The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent Great Southern Café is a restaurant located in Seaside, Florida. The restaurant is owned by James Shirley. As owner, Mr. Shirley did not generally involve himself in personnel decisions at the Café. Such decisions and the day-to- day management of the restaurant were the responsibility of the general manager, who at the time period relevant to this case was William “Billy” McConnell. Petitioner Janet D. Mayes is female. Petitioner has ADD, ADHD, OCD, and general anxiety disorder. She has been diagnosed with these conditions for 20 years and they are all controlled through medication. More importantly, the evidence did not demonstrate that Petitioner’s disorders interfered with her ability to work or significantly impacted any other major life activity. Indeed, Petitioner has worked in the restaurant business for about 30 years and has held a variety of different positions during that time, often working long hours. Since her disorders did not interfere with any of Petitioner’s major life activities, the evidence did not demonstrate that such disorders were disabilities or handicaps for purposes of employment discrimination. Sometime around March 2012, Petitioner interviewed for employment with Respondent. She was initially hired as a hostess for the restaurant by the then general manager, Jim Ruby. Shortly thereafter, Mr. McConnell, who was then assistant manager, replaced Mr. Ruby as general manager. At the time, Mr. McConnell had 35-40 years of experience as a restaurant manager in Alabama and Florida and had managed the predecessor restaurant to Great Southern Café known as “Shades.” Mr. McConnell’s management philosophy was to be patient with employees, to train them in the right way, and to ask employees to do their best. He would give employees the benefit of the doubt, and when disciplinary action was necessary, would sit down and talk with the employee to build confidence in them. Mr. McConnell’s disciplinary style was informal and it was not his general practice to issue formal written discipline to employees. Mr. McConnell liked Petitioner’s work ethic and thought she did a good job as hostess. Under Mr. McConnell’s management, Petitioner was promoted by Mr. McConnell to relief manager in May of 2012. In August 2012, she was again promoted by Mr. McConnell to full manager. Mr. McConnell did not know about, nor was he provided with any documentation regarding, Petitioner’s disorders. Indeed, the evidence showed that Petitioner’s disorders were not so obvious that anyone who encountered her necessarily would have known about those disorders. There was no evidence that Petitioner ever sought any kind of accommodation from Respondent for her disorders. Since Mr. McConnell worked only the day shift and Petitioner usually worked nights, their paths did not often cross at work. However, the evidence demonstrated that Mr. McConnell occasionally used the term “bitch” to refer to Petitioner. The evidence also demonstrated that he did so not in a malicious or discriminatory way, but in a joking manner because of Petitioner’s actions that he witnessed or that were described to him. Petitioner conceded that it was “like it was a joke” when Mr. McConnell referred to her as a “bitch.” There was no testimony that Mr. McConnell used this term on repeated occasions so that its use rose to the level of harassment or that he used it to belittle or demean Petitioner. Sometime in April 2013, the Café catered a very large event known as “JazzFest.” Petitioner assisted Mr. McConnell in the planning and execution of this event for the Café. Her husband, William, who had been unemployed, was hired to help in food preparation at the event. In general, JazzFest was stressful for all those who worked the event. Both Mr. McConnell and Petitioner worked many extra hours at the festival. During the course of JazzFest, Mr. McConnell, as manager, permitted the employees to get food from the banquet line since they had been working all day without breaks for nutrition. Petitioner and her husband loudly and inappropriately berated Mr. McConnell in public and in front of other employees about allowing employees to get food from the banquet line. Mr. Shirley witnessed the confrontation and considered the display to be an inappropriate method by Petitioner to communicate her disagreement regarding Mr. McConnell’s management decision. Mr. McConnell also observed that during JazzFest, Petitioner was “too pushy” and “too bossy” with the staff without having any good reason for such treatment of employees. Additionally, Mr. McConnell observed that Petitioner was “not herself” and “wound up a little too tight” during JazzFest. Further, Mr. McConnell was aware that Petitioner had some recent personal stressors, such as her husband having issues with unemployment and one of her sons being arrested and incarcerated. He believed Petitioner’s behavior was due to the pressures in her family life combined with the pressure from working Jazzfest. Therefore, Mr. McConnell decided to give Petitioner a week off, with pay, for rest and relaxation. He hoped that Petitioner would come back refreshed and ready for the busy beach season after her break. Mr. Shirley knew of and supported the time off for Petitioner and hoped that Petitioner’s time away from work would ease some of the undercurrent of negative feelings that had built up between Petitioner and some of the employees. After Petitioner returned from her week off, Mr. McConnell received reports from some of his employees that Petitioner was being unreasonable, raising her voice and losing her temper “numerous” times. He also received reports that Petitioner was “hard to work for,” and “a bully.” In addition, owner James Shirley received some complaints from employees that Petitioner was “going off on people.” Indeed, her treatment of the employees had gotten to the point that several employees no longer wished to work with her. These employees were considered good employees and were part of the restaurant team. The evidence showed that it is very important for restaurant staff to function as a team and that maintaining good working relationships among team members is one important component of a good functioning restaurant. Mr. McConnell spoke to Petitioner about the subject of the complaints and asked why she was pushing the staff so hard and creating a bad environment. Petitioner said she would try to do better. During this conversation, Mr. McConnell did not remember asking Petitioner whether her meds were “out of whack,” but he has stated this to other people as a figure of speech in the manner of “get your act together.” The evidence did not show that Mr. McConnell’s use of the phrase was discriminatory, harassing or demonstrative of any knowledge of Petitioner’s alleged disability or perception of the same. After his talk with Petitioner, things improved for a couple of days. However, Mr. McConnell received more and similar complaints about Petitioner from the same employees who previously complained about her, with some indicating they would quit if Petitioner continued to work at the restaurant. Mr. McConnell feared that if something was not done about Petitioner some of his good team employees would leave and he would not be able to run the restaurant. The better evidence demonstrated that Mr. McConnell met with Petitioner and offered her two weeks’ severance pay. He spoke with her about her inability to get along with the employees and function as a team member at the restaurant. The meeting lasted about 20-30 minutes. Ultimately, Petitioner refused the severance pay, handed over her keys, and left. There was no credible or substantial evidence that Petitioner’s termination was based on disability, perceived or otherwise. Similarly, there was no credible or substantial evidence that Petitioner’s termination was based on her sex. Although Petitioner asserted harassment from Mr. McConnell, no evidence to support this claim was adduced at the hearing. Respondent hired and promoted Petitioner to a manager position, allowed Petitioner to hire her husband and son (and at least one of her son’s friends), and gave her a paid week off after JazzFest to refresh and relax from a stressful event. The evidence showed that Mr. McConnell gave Petitioner the benefit of the doubt, as he did with all his employees, and only decided to terminate her after talking with Petitioner and determining that giving her time off did nothing to eliminate the negative energy Petitioner was bringing to the job. Based on these facts, Petitioner failed to establish that Respondent discriminated against her based on sex or disability when it terminated her from employment. As such, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of June, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 2015. COPIES FURNISHED: Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Timothy Nathan Tack, Esquire Kunkel Miller and Hament 3550 Buschwood Park Drive, Suite 135 Tampa, Florida 33618 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether Respondent, Porky's Barbeque Restaurant, engaged in an unlawful employment practice by terminating Petitioner, Susan Coffy, from her position.
Findings Of Fact Petitioner is a female and, at all times relevant to this proceeding, was over the age of 40. From March 1, 2003, until October 28, 2003, Petitioner was employed as a waitress at Porky's, a barbecue restaurant. On October 28, 2003, Petitioner was terminated from her job as a waitress. Prior to March 1, 2003, Petitioner had worked as a waitress at another restaurant, Fat Boy's Restaurant (Fat Boy's), that had been operating at the same location as Porky's. Fat Boy's closed after the building in which that restaurant was located was purchased by Walter Milton. After Mr. Milton purchased the building, he opened his own business, Porky's, at that location. After Mr. Milton opened his restaurant, he employed many of the individuals who had been employed by Fat Boy's, but told them that their employment with Porky's was for a "trial period." Immediately after Porky's opened for business, Mr. Milton initiated operational directives that he believed were essential business needs for operating a barbecue business. He introduced these new directives to the employees of Porky's, many of whom had previously worked for Fat Boy's. While some of these employees were successful in making the transition to the new operation, there were employees, including Petitioner, who were resistant to the operational directives initiated by Mr. Milton. Even though Petitioner was resistant to the new operational directives that were implemented at Porky's, Mr. Milton continued to try to work with Petitioner. In fact, Petitioner worked as a waitress at Porky's the first eight months the restaurant was open. During the course of her employment, Mr. Milton found that Petitioner was an employee who failed to follow simple instructions. For example, Mr. Milton directed employees to knock on his office door when the door was closed. Notwithstanding this very simple directive, Petitioner refused to comply. One day Petitioner went to Mr. Milton's office and found the door to the office was closed. Instead of knocking as she had been previously directed, Petitioner simply barged into the office and stated that she needed a band-aid. After Petitioner barged into the office without knocking, Mr. Milton reminded her that she should knock on the door and wait for a response before coming into his office. About three minutes after this admonition, Petitioner returned to Mr. Milton's office. Although the office door was closed, Petitioner, again, did not knock on the door, but simply opened the door and went into the office. Mr. Milton was not pleased with Petitioner's failure to embrace the directives he initiated and implemented for Porky's. However, the "final straw" that resulted in Mr. Milton's terminating Petitioner's employment was an incident about a menu item. On October 28, 2003, Petitioner was very upset that Mr. Milton had included an item on the Porky's menu that also had been on the Fat Boy's menu. That menu item was referred to as "Jim's Special Burger." Mr. Milton included that item on Respondent's menu to honor Jim Kenaston, who had been the owner of Fat Boy's. On October 28, 2003, Petitioner "flew off the handle" and confronted Mr. Milton about his decision to include the item, "Jim's Special Burger," on the Porky's menu. Petitioner, who admits she was upset about this matter, confronted Mr. Milton and argued to him that he had no right to put the "Jim's Special Burger" on Respondent's menu. The confrontation started in the kitchen of the restaurant, but continued after Petitioner left the kitchen and proceeded into the restaurant's dining room. Although there were customers in the dining room, Petitioner continued to argue with Mr. Milton about the menu item. Petitioner's verbal criticism and objection to Mr. Milton's decision to include "Jim's Special Burger" on Respondent's menu created such a commotion in the restaurant that Respondent's bookkeeper heard Petitioner's outbursts from her office located behind the cashier's counter. After the bookkeeper heard Petitioner arguing with Mr. Milton, the bookkeeper left her office and in an effort to de-escalate the situation, escorted Petitioner out of the dining room to a back hall of the restaurant where there were no customers. On October 28, 2003, as a result of Petitioner's inappropriate and unprofessional conduct described in paragraphs 10 through 13, Mr. Milton terminated Petitioner's employment at Porky's. The same day that he terminated Petitioner's employment, Mr. Milton completed a "Separation Notice" on which he indicated that Petitioner was laid off due to lack of work. The reason Mr. Milton wrote this on the form was so that Petitioner could receive unemployment compensation. Petitioner presented no competent and substantial evidence that she was terminated from employment because of her age. Likewise, Petitioner presented no evidence that after she was terminated, she was replaced by a younger worker. At all times relevant to this proceeding, Respondent had four or five employees who were over 40 years of age. Petitioner presented several witnesses who testified that she was an excellent waitress when she was employed at Fat Boy's. However, Petitioner's job performance while working for her previous employer is not at issue or relevant in this proceeding. Even if that testimony is accepted as true, no inference can be drawn that Petitioner's performance remained the same or was viewed as such by her new employer. Notwithstanding the opinions expressed by her previous employers and co-workers, Petitioner was terminated from her employment at Porky's as a result of her unacceptable and unprofessional conduct on October 28, 2003.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Porky's Barbeque Restaurant, did not commit any unlawful employment practice and dismissing the Petition for Relief. DONE AND ENTERED this 18th day of March, 2005, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 18th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Walter Milton Porky's Barbeque Restaurant 4280 South Washington Avenue Titusville, Florida 32780 Susan Coffy 2966 Temple Lane Mims, Florida 32754 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Petitioner, Jayne R. Phoenix (Phoenix) is entitled to attorney's fees and costs incurred while defending the charges made against her in the case of Department of Professional Regulation, Division of Real Estate, Petitioner v. Larry Neil Heckerd and Jayne R. Phoenix, Respondents, DOAH Case No. 90-6199 (DPR, DRE v. Heckerd and Phoenix) under the provisions of Section 57.111, Florida Statutes and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Facts Stipulated To By The Parties At all times material to this proceeding, Phoenix was a licensed real estate salesman in the state of Florida, holding license number 0069088, working under the brokerage license of Charles E. Earhart of Charles Earhart Realty (Earhart Realty). Phoenix timely filed her petition in the instant case in accordance with Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. On August 21, 1990 the Probable Cause Panel (Panel) of the FREC met and found probable cause to exist in Department's Case No. 0166101 against Phoenix and recommended the filing of an administrative complaint. The Department issued an administrative complaint in Case No. 0166101 against Phoenix and prosecuted this action in the case of DPR, DRE v. Heckard and Phoenix. Phoenix was a prevailing party in DPR, DRE v. Heckard and Phoenix in that the FREC issued a Final Order on April 19, 1991 finding Phoenix not guilty of the charges as alleged in the Department's Case No. 0166101 and dismissing the administrative complaint filed as a result of those charges. The hourly rate and the total number of hours expended by Phoenix's attorney set forth in the affidavit attached to the Petition For Statutory Attorney's Fees in the amount of $5,291.00 are reasonable, and should be the amount awarded in the event Phoenix is successful in presenting her petition. At all times material to this proceeding, all statutory requirements or conditions between Phoenix and her broker, Earhart Realty had been met. Facts Not Stipulated To By The Parties At all times material to this proceeding, Phoenix was domiciled in the state of Florida, having her principal place of residence located in Safety Harbor, Florida. Phoenix works as a licensed real estate salesman under the brokerage license of Earhart Realty; is compensated by commissions only, and receives no salary from Earhart Realty. Phoenix uses the offices of Earhart Realty but is not assigned any particular work area or desk. Phoenix is not required to work any specific hours or number of hours, or assigned any specific duties by Earhart Realty. Phoenix also works out of her home where she has a desk. Phoenix also uses her own car in her realty work. Phoenix does her own work in regard to any real estate transaction that she is handling, including the contract. Charles Earhart only sees Phoenix's real estate contracts at the time he signs as real estate broker on the contracts. Phoenix has no federal income tax employer identification number. Phoenix files her commission earnings for income tax purposes on the business part of IRS Form 1040 under her social security number. Phoenix's commission earnings are reported to the Internal Revenue Service by Earhart Realty on IRS Form 1099. Phoenix has no employees and is not a corporation or a partnership. Phoenix's assets are worth less than two million dollars. All monies received by Phoenix in any real estate transaction is placed in the escrow accounts of Earhart Realty. Phoenix does not maintain any escrow accounts in regard to her real estate business. On August 21, 1990 when the Panel met concerning the complaint against Phoenix it received and considered the complete investigative file which contained among other things, a letter from Rafael C. Lopez dated November 3, 1989 setting out his complaint against Phoenix and Larry Heckard and the Department's investigator's report of his interview with Lopez, Phoenix, Heckard, Charles Earhart and Dave Livesay, Building Inspector. The investigative file did not contain a copy of the local building code or ordinance which was alleged to prohibit the use of any area of the first level of the home as a game room or as an office. However, the investigative report did contain a statement from the investigator that in his interview with Livesay, the Building Inspector, that Livesay had stated that such use would be in violation of such code or ordinance. Lopez's complaint basically contained the following allegations: (a) that Phoenix was aware of the MLS listing sheet indicating a game room on the first floor level of the stilt house she showed the Lopezes during an "open house", (b) that Phoenix knew, or should have known, that the local building code or ordinance prohibited the use of this enclosed area, not only as a game room but as an office; (c) that while in the presence of Phoenix, during the open house showing and the walk-through at closing, the Lopezes discussed converting the so called game room into an office; (d) that on neither occasion did Phoenix advise them or comment on the fact that the use of this area as a game room or as an office was prohibited; and (e) in this regard, Phoenix had misrepresented the house to the Lopezes. Phoenix denied the allegations and pointed out to the investigator that she had referred to the area of the house in question as a "downstairs storage area" in the contract for sale executed by the Lopezes. There was no evidence presented as to any written agreement between Phoenix and Earhart Realty setting out the conditions of Phoenix's employment with Earhart Realty. While the investigation did not fully clarify all the factual issues, there was a basis for the Panel's determination of probable cause.
The Issue The issue is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System (FRS) pursuant to Section 112.3173, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the hearing, on the stipulations of the parties, and on the entire record of this proceeding, the following factual findings are made: Respondent is charged with managing, governing, and administering the FRS. The FRS is a public retirement system as defined by Florida law. The Duval County School Board (DCSB) employed Petitioner as a teacher at Ribault High School. As a teacher, Petitioner was subject to the Code of Ethics of the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.001. Petitioner also was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. Petitioner’s employment with the DCSB began on or about August 19, 1986. By reason of this employment, Petitioner was enrolled in the FRS as a Regular Class member. On or about December 7, 2001, Petitioner was arrested in connection with Officer David Coarsey's sworn information, which provided as follows in relevant part: On 12-07-01, Lt. Remolde called the Jacksonville Sheriff’s Office Sex Crimes Office and stated that a student at Ribault High School had reported to the principal, Mr. Ken Brockington, that she had penile/vaginal intercourse with this suspect. On 12-07-01, I arrived at Ribault High School and interviewed the victim. She stated that approximately three weeks ago, she went to the suspect’s classroom at his request after school hours. The suspect asked the victim to help him with some of his work. While she was there, the suspect put his arm around the victim and began rubbing her waist. The suspect then began talking to the victim about sex. The suspect then put his hand up the victim’s skirt and inserted his finger in her vagina. The suspect also pulled the victim’s shirt and bra down and “sucked” on her breast. The victim said that she did not attempt to stop the suspect. The victim then told the suspect, “I don't think we should do this”, and she walked out of the room. Approximately one week later, the suspect asked the victim to come back to his classroom after school. When the victim arrived at the room, the suspect began “rubbing” on the victim’s body. The victim stated that the suspect retrieved a condom from a “grey file cabinet” and then sat down in a chair. The suspect pulled his penis out and the victim put the condom on his penis. The victim pulled her shorts down and sat on the suspect’s lap, at which time the suspect put his penis in the victim’s vagina. After having penile/vaginal intercourse with the suspect for a short period of time, the victim stood up and the suspect masturbated until he ejaculated. On 12-07-01, the victim met the suspect in the “Book Room”. The suspect pulled the victim’s shirt and bra down and “sucked” on her breast. The suspect then pulled his penis out of his pants and asked the victim to masturbate him. The victim masturbated the suspect until he ejaculated. The victim wiped the suspect’s semen off of her hands with a paper towel and threw it in the trash can in the “Book Room”. The victim then left the room and reported the incident to a substitute teacher, Mr. Carlos Bowers (12-25- 59, 3701 Winton Dr., B/M), who in turn, reported it to the principal, Mr. Brockington. The victim stated to me that all of the sexual encounters with the suspect were consensual. I retrieved the trash bag that contained the above mentioned paper towel from the “Book Room” and put it in the JSO Property Room. The suspect was transported to the JSO Sex Crimes Office by Officer D.W. Holsey #6044 and I transported the victim to the Sex Crimes Office. I contacted the victim’s mother and asked her to come to the JSO Sex Crimes Office. When she arrived, she transported the victim to the Child Crisis Center for a medical exam (swabs of the victim’s breasts). I advised the suspect of his constitutional rights and asked him to sign the rights form. The suspect signed the form and agreed to speak to me and Det. Romano #7527 about the allegations. The suspect admitted to having penile/vaginal intercourse with victim one time, “sucking” on the victim’s breast on two different occasions, and rubbing on her vagina once. The suspect stated that all of the sexual encounters happened at the school. The suspect stated, “It was a huge mistake, my life is fucked”. The suspect gave a written statement in regards to having penile/vaginal intercourse with the victim. The suspect was arrested and transported to the PTDF. The information reported in the sworn information truly and accurately recounts the events that occurred and to which Petitioner admitted. The arrest and booking report is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. Petitioner resigned his employment with the DCSB on or about December 27, 2001, effective on or about January 15, 2002. By reason of his employment with DCSB, Petitioner earned approximately 15.80 years of service credit in the FRS. On or about February 14, 2002, Petitioner was charged, by amended information, in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in case number 2002-599-CFA, with (a) one count of sexual battery, a second-degree felony, in violation of Section 794.011(8)(b), Florida Statutes; and (b) one count of lewd or lascivious molestation, a second-degree felony, in violation of Section 800.04(5)(c)2., Florida Statutes. The amended information provided in relevant part: HARRY.L. SHORSTEIN, State Attorney for the Fourth Judicial Circuit of the State of Florida, in and for Duval County, charges that ARTHUR JOHN MARSLAND, JR, on or between the 1st day of November, 2001 and the 7th day of December, 2001, in the County of Duval and the State of Florida, did, while in a position of familial or custodial authority, engage in an act which constitutes Sexual Battery with * * * a person 12 years of age or older, but less than 18 years of age, by placing his penis in or upon the vagina of * * * contrary to the provisions of Section 794.011(8)(b), Florida Statutes. SECOND COUNT And for the second count of this information, your informant further charges that ARTHUR JOHN MARSLAND, JR., a person 18 years of age or older, on or between the 1st day of November, 2001 and the 7th day. Of December, 2001, in the County of Duval and the State of Florida, did in a lewd or lascivious manner force or entice * * * a child l2 years of age or older, but less than 16 years of age, to touch the genital area or clothing covering the genital area of Defendant, contrary to the provisions of Section 800.04(5)(c)2, Florida Statutes. The amended information is filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. The victim of the alleged crimes was a student at the school where Petitioner taught. The alleged crimes took place in Petitioner's classroom or in the book room at the school where Petitioner taught. On or about April 8, 2002, Petitioner entered a plea of guilty to the second count of the amended information. Petitioner pled guilty because he was in fact guilty. Petitioner made the plea freely and voluntarily. On or about April 29, 2002, judgment was entered on Petitioner’s guilty plea. He was adjudicated guilty. The judgment and corrected order of sex offender probation are filed in the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, in the case styled and numbered State of Florida v. Arthur John Marsland, Jr., Case No. 2002-599-CFA. During the hearing, Petitioner admitted that, but for his job position as a teacher, he “probably [would] not” have had an opportunity to have sexual relations with a student in the school’s classroom or book room. Petitioner also admitted that having sexual relations with one of his students was “obviously not” one of his duties and responsibilities as a teacher. Petitioner wrote three letters of apology in connection with the matter. He apologized in writing to the victim, to his spouse, and the DCSB. On or about September 27, 2002, Charlie Crist, as Commissioner of Education, filed an Administrative Complaint, before the Education Practices Commission of the State of Florida, in case number 02-0681-RT. The complaint sought disciplinary action against Petitioner’s educator’s certificate. The Administrative Complaint charged Petitioner in part with the following statutory and rule violations: STATUTORY VIOLATIONS COUNT 1: The allegations of misconduct set forth herein are in violation of Section 1012.795(1)(c), Florida Statutes, in that Respondent has been guilty of gross immorality or an act involving moral turpitude. COUNT 2: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(e), Florida Statutes, in that Respondent has been convicted of a misdemeanor, felony, or other criminal charge, other than a minor traffic violation. COUNT 3: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(f), Florida Statutes, in that Respondent, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the school board. COUNT 4: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(i), Florida Statutes, in that Respondent has violated the Principles of Professional Conduct for the Education Profession in Florida prescribed by State Board of Education. COUNT 5: The allegations of misconduct set forth herein are in violation of Section 231.2615(1)(j), Florida Statutes, in that Respondent has otherwise violated the provisions of law, the penalty for which is the revocation of the teaching certificate. COUNT 6: Section 231.2615(2), Florida Statutes, provides that the plea of guilty in any court or a decision of guilty by any court is prima facie proof of grounds for the revocation of the certificate. RULE VIOLATIONS COUNT 7: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(2), Florida Administrative Code, in that Respondent has failed to have his primary professional concern always be for the student and for the development of the student’s potential and has failed to seek to exercise the best judgment and integrity. COUNT 8: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.001(3), Florida Administrative Code, in the Respondent has failed to be aware of the importance of maintaining the respect and confidence of his colleagues, of students, of parents, and of other members of the community and that Respondent has failed to achieve and sustain the highest degree of ethical conduct. COUNT 9: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(a), Florida Administrative Code, in that Respondent has failed to make reasonable effort to protect the student from conditions harmful to learning and/or to the student’s mental health and/or physical safety. COUNT 10: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(e), Florida Administrative Code, in that Respondent has intentionally exposed a student to unnecessary embarrassment or disparagement. COUNT 11: The allegations of misconduct set forth herein are in violation of Rule 6B- 1.006(3)(h), Florida Administrative Code, in that Respondent has exploited a relationship with a student for personal gain or advantage. The Administrative Complaint is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. In consideration of the Administrative Complaint, the Education Practices Commission entered a Final Order permanently revoking Petitioner’s educator’s certificate. The Final Order is filed with the Education Practices Commission of the State of Florida in case number 02-0681-RT. On or about October 20, 2003, Petitioner applied for early service retirement. Petitioner’s effective date of retirement was established as November 1, 2003. By certified letter dated May 2, 2008, Respondent notified Petitioner of the intended action to forfeit his FRS rights and benefits as a result of his guilty plea. The Division suspended payment of Petitioner’s monthly retirement benefits in May 2008. Petitioner had received approximately $41,309.56 in FRS retirement benefits from November 2003 through April 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 15th day of December, 2008. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Arthur J. Marsland, Jr. 1856 B Hereford Road Middleburg, Florida 32068-3104 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee,, Florida 32315-9000 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Findings stipulated to by the parties On March 27, 1990, the school district issued an Invitation For Bids, Bid NO. 91-037V for Security Guard Services - Term Contract. Special Condition 5 of the bid specifications states as follows: Bidders shall submit evidence with this bid of the following: The bidder is presently engaged in security services; and The bidder has an established record of satisfactory performance over the past three (3) years and shall furnish names of five (5) organizations for whom the bidder has provided security services during this period. Failure to provide this information with the bid shall result in disqualification of bid submitted. (emphasis furnished) The school district received timely bids upon Bid NO. 91-037V from eight bidders, including the Petitioner, Security Services, Inc. Bids were open on April 19, 1990, at 2:00 p.m. Six of the eight bidders upon Bid NO. 91-037V submitted with their bids the five (5) references required by Special Condition 5 of the Invitation To Bid. The Petitioner, Security Services, Inc., failed to submit the required five (5) references along with its bid. Security Services, Inc.'s, bid of $6.25 per hour constituted the lowest hourly rate contained in any of the bid submittals. Universal Security Consultants' bid submittal contained a proposal to render guard services at the rate of $6.88 per hour and constituted the second lowest hourly rate contained in any of the bid submittals. In addition, Universal's bid submittal met all other requirements of the bid specifications and included the five (5) references required by Special Condition 5. Prior to issuing a recommendation upon the bid item, the staff of the school district contacted the five references submitted by Universal Security Consultants with its bid, and each reference indicated that Universal had satisfactorily provided security guard services. After reviewing and evaluating the bid submittals, the staff of the School Board recommended the rejection of Security Services, Inc.'s bid for its failure to meet the requirements of Special Condition 5 of the Invitation To Bid. It was further recommended that a contract be awarded to Universal Security Consultants under Bid NO. 91-037V. The recommendations and bid tabulations were posted on April 26, 1990, at 3:00 p.m. On April 27, 1990, the Petitioner, Security Services, Inc., submitted a document entitled "Letter Of Protest -- Bid NO. 91-037V" to the school district. Within the document, Security Services, Inc., notified the school district of its protest of recommendations that were posted on April 26, 1990. The document states that "[w]hile preparing this year's bid package, I [the owner of Petitioner] overlooked the section pertaining to requirement of having to list references." The document requests the school district to reconsider the bid of Security Services, Inc., and lists the following organizations as references: The School Board of Broward County, Florida; WSCV - Ch. 51; The Lauderhill Mall; Telemundo Productions, Inc.; and Midway Club Apartments. The Petitioner, Security Services, Inc., had previously been awarded contracts by the school district to provide security guard services. The first contract was dated February 4, 1988. A second contract was awarded to Petitioner on March 1, 1989, and the Petitioner was providing security guard services to the school district under the second contract at the time of the bid proceedings pertaining to Bid NO. 91-037V. The first contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 88-518D. The bid specifications for Bid NO. 88-518B did not require bidders to submit references, and none were provided at that time by Security Services, Inc. The second contract awarded to the Petitioner by the school district arose from Security Services, Inc.'s, bid submission to a certain bid numbered 89-368V. The bid specifications for Bid NO. 89-368V contained a requirement to submit references identical to the requirement contained in the bid specifications for Bid NO. 91-037V. Security Services, Inc., did submit five references along with its bid proposal to Bid NO. 89-368V. The five references listed in the Petitioner's bid submittal to Bid NO. 89-368V were as follows: Broward County School Board; WSCV-Ch. 51; Lauderhill Mall; Lauderdale Yacht Basin; and Woodhue Condominium Association. On May 1, 1990, the school district received a formal written Notice Of Protest [dated April 30, 1990] from Security Services, Inc. Within the formal written protest, the Petitioner requested that it be awarded the contract for security guard services on the basis of the Petitioner's work being satisfactory and the lowest bid. The protest asserted that Security Services, Inc., had de facto complied with the requirements of Special Condition 5 as Petitioner had provided this information to the school district in previous years and that such information was on file at the school board. The Petitioner further asserted that the failure to submit the five (5) references was an irregularity that could be waived by the school district or that was correctable after opening of the bids. The formal written notice of protest filed by Security Services, Inc., states as follows: There was an unintended omission from the Security Services, Inc., Invitation to Bid in that through inadvertence, Security Services, Inc., failed to provide a list of five (5) organizations for whom the bidder has provided security services as required by Paragraph 5B of the Special Conditions. On May 15, 1990, the School Board considered the protest filed by Security Services, Inc., and rejected the same. The Petitioner subsequently requested further proceedings in accordance with Chapter 120, Florida Statutes, and these proceedings commenced. b. Additional facts established at hearing: The School Board requires the inclusion within its bids of the names of five (5) organizations for whom the bidder has provided security services over the past three (3) years in order to be able to evaluate the present ability of the bidder to perform under a contract awarded under the bid item. The information as to references is evaluated and investigated by the school district as to the apparent low bidder prior to the posting of recommendations for the award of the bid item. Security Services, Inc., has satisfactorily performed the two security guard contracts it has previously been awarded by the School Board, and there have been no complaints about the performance of Security Services, Inc., under those two contracts. At the time the bids in this case were opened, the School Board already knew that Security Services, Inc., could perform satisfactorily because it had been doing so for the School Board for two years. Over the term of the contract, the difference in cost between the low bid submitted by Security Services, Inc., and the second low bid submitted by Universal Security Consultants, will amount to approximately $50,000.00.
Recommendation For the foregoing reasons, it is RECOMMENDED that the School Board of Broward County enter a Final Order in this case concluding that the irregularities in the bid submitted by Security Services, Inc., are minor irregularities, that those irregularities are waived, and that Bid NO. 91-037V should be awarded to Security Services, Inc. DONE and ENTERED this 24th of July, 1990, in Tallahassee, Florida. MICHAEL M. PARRISH 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 day 24th day of July, 1990.
The Issue Whether Charles Jackson and/or Charles Jackson Architectural Designs (Respondents) committed the offenses alleged in the subject Administrative Complaint, and if so, the penalties that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Board of Architecture and Interior Design, is the agency of the State of Florida charged with the duty and responsibility to regulate the practice of architecture pursuant to chapters 20, 455, and 481, Florida Statutes. Respondent, Charles Jackson (Mr. Jackson), has never been licensed or certified as an architect in Florida or any other jurisdiction. Respondent, Charles Jackson Architectural Designs, has never been licensed as an architectural business in Florida or any other jurisdiction. At times relevant to this proceeding, Mr. Jackson did business in Palm Beach County, Florida, as Charles Jackson Architectural Designs.1/ Mr. Jackson also did business as “Charles Jackson Design Construction” and “Charles Jackson Design.” At some time prior to October 8, 2012, Mr. Jackson entered into a contract with the owners of a residence located in Riviera Beach, Florida, to prepare drawings for an addition to the residence. The addition was a simple storage area. Mr. Jackson prepared the drawings, which he dated October 8, 2012. Mr. Jackson gave the drawings to the owners of the residence so they could obtain a building permit. The City of Riviera Beach requires a duly-licensed architect to sign and seal drawings for any addition to a residence before issuing a building permit for the addition.2/ The building department for the City of Riviera Beach rejected Mr. Jackson’s drawings because they were not signed and sealed by a licensed Florida architect. The owners brought the drawings back to Mr. Jackson, and told him that the drawings had been rejected because they were not signed and sealed by an architect. Mr. Jackson did not advise the owners that they should hire an architect to sign and seal the drawings. Instead, Mr. Jackson took it upon himself to get the drawings signed and sealed by a Florida licensed architect named Michael Hall. Michael Hall died on October 15, 2012. When Mr. Jackson returned the drawings to the owners, a seal and signature purporting to be the seal and signature of Michael Hall had been affixed to the drawings. The seal and signature were dated November 5, 2012.3/ The owners thereafter took the drawings to the building department for the City of Riviera Beach to obtain a permit for the addition. The drawings were rejected because the building officials knew that Michael Hall died prior to November 5, 2012, the date he purportedly signed and sealed the drawings. When the owners confronted Mr. Jackson with the news that the permit had been rejected, Mr. Jackson refunded to the owners the sum of $350.00, the amount they had paid him for the drawings. On July 31, 2014, Petitioner entered against Respondents a “Notice and Order to Cease and Desist” which included an order that Mr. Jackson cease and desist doing business as “Charles Jackson Architectural Designs.”
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Business and Professional Regulation, Board of Architecture and Interior Design, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is FURTHER RECOMMENDED that the final order find Respondent, Charles Jackson, guilty of violating section 481.223(1)(a), Florida Statutes, as alleged in the Administrative Complaint and impose an administrative fine in the amount of $3,000.00 for that violation. It is FURTHER RECOMMENDED that the final order require Respondent, Charles Jackson, to cease and desist doing business as Charles Jackson Architectural Design. It is FURTHER RECOMMENDED that the final order require Charles Jackson to pay the costs of its investigation.4/ DONE AND ENTERED this 8th day of April, 2015, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 2015.
The Issue Whether Respondent, Suncoast Architecture and Engineering, LLC. (Suncoast), retaliated against Petitioner, Kenan Tuzlak, after Petitioner filed a discrimination complaint against Suncoast and, if so, what relief should be granted to Mr. Tuzlak.
Findings Of Fact At all times material to this case, Suncoast was an architectural and engineering company located in Clearwater, Florida. Mr. Burnett is the president and sole owner of Suncoast. Suncoast was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. In November 2011, Mr. Tuzlak was first employed by Suncoast as a draftsman. He was promoted to designer, receiving an increase in pay and bonuses. His initial title at Suncoast was "Senior Engineering Technician." On Monday, June 11, 2012, Mr. Tuzlak was terminated from his employment at Suncoast. On November 5, 2012, Mr. Tuzlak filed a charge of employment discrimination (Charge 1) pursuant to Pinellas County Code section 70–76. Mr. Tuzlak alleged he was discriminated against based on his religion and retaliation. On Friday, December 21, 2012, William Hurter, counsel to Suncoast, mailed a letter directly to Mr. Tuzlak. Mr. Tuzlak received the letter the next day. That letter, in pertinent part stated: By way of introduction, this firm represents the interests of Suncoast Architecture & Engineering LLC ("Suncoast"). We are in receipt of your claim and have already been in contact with the Pinellas County Office of Human Rights. To begin, we would like to reiterate Suncoast's position: your termination from employment had nothing to do with any sort of discrimination whatsoever, and was based solely on legitimate business necessities. Our client also stated your claim is filled with falsehoods and misrepresentations. As a result, Suncoast is demanding that you withdraw your discrimination claim within 7 days of the date of this letter. If you do not withdraw your claim, we will represent Suncoast throughout the discrimination proceedings and we will also be filing a lawsuit against you for trade slander, in addition to any other legal causes of action which Suncoast may be able to pursue against you for your meritless discrimination claim. We would also ask that any further communications you may seek to have with Suncoast come strictly through this office. We will ensure that any statements or other information from you is forwarded to the appropriate representative of Suncoast. Overall, we are sympathetic to your situation and understand the hardships associated with losing one's job. However, in today's economy many individuals and business [sic] are struggling and it is inappropriate and against the law to file a discrimination claim in retaliation to a lawful and necessary termination of employment. With that in mind, we hope you will accept our offer to withdraw your claim against Suncoast in exchange for Suncoast agreeing not to pursue its legal rights against you. Mr. Tuzlak felt threatened and scared by the letter. Mr. Tuzlak believed the intent "of this document [letter] was to scare me off and stop me from enforcing my legal rights." Mr. Tuzlak understood the letter was a demand for him to withdraw the prior discrimination case (Charge 1) against Suncoast, or Mr. Tuzlak would be sued for, among other things, "trade slander."1/ The letter accused Mr. Tuzlak of filing Charge 1 with "falsehoods and misrepresentations." Mr. Tuzlak feared he would incur financial loses. His testimony is found to be credible. On January 22, 2013, Mr. Tuzlak filed the retaliation charge (Charge 2) pursuant to Pinellas County Code section 70-54. At the time Charge 2 was filed, the allegations in Charge 1 had not been resolved.2/ After Charge 2 was filed, but before this hearing was held, Mr. Tuzlak moved to Alberta, Canada, where he is currently working as a design engineer. Mr. Burnett makes all the decisions regarding Suncoast. Mr. Burnett directed Mr. Hurter to write the letter to Mr. Tuzlak. Mr. Burnett wanted Mr. Tuzlak to stop pursuing the original discrimination charge. Mr. Burnett "intended to gain an end to this proceeding [Charge 1] without causing any more damage to anyone." Mr. Burnett's stated desire to "inform him [Mr. Tuzlak] that there are adverse consequences that can happen to you if this happens" is self-serving. Mr. Burnett does not have any recollection of any statements Mr. Tuzlak made outside of the allegations found in Charges 1 and 2. Mr. Burnett did not receive any direct feedback from the community about any statements Mr. Tuzlak may have made. Suncoast's employees were told of the allegations in the Charges, but that information did not come from Mr. Tuzlak. Mr. Burnett conceded he had no way to know if Suncoast sustained any loss or damage as a result of either Charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Suncoast Architecture & Engineering, LLC, violated section 70-54(l), Pinellas County Code; and Ordering Suncoast to pay Mr. Tuzlak reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 3rd day of January, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2014.
The Issue The issue to be determined is whether Petitioner proved that Respondent, SolarTech Universal, LLC ("SolarTech"), discriminated against him on the basis of Petitioner's race, national origin, age, or disability in violation of section 760.10, Florida Statutes (2020).
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of relevant and material fact: Petitioner was employed by Respondent. He worked on the production line, working at different stations, assembling various components of solar panel systems or related equipment. 2 At the beginning of the hearing, Respondent represented that it would order the hearing transcript. Respondent later filed a request to dispense with ordering the transcript, due to the fact that it could not afford the transcript. A telephonic hearing was held to discuss the request. Respondent again asserted it could not afford the transcript. When asked if he wanted to order the transcript, Petitioner disclosed, essentially, that he was also unable to afford the hearing transcript. The undersigned was careful to explain to both parties that if no transcript was ordered, there would be no official hearing transcript and the undersigned would rely upon his notes, his recollection of the evidence, and the hearing exhibits. The On March 22, 2019, Petitioner voluntarily resigned from his employment with Respondent. His exit interview was performed that same day and the exit forms he signed contained no mention of discrimination of any kind. Significantly, Petitioner never filed any verbal or written complaints of discrimination during his employment at SolarTech. Apparently, Petitioner had some sort of physical disability, but offered no detailed or helpful testimony to explain the nature, scope, or extent of his disability. Based on the limited evidence and the reasonable inferences from the evidence, Petitioner's disability involved some sort of unexplained vision impairment or limitation. There was no medical evidence, documentation, or certifications offered to verify or describe his disability or condition. The narrative testimony presented by Petitioner regarding his employment problems or issues was brief, indistinct, and vague. Petitioner's voluntary resignation--as best as could be determined by the undersigned--had something to do with a report that was filed, which involved Petitioner's alleged sexual misconduct against a female employee by the name of Danita Jackson ("Jackson"). Petitioner claimed that the report was false. Petitioner said he quit because he was "going through all those issues." Petitioner added that another reason he quit was because the company intended to, or did, use him, and two other black employees, as "modern slaves" for only low pay. Petitioner offered no documents during his presentation. When asked by the undersigned if he had any documents to offer during his case-in-chief, he responded that the documents "he needed" were "not here." Essentially, this was the sum and substance of Petitioner's brief evidentiary presentation. undersigned reluctantly agreed not to require Respondent to order the transcript, and entered an Order to that effect. As a result, there is no existing transcript of the hearing. The undersigned finds that Petitioner failed to establish a prima facie case of discrimination or retaliation of any sort at the hearing. Despite the brief and unpersuasive presentation by Petitioner, Respondent called two witnesses and offered a variety of documents to explain its position in response to the disjointed and imprecise "claims" presented by Petitioner at the hearing. Evidence Offered by Respondent During Petitioner's tenure at SolarTech, Petitioner did not report or document any claims of discrimination for the management team or Human Resource Department ("Human Resources"). During his exit interview, Petitioner likewise made no references to any claims of discrimination or retaliation. In response to Petitioner's claim of retaliation, in that Respondent shared or issued an allegedly false sexual harassment claim, Respondent offered Exhibits 7-1, 7-2, 7-3, and 8-1, and the testimony of Roraff. Exhibit 7-1 is an Employee Incident Report completed by Horace Ducram (Shift Supervisor), which specifies that the complaint made against Petitioner was for "harassment" (second sentence) and not "sexual harassment" as claimed by Petitioner. Exhibit 7-2 is an Employee Incident Report completed by Jodilynn Brown (HR Manager) that reviews the incident, as well as the action that was taken to resolve the harassment claim that was made by Jackson. As documented in these notes, Petitioner was advised not to have any direct contact or conversation with Jackson. Petitioner said "he understood and that this will never happen again." On September 11, 2018, both parties were advised to keep their distance from one another, that this was best for both parties involved. SolarTech's Human Resources followed up on September 28, 2018, and determined that there were no further issues reported by either party. Exhibit 7-3 is a letter written on September 17, 2018, by Petitioner, in response to the harassment complaint. In it, Petitioner acknowledged that the claim by Jackson was general harassment misconduct, and not sexual harassment. Petitioner provided no persuasive direct or circumstantial evidence that supported his claim that Respondent discriminated or retaliated against him by sharing any reports or claims of sexual harassment. Respondent determined that no false or slanderous reports about Petitioner were shared with the Florida Division of the Blind Services or any other potential employer. It was SolarTech's policy only to confirm employment, dates of hire, and position or title. This evidence was credited by the undersigned. Petitioner also unpersuasively claimed that one of the forms of discrimination was SolarTech's requiring him to operate two workstations during his shift as "slave labor." To address this "claim," Respondent submitted Exhibits 5-1, 5-2, and 5-3, and the testimony of Roraff. Exhibit 5-1 outlines the staffing requirements by assignment or workstation. This document was supplied by Meyer Burger, the company that designed and manufactured the solar panel manufacturing equipment used by SolarTech. Thirteen employees, per shift, were considered full capacity to operate the production line. Exhibit 5-2 shows the staffing census by month, as supplied by Paychex, Respondent's payroll processing company. Production on the line required 13 employees to work at full production. The staffing during each of the months in question was: November 2018: 22 employees (+8 employees over staffed)[.] December 2018: 22 employees (+8 employees over staffed)[.] January 2019: 19 employees (+6 employees over staffed)[.] February 2019: 18 employees (+5 employees over staffed)[.] March 2019: 14 employees (+1 employee over staffed)[.] Exhibit 5-2 reflects that SolarTech had to implement a reduction in force ("RIF"). It was required to reduce its staff by three employees in February 2019. This is one month before Petitioner resigned and not three days as Petitioner claimed. The RIF was legitimate and necessary. As outlined in Exhibit 5-2, SolarTech's staffing was overstaffed by one employee at the time Petitioner resigned. This fact belies Petitioner's claim that Respondent was understaffed, or that he was being used or forced into "slave labor." Exhibit 5-3 illustrates the number of units produced per month versus production capacity (4200 modules per month). This exhibit also shows that monthly production, relative to production capacity, presented no strain on labor, nor would it have resulted in Petitioner being overworked. In fact, for the months Petitioner complained he was overworked, production was: 1. November 2018: 100 out of 4200 (2.3% of capacity)[.] 2. December 2018: 16 out of 4200 (0.3% of capacity)[.] 3. January 2019: 126 out of 4200 (3% of capacity)[.] 4. February 2019: 722 out of 4200 (17% of capacity)[.] 5. March 2019: 1539 out of 4200 (37% of capacity)[.] At no time during the five months prior to Petitioner's resignation was the facility at SolarTech understaffed, nor was he overworked. The production team was only required to work at a limited pace, that was, at peak, only 37% of the speed or output designed by the machine manufacturer. Staffing levels at the work stations were always above that required by the machine manufacturer. During the months that Petitioner complained about, the machines ran at a limited production capacity or speed that was, at its highest pace, only 37% of capacity. Conversely, approximately 63% of the employee's time was not working on production. So, Petitioner and other employees had more time to take additional breaks. Petitioner had a chair at his station to sit in during these down times. Even though production employees were required to be trained at multiple stations, as referenced by their job description, they were only required to work one station at a time. SolarTech employees worked on a linear production line. On a linear production line, the employees can not physically work more than one station at the same time. If there was a requirement to operate two stations during a shift, the workload did not increase. The employee merely moved back and forth a few steps between two consecutive work stations in the process. This explanation offered by SolarTech constituted persuasive and credible evidence to establish that any actions by it involving Petitioner during the five months leading up to his voluntary resignation were for legitimate business reasons, and not discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Jodilynn Brown SolarTech Universal, LLC 1800 President Barack Obama Highway Riviera Beach, Florida 33404 (eServed) Errol Hayden White Apartment 1 194 Norwich West Palm Beach, Florida 33417 Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
