The Issue The issues for determination in this case are: Whether the City of Altamonte Springs (City) violated Sections 760.10(1)(a), F.S., by discriminating against Albert Robinson (Robinson) on the basis of his race (Black) or his national origin (Jamaican), with respect to compensation, terms, conditions, or privileges of employment; Whether the City violated Section 760.10(7), F.S., by discriminating against Robinson in retaliation for his opposition to a practice which is an unlawful employment practice under this section or because he assisted or participated in any manner in an investigation, proceeding, or hearing under this section; and If such violations did occur, what relief is appropriate pursuant to Section 760.10(13), F.S.
Findings Of Fact Petitioner, Albert H. Robinson is a black male, over 18 years of age, born in Jamaica, West Indies. Respondent, the City of Altamonte Springs, is a municipal corporation organized and existing under the Laws of the State of Florida, and admits that it is an "employer" for purposes of the Human Rights Act of 1977, as amended, sections 760.01-760.10 F.S. Robinson's account of how he arrived in the United States approximately seven years ago is bizarre, but uncontroverted, and for purposes of this proceeding is deemed true. In Jamaica, Robinson had been affiliated with the ruling People's National Party. He held the government post of Development Director in the "New Development Agency" and was in charge of approximately 300 underprivileged persons. He was also president of a youth organization within the party, and was involved in organizing youth activities and selecting members to visit Cuba as a party representative. At some point he was approached by an American embassy attache from the CIA who recruited him to provide under-cover information on the party. When that involvement became publicly exposed, he was forced to flee the country. Robinson and his family lived for awhile in Panama and other Latin American countries. When they decided to emigrate to the United States, the U.S. Government made arrangements for Mrs. Robinson and the children to enter through Miami and for Mr. Robinson to cross the border "illegally" at Brownsville, Texas. He was given authorization to work and temporary asylum. He is currently awaiting disposition of his petition for a more permanent status. Through other relatives in Florida, Robinson ended up in Altamonte Springs. At the time that he was hired by the City in September 1984, Robinson presented a letter from the INS permitting him to work during the pendency of his asylum petition. The City was thus aware of his national origin and non- citizen status. Robinson was hired as a laborer in the city water distribution division on September 24, 1984. He received two personnel evaluations during his probationary period, both "average," with every factor rated "average," and few comments. On February 7, 1985, he was promoted from laborer to utility serviceworker, a more responsible position. The serviceworker is generally assisted at a job site by the laborer, who does most of the digging. The Dixon Personnel Board hearing In April 1985, Robinson assisted a black coworker, Patrick Dixon, at his hearing before the City Personnel Board. Dixon and another black utilities worker, Carl Wilder, had been accused of making obscene and inappropriate gestures to two white women while the men were on city duty. Wilder was given a one-day suspension. Dixon, who already had a negative performance record, was given a two-day suspension. Dixon appealed the discipline to the Personnel Board. Robinson's involvement at the hearing on April 3rd was to sit behind Dixon and assist with the documents. Robinson, who had no firsthand knowledge of the incidents, did not testify. Carl Wilder did testify on behalf of Dixon. The Personnel Board, in a unanimous decision by all members present, upheld the disciplinary action. Robinson believed that Patrick Dixon had been the victim of a racial vendetta. Dixon testified in this proceeding that he, also, feels that the charge was racially motivated, yet nothing in the written documents related to his appeal supports that contention. The basis for his appeal was the insufficiency of the evidence against him and his contention that he was a bystander while Wilder, the actual perpetrator, received a lesser penalty. Shortly after the hearing Dixon was terminated for absenteeism. He did not file a discrimination complaint nor take any other action against the city. Wilder is still employed by the city, and in 1987, was promoted from laborer to serviceworker. The performance evaluation On May 3, 1985, Robinson received his first performance evaluation as a utility serviceman. His overall rating by his reporting supervisor, George Simpkins, was "average." However, he received "below average" in four categories: "ability to carry out instructions/orders"; "conduct"; "directs the work of subordinates effectively"; and "ability to make decisions within his authority." The comments in explanation of these ratings related to Robinson's failure to follow operating procedures, his temper and conflict with fellow employees, and his dictatorial manner in dealing with subordinates. Robinson was not pleased with the evaluation and wrote a letter to the Assistant Director of Public Works, Ronald Howse, asking to discuss it. Howse suggested that the discussion take place with Larry Alewine and George Simpkins, who were the supervisors responsible for the evaluation. Alewine was Simpkins' immediate supervisor. The discussion took place. Robinson now claims that Larry Alewine asked him why he followed Patrick Dixon to City Hall and claims that Alewine blamed the evaluation on his involvement with Dixon. Alewine denies this and cannot recall any notoriety with regard to Robinson's association with Dixon. Not following procedures and problems with fellow employees Robinson's difficulties in working with others and in following procedures are well-documented throughout his 1985 and 1986 employment with the city. In June 1985, he received a notice of remedial action after placing a water meter in a location where the customer wanted it, rather than where he had been directed to place it. The customer was happy, but under the city's procedures, the serviceman does not have the authority on his own to change the supervisor's direction. On November 4, 1985, Robinson had an altercation with his supervisor, Larry Alewine, regarding a meeting that Robinson wanted with Chris Hill, the recently-appointed director of the city's water distribution division. Alewine attempted to convey Hill's directive that Robinson put his request in writing, but Robinson became loud, yelled at Alewine and started to leave. When Alewine attempted to call Robinson back to discuss the matter, Robinson retorted that he (Alewine) wasn't his daddy. Right after the incident Robinson apologized for getting loud and Alewine explained that he would still have to "write him up," because he had refused to come back in the building and was hollering. Robinson claims that the incident occurred prior to 7:30 A.M., when he was still on his own time, but this claim is unsupported by Alewine or any of the other several witnesses. On November 26, 1985, Robinson and Carl Wilder were at a job site trying to locate a buried water meter. Wilder, as the laborer, was doing the digging. Robinson, his superior, insisted that Wilder keep digging in a place where Wilder did not believe the meter was located. Both men's tempers flared and Wilder called the supervisor to the site to prevent further argument. Because it was near the end of the day, Robinson was excused and Wilder was taken back to the city garage. Chris Hill spoke with both Robinson and Wilder and determined that no disciplinary action was warranted. He told Wilder that if he had any complaints or grievances about Robinson, he would have to put them in writing. Chris Hill asked other employees if they had problems working with Robinson; he did not, as alleged by Robinson, solicit written statements against Robinson from other employees in the division. Chris Hill Most of Robinson's claims of discrimination by the city are directed toward Chris Hill, who, in October 1985, was placed in charge of the city's water distribution division. The City Manager, Philip Penland, was concerned about the management of the division. The Dixon/Wilder incident was an example. Larry Alewine and George Simpkins, both white Americans, were considered to be weak leaders. Robinson and Carl Wilder were identified as employees with whom there had been problems. Chris Hill started working for the City of Altamonte Springs in 1977 as temporary summer help and laborer. He gradually worked his way up through various levels of management and was highly regarded by his supervisors and by Philip Penland as a competent and capable employee, with a positive, "can-do" attitude. He was regarded as a tough manager who could obtain top performance from his employees. In addition to his duties at Altamonte Springs, he also is in charge of water plant operations in the neighboring towns of Eatonville and Maitland. Lack of tact and finesse in dealing with people, including subordinates, have been considered Hill's weak points. Hard times in the Water Distribution Division These characteristics and Hill's direction to shape up the division led to some tense months in the division. Larry Alewine, whose management style was certainly more relaxed, openly referred to Hill as "God" and "asshole." Alewine's position had been downgraded as a result of the reorganization, and he eventually left the city in 1987 after his position was eliminated from the budget. George Simpkins left a bitter resignation notice when he resigned in October, shortly after Chris Hill's appointment. In February 1986, Larry Alewine prepared an evaluation of Robinson which was reviewed, consistent with procedures, by Chris Hill. Hill did not believe the evaluation was strong enough, in light of his knowledge of the incident with Wilder and other minor problems with fellow employees. Both Hill and Scott Gilbertson, the Assistant Director of Public Works, met with Alewine and suggested that the evaluation should be changed. When Alewine declined, Chris Hill changed the evaluation. The evaluation, dated 3/6/86, rates Robinson overall as "Employee needs improvement." The written comments are very similar to those made by George Simpkins on the May 1985 evaluation; that is, the quality of his work was deemed generally good, but his conduct, ability to follow instructions, and ability to get along with fellow employees was noted as the real problems. While it is not apparent from the evaluation itself and the testimony in this proceeding how much of the evaluation was completed by Larry Alewine, it is clear that at least some of the negative written comments were made by him. (Respondent's exhibit #2.) The meeting with management officials and its aftermath Robinson wrote a protest of his evaluation which precipitated a meeting with himself, Chris Hill, Scott Gilbertson, Philip Penland, and the City Personnel Director, Sam Frazee. The evaluation was discussed; Robinson was told that his signing the evaluation only acknowledged its receipt and that he could provide his written notations on the back of the evaluation regarding portions with which he disagreed. The group also discussed an appointment Robinson had made with the city's worker's compensation physician. He had attempted to arrange his own follow-up visit for treatment of a work-related injury. The city's policy required that the appointments with the city's physician be made after notification to the supervisor. While explaining his actions, Robinson gave contradictory versions of what he had been told by the nurse in the doctor's office regarding the procedures. His testimony at hearing was also confused and inconsistent on this point. On direct, he testified that he had been told that authorization from the city is not necessary for follow-up visits. On rebuttal, however, he stated that the nurse had told him that the city personnel department would have to be notified, but not his foreman. (TR, Vol I, p. 77, Vol IV, p. 324-325). In the course of the same meeting, Robinson made allegations of wrongdoing by Larry Alewine, stating that Alewine had a meeting with his employees and encouraged them to write grievances against Chris Hill and had called Hill an "asshole" and "God." The City Manager considered these allegations to be serious and promised Robinson that an investigation would be made. The meeting then broke up. Ed Haven, an officer with the Professional Standards Bureau of the City Police Department was assigned to investigate the allegations of misconduct. This bureau normally conducts personnel-related internal affairs investigations and considers them administrative, not criminal. The investigation was initially inhibited by Robinson's refusal to answer Officer Haven's questions unless the investigation was expanded to include Chris Hill as well. Robinson was then ordered by the City Manager to participate. The inquiry sustained the allegations that Alewine had called Hill "asshole" and "God." This investigation spawned a second investigation as to whether Robinson had ever told another employee that he lied about Alewine in order to get an investigation against Chris Hill. The issue was never resolved, but Officer Haven found that a "preponderance of evidence indicates Robinson was untruthful during this investigation...," that Robinson did have a conversation with an employee, Barry Beavers, but denied it. (Petitioner's composite exhibit #1, Memorandum of Internal Inquiry #86-9998-03, April 15, 1986). The lead Utility serviceworker positions In Spring 1986, the city created two supervisor positions in the Water Distribution Division, titled "lead utility serviceworker," to supervise and oversee the work of the utility workers and their laborers. All three utility serviceworkers applied for the jobs: Robinson, Ronnie Oliver (Black American) and Barry Beavers (White American). Robinson was never considered a viable candidate and was interviewed as a matter of courtesy. Oliver and Beavers were chosen. Robinson concedes that Beavers was qualified and properly promoted, but he disputes Ronnie Oliver's qualifications. Ronnie Oliver began work one month after Robinson, in October 1984. He worked under Robinson as a laborer for some time and he freely acknowledges that Robinson taught him a lot. Oliver also had considerable personal initiative and taught himself with the use of materials he acquired from Larry Alewine. Oliver's performance evaluations were substantially better than Robinson's; by May 1986, the time of the promotion, he was evaluated as an "Outstanding" employee. Robinson had, in fact, been on the job less than Oliver, as he had sustained a work-related injury in December 1985, and was out for weeks at a time. He had not been cleared for full-time duty when he was interviewed and was absent from work when the positions were filled. Light duty Robinson alleges that he was given "make-work" light duty when he was returned to work after his injury, and was later denied light duty. The city furnishes injured employees with light duty on a case-by-case basis, depending on the capabilities and physical condition of the individual and the needs of the employer. Robinson was first assigned floor sweeping duties in June after his recurring back problems. Later he was given the task of painting an area near Hill's office. An assistant was assigned to paint the high and low portions of the wall. He was also given a chair to sit on and rest his back. This was the lightest duty available at the city at time. Other employees including a black who had cancer, were also given routine maintenance chores. While painting, Robinson injured his neck, shoulder and hands. He never returned to work after this injury in June 1986. The city informed him in July and August that it did not have light duty available. In September 1987, the City agreed to pay Robinson $47,000.00 (including $7,000.00 to his attorney), to settle his worker's compensation claim of permanent back injury. He has since applied for reemployment. As of the hearing in this proceeding, the city was reviewing his request for reemployment. This request is not at issue here. Various grievances In Spring 1986, as the result of some publicity about the arrest of illegal aliens, the city reviewed the work authorization status of its employees. Since Robinson had initially given the city a letter from INS stating that he was eligible to work pending an application for political asylum, he was asked again for authorization. He refused at first, and claimed this was harassment. He also claimed that he was subject to derision for being a CIA spy. He had told some fellow employees about his past and the news circulated. The employees mostly did not take the matter seriously, but in an employee meeting, someone asked Chris Hill whether it was true that Albert was a CIA spy. He replied that this was what Robinson claimed. At the same employees' meeting, Hill also stated that he did not think that Robinson was going to be around much longer. He made this remark based on his knowledge of Robinson's disciplinary problems. Hill was strongly reprimanded for this remark. He did not have the authority to terminate Robinson, and management had not taken steps to terminate him. Robinson has attributed various derogatory statements and epithets to Chris Hill. He claims that Hill said that no one would take the word of a "nigger" against him and that he didn't want Americans to take orders from a Jamaican. Hill vigorously denies these statements and no credible evidence was produced to support Robinson's claims. Nor was credible evidence presented of Robinson's claim that on July 3, 1986, Hill lost his temper and spat in his face. At hearing on November 2, 1987, Robinson, through his attorney, withdrew his allegation that he was defrauded of sick leave through a forged signature. (TR Vol IV, p. 293-294.) Summary of Findings Beyond his own unsubstantiated claim that Alewine told him so, there is no evidence that Robinson's problems with the city were the result of his rather inconspicuous involvement at the Patrick Dixon hearing. His problems clearly began when he was promoted to a position of some authority over others and his temper, loud mannerisms and difficulty working with others became an issue. Beginning with his response to his first slightly negative personnel evaluation, Robinson's reaction to every event in his employment, major and minor, was lengthy, rambling, confused and confusing written grievances, memoranda and letters. Robinson also carried a tape recorder to memorialize his encounters and (in his words) "...to intimidate people from molesting me..." (TR, Vol I, p. 243). Robinson's inconsistent accounting and mixing of facts in his scenario of alleged discrimination fail to make sense. Pressure was applied to blacks and whites, alike; of the four employees targeted as "problems," the two whites are gone (Alewine and Simpkins) and one black (Wilder) has been promoted. Evidence is clear that there were serious management problems in the city's Water Distribution Division in 1985, and the atmosphere which prevailed with reorganization of the division and Hill's arrival could very well have fueled Robinson's paranoia. His vehement protestations and repetitious and rambling litany of wrongs are either a sincere confused perception, or a deliberate attempt to manipulate a situation, which because of justifiable criticism of his job performance, was becoming increasingly uncomfortable. Nevertheless, his myriad allegations of discriminatory harassment, retaliation and of unlawful failure to promote, are unsupported by competent evidence.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That Albert Robinson's charges that the City of Altamonte Springs violated subsections 760.10(1)(a) and (7), F.S., by harassment failure to promote, and retaliation, be DISMISSED. DONE and RECOMMENDED this 16th day of February, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2482 The following constitute my specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact 1-5. Addressed in summary form in paragraph 3. Adopted in paragraphs 4. and 5. Addressed in paragraph 5. Adopted in part in paragraph 8. The account of discussion with Alewine is rejected as contrary to the weight of credible evidence. Adopted in part in paragraphs 6.-8., otherwise rejected as contrary to the weight of credible evidence. Adopted in paragraphs 6.-15. Addressed in paragraph 12. The characterization of Simpkins' motives and the mandate to fire the four employees are rejected as contrary to the weight of evidence. Addressed in paragraphs 15. and 16. Adopted in part in paragraph 18., otherwise rejected as unsupported by the weight of evidence or immaterial. 14-16. Rejected as contrary to the weight of evidence, except for the comment about Robinson being terminated. See paragraph 34. Rejected as cumulative, unnecessary and argumentative (rather than factual). Addressed in paragraph 14.; otherwise rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 13., otherwise rejected as contrary to the weight of evidence and unnecessary. Adopted in substance in paragraph 19. Addressed in paragraph 21. Rejected as contrary to the weight of evidence. Addressed in paragraph 21. Addressed in paragraph 22. Addressed in paragraph 25; otherwise rejected as unnecessary and unsupported by the competent evidence. Rejected as unnecessary. Addressed in paragraphs 33 and 34, otherwise rejected as contrary to the evidence. Addressed in paragraphs 26. through 28. Addressed in paragraphs 29. through 30. Rejected as contrary to the weight of evidence. Rejected as unnecessary. Addressed in paragraph 31. 34-35. Rejected as irrelevant. The "fraud" charge was withdrawn. See paragraph 36. 36-37. Rejected as irrelevant. Respondent's Proposed Findings of Fact Adopted in paragraph 1. Adopted in paragraph 2. Adopted in paragraph 3. Adopted in paragraph 4. Adopted in paragraph 5. 6-12. Adopted in paragraphs 6. through 8. 13-15. Rejected as cumulative. 16-22. Addressed in paragraphs 15. and 16., otherwise rejected as unnecessary. 23. Adopted in paragraph 13. 24-27. Addressed in paragraph 14. 28-34. Addressed in paragraph 19. 35-38. Adopted in substance in paragraph 20. 39-40. Adopted in paragraph 21. Rejected as unnecessary. Adopted in paragraph 22. Adopted in paragraph 23. 44-49. Adopted in paragraphs 24. and 25. in substance. 50-60. Rejected as cumulative and unnecessary. 61-66. Addressed in paragraph 32. 67-69. Addressed in paragraph 33. 70-72. Addressed in paragraph 34. 73-89. Addressed in paragraphs 26.-28.; otherwise rejected as unnecessary. Adopted in substance in paragraph 35. Adopted in paragraph 28. Adopted in paragraph 29. 93-94. Adopted in substance in paragraph 29. 95-96. Adopted in substance in paragraph 30. Rejected as cumulative. Adopted in paragraph 30. 99-102. Adopted in substance in paragraph 31. 103-110. Rejected as irrelevant. The "fraud" charge was withdrawn at hearing. See paragraph 36. COPIES FURNISHED: Tobe Lev, Esquire Egan, Lev & Siwica, P. A. Post Office Box 2231 Orlando, Florida 32802 David V. Kornreich, Esquire Muller, Mintz, Kornreich, Caldwell, Casey, Crossland, & Bramnick, P. A. Suite 1525, Firstate Tower 255 South Orange Avenue Orlando, Florida 32801 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Sherry B. Rice, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The issue is whether Respondent has engaged in an unlawful employment practice against Petitioner in violation of Section 760.10, Florida Statutes, by discriminating against Petitioner based on his disability.
Findings Of Fact Petitioner has been employed as a correctional officer by Respondent at all times pertinent to this proceeding at Tomoka Correctional Institution (TCI) in Volusia County, Florida. The prison houses adult male inmates. Staff at TCI has the primary mission of providing for the public safety through the care, custody and control of the inmates housed in that facility. In early 1998, Petitioner was diagnosed with Non- Hodgkin's Lymphoma and began treatment for the disease. He was granted leave as needed for treatment and continued otherwise to work. Petitioner requested and was eventually granted the privilege of working a double shift only in those situations where he could take the next day off. In December of 2000, he requested that he be assigned to a perimeter post half of the time, and that he not be assigned to the chow hall or to guard sick inmates. Since Petitioner did not provide sufficient medical information to support the requested accommodation, it was denied. Respondent assigned Petitioner to be a "roving perimeter officer" on June 18, 2001. These officers observe the secure perimeter of the facility to ensure that no unauthorized entry into or out of the facility takes place. Each officer on this assignment is issued a shotgun, revolver and a motor vehicle. Each officer has a specific part of the perimeter fence to guard. Petitioner, as a result of medication he takes for his condition, experienced an urgent need to defecate, and left his post after calling for a replacement. As a consequence, Petitioner was thereafter assigned duty only where he would have immediate access to bathroom facilities. Petitioner provided documentation from his health care provider to Respondent indicating that Petitioner could work any post in the facility subject to certain qualifications. He should be given 16 hours' advance notice of the assignment to permit him to plan his medication schedule if he were assigned to the perimeter or other station where bathrooms were not readily available. Additionally, Petitioner was to be relieved within nine minutes of requesting a needed bathroom break. Petitioner also needed to have constant access to cold water and not be subjected to temperatures in excess of 90 degrees for more than an hour. As a result of his special needs, Petitioner remained assigned mainly to inside posts. He meets all requirements to work in the TCI observation towers, which have bathroom facilities and are climate controlled. He is assigned to such a tower one day per week. Respondent will not provide Petitioner 16 hours' notification of a future assignment so as to permit him to schedule his medication in such a way as to avoid urgent bathroom usage. Further, Respondent will not provide relief within nine minutes so that Petitioner can use the restrooms when necessary. Petitioner is generally assigned by Respondent to dormitory duty with the exception of tower duty one day per week. The dormitory is air-conditioned, but such assignment is stressful, fatiguing, and could adversely affect Petitioner's physical condition of lymphoma which is presently in remission.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 22nd day of April, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 22nd day of April, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ernest L. Reddick, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Lawrence A. Lopenski 2482 Barbarossa Avenue Deltona, Florida 32524 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times material hereto, respondent, Frank Jantlick, held registered building contractor and registered plumbing contractor license numbers RB 0016816 and RF 0038428 issued by petitioner, Department of Professional Regulation, Florida Construction Industry Licensing Board. He presently resides at 1206 Driftwood Drive, New Port Richey, Florida and operates both Jantlick Construction and Jantlick Plumbing in the same city. Jantlick is of Polish descent. The proper Polish spelling of his name is J-a-n-c-z-l-i-k. The "Americanized" spelling of his name is J-a-n-t-l-i-c-k. Because his name has been misspelled so often he has registered with both the State and the local construction boards using the Americanized spelling of his name. In July, 1980 one Margaret L. Johnson approached respondent and asked if he would construct three triplexes on her property. Jantlick finally agreed to do so for $129,000 and a construction agreement was signed by both on August 8, 1980. The triplexes were to be constructed at 712-728 East Tennessee Avenue, New Port Richey, Florida. Respondent signed the contract spelling his name J-a- n-c-z-l-i-k even though he was registered with the State as J-a-n-t-l-i-c-k. Jantlick could not start construction until Johnson obtained a bank loan. She did so in December, 1980 and Jantlick began construction shortly thereafter. A zoning change within the city was imminent and, because of this, Jantlick was in a hurry to begin construction so the project would be grandfathered in under the old zoning law. Thomas L. Shell, a licensed plumber, approached Jantlick and asked if he could do the plumbing work on the project. Because Jantlick had known Shell's family for many years, he orally agreed that Shell could do the plumbing work. Shell pulled the City plumbing permits for the job on December 22, 1980. This was necessary since Jantlick was only licensed to do plumbing work within Pasco County, but not within the City of New Port Richey. In order to comply with the City ordinance, it was necessary for either Shell to do the plumbing work, or for Jantlick to do it under Shell's supervision. On January 10, 1981, Shell's wife, Danielle, sent a letter on the firm stationery to the city stating In part: Plumbing service was not commenced by Tom Shell Plumbing. But, rather, Mr. Janczlik had already contracted another plumber to perform rough-in and top-out plumbing, without the permission of Mr. Shell. The letter was signed by Danielle, and according to Shell, constituted notice that he was no longer the licensed plumber on the job. Shell did not furnish a copy of the letter to Jantlick and did not otherwise advise him he was quitting the job. Jantlick could not get Shell to promptly begin the rough-in work on the triplexes, and because he wanted to commence construction before the zoning law changed, he and another plumber did the initial plumbing work. The evidence is conflicting as to whether Shell inspected and supervised this stage of the work, but it is found that he did, and that Jantlick was lawfully operating within the purview of the city ordinance. It is also found that Shell had knowledge of Jantlick's work, and authorized it to be done under his license and supervision. Shell acknowledged that he performed the final stage of the job (final trim), but denied doing the second stage (tub set). However, Shell's own ledger cards reflect he received periodic payments from Jantlick during the spring of 1981 for plumbing services, and it is found that Shell performed the final two stages of the plumbing work. The administrative complaint alleges that at some unknown date after the petitioner's investigation was started, respondent approached Shell and offered to pay him if he would "falsely tell the Department of Professional Regulation investigator that Shell had done the plumbing work on the Triplexes." Shell stified that Jantlick had telephoned him and offered to "take care of him" if he could tell a false story to the investigator. But Jantlick denied this, and Shell's testimony is not deemed to be credible, particularly since he had already performed two-thirds of the job himself, inspected and supervised the other third, and received several thousand dollars in payment for his services. Therefore, it is found that Jantlick did not approach Shell and offer him money in return for giving false testimony. Jantlick did not affix his registration number to the contract executed by him and Johnson. This is required to be done by Chapter 489, Florida Statutes. Jantlick is seventy years old, and has been a contractor in Pasco County for over twenty-five years. He has had no prior disciplinary charges filed against him. For all his troubles on the project, he is still owed almost $12,000 by Johnson.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in Counts V and VI of the administrative complaint and that he be given a reprimand. All other charges should be DISMISSED. DONE and ENTERED this 21st day of May, 1984 in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 1984. COPIES FURNISHED: Daniel P. Rock, Esquire The Oakland Building 117 North Boulevard New Port Richey, Florida 33552 Edward C. Hill, Jr., Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether petitioner should take disciplinary action against respondent for the reason alleged in the administrative complaint?
Findings Of Fact Respondent acknowledges the accuracy of the allegations in the first seven paragraphs of the administrative complaint, including the allegation that he holds a certified residential contractor's license, No. CR C027268. He has been licensed in Florida continuously since October of 1983. Petitioner's Exhibit No. 1. On August 14, 1986, respondent Stratton, doing business as Stratton Construction Company, executed a written contract with Aaron Lee and Valerie Patrice Cobb to renovate their home at 5017 Pearl Street in Jacksonville, Florida. He had actually begun work nine days earlier. The contract contemplated installation of a pier under an unsupported sill end, replacement of 17 windows and two doors, hanging a screen door and a storm door, shortening and capping the chimney, adding a roof over the front stoop, reshingling the entire roof, painting the outside of the house, and putting hose bibbs in the front and the rear of the house. In addition, the contract called for extensive work inside the house, replacement of sheetrock, installation of insulation, congoleum, carpeting, paneling, cabinets, new kitchen and bedroom appliances, a new central heating system, and numerous other improvements and repairs. The contract price totalled $18,600, including $2,071 for a utility room. ("Remove back porch and drop flooring to allow enough height to construct 8 foot by 8 foot utility room ... inside walls unfinished ...") Petitioner's Exhibit No. 1. Exclusive of plumbing, electrical, heating, and the utility room, the value of the repairs and renovations exceeded $200.00. As "Stratton Const." respondent contracted with Williams Plumbing Co., Inc. (Williams) on September 8, 1986, to re-pipe, install a working machine drain and furnish a water closet. Respondent's Exhibit No. 3. Respondent or Williams on his behalf obtained a plumbing permit from the City of Jacksonville, No. 25997, at or about the time Williams began work, but Williams "left town" (T.43) before the project was inspected by the City. On October 2, 1986, respondent contracted with Wayne Conn Plumbing (Conn) to do additional plumbing work. In order to obtain a plumbing permit for the additional work, respondent cancelled the first permit. (T.34) The same day he signed the contract with Conn, respondent obtained a second plumbing permit, No. 28215. Respondent's Exhibit No. 1. Conn finished the plumbing work, and it passed inspection by the City. Earlier, on September 5, 1986, respondent or a subcontractor obtained a City permit authorizing electrical work at 5017 Pearl Street. On October 8, 1986, respondent or a subcontractor obtained a mechanical permit for the house's new heating system. In due course, the work authorized by these permits passed City inspections. Petitioner's Exhibit No. 7. Before he began work on the Cobb's house, Mr. Stratton had only built new homes in Florida. He was unaware of any requirement to obtain a permit to effect repairs to the interior of a house other than those he did in fact obtain. He was aware, however, of the need to secure a building permit for construction of the utility room, involving, as it did, alterations to the foundation. Nevertheless, he only applied for this permit on June 11, 1987, long after the work had been completed, and after he had become embroiled in a dispute with the Cobbs. Jacksonville's Building Code, Part 4, makes it unlawful to begin work to contract, enlarge, alter, repair, move, remove or demolish a building or structure, or a part thereof ... without having first filed an application with and obtained a permit therefor from the Building official, except that, for general maintenance or repairs, not involving replacement of components specifically requiring permits, which do not change the occupancy or affect the electrical, plumbing or mechanical systems, the value of which does not exceed two hundred dollars ... no permit shall be required ... Petitioner's Exhibit No. 4, p. 5. In beginning work without a permit to remove the back porch or to replace it with a utility room or to effect general repairs the value of which exceeded two hundred dollars, respondent violated applicable provisions of a local building code. The evidence suggested that the requirement that contractors obtain permits to effect general repairs with a value in excess of two hundred dollars is more honored in the breach than in the observance. In fact, respondent testified that somebody told him no permit is needed "if you don't change the size of the building," (T.46) i.e., alter the foundation. The Building Code also calls for mandatory inspections of foundations and framing as they are completed, but a building inspector testified that inspection of pre-formed concrete piers like those on which the utility room stands would have been foregone. Because the addition stood on (new) piers and because its interior walls remained unfinished, it was possible for the City to inspect both the foundation and the framing, even after the work was finished. John Carlton Sturdevant, a field inspector for Jacksonville's Building and Zoning Department, saw nothing wrong with the framing, nor was there evidence of any problem with the foundation.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female, age 44 at the time of the final hearing, who was employed with Respondent between May 14, 2012, and July 1, 2013. Respondent is an active limited liability company established and doing business pursuant to Florida Law. Petitioner was hired by Respondent on May 14, 2012, as a Document Control Supervisor. Her duties consisted of managing documents for Respondent in connection with Respondent's subcontract for the T-4 Gate Replacement Project ("Project") at the Fort Lauderdale-Hollywood Airport. Petitioner was assigned to work in a trailer at or near the Project jobsite. She was Respondent's only employee working full-time at the Project jobsite. She was supervised by Wayne Messam, Angela Messam, and Dwayne Vaughn, all of whom worked primarily at other locations. As Document Control Supervisor, Petitioner performed a vital function for Respondent in performing its subcontract for the Project. The persuasive evidence establishes that she was well-qualified for, and proficient at, her job. Many feral cats frequented the area immediately outside the trailer at the Project jobsite. They were attracted to the area because persons working in and near the trailer fed them. As a result of the cats frequenting the area, fleas and animal dander were pervasive at the jobsite, including inside the trailer where Petitioner worked. At times, cat feces were tracked into the trailer. In May 2013, Petitioner reported to Dwayne Vaughn, Respondent's Project Controls Manager and Petitioner's direct supervisor, that she was being bitten by fleas in and around the trailer due to the feral cats frequenting the area. She asked Vaughn to contact the Broward County animal control service to remove the cats. On June 14, 2013, Petitioner suffered an asthma attack. She received medical care at the Broward Health Medical Center Emergency Department and was diagnosed as having acute asthma and allergic rhinitis. According to her treating physician, the asthma was precipitated or aggravated by cat dander and other conditions attributed to the presence of cats at the jobsite. She was prescribed, and took, medication. At a follow-up visit on June 17, 2013, Petitioner's primary care physician strongly advised her to avoid being around cats in the workplace environment. Petitioner continued to press Vaughn about contacting the local animal control service to remove the cats. At some point, some, but not all, of the cats were removed from the Project jobsite. However, some continued to frequent the area around the trailer and continued to be fed. Petitioner contacted Angela Messam to request instructions on filing a workers' compensation claim. Messam did not provide her the requested instructions, but instead directed her to go to U.S. HealthWorks, a medical treatment facility, located at 407 Southeast 24th Street, Fort Lauderdale, Florida. On June 20, 2013, Petitioner sought medical care at U.S. HealthWorks. Messam met Petitioner there and authorized her medical treatment. The credible evidence establishes that Messam attempted to dissuade Petitioner from filing a workers' compensation claim. The credible, persuasive evidence also establishes that, despite Messam's representation to Petitioner and to her treating physician at U.S. HealthWorks that she would be re- assigned to work in a different location, Petitioner was instead directed to return to the Project jobsite. She was not re- assigned to work at an alternative location. On June 21, 2013, Respondent wrote Petitioner a letter detailing the measures that Respondent was undertaking to address the presence of cats and related unsanitary conditions at the jobsite, and accommodations that Respondent and the contractor, Turner Construction, would provide to Petitioner until conditions at the Project jobsite were addressed to the extent that Petitioner could return to work there without aggravating her asthma. The credible evidence showed that despite such representations, Respondent and Turner did not provide Petitioner the accommodations promised in the June 21, 2013, letter. The evidence establishes that Respondent did not implement any measures that would have allowed Petitioner to perform her job in another location. Thus, if Petitioner wanted to keep her job, she had to report to the Project jobsite. Petitioner continued to suffer debilitating asthma- related illness. Petitioner sought additional medical care for her asthma from her primary care physician on June 24, 2013, and from U.S. HealthWorks on June 26, 2013. Treating physicians at both facilities told Petitioner that she had asthma and warned her that working at a jobsite where cats were present would aggravate her asthma. The credible, persuasive evidence establishes that despite Petitioner's repeated entreaties, the Project jobsite conditions that precipitated or aggravated her asthma went unaddressed or were inadequately addressed by Respondent. On July 1, 2013, Petitioner reported to the Project jobsite. She observed cats and feeding dishes present outside the trailer. She told Vaughn that she was still having difficulty breathing and that her condition would not improve as long as cats were allowed to remain outside the trailer. Vaughn told Petitioner there was nothing more that Respondent could do about the remaining cats. At that point, Petitioner realized that Respondent was not going to address the circumstances that precipitated her asthma. Petitioner finished the high-priority matter on which she was working, then submitted her resignation, effective immediately. In her letter of resignation, Petitioner made very clear that the sole reason for her resignation was that the conditions that precipitated or aggravated her asthma——the presence of cats and attendant environmental conditions——had not been adequately addressed, so she was forced to leave her job in order to protect her health and safety. While employed with Respondent, Petitioner was paid an annual compensation of $56,160.00. Since resigning her job with Respondent on July 1, 2013, Petitioner has been unable to find employment. As a result, she was unable to pay rent so was evicted from her home, and her automobile was repossessed. Petitioner seeks an award of back pay in the amount of her annual salary pursuant to section 760.11(5). Angela Messam, appearing on behalf of Respondent, testified that Respondent did, in fact, take substantial measures to remove the cats from the Project jobsite, sprayed for pests, and cleaned up conditions at the site. Messam claimed that notwithstanding these measures, Petitioner continued to complain and that it seemed that Respondent could do nothing to satisfy her. Messam further testified that Petitioner was offered the accommodation of working at the corporate office but chose not to do so. The undersigned finds Messam's testimony on these points completely incredible and unpersuasive. To the contrary, Messam and other employees of Respondent were fully aware of the conditions that precipitated or aggravated Petitioner's asthma, failed to take adequate steps to remove those conditions from the Project jobsite, and failed to provide any reasonable accommodation to Petitioner by enabling her to work at an alternative location. At the final hearing, Respondent presented a Florida Department of Revenue Employer's Quarterly Report covering each quarterly reporting period commencing in June 2012 and ending December 31, 2013. Each report shows that Respondent employed fewer than 15 employees for the quarter covered by the report. These reports, supported by Messam's testimony, constitute competent substantial evidence showing that Respondent employed fewer than 15 employees for each working day in each of 20 or more calendar weeks in 2012, the calendar year preceding the alleged discrimination; and that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013, the year of the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief for lack of jurisdiction under chapter 760, Florida Statutes. DONE AND ENTERED this 20th day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 20th day of February, 2015.
The Issue Whether or not Respondent's denial of Petitioner's application for certification as a licensed plumber was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record 1/ compiled herein, the following relevant facts are found. During mid-April of 1981, Petitioner, David L. Mooney, filed an application to be certified to sit for the next Certified Contractors' Examination with the Respondent, Construction Industry Licensing Board. Since approximately 1969, Petitioner had been a resident of Newton, New Jersey, where he was licensed as a Master Plumber. While residing in New Jersey, Petitioner was in a private plumbing business which was fairly successful, however, due to the weather conditions in the New Jersey area, the plumbing business is primarily a seasonal business. As a result of the seasonal nature of the plumbing business in New Jersey, Petitioner's business also had cash-flow problems. Petitioner also experienced personal financial problems in connection with his adoption of a son while in New Jersey. Petitioner was forced to expend a substantial amount of money in legal fees and had to leave the State of New Jersey in order to gain the release of the adopted son. Briefly, and more specifically, evidence reveals that the adopted son had several brushes with the law, including an involvement in an armed robbery and arson of a country club. (Testimony of Petitioner.) Petitioner's application was examined by members of the Respondent, Construction Industry Licensing Board (Board), and the Board decided that it could not certify Petitioner to sit for licensure as a certified contractor due to a lack of financial responsibility. An examination of Petitioner's application for licensure to sit for the Certified Contractors' examination reveals that at the time in which he filed his application, his cash on hand amounted to $500.00 with virtually no assets and he had incurred liabilities in excess of $118,000.00. Petitioner's application reveals that there were outstanding judgments against him, tax liens, and several past due and delinquent accounts and/or bills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner's application for certification as a plumbing contractor in the State of Florida. RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1982
The Issue Did the Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant (Placida), unlawfully discriminate against Petitioner, Jon A. St. Laurent, in hiring because of his age?
Findings Of Fact Placida is a restaurant in Port Charlotte, Florida. In February 2015, it advertised on Craig’s List for a cook offering pay of $14.00 per hour and a $500.00 signing bonus. Placida operates seasonally. It closes May of each year. It re-hires when it re-opens in September. The evidence does not establish that employment with Placida continues season to season. Mr. St. Laurent responded to the advertisement. Mr. St. Laurent is qualified for the position. He is a former chef with years of experience. Mr. St. Laurent was 64 years old. He submitted an application. The then manager, Wendy Hummel, interviewed Mr. St. Laurent on February 24, 2015. Ms. Hummel asked questions that demonstrated she was weighing Mr. St. Laurent’s age against him. She asked him if at his age he was capable of standing on his feet for long hours. She also asked if at his age he was capable of working the kind of shifts that are required in a high-volume restaurant. Placida did not contact Mr. St. Laurent to advise him whether it had decided to hire him. He saw more advertisements for cooks by Placida on Craig’s List, also offering a $500.00 signing bonus. So Mr. St. Laurent emailed Ms. Hummel to remind her of his availability and qualifications and to inquire if Placida had decided whether to offer him a job. In emails, as early as March 7, 2015, Mr. St. Laurent reminded Ms. Hummel of his qualifications and of her comments about his age and its affect upon his ability to perform the job. After repeated emails from Mr. St. Laurent, Ms. Hummel replied saying that his skills did not meet the job requirements. Her email says the restaurant was looking for line cooks with experience in a large restaurant and his skills were more geared towards large event cooking. Ms. Hummel also testified, albeit unpersuasively, that Mr. St. Laurent’s experience was not well suited for Placida’s operation. She eventually, denied questioning Mr. St. Laurent’s ability to perform the job because of his age. But the majority of her testimony about the comments was along the lines of saying that she knows better than to make such comments. One example is: “That, that basically, I would be very hard pressed to believe I asked him anything about his age . . . .” (Tr. p. 32). This way of addressing the issue, Mr. St. Laurent’s testimony’s consistency with his early descriptions of the interview, and the undersigned’s observation of the witnesses results in a conclusion that Mr. St. Laurent’s testimony is more credible and persuasive. Placida did not hire Mr. St. Laurent solely because of his age. When Placida refused to hire Mr. St. Laurent and in the months following, Placida worked consistently and urgently to recruit and employ cooks, as shown by continuing advertisements and signing bonuses. Yet it refused to hire a qualified applicant, Mr. St. Laurent. The evidence proves that this was because of his age. If Placida had employed Mr. St. Laurent effective March 1, 2015, until closing for the season on May 1, 2015, he would have worked for eight weeks and three days. Paid $15.00 per hour for 40 hours a week, Mr. St. Laurent would have earned $4,816. In addition, Mr. St. Laurent would have been paid a $500.00 signing bonus. The total damages in lost wages or “back pay” to Mr. St. Laurent, caused by Placida’s discrimination against him because of his age, is $5,316.00.
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 that: Holds that Respondent, Placida SAS, LLC, d/b/a The Fishery Restaurant, did not employ Petitioner, Jon A. St. Laurent, solely because of his age; Prohibits Respondent, Placida SAS, LLC d/b/a, The Fishery Restaurant, from discriminating on account of age in its hiring; and Awards Petitioner, Jon A. St. Laurent, back pay in the amount of $5,316.00. DONE AND ENTERED this 29th day of March, 2016, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 29th day of March, 2016.
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what punitive action should be taken against Respondent?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Respondent is a plumbing contractor. He is now, and has been at all times material to the instant case, licensed to engage in the plumbing contracting business in the State of Florida. His license number is CF C020307. At all times material to the instant case, Respondent was the primary qualifying agent for A'Aabbott, a plumbing contracting business located in Fort Lauderdale, Florida. In August of 1992, A'Aabbott entered into a written contract (Contract) with Nereo Agostinelli in which it agreed, for $3,225.00, "[t]o furnish labor and materials to install [on Agostinelli's property in Plantation, Florida a] 600 sq. ft. drain field to all codes at standard practice." Respondent signed the Contract on behalf A'Aabbott. His license number, however, was not written or otherwise displayed on the Contract. The Contract contained the following warranty provision: "3 year conditional warranty-must upkeep interior plumbing." Agostinelli paid the $3,225.00 Contract price by check. A'Aabbott thereafter installed a 600 square foot drain field on Agostinelli's property, as it had agreed to do. Approximately two days after it had been installed (which was within the three-year warranty period), the system failed and raw sewage backed up into Agostinelli's residence on the property. The system failed because pipe that A'Aabbott had installed as part of the project had been cracked during installation by a large rock and had become clogged with soil and therefore could not carry effluent to the drain field. The "interior plumbing" that Agostinelli was required maintain as a prerequisite to his receiving the benefit of the Contract's "3 year conditional warranty" did not cause the failure of the system. Agostinelli made numerous attempts to contact A'Aabbott and request that it fix the problem, as A'Aabbott was required to do under the Contract. When Agostinelli spoke with Respondent, Respondent told him that A'Aabbott had no intention of doing anything further for him. Although A'Aabbott was made aware of the system's failure, it failed to take any action to repair the system. Sewage continued to back up into Agostinelli's residence. On three occasions, Agostinelli had Raider Rooter Sewer and Drain Cleaning, Inc., (Raider Rooter) come to his residence and remove sewage. The total cost to Agostinelli of Raider Rooter's services was $355.00. Agostinelli would not have incurred these costs had the system installed by A'Aabbott not failed. Having been unsuccessful in his efforts to have A'Aabbott honor its warranty under the Contract, Agostinelli contracted with B and N Dozing and Bobcat Service (B and N), on or about March 23, 1993, to make the necessary repairs to the system. He paid B and N $670.00 to make these repairs. There have not been any problems with the system since it was repaired by B and N.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue a final order: (1) finding Respondent guilty of the violations of Chapter 489, Florida Statutes, alleged in Counts I and II of the Amended Administrative Complaint, and (2) fining Respondent $1,100.00 for having committed these violations and requiring him to pay $1,025.00 to Agostinelli in restitution and to reimburse the Department for all reasonable costs associated with the Department's investigation and prosecution of the charges set forth in the Amended Administrative Complaint. DONE AND ENTERED this 16th day of July, 1997, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July, 1997.
The Issue Whether, Respondent, the Florida Department of Transportation (“Respondent” or “Department”), engaged in unlawful employment practices as alleged by Petitioner, Dajin Liu (“Petitioner”), in violation of the Florida Civil Rights Act (“FCRA”), as set forth in section 760.10, Florida Statutes (2020).1
Findings Of Fact Based upon the credibility of the witnesses and evidence presented at the final hearing, and on the entire record of this proceeding, the following Findings of Fact are made. Respondent Department of Transportation The Department is a state agency in the State Personnel System, within the executive branch of the State of Florida. §§ 20.04, 20.23, 110.107(30), and 216.011(1)(qq), Fla. Stat., and Fla. Admin. Code R. 60L- 29.002(6). Pursuant to section 20.23, Florida Statutes, the Department is charged with overseeing the construction and maintenance of transportation facilities, including roadways. Florida’s Turnpike Enterprises has additional authority under section 338.2216, Florida Statutes, to plan, maintain, and manage the Florida Turnpike system. Respondent adheres to rules established by the Department of Management Services (“DMS”), including Florida Administrative Code Rule 60L-33.003(2), which defines “Probationary Status” of employees in the Career Service System. The rule provides that while in probationary status the employee serves at the pleasure of the agency head and has no notice or appeal rights pursuant to section 110.227 and chapter 120, Florida Statutes. Respondent has written policies and procedures governing the conduct of employees. New employees are required to sign and acknowledge receipt of these written policies and procedures at the time of employment. Among the forms provided to new employees are: ADA Request Accommodation 275-000- 001-c; Disciplinary Actions 250-012-011-j; EEO Affirmative Action Policy 001- 275-001-v; and Employment Discrimination Complaints 275-010-001-l. Respondent’s written policies and procedures specifically prohibit any employee from engaging in employment discrimination, workplace harassment, or retaliation. Moreover, Respondent has established detailed written procedures for reporting and investigating all allegations of discrimination, harassment, or retaliation, consistent with Florida and Federal law. Petitioner’s Employment with Respondent On December 19, 2018, Respondent advertised Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, which is part of the Construction section of Respondent’s District 5. The advertisement included a statement regarding Respondent valuing and supporting the employment of “individuals with disabilities.” Further, the advertisement specifically read, “[q]ualified individuals with disabilities are encouraged to apply.” The advertisement provided notice that Respondent complies with section 110.112, has a “Disabilities Affirmative Action Plan,” and will provide a reasonable accommodation upon request. With this advertisement, Respondent was seeking a qualified individual to review “moderately complex” structures plans and technical documents. The successful candidate would offer professional recommendations, resolve design issues, and work collaboratively with Review Committees working on projects in Respondent’s Construction section. The employee would perform structural analysis, design, and calculations, as well as, prepare plans for bridges and highway structures, and offer structural engineering support to both Respondent and consultant staff. The Knowledge, Skills, and Abilities (KSAs) for the position included knowledge of Respondent and industry’s standards, specifications, and manuals, as well as software related to road and bridge construction and design. The candidate would need to be skilled in solving engineering problems, utilizing structural design/analysis software, reading and interpreting structures and roadway construction plans, preparing project scopes of services, and labor costs estimates. The candidate needed to have the ability to “effectively coordinate and communicate with others,” both verbally and in writing, adapt to the needs of various sections within whom they would collaborate, and to establish and maintain effective work relationships. The position required the selected candidate to be able to respond to emergencies, which mandated the candidate be reliable and dependable at times of urgency to restore transportation to normalcy. Finally, the new employee would need to be an effective and professional representative of Respondent, and make recommendations or decisions consistent with Respondent and industry standards. Petitioner submitted a State of Florida application and resume. Petitioner represented his work history on his application as: 3/01/1992-03/31/1995 – Fong & Associates – left for “other opportunity” 2/07/1997-08/31/2006 – Parsons – left for “other opportunity” 07/01/2012-12/31/2016 – TranSystems – left for “other opportunity” 01/01/2017-11/30/2017 – Globetrotters – reason for leaving “slow” 04/01/2018-09/302018 – David Liu (Petitioner seems to indicate he was self-employed) – reason for leaving was “slow” Petitioner’s resume, which accompanied his application, indicated his work history as: 04/18-09/18 – GAI Consultants 01/17-11/17 – Globetrotters (reason for leaving is slow) 07/12-12/16 – TranSystems (Reason for leaving is other opportunities) 12/97-08/06 – Parsons (Reason for leaving is other opportunities) 03/92-03/95 – Fong & Assoc. As required by the position, Petitioner was licensed in the state of Florida as a Professional Engineer, effective November 11, 2018. Petitioner was notified via letter dated January 25, 2019, he was selected for Position Number 55007815, DMS Title Professional Engineer II, in the Office of Structures Design, in Respondent’s District 5, effective Monday, January 28, 2019. Petitioner was advised his position was a Career Service position assigned to Broadband Code 17-2199-04, Broadband Title “Engineering.” Petitioner was also advised he would be evaluated at least once annually, and that he would be in probationary status for a period of one year. Further, Respondent’s letter explained that while on probationary status, Petitioner was not considered permanent in the Career Service, would serve at the pleasure of the agency, and would be subject to various employment actions at the discretion of the agency, without right of appeal, in accordance with chapter 60L-33. Petitioner signed Respondent’s Receipt Acknowledgment Form affirming notice and receipt of Respondent’s policies, rules, and procedures, which included the Equal Employment Opportunity/Affirmative Action Policy, Sexual Harassment, Equal Employment Opportunity and Affirmative Action Rule, and Employment Discrimination Complaints Procedure. At hearing, Petitioner testified his disabilities are “diabetes” and “brain cancer,” the latter being diagnosed in January 2017. He admitted never disclosing either of these conditions to Respondent. Petitioner’s Termination After being in the position for just two months, Petitioner was terminated from his position with Respondent effective March 30, 2019. According to the testimony of Respondent’s witnesses, Petitioner was terminated due to his failure to successfully complete his probationary period. Specifically, Petitioner engaged in conduct which violated Respondent’s Standards of Conduct, and failed to meet performance standards during his brief employment with Respondent. According to an internal e-mail from Marisol Bilbao, the District 5 Human Resources Manager, the following conduct led to Petitioner’s dismissal: Does not seem to keep track of his assignments (ERC/emails); Frequently away from his desk, wandering the halls; Does not actively engage in his project assignments; Badge swipe-in log shows inconsistent work schedule since joining Respondent; Has fallen asleep during meetings with consultants in attendance; He was disruptive during meetings, and would leave to take calls which did not appear to be work related; High use of leave time for last-minute personal issues; Does not engage with co-workers on learning Respondent processes (Timesheet, ITP); Has difficulty keeping his work area clean; Stated he did not have time to finish an assignment given to him a week prior and not due for two (2) days; Asking female coworkers out on dates; Asking coworkers to take care of his pets. Gary Skofronick was Petitioner’s direct supervisor. Mr. Skofronick testified that, despite his efforts to assist Petitioner in succeeding in his new position, Petitioner did not seem “interested or engaged or wanting to learn about what we were actually doing in our unit.” Further, as Mr. Skofronck explained to Petitioner, the importance of being engaged is that it “prevents errors” in the construction of bridges and other road projects, which might otherwise lead to catastrophic events. Mr. Skofronick testified to incidents when Petitioner would claim to have just received an email on an assignment shortly prior to the due date, when in fact Mr. Skofronick had sent the email in ample time for Petitioner to complete the assignment. In one instance, the assignment had been given weeks earlier. Mr. Skofronick felt Petitioner did not take “ownership” of his projects. This created a safety risk and potentially impacted the longevity of the structure. According to Mr. Skofronick, Petitioner was far more focused on doing what he wanted to do, versus being accountable for producing a quality work product. Mr. Skofronick testified he had grave concerns about Petitioner’s performance prior to a Value Engineering (“VE”) workshop where Petitioner fell asleep and was a distraction with leaving and making personal phone calls. He was told by several employees of Petitioner’s disruptive conduct and lack of participation in the workshop. At hearing, Petitioner offered no evidence to refute the truth of any of the events or behavior described above. Petitioner’s Charge of Discrimination In his Petition, Petitioner alleges his dismissal from the Department was an act of discrimination based upon his age, race, and disability. Petitioner appeared at the final hearing pro se, and so his testimony was given in narrative form, with some questions posed by the undersigned. When asked to explain “exactly what happened and why it is that you feel you have been discriminated against,” Petitioner testified as follows: MR. LIU: Yeah. In my case, I think that before I was terminated, about, like, two weeks before I was terminated, I went to—they called a VE engineering study in a—in a conference room for a week. So then they—well, I don’t know. It’s hard to tell whether I was sleeping during the meeting or not. It’s hard to tell because I had a disability. I was taking, like, a lot of medication at the same time, so making me very drowsy. And then I—after the—that engineering study, while the roadway manager, who hosted the—the meeting then, he told my boss I was sleeping at the –the study. So I explained to him I had the disability and I was taking lots of medications. An the—so it’s hard to tell I was sleeping or not because I tried to be—I mean, I made a lot—I asked lots of questions during the study, I mean. Then I didn’t see any pictures showing I’m sleeping. So I can tell—because I asked should I report my disability to the HR—HR. They said no. Then they terminated me. I mean I was the department manager when I was working for another consulting firm. Before you terminate somebody you should be—have to conduct a meeting with the employee you are going to terminate. Tell them you need to improve your performance in couple weeks or in couple months. But they—they didn’t conduct such a meet— meeting. They just terminated me right away. And also, I was in this business for 20 plus years. I never see a white person was terminated due to the disability. * * * ADMINISTRATIVE LAW JUDGE WATKINS: Okay. All right. You also testified that you believe that a white employee would not have been terminated under the same circumstances that you were. What is the basis for that belief? MR. LIU: Well, I’m in this business—well, in US, for more than 20 years. I work for, like, a more than, like, ten different firms. Well once I can tell in the—after I was diagnosed with brain cancer, I was terminated, like, eight times for the ten job I have for the last three, four years. Petitioner admitted to sleeping in the meeting but testified it was out of his control; and he admitted to taking personal phone calls during the meeting. He would later attempt to refute this admission, asking to be shown proof, or making a general self-serving claim of others making personal calls. Petitioner refused to accept any responsibility for causing a disruption during the meeting, and attempted to minimize the extent of his involvement. Petitioner could not identify any similarly situated comparator of any other race or age, or anyone with or without a disability, who was permitted to sleep in the meeting, or did in fact sleep in the meeting. Petitioner testified he never asked for an accommodation relating to his handicap, nor did he provide documentation of any medical condition during his employment with Respondent. He then claimed he told the Respondent “verbally” about his disability, but acknowledged he did not provide information about his disability during the recruitment and selection process. Petitioner stated that he was fired from a previous job in 2017 the day after he told his boss he had brain cancer. According to Petitioner, as a result of this experience, he learned not to tell prospective employers he had a disability. Petitioner testified he believed his age was a factor in his termination based upon observations from his past employment, not while working for Respondent. Petitioner testified he has no evidence, other than his opinion, that age was a factor in his termination by Respondent. Petitioner admitted he has no knowledge whether any of his supervisors had issues with his race, age, or disabilities, in general. He admitted his claims are merely his opinion or presumption; or are based upon his experiences which occurred prior to his employment with Respondent. He readily acknowledged that he had no direct evidence of discrimination, nor examples of any statement or conduct motivated by, or related to, his age, race, or disability. In his post-hearing filing (denominated his “Facts Statement”), Petitioner focused on his assertion that he was a “very good employee,” and has an employment history to support that assertion. Attached to his Facts Statement was Petitioner’s resume and list of his publications. There were no proposed findings of fact that in any way supported his allegations of discrimination.
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 dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 8th day of February, 2021, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of February, 2021. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Adrienne Del Soule, Esquire Florida Department of Transportation Mail Stop 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Dajin Liu Extended Stay America Room 136 1181 North Rohlwing Road Itasca, Illinois 60143 Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020
