Findings Of Fact By its Invitation to Bid, RFP #84-012-PS, Respondent sought proposals for the production of public service announcements for statewide distribution for both television and radio broadcast. The Invitation to Bid contained five criteria for evaluating proposals. Four of these were "narrative" criteria worth a maximum of 25 points per category. The fifth category, price, was worth a maximum of 50 points. The dispute in this case concerns Respondent's interpretation of the narrative criteria contained in paragraph X, A., 1 which was used to evaluate: [t]he experience and evident capa- bility of the offeror to perform the work required including the background of the offeror's organi- zation. In response to the Invitation to Bid, Cowles and Petitioner submitted proposals for consideration by Respondent. In response to the narrative criteria requirement contained in paragraph X, A., 1, quoted above, Cowles submitted the following: Bill Cowles was for more than fifteen years employed in the radio and tele- vision industries in Ohio and Florida. For many of those years he was actively in charge of the production and direction of hundreds of public service announce- ments, commercials and news and public affairs programs. For an additional eight years while engaged in political campaigns and the direction of the Republican Party of Florida, he was responsible for innumer- able commercials (all media) for individual candidates, party promotions, get-out-the- vote campaigns, etc. For the past five years, as co-owner of his own business, he has worked closely with many state agencies in a variety of communication related situations. During all these years, the offeror assembled many "teams" of talent representing all the disciplines required in order to most effec- tively complete the task at hand In preparation for the project outlined in this RFP, Cowles has used his vast knowledge and experience to bring together a "team" that is particularly qualified. Working with him to successfully complete the requirements of the RFP will be a staff of experts who will be directed by Cowles and the following professionals: Roy Nilson who is the President/Owner of WRENPRO Corporation has spent his entire career in the electronic media. He has held positions as Program Director, Producer, Operations Manager and Executive Producer of radio and television stations in Minnesota, New Mexico and Tampa-St. Petersburg. He formed WRENPRO, a consulting and production company, in 1971. Nilson is credited with the innovation of the "do-nut" and "pretzel" commercials that are now commonplace in the industry. He has served as consultant to over 100 radio and television stations; written several books on electronic media contests, history and radio auto- mation and has produced and syndicated radio programs and contests. His pro- duction of OPUS, an annual review of the top records of the year, is aired on more than 300 stations. OPUS has been the recipient of two BILLBOARD "Silver Mikes". The public service announcements, com- mercials and programs produced by Nilson number in the thousands. The creativity of Cowles and Nilson will be augmented by the technical expertise of: Dan Lunin who is currently the General Manager of WRENPRO and is also the Production Engineer of Production Associ- ates of Tampa. Lunin in the cast twenty-five years has served as Production Engineer, Channel 40, Sarasota; Production and Chief Engineer, Channel 28, Tampa; Chief and Production Engineer, WLCY AM & FM, Tampa-St. Petersburg and General Manager of TV-9 (Group W), Tampa-St. Petersburg. Mr. Lunin will be in charge of the technical direction of the tasks to be performed at the studios of WRENPRO (radio) and Pro- duction Associates (television) Petitioner contends that the information quoted above from Cowles' proposal was not responsive to the narrative criterion in that Cowles submitted no evidence to show that he had entered into any joint venture agreement or contractual relationship with the associates named in the proposal. Petitioner contends further that Cowles' proposal should have been evaluated on his individual qualifications, and that no consideration should have been given to the background, experience, and capabilities of Messrs. Nilson and Lunin since they were neither employed by nor under contract with Cowles. Petitioner also contends that the inclusion of the experience and qualifications of Messrs. Nilson and Lunin was misleading in that they were not actually "offerors" on the proposal, but were instead only independent contractors who were to be utilized by Cowles. Finally, Petitioner contends that the inclusion of the qualifications and experience of Nilson and Lunin resulted in the award of higher point totals under narrative criteria X, A., 1 than would have been awarded had Cowles been measured on his individual qualifications. The gist of Petitioner's objection to Cowles' proposal is that Cowles does not own a production company, but instead proposes to produce the public service announcements to be furnished to Respondent with associates who are in essence independent contractors. There is, however, no requirement in the Invitation to Bid that the public service announcements be produced by means of an inhouse production company. The means by which the announcements are to be produced is left to the discretion of the offeror, so long as he can demonstrate, in accordance with the terms of the Invitation to Bid, "experience and evident capabilities" to perform the work. In fact, the narrative criteria at issue in this proceeding clearly require a demonstration of "experience and evident capability" to perform the work of both the "offeror" and the "offeror's organization." In this regard, Cowles' response to this narrative criteria, as outlined above, was clearly responsive to the provisions of the Invitation to Bid. Further, nothing in Cowles' response could be misleading, since there is no representation that Messrs. Nilson and Lunin are anything other than independent contractors who would be utilized by Cowles in the production of public service announcements. Cowles has extensive experience in the radio and television industry. In addition, he has produced radio and television announcements and commercials while employed by the Florida Republican Party. There are no facts of record in this proceeding from which it can be concluded that Cowles is either unqualified to perform the work required in the Invitation to Bid, or that he is unable for any reason to successfully produce the work called for in that document. In fact, this record supports the conclusion that Cowles has the requisite experience and evident capability to perform the required work, and that he has, in fact, successfully completed similar projects for other state agencies in the recent past. Finally, Petitioner's contention that Cowles was awarded more points on narrative criteria X, A., 1 than would otherwise have been the case had the qualifications of Messrs. Nilson and Lunin been omitted from his proposal, is without merit in that the record in this proceeding contains no evidence of the points actually awarded to either Cowles or Petitioner in the bid evaluation process. Even had Cowles' proposal been determined in this proceeding to have been unresponsive, there are insufficient facts of record in this cause from which any recommendation could have been made to award the contract to Petitioner. Although the petition alleged that Petitioner was the second lowest bidder, there are no facts of record to substantiate that allegation. In fact, there is no evidence of record in this cause regarding the "cost" portion of the bid submitted by Cowles or Petitioner, which would allow a comparison of those proposals to those of any of the other bidders.
The Issue The issue is whether Petitioner should be granted an exemption from disqualification to work in a position of trust or responsibility in a direct care position pursuant to Section 435.07(3), Florida Statutes.
Findings Of Fact Petitioner is a single mother of five children, including two sets of twins. She is twenty-nine years old and has a tenth-grade high school education. On July 26, 1995, Petitioner drove a car into a Walmart parking lot in Leon County, Florida, and parked illegally directly in front of the store. Petitioner was operating the car while her driving privileges were suspended. After parking the car, Petitioner left her five children unsupervised in the car while she went into Walmart to exchange a shirt. At that time, the older twins were six years old, one child was four years old, and the younger twins were three years old. When Petitioner went into the store, she removed the key from the ignition and left the windows down. The temperature was 93 degrees. Petitioner was in the store for approximately ten minutes. Upon Petitioner's return to the car, a policeman arrested her for the second-degree misdemeanor offense of "negligent treatment of children" under Section 827.05, Florida Statutes (1993). 1/ The children were not harmed as a result of being left unattended in the car. They were never removed from Petitioner's custody. After her arrest, Petitioner and her children were picked up and taken home by a relative. In September 1995, Petitioner pled nolo contendere to the charge of "negligent treatment of children." The County Judge of Leon County accepted Petitioner's plea, withheld adjudication of guilt, and ordered that Petitioner be placed on probation for six months. One of the conditions of Petitioner's probation was that she attend parenting class. On February 28, 1996, Petitioner was charged with violating her probation related to the charge of "negligent treatment of children." Specifically, she had not provided proof that she had attended the parenting class. Additionally, she had not paid a $100 probation supervision fee or a $150 court fine. Petitioner violated her probation because she did not have funds to pay for the parenting class or the required fee and fine. At the violation of probation hearing on May 10, 1996, Petitioner presented proof that she had attended the parenting class. The County Judge of Leon County terminated Petitioner's probation in open court. On March 5, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County convicted and adjudicated Petitioner guilty of this offense on March 25, 1998. On September 7, 1998, Petitioner was charged in Leon County, Florida, with the traffic offense of driving with suspended driving privileges. The County Judge of Leon County withheld adjudication of guilt for this offense on October 7, 1998. Petitioner has worked as a dietary aide at Tallahassee Convalescent Home (TCH) for four years. In 1998, she applied for a position with TCH as a certified nurse assistant, a direct care position. The application included Petitioner's request for a Florida Abuse Hotline Information System Background Check. A member of Respondent's staff completed the background check on September 23, 1998, finding no confirmed report of abuse or neglect. On April 16, 1999, Petitioner signed a sworn Affidavit of Good Moral Character as part of the application process to secure a direct care position with Tallahassee Developmental Center. By signing the affidavit, Petitioner swore that she had not been found guilty or entered a plea of guilty or nolo contendere, regardless of the adjudication, to a number of offenses, including "negligent treatment of children." This affirmation was false. Petitioner's testimony that she forgot her plea of nolo contendere and subsequent conviction for "negligent treatment of children" or that she never knew the exact nature of her crime is not persuasive. In April 1999, Petitioner was charged with violating her probation related to one of her offenses for "driving while privileges suspended" in Leon County, Florida. Petitioner violated her probation because she did not have funds to pay her traffic fines. Petitioner subsequently entered the Florida Traffic Assistance Program. She completed a corrective driving class on August 14, 1999. The Department of Motor Vehicles issued Petitioner her first driver's license on August 31, 1999. Since October 1999, Petitioner has paid $50 per month on her outstanding traffic fines. She now owes $453 in traffic fines.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether Petitioner has been the subject of an unlawful employment practice based on her national origin.
Findings Of Fact Petitioner, Sonia V. Fortin, is a white female whose national origin is Tunisian. She has a heavy French or Tunisian accent and at the hearing was very difficult to understand. Ms. Fortin was a Southern Bell employee who had taken an extended leave of absence in 1988 in order to move from Miami to Panama City to care for her ill father. In the Fall of 1989, Ms. Fortin's extended leave of absence ended and she sought employment with Southern Bell in Panama City. Because no positions were available in Panama City, Ms. Fortin applied for and was accepted into a trainee position at the Directory Assistance (DA) operator office in Lake City. Ms. Fortin reported to work for initial training on Monday, October 23, 1989. Assistant manager Patsy Foss only needed one new person in the group of employees she was responsible for overseeing and training. Ms. Fortin was assigned to train with Ms. Foss in Ms. Foss' group. Other new trainees were assigned to other groups at various times depending on what each work group needed. During the three-day training period, the trainee listens to the manager and other experienced operators answer calls, is instructed on the proper method of "keying" in names into the directory computer in order to find the proper telephone numbers, and is given a final evaluation by a manager. In order to become a permanent employee a DA operator was expected to successfully complete a minimum of 90-92% of the calls that the operator handles. Respondent's policy is totally neutral. Ms. Foss met the Petitioner on the first day, introduced herself, and, in an effort to be friendly and out of curiousity, asked the Petitioner about herself, including where she was from. Ms. Foss used the standard Southern Bell training guide for DA operators and taught Ms. Fortin the keying method used for finding customers' numbers, observed Ms. Fortin taking actual requests from customers for directory information, and allowed Ms. Fortin to listen to other operators take calls. However, unlike other new trainees, Ms. Fortin was not able to master the keying method of locating customers and had trouble spelling customers' names even after the customer had spelled the name. In addition, Ms. Fortin was evaluated by Southern Bell Assistant manager Carolyn Land on Thursday, October 26, 1989. Ms. Fortin had an error rate of 20%. On Monday, October 31, 1989, Ms. Foss again guided Ms. Fortin through the training course a second time. Ms. Fortin continued to exhibit the same problems. On Wednesday, November 1, 1989, Manager Comer directed Assistant manager Land to conduct a second evaluation of Ms. Fortin. Ms. Fortin's evaluation resulted in an even higher error rate of 24.1%. Ms. Comer decided to continue the training and on Thursday, November 3, 1989, directed Ms. Foss to conduct a third evaluation. The third evaluation resulted in an error rate of 14%. At no time, did Ms. Fortin meet Southern Bell's standards for continued employment as a DA operator. Manager Comer, after receiving the results of the three evaluations, discussing Ms. Fortin's qualifications in detail with Ms. Land and Ms. Foss, and listening to Ms. Fortin herself, concluded that Ms. Fortin had not successfully completed the initial training for DA operator and instructed Ms. Foss to terminate Ms. Fortin. Ms. Foss informed Ms. Fortin of her termination on November 3, 1989. Ms. Fortin offered no evidence that she was treated differently or that trainees with higher error rates were hired over her. The only evidence that Ms. Fortin pointed to as supporting her charge of discrimination was that Ms. Foss asked her where she was originally from, Ms. Foss gave her what Ms. Fortin perceived to be a dirty look after she responded, Ms. Foss was nasty to her during training and that, upon termination, either Ms. Foss or Ms. Comer made the statement that Ms. Fortin had a language barrier when she was terminated. The evidence clearly showed that Ms. Foss was nasty to everyone regardless of national origin and that Ms. Fortin's difficulties in performing her duties as a DA operator may very well have been related to her inability to communicate with persons not used to her accent and manner of speaking. Neither Ms. Foss' nastiness or the statement about a language barrier were discriminatory. Likewise, none of the evidence Ms. Fortin points to as supporting her charge of discrimination comes close to establishing a prima facie case of discrimination. Therefore, Ms. Fortin's charge of discrimination should be dismissed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Southern Bell's Motion to Dismiss be GRANTED, and that this action be DISMISSED with prejudice. DONE and ENTERED this 10th day of August, 1992, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1992.
