Findings Of Fact On July 1, 1991, the Petitioner filed an application for certification as a MBE. Upon review of the application the Respondent denied the application and notified the Petitioner. The Petitioner subsequently provided additional information; however, the Department's position remained unaltered, and the Petitioner requested a formal hearing in November of 1991. ESTABLISHMENT OF THE APPLICANT BUSINESS Union Trucking, Inc., (Union) was established as a Florida corporation on February 5, 1986. Union is in the business of hauling construction aggregates and construction material in dump trucks. Warren Lee, a Black American, is the President of Union. From February 5, 1986 until April 1, 1991, Union, Warren Lee owned jointly 51% of Union with Denise Willis, an American woman, who owned 49% of Union. Denise Willis was the stepdaughter of M.H. Prichett who is discussed below. In April 1991, Robin Wilson, an Amercian woman, bought Denise Willis' interest in Union. The purchase price was covered by an unsecured note upon which Wilson has made no payments on the principal, and an undetermined amount in interest payments. Robin Wilson is the daughter of M. H. Pritchett, a white male. Currently, Robin Wilson is Secretary/Treasurer of Union, and handles all bidding and financial aspects of the company. FINANCIAL RELATIONSHIPS Startup money for Union was provided by a $4,000 loan from M.H. Pritchett. Conflicting testimony was received as to whom the loan was made, but the application reflects it was a loan to the corporation. Subsequently, Union has borrowed additional money from M.H. Pritchett, as follows: In 1986, $16,862.40 was borrowed from Pritchett at 11.5% interest to purchase a used trailer from Pritchett. In 1989, $12,000 was borrowed from Pritchett at 12.5% interest to purchase another used trailer from Pritchett. Prior to December 31, 1990, $2,000 was borrowed from Pritchett, and was not repaid during the year 1991. While this might have been part of the orginal start up loan, the applicant presented no evidence to indicate this on its financial statement. Prior to December 31, 1990, another $1,000 was borrowed from G.P. Materials, a company owned by M.H. Pritchett. This loan is listed on Union's financial statements for a year, but no evidence was presented that had been repaid. Warren Lee deposits savings from each of his paychecks into the M.H. Pritchett Special Account and receives no interest from his contributions to this account. The bank signature card submitted by Union still contains the signature of Denise Willis who no longer has an interest in the business. COMMON OWNERSHIP Mr. M.H. Pritchett owns all or part of several businesses including Pritchett Trucking, Inc, a trucking firm; Bulldog Trucking, Inc., a truck brokerage firm; Pritchett, Inc., a financing company; and G.P. Materials, a privately owned business. In addition, Mr.Pritchett maintains the M.H. Pritchett Special Account, a personal bank account, from which he loans and receives money from various truckers for purchases and for operating expenses. None of these businesses are certified as MBE's. Wilson is a corporate officer (secretary) of one of the Pritchett corporations, and owns stock in the other companies given to her by her father. Pritchett operates more than 100 tractor-trailer units and a large truck terminal. The terminal sells fuels, tires, and service to truckers in the Lake Butler area. His trucks haul, among other things, construction aggregates. Pritchett has sold and financed trailers and other equipment to various people and firms to include Lee and Union. COMMON EMPLOYEES Immediately prior to starting Union, Warren Lee worked full time for Pritchett Trucking. Union had gross receipts of $214,935.89 in 1990. Warren Lee makes $5.00/ hour driving a truck for Union. This is a take home pay of approximately $16,000/ year. He is not compensated for his work maintaining Union's equipment. Union had corporate earnings in 1991 of $24,000 and most of its gross profits are put back into the business for purchasing capital equipment. The net worth of the company has increased significantly. Gross receipts in 1991 were $479,000, with corporate profits of $24,000. Robin Wilson works full time for Pritchett Trucking, and part time for Union. She receives $425/ month for scheduling trucks and preparing bids and similar financial documents. In doing this, she uses Pritchett office equipment. She does not list her work for Union on her personal resume. Carol Murhee works full time for Pritchett as a bookkeeper, and part time for Union keeping its books. She keeps Union's books at night at her home upon equipment purchased for her by Union. Union employs one other full time driver, Sammie Bullington, who works part time for Bulldog Trucking, Inc., a Pritchett company. A part time driver, Greg Baker, also works for Pritchett Trucking, Inc. COMMON OFFICES AND EQUIPMENT Although Wilson dispatches trucks and prepares bids for Union at Pritchett's, Union does not pay Pritchett for office space or use of the copying machine and facsimile machine. Although Union does pay for the telephone used by Wilson to conduct Union business, it sits on Wilson's desk at Pritchett's office. Union does not reimburse Pritchett for the time which Wilson spends upon Union's business. Lee comes to Pritchett's building to confer with Wilson and to sign bids and contracts. COMMON OPERATIONS Union's trucks are leased by Union to Pritchett when Union has no jobs, and Union leases Pritchett's trucks when it has a contract which it cannot fill with its existing capacity. Such arrangements are common in this business. As a result, each company carries liability insurance covering leased vehicles. Union purchases fuel, equipment, tires and service from Pritchett. Pritchett has the largest truck terminal in the area, and provides Union with these products and services at competitive prices. Pritchett extends credit to Union without problem. Union either purchases its workman's compensation insurance through Pritchett, or does not have coverage.
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 Petitioner's application for certification as a Minority Business Enterprise be denied. DONE AND ENTERED this 9th day of September, 1992, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 September, 1992. APPENDIX A Both parties submitted proposed findings which were read and considered. The following states which of the proposals was adopted and which was rejected and why: PETITIONER'S PROPOSED FINDINGS: Para 1 RO para 1 Para 2 RO para 2 Para 3a-e RO para 4 Para 3f RO para 11 Para 4 RO para 12 Para 5 RO para 15 Para 6 RO para 13 Para 7 RO para 17 RESPONDENT'S PROPOSED FINDINGS: Para 1,2 RO para 1 Para 3,4,5 RO para 2 Para 6 RO para 3 Para 7 RO para 4 Para 8 Irrelevant Para 9 RO para 9 Para 10 RO para 4 Para 11 RO para 5 Para 12 Irrelevant Para 13 RO para 6 Para 14 Summary subsummed in findings. Para 15 RO para 2 Para 16 Irrelevant Para 17 RO para 7 Para 18 RO para 8 Para 19 RO para 9 Para 20 RO para 10 Para 21,22,23 RO para 7 Para 24,25 RO para 11 Para 26 RO para 10 Para 27 RO para 12 Para 28 Irrelevant Para 29 RO para 12 Para 30 RO para 13 Para 31,32 RO para 14 Para 33,34,35 RO para 15 Para 36,37,38 Irrelevant Para 39 RO para 15 Para 40,43 RO para 16 Para 41,42 Irrelevant Para 44,45,46 RO para 17 Para 47 RO para 18 COPIES FURNISHED: Joan Van Arsdall Staff Attorney Department of Management Services Office of General Counsel Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950 Frank Gafford, Esquire Post Office Box 1789 Lake City, FL 32056-1789 Larry Strong, Acting Secretary Department of Management Services 307 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issue presented is whether Respondent Christos Rallis is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent Christos Rallis has been licensed as a real estate sales associate in the State of Florida, having been issued license number 3123174. Respondent listed for sale a property located at 7240 Hilburn Road, Building A, in Pensacola, Florida, which property was owned by Mark Scanlan. Respondent represented Steven Hansen, who represented himself to be a real estate investor. Hansen became a licensed sales associate after the closing in question in this proceeding but was not licensed at the time of the closing. Hansen went with Respondent to look at the subject property. The property was a duplex located within a cluster of duplexes. Readily apparent were the enclosure surrounding a dumpster which served the residents in that cluster and security lighting on a pole in the parking area, along with electric meters, and a water meter. Each unit had its own electric meter, which meant that the freestanding electric meters served other than the units. Hansen and Scanlan signed an agreement whereby Respondent would act as a transactional broker for the subject property. Hansen ultimately purchased five of the duplexes for a total of ten units. Four of the duplexes were subsequently foreclosed on, and only the property at 7240 Hilburn Road is the subject of this proceeding. The MLS listing advised that the "owner pays $140 per unit per year to assoc. for trash collection." Hansen denies seeing the listing until after the closing, although it was Respondent's practice to provide copies of MLS listings to prospective purchasers. The Residential Sales and Purchase Contract in paragraph 7(d) provides as follows: Homeowners' Association: If membership in a homeowners' association is mandatory, an association disclosure summary is attached and incorporated into this Contract. Buyer should not sign this contract until buyer has received and read the disclosure summary. Neither a disclosure summary nor any other documentation referencing a homeowners' association is attached to the contract. Similarly, the notation in the form addenda in paragraph 20 of the contract which references any homeowners' association was left blank. Subsequent to the February 15, 2007, closing Hansen was contacted by someone who advised him that he owed homeowners' association dues. He paid approximately $1,600 for the ten units he owned, which covered trash pick-up, water for the open area, electricity for the security lighting, parking lot repairs, and other general maintenance. There is no evidence in this proceeding that there was or is an actual homeowners' association. No one offered any formal paperwork to prove the existence of such an association, and the Department's investigator did not obtain any such documentation. The amount paid by Hansen for all of those services is less than what he would be obligated to pay for only trash pick- up by the Escambia County Utilities Authority. Thus, the dues Hansen paid do not materially affect the value of the property he purchased. Even if there were an impact on the value of the property, the impact would be positive and would not adversely affect the value of the property. Hansen knew that there were expenses associated with the common lighting, water, roadway, and trash pick-up, whether by a formal association or an informal gathering of owners of the cluster of duplexes. His denial of that knowledge is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of the violations alleged in Counts One and Two and dismissing the Administrative Complaint filed against Respondent in this cause. DONE AND ENTERED this 28th day of July, 2010, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 28th day of July, 2010. COPIES FURNISHED: Patrick J. Cunningham, Esquire Department of Business and Professional Regulation 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32502 Thomas W. O'Bryant, Jr., Director Division of Real Estate 400 West Robinson Street Hurston Building-North Tower, Suite N801 Orlando, Florida 32801 Reginald Dixon, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner Edward Lindsey was continuously employed by Respondent White Auto Parts between 1952 and 1989 (37 years). He was 64 years old at the time of his separation from White Auto Parts. White Auto Parts is a family-owned corporation for wholesale and retail auto parts sales. At all times material, it had eight stores and a warehouse operation in and around Gainesville, Florida. Retail sales are made over the respective store counters, and outside salesmen and inside salesmen handle wholesale sales. Inside salesmen stay at a desk in a specific assigned store and conduct most of their sales by telephone. William Thomas Hawkins, M.D., is Chairman of the Board and President of White Auto Parts. Dr. Hawkins is involved in the policy decisions affecting the management of the corporation, but is not generally involved in day-to-day business operations, including personnel matters. However, during substantially the whole of his leadership, Dr. Hawkins has urged day-to-day management personnel to hire college educated persons and/or enthusiastic and aggressive people. Usually, in connection with these urgings, Dr. Hawkins has referred to these recruits as "young," "college-educated," "new blood," or the equivalent. Despite occasional comments on individual employees being "old" or "slow," there is no evidence of a concerted effort by Dr. Hawkins to terminate or force early retirement on all employees 55, 60, or 65, or any other age for any reason, including replacement by younger, aggressive personnel. Petitioner Lindsey was initially employed in the shipping department, then worked at the counter. For the last 25 years he was employed as an outside sales person, a position he truly enjoyed. Petitioner's duties as an outside sales person included calls on independent accounts (garages, car dealers, and persons in the automotive business) to make presentations of stock, as well as to handle refunds and credits on defective returns and cores. He was also expected to develop new accounts. Outside salesmanship involved local travel by company car, getting in and out of the car many times a day, lifting heavy parts, and significant paperwork. By all accounts, it was significantly strenuous, physically. In the early years of his employment as an outside sales person, Petitioner was compensated on a commission basis, but that was gradually changed after Joe Nave became general manager of the company. At all times material, Joe Nave was general manager of White Auto Parts, with responsibility for managing day-to-day operations and for hiring and firing personnel. Seven years before Petitioner's separation, Mr. Nave intended to replace Petitioner with a younger, more aggressive person because of Dr. Hawkins' directions to seek such people out and because he was dissatisfied with Petitioner's sales performance. However, Petitioner improved his performance on the road and complied with Mr. Nave's sales policy, and thereafter Mr. Nave had no further cause to speak on the subject to Petitioner again. The situation at that time had been either based on personality problems between the two men or upon Petitioner's work performance, but not upon Petitioner's age per se, and the problem was cleared up at that time. Approximately one year before his separation, Petitioner was called in and by agreement was put on a straight salary of $370.00 per week. Later, Mr. Nave sought to reduce that amount, but Petitioner refused to accept the reduction. Nothing more was said thereafter about this request of Mr. Nave, and there is no evidence in the record to explain why the request was ever made. On the whole, Petitioner and Joe Nave had a less than cordial business relationship over the whole of their association. Mr. Nave was, by all accounts, a "hyper" or choleric personality with an aggressive, if not downright belligerent, managerial style. Very simply, Mr. Nave wanted to know where all his employees were all the time, and he yelled and "cussed" a lot over every little thing. Petitioner found his superior's use of swear words particularly unappealing and inferred that the cussing was directed at him, even if Mr. Nave actually intended it toward other persons or inanimate objects. On September 6, 1989, Petitioner had surgery for prostate cancer. He was hospitalized for approximately ten days. Petitioner received a call from Mr. Nave after he got out of the hospital. At that time, Mr. Nave told Petitioner that his vacation and sick leave had been used up and his paychecks would stop, according to company policy. Petitioner knew that company policy was exactly what Mr. Nave had represented, but he anticipated trouble which was never threatened. Petitioner thought: So then I got to thinking, once before Mr. Nave had asked me, when I was sick prior years back from that, now, this was a different time . . . and he wanted to know if the doctor released me, and I said, "No sir. He will not release me for another week." And he went out of the office saying, well, he's going to get him another guy to replace me then, which it didn't take place, of course. So then I got to thinking about this thing. He called me, reminding me about my vacation time, and I guess at that time I was thinking, well, maybe he's going to pull one and replace me, so -- (TR-16) Petitioner returned to work on Monday in the second week of October 1989. At the time, he was still wearing a catheter and two drain tubes in each side. Despite Petitioner's suspicions and despite Mr. Nave's phone call, the Respondent employer kept Petitioner on at full salary until he came back to work. After being at work one week, Petitioner felt he had "over done it." On the following Monday, he told Joe Nave that he was going to try to work a few more days, but then might need some more time to recuperate. The following Thursday, Petitioner attempted to speak with Mr. Nave regarding feeling too ill to continue any further that day, but was unable to do so because when Petitioner finished his paperwork, Mr. Nave had already left. Petitioner left the keys to the company car on Mr. Nave's desk and told Arnold Reed, the purchasing agent, that he was going to have to go home. Mr. Reed noticed that Petitioner was not looking well and offered to take him home, but Petitioner called his wife, who came and got him. On Friday, Petitioner did not report for work or call in to Respondent. That day, he traveled to South Carolina with his son-in-law. Petitioner did not return to work the next Monday. That day, Arnold Reed told Joe Nave that Petitioner had had to go home Thursday. After Mr. Nave expressed his shock that Petitioner had not talked to him personally, Mr. Reed explained to Mr. Nave that it was obvious that Petitioner had been ill. Respondent presented no proof that it had a published personnel policy requiring Petitioner to remain on the premises, despite the circumstances, until he could be excused by Mr. Nave personally. That same Monday, Joe Nave called Petitioner's home and left word for Petitioner to return his call. Several days later, Petitioner's wife, Jean Lindsey, contacted Joe Nave to explain Petitioner's reasons for his absence. The tone and content of their conversation are disputed. Among other matters, Mrs. Lindsey testified that Mr. Nave informed her that Petitioner no longer had a job at White Auto Parts and was verbally abusive about Petitioner's absence and trip to South Carolina. Mr. Nave testified that he did not terminate Petitioner but only reiterated that Mrs. Lindsey should have Petitioner see Mr. Nave as soon as he returned home. Despite the foregoing contradictions, the two witnesses concur that Mr. Nave did, in fact, also tell Mrs. Lindsey that he had already given the company car and the accounts assigned to Petitioner to someone else. It was from this comment, made in the "heat of battle" as it were, that Mrs. Lindsey reasonably inferred that Mr. Nave had hired a replacement for, or had transferred another employee into, Petitioner's outside salesman position. 1/ However, somewhat contradictorily, Mrs. Lindsey also testified that although Mr. Nave had stated that Petitioner could come in and work on a part-time basis, she still concluded that Petitioner had been fired outright. Visibly upset, she exited the store where she had spoken on the telephone with Mr. Nave and told Howard Newsome, a long time employee, that Mr. Nave had fired Petitioner. As a result of her contact with Mr. Nave, Mrs. Lindsey called Dr. Hawkins, president of the corporation, to discuss Petitioner's job. She advised Dr. Hawkins during their telephone conversation that Petitioner was very ill, that he had not done well post-surgery, that he needed time off, that he had left the previous week to go to South Carolina to rest and recuperate, that previously he had come back to work with a catheter and two drains in him, and that he just was not up to coming back to work. She also told him Petitioner had been discharged for not coming to work. At that point, Dr. Hawkins directed Mrs. Lindsey to have Petitioner contact him upon his return so that a meeting could be set up to hear both sides and work out the situation. Upon returning from South Carolina on Saturday, Petitioner was informed by his wife that he had been fired from his job at White Auto Parts by Joe Nave, but she also told him about Dr. Hawkins' message. Petitioner phoned Dr. Hawkins as requested who offered to "iron things out." Dr. Hawkins set up a meeting among himself, Joe Nave, Petitioner Lindsey, and Mrs. Lindsey. At the meeting, Dr. Hawkins assumed Petitioner was still wearing the drain and catheter Mrs. Lindsey had described to him. He did not inquire about them and so he did not know they had been removed sometime before the meeting, which took place on October 31, 1989. The only persons present for the entire meeting were Petitioner, his wife, and Dr. Hawkins. Also present at the beginning of the meeting was Joe Nave, and at the very end of the meeting, Sherry Deist. At the beginning of the meeting, Dr. Hawkins had Petitioner's sales reports in front of him because he and Joe Nave had just gone over Petitioner's entire record and agreed on what they could offer Petitioner to resolve the situation. Dr. Hawkins perceived the situation to be that Petitioner was a long- time employee, not yet released from post-surgery medical care, who had come back to full-time employment too soon to be able to do the strenuous work of full-time outside salesman and who was afraid of losing his job because he had not and could not report in to do it. Petitioner and Mrs. Lindsey perceived the problem as Petitioner already having been unjustly terminated from his outside salesman job and that reinstatement to that position was the only result that would satisfy them. Because the sales reports were in front of Dr. Hawkins at the beginning of their meeting, Petitioner became defensive, since, by his perception, for years he had never been told that his work was unsatisfactory or inadequate nor had he received any documentation to that effect. 2/ Despite obvious biases, Petitioner's description of this part of the meeting is the most credible of the several conflicting versions, and it is found that Dr. Hawkins did make comments about sales being down, about Petitioner slowing down, about Petitioner being unable to continue in outside sales work, and about Petitioner being "burned out" physically. Nonetheless, Dr. Hawkins offered Petitioner the opportunity to return to work at the less strenuous position of inside salesman. 3/ There is conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that Petitioner had never been terminated, but it is most probable from the circumstances that this was never specifically stated. There is also conflict in the testimony as to whether or not Dr. Hawkins ever clearly stated that he would pay Petitioner half pay until he could return to work, would pay Petitioner part-time wages for part-time work as an inside salesman until he could work full-time, and would pay Petitioner full-time pay as an inside salesman indefinitely. The evidence is also unclear as to whether or not the inside salesman Petitioner would replace was making $370.00 per week or slightly less. Consequently, it is possible and even reasonable that Petitioner could have inferred from Dr. Hawkins' offer that even as a full-time inside salesman, Petitioner would not make exactly the same pay rate as he had been making as a full-time outside salesman. However, it is clear and undisputed that even if Dr. Hawkins was noncommittal in response to Petitioner's pleas to keep his outside job, Dr. Hawkins did offer Petitioner a less strenuous but substantially comparable inside job, which Petitioner rejected. Petitioner concedes that neither Mr. Nave nor Dr. Hawkins ever stated that he had been or was being terminated. Petitioner's primary reason for rejecting the inside salesman's job was that the desk he would work from as an inside salesman was located in the same office with Joe Nave's desk. Petitioner, his wife, and Joe Nave all agree that Petitioner rejected the inside job regardless of any beliefs Petitioner held about what salary was involved and regardless of whether it was a part-time or full-time job, purely because the inside salesman job offer was not a return to his same outside sales job and because he refused to share an office with Joe Nave, the superior he believed had fired him. At that point, Petitioner's refusal of the inside sales job, Petitioner's wife's insistence that Joe Nave had already fired Petitioner, and Joe Nave's response became so loud, adamant, and vitriolic that Dr. Hawkins tried to calm the situation down by asking Joe Nave to leave the meeting and the room. After Joe Nave left, the meeting among Petitioner, his wife, and Dr. Hawkins continued in only a slightly calmer atmosphere. Petitioner never specifically told Dr. Hawkins he was able to return to his outside sales job that day. According to Petitioner's testimony at formal hearing, at the time of the meeting on October 31, 1989, he felt that he could have resumed his duties, but that he could not have daily serviced his usual number of accounts. At the meeting, Dr. Hawkins remained under the mistaken impression that Petitioner was still wearing the drains and catheter. Therefore, Dr. Hawkins still would not make any statement binding the Respondent corporation to return Petitioner to his outside salesman job. Dr. Hawkins asked Petitioner whether he had been released by his treating physician. Petitioner told Dr. Hawkins that he still needed to see his doctor on November 10. 4/ Dr. Hawkins told Petitioner they would meet after November 10 to "iron out" the situation. Dr. Hawkins called in the corporate comptroller, Sherry Deist, and instructed her to pay Petitioner half pay until November 10. There is no evidence that Respondent had any policy or employee plan that would have provided Petitioner with any pay at all after his vacation and sick leave was used up. Even though Petitioner's vacation and sick leave had run out, Respondent had actually paid Petitioner full pay until he returned to work. 5/ Respondent also paid Petitioner full pay while he tried to work for approximately 10 days before he was "done in" and went home to recuperate. Respondent continued to pay Petitioner full pay while he was in South Carolina and for the few interim days up until the October 31 meeting. From October 31 until November 10, 1989, Respondent paid Petitioner half salary. Dr. Hawkins anticipated hearing from Petitioner on or about November 10, 1989 as to whether or not he had been released by his doctor. Dr. Hawkins had planned to set up a new meeting to work out Petitioner's job status at that time, but Petitioner never called Dr. Hawkins to set up such a meeting. At Dr. Hawkins' request, Sherry Deist called Petitioner on or about November 10, 1989 to ask if he had called Dr. Hawkins. Petitioner told her that he had not called Dr. Hawkins and that it was Dr. Hawkins' duty to set up a new meeting. Ms. Deist offered Petitioner Dr. Hawkins' phone number, but Petitioner said he had it. Sherry Deist relayed this information to Dr. Hawkins. It is Respondent's policy that unless an employee personally asks to have a check mailed, he must pick it up personally. At Ms. Deist's request, Petitioner came in to see her to pick up his check covering the November 10 date. Dr. Hawkins could have initiated a phone call or set up another job status meeting at that point, but he deliberately did not. Based upon gossip that Petitioner had never been released by his doctor, was seeking employment elsewhere, and/or was hiring a lawyer to fight his termination, none of which conflicting hearsay statements were ever established to be true, Dr. Hawkins did not initiate any further direct contact between himself and Petitioner and told Sherry Deist to keep good notes whenever she talked to him. Up to this point, Respondent had treated Petitioner in every way as if he were still employed. Dr. Hawkins' open-ended offer of another meeting to "iron out" the situation made it unreasonable of Petitioner to continue to insist that he had been terminated by Joe Nave and refuse to contact Dr. Hawkins. Also, it was reasonable, on the basis of his past experience in the Respondent's employ, for Petitioner to know, regardless of the confusion, that the burden was on him to make clear to his employer, probably through a written medical release, that he was medically able to resume his duties. 6/ Sherry Deist then phoned Petitioner, pursuant to COBRA, to inquire whether Petitioner wished to continue his group medical insurance. When he replied affirmatively, she told Petitioner he could mail Respondent a check. No evidence was presented to show that COBRA requires offering this insurance option only if Petitioner were terminated or if the employer would also have had to offer it upon Petitioner's retirement. Later, Ms. Deist called Petitioner and asked him to fill out his retirement papers. Although Petitioner told Ms. Deist that he had not retired, but had been terminated, he also requested her to fill out the retirement papers for him. He signed them in January 1990. Prior to his surgery, Petitioner was 64 years old, and the other outside salesman, Ed Girton, was 58. Mr. Girton left Respondent's employ for another job in August 1989, a month before Petitioner's surgery. Shortly prior to the time Petitioner had surgery, Respondent offered an outside sales job to Mike Monaghman, age 35. Mr. Monaghman did not accept the offer. There is no clear evidence which outside sales position was being offered to Mr. Monaghman, but it is most probable that it was the one previously held by Mr. Girton. Eventually, Rick Thames, age 36-37 took that position. Rick Thames was not hired from outside but previously had been a counter man for Respondent. He lasted only eight months on the outside and requested to return to counter work. Petitioner's position was not covered by anyone for the first two weeks he was out sick. From approximately the time of Joe Nave's acrimonious phone conversation with Mrs. Lindsey, wherein he told her he had given Petitioner's accounts and car to someone else, until May 1990, Petitioner's accounts were covered by Burt Oliver, 66 years old, who already worked for Respondent in parts management only three days a week to supplement his Social Security retirement income. When Mr. Oliver could no longer cover the accounts in three days, he returned to inside employment in parts work and his outside accounts were given to a younger man, Mark Roberts, who was 32 years old. Mark Roberts was hired from outside, but the record is unclear as to precisely when. Since 1989, both outside sales positions have been filled by a succession of people at various times and the territories were reorganized at approximately the time Burt Oliver returned to inside employment. Eventually, the persons placed in outside sales were Mark Roberts, 32, Phil Snyder, a man in his 50's, and Wayne Butler, age 40. Respondent's car formerly used by Petitioner in outside sales was used by Burt Oliver and by just about every other White Auto Parts employee on a haphazard basis until it was sent for repair. The Respondent currently employs at least 20 people over the age of The Respondent currently employs, and consistently has employed, many employees over the age of 60, but most of these work/worked only part-time to supplement their Social Security retirement income. There are currently two full-time employees over sixty. One is approximately 70 years old and was hired after Joe Nave left the Respondent for other employment. Petitioner has remained under a physician's care on a three-months- return-visit basis.
Recommendation 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 and denying the prayed-for relief. RECOMMENDED this 25th day of November, 1991 in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 1991. 1/ See
The Issue The following issues were raised in the facts presented at hearing: Was Combs' affidavit executed in accordance with provisions of Section 215.19, Florida Statutes? Were the construction projects upon which Combs worked exempt from the provisions of Section 215.19, Florida Statutes? Did Combs settle the claims presented?
Findings Of Fact Keith Dwaine Combs was an employee of Acco Mechanical Contractors, Inc., on three related projects at Broward County Community College, the trustees of which were the contracting authority. Combs' duties were those of a sheet metal worker. He was paid $5.50 per hour. The prevailing wage for these projects for sheet metal workers was $10.55 per hour as established by the Department of Commerce. Combs worked 240 hours on these projects and prepared an affidavit claiming he was under paid $1,212. Combs then worked an additional 80 hours on a related prevailing wage job and amended his original affidavit by adding the additional 80 hours and $404 to the amount of his claim. Combs initiated these additions to his original affidavit and resigned the affidavit, claiming a total of $1,616. Combs did not have the affidavit renotarized after he had made the amendments. Combs filed his claim with District Board of Trustees for Broward County Community College. Combs then entered into negotiations with Acco Mechanical Contractors, Inc., and eventually accepted payment of $597 less FICA and withholding taxes in settlement of his claims, and executed a release of all pending claims against Acco.
Recommendation The Hearing Officer recommends that the claim of Keith Dwaine Combs be denied. DONE and ORDERED this 13th day of April, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire 2900 East Oakland Park Boulevard Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Jeff M. Brown, Esquire 3705 North Federal Highway Post Office Box 1138 Boca Raton, Florida 33432 Mr. Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301
Findings Of Fact In January of 1976, petitioner purchased a 1969 model American 4450 truck crane at auction in Lake City, Florida. The purchase price was seventy thousand dollars ($70,000.00). Petitioner, a corporation, is one of four related companies involved in construction and in leasing equipment used in construction. Together these companies own approximately eleven cranes of various kinds. Petitioner rents its cranes to the related construction companies and to others; and was, in the business of renting cranes at the time the used truck crane was acquired. It was originally contemplated that Paul A. Prendergast and Associates, one of the related companies, would purchase the truck crane and, on behalf of that firm, Mr. Prendergast certified that the crane was being "purchased for the sole purpose of resale." Petitioner's exhibit No. 5. The used crane petitioner acquired in January of 1976, was mounted on its own carrier, and was capable of moving from job site to job site under its own power. It has a 40 ton capacity and 80 feet of boom. When petitioner first acquired it, the crane needed reconditioning, which took six months to accomplish. The crane has since been used for lifting, digging and driving piles, but has never been used to haul goods or passengers. In December of 1976, the crane petitioner ordinarily used in its own yard for its own purposes was leased to Industrial Contracting Co. for a job in Atlanta. While this crane was in Atlanta, from the middle of December until the middle of March, petitioner used the truck crane it had acquired at auction for lifting, loading and unloading equipment in its yard. Since its use as a yard crane, the American truck crane has been leased on two occasions. Petitioner has listed the truck crane on its tangible personal property tax returns and has acquired a license plate for it annually. In order to drive the truck crane over public roads, which petitioner has done, it is necessary to acquire a permit.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the proposed assessment be upheld. DONE and ENTERED this 10th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Mr. Lawrence E. Dolan, Esquire Byrne and Dolan, P.A. Suite 1335, CNA Building Orlando, Florida 32801 Mr. Cecil L. Davis, Jr., Esquire Assistant Attorney General The Capitol, Room LL04 Tallahassee, Florida 32304
Findings Of Fact On August 8, 1989, Respondent issued to prospective vendors a clear and unambiguous request for proposals (RFP) relating to the delivery to travel agency services for the School District of Palm Beach County, Florida. All proposals were due no later than August 28, 1989. Review of proposals, to include any interviews Respondent deemed necessary, was to take place between August 29 and September 18, 1989. The following appears in Paragraph 1.1 of the RFP, in the introductory section: 1.1 This is a Request for Proposal (RFP) to provide travel agency services to the School District of Palm Beach County, Florida; The School District operates 112 schools and 55 administrative departments in an area encompassing 2,332 square miles. The services include but are not limited to, purchases and delivery of air and other modes of travel tickets and related travel services. ... The introductory section of the RFP also provides the names, titles and telephone numbers of two persons to whom questions could be directed. The following appears in Paragraph 5.5 of the RFP, in the terms and conditions section: 5.5 The District reserves the right to reject any or all proposals, to further negotiate any proposal, to request clarification of information submitted in any proposal, and to request additional information from any Proposer. Proposals relating to the provision of the following services are solicited in Paragraph 6.1 of the RFP, the scope of services section: 6.1 The following are to be included in the specific tasks to be performed by the Travel Agency; however, it is not considered as a complete list of tasks: A. Deliver tickets, itineraries and other travel documents to the specific office or school requesting same. Proposals from several vendors were received, including proposals from Petitioner and ETA Travel Agency. Petitioner's response to Paragraph 6.1(A) was as follows: Ticket Delivery: will be made as follows: An On-Site reservation and ticketing facility at a mutually acceptable location on School Board administration property. Deliveries will be made to other offices as follows: Scheduled. Emergency. Delivery receipts. Via agency and outside courier service. ETA's response to Paragraph 6.1(A) was as follows: E.T.A. provides immediate free delivery of airline tickets and documents to school board travelers as detailed below: E.T.A.'s radio dispatched couriers provide unlimited deliveries of tickets and travel documents to schools and school board offices from Jupiter to Boca Raton as often as required throughout the business day. At E.T.A. Travel we never limit deliveries to once of twice a day. Tickets are delivered according to the school board's schedule - not ours. In addition to office delivery, E.T.A.'s couriers will deliver tickets and documents to the traveler's home or to other designated place whenever required. Deliveries to west area schools and school board offices are provided through the school board's "pony express" mail system, time permitting, or through federal express overnight delivery services. Deliveries to out-of-county travelers, or to west area travelers requiring expedited delivery, are provided through federal express overnight delivery service. E.T.A. Travel Agency utilizes a delivery and pickup receipt system to insure tracking of all airline tickets. To insure accountability all tickets delivered and picked up must be signed for and receipted at the time of exchange. While in the process of evaluating the respective proposals, Dr. Henry Boekhaff, Respondent's Associate Superintendent for Administration, contacted Mr. James Bertino, the owner of Petitioner to seek clarification as to the operation of Petitioner's proposed on-site ticketing and reservation facility. Mr. Bertino explained that there would be located on school board property a satellite ticket printer that could print airline tickets at the school board site. However, Mr. Bertino did not make it clear to Dr. Boekhoff that the travel documents printed on the satellite ticket printer would be delivered by Petitioner to each office requesting the travel document. Mr. Bertino's verbal description of the manner in which the satellite ticket printer would operate, along with Petitioner's written response to Paragraph 6.1(A), caused Dr. Boekhoff to conclude that Petitioner was not proposing to deliver travel documents to each requesting office. Respondent, following its review of Petitioner's proposal and following Dr. Boekhoff's conversation with Mr. Bertino, construed Petitioner's proposal as making a distinction between deliveries to offices in the administrative building in which the satellite ticket printer was to be located and deliveries to other offices. Respondent construed the proposal to require that persons whose offices were in the same building as the satellite ticket printer to pick up from the printer the tickets, itineraries, and other travel documents they had requested, while deliveries to offices in other administrative buildings and schools would be made by Petitioner. Respondent's construction of Petitioner's proposal was a reasonable construction of the written proposal presented by Petitioner and of the comments Mr. Bertino made to Dr. Boekhoff. Petitioner did not make it clear in either its response to Paragraph 6.1(A) or during the conversation between Mr. Bertino and Dr. Boekhoff that the Petitioner was proposing to deliver tickets to each office in the administrative building where the satellite facility would be located, a service that is of primary importance to Respondent. Following the evaluation of awards the proposal of ETA was selected, subject to the resolution of any timely protest. The services to be afforded by the vendor and the cost of those services were the items of primary importance to Respondent in evaluating and selecting a vendor. Petitioner's protest of the intended award of the contract to ETA was filed on a timely basis. During the informal hearing held in an attempt to resolve this dispute and in the formal hearing held in this proceeding, Petitioner, through Mr. Bertino, maintained that it intended by its response to Paragraph 6.1(A) to state that it would deliver tickets, itineraries, and travel related documents to every School Board office. Petitioner contends that it should be permitted to clarify its intentions at this time. Although Petitioner's response to Paragraph 6.1(A) did not cause its proposal to be rejected by Respondent, the Petitioner's failure to clearly state that it would deliver tickets, itineraries, and other travel documents to each requesting office was the primary reason the proposal of Petitioner was not selected. The services that ETA proposed in its response was the deciding factor in its favor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order which rejects the bid protest filed by International Tours of Juno Beach and which accepts the proposal submitted by ETA Travel Agency. DONE AND ENTERED this 7th day of February, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6775BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraph 1 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being contrary to the weight of the evidence. The evidence failed to establish that the proposal submitted by Petitioner was superior to the proposal submitted by ETA. What action the School Board may have taken had Petitioner clearly stated its proposal is speculative. The proposed findings of fact in paragraph 4 are adopted in part by paragraph 9 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. While Mr. Boekhoff did contact ETA during the evaluation period regarding its organizational structure, there is no contention that such contact was improper. The proposed findings of fact in paragraph 5 are rejected as being conclusions of law instead of findings of fact. The proposed findings of fact in paragraph 6 are rejected as being subordinate to the findings made in paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made in Paragraph 13 or as being conclusions of law and not findings of fact. 8-10. The proposed findings of fact in paragraphs 8-10 are rejected as being conclusions of law and not findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent: The proposed findings of fact in paragraph 1 are adopted in part by paragraph 1 of the Recommended Order and are rejected in part as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 11 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 13 of the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 5 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 7 of the Recommended Order. The proposed findings of fact in paragraph 6 are adopted in material part by paragraph 10 of the Recommended Order. COPIES FURNISHED: Donald R. Fountain, Jr., Esquire Lytal & Reiter 515 North Flagler Drive Post Office Box 024466 West Palm Beach, Florida 33402-4466 Robert A. Rosillo, Esquire School of Palm Beach County 3970 RCA Boulevard Suite 7010 Palm Beach Gardens, Florida 33410 Thomas J. Mills Superintendent of Schools The School Board of Palm Beach County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
The Issue Whether C. Fullerton and Landscaping Co., Inc., is indebted to Other Side Sod, LLC, for the purchase of sod and pallets; and, if so, in what amount.
Findings Of Fact Petitioner is a Florida Limited Liability Corporation located in Arcadia, Florida, and at all times relevant hereto was a producer of agricultural products, as defined by section 604.15(9), Florida Statutes. Petitioner is also a “dealer in agricultural products” within the meaning of section 604.15(2). Respondent, during all times relevant hereto, was a “dealer in agricultural products,” within the meaning of section 604.15(2). At all times relevant to this proceeding, Great American served as surety for Respondent. At all times relevant to this proceeding, Respondent was a customer of Other Side Sod. Respondent purchased sod from Petitioner and thereafter resold and installed the sod to Respondent’s customers. Petitioner sold sod to its customers on wooden pallets. An integral part of each transaction involved the pallets. There are 10 invoices in dispute which cover the period October 14, 2016, through February 10, 2017. For the underlying transactions that relate to the invoices in question, the following language is contained on each field/delivery ticket: Terms of Sale: Payment due upon receipt. All payment[s] applied to pallet balance first. Interest at the rate of 1 1/2% per month will be charged on unpaid invoice amounts after 14 days. Invoices will be charged $0.02 per square foot additional after 30 days. Purchaser agrees to pay all costs of collection, including attorney fees, in [the] event it is necessary to institute suit for collection. Venue will be in DeSoto County, Florida. All Sales F.O.B. Shipping Point. On or about October 14, 2016, Petitioner sent Respondent invoice 47293, which showed a balance due of $462 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 83,200 units of Bahia sod related to the transaction ($1,664). Petitioner also added to the invoice a charge of $124.80 for sales tax related to the late payment penalty ($1,664 x 7.50 percent). On or about October 23, 2016, Petitioner sent Respondent invoice 47378, which showed a balance due of $224 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 70,400 units of Bahia sod related to the transaction ($1,408). Petitioner also added to the invoice a charge of $105.60 for sales tax related to the late payment penalty ($1,408 x 7.50 percent). On or about October 24, 2016, Petitioner sent Respondent invoice 47420, which showed a balance due of $280 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 16,000 units of Bahia sod related to the transaction ($320). Petitioner also added to the invoice a charge of $24 for sales tax related to the late payment penalty ($320 x 7.50 percent). On or about November 13, 2016, Petitioner sent Respondent invoice 47549, which showed a balance due of $1,526 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 103,200 units of Bahia sod related to the transaction ($2,064). Petitioner also added to the invoice a charge of $154.80 for sales tax related to the late payment penalty ($2,064 x 7.50 percent). On or about December 6, 2016, Petitioner sent Respondent invoice 47755, which showed a balance due of $434 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 30,400 units of Bahia sod related to the transaction ($608). Petitioner also added to the invoice a charge of $45.60 for sales tax related to the late payment penalty ($608 x 7.50 percent). On or about January 8, 2017, Petitioner sent Respondent invoice 48093, which showed a balance due of $1,256 for 12,800 units of Bahia sod, $224 for a pallet deposit, and $72 for sales tax. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 12,800 units of Bahia sod related to the transaction ($256). Petitioner also added to the invoice a charge of $19.20 for sales tax related to the late payment penalty ($256 x 7.50 percent). On or about December 13, 2016, Petitioner sent Respondent invoice 48166, which showed a balance due of $343 for pallets related to the sale of Bahia sod. The invoice remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 163,200 units of Bahia sod related to the transaction ($3,264). Petitioner also added to the invoice a charge of $244.80 for sales tax related to the late payment penalty ($3,264 x 7.50 percent). On or about January 29, 2017, Petitioner sent Respondent invoice 48285, which showed a balance due of $3,000 for 40,000 units of Bahia sod, $308 for a pallet deposit, and $225 for sales tax (total = $3,533). On February 3, 2017, Respondent submitted to Petitioner partial payment in the amount of $3,210.50, which left an unpaid balance of $322.50. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 40,000 units of Bahia sod related to the transaction ($800). Petitioner also added to the invoice a charge of $60 for sales tax related to the late payment penalty ($800 x 7.50 percent). On or about January 31, 2017, Petitioner sent Respondent invoice 48301, which showed a balance due of $390 for 5,200 units of Bahia sod, $91 for a pallet deposit, and $29.25 for sales tax (total = $510.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $468.33, which left an unpaid balance of $41.92.1/ The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent). On or about February 10, 2017, Petitioner sent Respondent invoice 48409, which showed a balance due of $390 for 5,200 units of Bahia sod, $21 for a pallet deposit, and $29.25 for sales tax (total = $440.25). On February 15, 2017, Respondent submitted to Petitioner partial payment in the amount of $398.33, which left an unpaid balance of $41.92. The balance remained unpaid for more than 30 days and Petitioner, in accordance with the terms of sale, amended the original invoice and added a charge of two cents for each of the 5,200 units of Bahia sod related to the transaction ($104). Petitioner also added to the invoice a charge of $7.80 for sales tax related to the late payment penalty ($104 x 7.50 percent).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order approving the claim of Other Side Sod, LLC, against C. Fullerton and Landscaping Co., Inc., in the amount of $4,981.34. DONE AND ENTERED this 7th day of November, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 7th day of November, 2017.
The Issue Whether Respondent discharged Petitioner in violation of Section 760.10, Florida Statutes (1991).
Findings Of Fact The Petitioner, Aubray Grandison (hereinafter "the Petitioner" or Grandison"), is a black male, and began working as a casual local driver at the Pensacola, Florida terminal facility of the Respondent, Consolidated Freightways Corp. of Delaware (hereinafter "the Respondent" or "CF") in October, 1987. (Tr. 10, 71; R. Ex. 5 and 6) 1/ CF is an interstate trucking carrier, transporting general commodity freight to and from various locations throughout the United States, including its Pensacola terminal facility (Tr. 63-64). At CF's Pensacola terminal, it employs a terminal manager (who is generally responsible for the terminal operation), an account manager, a dock foreman, a part-time office clerk, and a number of local drivers, both casual and regular. At all times material herein, the Terminal Manager at the Pensacola facility was Ken Webb (Hereinafter "Webb"). (Tr. 63-64. As of June 14, 1989, CF employed nine regular drivers at the Pensacola terminal, of whom seven were white, and two (or 22%), Robert Sparks and Aubray Grandison, were black. At this time, the Company also utilized four casual local drivers, of whom two were white and two (or 50%) were black (Tr. 65-66; R. Ex. 11). At all times material herein, Respondent had in effect a Company-wide EEO policy, insuring equal employment opportunity without regard to race, color, age, religion, sex, handicap or national origin. (Tr. 68; R. Ex. 3). Local drivers at CF's Pensacola terminal were assigned various duties to include unloading incoming freight, properly loading and delivering freight to CF customers in the Pensacola area, picking up freight from customers to be delivered, and properly completing their paperwork for all their activities. The duties were the same for both casual and regular drivers (Tr. 69, 75). The difference between casual drivers and regular drivers was that regulars had seniority rights and were guaranteed 40 hours per week (unless on lay off), whereas casual drivers had no guarantee of hours or seniority rights, and were called on as needed for about 30 hours per week. CF's drivers at the Pensacola terminal, including Petitioner, were covered by a collective bargaining agreement, the National Master Freight Agreement and Southern Conference Area Local Freight Forwarding Pick Up and Delivery Supplemental Agreement, and were represented by a labor union, Teamsters Local 991 based in Mobile, Alabama (Tr. 69; Burnthorn dep. 8-9). The Local 991 business agent representing CF's Pensacola drivers was Jerry Burnthorn, and the shop steward was Larry Douglas. (Tr. 70-71, Burnthorn dep. 7). Grandison worked as a casual driver for approximately one year, and during this time, his job performance was very good, including his performance with respect to the delivery of freight and the proper completion of paperwork relating to his loads of freight. His performance was good enough that Terminal Manager Webb recommended that he be hired as a regular driver, notwithstanding an unfavorable reference from a previous employer (Tr. 74, 81-82). Grandison became a regular driver, effective October 25, 1988. (Tr. 78-79; R. Ex. 1, 7). CF experienced no problems with Grandison's performance until approximately three months after he became a regular driver. Beginning in approximately February, 1989, Webb began experiencing various problems in Grandison's performance, particularly with respect to the misdelivery of freight and the improper completion of his paperwork relating to his loads of freight. (Tr. 82; R. Ex. 9). CF did not have a formal training program for its personnel to teach them how the various paperwork was to be completed. The paperwork required was relatively complex as revealed in the extensive testimony of Webb about Grandison's errors. Grandison received several verbal warnings in February and early March, 1989. During the course of the next six months, he received a number of written reprimands in accordance with the collective bargaining agreement. On March 13, 1989, Grandison received a warning letter for a preventable accident on February 20, 1989. This accident originally was ruled nonpreventable by Webb because the police investigated and issued no citation. Webb was overruled by the Company's safety officer because the company paid a claim to the driver of the other vehicle. (Tr. 89-91; R. Ex. 10). On March 31, 1989, Grandison received a warning letter for a misdelivery of freight on March 27, 1989, involving a tire delivered to the wrong customer. The tire was clearly marked with the destination. (Tr. 99-103; R. Ex. 11) On March 31, 1989, Grandison received a warning letter for failure to follow instructions by misdelivering freight, involving two loads of freight, each cross-delivered to the wrong customer. (Tr. 103-104; R. Ex. 12). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 29, 1989, by failing to list the pro numbers for freight he picked up on his daily P&D Trip Manifest. The pro numbers identify the freight which the driver picked up. (Tr. 104-105; R. Ex. 13). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing a bill of lading upon which he failed to write the date and "CFWY" as required by Company policy. (Tr. 105-106; R. Ex. 14). On March 31, 1989, Grandison received a warning letter for failing to follow instructions on March 23, 1989, by not properly completing eight different bills of lading by failing (1) to note the number of forklift moves, which the Company uses to properly bill the freight (Tr. 106-111; R. Ex. 15), and (2) failing to note the number of pieces of freight picked up on each bill. (Tr. 112-114; R. Ex. 16). On March 31, 1989, Grandison received a warning letter for threatening a work slow down on March 30, 1989. (Tr. 199; R. Ex. 17). On April 17, 1989, Grandison received a warning letter (reduced to verbal warning) for failing to follow instructions on April 7, 1989, by not noting that pick up was a single shipment pick up on the pro number. The Company must have this information in order to bill the customer a surcharge for a single shipment pick up. (Tr. 120-121; R. Ex. 18). On April 17, 1989, Grandison received a written warning (reduced to verbal warning) for failure to follow instructions on April 14, 1989, by failing to complete the required documentation and failing to place the required "refused" sticker on freight that was refused receipt. As a result, the Company did not have a record of why the freight was refused. (Tr. 121-122, R. Ex. 19). In conjunction with the April 17, 1989 letters, Webb met with Business Agent Burnthorn, Shop Steward Douglas, and Grandison. Webb agreed to reduce the written warnings to verbal warnings, in exchange for an agreement from Grandison that he would attempt to complete his paperwork properly from that point on. (Tr. 122-123). On May 25, 1989, Grandison received a suspension letter suspending Petitioner for two days without pay for the misdelivery of freight on May 16, 1989. (Tr. 126-127; R. Ex. 20). Grandison filed a grievance under the collective bargaining agreement contesting this suspension, but the grievance was denied. (Tr. 26-27, 129). On June 30, 1989, Grandison received a warning letter for failing to follow instructions on June 20, 1989, by not showing a single shipment pick up on his pro number. (Tr. 131; R. Ex. 21). On June 30, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight on June 22, 1989. (Tr. 132; R. Ex. 22). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on July 24, 1989 by failing to sign the delivery receipt as required by Company policy. (Tr. 133; R. Ex. 23). On August 4, 1989, Grandison received a warning letter for failing to follow instructions on August 1, 1989 by not properly completing two delivery receipts. (Tr. 133; R. Ex. 24). On August 24, 1989, Grandison received a warning letter for failing to follow instructions on August 23, 1989, by not completing several dock expedite write ups while unloading freight at the CF depot. These are necessary in order to properly reroute the freight. (Tr. 133-139; R. Ex. 25). On September 8, 1989, Grandison received a warning letter for failing to follow instructions on September 5, 1989, by failing to record the seal number removed from a trailer on the Terminal Unloading Check Sheet. This is required by the Company's security policy. (Tr. 140-141; R. Ex. 26). On September 8, 1989, Grandison received a warning letter for failure to follow instructions on September 7, 1989, by dropping a 500 pound piece of medical equipment on the ground while attempting to load the equipment on the customer's truck with a forklift, and causing $7,000 of damage to the equipment. (Tr. 141-142; R. Ex. 27). This incident was personally witnessed by Terminal Manager Webb. (Tr. 196). On September 21, 1989, Grandison also received a suspension letter for misdelivering freight to a customer (Scotty's, Inc.) on September 11, 1989. However, Grandison contested this suspension by filing a grievance. In an informal meeting at the terminal with Grandison and Business Agent Burnthorn, Webb agreed to withdraw the suspension and give Grandison another chance. (Tr. 144-145; R. Ex. 28). On October 12, 1989, Grandison received a suspension letter imposing a five day suspension without pay for the misdelivery of freight to a customer on October 2, 1989. (Tr. 148; R. Ex. 29). On October 19, 1989, Grandison was discharged by CF for two separate misdeliveries of freight, one involving a shipment to Babbage's on October 10, 1989 and another involving a shipment to Eglin Air Force Base on October 16, 1989 (Tr. 152-156; R. Ex. 31). The Babbage's misdelivery allegedly involved Petitioner's failure to deliver 3 of 7 boxes in a delivery to Babbage's, and the Eglin misdelivery allegedly involved in failure to deliver ten boxes of phones in a 32 box shipment. According to Webb, on October 28, 1989, he received a call from an employee of Babbage's, a retail store, complaining that only four of seven boxes had been delivered. Webb advised the woman that he had a receipt she had signed for seven boxes. She advised him she did not have a copy of the receipt, but that she only received four boxes. Webb had a search conducted, and found three boxes for delivery to Babbage's. The lady wrote Webb a letter stating she had only received four of seven boxes. (Tr-152.) According to Webb, on October 16, 1989, the Respondent was suppose to deliver 32 phones to Eglin AFB. The Respondent called to get an exception number to permit him to deliver 22 of 32 items and reflect 10 items short. The 10 cartons he was supposedly short where found on his truck when he returned to the depot. (Tr.-155) Terminal Manager Webb advised Grandison of the reason for his discharge at the terminal with Shop Steward Douglas present. Webb also personally handed to Grandison a copy of his discharge letter. When Grandison refused to sign CF's copy of the letter acknowledging receipt of it, Webb, also mailed him a copy via certified mail with a copy also being sent to the local union in accordance with the collective bargaining agreement. Grandison's copy of the letter was returned unclaimed, but the local union received its copy. (Tr. 157-158; R. Ex. 31). Grandison filed a grievance contesting his discharge on October 30, 1989. (Tr. 158; R. Ex. 32). Grandison's grievance was heard by the Southern Multi-State Grievance Committee in Ft. Lauderdale, Florida on January 16, 1990. Grandison, who was present at this hearing and testified in his own behalf, was represented by Business Agent Burnthorn. CF was represented by Labor Relations Representative Bill Jenkins. (Burnthorn dep. 18-20). In accordance with Article 45 of the collective bargaining agreement, the Committee was an impartial arbitration panel comprised of an equal number of management and labor representatives, neither of whom was affiliated with either CF or Local 991. (Burnthorn dep. 12-14, 19). After hearing the evidence presented by both sides, the Committee denied Grandison's grievance and upheld his discharge. (Tr. 162; R. Ex. 33; Burnthorn dep. 21). This decision was final and binding on both sides. (Burnthorn dep. 15; R. Ex. 4, p. 124). Although the transcript of the Committee's proceeding was introduced, the Committee only records its ruling. Discharge of an employee is addressed in Article 46 of the collective bargaining agreement. Under this provision, there were certain dischargeable offenses (such as dishonesty or using or being under the influence of alcohol, narcotics or drugs while on duty) without a prior warning. For other offenses, the contract required that the Company give the employee one prior written warning prior to discharging the employee (R. Ex. 4, p. 127; Burnthorn dep. 22- 23). In order to uphold Grandison's discharge under the contract, the Committee had to find that he was properly discharged for the violations stated. (Burnthorn dep. 21). In the case of Grandison's dismissal for misdelivery of freight, he had received more than one written warning, and also had been suspended on two occasions, prior to being discharged for the same offense. (Burnthorn dep. 23-25, Ex. 4). Grandison could have asserted a grievance under Article 37 of the collective bargaining agreement alleging race discrimination with respect to his discharge (R. Ex. 4, p. 98; Burnthorn dep. 30). He did not do so. Although Burnthorn did not uncover any evidence that CF was motivated by racial prejudice during his investigation of Grandison's discharge, he wasn't investigating this is because it was not alleged in the grievance. (Burnthorn dep. 30). After Grandison was discharged, CF hired two regular drivers at the Pensacola terminal, Joe Fendley (white) on December 11, 1989, and Jessie Smith (black) on December 29, 1989 (R. Ex. 2). These drivers replaced both Grandison and driver Dean Dallas (white) who had retired shortly before Grandison's discharge (Tr. 163-164). It cannot be determined whether Grandison was replaced by the black or the white under the facts. CF disciplined other employees at the Pensacola terminal, both white and black, for offenses similar to those for which Grandison was disciplined. For instance, written warning letters were issued on various occasions to drivers Robert Sparks (black) (R. Ex. 34), Steve King (white) (R. Ex. 35), Terry Ward (white) (R. Ex. 36), and Jimmy Foley (white) (R. Ex. 37, TR. 164-165). Terminal Manager Webb also had suspended white drivers for infractions, including Larry Douglas and Steve King (Tr. 166), and had discharged a white supervisor, Jimmy Hines. (Tr. 166). Grandison showed that on one occasion he was charged with misdelivery but hadn't misdelivered the load. Grandison showed that Pat Gordon at Babbage's signed a receipt for seven packages. He returned the phones from Eglin because the NCO in charge would not accept the phones. The parties stipulated that the Petitioner had suffered a reduction of $5.50/hour in pay as a result of his discharge. (Tr. 46).
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 Commission enter its final order dismissing Petitioner's petition. DONE and ENTERED this 20th day of August, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1992.
Findings Of Fact Curtis Ketchup is black and worked for Standard Container Company at its Tampa, Florida, warehouse from 1968 until his employment was terminated on April 8, 1981. Ketchup was employed as warehouseman and truck driver whose primary duties consisted of loading and unloading trucks and delivering products to Respondent's customers in the area served by the Tampa warehouse. At all times here relevant Ruby Jellico was the manager of Respondent's Tampa operation. She ran both the office and warehouse and supervised two warehousemen and one clerk/secretary. In 1980 business had slowed down in the Tampa Operation and Jellico's function was changed to have her call on customers more than before to solicit additional business. During her absence V. J. Marria, whose title was sales assistant/secretary, took most of the telephone orders and prepared the necessary papers to accomplish the delivery of the product. With a total of only four employees at the Tampa operation, all of these employees sometimes took orders and dealt with customers. Petitioner was the second highest in seniority and pay with the company in Tampa. Although Petitioner contends he was warehouse manager until April 1, 1981, at which time he was demoted, the evidence is clear that Petitioner was never designated warehouse manager; that neither his authority nor his pay was cut on or about April 1, 1951; and whether or not he was, in fact, acting as warehouse manager is irrelevant since no evidence of discrimination in this regard was presented. Petitioner served part-time as a Holiness Pentecostal minister and had discussed with his fellow employees and Jellico his desire to give up his job with Respondent and devote his full time to the ministry. He inquired of Jellico if he could withdraw the funds he had accrued in the company's profit- sharing plan and was told the only way these funds could be withdrawn was by a plan member leaving the company either by dying, retiring, or resigning. Respondent has an employee profit-sharing plan to which employees become members after working with the company for a specified period of time. Contributions to this plan are made by the company and the funds are invested by the manager of the plan. The plan is intended to provide additional benefits to an employee after he retires from the company or to his survivors if he dies before retirement. Petitioner's decision to leave the company if he could withdraw his funds from the profit-sharing plan was communicated to Jellico, who relayed the information that Petitioner wanted to retire and withdraw his funds from the profit-sharing plan to Harry Peyton, the company treasurer, at the home office in Fairfield, New Jersey. Peyton told Jellico that he would have an advance on the funds due Petitioner sent to the Tampa office and that it was necessary for Petitioner to submit his resignation in writing and to agree to endorse back to the company the check he would later receive when the exact amount due him was disbursed at the end of the calendar year. As a further result of these conversations between Jellico and Petitioner, Ken Sessions was employed on April 7, 1981, as Petitioner's replacement. On April 9, 1981, Petitioner talked to Peyton by telephone and Peyton told Petitioner that it was necessary for him to terminate his employment with the company in order to withdraw his funds from the company profit-sharing plan. When the advance on Petitioner's share in the company's profit-sharing plan was received in Tampa on April 14, 1981, Jellico called Petitioner and told him he could come in and pick up the check for $4,834.33. Upon his arrival in the office, Petitioner gave Jellico his resignation letter (Exhibit 7) dated April 8, 1981, the last day worked by Petitioner. Petitioner also signed Exhibit 8 in which he acknowledged discussing the termination of his employment with Respondent as soon as a replacement could be found for him and agreed to repay the amount of the advance at the end of 1981 when the exact amount due him under the profit-sharing plan was determined. In early 1982 an additional check in the amount of some $800 was forwarded to Petitioner to close out all funds due him. Petitioner contends that on April 8, 1981, while lifting a pallet from a shelf above his head he felt a sharp pain in his neck. The following morning, April 9, Petitioner's wife called Jellico to tell her Petitioner had net slept well the night before, was tense, and did not feel well. Jellico suggested he see a doctor. On April 9, 1981, Petitioner went to St. Joseph's Hospital, Tampa, where he was seen by a Dr. Mooney. Notations taken and treatment rendered on this visit are contained in Exhibit 6. Although Petitioner testified he believes he told Dr. Mooney about the pain he experienced while lifting the pallet on April 8, 1981, no mention is made of this in Exhibit (Nor did Petitioner tell any of Respondent's employees of this pain experienced on April The first notice received by Respondent of this alleged incident was a call from a State Worker's Compensation official some months later inquiring why no accident report had been filed. In addition to filing a claim for Worker's Compensation for the injury allegedly occurred on April 8, 1981, petitioner filed suit in the Circuit Court of Hillsborough County against Respondent alleging discrimination. This latter action was dismissed before going to trial and Petitioner was also unsuccessful in his Worker's Compensation claim.
