES ROOM 452, LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FLORIDA 32399-0955
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 is whether Petitioner is capable of returning to suitable gainful employment through vocational services, as proposed by Respondent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Katherine L. Cronk, who sustained an on-the-job injury, challenges a preliminary decision by Respondent, Department of Labor and Employment Security, Division of Workers' Compensation (Division), that she is able to return to employment in the same field in which she suffered an injury. Cronk contends that due to surgery on both hands for bilateral carpal tunnel syndrome, and recurrent pain and swelling in her hands, she cannot return to the same type of work. As relief, she has asked that she be given an opportunity to enter the Division's retraining program to obtain new job skills for another type of employment. At the present time, she is driving a limousine on a part-time basis to avoid further injuries to her hands and to provide income since her workers' compensation benefits have been terminated. Petitioner, who graduated from high school in 1977, and received vocational training in the field of civil engineering, worked in hand drafting until 1990. At that time, she began working in computer-assisted drafting and design (CADD) for a Jacksonville engineering firm, Prosser, Hallock, and Kristoff. On February 19, 1997, she sustained a workers' compensation injury and was treated by Dr. Steven Lancaster for bilateral carpal tunnel syndrone. On November 7, 1997, she reached maximum medical improvement with a nine percent permanent impairment rating. She was assigned permanent work restrictions by Dr. Lancaster which included: May frequently lift and carry up to ten (10) pounds with occasional lifting and carrying up to twenty (20) pounds. Restrictions on repetitive hand activities (simple grasping, pushing/pulling and fine manipulation) can do some of this to a mild degree - to pain tolerance. In a follow-up report issued on December 8, 1997, Dr. Lancaster noted that Petitioner should not do "repetitive typing or keyboard activities." In his latest medical report dated January 27, 1999, he stated that "recommendations and limitations are unchanged from before and need to restrict on repetitive movements/keyboarding, etc." In order to be eligible for Division services, an injured employee must be "medically stable," must have reached maximum medical improvement, and must have assigned medical limitations. Petitioner had met all of these criteria when she first contacted the Division's office in Jacksonville, Florida, by telephone on December 3, 1997. She requested information regarding the services that the Division provided. Petitioner was instructed to attend an orientation on December 18, 1997. A screening process was then begun on January 28, 1998. When Petitioner approached the Division, she was under the impression that the Division would provide her with a "retraining program." This impression was probably the result of conversations with a former co-worker, Mike Meadows, who had also been injured on the job and had received approval to complete, at Division expense, the necessary course work (54 hours) for his engineering degree at the University of North Florida. The Division, however, essentially provides a "return- to-work" program for injured employees, rather than a program for a career change. This is accomplished in one of three ways. First, if the employee has good transferable skills and limitations which permit him or her to return to the workforce and to gain suitable employment, the employee is returned to work through a direct placement. Alternatively, the Division may contract with an employer to provide the employee with on-the-job training for a specific job. Finally, if the first two options are not viable, the Division will consider providing the employee with formal training and education. Under this latter alternative, the insurance carrier for the employer is required to pay temporary total rehabilitation payments (equaling approximately 2/3 of the prior average weekly wage) to the injured employee to cover living expenses during the retraining period, for a maximum of 52 weeks. When a counselor first spoke by telephone with Petitioner on December 3, 1997, Petitioner indicated that she "[thought] she [could] do CADD," and she would like "the opportunity of trying to return to work." In a follow-up meeting with David E. Miller, a counselor, on February 27, 1998, Petitioner expressed an interest in being trained as a psychotherapist. On March 27, 1998, Petitioner was given a series of tests designed to identify potential careers in which she might be successful. She had mainly flat clusters, which meant she had no special interest in any vocation. After the final medical reports were received, the Division held a "staffing" in May 1998 for the purpose of determining employment opportunities. Because her former employer did not have an open position, the Division referred Petitioner to Jerry Albert, a certified vocational evaluator under contract with the Division who assists injured employees in finding suitable gainful work. At that time, Miller advised Albert that there was voice- activated software (VAS) for CADD systems, and it might be "something worth exploring" given Petitioner's medical limitations, her years of experience in the field, and the Division's goal of returning her to work. When Petitioner and Albert first met on July 6, 1998, Petitioner expressed a desire in becoming a private investigator. Albert arranged a job interview with a private investigator, and Petitioner was offered an on-the-job training position. However, she declined the offer. After several more meetings with Petitioner that same month, Albert issued a Vocational Evaluation on July 27, 1998, in which he recommended that Petitioner return to suitable gainful employment in some aspect of CADD, using VAS equipment and training paid for by the Division. The Division adopted this recommendation in its proposed agency action issued on August 13, 1998. Petitioner disagreed with this proposal and has initiated this proceeding to contest that action. Petitioner basically fears that a return to CADD will cause her to suffer even more injuries to her hands. While she concedes that she can do "a minimal amount of computer work," Petitioner contends that, given her medical restrictions, she cannot return to CADD work, even with VAS, because of the hand work required by CADD. Instead, she has asked that she be allowed to enroll at Florida Community College at Jacksonville and pursue a degree in business management. She then intends to use her degree in operating a limousine service. At the time of hearing, she had not formulated a specific business plan for such a business, nor was there any competent evidence that a two-year degree was a prerequisite to successfully starting and operating that type of business, or that another limousine service is even needed in the Jacksonville area. Absent this type of information, the Division would be less than prudent in agreeing to pay for a college education. Unfortunately, Dr. Lancaster did not testify in this proceeding (either live or by deposition) so that he could explain the exact restrictions he had in mind for Petitioner when he prepared his reports. Petitioner asserts that in her consultations with Dr. Lancaster, he specifically forebade her to return to any type of keyboarding. This interpretation of the limitations is found to be the most logical and reasonable since Petitioner suffers from pain and swelling in her hands even after minimal amounts of keyboarding. On the other hand, the Division interprets the medical restrictions as permitting Petitioner to return to some aspect of CADD, using VAS. On this issue, Dr. Lancaster does state, rather clearly, that Petitioner should engage in "no . . . repetitive typing," which supports Petitioner's assertion. Therefore, the undersigned finds that Petitioner is medically restricted from engaging in any type of repetitive typing or keyboarding. In addition, Petitioner's testimony that she cannot tolerate the duties of her former job has been accepted as being the most credible on this issue. As noted above, she now experiences pain and swelling whenever she utilizes a keyboard for even a short period of time. Also, she cannot write for long periods of time without extensive pain. Indeed, she indicated that it took her hours just to complete a multi-page letter to the Division. The Division points out, however, that when she performed a five-minute manual speed and dexterity test for the Division, she completed the test with remarkable speed and accuracy. After the test, though, Petitioner suffered pain and swelling in her hands for several days. Petitioner established that even if she is trained at Division expense in VAS for CADD, she still must use graphics, an essential part of CADD, which requires that she use her hands to make drawings and other renderings. Given her present limitations, this is not practicable. At the same time, VAS does not eliminate all of the repetitive keyboarding. Even the Division concedes that, at best and without considering graphics, VAS would eliminate no more than eighty percent of repetitive keyboarding. Given these circumstances, to recommend that Petitioner focus on an area of CADD where she could maximize voice-recognition is not realistic and would be contrary to Dr. Lancaster's recommendation. Therefore, it is found that when considering Petitioner's physical restrictions, a return to work in the CADD area is "employment that is [not] reasonably attainable." Another return-to-work alternative is more appropriate. At hearing, Albert concluded that, based upon his study of VAS and Petitioner's medical limitations, it was feasible for Petitioner to return "to some aspect" of CADD. This conclusion was based upon his interpretation of the medical limitations, which has been rejected above, and other considerations. Among these was a single testimonial he found in the Internet by a resident of Alaska who had successfully returned to her cartography job using VAS. He also relied partly upon conversations with several Jacksonville area employers who indicated they would "consider" someone for a CADD position who utilized VAS. Since none had ever hired an injured employee using VAS, there is no indication whether such an arrangement has been sucessful. Further, there is nothing of record to show the amount of hand work required for each of those positions. Albert further relied in part on information obtained from sellers of VAS, all of whom have an obvious self-interest in promoting their products. These shortcomings undermine the credibility of his assessment. Finally, Albert was critical of Petitioner's vacillation on career goals in the short time since her injury. This is understandable, though, given the fact that Petitioner has suffered a career-ending injury and must now enter a new field of employment in mid-life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a final order determining that Petitioner cannot be returned to her original job due to permanent medical restrictions, and that she is entitled to further Division services for placement in a specific job through on-the-job training, or if that alternative is not feasible, that formal training and education for a new career be considered. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999. COPIES FURNISHED: Katherine L. Cronk, Esquire 2051 Southhampton Road Jacksonville, Florida 32207-8733 Nancy Staff Slayden, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue At issue in this case is the question of whether the Respondent discriminated against the Petitioner by discharging the Petitioner because of his race and/or a handicap?
Findings Of Fact The Respondent, General Parcel Service of Florida, Inc., is in the business of shipping, receiving and delivering goods, primarily small packages. The Respondent's headquarters are located in Jacksonville, Florida, and it has a branch operation in Tallahassee, Florida. The Petitioner, Robert L. Johnson, was hired by the Respondent as a driver in late February or early March, 1989. Mr. Johnson worked out of the Tallahassee branch operation. Mr. Johnson was employed by the Respondent until October 24, 1989. Mr. Johnson is a black male. Between February, 1989, and June, 1989, Mr. Johnson's work was satisfactory. In July, 1989, Mr. Johnson injured his back. As a result of this back injury, Mr. Johnson was absent from work until approximately July 10, 1989. Mr. Johnson worked for approximately three weeks after returning to work in July, 1989, but was absent because of his back injury from the end of July, 1989, until approximately September 7, 1989. When Mr. Johnson returned to work in July and in September, 1989, his physician had ordered that he not lift anything which weighed more than 25 pounds. The weight limitation was the only limitation placed by Mr. Johnson's physician on the duties Mr. Johnson could perform. There was no medical restriction placed on Mr. Johnson's duty to report to work or to report on time. Beginning in June, 1989, the Tallahassee terminal manager, and Mr. Johnson's supervisor, was Harry LaNoue. The first day after Mr. Johnson returned to work in July, 1989, Mr. LaNoue had Mr. Johnson answering the telephone and doing paperwork. The second day Mr. LaNoue had Mr. Johnson washing trucks, cleaning around the premises and picking up trucks. On the third day after returning to work, in addition to the duties Mr. Johnson began performing on the second day, Mr. Johnson also began delivering packages. After Mr. Johnson's back injury, Mr. LaNoue personally selected the packages Mr. Johnson delivered. Mr. LaNoue attempted to insure that no package was given to Mr. Johnson which weighed more than 25 pounds. Mr. LaNoue also instructed Mr. Johnson that he was not to attempt to lift any package which weighed more than 25 pounds and that he should bring any packages which weighed more than 25 pounds back to the terminal. Mr. LaNoue also told Mr. Johnson that he was to keep all appointments with his physician and to return any packages which he could not deliver before any such appointment. Although Mr. Johnson testified that Mr. LaNoue tried to pressure him into performing duties which he believed he should not be performing because of his back injury, the weight of the evidence failed to support this testimony. Mr. Johnson gave no examples of such pressure which were contrary to his physician's instructions and he contradicted his testimony by admitting that Mr. LaNoue took the actions reflected in finding of fact 10. After Mr. Johnson injured his back, a couple of incidents involving Mr. Johnson's attendance occurred. Those incidents are described in Finding of Facts 13, 14 and 15. At some time after Mr. Johnson returned to work Mr. Johnson's wife telephoned and told Mr. LaNoue that Mr. Johnson would miss work because his back was sore. Mr. LaNoue asked to speak to Mr. Johnson but was told that Mr. Johnson was not available. Mr. LaNoue asked Ms. Johnson to have Mr. Johnson telephone him within an hour. Mr. Johnson did not call Mr. LaNoue. About an hour later Mr. LaNoue telephoned and spoke with Mr. Johnson. Mr. LaNoue told Mr. Johnson to go to see his physician. Mr. Johnson refused. Mr. LaNoue then told Mr. Johnson to report to work. Mr. Johnson refused. Mr. LaNoue told Mr. Johnson that it was important that he be dependable and report to work. On approximately September 14, 1989, Mr. LaNoue selected five or six packages he intended for Mr. Johnson to deliver. The packages weighed less than 25 pounds. When Mr. Johnson reported to work he told Mr. LaNoue that his back was sore. Mr. LaNoue instructed Mr. Johnson to go to see his physician. Mr. Johnson said no and walked out of the building. Mr. LaNoue telephoned the Respondent's personnel director, Ann Beeman, and reported the incident. Following this telephone call, Ms. Beeman received a telephone call from Mr. Johnson complaining about his back. She instructed Mr. Johnson to go to see his physician. Ms. Beeman informed Mr. LaNoue of her instructions to Mr. Johnson. Mr. Johnson went to see his physician, telephoned Mr. LaNoue and told him that he had been told to return to work. No additional restrictions on Mr. Johnson's work were imposed by the physician. After seeing his physician, Mr. Johnson returned to work. The packages that had been selected for him to deliver had already been delivered. Therefore Mr. Johnson performed other duties. In October, 1989, Mr. Johnson proposed to Mr. LaNoue and Scott Douglas Paul, driver supervisor/assistant terminal manager, that he be allowed to drive a route to Valdosta, Georgia. The route involved picking up packages from a drug company located in Valdosta. The company was an important client of the Respondent. Mr. LaNoue indicated that he would give the route to Mr. Johnson. Mr. LaNoue explained to Mr. Johnson how important the client was to the Respondent and told Mr. Johnson that he must be on time and be dependable. Mr. Johnson was also reminded that it was very important that Mr. Johnson comply with the Respondent's policy that drivers call at least one hour before their assigned departure time if they would not be able to report to work on time. The departure time for the Valdosta run assigned to Mr. Johnson was 5:00 p.m. On October 24, 1989, the second day after the Valdosta run had been assigned to Mr. Johnson, Mr. Johnson called the Respondent's offices between approximately 4:30 p.m. and 4:45 p.m. Mr. Johnson spoke to Mr. Paul. Mr. Johnson told Mr. Paul that he had "family problems" but refused to tell Mr. Paul specifically what the problem was. Mr. LaNoue was in the same room with Mr. Paul during his telephone conversation with Mr. Johnson. Based upon hand signals between Mr. LaNoue and Mr. Paul, Mr. Paul told Mr. Johnson that, if he did not report to work that day, he need not bother coming to work again. Between June, 1989, when Mr. LaNoue became the Tallahassee terminal manager, and November 1, 1989, eight individuals, including Mr. Johnson, were fired by Mr. LaNoue. Four of those individuals were black (including Mr. Johnson) and four were white. The individuals fired between June, 1989, and November 1, 1989, their race and the race of the individuals, if any, who were hired to replace them are as follows: Terminated Employee Race Race of Replacement William Rodriquez White No Replacement Tom Arnold White White Randy Wansley White Black Larry Hargrove Black White Elmer McCoy Black Black John Constant White Black Robert Johnson Black Black Lester Kelly Black White Mr. Johnson is a member of two classes protected under Chapter 760, Florida Statutes: race (black) and handicapped (back injury). Mr. Johnson was replaced by a member of one of the protected classes: race. The weight of the evidence failed to prove whether Mr. Johnson's replacement was a member of the other protected class Mr. Johnson is a member of: handicapped. The Respondent had a nondiscriminatory, rational and business-related basis for discharging Mr. Johnson: Mr. Johnson was not dependable. Mr. Johnson failed to prove that the Respondent's reason for discharging him was a pretext.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Florida Commission on Human Relations issue a Final Order finding that there is no cause to conclude that the Respondent discriminated against Robert L. Johnson and dismissing Mr. Johnson's Petition. DONE and ENTERED this 20th day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN 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 20th day of March, 1991. APPENDIX TO RECOMMENDED ORDER The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner did not file any proposed findings of fact. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 7. 5 6-7. 6 9. 7 9-10. 8 7 and 10. 9 12-13. 10 14. Not relevant to this proceeding. 14. The last sentence is hearsay and no finding of fact based on this hearsay has been made. 13 14. 14 14-15. 15 16. 16 16-17. 17 16. 18 18. 19 11. 20 Hereby accepted. 21-22 19-20 and hereby accepted. 23 Hereby accepted. COPIES FURNISHED: Robert L. Johnson 3250 West Tennessee Street Lot 209 Tallahassee, Florida 32304 Charles F. Henley, Jr., Esquire Post Office Box 40593 Jacksonville, Florida 32203-0593 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 =================================================================
The Issue Whether Petitioner was discriminated against because of her age and her race.
Findings Of Fact On or about May 22, 1998, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations. The essence of this Charge was the allegation that Respondent discriminated against Petitioner because of her age (48) and race (black). Petitioner claimed that younger whites were employed in a position for which she had applied. (The Charge of Discrimination was FCHR No. 98-1932.) Respondent filed its response to the allegations on July 22, 1998, and denied the allegations. Respondent filed a Statement of the Company's Position, Affidavits and supporting documents. The Florida Commission on Human Relations conducted an investigation, including a request for additional documentation to Respondent, and on September 5, 2000, issued a Notice of Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." In response to the Commission's notice, Petitioner filed a Petition for Relief on September 26, 2000. She claimed "the people hired during the time I applied had no banking experience. They were all young and white." Respondent filed its Answer on October 13, 2000, and denied the allegations asserting that as of August 1, 1997, Respondent employed two (2) individuals in the proof department: One (1) minority and one (1) employee over the age of forty (40). Further, Respondent stated it had twenty-one (21) employees in the teller department of which nine (9) were minorities and ten (10) were employees over the age of forty (40). Petitioner is an African-American female who was approximately forty-eight (48) years old at the time that she applied for a position with Respondent. In her application for employment, Petitioner indicated that she had not been employed since August of 1985 and had no computer training. There were seventeen (17) applicants for the positions. All the applicants, except Petitioner and one other applicant, indicated they had computer training. All of the applicants had recent employment experience. The advertisements for the position indicated that they were for a part-time teller position and a part-time proof operator position. The proof operator enters up to thirteen thousand (13,000) transactions a day. The teller position requires sales skills, and the bank was moving into a Windows 95 computer system. Applicants with prior computer training and experience were considered over those without this experience by the Director of Human Resources, Linda Ongley. Linda Ongley has been the Director of Human Resources for Respondent for the past seventeen (17) years. She is the person who was responsible for reviewing the applications, interviewing, and hiring. She made the decision not to offer employment to Petitioner. She did not believe Petitioner had the necessary computer skills and sales skills for the teller job, and did not appear to be prepared for the high stress and pace expected of the proof operator position. Based upon her interview of Petitioner, Ms. Ongley did not believe Petitioner had a strong work ethic. Petitioner had no references; and had not worked in the twelve (12) preceding years. While the job postings did specifically state that they were part-time, the teller position did not list "computer skills" as a requirement of the job. Ms. Ongley testified regarding this. Ms. Ongley had run the standard advertisement that she had run in the past because she only had recently received information regarding the conversion to the computer system. The teller advertisement did not state that "excellent communication and interpersonal skills" were required of applicants. The applications indicate that essentially all of the applicants were substantially younger than Petitioner. Of those persons hired by Respondent for these positions, the individuals hired for the teller position included one (1) African American; one (1) white; and one (1) West Indian. All three (3) of these individuals had computer training. The individual hired for the proof operator position did not have computer training (this position did not utilize a computer, but the person hired had excellent references, including a reference from a large customer of the bank). The Superintendent of Schools of Gadsden County came into the bank and personally recommended hiring her. The records of Respondent and the testimony of Ms. Ongley indicate that at the time Petitioner made application for employment, one (1) employee in the proof department was a minority and one (1) was over the age of forty (40). Further, of the twenty-one (21) tellers, there were nine (9) minorities and ten (10) employees over the age of forty (40). All of these employees had been hired by Ms. Ongley. Ms. Ongley's decision on filling all positions was based on neither age nor race. Sharonda Rogers also testified. Ms. Rogers was a former employee of Respondent, who was hired as a part-time teller pursuant to this application process. Ms. Rogers is an African American. Ms. Rogers testified that she had not experienced any racial discrimination, nor observed any age discrimination during her thirteen (13) months of employment with Respondent. She left her position with Respondent to take another job elsewhere.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 22nd day of January, 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 22nd day of January, 2001. COPIES FURNISHED: Charity Rittman 39 Rittman Lane Route 4, Box 1015 Quincy, Florida 32351 Michael P. Bist, Esquire Gardner, Shelfer, Duggar & Bist 1300 Thomaswood Drive Tallahassee, Florida 32312-2914 Azizi Coleman, Acting Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, 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 April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
