The Issue Whether the written statement that Respondent gave on September 17, 1998, at the request of Florida Department of Law Enforcement (FDLE) Special Agent John Subic was voluntary and therefore may be used by Petitioner to establish Respondent's guilt of the charge in the Administrative Complaint issued against him.
Findings Of Fact Based on the evidence adduced at the October 10, 2003, hearing, and the record as a whole, the following findings of fact are made: John Subic is now, and has been for the past ten years, a special agent with FDLE. On September 17, 1998, Special Agent Subic was working out of FDLE's Miami Regional Office under the supervision of Special Agent Supervisor John Coffey. As part of his investigation of a "large drug conspiracy" involving "3,000 pounds of cocaine," Special Agent Subic was looking for a fugitive, Alejandro Rota, who was wanted for his participation in the conspiracy. Mr. Rota had just been released from the Miami-Dade County Jail (County Jail) after having been arrested on an unrelated misdemeanor charge. Inasmuch as Mr. Rota had "fled" before "recovering his property," Special Agent Subic had instructed personnel working in the County Jail's "property room" to notify him immediately if Mr. Rota returned to claim his property. In the late afternoon on September 17, 1998, Special Agent Subic received a telephone call from a County Jail "property room" employee advising him that "a person was there, fitting the general description of [Mr. Rota, seeking] to recover [Mr. Rota's] property."2 Special Agent Subic made the reasonable request that the person be detained. Special Agent Subic and his supervisor, Special Agent Supervisor Coffey, then drove in separate vehicles to the County Jail to investigate. Special Agent Supervisor Coffey arrived at the County Jail first. Special Agent Subic joined him shortly thereafter. Special Agent Subic knew immediately, upon first seeing the individual that been detained pursuant to his request, that that individual was not Mr. Rota. Special Agent Subic handcuffed (but did not arrest) the detainee. He did so because he believed, reasonably, that there was a possibility this individual, who had presented to County Jail personnel a property receipt belonging to Mr. Rota in an attempt to obtain Mr. Rota's property, was guilty of "aiding and abetting a fugitive," and he wanted to look into the matter. As Special Agent Subic learned when he asked for identification, the detainee was Respondent. At the time, Respondent was employed by the Florida Department of Corrections as a correctional officer,3 and he so advised Special Agent Subic. Special Agent Subic told Respondent that Mr. Rota was a "fugitive [involved in] a very large drug case"4 and that Special Agent Subic "wanted him [Mr. Rota] very badly." Special Agent Subic advised Respondent that Respondent "had an opportunity to help himself out" if he led Special Agent Subic to Mr. Rota. Special Agent Subic repeated this advisement on several occasions during the time he was with Respondent that day. At no time did Special Agent Subic "say what that help was" that Respondent would receive if he assisted in Mr. Rota's capture. Respondent, initially, appeared to Special Agent Subic to be "quite apprehensive"; however, by all outward appearances, Respondent quickly calmed down. "[W]ithin a few minutes [after making contact with Respondent], [Special Agent Subic] was looking at [Respondent] as a cooperator, not as a suspect,"5 so he took the handcuffs off of Respondent. Respondent told Special Agent Subic that "he [Respondent] and a friend of his had been working out at a gym [where] they [had] met [Mr.] Rota and that [Mr.] Rota had asked [Respondent] to come pick [Mr. Rota's] property up [at the jail]." Respondent identified Mike Mila as the person who had accompanied him to the jail (in Respondent's vehicle, a 1997 Toyota 4Runner) and driven off in the vehicle when County Jail personnel detained Respondent. At Special Agent Subic's request, Respondent telephoned Mr. Mila.6 "[A] short time later," at approximately 5:20 p.m., Mr. Mila arrived at the scene "in a vehicle [a 1997 Toyota 4Runner] [Respondent] stated was his." Special Agent Subic then spoke with both Respondent and Mr. Mila in an effort "to determine who [had] actually [been] in the vehicle when it [had] left the jail" earlier that day. Upon questioning, Respondent changed his story and told Special Agent Subic that Respondent's brother, not Mr. Mila, had accompanied Respondent to the jail and then fled the scene in Respondent's vehicle. Special Agent Subic also asked Respondent "about how [Mr.] Rota would contact him." Respondent, in turn, showed Special Agent Subic, on Respondent's beeper, the "specific code" that Mr. Rota used to contact Respondent. Special Agent Subic then asked Respondent, "Mind if I look in your vehicle?" He added, "You don't have to let me." When Respondent said that he did not mind, Special Agent Subic inquired, "Are you sure?" and reiterated that Respondent could decline his request. Respondent responded by "nonchalant[ly]" telling Special Agent Subic to "go ahead" and search. Respondent, through his spoken words,7 freely and voluntarily gave Special Agent Subic permission to search his vehicle. His consent was given without coercion or duress and did not represent mere acquiescence to police authority. Mr. Mila was not "in the vicinity" of the vehicle at the time Respondent gave his consent. He and Respondent had been "separated" by Special Agent Subic and Special Agent Supervisor Coffey. After having received Respondent's permission, Special Agent Subic searched Respondent's vehicle. In the glove compartment of the vehicle, Special Agent Subic found a "small package of [pink] pills." He showed them to Respondent and asked "what they were." At first, Respondent claimed that "he didn't know." Seconds later, after Special Agent Subic told Respondent that he was going to "send them to the lab and the lab [would] tell [him] what they [were]," Respondent admitted that the pills "were steroids for his use." Special Agent Supervisor Coffey then asked Respondent and Mr. Mila if they would "voluntarily go to the FDLE office." Respondent was told that he was not under arrest and that he was "free to leave." At no time did Special Agent Subic indicate that he would "throw out those pills." He did tell Respondent that the "only way [Respondent] could help himself out [was] to locate the fugitive,"8 but did not specify the "help" Respondent would receive. Both Respondent and Mr. Mila voluntarily agreed to go to FDLE's Miami Regional Office. Special Agent Supervisor Coffey used his vehicle to transport Mr. Mila to the office. Respondent went with Special Agent Subic in Special Agent Subic's vehicle. For "safety" reasons, Special Agent Subic placed Respondent in handcuffs for the trip. Respondent sat "immediately next to [Special Agent Subic] in the passenger seat." Upon arriving at the office, Special Agent Subic took Respondent to the "squad bay," which was "just a large room with a bunch of desks [with chairs] in it." It was sometime before 7:00 p.m. when they arrived. Special Agent Subic again told Respondent that he was "free to leave." Respondent, however, chose to stay. He "sat in the chair next to [Special Agent Subic's] desk" and began talking with Special Agent Subic. Respondent thereupon gave a "third version" of what had happened earlier that day before Special Agent Subic had arrived at the County Jail. He claimed this time that it was Mr. Rota, not Mr. Mila or Respondent's brother, who had accompanied him to the County Jail that afternoon. According to Respondent, when he was taken into custody by County Jail personnel, Mr. Rota "jumped in the driver's seat [from the passenger seat] and took off" in Respondent's vehicle. A "casual" conversation between Respondent and Special Agent Subic ensued. Special Agent Subic's "primary interest" was in finding Mr. Rota and he was "trying to gain the assistance of [Respondent]" to help him accomplish this objective. Special Agent Subic's "intention was to come across as a friend" to Respondent, and he acted accordingly. Respondent remained at the office for approximately two hours. He spent less than half that time talking with Special Agent Subic. The conversation was not non-stop. "[A]t times, [Special Agent Subic] had to go out and make some phone calls." "[T]oward the end of the time that [Respondent was] there in the office," in response to Special Agent Subic's request, Respondent agreed to give a voluntary, written statement.9 Special Agent Subic asked Respondent to include in the statement "how [Respondent] came to be at the jail with Mr. Rota's property receipt" and to "indicate something about the pills" that had been found in the glove compartment of Respondent's vehicle. Special Agent Subic did not direct Respondent to use any particular "wording" in writing the statement. Respondent's written statement consisted of four pages. The first page of the written statement read as follows: SWORN STATEMENT OF WITNESS I CARLOS PINEDA, residing at . . . do hereby make the following statement at the request of John A. Subic, Special Agent with the Florida Department of Law Enforcement. I am making this official statement voluntarily. I have not been threatened or coerced, nor have I been promised a reward. I do solemnly swear that the following statement is true and correct. SEE ATTACHED HANDWRITTEN STATEMENT Respondent's name and address and Special Agent Subic's name were handwritten (by Respondent and Special Agent Subic, respectively). "SEE ATTACHED HANDWRITTEN STATEMENT" was typed. The remainder of the first page was printed. Before writing his name and address, Respondent was "given an opportunity to read" this printed material. The second and third pages of the written statement consisted of Respondent's "attached handwritten statement," which was in Respondent's own words. It read, verbatim, except for obvious misspellings (which have been corrected) and omitted punctuation marks (which have been inserted), as follows: On approximately Sept. 17, 1998, I Ofc. C. Pineda, CO I was detained by FDLE. I met up with an old friend of mine which I had not seen in about 3 months at the gym. I've known him since 1991 in which he was going to the gym. He came to me with a pink paper which stated property that he'd stored at Dade County Jail. I asked him why wouldn't he go pick it up himself. He replied, "I had a problem with my girlfriend's father. He is a City of Miami Police Sergeant. He found out I had gotten her pregnant. I was arrested by him for a misdemeanor charge. I would like for you to come with me to Dade County Jail since you might know someone there working." I agreed to go with him as a favor. He was going to sell me a good chain in his property for a good price. We met up at the gym after he had beeped from a house number that night: 225-7778. We met at the gym at 2:30 p.m. We didn't work out and he rode in my car to the jail. There, I got off and went up to the property window and asked for his belongings while he waited in the car. As soon as the officers detained me, he took off in my vehicle. He did not have my permission to take it. I was the one driving. He jumped in the driver's seat and drove off. I then spoke with FDLE. I was afraid, panicked, when they told me he came out on America's Most Wanted for 3,000 pounds of cocaine & murdering someone. I didn't know what to say but I told the truth at the end. I don't have to, but I co-operated & told them everything I knew: the car I had seen him in; the phone number he called me from: 225-7778; and the times he went to the gym: approximately about 9:30 p.m. I didn't know he was a wanted fugitive. In my car, I had some pills which I train with.[10] They are a mild testosterone enhancer steroid. I then called him from a pay phone. Mike came and picked me up in front of the courthouse in my vehicle which he had probably gotten the keys through Alex or someone at the gym. C. P. The fourth and final page of the written statement contained the following "sworn" statement signed by Respondent: I have carefully read the above statement consisting of 4 pages and I have made and initialed all necessary changes or corrections. Respondent's written statement was the product of his own free will. Special Agent Subic and Special Agent Supervisor Coffey did not make any coercive threats or promises or otherwise employ physical or psychological coercion (such as refusing to provide Respondent with something to eat or drink or to allow him to go to the bathroom) in an effort to overbear Respondent's will and get him to write this statement. They made it clear to Respondent that he did not have to cooperate with them by giving a written statement and that he was "free to leave" at any time. Shortly after giving his written statement, Respondent left the office with Special Agent Subic, who subsequently dropped Respondent off. Respondent was not arrested that evening. The "pink pills" found in the glove compartment of Respondent's vehicle were sent to the laboratory for analysis. In March of 1999, following his receipt of the laboratory test results, Special Agent Subic arrested Respondent (at Respondent's place of employment, the South Florida Reception Center) for having been in possession of a controlled substance on September 17, 1998. After being arrested and "Mirandized" by Special Agent Subic, Respondent "again said that [the pills found in the glove compartment of his vehicle on September 17, 1998] were his," claiming he had obtained them "from a friend of his at the gym that he was working out at."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Criminal Justice Standards and Training Commission accept the undersigned's determination regarding the admissibility of Respondent's September 17, 1998, written statement15 and, should the parties be unable to agree to an "informal disposition" pursuant to Section 120.57(4), Florida Statutes, either: (a) resolve the instant controversy pursuant to Section 120.57(2), Florida Statutes, if there remain no disputed issues of material fact; or (b) remand the matter to DOAH for a "formal hearing" (held pursuant to Sections 120.569 and 120.57(1), Florida Statutes) if there remain disputed issues of material fact. DONE AND ENTERED this 22nd day of January, 2004, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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, 2004.
The Issue The issue in this case is whether to grant the petition challenging the validity of Florida Administrative Code Rule 33-302.111(2).
Findings Of Fact At the time of the final hearing, Petitioner was on probation and under the supervision of the Department of Corrections. Petitioner obtained a form pro se motion for early termination of probation from the Leon County circuit court clerk's office. The form contained fields for Petitioner's probation officer and the assistant state attorney to object or not object to early termination and to comment. Petitioner presented the form to his probation officer, who had her supervisor fill in the probation officer's field. The supervisor indicated neither an objection nor lack of objection. She commented that she was leaving it to the court to determine if Petitioner had met the vehicle impoundment condition of his probation, but that Petitioner had met all other requirements to be considered for early termination of probation. A hearing was scheduled on Petitioner's motion in June 2013. The judge notified the assistant state attorney assigned to the case and asked her to appear at the hearing. At the hearing, the assistant state attorney objected to early termination of Petitioner's probation. At some point in time, the assistant state attorney also checked the field on the form motion indicating her objection to early termination. The judge denied the motion. Petitioner blames the denial of his motion on subsection (2) of rule 33-302.111, which states: Before a correctional probation officer considers recommending an offender for early termination of supervision, the following criteria shall be met: Completion of one-half of the supervision period; Payment in full of restitution, fines, and court costs; Cost of supervision is current; All special conditions of supervision are fulfilled; A Florida Crime Information Center/National Crime Information Center (FCIC/NCIC) records check reveals no new arrest during the course of supervision of which the sentencing or releasing authority has not been previously notified; and No violations of supervision are pending. In order for an officer to request an early termination of supervision from the sentencing or releasing authority, approval must be obtained from the officer's supervisor, the State Attorney's Office, and the victim, if the offense involved a victim. If the State Attorney's office denies the request, or the victim opposes the early termination, the department will not proceed with the early termination recommendation. The officer shall not disclose a victim's objection to the offender. The officer shall notify the offender of the judge's decision upon receipt of the judge's response. If the offender was adjudicated guilty, the officer shall review the restoration of civil rights process with the offender. He contends that subsection (2) of the rule is an invalid exercise of delegated legislative authority because it exceeds the statutory grant of rulemaking authority and enlarges, modifies, or contravenes the specific provisions of law implemented. See § 120.52(8)(b) & (c), Fla. Stat. (2013). Specifically, Petitioner contrasts the rule with section 948.04(3), Florida Statutes, which states: If the probationer has performed satisfactorily, has not been found in violation of any terms or conditions of supervision, and has met all financial sanctions imposed by the court, including, but not limited to, fines, court costs, and restitution, the Department of Corrections may recommend early termination of probation to the court at any time before the scheduled termination date. Although on the precise subject as the rule, section 948.03(4) is not cited in the rule as either the rulemaking authority or the law implemented. Instead, the rule cites section 944.09, Florida Statutes, for both.
The Issue The issue is whether Florida Administrative Code Rule 69B-211.042(6), (8), and (14) is an invalid exercise of delegated legislative authority within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002).
Findings Of Fact Respondent is the state agency responsible for licensing insurance agents in the State of Florida, pursuant to Chapter 626, Florida Statutes (2002). On April 3, 2003, Petitioner applied for a license as a resident company employee property and casualty adjuster (resident adjuster license). Petitioner truthfully answered all questions on the application, including those questions pertaining to Petitioner's criminal history and guilty plea to a felony charge in Georgia. On September 25, 2003, Respondent issued a Notice of Denial of Petitioner's license application. Respondent based the denial, in relevant part, on the grounds that Florida Administrative Code Rule 69B-211.042(6) and (14) prohibit Respondent from granting the application while Petitioner is on probation or in a pre-trial intervention program; and that Florida Administrative Code Rule 69B-211.042(8) requires Petitioner to wait five years after the plea dated May 14, 2002, before applying for a license. On a date not disclosed in the record, Respondent issued a Second Amended Notice of Denial (the Amended Notice of Denial). The record does not disclose a first amended notice of denial. The Amended Notice of Denial, in relevant part, deletes grounds for the proposed denial that are not relevant to this Final Order. On May 14, 2002, Petitioner pled guilty to a single felony charge of possession of cocaine. A Georgia court sentenced Petitioner under Georgia's First Offender Act. If Petitioner successfully completes probation, Georgia will dismiss the felony charge. If Petitioner does not successfully complete probation, the Georgia court may revoke Petitioner's probation, adjudicate Petitioner guilty as charged, and sentence Petitioner to the maximum sentence authorized under Georgia law. Petitioner challenges the following provisions in Florida Administrative Code Rule 69B-211.042: (6) Probation. The Department shall not grant licensure to any person who at the time of application or at any time during the pendency of the application is serving a probationary term on any felony crime, or any misdemeanor crime, except for those crimes specified in Chapter 316, F.S., which are not punishable by imprisonment. The Department shall not substantively consider an application until the applicant has successfully completed his or her probationary term. * * * (8) Required Waiting Periods for a Single Felony Crime. The Department finds it necessary for an applicant whose law enforcement record includes a single felony crime to wait the time period specified below (subject to the mitigating factors set forth elsewhere in this rule) before licensure. All waiting periods run from the trigger date. (c) Class C Crime. The applicant will not be granted licensure until 5 years have passed since the trigger date. * * * (14) Pre-Trial Intervention: Specific Policy. (b) The Department will not grant licensure to any person who at time of application is participating in a pre-trial intervention program. The Department finds it necessary to the public welfare to wait until the pre- trial intervention is successfully completed before licensure will be considered. Petitioner challenges the foregoing provisions in Florida Administrative Code Rule 69B-211.042 on the grounds that each provision violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). Petitioner alleges that each challenged provision of the rule, respectively, exceeds the grant of rulemaking authority; enlarges, modifies, or contravenes the specific provisions of law implemented; or is arbitrary or capricious within the meaning of Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). The challenged provisions of the rule may reasonably be construed in a manner that preserves the validity of the rule. The express terms of the rule do not mandate an interpretation that violates Subsections 120.52(8)(b), (c), and (e), Florida Statutes (2002). However, Respondent interprets the challenged provisions of the rule in a manner that, if accepted, would violate Subsections 120.52(8)(b) and (c), Florida Statutes (2002). The enabling legislation for Florida Administrative Code Rule 69B-211.042 is Subsection 626.207(1), Florida Statutes (2002). Subsection 626.207(1), Florida Statutes (2002), authorizes Respondent to adopt rules establishing specific waiting periods that Respondent must apply after Respondent denies, suspends, or revokes Petitioner's license pursuant to specifically enumerated Florida statutes. In relevant part, Subsection 626.207(1), Florida Statutes (2002), provides that Respondent: . . . shall adopt rules establishing specific waiting periods for applicants to become eligible for licensure following denial, suspension, or revocation. . . . (emphasis supplied) Subsection 626.207(1), Florida Statutes (2002), prescribes a statutory prerequisite to the imposition of any waiting period pursuant to Florida Administrative Code Rule 69B-211.042. The statutory prerequisite is that Respondent must first deny, suspend, or revoke an existing license based on statutory provisions enumerated in the enabling legislation; enumerated provisions that are independent of any waiting periods. Thereafter, Respondent may impose relevant waiting periods to any application that follows Respondent's denial, suspension, or revocation of a license. The express terms of Florida Administrative Code Rule 69B-211.042 do not mandate the imposition of waiting periods without first satisfying the statutory prerequisite prescribed in the enabling legislation. The challenged provisions of the rule may reasonably be construed as authorizing the imposition of waiting periods following Respondent's denial, suspension, or revocation of an existing license. Respondent interprets the challenged provisions of the rule as authorizing Respondent to impose waiting periods without satisfying the statutory prerequisite in the enabling legislation. The waiting period that Respondent proposes to impose against Petitioner does not follow Respondent's denial, suspension, or revocation of a license within the meaning of Subsection 626.207(1), Florida Statutes (2002). When Georgia authorities arrested Petitioner for possession of cocaine on November 4, 2001, Petitioner held a Florida nonresident company all-lines adjuster license pursuant to license number A082918 (a nonresident adjuster license). Petitioner voluntarily cancelled the nonresident adjuster license on October 21, 2002. Respondent did not deny an application for renewal of the nonresident adjuster license. Nor did Respondent suspend or revoke Petitioner's nonresident adjuster license. The application for a resident adjuster license at issue in this proceeding indicates that no administrative action was ever taken against Petitioner's nonresident adjuster license. Respondent stipulated that Petitioner answered all questions on the application truthfully. The Florida licensure file that Respondent maintains shows that Respondent took no administrative action against Petitioner's nonresident adjuster license. Respondent proposes to impose a waiting period against Petitioner that that does not follow denial, suspension, or revocation of either Petitioner's previous nonresident adjuster license or the resident adjuster license that Petitioner seeks in this proceeding. The second page of the application that Petitioner submitted states that Respondent will not consider the application while Petitioner is under probation or in a pre- trial intervention program. In relevant part, the second page of the application provides: NOTE: IF YOU ARE CURRENTLY ON PROBATION OR PARTICIPATING IN A PRE-TRIAL INTERVENTION PROGRAM, YOU MAY WANT TO WAIT TO FILE YOUR APPLICATION WITH THE DEPARTMENT UNTIL YOUR PROBATION OR PRE-TRIAL PROGRAM HAS TERMINATED. (For other than minor traffic violations, the rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term or participating in a pre- trial intervention program. ) (emphasis not supplied) After receiving the application for a resident adjuster license, Respondent issued a letter dated April 7, 2003, stating Respondent's intent to deny the application. In relevant part, the letter stated: [W]e are in receipt of the certified documents, however, a review of the documents indicate[s] that you are still on probation. The rules of the Department prohibit the approval of licensure for an individual who is currently serving a probationary term. Please write and let us know if we need to close or withdraw your application. The express terms of Subsection 626.207(1), Florida Statutes (2002), require an interpretation of Florida Administrative Code Rule 69B-211.042 that limits the imposition of relevant waiting periods to periods that follow Respondent's denial, suspension, or revocation of a license. The waiting periods begin on "trigger dates" defined in Florida Administrative Code Rule 69B-211.041(11). The express terms of the enabling legislation do not authorize the imposition of waiting periods unless the waiting periods follow a denial, suspension, or revocation of a license by Respondent in accordance with Florida law. If Respondent were to deny Petitioner's application for a resident adjuster license on the grounds that Petitioner violated one of the statutes enumerated in the enabling legislation, Subsection 626.207(1), Florida Statutes (2002), would authorize Respondent to apply the challenged provisions of Florida Administrative Code Rule 69B-211.042 to prevent Petitioner from applying for a license before the expiration of the applicable waiting period. Similarly, if Respondent were to have suspended or revoked Petitioner's nonresident adjuster license, Subsection 626.207(1), Florida Statutes (2002), would have authorized Respondent to apply the relevant waiting period to prevent Petitioner from applying for another nonresident adjuster license; or arguably to prevent Petitioner from applying for the resident adjuster license at issue in this proceeding.
The Issue The issues in this case are whether Respondent, A-1 Block Corp., discriminated against Petitioner, Harold E. Ford, Jr., on the basis of his race and/or color and in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is a family-owned business that manufactures concrete products, ready-mix concrete, concrete block, and precast concrete. Mr. Freeman has been the president of Respondent for approximately 10 years. Petitioner is an African-American male who was employed by Respondent at two different times. Petitioner was hired to work in several different capacities which included: ready-mix driver; block driver; dump truck driver; and/or loader operator. Mr. Caviglia serves Respondent in a supervisory position, and Mr. Caviglia made the decision to hire Petitioner as a truck driver in December 2009 (first employment). Respondent hired Petitioner at $12.00 an hour. Respondent terminated Petitioner’s employment in July 2011 (first employment termination). Mr. Freeman described the circumstances under which Petitioner was terminated as: Petitioner failed to unhook some type of ladder or other apparatus at a self-loading dock, and drove off causing approximately $4,000 to $5,000 of damage to Respondent’s truck and/or the dock. Respondent was responsible for making the repairs. At the time of his first employment termination, Petitioner was making $13.00 an hour. Approximately five months later, in December 2011, Mr. Caviglia re-hired Petitioner to be a truck driver for Respondent. The other drivers employed by Respondent wanted Petitioner to return. Petitioner was hired at $13.00 an hour (second employment). At various times during Petitioner’s employment with Respondent, Petitioner inquired about becoming a “dispatcher” for Respondent. Mr. Freeman indicated to Petitioner that he (Mr. Freeman) would think about Petitioner’s dispatcher request. However, one of the requirements for Respondent’s dispatcher position was the availability to work on Saturdays. Mr. Freeman knew that Petitioner had a second job which required Petitioner to work on Saturdays. Since 2004, Petitioner worked part-time as an attendant at a local funeral home, which required Petitioner to work some Saturdays. Petitioner was paid $75 per funeral; however, he did not know how much he had been paid since his second employment termination. Petitioner did not have any pay-stubs to reflect how much he had been paid by the funeral home. Petitioner continues to work for the funeral home. In October 2013, Petitioner caused damage to tires on a truck belonging to Respondent. Respondent incurred a financial loss as a result of the damaged tires. Petitioner was terminated from his second employment with Respondent on November 20, 2013. Petitioner alleged and testified that Mr. Caviglia threatened Petitioner at various times during Respondent’s operational meetings.3/ Two other witnesses, Mr. Timmons and Mr. Sandy, testified that they did not observe Petitioner being threatened at these meetings. Petitioner alleged that he was retaliated against based on his race. Petitioner claimed that he was directed to wash a white man’s truck. Petitioner refused to wash the truck. Respondent requires its drivers to wash the trucks that they drive each day. However, there was no evidence of any retaliation against Petitioner when he did not wash the other man’s truck. Petitioner alleged he asked for raises when he thought it appropriate, and was refused. Mr. Freeman paid his employees the going rate, and it was established that Petitioner was being paid $14 an hour when he was terminated. Mr. Timmons, a former employee of Respondent, received the same rate of pay for working as a driver or as a dispatcher for Respondent. Petitioner’s resumé was admitted into evidence as Exhibit C. Petitioner created this resumé in 2011, and revised it one time to assist in the preparation for the hearing. The resumé does not accurately reflect Petitioner’s separate employment periods at Respondent, nor does it contain a two-week period of employment at another construction company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations DISMISSING the Petition for Relief filed by Mr. Ford. DONE AND ENTERED this 22nd day of December, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2014.
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
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 determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, 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 At all times relevant and material to this proceeding, the Respondent, Willie Marion Ware (Licensee), held license number 74-00564, series 2-COP, authorizing him to sell alcoholic beverages on the premises doing business as Silver Shadow, located at 918 S. Adelle, Deland, Volusia County, Florida (the premises). Between the dates of July 1, 1989, and October 30, 1991, the Licensee's brother, Earl M. Ware (a/k/a Joe or Little Joe), was a convicted felon. The Licensee's brother, Earl M. Ware, was convicted less than five years ago for selling cocaine inside the licensed premises. The Licensee fully knew that his brother, Earl M. Ware, was and is a convicted felon who is prohibited from being employed as person in charge, bartender, or manager. Contrary to agreements made by Licensee in a previous case with this same charge and despite notice by Deputy Bowman, Licensee has continued to employ his brother, Earl M. Ware, as a person in charge, bartender or manager. At various times relevant to this proceeding, the Licensee's brother, Earl M. Ware, possessed keys to enter the premises and open the locked door to the premises and he opened the premises to the public without any supervision by Licensee or by any other employees. Earl M. Ware worked inside the premises when there were no other employees or the Licensee present inside the premises. In fact, Earl M. Ware was the only person in charge for extended periods of time, particularly on Sundays. The Licensee's brother, Earl M. Ware, worked behind the bar, asked clients what they wanted to drink, retrieved the alcoholic beverage orders, served those alcoholic beverages to clients, charged clients for those alcoholic beverages, and took money from clients for those alcoholic beverages. Between July 1, 1989, and October 30, 1991, the licensed premises were a continuing nuisance. Complaints regarding or involving the premises and its parking lot owned by Licensee were more than double those of the other two licensed premises located within 5 blocks of Licensee's premises. The complaints ranged from possession of drug paraphernalia and sale of narcotics, to armed robbery and attempted murders of law enforcement officers. Deputy Brown, in particular, testified that he purchased crack cocaine right at the front door of the premises. Deputy Brown also observed numerous narcotics transactions taking place inside the premises, while Licensee was inside the premises. Deputy Brown also made several purchases of cocaine in the parking lot of the Silver Shadow when the dealer advised that he was not holding the drugs and he then went inside the Silver Shadow to retrieve the drugs to be sold. Deputy Boltz removed two males under age 21 from the bathroom of the Silver Shadow, one of whom had a gun in his pocket. Deputy Bowman followed up on a complaint by a man who said he was beaten and robbed in the Silver Shadow. Deputy Bowman was advised by "Joe" that a fight occurred and that he had broken it up. The shoe missing from the complainant's foot was found by Bowman in the back corner of the bathroom. Deputy Bowman notified Licensee several times between the dates of July 1, 1989, and October 30, 1991, that the premises was fostering illegal activity, particularly narcotics activity. Every deputy who testified identified multiple occasions when he found containers of cocaine, bags with drug residual, and drug paraphernalia on the premises. They also each smelled marijuana and crack cocaine being smoked on the premises. Licensee was made aware of the incidents and told the law enforcement officers that he couldn't check or control the use of drugs on the premises. The Licensee never contacted the Sheriff's Office and never asked any of the deputy sheriff's specifically assigned to work the area to come inside his premises to enforce any criminal laws. Licensee did not contact the police when he knew that a criminal was hiding the gun used in an attempted murder of a police officer inside the premises. The Licensee denied ever speaking with Deputy Bowman regarding the continued illegal activity inside the premises. According to the Licensee, there is no illegal activity taking place inside the premises. This testimony is simply not worthy of belief. While the Licensee did attend community meetings and did place no trespassing signs in the adjoining parking lot, he had never asked any law enforcement officer to remove anyone from his premises. The Licensee acknowledged that he did not feel it was his duty to police his premises and identify persons who are engaging in illegal activity to the law enforcement authorities. According to the Licensee, that was the job of the police, and not his responsibility. In DABT Case No. AY74870121, Licensee's license was suspended and fined for multiple instances of the sale of crack cocaine on the premises by Earl M. Ware and for keeping an establishment used by persons using controlled substances and thereby deemed a public nuisance. The Final Order in that case was entered on May 25, 1989. In that proceeding, Licensee made various assurances regarding the exclusion of Earl M. Ware from the premises and the implementation of various devices meant to discourage and prevent any sale and use of drugs on the premises. Despite that Final Order and the terms thereof, the proof in this case shows that these same violations continued from July 1, 1989, to November 1, 1991, without cease.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business Regulation, Division of Alcoholic Beverages and Tobacco enter a Final Order and therein: Find that the Licensee, Willie Marion Ware, is guilty of the first count of employing a convicted felon. Find that the Licensee is guilty of the second count of maintaining a nuisance. Find that the previous conviction history of this Licensee for similar offenses is a sufficient aggravating factor to exceed the penalty guidelines Revoke license No. 74-00564, Series 2-COP, issued to Willie Marion Ware d/b/a Silver Shadow. DONE and ENTERED this 29th day of September, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-3333 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, DABT 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-6(1-6); 7-10(6-9); 11-16(9-14); 17(18); and 18-22(21-24). COPIES FURNISHED: Richard W. Scully, Director Division of Alcoholic Beverages and Tobacco 725 South Bronough Street Tallahassee, FL 32399-1000 Donald D. Conn, General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1000 Monica Atkins White Assistant General Counsel Department of Business Regulation 725 South Bronough Street Tallahassee, FL 32399-1007 Reginald Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32115-1848
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue Whether Petitioner suffered retaliation and reverse discrimination committed by the Department of Corrections in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner is a white male who was a probation officer at the Department. He worked in the Fourteenth Judicial Circuit for the first ten years of his career and then transferred to the Seventh Judicial Circuit, based in Daytona Beach, Florida, where he had been employed for about eight and one-half years at the time of the hearing. The Department, in accordance with Section 20.315, Florida Statutes, is the state agency charged with protecting the public through the incarceration and supervision of offenders and the rehabilitation of offenders through the application of work, programs, and services. In early July 1999, Petitioner was working in the Department's probation office on Palmetto Avenue, in Daytona Beach, Florida. He was living with a woman named Tanya Folsom who worked for the Department in its probation program, but not in the same office. He was also romantically involved with a woman named Frances Fredericks, who he later married. At this time, Ms. Fredericks was married to one Mr. Anderson, and was known as Frances Anderson. This triangular relationship became known in the office in which Petitioner worked. Someone in Petitioner's office, who has never been identified, wrote a letter to Ms. Folsom, revealing to Ms. Folsom Petitioner's ongoing relationship with Ms. Frances Fredericks. The letter was written on stationery that was the Department's property, placed in an envelope that was the Department's property, and transmitted to Ms. Folsom via the Department's internal mailing system. Using Department resources for personal business, is contrary to Department policy. When Ms. Folsom received the letter a number of ugly consequences ensued. Ms. Folsom reacted with extreme hostility to the information she received, even though Petitioner claimed that their relationship had devolved into a mere friendship. She evicted Petitioner from the quarters they had been sharing. At a subsequent time, one Mr. Anderson, then Ms. Frederick's husband, confronted Petitioner in the parking lot adjacent to the office in which Petitioner worked, and in the presence of Petitioner's office supervisor, Mr. Seltzer, socked Petitioner in the jaw. The probation officer community, in which Ms. Folsom and Petitioner worked, suffered disruption. Morale amongst the workers was impaired. Petitioner blamed the occurrence of these unpleasant events, not on himself, but on Officer Michael Gallon, a probation officer who worked directly in the court system, and Ms. Velma Brown, his immediate supervisor. He attributed blame to them because he believed that they had rifled his desk and found gifts destined to be given to Frances Fredericks, and believed that one or both of them were responsible for the letter to Ms. Folsom. Both Officer Gallon and Ms. Brown are black. Petitioner filed a complaint with the Department demanding an investigation into the use of the Department's stationery that was of a value of about a "half cent," according to Petitioner. He also complained that court officers, both black and white, were underemployed, and suggested that black court officers were afforded advantages not given to white officers. He asked his superiors to investigate the complaint regarding both the letter and the court officer matter. He prevailed upon the office manager to take action and when the office manager declined to open an investigation, he brought the matter to the attention of the circuit administrator, Robert Gordon, and ultimately to the attention of those in the chain- of-command all the way to the Department's Inspector General. Mr. Gordon, in response to the turmoil precipitated by the letter, reassigned Petitioner to DeLand, Florida, a distance of about 30 miles, for 60 days. Petitioner, who referred to his new post in the pejorative, "Dead Land," believed that officers who were moved there, "never came back." Mr. Gordon told Petitioner that he moved him because Petitioner needed a "change of venue." This reassignment occurred the end of July, 1999. Article 9, Section 3, of the Agreement between the State of Florida and Florida Police Benevolent Association (Agreement) states that a transfer should be affected only when dictated by the needs of the agency and only after taking into consideration the needs of the employee, prior to any transfer. Mr. Gordon complied with that requirement, and in any event, did not transfer Petitioner. The Agreement states at Article 9, Section 1 (C), that a move is not a "transfer" unless an employee is moved, " . . . in excess of fifty (50) miles." Petitioner was "reassigned" as that term is defined in Article 9, Section 1 (C), of the Agreement. In any event, Mr. Gordon did not move Petitioner because he was white. He moved him to a different post because Petitioner had created turmoil in the probation officer community in Daytona Beach. In any event, as will be discussed below, whether or not Mr. Gordon complied with the Agreement is immaterial to this case. Notwithstanding Petitioner's beliefs with regard to the outcome of his move to DeLand, he was reassigned back to the Daytona Beach area at the end of 60 days and resumed his regular duties. This occurred around early October, 1999. Petitioner continued to press for an investigation into his allegations. He brought the matter to the attention to Harry Ivey, the regional administrator for the Department and above Mr. Gordon in the chain-of-command. He discussed the matter with a Mr. Jefferson, Mr. Ivey's deputy and believed subsequent to that conversation, that an investigation would occur. In fact, no one in the Department displayed any interest in Petitioner's allegations about the de minimis use of the Department's time and property in the preparation and transfer of the letter, or in his beliefs about the workload problems of the court officers, or his claims of favorable treatment in the case of Officer Gallon and Ms. Brown. In December 2000, Petitioner was assigned to the Ormond Beach Office, which was about six miles from the Palmetto Avenue Office. The Ormond Beach Office had lost a supervisor position due to reorganization and it was determined that Petitioner possessed the skill and experience to replace that senior leadership. The decision to relocate Petitioner was made by Mr. Gordon. In February 2001, Petitioner was transferred back to his old office. A few months later he was promoted to Correctional Probation Senior Officer and moved to another office. Between February 2000 and February 2001, the operative period, over 30 Correctional Probation Officers, Correctional Probation Supervisor Officers, and Correctional Probation Supervisors in the Seventh Circuit, were reassigned. Of these, six were black, four were Hispanic, and 20 were white. Although the four reassignments experienced by Petitioner may have inconvenienced him, Petitioner presented no evidence of any damages. The facts reveal that Petitioner's misfortunes were precipitated by his unwise amorous activities within his workplace. They were not the result of any effort by the Department to retaliate against him or to discriminate against him because he was white.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's Amended Charge of Discrimination be dismissed because it was not timely filed. Dismissal on its merits if the June 25, 2001, Charge of Discrimination is determined to have been timely filed. DONE AND ENTERED this 11th day of December, 2003, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 11th day of December, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Gayle S. Graziano, Esquire 244 North Ridgewood Avenue Daytona Beach, Florida 32114 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Has Petitioner been the subject of an unlawful employment practice because of his race, American Indian, and if so, what relief is appropriate?
Findings Of Fact Upon consideration of the oral evidence adduced at the hearing, the following relevant findings of fact are made: At all times relevant to this proceeding, Respondent operated a citrus processing facility in Bartow, Florida, and employed in excess 15 employees. Petitioner is a full-blooded American Indian who resides in Lakeland, Polk County, Florida. Bobby Branch, Respondent’s Maintenance Supervisor, hired Petitioner as a Maintenance Mechanic. Petitioner commenced employment with Respondent on August 18, 1997. Petitioner was employed at an hourly rate of $10.50. Petitioner was assigned by Bobby Branch to work under the direct supervision of Garry R. Guard, Lead Plant Mechanic. Petitioner had 37 plus years' experience as a mechanic and 15 years' experience with the citrus industry as a mechanic. Petitioner understood at the time he was hired that he would be on probation for a period of 90 days. Shortly after Petitioner began work, Garry Guard told Petitioner “I don’t want to work with an Indian” and “I’m prejudiced and I don’t give a damn who knows it” or words to that effect. Additionally, Guard let it be known that he would prefer working with a Mexican. Approximately one week after this incident, Petitioner complained to Bobby Branch, Maintenance Supervisor, about Guard’s comment to Petitioner. This is supported by the testimony of Charles Palmer, a former employee of Respondent, that he was aware that Petitioner reported Guard's comment to Bobby Branch. There was no remedial action taken by either Branch or any other management personnel concerning Guard’s comment to Petitioner. Subsequently, Petitioner noticed his work being undone and Guard complaining that Petitioner’s work was not done or that his work was done improperly. Petitioner and William Waples, a former employee of Respondent, worked together on one of those projects, rebuilding and installing a pump. Waples considered Petitioner a good mechanic. Later, after Waples and Petitioner were finished with the pump, Guard was observed taking the pump apart. Subsequently, Guard complained that Petitioner failed to install a specific part in the pump. Waples specifically recalls that particular part being installed by himself and Petitioner. Subsequent to that event, Guard, when questioned by another worker about the pump and the problem with it, was over heard by Waples saying words to the effect that the “Damn Indian did it.” On October 22, 1997, Petitioner filed a complaint with Branch that Guard was purposefully sabotaging his work because of his race. Again, there was no remedial action taken by Branch or any other management personnel. Branch neither personally observed deficient work performance by Petitioner nor personally communicated to Petitioner the need for Petitioner to improve his performance if he were to successfully complete his probationary period with Respondent, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was never reprimanded or counseled prior to being terminated. Petitioner was not terminated because of his deficient work performance during his probationary period, but was terminated because of his complaints to Bobby Branch of being discriminated against due to his race, notwithstanding Branch’s testimony to the contrary, which I find lacks credibility in this regard. Petitioner was terminated by Respondent on November 14, 1997. Petitioner claims lost wages at an hourly rate of $10.50 for 40 hours per week for the period from November 15, 1997 to April 24, 1998. There does not appear to be any evidence of a set-off against the claim for lost wages. Although Petitioner was represented by an attorney, there was no evidence presented as to the amount of Petitioner's attorney's fees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner's Petition for Relief be granted, and as further relief, award Petitioner back wages for the period of November 15, 1997 until April 24, 1998, based on a 40 hour week at an hourly rate of $10.50, and upon motion to the Commission, award reasonable attorney's, in accordance with Section 760.11(7), Florida Statutes. DONE AND ENTERED this 20th day of August, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2001. COPIES FURNISHED: Merette L. Oweis, Esquire DiCeasure, Davidson & Barker, P.A. Post Office Box 7160 Lakeland, Florida 33897 David J. Stefany, Esquire Allen, Norton & Blue, P.A. South Hyde Park Avenue Suite 350 Tampa, Florida 33606 Dana A. Baird, General Counsel Florida Commission on Human Relations John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi M Dixon, Agency Clerk Florida Commission on Human Relations 325 John Knox Rd, Bldg. F, Suite 240 Tallahassee, Florida 32303-4149
