Findings Of Fact Respondent Larry Nathan Booker is presently employed as an office manager for an insurance agent in Jay, Florida. At all times pertinent to this proceeding, he has been licensed by Petitioner as an Ordinary Life including Health agent (Testimony of Respondent, Stipulation). On June 21, 1985, in Case No. 85-00077 in The United States District Court for the Southern District of Alabama, Respondent pleaded guilty and was found guilty to a violation of 18 United States Code, Section 656, as charged in Count One of the information. Count One of the information contained the following allegations: At all times material to this information Larry N. Booker, served in the capacity of manager of the Flomaton Branch, United Bank of Atmore, Flomaton, Alabama. At all times material to this information, the deposits of the United Bank of Atmore were insured by the Federal Deposit Insurance Corporation - charter number 0058-2 dated December 23, 1969. At all times material to this information, Larry N. Booker had open a personal checking account number 02111607 with the United Bank of Atmore. At all times material to this information, Ronald E. Watkins was doing Business as Watkins Cars-Trucks, 726 Highway 90-West, Milton, Florida and Ronald E. Watkins had open a checking account with the United Bank of Atmore. On or about the 17th day of December, 1982, Larry N. Booker, the then manager of the Flomaton Branch, United Bank of Atmore, with the intent to injure and defraud the United Bank of Atmore did knowingly and willfully misapply $2,333.33 of the funds of the United Bank of Atmore. Larry N. Booker did knowingly and wilfully misapply the $2,333.33 by crediting his personal account with a debit from the account of Watkins Cars-Trucks, at the time of debit the Watkins Cars-Trucks account was in an overdrawn status and Larry N. Booker knew that the Watkins Cars-Trucks account was in an overdrawn status; all in violation of 18 United States Code, Section 656. Respondent was placed on probation for a period of five years, and required to make restitution in the amount of $2,333.33, and to pay a personal note that he had with the United Bank of Atmore. (Petitioner's Composite Exhibit 1) In explanation of his conviction, Respondent testified that in order to assist Ronald E. Watkins in keeping his rental business property from being sold by his landlord, Respondent purchased the property in his name with four investors to hold the mortgage to the property. The arrangement was for Watkins to pay Respondent rent on the property and Respondent would subsequently make payment of the rental amount to the investors under a lease-purchase agreement at a monthly payment of $2,333.33. The payment was made on an automatic debit from Watkins' bank account to Respondent's bank account. Respondent further testified that the overdraft occurred due to the fact that Watkins came into the bank between 1:30 and 2:00 p.m., paid off some of his floor plan loans to tellers, and then went directly to Respondent's assistant to work up new additional floor plan loans to offset the checks that he had just given. However, by the time the loans were prepared and signed, it was after 2:00 p.m., which was the cut-off time for bookkeeping transactions. Therefore, the overdraft in question occurred even though it was automatically covered the next day. Respondent testified that such overdrafts are a common occurrence in the banking system and that, at no time did he have an intent to defraud the bank, nor did it lose any money as a result of the overdraft. (Testimony of Respondent)
The Issue Whether the Respondent discriminated against Petitioner in her employment based on her gender or race in violation of Section 760.10, Florida Statutes?
Findings Of Fact Janet Cartwright is a white female who formerly worked at the Department of Revenue (DOR or the Department) as a tax auditor. Ms. Cartwright began employment with the Department of Revenue May 1, 2000, as a tax auditor at the Atlanta Service Center. During her employment with DOR, she had four supervisors: Emmanuel Minta, Ron Lee-Owen, Glynn Walters and Evonne Jones Schultz. The function of a tax auditor is to audit all pertinent books and records of taxpayers assigned to them. Auditors are required to maintain a working knowledge of the taxes within their area of responsibility; to travel to the site of the taxpayer's books to perform their audit duties; to review all records during an audit for potential non-compliance with Florida tax statutes; to gather pertinent tax records to support their findings; and to prepare supporting work papers. Ms. Cartwright went on medical leave in September 2003 and did not return to work. On January 2, 2004, she notified her supervisor that she would be applying for early retirement based on a disability, and requested that her medical leave without pay status be extended until her retirement date was established. On or about March 29, 2004, her request for disability retirement benefits was denied. On April 19, 2004, a recommendation was made to terminate her employment based on Petitioner's inability to perform her duties. On July 13, 2004, Petitioner was advised by certified letter that the Department was proposing to terminate her from the position as Tax Auditor II, effective August 31, 2004. Ms. Cartwright acknowledged receiving the July 13, 2004, letter. The July 13, 2004, letter stated: You began employment with the Department of Revenue effective May 1, 2000, as a Tax Auditor I, and on July 12, 2000, you were promoted to a TA II position. You are currently a TA II, which is a field audit position that requires the auditor to independently travel to the taxpayer's location to audit the company's information for Florida taxes. You have been on Leave Without Pay (LWOP) status since September 18, 2003. Further, in a letter dated September 29, 2003, from your physician, Dr. Daniel Goodman, M.D., he indicates that due to your medical condition of narcolepsy, cataplexy and sleep apnea, you are chronically exhausted and always at a risk of falling asleep at any time and have difficulty operating a car at all times. Additionally, Dr. Goodman recommended that you look into getting long-term disability. On January 2, 2004, you provided a letter to your supervisor, Eve Jones, Process Group Manager, requesting that your LWOP status be extended until your retirement benefits are established. However, on March 29, 2004, you were denied disability benefits. The July 13, 2004 letter identified the disciplinary standard upon which the Department relied and the documents considered by the Department in making its decision. It concluded: Your continuing inability to perform your duties has caused not only a concern for your well being, but has also imposed a hardship on the other staff that have had to handle your job duties and responsibilities in addition to their regular duties. Your Program Director and I agree that because of your continuing inability to perform the duties of your position, with no indication of when you might be able to begin performing your normal work duties, dismissal for inability to perform assigned job duties [is] the only appropriate action in your case. No evidence was presented that Ms. Cartwright's termination was based upon her race or gender. The letter contained a notification of Petitioner's right to appeal the action to the Public Employees Relations Commission or to file a grievance pursuant to Section 447.401, Florida Statutes. Ms. Cartwright did not pursue either remedy. Instead she continued to pursue approval of her request for disability retirement, which was successful. On August 30, 2004, the day before her termination would be effective, she faxed to the Department a letter which stated: Last week I received the "Order of Remand," the final document necessary to process my disability retirement effective September 1, 2004. Therefore, after what was an extraordinary amount of time to apply for, and be approved for, disability retirement, I will be terminating employment as a Tax Auditor II effective August 31, 2004. I thank the Department for allowing me to remain on a leave of absence without pay during this process. On August 30, 2005, she filed a complaint against the Department with the Florida Commission on Human Relations alleging racial and gender discrimination. Ms. Cartwright claimed that she was denied training essential to her position; that she was denied a flex schedule; that she was asked to perform clerical and janitorial duties not required of her male counterparts; and that she was not allowed to drive her own car to field audit locations. The more credible evidence indicates that Ms. Cartwright received formal training in Tallahassee a few months after she was hired, received computer based training and on-the-job training. No credible evidence was received that other similarly situated employees received training denied to Ms. Cartwright. Her claim that she was denied training involved events occurring before she began medical leave without pay, well over a year before she filed her complaint with the Commission. Ms. Cartwright claimed that she was denied a flex time schedule. To the contrary, while there was a delay in approval of flex time during part of her tenure, Ms. Cartwright was approved for flex time schedules on May 2, 2000 (the day after beginning work with the Department) and on August 13, 2002. Ms. Cartwright admitted that the issue regarding flex time was resolved over three years before she filed her complaint with the Florida Commission on Human Relations. Ms. Cartwright, along with other members of the staff, was asked to perform clerical duties when the office was short- handed. Ms. Cartwright did not identify any person on the staff who was not asked to perform such functions. Likewise, members of the staff were asked to take shifts on a volunteer basis with respect to "coffee duty." Ms. Cartwright claimed that she was asked to clean out the refrigerator, but did not testify when this request was made. As she did not return to work after September 18, 2003, it would have been well over a year before she filed her complaint with the Florida Commission on Human Relations August 30, 2005. Finally, Ms. Cartwright claimed that she was not allowed to drive her own car to field audits. The more credible evidence indicates that Ms. Cartwright was never prohibited from driving her own car, but that office policy provided that when more than one auditor went to an audit location, only the senior auditor would be paid for mileage when using a personally owned vehicle. Ms. Cartwright did not identify any other employee who was not a senior auditor who was paid mileage when accompanying a senior auditor in the field. Moreover, the trips for which mileage was not approved occurred during the period covering September through December 2002. These trips occurred well over two years before Ms. Cartwright filed her complaint with the Commission on Human Relations. The issues raised in her complaint, i.e., lack of training, denial of flex schedule, performance of clerical or janitorial duties and not being compensated for driving her own car, are separate incidents and do not constitute a continuing violation tied to her proposed termination. All of the incidents identified in her complaint, including the proposed termination, occurred more than 365 days before Petitioner filed her complaint with the Commission on Human Relations.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of January, 2007, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 2nd day of January, 2007.
