The Issue Whether the license of Respondent, Mark Craig Fetherman, P.E., should be disciplined for negligence in the practice of engineering, in violation of Section 471.033(1)(g), Florida Statutes, as more specifically alleged in the Administrative Complaint filed in this case on May 27, 2000.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made. Petitioner, Florida Engineers Management Corporation, provides prosecutorial services to the Board of Professional Engineers as authorized by Section 471.038(4), Florida Statutes. The Board of Professional Engineers is charged with regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. Respondent, Mark Craig Fetherman, P.E., is a licensed professional engineer holding License No. PE40116. Prior to the instant case, he has not been subject to disciplinary action. Respondent has a bachelor's degree in physics and mechanical engineering and a master's degree in management information systems. Respondent has developed software to calculate windloads for wood and metal trusses. He operates his own company and offers engineering services to others which include performing load calculations for residential homes. Petitioner's expert witness, Wilbur T. Yaxley, P.E., is a civil engineer primarily concerned with building and structure-type work. He has approximately 24 years' engineering experience and has done consulting and forensic work since 1993. This is his first case involving light-gauge metal roof trusses. He has never designed a roof truss. He has never been involved in the manufacture of light-gauge metal trusses. Petitioner's expert witness testified that light-gauge steel trusses are a fairly new process. Light-gauge steel (16, 18, 20 gauge) has become a major structural building material in the last five years. Unlike the wood truss industry, there isn't much published information on light-gauge metal trusses, and what information that is available is not approved or accepted by the Standards Building Code. The Standards Building Code refers to American Iron and Steel Institute (AISI) documentation: "The design of structural members cold-formed from carbon or low alloy steel shall conform to AISI Specifications " While Mr. Yaxley is familiar with "finite element analysis" (using computer software to analyze a system or component to see how it reacts under certain loading), he personally does not do finite element analysis. He has not analyzed the truss system in this case as a whole. Respondent had contracted with Marjorie and Art Schiavone to design a residence which included a connected airplane hanger. In addition, Respondent was to "procure steel roof trusses for the residence," specifically, the scope of work included materials, truss manufacture and delivery, and modifications needed due for foundation and/or wall configurations. Art Schiavone (hereinafter "Schiavone") accepted Respondent's plans without objection. Schiavone, who had little building experience, as property owner acted as his own general contractor. Petitioner's expert testified that "Schiavone really thought Mr. Fetherman was supervising his construction." Respondent testified that he was not supervising construction and Petitioner's expert agreed that was not Respondent's role. There was a great deal of personal conflict between Schiavone and Respondent. Schiavone prepared and dated his Complaint to the Board of Professional Engineers on November 16, 1999. He then showed the Complaint to Respondent's partner "to get satisfaction out of Mr. Fetherman." Respondent left the job in mid-December. The Complaint was received by the Board of Professional Engineers on December 28, 1999. Schiavone told Respondent's partner that he would withdraw the Complaint if Respondent would continue as engineer on the job. There is conflict in the testimony of Schiavone and Respondent. I find the testimony of Respondent to be more credible. Some of the roof (and hanger) trusses were damaged when they arrived at the job site. The repair process involved removing the damaged member and replacing it with a new piece of metal. Holes had to be redrilled and screws were replaced. Respondent was not present when some of the trusses were repaired. Similarly, Respondent was not present when some of the roof trusses were modified. Schiavone modified the trusses without the benefit of shop drawings after Respondent left the job. Lisa Connelly, Plans Examiner for the Marion County Building Department, testified that Respondent came to her office and told her that Schiavone had altered the trusses without Respondent's supervision and that Respondent was going to remove himself from the job due to deviations in engineering, in that the trusses were not what Respondent had engineered. Respondent noted 13 construction items which had not been done correctly, at least one-half of which would create problems with the trusses being installed properly. When Schiavone poured the wall lintel, he failed to install connector straps as per plans. Respondent had provided Schiavone detailed drawings showing the location of two connector straps per truss heel. In most instances, as built, there was only one connector strap per truss heel and it was not properly located to fit into the truss heel gusset plate. Petitioner's expert found from 10 to 18 screws in most truss heel gusset plates. Respondent had photograph enlargements (taken for another purpose) which showed 18 screws in each truss heel gusset plate in the particular photographs. These photographs were taken to show transportation damage and would have showed the condition of the trusses before any repair or modifications. The typical wall cross-section drawing shows two connector straps with seven screws per strap. Had there been two connector straps per location, had the connector straps been properly located, and had they been installed into the truss heel connection gusset plate as per plans, there would have been 32 screws per truss heel, which would have exceeded design criteria. It was not Respondent's responsibility to ensure that Schiavone built the structure according to the plans. Respondent's General Summary Sheet specifies 25 self-drilling screws at the heel connection of the hanger truss. Petitioner's expert opines that 54 No. 10 self-drilling screws are needed. Respondent testified that his software calculates the whole truss system, not just the heel connection standing alone, and that instead of shear, the heel connection would be subjected to rotation stress. Respondent calculated varying windloads, safety factors, and the number of screws required for varying windloads and determined that 25 screws would be needed for 120 mph windloads with a 3.5 safety factor; 54 screws with the same general safety factor would allow a 300-320 mph windload. Petitioner's expert opines that both the hanger truss heel connection and the scissors truss would require a heavier gusset plate. He did not, however, calculate forces and loads on the entire truss system. He simply ran calculations on a normal pin-connection truss design. Respondent determined, using his software, that a 20-gauge piece of steel is satisfactory for the gusset plate. Petitioner's expert opines that in the foundation plan, the thickened portion of foundation slab would be for an interior load-bearing wall. Petitioner's expert acknowledges that he is not sure what the loads would be on the interior load-bearing wall. He does know that the bearing point on some of the trusses and the interior load-bearing wall would not match up by 42 inches. But, he testified that he did not know whether this would make a difference or not. The interior load-bearing wall was constructed after the trusses were installed and after Respondent left the job. There is a jog shown in the floor plan for the interior load-bearing wall which is inconsistent with the foundation plan. Respondent testified that the plans were as he intended. He designed the interior load-bearing wall footer to run straight because its easier for the individuals laying the foundation to lay it correctly. More importantly, the trusses are two bearing points trusses, and do not need the interior load-bearing wall. The interior load-bearing wall simply adds to the windload capacity. Respondent acknowledges that on 5 interior trusses, the bearing points do not match up with the interior load- bearing wall, but this is not critical because the trusses are two bearing point trusses and these 5 trusses are interior trusses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is Recommended that Petitioner enter a final order finding that Respondent is not guilty of "negligence" as alleged in the Administrative Complaint dated May 22, 2000. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001. COPIES FURNISHED: Minerva Higgins, Esquire 1770 Fowler Drive Merritt Island, Florida 32952 Douglas Sunshine, Esquire Florida Engineers Management Corporation 1208 Hays Street Tallahassee, Florida 32301 Natalie A. Lowe, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1208 Hays Street Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Com-Jet Corporation (Respondent) violated the Florida Civil Rights Act by unlawfully discriminating against Gladys V. Fleites (Petitioner or Ms. Fleites) on the basis of her alleged disability.
Findings Of Fact Com-Jet Corporation repairs airplanes through its division Aircraft Systems (Respondent). Petitioner was employed as an aircraft mechanic by Respondent between June 30, 2008, and April 8, 2011. At the times relevant to this proceeding, Osvaldo Guillam was also employed by Respondent and was described as Petitioner's common law husband or significant other. Mr. Guillam and Petitioner were hourly employees. At all times relevant to this proceeding, Respondent's policy was to require each hourly employee to punch-in his or her time card when the employee arrived at work and to punch-out his or her time card when the employee left work. If an employee could not punch his or her time card because of a physical limitation, the employee was to have a supervisor punch the card for him or her. In February 2011, Melanie Alonso, Respondent's director of human relations, discovered that Mr. Guillam was punching-in and punching-out Petitioner's time card. On February 9, 2011, Ms. Alonso met with Mr. Guillam and Petitioner and told them that each employee was required to punch-in and punch-out his or her own time card. Ms. Alonso told them that one employee could not punch another employee's time card. Petitioner admitted to violating the time card policy and apologized for having done so. At no time did Petitioner indicate that she could not punch her time card due to a physical limitation. Later that day, Ms. Alonso met with all of Respondent's hourly employees and reiterated the company policy pertaining to time cards. Petitioner has had a problem with her left ankle since a fall in 2001. At the times relevant to this proceeding, Petitioner experienced pain while walking and had difficulty standing or bending. Petitioner worked at a table in a seated position. Petitioner did not have a noticeable limp. While Petitioner wore an elastic band on her ankle, that band was covered because Petitioner wore pants to work with a sock over the band. Respondent's management did not know that Petitioner had difficulty with her ankle. Petitioner was scheduled to undergo arthroscopic surgery on her left ankle on March 31, 2011. In conjunction with that surgery, Petitioner requested eight days of leave, which was all the annual leave she had. There was a conflict in the evidence as to what Petitioner told Respondent's management about the leave. The greater weight of the credible evidence established that Petitioner did not tell Respondent's management that she was scheduled to have surgery on her left ankle. The ankle surgery was postponed due to an insurance coverage issue. After finding another surgeon, Petitioner rescheduled the surgery. Respondent's work area has security cameras that monitor activities in the work area. Ms. Alonso reviewed the videos from those cameras after a vacuum cleaner was stolen from the work area in April 2011. During the course of that review, Ms. Alonso observed that Mr. Guillam was punching-in and punching-out two time cards. On April 8, 2011, Ms. Alonso confronted Petitioner and Mr. Guillam. Both admitted that Mr. Guillam had been punching Petitioner's time card. Ms. Alonso terminated the employment of Mr. Guillam and Petitioner on April 8, 2011, for violating the company's time card policy. There was no evidence that Ms. Alonso knew of Petitioner's ankle problems when she terminated her employment.
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 adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order dismiss with prejudice the Petition for Relief filed against Com-Jet Corporation by Gladys V. Fleites. DONE AND ENTERED this 3rd day of September, 2013, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 3rd day of September, 2013. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Anthony Joseph Perez, Esquire Law Office of Alfredo Garcia-Menocal, PA Suite 214 730 Northwest 107th Avenue Miami, Florida 33172 Paul F. Penichet, Esquire Paul F. Penichet, P.A. Suite 907, Biscayne Building 19 West Flagler Street Coral Gables, Florida 33130-4400 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Monro d/b/a McGee Tire & Auto, discriminated against Petitioner based upon his age and/or disability, in violation of section 760.10, Florida Statutes.1
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: McGee Tire is an employer as that term is defined in section 760.02(7). McGee Tire is in the business of selling, servicing, and installing commercial tires. Mr. Parsons is a white male who was employed by McGee Tire in commercial sales and operations. At the time of the hearing, Mr. Parsons was 55 years old. At all times relevant to the determination of this case, Mr. Parsons was older than 40 years old. Mr. Parsons entered the tire business in 1985, when he was 21 years old, taking a position as an outside sales representative for Bridgestone/Firestone. Mr. Parsons worked in commercial fleet sales, developing business with governmental entities such as the Navy, Air Force, cities, school boards, and concrete companies. He went through every training program offered by Bridgestone/Firestone and became certified in off-road, agricultural, industrial, heavy truck, and bus tires, as well as retreading. Mr. Parsons was employed by Bridgestone/Firestone for about 16 years, working his way up to district manager in Pensacola. Mr. Parsons left Bridgestone/Firestone to open his own shop, Florida Commercial Tire, which was renamed Florida Tire Service in 2010. Mr. Parsons testified that, after some growing pains, Florida Tire Service was a successful business. He discussed the difficulties faced by a small local shop trying to compete with large national companies. Mr. Parsons tried to offset the lower prices offered by the big chains with superior service. If a trucker was stuck on the side of the road at 2 a.m., Mr. Parsons answered their call and sent out his service trucks. Despite his success, Mr. Parsons believed the days were limited when an independent dealership such as his could stay competitive. In 2016, he was approached by George Bradshaw, who for some years had been a friendly competitor of Mr. Parsons in the commercial tire business. Mr. Bradshaw stated that he was now working for a subsidiary of Monro called McGee Tire, and that his company was interested in entering the Pensacola market. They wanted to talk about buying Mr. Parsons’s company and/or having him come to work for them. Mr. Parsons testified that he was not eager to sell but neither was he “stupid to the business.” He had several meetings with Mr. Bradshaw and Bob Lanpher, another executive in McGee Tire’s Florida operation. On September 19, 2016, they completed a deal for Mr. Parsons to sell his company to Monro. The Asset Purchase Agreement included a four-year non-compete clause, under which Mr. Parsons could not compete against Monro in the business of operating a tire and/or automotive repair and service facility within 200 miles of the current location. In addition to selling the business, Mr. Parsons negotiated a contract to come to work for McGee Tire for $120,000 per year. The Monro negotiators told Mr. Parsons that their salary structure would not allow Monro to pay him a straight salary of $10,000 per month. Mr. Parsons agreed to accept a base salary of $6,500 per month and a guaranteed bonus of $3,500 per month. The company would give him a truck allowance of $600 per month and pay for his cell phone. Mr. Parsons would receive bonuses for monthly sales in excess of $150,000. Mr. Parsons testified that “I busted my butt for these guys.” From September 2016 through January 2017, Mr. Parsons’s main job was finding a new, larger location for the business and then overseeing the transition to, and equipping of, the new store in Cantonment. At the same time, Mr. Parsons continued to act as the main salesperson and dispatcher for McGee Tire. On March 9, 2018, Mr. Parsons and McGee Tire Manager Tory Irving were loading flotation tires into Mr. Parsons’s truck for delivery to a customer. Mr. Parsons testified that these tires were used on the front of cement trucks and weighed about 270 pounds each. As he lifted a tire, Mr. Parsons felt a stabbing pain in his back. He rested a bit then delivered the tires to the customer. Mr. Parsons continued coming to work for a few days despite the pain. At the urging of Mr. Irving and Mr. Bradshaw, he took a few days off but the rest did nothing to lessen the back pain. Mr. Parsons returned to work. Mr. Parsons testified that his pain became so intractable that Kevin McGee, the manager in charge of commercial operations for Monro, sent him home and placed him on workers’ compensation. On about March 18, 2018, Monro sent Mr. Parsons to White-Wilson Clinic for treatment. The nurse practitioner at White-Wilson Clinic prescribed steroids and anti-inflammatory medications. Mr. Parsons was also given a lifting restriction of 15 pounds. Mr. Parsons testified that subsequent MRIs showed that he had aggravated the sciatic nerve. He was referred to Dr. Barry Lurate, an orthopedist, who concluded that there was no surgical solution for Mr. Parsons’s back pain. Medical records indicate that Dr. Lurate reached this conclusion on August 27, 2018. Because Mr. Parsons had back problems that pre-existed the flotation tire incident, Dr. Lurate was uncertain as to what impairment rating to give Mr. Parsons for workers’ compensation purposes. However, Dr. Lurate did not doubt that Mr. Parsons was suffering and should continue on lifting restrictions. Mr. Parsons recalled that Dr. Lurate imposed a 15-20 pound lifting restriction and released him to light duty work. Mr. Parsons testified that he phoned Mr. McGee three or four times to let him know his status, but was unable to reach him. Mr. Parsons testified that Mr. McGee had always been difficult to reach by telephone, so he sent him a text message. Mr. Parsons’s message stated that he had been released to come back to work. Mr. McGee responded with questions about Mr. Parsons’s lifting restrictions. Mr. Parsons described the lifting restrictions and asserted that he was able nonetheless to sell tires. Mr. McGee told Mr. Parsons that he had no work for him at that time but that he would have “Esther in HR” give him a call.2 Mr. Parsons testified that this text conversation with Mr. McGee took place in the Fall of 2018 and was the last communication he received from Monro. Mr. Parsons testified that he later phoned Mr. Irving to ask if he had heard anything about the company’s intentions. Mr. Irving responded that he had no news but that he wished Monro would bring Mr. Parsons back immediately. Mr. Parsons reasonably believed that he was fully capable of carrying out the primary duty of his job: selling commercial tires. Mr. Parsons testified that he could have fully performed every aspect of the job, including loading heavy tires, if he had been given the accommodation of a lift-gate on his truck. A lift-gate is a device that can raise and lower items from ground level to the level of the truck bed. It would have had the effect of allowing Mr. Parsons to roll the commercial tires, the lightest of which weighs over 2 At the hearing, it was acknowledged that “Esther in HR” was Esther Neal, who acted as Respondent’s corporate representative. 120 pounds, onto the lift-gate rather than having to hoist them up and into the truck. Mr. Parsons testified that he discussed the possibility of a lift-gate with Mr. McGee but nothing came of their talk. Mr. Parsons testified that he would have been willing to install the lift-gate at his own expense had McGee Tire shown interest. He stated that a lift-gate costs between $1,600 and $2,000. Mr. Parsons testified that he very much wanted to return to work, having gone from making $10,000 per month to receiving workers’ compensation payments of $925 per week. He testified that he has had several opportunities to work for competitors of McGee Tire, but was stopped by the non-compete clause in the Asset Purchase Agreement with Monro. Mr. Parsons ultimately agreed to a workers’ compensation settlement of $40,000 with Monro. He testified that by the time of the settlement offer, he was in desperate financial straits and had little choice but to accept. As part of the agreement, Mr. Parsons signed a letter of resignation from McGee Tire. Mr. Parsons believed that he had been constructively discharged well before he signed the letter of resignation. Mr. Irving testified that he worked for five years at McGee Tire’s Dundee, Florida, location before moving to the Cantonment store on July 15, 2017. When Mr. Irving started at Cantonment, Mr. Parsons was the outside salesperson. Mr. Irving described the outside salesperson as the “billboard” of the company, responsible for building relationships and developing customers in the community. According to Mr. Irving, the outside salesperson makes or breaks the store. Without a good outside salesperson, “nobody knows you exist.” Mr. Irving testified that Mr. Parsons was highly effective in his job. Mr. Parsons had extensive relationships in the community. He could pick up the phone and turn a $2,000 day into an $8,000 day. Mr. Parsons was a team player, doing whatever needed to be done and asking Mr. Irving where he needed help. Mr. Irving testified that he never had any problems with Mr. Parsons. Mr. Irving’s recollection of Mr. Parsons’s injury and consequent events was consistent with Mr. Parsons’s testimony. Mr. Irving testified that for a time after his injury, Mr. Parsons continued to work from his home. Mr. Parsons was unable to endure driving to customers in Alabama, but he was able to cover the Pensacola area. Once Mr. Parsons began receiving workers’ compensation payments, he was no longer allowed to work for McGee Tire. Mr. Irving testified that Mr. Parsons’s workers’ compensation case was being handled from Monro’s corporate office in New York, and that the local McGee Tire store was in the dark as to when or if Mr. Parsons would be cleared to return to work. Mr. Irving testified that even when Mr. Parsons was on workers’ compensation and not being paid a salary, he continued to funnel business to McGee Tire. Mr. Irving remembered that Mr. Parsons handed McGee Tire a $79,000 sale by Esfeller Construction at a time he was not working and stood to receive no compensation for the referral.3 Mr. Irving testified that Monro made the decision to hire someone else for the outside sales position in about March 2018.4 Monro hired Scott Rainy. Mr. Irving testified that Mr. Rainy could not compare to Mr. Parsons in terms of knowledge about the merchandise and of the Pensacola area. People would come into the store and ask where Mr. Parsons was. Mr. Irving stated that “people buy from people,” and McGee Tire was losing business because Mr. Parsons was not there to take care of his customers. According to Mr. Irving, Mr. Rainy lasted in the job only until July 2018. 3 Mr. Parsons testified that Esther Neal was aware that he was working while receiving workers’ compensation and told him to stop. 4 Mr. Irving’s recollection as to the date cannot be correct, because Mr. Parsons was not injured until March 9, 2018. Based on context, it is assumed that the hiring decision was made in April or May of 2018. In November 2018, Monro hired Tyler Thompson to replace Mr. Rainy. Mr. Irving testified that Mr. Thompson has done a better job but still does not measure up to Mr. Parsons as a salesperson. Mr. Irving stated that Mr. Parsons is “gold” and Mr. Thompson is “silver” in terms of sales. As of the hearing date, Mr. Thompson was still working at McGee Tire. Mr. Irving testified that no one from Monro consulted him as to any accommodations that could be made to allow Mr. Parsons to return to work. Mr. Irving specifically suggested to the company that tire technicians could be used to help Mr. Parsons load and unload tires, but he received no feedback on his suggestion. Mr. Irving believed that Mr. Parsons was a “rainmaker.” His ability to sell tires was far more important than his ability to physically deliver them. Other staff persons could help Mr. Parsons with the deliveries. Mr. Irving testified that he would have liked to have Mr. Parsons back in the sales job. Mr. Thompson testified that he has worked for McGee Tire off and on for four years. He was originally hired by Mr. Parsons at Florida Tire Service as a “tire technician,” i.e., the employee who performs the manual labor of changing and repairing tires and going out on road service calls. When Monro purchased Florida Tire Service, Mr. Thompson went with Mr. Parsons to McGee Tire. Mr. Thompson testified that Mr. Parsons insisted Mr. Thompson be part of the package when Monro bought the company because Mr. Parsons knew that he could not afford to lose his job. Mr. Thompson had quit his job at McGee Tire and was working in marine construction when he was contacted by McGee Tire’s general manager Peter Brown in November 2018 and offered the tire sales position. Mr. Thompson testified it was his understanding that he was coming in to take Mr. Parsons’s old job. Mr. Thompson was 29 years old at the time he accepted the sales position. He agreed to a salary of less than $50,000. Mr. Thompson testified that he never heard any discussions about bringing Mr. Parsons back to work. He had the impression that Mr. Parsons was not coming back. Mr. Thompson was friendly with Mr. Parsons. They sometimes went hunting together. Mr. Thompson testified that he knew Mr. Parsons wanted to come back to McGee Tire. He recalled Mr. Parsons telling him that McGee Tire would not let him come back to work because of his injury. Mr. Thompson testified that he normally comes in to work at 7:30 a.m., and does paperwork for about an hour. From about 8:30 a.m. until 3:30 p.m., he is on the road. He drives to customers’ businesses, looks over their fleets and assesses their needs. Mr. Thompson stated that most businesses are beginning to wind up their day by 3:30 p.m. and do not want a salesperson “in their face” when they are trying to go home. He finishes up his day at the office. Mr. Thompson testified that while his position mostly involves sales, it can also be a physical job. Sometimes he must carry tires, load them on a trailer, drive them to the customer, then unload them at the customer’s place of business. Mr. Thompson testified that he was injured on the job about three months prior to the hearing date. He loaded about 30 commercial tires weighing roughly 100 pounds each into his truck and made the two hour drive to the customer’s location. He dropped off the tires and drove back to McGee Tire to close out the work day. He drove home. When he stepped out of his truck, his back “just kind of took me to my knees.” His physician prescribed anti-inflammatories and placed him on a five-pound lifting restriction. McGee Tire gave him the option of sitting at his desk rather than driving his truck because driving increased his back pain. Mr. Thompson testified that he tried working from his desk for a couple of days but decided there was money to be made on the road selling tires and went back out. Mr. Thompson testified that Mr. Brown directed the tire technicians to help him load and unload tires while he convalesced. His back improved over the course of two months. Mr. Thompson testified that his lifting restriction had recently been raised from five to 15 pounds. Mr. Thompson confirmed that Mr. Parsons had given him the lead that helped him make a large sale to Esfeller Construction, around 280 tires at $300 per tire. Mr. Thompson also confirmed that Mr. Parsons received nothing for helping with that sale. Anita McGuinness, Monro’s Director of Commercial Operations, testified on behalf of her employer. Ms. McGuiness testified that she was hired to consolidate the operations of three recently acquired tire companies, including McGee Tire, into one streamlined, profitable entity. Ms. McGuiness testified at some length about the reorganization she oversaw in 2018, but little of her testimony was directly relevant to the issues raised by Mr. Parsons. She made a point of stating that a salesperson has no supervisory authority over tire technicians, presumably as a way of stating that someone in Mr. Parsons’s position could not order a tire technician to help him load tires into his truck. This statement fails to acknowledge that the actual supervisor, Tory Irving, was perfectly willing to order the tire technicians to assist Mr. Parsons if the company would agree to bring him back to work. The statement also fails to acknowledge that tire technicians in fact assisted Mr. Thompson when he injured his back. Mr. Thompson testified that his supervisors have told him that he is above the tire technicians in the chain of command and has the authority to direct them when something needs to be done. He characterized the McGee Tire workforce as a “team” and stated that no one has ever refused to help him load tires. Ms. McGuiness testified that the main difference between Mr. Parsons and Mr. Thompson was that the former was “an ex-owner.” She stated that Mr. Parsons’s main job was to keep the store profitable during the transition to Monro, while Mr. Thompson’s job was to sell tires and generate new business. While it is true that Mr. Parsons spent the first several months of the transition finding and equipping the new McGee Tire location, the evidence was clear that this transition had more or less been accomplished by the time Mr. Irving came to work at the Cantonment location in July 2017. Mr. Irving’s undisputed testimony was that Mr. Parsons worked primarily as a salesperson. Mr. Irving wanted to bring Mr. Parsons back to sell tires. Mr. Thompson, hired as a tire salesperson, explicitly understood himself to be taking over Mr. Parsons’s position. Ms. McGuiness testified that Monro employs salespersons who are over the age of 40. She stated that when the company hires a salesperson, it first looks at sales knowledge and experience, commercial knowledge and experience, industry knowledge and experience, and whether the person lives in the area to be served. She did not explain how these criteria would favor Mr. Thompson over Mr. Parsons. Mr. Parsons testified that he pursued every avenue available to try and return to work for McGee Tire, but the company’s actions made it clear that “stronger, younger, and less money is what they were after.” Based on the facts adduced at hearing, Mr. Parsons’s conclusion is persuasive. The evidence presented by McGee Tire offered little more than testimony that the company employs other sales representatives over 40 years old. No effort was made to directly rebut the prima facie showing that Mr. Parsons was let go because of his age and disability. McGee Tire never offered a coherent explanation for Mr. Parsons’s dismissal, aside from a weak assertion that he “resigned” as part of a much later workers’ compensation settlement. Mr. Parsons convincingly testified as to the desperate financial circumstances, caused by McGee Tire, which led him to accept the settlement. The greater weight of the evidence is that Mr. Parsons had been constructively discharged by McGee Tire well before he signed the resignation letter. McGee Tire offered no explanation for why it accommodated Mr. Thompson when he was injured on the job, allowing him to spend more time in the office and directing tire technicians to load his tires, but could not offer the same accommodations to Mr. Parsons. McGee Tire offered no explanation for why it did not act on Mr. Parsons’s suggestion that a lift-gate be installed on his truck. Ms. McGuinness testified that the company uses lift-gates. She stated that any budget request for a lift-gate would come through her office. Nothing in her records indicated that the question of a lift-gate for Mr. Parsons ever reached her level in the corporation. Ms. McGuiness attempted to show that Mr. Thompson was not a proper comparator to Mr. Parsons. Her attempt was refuted by Mr. Irving’s testimony that Mr. Thompson was doing the same sales job as Mr. Parsons, and by Mr. Thompson’s testimony that from the outset he understood himself to be taking Mr. Parsons’s position. It is found that Mr. Parsons and Mr. Thompson were engaged in the same job, selling commercial tires for McGee Tire. McGee Tire offered no non-discriminatory business reason for failing to bring Mr. Parsons back to work after his injury. The evidence adduced at the hearing leads ineluctably to the finding that McGee Tire constructively discharged Mr. Parsons and then hired a younger person willing to do the same job for a lower salary. The evidence further established that McGee Tire treated Mr. Parsons as unable to perform his job duties due to his back injury, yet made accommodations for Mr. Thompson when he suffered a similar back injury. McGee Tire offered no explanation for its disparate treatment of the two employees or its failure to act on Mr. Parsons’s reasonable request for a lift- gate to be installed on his truck.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue an interlocutory order finding that Monro d/b/a McGee Tire & Auto committed an act of unlawful age discrimination against Petitioner, Jeff B. Parsons. It is further recommended that the Florida Commission on Human Relations remand this case to the Division of Administrative Hearings for an evidentiary proceeding to establish the amount of back pay/lost wages owed to Petitioner and to determine the amount of costs, including attorney’s fees, owed to Petitioner. DONE AND ENTERED this 2nd day of March, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Ryan M. Barnett, Esquire Whibbs and Stone, P.A. Unit C 801 West Romana Street Pensacola, Florida 32502 (eServed) Esther J. Neal Monro d/b/a McGee Tire & Auto The Tire Circle 200 Holleder Parkway Rochester, New York 14615 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Petitioner was employed by the Department of Transportation as a Highway Maintenance Technician Supervisor working out of Brooksville, Florida. He had been so employed by the Department of Transportation for some 5-7 years. As Maintenance Supervisor, Petitioner's job description required him to be a working supervisor, working along with his crew maintaining the roads, bridges, and rights-of-way on the state highway system. This involved heavy lifting, pulling and pushing. In January, 1989, Petitioner injured his back chopping firewood at his home and remained off duty until he was terminated on May 4, 1989. Petitioner was under the care of Dr. McBath, D. O. for this injury. Dr. McBath referred the Petitioner to Dr. Sutterlin, M. D., an orthopedic surgeon, who, following an examination on March 24, 1989, pronounced Petitioner capable of returning to unrestricted activity. Petitioner still contended that his back was bothering him and that he could not do the pushing, pulling and heavy lifting required of his job and requested assignment to a job where heavy lifting work was not required. At this time there were no vacancies in the Department of Transportation for the type of work sought by Petitioner. The report from Dr. Sutterlin was not presented to D.O.T. by Petitioner although Petitioner had a copy of that report at his predetermination hearing on May 4, 1989. At this predetermination hearing Petitioner contended that he was able to return to work but did not present medical evidence to this effect. Although the doctors pronounced Petitioner capable of returning to unrestricted activity they could not guarantee he would not have further back problems after returning to unrestricted activity. Petitioner contends that he was fit for duty and wanted to go back to work but his supervisor would not let him because they felt he was a high-risk due to his back problems.
Recommendation It is recommended that the complaint of Barry DeLong that he was discriminated against in employment by reason of physical handicap be dismissed. ENTERED this 4th day of June, 1991, in Tallahassee, Florida. K. N. AYERS 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 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER Proposed findings submitted by Respondent are accepted except for findings 8 and 10 insofar as these proposed findings are inconsistent with the Hearing Officers findings that DeLong never presented Dr. Sutterlin's report to the Department until after he had been dismissed. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 John R. Council, Esquire 306 South Fifth Street Dade City, Florida 33525 Charles G. Gardner, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570
Findings Of Fact A’Mayah Whatley was born on May 20, 2016, at St. Petersburg General Hospital in St. Petersburg, Florida. She was a single gestation. NICA attached to its motion a certification of medical records signed by the Custodian of Records from St. Petersburg General Hospital, and a one-page discharge record for A’Mayah. The medical record shows that A’Mayah’s birth weight was less than 2,500 grams. A review of the file reveals that no contrary evidence was presented to dispute the medical record from St. Petersburg General Hospital showing that A’Mayah’s birth weight was less than 2,500 grams.
The Issue The issue presented for decision herein involves the question of whether or not the name Fail Safe Brake Corporation was unlawfully granted to another corporation, Fail Safe Brake Corporation (Charter No. F57699)
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein including the written response filed by Respondent, Division of Corporations, I hereby make the following relevant findings of fact. Petitioner, Fail Safe Brake Corporation, is an ongoing research corporation which has been in existence in Excess of twelve years. On January 5, 1971, Respondent, Division of Corporations, issued Charter Number 375039 to Petitioner permitting the use of the corporate name Fail Safe Brake Corporation in reliance on Chapter 607, Florida Statutes, as amended. On December 8, 1980, Fail Safe Brake Corporation, Charter Number 375039, (Petitioner) was involuntarily dissolved by the Respondent, Division of Corporations, for not filing its 1980 annual report. On December 9, 1981, Respondent, Division of Corporations, issued Charter Number F57699 to Respondent, Fail Safe Brake Corporation, permitting the use of the corporate name by Respondent in reliance on Chapter 607, Florida Statutes. On February 3, 1982, petitioner, Fail Safe Brake Corporation, Charter Number 375039, was reinstated by Respondent, Division of Corporations. On November 10, 1983, Petitioner, Fail Safe Brake Corporation, was again involuntarily dissolved by the Respondent, Division of Corporations, for failure to file its 1983 annual report. On March 5, 1984, Respondent, Division of Corporations, reinstated Petitioner's name, Fail Safe Brake Corporation, Charter Number 375039, in order that this administrative proceeding herein could be held to determine whether the Petitioner has common law rights to the name. Harry L. Whitmer, Jr., Petitioner's Vice-President and Director, is also a director and officer of Fail Safe Industries, Inc. While attending an officer's and director's meeting of Wail Safe Industries, Inc., Whitmer learned from Stanley "that Wise intended to "create as much trouble for Fontaine as he could" as relates to Petitioner, Fail Safe Brake Corporation. He also learned that Wise's wife, Carol Wise, had been in touch with Respondent, Division of Corporations, and learned that Petitioner had not filed its 1983 annual report. In this regard, Fontaine was a shareholder of petitioner, Fail Safe Brake Corporation. Petitioner is the holder of various patents and licensing agreements for an automatic safety brake device to be used on public service and private vehicles. Presently, there are ongoing contractual negotiations between Petitioner and the Armed Services, Rockwell International Corporation, the Department of Transportation, the National Highway Traffic Safety Administration, the United Kingdom (Britain) and the United States Post Office headquarters in Washington. Evidence reveals that the Respondent corporation accepted a $5,000 check from Miami corporation thinking that it was dealing with the Petitioner and that another $7,500 check had gone to Fail Safe Industries thinking that the check was being transmitted or otherwise transferred to Petitioner. As best as can be determined from this record, Respondent, Fail Safe Brake Corporation, has not engaged in any corporate activity. Additionally, other corporations and federal agencies have dealt with Respondent thinking that it was dealing with Petitioner. (Testimony of William Fontaine.)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent, Division of Corporations, enter a Final Order withdrawing its issuance of Charter No. F57699 to Respondent, Fail Safe Brake Corporation, and order it to cease and desist further usage of the corporate name, Fail Safe Brake Corporation. RECOMMENDED this 16th day of August, 1984, in Tallahassee, Florida JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 438-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1984. COPIES FURNISHED: William Fontaine, President Fail Safe Brake Corporation 11602 NW 26 Street Coral Springs, FL 33065 Harry L. Whitmer, Jr. 1160 Hillsboro Beach Blvd., 606 Hillsboro Beach, FL 33062 Carole J. Barice, Esquire General Counsel Department of State The Capitol Tallahassee, FL 32301 John McCracken, Esquire Fail Safe Brake Corporation P.O. Drawer E West Palm Beach, FL 33402 George Firestone Secretary Department of State The Capitol Tallahassee, FL 32301
Findings Of Fact On March 26, 1991, petitioner's safety officer, David Pearce, stopped a commercial vehicle operated by respondent on State Road 7 in Palm Beach County, Florida, for inspection. Such stop was predicated upon the officer's well- founded belief that the weight of the vehicle exceeded legal limits. The subject vehicle had four axles, with the rear axles in tandem. The officer weighed the vehicle by axle, and the rear tandem axles weighed 49,400 pounds. The legal weight for the tandem axles was 44,000 pounds, as provided by Sections 316.535 and 316.545, Florida Statutes. 1/ Accordingly, the axle weight of the subject vehicle was 5,400 pounds over the legal limit. A penalty in the amount of $10.00 for the first 1,000 pounds and 5 cents per pound for each additional pound overweight was assessed against respondent. The total assessed penalty was $230.00.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered sustaining the penalty of $230.00 assessed against respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of February 1992. WILLIAM J. KENDRICK 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 25th day of February 1992.