The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of Subsections 489.129(1)(g), (h)1, (h)3, (n), and (p), Florida Statutes (1993).
Findings Of Fact At all times pertinent to this proceeding, the Respondent was a certified building contractor, having been first issued license number CB C012666 in his individual name by the Florida Construction Industry Licensing Board in 1978. License number CB C012666 was subsequently issued to the Respondent as the qualifying agent for GMG Investment Company. The Respondent has renewed the license on a regular basis and continues to be licensed as the qualifying agent for GMG Investment Company. The most recent renewal was for the 1996-98 renewal period. Hurricane Andrew caused severe damage to the Miami home of Mr. Robert Richardson. The damage was so extensive that it was necessary to demolish the house and rebuild it. Mr. Richardson had homeowner’s insurance that covered most, if not all, of the cost of rebuilding his home. The Respondent, acting in his capacity as qualifying agent for GMG Investment Company,3 made a proposal on behalf of GMG Investment Company to rebuild Mr. Richardson’s home. Mr. Richardson accepted the proposal, and on November 11, 1992, Mr. Richardson entered into a contract with GMG Investment Company for the latter to rebuild his home for a contract price of $97,310.00. The master building permit was issued to GMG Investment Company on December 10, 1992. During the course of the work on Mr. Richardson’s home, the Respondent contracted with numerous subcontractors to provide labor and materials for the completion of the project. Two of the subcontractors filed liens against Mr. Richardson’s property. On September 22, 1993, Optima Flooring, Inc., recorded a lien in the amount of $8,919.42 against Mr. Richardson’s property. The lien related to floor covering materials Optima Flooring, Inc., had delivered and installed at Mr. Richardson’s home. The Respondent had not paid Optima Flooring, Inc., because he was not satisfied with some of the work it had done. After some discussions with Mr. Richardson, the Respondent ultimately agreed that he would resolve the dispute with Optima Flooring, Inc., by no later than February 4, 1994. The Respondent did not resolve the dispute with Optima Flooring, Inc., by the agreed- upon date, and on February 16, 1994, Mr. Richardson paid $9,225.42 in order to satisfy the Optima Flooring, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. On October 27, 1993, Florida Builder Appliances, Inc., recorded a lien in the amount of $2,930.90 against Mr. Richardson’s property. The lien related to appliances Florida Builder Appliances, Inc., had delivered for incorporation into Mr. Richardson’s home.4 The Claim of Lien recorded by Florida Builder Appliances, Inc., shows on its face that it was filed more than ninety days after the last day on which Florida Builder Appliances, Inc., provided services or materials to the subject property. On February 11, 1994, Florida Builder Appliances, Inc., filed a Notice of Lis Pendens against Mr. Richardson’s Property. Florida Builder Appliances, Inc., also filed a civil action in County Court in Dade County, Florida, to foreclose its lien. On March 3, 1997, counsel for GMG Investment Company filed a motion to dismiss the civil action filed by Florida Builder Appliances, Inc. On April 20, 1994, Florida Builder Appliances, Inc., served a Notice Of Dismissal With Prejudice, by means of which it dismissed its civil action and vacated the Notice of Lis Pendens it had earlier filed. In the meantime, without advising the Respondent that he was doing so, on February 18, 1994, Mr. Richardson paid $3,661.00 in order to satisfy the Florida Builder Appliances, Inc., lien. The amount paid by Mr. Richardson included interest, attorney fees, and costs. Shortly after Hurricane Andrew, the prices for construction materials in the Dade County area sharply increased. As a result of those increases, the Respondent eventually realized that it was not going to be possible to complete Mr. Richardson’s home for the amount agreed to in the contract. This unfortunate result was due to the Respondent’s inability to anticipate how much construction costs would increase in the aftermath of Hurricane Andrew. It was not due to incompetence or misconduct. All of the funds paid by Mr. Richardson were used by GMG Investment Company for the construction of Mr. Richardson’s home. None of those funds were used for any other purpose. The Respondent has not been the subject of any prior license discipline proceedings.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a final order be issued in this case dismissing all charges against the Respondent. DONE AND ENTERED this 28th day of August, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 28th day of August, 1997.
The Issue The stipulated issue presented in this case is whether the Petitioner, Carol Lee Reed, has six (6) years of experience in interior design prior to January, 1990 as required by Section 21 of Chapter 89-19, Laws of Florida, and therefore is entitled to be licensed as an interior designer.
Findings Of Fact Petitioner, Carol Lee Reed, (hereafter Reed), timely submitted a complete application for registration to be licensed as an interior designer in the State of Florida. By stipulation, the parties have agreed that the application and all supporting documentation therein was admissible, and it was received by the Hearing Officer as Respondent's Exhibit #1 (R. 70). By stipulation, the parties agree that Reed had obtained the requisite occupational license as an Interior Designer within the State of Florida at least one (1) year prior to October 1, 1988, and in support thereof, the Petitioner submitted into evidence the Verification of Occupational License Renewal as Exhibit "C". (R. 51, 70). Reed used and was identified by the title, "Interior Designer" for at least one year prior to October 1, 1988, and admitted into evidence as proof of this fact, were Reed's current business card as Exhibit "A", and the business card with Beverly Hills Homes as Exhibit "B". (R. 70). Reed has used or been identified by the title "Interior Designer" and has at least six (6) years of interior design experience as defined by Chapter 481, F.S., including: April, 1982 through July, 1984; Assistant Designer, Moorpark Emporium, Moorpark, California. (R. 45). August, 1983 through September, 1984; Owner, Customs by Carol, Thousand Oaks, California. (R. 43). October, 1984 through September, 1985; Owner, Customs by Carol, Califon, New Jersey. (R. 43). September, 1985 through February, 1986; Interior Designer with Beverly Hills Homes, Beverly Hills, Florida. (R. 42). March, 1986 through December, 1986; Interior Designer with Inside Story, Hernando, Florida. (R. 42). December, 1986 through June, 1987; Administrative Assistant/Designer with Ann Franklin, ASID, Interior Designs, Inverness, Florida. (R. 37). June, 1987 through March, 1988; Interior Designer, again with Beverly Hills Homes, Beverly Hills, Florida. (R. 28). March, 1988 through Present; Interior Designer with Sims Furniture, Inc., Lecanto, Florida. (R. 6). Reed performed consultations, studies, drawings, and specifications as part of the interior design services she rendered for the requisite six (6) year period (R. 8). Reed provided design services including consultations, studies, drawings, and specifications in connection with reflected ceiling plans, space utilization, furnishings, or the fabrication of non-structural elements within and surrounding interior spaces of buildings; but specifically excluding mechanical and electrical systems, except for specification of fixtures and their location within interior spaces (R. 8-11) according to the corroborating testimony of Michael W. Sims, Sr. (hereafter Sims). Reed did "complete the layout, the lighting, the interior design, the electrical arranging" for Sims Furniture (R. 8) without any assistance (R. 10). When Reed began working for Sims Furniture in March of 1988, it was obvious that she had many prior years of interior design experience (R. 11, 24). Reed worked with builder, Mitch Underwood prior to October, 1988 to redesign interiors including the placement of floor plugs. (R. 11). Reed's contact with clients was long term and resulted in interior changes and selections based on client consultations, studies, and informed choices. (R. 9-10). Reed worked with Pelican Cove Development to redesign interiors including a built in non-structural partition change in closet storage system, placed television outlets and telephone jacks and moved a window to make it a sliding door exit for clients. (R. 66). Reed added lanai space and designed built-in furniture as reflected on her drawings for a Meadowcrest home. (R. 65). The job performed by Reed at Beverly Hills Homes was that of an interior designer according to Sims testimony. (R. 13). The services provided by Reed to Sims Furniture met the statutory definition of Interior Designer as contained in Section 481.203(8), F.S., (R. 21). Reed had sole and complete responsibility for the interior design of the Sims Furniture, including assuring that the store satisfied the handicap accessibility requirements of the local building code. (R. 37). Prior to employment with Sims Furniture, Inc., Reed worked as an interior designer for Beverly Hills Homes for two period of time between September, 1985 through March, 1988 (R. 28). While working for the Inside Story in 1986, Reed performed interior design services as defined by Statute for condominium owners in Citrus Hills, a large residential development in Citrus County. (R. 42). Reed was self-employed or in the course of regular employment, rendered or offered to render to other people interior design services as defined in Chapter 481.203(8), F.S., while operating her own business in New Jersey in 1984. (R. 43). Reed assisted a commercial client by specifying a non-slip floor material, performed a space utilization study prior to changing a show room, and ordered non-structural counter partition changes. (R. 62). Reed assisted two clients with kitchen remodellings in New Jersey. (R. 61). Reed worked full time as an interior designer from August, 1983 through the present time and continuously held herself out as an interior designer, full time, during that period. (R. 46). Reed's business in Thousand Oaks, California assisted clients in remodeling interiors of their homes (R. 44) by making non-structural changes, doing space planning, lighting, adding fireplaces and adding garden rooms. (R. 46). Reed maintained occupational licenses as an interior designer during the requisite six (6) year experience period. (R. 50). Reed offered professional services as a consultant, specifier, and supplier. (R. 50). Reed submitted drawings showing interior modifications and space utilization studies, and one of those representative files was submitted as Exhibit "D". Reed solicited and received client performance forms that are part of the record which corroborates the Petitioner's rendition of interior design services for various clients during the six year period prior to January 1, 1990, including those of: Glenn S. Light-San Francisco, California; assisted in complete remodeling of home in May of 1982. Harriette Ferguson - Moorpark, California; acted as consultant on space utilization, furnishings and the fabrications of non-structural elements surrounding interior spaces of building. James E. Dickison-Plans, Texas; suggestions regarding traffic patterns, lighting, and furniture placement for home in West Lake, California in 1983. Leslie Dawn-Honolulu, Hawaii; from August 1983 through October, 1983; developed a floor plan, assisted in selecting furniture and window coverings, and specified wall coverings. Margaret Kovach-Waretown, New Jersey; December 1984 completed consultation requiring space planning, furniture placement, and specifications of wall and furniture coverings. Abbas Larizadeh-Jackson Heights, New York; designed the living, work, and storage areas in June, 1985. Joseph S. Vitale-Beverly Hills, Florida; complete specifications for new home including space planning in September, 1985. Catherine Piper-Ocean City, New Jersey; space planning and design and supervision of full storage system in March or April, 1986. Martha Pattley-Trenton, New Jersey; provided input on addition to home she originally designed interior specifications for in July, 1987. Joseph Valverde-Beverly Hills, Florida; assisted client with non- structural elements within and surrounding interior space of new home in November, 1987. Margaret and Louis Bertelli-Beverly Hills, Florida; respecified materials for interior of home and non-structural elements surrounding interior spaces in December, 1987. All client preference forms indicated Petitioner was recommended as qualified and competent to be licensed as an interior designer in the State of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Professional Regulation, Board of Architecture and Interior Design, issue a Final Order approving the application of Carol Lee Reed for registration to be licensed as an "Interior Designer" in the State of Florida pursuant to Chapter 481, Part 1, Florida Statutes, and Section 21 of Chapter 89-19, Laws of Florida. DONE and ENTERED this 22nd day of May, 1992, in Tallahassee, Florida. COPIES FURNISHED: James A. Neal, Jr., Esquire 213 North Apopka Avenue Inverness, FL 32650 STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1992. Arthur R. Weidinger, Jr., Esquire Department of Legal Affairs Suite 1602-The Capitol Tallahassee, FL 32399-1050 Angel Gonzalez, Executive Director Board of Architecture and Interior Design 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether the Division of Administrative Hearings retains jurisdiction to conduct a formal hearing under the provisions of Section 120.53, Florida Statutes, after the Department invokes the provisions of Section 946.515, Florida Statutes.
Findings Of Fact On August 28, 1992, the Department advertised a Request for Proposals (RFP) for Open Office Furniture Systems, RFP #92-/93-5016. Thereafter responses were received from threee responsive bidders. On October 7, 1992, the Department posted its intent to award the bid to Haworth, the proposer which received the best technical score among the three responsive bidders. Pride of Florida (PRIDE) was second, and Interior Contract Services, Inc., (ICS) was third. Haworth's was the lowest bid, at $879,752.92, PRIDE was next lowest, at $931,925.02, and ICS was third at $1,220,173.63. ICS's bid was well above the amount budgeted by the Department for the RFP. On October 9, 1992, ICS filed its Notice of Protest of the intent to award the bid to Haworth. ICS did not file a formal protest of the award of the bid to Haworth within 10 days of the Notice of Protest. The Department later discovered that the bid specifications were substantially flawed and ambiguous, and decided to reject all bids, including that of ICS. ICS was notified of the intent to reject all bids on October 16, 1992. ICS filed a Notice of Protest of the decision to reject all bids on October 21, 1992, followed by a formal protest of the rejection, filed on October 28, 1992, all pursuant to Section 120.53(5), Florida Statutes. On October 28, 1992, Department representatives visited PRIDE's factory in Polk City, Florida. PRIDE demonstrated at that time that it could provide the furniture that the Department was seeking, that it was manufactured by inmates, that it could supply the furniture at a reasonable price, and that the furniture met the Department's standards as described in the RFP. PRIDE followed its demonstration of those facts with a letter to the Department, asserting the same facts on November 18, 1992. On October 30, 1992, the Department determined that it would purchase the furniture from PRIDE. This decision was related to ICS at a meeting between the Department and ICS on November 5, 1992. The Department and PRIDE entered into a contract for the open office furniture systems on November 18, 1992.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the petition of Interior Contract Services protesting the Bid Proposal for Open Office Furniture Systems, Proposal Number RFP-DOT-92/93/-5016. DONE and ENTERED this 22nd day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1992. COPIES FURNISHED: Christopher H. Morrison BALDWIN & MORRISON, P.A. 7100 South Highway 17/92 Fern Park, Florida 32730 William H. Roberts, Esquire Carolyn S. Holyfield, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building Attn: Eleanor F. Turner, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue Petitioner's administrative complaint dated September 1, 1989, alleges that Respondent violated Section 489.129(1)(m), F. S. in the negligent and incompetent supervision and construction of a residence for Leonard Bassi in the City of Sebastian. The issue here is whether the violation occurred and, if so, what penalty is appropriate.
Findings Of Fact Respondent, Iktidar Hussain, is now, and at all times material to the issues in this proceeding, has been licensed as a certified general contractor in the State of Florida, holding license number RG0050519. Mr. Hussain's license qualifies his business, Classic Builders, Inc., 2900 North A1A Highway, Indialantic, Florida, 32903. On or around October 31, 1986, Iktidar Hussain and Leonard and Elizabeth Bassi executed a contract for construction of a single family residence by Classic Builders, Inc. for the Bassi's on their lot at 573 Browning Terrace in Sebastian, Florida. The construction price was $50,000.00, plus $2,000.00 in options (a screen porch and french door). Permits were obtained, and construction commenced sometime in January 1987. Direct supervision of the work was primarily left to an employee of Classic Builders, Tahir Qizilebash, a licensed general contractor and licensed engineer. Iktidar Hussain met formally on site with his supervisor approximately every two weeks, but also made frequent drive-by inspections and stops as he toured the area in his supervision of several construction jobs undertaken by Classic Builders. On May 5, 1987, when the house was substantially completed, Iktidar Hussain and Mr. Bassi with members of his family walked through the site identifying items which needed to be corrected or completed. A list was made by Mr. Bassi or his sister, and was signed by Mr. Hussain and Mr. Bassi. The list provides the following items: Front Door Entrance: Dead bolt lock Saddle to be painted white on inside. Black spots show. Living Room: Off white plastic molding to be installed around fireplace per carpenter - 5/5/87 and Bassi. Touch up paint on ceiling and wall. Air conditioner thermostat to be adjusted. Master Bedroom: Touch up paint on corner of closet. Touch up by wall switch to bathroom. Small Bedroom: Touch up paint on bedroom door. Back Bedroom: Clean off paint on glass door. Inside door jam to be touched up with white paint. Bedroom Hallway: Trap door should be replaced with plywood and painted white. Guest Bathroom: Medicine cabinet door needs to be sanded and repainted white. Master Bathroom: Leak under toilet bowl tank. Garage Floor: Plaster to be removed from floor by laundry room. Cement apron to outside indents inside - not to outside. Water collects. Lip to be added at end of street across driveway. Kitchen: Change TV outlet to sink wall. Lawn: Sod to be added in bare spots. Outside of House: Needs to be repainted, spots are different color. Windows: Almost all windows have bad frames. Corners need to be filled - sanded and repainted. Roof Overhang: Aluminum strip needs to be nailed down around facia strip. Culvert: Swale and piping to be added so that water does not settle at bottom of property. Painter: French doors and windows need to have rust paint removed. Also on vinyl windows. Trees: Trees have to be added where pine trees are removed. Screen Porch: Screens to be installed with alum. base and 1 door. $3,000 balance due. Payments will be made as corrections are completed. (Respondent's Exhibit 3.) On that date the parties also prepared and signed a handwritten document titles "Final Settlement", providing that the balance due on the contract price, $3,000.00, would be placed in escrow with Professional Title Company for the completion of the correction items. (Petitioner's composite exhibit #3) The next day Mr. Bassi sent a letter to Iktidar Hussain stating that the correct balance was $2,500.00, not $3,000.00 and that he was sending $2,500.00 to the escrow agent. (Petitioner's composite exhibit #3) The certificate of occupancy was issued by the City of Sebastian Building Department on May 6, 1987. Mr. Bassi and his family moved into the house in August 1987. Prior to that they had been in south Florida, about 160 miles away. The record is unclear as to a sequence of events and precise dates, but sometime between the issuance of the certificate of occupancy and early 1988, relations between Leonard Bassi and Iktidar Hussain deteriorated substantially. Mr. Bassi made several new lists of complaints about the construction of the house. Mr. Hussain claims that he tried to make corrections in good faith, but nothing would satisfy Mr. Bassi. At one point, after Mr. Hussain felt corrections on the May 5, 1987 list were 80% completed, he approached Mr. Bassi about release of some of the escrow money; Mr. Bassi called the sheriff and threatened to have him arrested for trespassing. The escrow funds were never released to the contractor and eventually he relinquished his claims on the funds. Leonard Bassi sent a list of complaints to the Department of Professional Regulation (DPR). (Respondent's exhibit #6) Some items were the same as those found in the May 1987 list; most were new items. Respondent was informed by the DPR, in a letter dated February 22, 1988, from Staff Attorney Douglas Shropshire, that the agency was taking no action on the complaint and was closing the file. The letter further stated that the matter could be reopened later if further evidence was presented. (Respondent's exhibit #7) Sometime prior to March 1988, Leonard Bassi complained to the City of Sebastian Construction Board. The Board's vice-chairman, John Laman, inspected the house on March 15, 1988. He found the exterior siding in poor condition, with paint peeling off, and some of the siding cracked and dry. There was a ceiling leak in the laundry room; the weather strip on the front door was not in place properly; a recessed area in the driveway pavement under the garage door sloped into the garage, retaining water; the driveway was not wide enough to accommodate a second car's entry into the garage without rolling on the yard; the door thresholds were not properly supported-one had no support, the other was supported by a piece of lumber what had become unfastened from the concrete; the garage door was not smoothly finished; the driveway lacked expansion joints; a lighting panel in the kitchen was not carefully covered; bi-fold doors did not fit properly in the headers; pulls on the kitchen cabinets had not been sanded and finished; the attic ladder was cut too short and the hinge mechanism was loose; and portions of two roof shingles were missing around the fireplace chimney. In addition, in certain places the footer was exposed as much as one to six inches. That is, beneath the footer there was a gap where the soil had washed away or had not been properly placed. The multiple problems evinced poor workmanship, but in John Laman's opinion all of the problems could have been corrected by one good man in two days. The city construction board ordered Iktidar Hussain to make corrections. At some point, the board suggested that Mr. Bassi absent himself from the premises when Mr. Hussain was there, because of the extremely poor relationship between the parties. Mr. Bassi's attorney told Hussain to refrain from direct contacts with Bassi and to work through him, the attorney, instead. Iktidar Hussain attempted to make the corrections. He sent workers to the site and paid them to do the work. On one occasion he had a roofer trying to repair the roof, but Mr. Bassi was upon the roof with the worker. Mr. Hussain was standing at the edge of the house when Mr. Bassi called the police to have him arrested for trespassing. The siding was repainted several times - the last time under the direct supervision of Mr. Bassi's attorney and the city construction board. Bickering between Hussain and Bassi continued, and finally the city board closed its file with the conclusion that this was a civil matter, a contract dispute, and they could not accomplish anything. DPR reopened its file. It retained an expert, Julian Garcia, licensed as an architect, engineer and general contractor, from Winter Haven, who did a site visit and a technical evaluation on April 2, 1989. Julian Garcia found some of the same problems, and some new problems. His report lists the following: the exterior siding was deteriorated with peeling paint and water damage; no termite shield was installed along the base of the wall; the door thresholds were supported with wood, rather than concrete; the bathroom mirror was deteriorated at the bottom one inch; the base of the air conditioning unit in the laundry room had broken drywall and exposed wood framing; the light panel in the kitchen and the kitchen cabinet pulls were still not properly finished; the covered screen porch ceiling was finished with interior ceiling material, "popcorn", and was showing signs of weakening and loosening; some windows were not caulked, could not be locked, and were etched with markings; the septic tank drainfield was leaking; the garage floor was still not smoothly finished and the door groove still allowed water to stand; the attic ladder was still not properly connected; the bi-fold door jambs were still not properly finished; lavatories in the bathroom were partially bleached from their original yellow color and were pitted around the drain; the footings were not deep enough, leaving gaps around some edges; and the drainage along the right of way needed adjustment to provide flow through an existing culvert. In Julian Garcia's opinion, the existence of all of these combined problems reflected gross negligence by the contractor. It was not established, however, that all of the problems were the fault of the builder, Iktidar Hussain. The residence had passed local building inspections without the need for reinspection, including the slab inspection which should have revealed a problem with the depth of the footers. Each time some one made a list of problems, new or different items appeared, over a period of three years. The siding was a recurring problem and one which still existed at the time of the hearing. Even Iktidar Hussain conceded this, but he insisted that he had tried to fix it and had done everything he was told to do by Mr. Bassi's attorney and the local construction board. Not all of the siding was in the same poor condition, and there could have been some bad panels in the batch, or the siding was left unpainted too long and moisture permeated the wood preventing proper adherence of the paint. The footers were not uniformly 12 inches below grade, as required by the 1982 edition of the Standard Building Code, the code adopted by the City of Sebastian. However, except where the soil washed away, it was impossible to determine how deep the footers extended. Mr. Bassi had moved a lot of dirt in his yard and had also moved away from the house the sod installed by the contractor. Many of the items noted by Julian Garcia were apparently not problems when Mr. Bassi did his lists at the time the house was completed and shortly after he moved in. Poor quality well water or cleansers used by the homeowner could have caused the bleaching and pitting of the bathroom fixtures. It was clear from the testimony of Petitioner's expert and from the local building officials that if the problems existed at the time the house was completed by the contractor and if he had not corrected them, he would be guilty of the gross negligence and incompetence with which he is charged. But it is not clear that all of the problems were caused by Classic Builders. Both Leonard Bassi and Iktidar Hussain were agitated and volatile at the hearing and their separate accounts of events were rambling and disjointed. Both were plainly frustrated at the length of time the dispute was pending without resolution. Both alleged harassment. Iktidar Hussain attempted in good faith to make repairs and to resolve the problems identified by Mr. Bassi in May 1987, and by the local construction board in 1988. He was supervising the work when Mr. Bassi lost confidence in him and insisted that he or the attorney or the board direct the repairs and that Hussain remain off the premises. Mr. Bassi concedes that he attempted some repairs himself and substantially altered the yard work. From the evidence presented it is impossible to find that Respondent is guilty of gross negligence and incompetence even though substantial problems exist in the house he built for Leonard Bassi less than four years ago.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered dismissing the administrative complaint against Respondent. DONE and ENTERED this 7th day of December, 1990, in Tallahassee, Florida. MARY CLARK 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 7th day of December, 1990. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioner. 1. Rejected as unnecessary. 2 - 3. Adopted in paragraph 1. Adopted in paragraph 2, except that the full contract price was $52,000.00. Adopted in paragraphs 3, 5, and 7. Adopted in paragraph 5, except for the conclusion that the deficiencies constituted "gross negligence". Rejected as unsupported by the weight of evidence, except for the statements regarding the condition of the siding, which are adopted in substance in paragraph 21. Adopted in part in paragraph 22, otherwise rejected as unsupported by clear, competent evidence. Adopted in paragraphs 11 and 18. Adopted in paragraph 18. Rejected as immaterial. No clear competent evidence established Classic Builders' responsibility for any drainage problems. Adopted in paragraph 18. 13 -17. Adopted in paragraphs 11 and 18. Rejected as unsupported by clear, competent evidence. Adopted in paragraph 18, except for the conclusion that the lavatories were of extremely poor quality. Adopted in paragraph 11, except for the facts related to the insulation, which facts are not supported by clear competent evidence. Adopted in paragraph 18, except that the conclusion with regard to lack of workmanship is rejected. This condition was not noted in the prior lists of problems and there is no indication it existed when the homeowner moved in. Rejected as immaterial. Rejected as unsupported by the weight of evidence except for the fact that Respondent was given notice of some defects. Rejected as contrary to the weight of evidence. Copies furnished to: Robert B. Jurand, Esquire 1940 N. Monroe Street Suite 60 Tallahassee, FL 32399 Iktidar Hussain Classic Builders 2900 North Highway AIA Indialantic, FL 33903 William J. Neale, Esquire Post Office Box 546 Melbourne, FL 32902-0546 Daniel O'Brien, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, FL 32202 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Rood is a black person. Rood was employed by Coastal Lumber Company on June 22, 1981, as a glue line superintendent, where he supervised three shifts and three shift supervisors. In January, 1982, Rood was promoted to Dry End Superintendent, responsible for seven supervisors and three shifts. Coastal Lumber Company operates a plywood production plant in Hinson, Florida. The plant has been in operation only since 1981 and produces plywood panels for use in the construction industry. Plywood production is divided into several stages. The first stage is referred to as the Green End and involves stripping green logs straight from the forest by use of an industrial lathe. The lathe strips the logs into thin veneer sheets approximately 50 inches by 101 inches in size. The veneer sheets are then transported to a huge oven where the sheets are dried out. Once the green veneer has had most of the water content removed in the oven, the sheets are placed on a conveyer belt (the lay-up line). Glue is applied and the veneer sheets are placed one on top of the other like a sandwich to obtain the desired thickness. The multi-layered sheets are then pressed together in a large hydraulic press to cure the glue and bond the veneer sheets together to form a plywood panel. After pressing, the rough-edged panels are squared off into standard size panels, sorted, graded, and shipped. The production line beginning with the drying out process in the ovens through gluing and pressing process is referred to as the Dry End. The finishing and shipping department is a part of the Dry End in that the finished product has been dried in the oven, but is more typically referred to as a separate department. David Carter was hired by Coastal Lumber as the plywood production manager in February 1982. He had previously been employed by the Union Camp Corporation as a plant manager and has twenty-five years of experience in the plywood industry. Carter was hired because Coastal Lumber was in dire financial straits. The company had lost a lot of money in its first year of operation and was in danger of closing down. Production was down, costs were out of control and the plant was lacking in leadership. When he arrived at Coastal Lumber, Carter found the plant organized in a departmental superintendent system. Warren Thornton, a black man, was the Green End superintendent. Rood was the Dry End superintendent. John Asbell, a white man, was the Finishing and Shipping superintendent. Under the system, the three superintendents were of equal authority and were responsible for scheduling and coordinating production between their departments. Carter had worked before in plants which used this departmental superintendent system but based on his many years of experience preferred a system utilizing a single plant superintendent who is responsible for scheduling production throughout the plant. In order to increase production and turn the plant around, Carter began making changes. First, he fired John Asbell because Asbell was unable to improve the finishing and shipping department. He then transferred Mike Leonard, a black employee, from the glue line to the finishing and shipping department because Leonard had some prior experience in the area. Rood, who had previously supervised Leonard on the glue line, was required to assume superintendent responsibilities for the finishing and shipping department in addition to his responsibilities as dry end superintendent. Both of these personnel moves were on a trial basis. Although some improvement occurred in the finishing and shipping department under Rood's supervision, the improvement was not satisfactory in light of the serious financial condition of the company. Production had not improved sufficiently, housekeeping and maintenance was not up to par and the manufacture of specialty items was requiring too much personal involvement by Carter due to Rood's inexperience. Having exhausted internal efforts at increasing production in the finishing and shipping department, Carter hired Leon Pinner from outside the company as the finishing and shipping supervisor. Pinner had over one and one- half years experience in the finishing and shipping department with International Paper Company and had been directly involved in the production of specialty items. He had also worked as assistant plant superintendent, plant superintendent and plant manager while employed with Georgia Pacific. For several weeks Pinner worked under Rood's supervision but Carter relieved Rood of any supervisory responsibilities in the finishing and shipping department shortly after Pinner's arrival. Within four weeks or so after Pinner's arrival, the finishing and shipping department was up to production, housekeeping was in order and Carter was tremendously impressed with Pinner's performance. Shortly thereafter Carter, along with his immediate boss - J. T. Woods, elected to switch to a plant superintendent organizational scheme for the plywood plant. This reorganization resulted in the elimination of the three departmental superintendent positions, although as a practical matter two of the positions were vacant at of the time of reorganization. Woods and Carter considered three candidates for the position of plant superintendent - Warren Thornton, Bill Rood and Leon Pinner. There was no advertisement or announcement that Coastal was seeking a plant superintendent. Based on Pinner's superior performance in straightening out the finishing and shipping department, Pinner's experience in the industry and Rood's inability to straighten out the finishing and shipping department, Pinner was promoted to the position of plant superintendent. Rood completed 3 1/2 years of college credits. He was first hired in the plywood industry in 1966. He has worked as a foreman, a supervisor, Dry End Superintendent, and plant superintendent. He has a total of 14 1/2 years of supervisory experience at the different levels of responsibility. Pinner began in the plywood industry in 1967. In addition to various line positions, he has served as supervisor in the glue line, drier and finishing and shipping and as assistant plant superintendent, plant superintendent and plant manager. Carter and Pinner discussed how the reorganization was to be handled and what was to be done with Bill Rood's position as Dry End superintendent. Rood's position was eliminated and he was transferred to day shift glue line supervisor, without a pay cut. His new position was equivalent to that held by any other supervisor and he no longer had the authority to exercise any supervision over the other supervisors. On June 18, 1982, Pinner called a production supervisors' meeting to advise the supervisors of the reorganization. Rood was present at the meeting. Pinner advised Rood that his position had been eliminated and that he was placed in the position of day shift glue line supervisor. He was advised that the change was effective immediately. Pinner also advised all supervisors to pull maintenance while the plant was shut down. Pinner gave strict instructions that all supervisors, including Rood, were to be present on June 20, 1982, to perform maintenance. Rood was advised to run his day shift on June 19, 1982, after which the plant would shut down for maintenance. Following this meeting, Rood no longer had supervisor authority over the other supervisors and no longer had the authority or latitude of a superintendent. On Sunday, June 20, 1982, Rood showed up at the plant and instructed the other two supervisors in the glue line as to what maintenance needed to be done. Rood then left the plant and did not return. Rood performed no actual maintenance work himself. He did not ask permission to leave of either Pinner or Carter, both of whom were present at the plant themselves performing maintenance. The next day, June 21, 1982, Pinner terminated Rood. Carter concurred in this decision. The decision to terminate Rood was based on several reasons. First, Rood had disobeyed a direct order from the plant superintendent, an order which had been given in the presence of other supervisors. Second, Rood had left without asking permission. As an on-line supervisor, like all other supervisors, Rood could not come and go as he pleased. Although, while he was the Dry End superintendent, Rood had necessarily worked at various times (due to the responsibility of having to oversee all shifts in his department), he no longer had such flexibility and was required to be at the plant specific times for a specific shift. He was required to help with maintenance on Sunday just like every other supervisor (including the plant superintendent and plant manager - Pinner and Carter). He failed to do so. Third, his failure to pull maintenance despite direct orders set a bad example for other supervisory personnel, some of who had legitimate reasons for needing June 20 off. At various times Coastal has had problems with other employees, both black and white. No other employee had been terminated on the first instance of absence from work without permission. Infractions by others were dealt with first by warnings or suspensions. Termination did occur with both black and white employees. Rood was treated differently because all of this took place during a critical period for the plant when everyone s cooperation was imperative. In this regard, Rood's situation is clearly distinguishable from that of other employees, both black and white whose jobs had been terminated only after several instances of tardiness because of his prior position and the dire circumstances of the company. Mr. Rood was not fired because he is black. After his termination, Coastal Lumber offered Rood the same opportunity it typically offered supervisory personnel that were fired or quit: he was offered a hourly job as a core layer with the opportunity to work his way back up into a supervisory position. This opportunity was administered equally to both black and white workers (for example, Lacy Stacker and David Brown). Had Rood accepted the core layer job at $6.00 per hour and proved himself capable of good job performance, he probably would have resumed a supervisory role within a month or so, as did Stacker and Brown. Rood made reasonable attempts to secure other employment, but remained unemployed from June 21, 1982 until January 1983. During that period he collected $2,630.00 as unemployment compensation. At the time of his termination, Rood was paid $2,530.00 per month. In January 1983, he was hired by Boise Cascade Lumber Company in South Carolina with an annual salary of $20,991.00. In May 1984, Rood was promoted to a supervisory position and received a pay increase to $27,000.00 per year. 30. Rood lost income of $15,180.00 during 1982, $9,459.00 in 1983 and $5,845.00 from January 1, 1984 until November 1, 1984. The total lost wages for this period was $30,484.00. Rood continues to make $380.00 less per month than while employed by Coastal.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the complaint of William D. Rood, Jr., be DISMISSED and that the Prayer for Relief be DENIED. DONE and ENTERED this 7th day of February, 1985, in Tallahassee, Florida. DIANE K. KIESLING 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 7th day of February, 1985.
The Issue The issues are whether Respondent, Ashley Furniture Homestore, subjected Petitioner to unlawful sexual harassment and a hostile work environment based upon her sex, in violation of section 760.10, Florida Statutes,1 and/or whether Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Ashley Furniture is an employer as that term is defined in section 760.02(7). Ashley Furniture is a furniture manufacturer with retail stores around the world, including Gainesville, Florida. Ms. Brown is an African American female. Ms. Brown began working as a Retail Sales Associate (“RSA”) on July 31, 2017, at Ashley Furniture’s Gainesville retail store. Petitioner worked at the Gainesville store until May 13, 2018. At the time she was hired, Ms. Brown’s immediate supervisor was Sales Manager Leon Hildreth, a white male. Mr. Hildreth’s supervisor was Lawrence Lamb, the Store Manager.2 Mr. Lamb is a white male. Ms. Brown testified that her working relationship with Mr. Hildreth was “amazing” at first. Mr. Hildreth was always there to help and to encourage the employees. When Ms. Brown completed a sale, she would get a “high five” from Mr. Hildreth. Ms. Brown testified that her relationship with Mr. Hildreth changed after about three months. Ms. Brown did not testify as to exact dates, but her Employment Complaint of Discrimination specified “mid-October 2017.” Mr. Hildreth hugged her in a way that made her uncomfortable. He would 2 The Store Manager supervised two subordinate managers: the Sales Manager, who oversaw the RSAs; and the Office Manager, who ran the non-sales functions of the store. make jokes about female breasts and whisper insinuating things in her ear. On three occasions in late 2017, Mr. Hildreth hugged her around her waist. Ms. Brown testified that she complained to Mr. Lamb about Mr. Hildreth’s hugging. Ms. Brown stated that Mr. Lamb told her that he had seen Mr. Hildreth hugging women inappropriately and that he intended to report Mr. Hildreth to Ashley Furniture’s upper management. Ms. Brown testified that Mr. Lamb later told her that he had counseled Mr. Hildreth about the hugging and had made a report to Ashley Furniture’s Human Resources (“HR”) department. Mr. Lamb testified that Mr. Hildreth was a “charismatic” and gregarious person, attributes that are generally desirable in a Sales Manager. Mr. Hildreth interacted well with customers and with most employees. Mr. Lamb testified that he had “a couple of situations” with Mr. Hildreth. Mr. Hildreth liked what he called a “family atmosphere” in the store, which included what Mr. Lamb believed to be an unprofessional level of physical contact. Mr. Hildreth was fond of hugging his subordinate employees. Mr. Lamb spoke to Mr. Hildreth about the hugging and was “rebuffed.” Mr. Hildreth simply stated, “That’s how I manage.” Mr. Lamb again brought up the hugging issue during Mr. Hildreth’s evaluation in December 2017. Mr. Hildreth gave him the same response and pointed to the improved sales figures in the store as evidence that his “family” approach was effective. Mr. Lamb documented his conversations with Mr. Hildreth in a Word document and placed the document in Mr. Hildreth’s personnel file. Mr. Lamb testified that, because he was getting nowhere with Mr. Hildreth, he spoke with Regional Manager Aaron Leroux about the problem. Mr. Leroux said that he would talk to Mr. Hildreth about it. Mr. Lamb left the employ of Ashley Furniture on January 4, 2018, a few weeks after this conversation.3 Mr. Lamb testified that he did not believe Mr. Leroux ever followed through on his promise to address the issue with Mr. Hildreth. While Mr. Lamb testified as to his observations about Mr. Hildreth’s behavior, he did not expressly confirm having a conversation with Ms. Brown about Mr. Hildreth’s specific actions toward her.4 Mr. Lamb also did not specify whether Mr. Hildreth’s practice of hugging was confined to female associates or whether he hugged RSAs of both sexes to foster a “family atmosphere.” Mr. Lamb testified that he had no knowledge of any events that occurred at Ashley Furniture after January 4, 2018. Ms. Brown testified that things escalated after Mr. Lamb left and Mr. Hildreth was the only supervisor present during her shifts. She stated that other managers would come to the store, presumably to fill in until Mr. Lamb’s replacement was hired, but that Mr. Hildreth was careful to approach her only when they were alone. He would approach her at the “sales point,” i.e., the place where the RSA was stationed to greet customers, and “tell me things like he wants to perform oral on me.” Ms. Brown would tell Mr. Hildreth that such talk made her uncomfortable. She repeatedly told him that she did not come to work to fulfill his sexual desires. Mr. Hildreth would attempt to defuse the situation by pretending that he was joking. However, Ms. Brown stated that once it became clear that she would not accede to his sexual advances, Mr. Hildreth became increasingly hostile toward her. Ms. Brown testified that Mr. Hildreth would no longer help her with sales. If she needed help or asked a question, Mr. Hildreth would berate her 3 Mr. Lamb’s departure was not on good terms. He had accused the company of age discrimination and believed that it had retaliated against him, though he did not seek legal redress. Mr. Lamb had also been accused of sexual harassment by a subordinate employee, but an internal investigation was resolved in his favor. 4 The undersigned notes that neither party directly asked Mr. Lamb about his conversations with Ms. Brown. in front of customers. Mr. Hildreth would ask if she was dumb or make snide remarks about “rocket scientists.” Ms. Brown testified that Angela “Angie” DeSue, the housekeeper in the Gainesville store, witnessed Mr. Hildreth pull Ms. Brown’s hair in a joking but sexual way. Ms. Brown stated that Ms. DeSue was present in the break room when Mr. Hildreth was talking about Ms. Brown’s breasts, comparing them to chicken breasts because he liked them so much. Ms. Brown testified that Ms. DeSue also saw Mr. Hildreth attempt to bribe her by offering her his credit card to buy dinner. Ms. Brown testified that she was afraid to say anything to HR for fear of losing her job. She stated that she spoke to Ashley Furniture Executive Vice President Steve King at a large employees’ meeting in February 2018. Mr. King asked her to email him the details of her complaint. Ms. Brown testified that she attempted to send Mr. King an email on March 3, 2020, but the email address he had given her was not correct. On February 26, 2018, Julie Houser, the new Store Manager, began work full time in the Gainesville store. Ms. Houser had been one of the managers who filled the slot temporarily after Mr. Lamb resigned. Ms. Houser testified that when she started, Ms. Brown was notable for being a “low writer,” i.e., an employee who fails to meet sales expectations. Two days after she arrived, Ms. Houser gave Ms. Brown two written reprimands (“corrective action reports” or “CARs” in Ashley Furniture parlance) for failing to meet her expected sales goals. One of the CARs covered February 2018 and the other was for January 2018. Ms. Houser did not know why Ms. Brown had not been given the January 2018 CAR until the end of February. She only knew that upper management asked her to give Ms. Brown the CARs. On March 6, 2018, Ms. Houser met with Ms. Brown to discuss her performance. Ms. Brown told Ms. Houser that she was under a lot of stress. Ms. Brown described an argument with her sister that culminated in a fist fight and Ms. Brown ramming her sister’s car several times. The police were called and Ms. Brown was charged with a felony. Ms. Brown stated that she was on “parole” and that the charges would be dropped if she maintained a clean record for three months.5 Ms. Brown told Ms. Houser that keeping her job was a condition of staying out of jail and that she was desperate not to be fired. Ms. Houser testified that Ms. Brown also told her that Mr. Hildreth had made sexual advances, including inappropriate touching, and said sexual things to her. Ms. Houser recalled that Ms. Brown told her the touching had occurred “a few months ago” but that she had been afraid to report it. Ms. Houser could not recall whether Ms. Brown described specific episodes of Mr. Hildreth’s behavior. Ms. Houser assured Ms. Brown that any information she shared would be confidential and shared only with HR Manager Gladys Lopez and Mr. Leroux, the Regional Manager. On March 6, 2018, Ms. Brown forwarded to Ms. Lopez the email she had attempted to send to Mr. King. The email provided as follows, in relevant part, verbatim: Hello, my name is Desiree Brown and I am an employee at Ashley’s furniture on Archer road blvd in Gainesville Fl. I am writing this letter to you because of the sexual harassment I’ve been dealing with for the past 3 months. I’ve been holding it in due to the fear of losing my job. And I don’t want to lose my job because I love this job, and adore this job. This job has been the best job I ever had But I can’t hold it in any longer I’ve been feeling very uncomfortable at work because starting 3 months ago he (my Manager) would tell me he want to be with me, and make me feel so uncomfortable. He would say thing like if he was my age I don’t know what he would do to me, and he wish he was my 5 Given that she had not gone to trial on the charges, Ms. Brown could not have been on “parole.” It is presumed that her continued employment was a condition of a pre-trial diversion program, completion of which would lead to dismissal of the felony charge. age so he could make me his. And he Kept repeating only if he was my age, he would try to take me out to dinner, he would ask me to always marry him, date him. He also ask to perform oral sex on me, tell me he will love to perform oral on me while at the job on the sales floor and even when I’m on point but as I kept turning him down he started getting angry yelling at me, threatening me, and telling an employee Ms. Angie that I’m not his favorite. Every time I try to get help from him he don’t want to help me out or be full of frustration and anger and take it out on me when he have to come and do a over ride for sales or customer purposes. He handled a situation unprofessionally in front of my customers once also. Mr. West[6] that came to visit are store to help out can vouch for it because they went up to him and told him how he handled the situation poorly and he yelled at me pointing his finger in my face on the sales floor in front of customers for no reason once and I was only trying to get help with a problem I was haveing. He also yells at me when I have a question and try to belittle me because I don’t want to be apart of none of the sexual activity he wants me to be apart of. Or be with him. He would say things like my customers think I’m stupid or I act as if I’m stupid and Some times he would even pull my hair and then smile at me when he walk by me. That was two weeks ago on 02-28-2018. At the private event at work he called me in to the office and told me he wouldn’t be able to start a meeting without ms. Julie because he have to have another manager in the room with him to sign my CAR sheet but he still started the meeting with out her and I don’t think she knew anything about it because she never came in or into the meeting. he was asking me questions like you wouldn’t say I was trying to touch on you, make you do anything that you don’t want to do sexually, or say I yelled at you because you didn’t want to do anything sexually. And I looked at him and said what?? And then I said no and that’s when we he 6 Ms. Brown testified that she thought “Mr. West” was Mr. King’s son. Mr. West was not otherwise identified in the record. laughed and said oh ok you know how y’all females are and rubbed me on my shoulder and we had exit the office. I am sorry but I can no longer take this harassment and wrote this email with high hopes that someone will help me or reach out to me. And if this letter does not help according to the policies and guidelines at Ashley furniture sexual harassment is completely unacceptable. Although I do not want to go this route of getting an Lawyer involved I will if there is nothing done in regards to my cry out for help! I feel unsafe uncomfortable and very mistreated…. Ms. Lopez testified that Ms. Brown’s written statement was her first notice of any problem between Mr. Hildreth and Ms. Brown. She stated that Mr. Lamb had not told her of Ms. Brown’s allegations and that she was unaware that Mr. Lamb had placed a written memorandum in Mr. Hildreth’s personnel file regarding his hugging of employees. Ms. Lopez testified that on March 7, 2018, she spoke to Ms. Brown on the phone. Ms. Lopez stated that Ms. Brown was “all over the place” in describing events. Ms. Lopez understood that Ms. Brown’s distress made it hard for her to give a coherent narrative, but Ms. Lopez also needed facts to begin an investigation. Ms. Lopez tried to ascertain when these incidents of harassment took place and who was present. Ms. Lopez recalled Ms. Brown describing Mr. Hildreth’s pulling her hair, calling her stupid on the sales floor, and touching her shoulder. Ms. Lopez did not recall anything about chicken breasts. Ms. Brown was able to give her the names of some potential witnesses. Ms. Lopez and Ms. Houser agreed that work schedules should be adjusted so that Ms. Brown was never working at a time when Mr. Hildreth was her sole supervisor. After March 6, 2018, Ms. Brown worked only when Ms. Houser was in the store. Ms. Brown made no further allegations against Mr. Hildreth after March 6, 2018. Ms. Houser wrote a memorandum to Ms. Lopez on March 8, 2018. The memorandum described Ms. Houser’s conversation with Ms. Brown on March 6, 2018, including the counseling as to Ms. Brown’s poor job performance and a description of the incident between Ms. Brown and her sister. As to the allegations against Mr. Hildreth, Ms. Houser wrote: Desiree told me that she has also been dealing with stress in the store and that Leon had touched her inappropriately and also stated that he had touched another employee named Angie inappropriately. She said she was too scared to tell anyone for fear of losing her job. I asked her when this happened and she said a few months ago. Leon and I distributed quite a few CARS last week and 2 were given to Desiree. She is on her final for poor performance. I was in the room while Leon issued the CAR to Desiree and we all signed it. On March 15, 2018, Ms. Lopez came to the Gainesville store to conduct witness interviews and take written statements. Ms. Lopez interviewed RSAs Roddrick Chandler, Shawon Shorter, Justin Terry, Travis Glenney, and Shoaeb Basa. She also interviewed Ms. Houser, Ms. DeSue, Mr. Hildreth, and Office Manager Amy O’Neill. None of the RSAs corroborated Ms. Brown’s allegations against Mr. Hildreth. Ms. Lopez noted that most of the RSAs were generally aware of Ms. Brown’s allegations.7 They told Ms. Lopez that they learned about the allegations from Ms. Brown, though she had agreed with Ms. Lopez and Ms. Houser to keep the matter confidential pending Ms. Lopez’s investigation. Ms. DeSue testified at the hearing. She stated that on one occasion in the break room, an RSA expressed an interest in dating Ms. Brown. 7 The written statements of two RSAs, Shawon Shorter and Justin Terry, state that Ms. Brown told them that Mr. Hildreth was treating her differently since she turned down his dinner invitation. She apparently made no other allegations in her conversations with these RSAs. Mr. Hildreth told the RSA that he couldn’t have Ms. Brown because Mr. Hildreth was saving her for his son. Ms. DeSue testified that she once saw Mr. Hildreth give Ms. Brown his debit card and tell her to go out and buy lunch for them both. Ms. DeSue stated that Mr. Hildreth had talked to her and to other employees besides Ms. Brown. In context, “talked” plainly meant that Mr. Hildreth had made romantic and/or sexual overtures. Ms. DeSue testified that Mr. Hildreth had once given her his debit card, and that he was dating two Ashley Furniture employees at one time. Ms. DeSue testified that staff had Publix fried chicken for lunch one day. Mr. Hildreth said, “guess which piece I like out of the seven pieces…. I like the two breasts.” Ms. DeSue did not testify that this statement was directed at anyone in particular. Ms. DeSue testified that she saw everyone in the store treat Ms. Brown differently after her allegations against Mr. Hildreth became known. Ms. DeSue stated that she wanted to come forward in support of Ms. Brown, but was afraid because she feared retribution from Mr. Hildreth and being ostracized by her fellow employees. On March 26, 2018, Ms. Lopez conducted her final interview with Mr. Hildreth, who denied all the allegations. Ms. Lopez stated that Mr. Hildreth seemed sad and disappointed when he learned of Ms. Brown’s accusations. Ms. Lopez described him as being “kind of in shock” and “emotionally visibly charged” during the interview. Mr. Hildreth vehemently denied Ms. Brown’s accusations and offered to take a polygraph test. Neither party called Mr. Hildreth as a witness. An email written by Mr. Hildreth to Ms. Lopez following his interview on March 26, 2020, was admitted without objection as a hearsay document. The text of the email is consistent with Ms. Lopez’s description of her interview with Mr. Hildreth. He denies all of Ms. Brown’s accusations as well as Ms. DeSue’s allegation that he dated Ashley Furniture employees. The email is accepted as corroborative of Ms. Lopez’s testimony that Mr. Hildreth denied the allegations. The email has been disregarded as to the truth of Mr. Hildreth’s denial, as it does not supplement or explain other admissible evidence on that point. As the investigation continued, it became apparent to Ms. Houser that Ms. Brown was speaking to potential witnesses about her allegations and trying to influence their statements to Ms. Lopez. On March 26, 2018, Beth-Anne McDeavitt of AcceptanceNOW8 approached Ms. Houser to complain that Ms. Brown was trying to induce her to make false statements. Ms. Houser also learned that Ms. Brown had typed her witness statement on the break room computer, purposely leaving it up on the screen for the other RSAs to read. On March 25, 2018, RSA Roddrick Chandler reported to Ms. Houser that while lying down in the break room with a headache, he overheard Ms. Brown speaking to someone on the phone. In the words of Mr. Chandler’s written statement, verbatim, Ms. Brown said “she was going to get leon and Julie fired and said that she was going to say leon sexual ask her favors Julie was stank bitch no good hoe and she was going to fram them to get them fired.” Ms. Houser reported Ms. Brown’s actions to Ms. Lopez. Ms. Houser believed that Ms. Brown was creating a hostile work environment by spreading the substance of her allegations throughout the store. Her actions were creating animosity as employees took sides in the matter. Ms. Houser told Ms. Lopez that she feared disciplining Ms. Brown for unrelated matters such as poor sales. Both Ms. Houser and Mr. Hildreth felt they were walking on eggshells because Ms. Brown would threaten a lawsuit whenever an issue arose as to her job performance. 8 AcceptanceNOW is a credit company that works in-house with retail companies such as Ashley Furniture to finance customer purchases. After interviewing the employees in the Gainesville store and hearing from Ms. Houser about Ms. Brown’s actions, Ms. Lopez spoke with Ms. Brown to remind her not to interfere in the investigation. Ms. Lopez testified that another reason for speaking with Ms. Brown was to calm her down. Ms. Brown was livid when she learned that Ms. Houser reported being present at the February 28 CAR meeting at which Ms. Brown claimed to have been alone with Mr. Hildreth. Ms. Lopez concluded that she could not substantiate the allegations made by Ms. Brown. Despite this conclusion, Ms. Lopez and Ms. Houser continued the practice of having Ms. Brown work only when Ms. Houser was also present. Ms. Lopez believed this practice was necessary to prevent either Ms. Brown or Mr. Hildreth from feeling uncomfortable in the workplace. Transferring one or the other of the employees was not an option because Ashley Furniture did not have another store in the Gainesville area. Ms. Lopez testified that the scheduling adjustment was probably unnecessary because Mr. Hildreth avoided Ms. Brown as much as he possibly could. Mr. Hildreth was uncomfortable in her presence. Mr. Hildreth was not disciplined. He remained nominally Ms. Brown’s manager, but he did not supervise her directly. He was not involved in her sales, and other managers would provide Ms. Brown with any supervisory assistance she needed. Though her sales improved briefly after she reported her allegations against Mr. Hildreth on March 6, 2018, Ms. Brown soon resumed the problematic performance that on February 28, 2018, had led to an admonition that the next CAR for poor sales would be her last. As March 2018 progressed, Ms. Brown began coming in late or missing shifts altogether without calling management. On March 11, 2018, she was scheduled to begin work at 10:30 a.m. She did not arrive until 12:20 p.m., her only excuse being that she thought she was supposed to come in late. Ms. Houser and Ms. O’Neill counseled her and Ms. Brown told them it would not happen again. Ashley Furniture attendance records indicated that Ms. Brown called in sick on March 20, 2018, but failed to submit a physician’s note to document her illness. She failed to appear for work on March 23, 2018, and left work early without permission on March 24, 2018. Ms. Brown later submitted a note stating that she had missed work because she was taking care of a situation involving her driver’s license. Ms. Brown told Ms. Houser that a friend of hers had rented a car. The car had “bad tags.” The friend had an accident in the car and handed the police officer Ms. Brown’s identification. In a summary memorandum to Ms. Lopez, dated March 26, 2018, Ms. Houser wrote, “From what I can see, none of this makes sense.” In a memorandum to Ms. Lopez and Mr. Leroux sent the previous day, March 25, 2018, Ms. Houser had recounted her meeting with Ms. Brown about the incident with the car and wrote, “I explained to her that she is missing a lot of hours and this is a personal issue not medical. Also discussed her numbers for the month and she said, ‘I can’t do my job in this work atmosphere with the sexual harassment.’ I have her on my schedule and have for the past 2 weeks.” Later on March 25, 2018, Ms. Houser sent a second memorandum to Ms. Lopez and Mr. Leroux that read as follows, verbatim: Today I was trying to do a coaching session with Desiree discussing her numbers and how her volume was so low compared to the rest of the store. Also that this was a 5 week month. She said it was probably because she had taken time off. I mentioned that it was only a few days that she had taken off, but she had called out quite a bit because of personal problems She also said that it was difficult to work in this environment having been sexually harassed. I mentioned to that I had changed the schedule to put her on my schedule the past couple of weeks and asked her if anything had happened in that time and she said no. I also asked her if there was anything I could do to help. She said it was hard to work in this atmosphere. When I asked her to write what she wanted in the RSA comments, she was reluctant as she said that it was due to sexual harassment by Leon. That since the time I first came here, when Leon was alone in the room with her giving her 2 Corrective Actions. I mentioned that I was in the room also, but had to get up to go and do and over ride but came back when he put the 2 sheets in front of her and told her what they were for (which was poor performance). She signed, Leon signed and I signed. She then went a little crazy and said that I was never in the room and how could I do this having 22 year old daughters myself? How would I like it if someone asked them for sexual favors and sexually harassed them? I told her that I remember that day. She then got really angry and turned a totally different person and said I can’t believe this! I can’t stay here. She left the room and I went to see where she went and she said that she was calling Gladys [Lopez]. She came back in a totally different person and came and asked me for an over ride like nothing had happened 5 minutes before. Gladys and I spoke after that. While I was typing this letter, Rod [Roddrick Chandler] came in to get me as he heard Desiree on her phone calling me some pretty nasty words to someone on her phone and talking about Leon and how she was going to make up stuff about us to get us fired. I called Gladys and handed Rod the phone to tell Gladys exactly what he heard in the breakroom…. Ms. Houser testified that on May 13, 2018, she witnessed an altercation at the customer service desk between Ms. Brown and RSA Courtney Gillard. Ms. Brown snatched some sales paperwork from Mr. Gillard’s hands and he yanked it back. Under Ashley Furniture’s sales floor protocol, RSAs who collaborate on a sale are expected to split the commission for the sale. If one RSA drops a customer, then another RSA can pick up that customer and keep all of the commission generated by any sales to that customer. The altercation on May 13 came about because Mr. Gillard incorrectly believed that Ms. Brown had dropped a customer. Ms. Brown snatched the paperwork in an effort to see whether Mr. Gillard had split the sale with her. Ms. Houser separated the two employees. She took Mr. Gillard aside to calm him down and make sure the sale was split. While this was occurring, Ms. Brown walked away with a customer. When she returned, she began yelling at Ms. Houser that Mr. Gillard had done the same thing the previous day. Ms. Brown refused to talk to Ms. Houser about the situation. Ms. Houser phoned Ms. Lopez for advice. Ms. Lopez told her to call Ms. O’Neill, the Office Manager, and have her come in and speak to Ms. Brown. Ms. Houser noted that this was Mother’s Day and Ms. O’Neill was not scheduled to work, but she called her in nonetheless. When Ms. O’Neill arrived, she and Ms. Houser first talked to Mr. Gillard. They told him they were sending him home for the rest of the day because of his behavior on the sales floor. Mr. Gillard apologized and left without further incident. Ms. O’Neill next approached Ms. Brown to give her the same reprimand and send her home. Ms. Brown refused to go home. Ms. Brown testified that an investigator with the City of Gainesville’s Office of Equal Opportunity9 had told her that her employer could not make her go home if she had done nothing wrong. She claimed the investigator told her that 9 Ms. Brown had filed a complaint with this office on April 3, 2018. sending her home would be an act of retaliation on the part of Ashley Furniture. Ms. Brown denied having snatched the papers from Mr. Gillard’s hands. She told Ms. O’Neill that RSAs Shawon Shorter and Aaron Ross were at the counter during her altercation with Mr. Gillard and could verify her version of events. Ms. Houser recollected that Ms. Shorter said she didn’t hear anything and that Mr. Ross saw the same thing that Ms. Houser did, i.e., a back-and- forth snatching of the paperwork. When he testified at the hearing, Mr. Ross could recall no details of the altercation between Ms. Brown and Mr. Gillard. Ms. Houser and Ms. O’Neill reconnoitered on the phone with Ms. Lopez. The decision was made to suspend Ms. Brown pending an investigation of the incident and have the police escort her from the store. On May 23, 2018, Mr. Gillard was issued a CAR for his unprofessional behavior on the sales floor on May 13, 2018. Ms. Brown never returned to work at Ashley Furniture after May 13, 2018. On May 18, 2018, she filed with the FCHR her Employment Complaint of Discrimination against Ashley Furniture. On May 25, 2018, Ms. O’Neill phoned Ms. Brown at the request of Ms. Houser and asked her to come in for a meeting with Mr. Leroux, the Regional Manager. Ms. Brown agreed to come in and exchanged a few pleasantries with Ms. O’Neill during their short conversation. Thirty minutes later, Ms. Brown called Ms. O’Neill back to inquire what the meeting was about. Ms. O’Neill responded that she was making the call at Ms. Houser’s request and did not know the nature of the meeting. She told Ms. Brown she would find out and call her back. Ms. O’Neill called Ms. Brown back and told her that the meeting was to discuss in-store issues, including her suspension. Ms. Brown stated that she was not coming in for such a meeting. She did not trust Mr. Leroux because, in her words, he and Mr. Hildreth were “besties.” Ms. Brown told Ms. O’Neill that she did not work for Ashley Furniture anymore. Ms. O’Neill asked what she meant by that. Ms. Brown stated that she quit. Ms. O’Neill asked her repeatedly if she meant what she was saying and would not be coming back to work. Ms. Brown confirmed that she would not be “lifting a finger” for Ashley Furniture and hung up on Ms. O’Neill. Ms. Brown did not allege that her separation from employment with Ashley Furniture was anything other than a voluntary resignation.10 The Petition does allege that Ms. Brown’s treatment in connection with the events of May 13, 2018, constituted retaliation by Ashley Furniture. To the extent that her testimony is credible, Ms. DeSue corroborated Ms. Brown’s testimony that Mr. Hildreth hugged her and gave her his debit card to buy lunch. Mr. Lamb corroborated that Mr. Hildreth was prone to hugging employees. However, the more lurid accusations against Mr. Hildreth are supported only by Ms. Brown’s testimony. Her testimony would be sufficient if she could be deemed a reliable witness, but there are at least two broad indications that Ms. Brown is not a credible witness. First, the timing of her accusations was suspect. Though the alleged statements regarding oral sex and the inappropriate touching had occurred between October and December 2017, Ms. Brown did not make her accusations against Mr. Hildreth until after the February 28, 2018, meeting at which she learned her job was in jeopardy for poor performance. With a felony charge pending against her, Ms. Brown stood a chance of going to jail if she lost her job. Ms. Brown claimed to have reported the incidents to Mr. Lamb during 2017. Mr. Lamb did not volunteer his recollection on that point and Ms. Brown’s attorneys did not ask him about it. Given the circumstances of 10 It is noted that in her testimony, Ms. Brown twice used the odd formulation, “I resigned because I was fired.” Ms. Brown did not elaborate and the undersigned declines to speculate as to what she had in mind. Mr. Lamb’s departure from Ashley Furniture, it seems unlikely that he would shade his testimony to protect the company. When she finally made her allegations to Ms. Houser on March 6, 2018, Ms. Brown stated that she had not come forward earlier because she was afraid. However, she also stated that she had come forward to Mr. Lamb in 2017. Both versions of this story cannot be true. Second, Ms. Brown repeatedly named “witnesses” who could not corroborate her stories. No employee other than Ms. DeSue reported first- hand knowledge of anything untoward. Two RSAs reported hearing from Ms. Brown only that she had declined a date with Mr. Hildreth. Ms. Brown interfered in the internal investigation of her allegations, attempting to promote false testimony and publicizing her witness statement to her co- workers. One employee even reported hearing Ms. Brown telling someone on the phone that her plan was to “frame” Mr. Hildreth and Ms. Houser to get them both fired. Even Ms. DeSue did not corroborate the most serious allegations against Mr. Hildreth. She stated that she heard the “chicken breast” comment but did not testify that it was directed at Ms. Brown. Neither her witness statements nor her testimony mentioned anything about oral sex. The undersigned would not expect Ms. DeSue to have witnessed Mr. Hildreth making such statements, but would expect that Ms. Brown would have told her about them. The evidence produced at hearing establishes that Ashley Furniture took Ms. Brown’s accusations seriously. As soon as she reported them to Ms. Houser, she was separated from Mr. Hildreth. Ashley Furniture’s HR Manager interviewed every employee who could possibly have any relevant information. Ms. Lopez ultimately concluded that she could not sustain the allegations due to a lack of corroborating evidence. Even after the company concluded that no adverse employment action should be taken against Mr. Hildreth, it continued to adjust Ms. Brown’s schedule so that she would never be alone under Mr. Hildreth’s supervision. The evidence convincingly established that Ms. Brown was not subjected to unlawful retaliation. She alleged that she was forced to work in a hostile atmosphere after she made her allegations against Mr. Hildreth, but she offered no specific instances of Ashley Furniture acting against her for reasons unrelated to her performance as an RSA. The chief allegation regarding retaliation is that the events of May 13, 2018, resulting in Ms. Brown’s suspension and police escort from the premises of the Gainesville store, were retaliatory. However, the evidence established that Mr. Gillard, the RSA with whom Ms. Brown had the altercation over splitting a commission, was also sent home, suspended for the remainder of his shift, and issued a CAR for unprofessional behavior. There is no reason to infer that Ms. Brown’s discipline would have been any different if she had not chosen to escalate the conflict by refusing to comply with her supervisor’s instruction to leave the store. Ms. Brown offered no evidence that she was treated differently than any other similarly situated employee. Ms. Brown offered no evidence that her separation from employment with Ashley Furniture was anything other than voluntary. In summary, Petitioner offered insufficient credible evidence that she was subjected to a sexually hostile work environment or sexual harassment. Petitioner also offered no credible evidence that she was subjected to unlawful retaliation. Petitioner offered no credible evidence disputing the legitimate, nondiscriminatory reason given by Ashley Furniture for sending her home and suspending her employment. Petitioner offered no credible evidence that Ashley Furniture’s stated reasons for sending Petitioner home and suspending her employment were a pretext for discrimination based upon Petitioner’s sex or a pretext for unlawful retaliation. Petitioner offered no credible evidence that she was constructively discharged from her employment or that Ashley Furniture involuntarily terminated her employment.
Recommendation Based upon 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 Ashley Furniture Homestore did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 9th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Sara G. Sanfilippo, Esquire William Edward Grob, Esquire Ogletree, Deakins, Nash, Smoak & Stewart, P.C. Suite 3600 100 North Tampa Street Tampa, Florida 33602 (eServed) Ralph Strzalkowski, Esquire Ralph Strzalkowski, Attorney at Law Apartment A17 320 Southeast 3rd Street Gainesville, Florida 32601 (eServed) Amber Robinson, Esquire Robinson Law Office PLLC Suite 264 695 Central Avenue St. Petersburg, Florida 33701 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed)
The Issue Did the Respondent, Paramount Hospitality Management (Paramount), discriminate against Petitioner, Nelson Ramos, Jr., on account of his race?
Findings Of Fact In 2010, Mr. Ramos applied for a job as a houseman with Paramount working at the Point Orlando in the housekeeping department. Mr. Ramos is an African-American male. Adriana Dos Santos, the head housekeeper interviewed him in person. During the interview, she saw Mr. Ramos in person and spoke to him. She also explained the position's duties. Ms. Dos Santos was impressed with Mr. Ramos. He had previous housekeeping experience and was polite and enthusiastic. She decided to hire him. Mr. Ramos maintains that Paramount hired him because Ms. Dos Santos did not know he was African-American and thought he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. Also during the interview, according to Mr. Ramos's testimony, he told Ms. Dos Santos that he could not speak Spanish. Paramount's Employee Handbook describes the company's 90-day "Get Acquainted Period," traditionally referred to as a probationary period. It also reminds employees that throughout their employment they may terminate their employment at any time with or without cause and that Paramount may terminate the employment at any time with or without cause. Paramount provided Mr. Ramos a copy of the handbook when it hired him. Paramount terminated Mr. Ramos during the first 90 days of his employment Mr. Ramos began work with Paramount at Point Orlando on July 15, 2010, as a houseman. Vladimir Suarez trained Mr. Ramos. Mr. Suarez speaks English and Spanish. Although Mr. Ramos claims that Mr. Suarez could not speak English at all, he never complained during training of Mr. Suarez not speaking English. In addition, during his first days of employment, Mr. Ramos performed his duties well. This is an indication that they were adequately explained. The houseman has a cart with supplies on it. A houseman's duties include keeping the carts of the housecleaners stocked with linens and supplies, collecting linens from the carts and sending it down the laundry chute, and collecting trash from the carts and sending it down the garbage chute. The duties also include providing assistance with whatever tasks need to be accomplished. Point Orlando is a two-tower hotel with 12 floors, six rooms to a floor. Each day the housecleaners move through the hotel cleaning the rooms, changing linens, and emptying garbage. The housekeeping supervisors communicate with the housemen and housekeepers by walkie-talkie. Consequently, any guests or visitors near the houseman or housekeeper involved can hear both sides of a walkie-talkie conversation. Because of this, Paramount's policy required the employees to keep the walkie-talkie communications brief and use walkie-talkies to transmit and acknowledge instructions and provide information. The policy specifically prohibited employees from disputing instructions or arguing on the walkie-talkies. Disputes were to be discussed in person not within the hearing of the public, as walkie-talkie communications necessarily were. Mr. Ramos resented this policy. He viewed it as a rule that he could not disagree with his supervisor. He felt that it was disrespectful to him. Consequently, Mr. Ramos frequently did not comply with the rule. During his first days of employment, Mr. Ramos worked diligently and performed his duties well. Within weeks, this stopped. His supervisor, Ms. Diaz, verbally counseled him. She testified at the hearing. She speaks and understands English. On September 6, 2010, Paramount issued Mr. Ramos his first Employee Counseling Report. This discipline was for not clocking in or out on August 30, 2010. Mr. Ramos knew that he was supposed to clock in. He did not clock in as required. On October 4, 2010, Paramount issued Mr. Ramos another Employee Counseling Report. This report counseled Ramos for the following deficiencies on September 26, 2010: lateness, disobedience, attitude, and defective work. On September 26, 2010, Mr. Ramos came to work 30 minutes late. During that morning, he only took trash from the housekeepers' carts. He did not take the dirty linens. Mr. Ramos also did not bring his linen cart when called to restock a housekeeper cart. He had been previously warned to always have his cart with him when going to assist the housekeepers. On September 26, 2010, at 2:00 p.m., Ms. Diaz instructed Mr. Ramos to strip linen and trash from 21 rooms. By 2:30 p.m., he had not started the task. When Ms. Diaz, called him to the office to counsel him, he was very disrespectful to her. She sent him home and suspended him until September 29, 2010. Ms. Dos Santos issued another counseling report to Mr. Ramos for his conduct on September 30, 2010. On that day, she asked him to wait to speak to her privately when he was clocking out at the end of his shift. He told her he could not wait because he had to go to the bank and to his second job. He waited a few minutes then told her again he had to go. She insisted that she had to talk to him. Mr. Ramos left. He was not on the clock and his shift had ended. On October 4, 2010, Paramount terminated Mr. Ramos. Mr. Ramos maintains that Hispanic employees committed the same offenses as he did and were not disciplined. There is no persuasive competent evidence to support his assertions. Paramount keeps personnel records and actions for employees confidential. Mr. Ramos' testimony could only be based upon hearsay. Mr. Ramos also maintains that Paramount hired him because Ms. Dos Santos did not know that he was African-American and thought that he was Hispanic because of his surname. The evidence does not support his theory. During the interview that resulted in Ms. Dos Santos hiring Mr. Ramos, she could determine that he was African-American. During that interview, Mr. Ramos told Ms. Dos Santos that he could not speak Spanish.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny Mr. Ramos's Petition for Relief. DONE AND ENTERED this 14th day of June, 2012, 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 14th day of June, 2012.
Findings Of Fact Introduction On March 12, 1987 respondent, Department of General Services (DGS), issued a thirty-page Invitation to Bid (ITB) inviting more than one hundred qualified arid interested vendors to submit proposals on Bid No. 339-360-240-F. According to the ITB, The purpose of this bid is to establish an annual contract for the purchase of carpet by all State of Florida agencies in the following counties: Franklin, Gadsden, Jefferson, Lafayette, Leon, Liberty, Madison, Taylor and Wakulla. It shall also be available to political subdivisions and State Universities in the aforementioned counties. It is anticipated that the contract will be effective July 1, 1987 through June 30, 1988. The job generally called for eight separate bids on eight different carpet products. Such bids were to be filed with DGS' Division of Purchasing no later than 2:00 p.m. on April 20, 1987. The ITB also noted that the bid tabulations would be posted on or about May 26, 1987. On April 14, 1987 DGS issued an Addendum to the ITB which changed the bid opening and posting dates to April 27 and June 8, 1987, respectively, and revised pages 4 and 27. The change on page 4 eliminated the requirement that a bidder certify his business had been in existence for at least two years and substituted in lieu thereof a requirement that the bidder certify he had at least two years experience in carpet installation. The change on page 27 modified the bidder certification form to conform with the change on page 4. In response to this offer, five vendors submitted timely bids. These included petitioner, Soly Interiors Division of Lyons Construction Company as agent for Wellco Carpet Corporation (Soly), The Carpet Shop, Inc. (The Carpet Shop), All Florida Contract Carpet (All Florida), Jones Floor Covering, Inc. and Gadsden Outlet. Soly submitted a composite bid containing a bid as to each of the eight products. On June 8, 1987 DGS posted its bid tabulations showing (a) the amounts of the bids of each of the five bidders on each product, (b) those bids that were rejected and the reasons for rejection, and (c) the lowest responsive bidder as to each product for which DGS intended to make an award. As to Soly, DGS concluded that, although Soly had submitted the lowest bid on products 2, 3, 7 and 8, it was disqualified because it "did not comply with special conditions, manufacturer's certification was not signed by manufacturer." Thereafter, petitioner timely filed a notice of protest challenging DGS' proposed agency action. The protest was in the form of a letter dated June 9, 1987 and stated that it was being filed pursuant to Subsection 120.53(5), Florida Statutes, and Rule 13A-1.006, Florida Administrative Code. As grounds for its protest, Soly asserted that it had substantially complied with all ITB requirements, that any irregularity was minor and could be waived, and that DGS erred by not using a "line item evaluation" in considering the various proposals. The filing of the protest prompted the instant proceeding. Soly later filed an amended petition on June 25, 1987 setting forth additional grounds, including assertions that DGS' reason for rejecting petitioner's bid was "pretextual," the specifications were "vague," "inappropriate notice" was provided, and it was in the "best interests" of the State to award the contract to Soly. The Bidder Soly is located at 2015 South Monroe Street, Tallahassee, Florida, and is a "division" (partner) of Lyons Construction Company. Soly has been in the retail carpet business in Tallahassee since 1983. However, its managing partner, William F. Sopher, has at least nine years experience in the carpet business. Soly has submitted bids on several state jobs during the past few years although none were successful. In each case, Soly's bid was rejected for valid reasons, including a failure to file an addendum and test samples with its bid proposals, and a failure to qualify as a minority business enterprise. Soly purchases its carpet from two sources: Cain & Bultman (C&B), which is the exclusive distributor of Wellco carpet in the State of Florida, and Wellco Carpet Corporation (Wellco), a carpet manufacturer in Calhoun, Georgia. Soly utilizes C&B whenever it needs guaranteed delivery within twenty- four hours. If time is not of the essence, Soly purchases the carpet directly from the manufacturer. Soly is not affiliated with Wellco except to the extent that it buys Wellco carpet for resale to its customers. Indeed, Wellco considers Soly to be a customer and not its agent. This was confirmed by a letter from Wellco's president to DGS and received in evidence as petitioner's exhibit 11. As a customer, Soly was not authorized to sign any documents on behalf of Wellco nor to submit a bid in Wellco's name. The Contract and what Had to be Supplied The ITB was a thirty-page document that, in addition to containing lengthy job specifications, included twenty-seven general conditions and nineteen special conditions. As is pertinent to this controversy, page 4 of the revised special conditions contained the following requirement: CREDITWORTHINESS Bidder shall be in financial position to accomplish the work specified. *The Carpet Manufacturer or Supplier shall certify on the attached sheet the bidder responding to this bid has an open account and has good credit standing.* (Emphasis added between *) To comply with this provision, a bidder was required to obtain the following certification from its carpet manufacturer or supplier: CARPET MANUFACTURER OR SUPPLIER CERTIFICATION I hereby certify that has a viable (Bidder Company Name) business, selling and installing carpet, has an open account and has good credit standing with our company. Supplier/Manufacturer Authorized Signature (Manual) Authorized Signature (Typed) Telephone: The certification could only be provided in the above form since general condition number 1 prohibited a vendor from satisfying the condition in any other manner, such as by an oral statement from a manufacturer's representative. Further, a bidder could not sign the statement on behalf of the manufacturer since it would be certifying its own credit standing with a third party. The creditworthiness of a bidder was important to DGS because, under the contract, large volumes of carpet (up to $450,000) would be purchased by state agencies, universities and other political subdivisions during the term of the contract. As a general rule, governmental entities do not pay vendors until up to thirty days after the product is installed or passes state inspection. At the same time, the successful bidder might have more than one job underway at the same time, or a second job before payment from the previous job was received. Because of this, a bidder would necessarily have to have a line of credit with the manufacturer or supplier in order to avoid cash flow problems or difficulty in obtaining the required product. Finally, if a bidder was allowed to procure a certification after the opening of the bids, the uncertified bidder could then use its low bid as an inducement to a manufacturer or supplier to establish a line of credit which it previously did not have. Paragraph 4.1 of the ITB's specifications contained the following relevant requirement: Bid Samples: All bidders shall deliver a minimum continuous piece of twelve (12) foot carpet width X 1-1/2 foot running length representative carpet sample for each commodity number (Ref. paragraph 1.2.1) of carpet being sold . . . *submitted bid samples which, when tested, fail to meet the specifications, shall be basis for rejection of the related bid.* * * * *Failure to deliver samples on or before the bid opening date will result in rejection of the bid.* (Emphasis added between *) This provision required a bidder to submit carpet samples for testing before the bids were opened. After, the successful bidder was selected, its samples were then sent to the Department of Agriculture and Consumer Services for testing to verify they met technical specifications. Finally, paragraph 9 of the ITB's general conditions authorized DGS "to reject any and all bids or waive any minor irregularity or technicality in bids received." In this regard, DGS does not consider the lack of a manufacturer or supplier certification to be a "minor irregularity" that can be waived. This is because of the importance the agency attaches to the certification. Pre-bid Conference A pre-bid conference was held on January 12, 1987 in Tallahassee, Florida. Notice of the conference was mailed to all vendors, including Soly, around December 17, 1986. Attached to the notice was a "specimen bid" which contained all specifications and conditions for the job. Vendors were invited to file with DGS by January 2, 1987 any questions concerning the specimen bid. In response to this offer, Soly hand delivered five written questions to the Division of Purchasing on December 30, 1986. None pertained to the manufacturer certification on page 4 of the ITB. Soly and several other vendors attended the pre- bid conference. In addition to answering all prefiled questions, DGS fielded other vendor questions, comments and suggestions. Several suggestions were eventually incorporated into the final ITB issued on March 12, 1987. Opening Day On April 27, 1987 DGS personnel opened the sealed bids. Victoria Chambers, a DGS purchasing specialist who had prepared the ITB special conditions, had the responsibility of initially reviewing the bids. She noted that petitioner's bid was submitted in the following name: "Soly Interiors Division of Lyons Construction Company as Agent for Wellco Carpet Corporation." She then noted that on page 27 of the package, Soly's partner, William F. Sopher, had signed the Bidder Certification attesting to his experience in installing carpet. On page 28, which is the Carpet Manufacturer or Supplier Certification, Sopher listed Wellco Carpet Corporation as the supplier/manufacturer and signed his name on the Authorized Signature line. Sopher had done so thinking that Soly was the supplier of the carpet. Although Chambers believed this certification was improper, she sought other advice before recommending that the bid be rejected. Soly's bid package was thereafter reviewed by two other DGS employees and DGS' legal counsel. All concluded that Soly should be disqualified since there was no valid manufacturer's certification. DGS then disqualified Soly on the following ground: Did not comply with Special Conditions - Manufacturer's Certification was not signed by manufacturer. No other bidder was disqualified for this reason. This information was placed on the Bid Tabulation posted by DGS on June 8, 1987. In disqualifying Soly, DGS acted in conformity with its practice of not accepting bids that did not comply with all general and special conditions. 2/ After the bids were opened, Sopher learned that his manufacturer's certification was not properly signed. Sopher then had the president of Wellco send a letter to DGS on May 5, 1987 advising that Soly Interiors was "a good customer of ours and purchase(s) carpet on an open line of credit, and at the present time are (sic) in good credit standing." However, this attempt to certify was too late and was not accepted by DGS. This was consistent with DGS' policy that no bid documents could be submitted after the opening of bids since to do so would prolong the bid process indefinitely, permit potential collusion among the bidders, and give an advantage to one bidder that the others did not enjoy. Alleged Improprieties At hearing, Sopher contended that the bid specifications on this and other carpet contracts had been drawn in favor of The Carpet, Shop. According to Sopher, prior specifications had called generally for Faculty II carpet, a type manufactured by Lee's, and distributed locally by The Carpet Shop. However, DGS structures its ITBs so that when it refers to a particular carpet grade, a vendor may supply an equivalent grade material and still meet specifications. There was no evidence that the specifications in this bid were drawn in favor of a particular vendor. Sopher contended that the manufacturer's certification was "vague" and was not discussed or clarified at the pre-bid conference. He also noted that the terms "manufacturer," "supplier" and "open account" were not defined in the specifications. However, Sopher acknowledged that, having been in the carpet business for nine years, he knew the difference between a supplier and a retailer and what the term "open account" meant in the business. Further, even though Sopher had the opportunity to seek clarification of these terms at the pre-bid conference, he elected not to do so. Sopher also contended that the certification itself was of no value since it had no impact on price and DGS did not require any other financial information from the bidder. However, the more persuasive evidence is that a properly executed certification is in the agency's best interests since it provided DGS with assurance that the vendor could supply the product. It was suggested by Sopher that the Addendum was issued solely at the request of All Florida in order for that vendor to qualify. The record reflects that a representative of All Florida contacted a DGS purchasing specialist concerning the change on page 4 of the ITB. However, at least two other vendors contacted DGS concerning the same matter. The Addendum was thereafter issued to require only that the bidder (but not his business entity) have at least two years experience in the carpet business. The purpose in the change was to eliminate a requirement that might disqualify an otherwise experienced individual who had a newly formed business. Contrary to petitioner's assertion, the change was not made to benefit only All Florida. Soly complained that it was not contacted about the defective certification when the bids were opened. However, DGS does not allow a bidder to correct a deficiency once the bidding process reaches this stage. Hence, there would have been no purpose in advising Soly that its bid was defective. Lastly, Soly contended that DGS personnel were biased against him in favor of another vendor, and that it was in the "best interests" of the State to award Soly the contract. Although it is true that Sopher contacted a number of DGS personnel prior to the submission of his bid, and had various meetings with DGS employees, there is no evidence that any of these contacts or meetings engendered animosity against Soly or resulted in discernible bias during the bidding process. Finally, the evidence reflects that it is not always in the best interests of the state to award a contract to the lowest bidder, particularly where an important condition has not been satisfied. Products 2, 3, 7 and 8 Soly submitted the lowest dollar bids on products 2, 3, 7 and 8. Except for a lack of certification, Soly would have received the contract on product 2. As to product 3, DGS rejected all bids. According to the bid tabulation, this action was taken since two vendors did not submit bids on the product, the samples of two others failed testing for total weight and Soly did not have a manufacturer's certification. As to products 7 and 8, Soly has conceded that its product did not meet specifications and that its bid was accordingly nonresponsive. Therefore, even if the certification requirement could be waived, Soly would not qualify for an award of the contract on these two products.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting the bid of petitioner as being nonresponsive. DONE AND ORDERED this 7th day of January, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 7th day of January, 1988.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent is guilty of discrimination against the Petitioner on account of his sex (male). Embodied within that general issue are questions concerning whether the termination of the Petitioner from his job with the Respondent is an example of disparate discipline versus that meted out to female employees similarly situated; whether he was replaced by a person outside his protected class; and whether the Respondent's reasons for the termination were a pretext for intentional discrimination.
Findings Of Fact The Petitioner, at times pertinent hereto, was a male employee of the Respondent and was a "lead line operator" on a plywood manufacturing production line at the Respondent's plywood mill located in Hinson, Florida. The Petitioner claimed that he was subjected to a discriminatory employment practice on account of his sex (male), by being terminated based upon an altercation he got into with a female employee, who was not disciplined. The Respondent is a forest-products company producing lumber and plywood at its mill in Hinson, Gadsden County, Florida. The Respondent is an employer, an envisioned by Section 760.10, Florida Statutes, and the Petitioner at times pertinent hereto was its employee. On November 16, 1993, the Petitioner engaged in an altercation with another employee, Angela Brown, a female, the ultimate result of which was that he was terminated by the Respondent for threatening another employee. The Respondent has a "zero tolerance policy" for instances where employees threaten other employees. Pursuant to its written employee disciplinary policy, it can, in its discretion, immediately terminate such an employee, rather than engage in its four-step, gradual disciplinary procedure. No management personnel with employment disciplinary authority of the Respondent company witnessed the incident. The management with such decision-making authority gained its knowledge of the incident and made its decision based upon the results of the company's investigation of the matter, including conducting interviews with, and taking statements from, witnesses to the incident. The incident occurred approximately 6:15 a.m. on the "graveyard shift", which ran from 11:00 p.m. at night to 7:00 a.m. in the morning. The incident occurred when the Petitioner observed that the production line had stopped, with the stoppage appearing to occur at or near Angela Brown's work station. The Petitioner went to her work station to see what the problem was, suspecting that she was "sleeping on the job". After straightening the veneer sheets lying on the production line conveyor, the Petitioner set the production line in motion, at which point he was standing behind Ms. Brown, out of her eyesight. While helping her straighten the veneer on the production line, he had been standing directly to her right. When he re-activated the line, he had gone back to the area of the control box and was standing behind her where she was unable to see him. He did not tell her that he had moved to the position to her right rear, after straightening the veneer. During questioning by his counsel, the Petitioner stated that he was standing back by the control box after he turned the production line back on and immediately before Ms. Brown hit him with a piece of veneer. Later in his testimony, the Petitioner claimed that he was standing beside her at the point when she discarded the veneer. The preponderant evidence establishes that the Petitioner was standing to the right rear of Ms. Brown at the time she discarded the veneer in question. She believed that he had left her area and did not know that he was still standing behind her because her back was to him. She did not have time to check behind her to see if anyone was there before discarding the piece of plywood veneer because the production line moves at a rapid rate. She therefore had to concentrate and watch the plywood as it came by, in order to timely remove defective pieces of veneer. It is common practice for employees or managers to notify an employee at a work station that they are behind them, so that the employee will know not to throw defective sheets of plywood off the production line, thus, potentially hitting someone standing behind them. The Petitioner did not notify Ms. Brown that he was still behind her, and she did not know that he was there, thinking he had left her area. After he re-started the conveyor, and Ms. Brown believed that he had left her area, another defective sheet of veneer came down the production line. The trailing edge of the veneer was defective. When a trailing edge of a piece of veneer is defective, it is common practice for an employee to discard it to his or her right rear and throw it off the production line. If the leading edge of the veneer had been defective, it would have been discarded to the left rear of the employee removing it from the production line. When the sheet of veneer came down from the "sheet drop", and Ms. Brown noticed the trailing edge as defective, she started removing the wood from the production line. She pulled the sheet off to the right in the normal procedure for this sort of defect. The Petitioner maintained that she threw the wood at him intentionally, as evidenced by his view that she was not throwing the wood off on the correct side. However, Ms. Brown, as corroborated by witnesses Strickland and Jenkins' testimony, stated that it is common practice for employees to pull veneer off to the right when it is defective on its trailing edge. There was only one piece of veneer to be discarded by Ms. Brown. She picked the veneer up and had to fold it in order to handle it and get it out of her way. She folded the veneer and threw it to her right rear, striking the Petitioner on or about the nose. After she discarded the piece of veneer and struck the Petitioner with it, he immediately pushed her with his hands and raised a fist up as if to strike her. In his testimony, he stated his position that Ms. Brown remained stationary at the point when she allegedly hit him with a second piece of veneer. He denied that she had taken steps backward from her position towards the production line and away from the Petitioner. He maintained, instead, that she had taken aggressive steps toward him. Witness Chadwick Jenkins, however, who was located three to ten feet away during the incident, saw Ms. Brown take two steps backward towards the production line, retreating from the Petitioner. This was consistent with Ms. Brown's testimony that the Petitioner had pushed her backwards. The Petitioner testified that Ms. Brown hit him with two pieces of wood veneer. His testimony indicates that he claims that she folded the piece of veneer and started to throw it or "yank it around", but that, in effect, it broke into two pieces, and he was hit with the top piece which she had in her hands, the bottom half having fallen on the floor. Then, according to the Petitioner, she reached down, picked that other piece up, threw it, and hit him with it. Ms. Brown denies his claim that he was hit with two pieces of veneer. On direct examination, she was emphatic in saying that she did not throw two pieces of veneer, that the sheet was too big and that she had to fold it to remove it from the production line, and that only one sheet was involved. She had to act quickly in throwing it off the production line to keep the line clear and moving. The sheet did not split in half. The Petitioner also testified that Ms. Brown looked him "dead in the eye" when she allegedly threw two sheets of veneer at him. Ms. Brown denies this, stating that she did know that the Petitioner was even behind her, because she was looking at the production line and that it was necessary to look at the line in order to see the defective sheet of veneer and to be able to reach down and discard it before the line moved past her position. This testimony is corroborated by that of Mike Strickland, the "lay-up line superintendent", who testified to the effect that, in order to discard wood from the production line, one has to be looking at the line and facing the line with one's body so that one's hands and eyes coordinate, in effect, to remove the sheet of veneer from the production line. When this is done, because of time constraints, one must simply pick up the sheet, pull it around and discard it behind you in one quick motion, keeping eyes and body facing the production line. This testimony corroborates that of Ms. Brown to the effect that she was looking at the production line and did not realize that the Petitioner was behind her or realize that she had hit him with the wood until he forcibly pushed her. Additionally, the testimony of Chadwick Jenkins and Donald Cooper corroborates Ms. Brown's version of events. Mr. Jenkins testified that Ms. Brown folded the sheet up and grabbed it by the end to remove it, and he knew that this was the only sheet removed because he only had to replace one sheet of veneer to the production line. Mr. Cooper saw only one piece of veneer thrown or discarded. He had an unobstructed view of those events, and the Petitioner himself corroborated the fact that the view was clear from where Mr. Cooper was located at the far end of the line to the place where the incident occurred. The Petitioner testified that one can see all the way down the line while walking up and down the line. Mr. Cooper was in a position to see the incident because he was on a raised platform. Thus, the totality of credible, preponderant evidence establishes that Ms. Brown hit the Petitioner with only one piece of veneer. The evidence also establishes that Ms. Brown's striking of the Petitioner with the single piece of veneer was not intentional. After the piece of veneer inadvertently struck the Petitioner, he immediately shoved Ms. Brown and raised his fist as if to hit her. He testified that he was merely acting in self defense because he "just wanted her to quit coming up on me". The Petitioner's version of the events is that Ms. Brown walked into his outstretched hand. In fact, witness Jenkins stated that he saw the Petitioner with his fist up in the air and his other arm out straight. Mr. Jenkins further testified that when the Petitioner raised his fist in anger, he appeared to be in control of himself and to be aware of exactly what he was doing. Mr. Jenkins' observation of those events led him to interpret the situation to the effect that "it looked like he was fixing to hit her". Mr. Cooper saw the Petitioner as "Howard pushed her and he took his hand back and drew back to punch her". Mr. Cooper testified that when the Petitioner drew back as if to punch Ms. Brown, she looked as if she was in shock. Mr. Cooper saw no indication that Ms. Brown had advanced on the Petitioner and walked into his outstretched arm. Ms. Brown testified in a similar manner stating that when she inadvertently hit the Petitioner with the sheet of veneer, "He pushed me hard like this (indicating) and he told me that he would knock my 'm-f' off, and I told him he was 'f'ing' crazy. . . . Q: OK. Did you feel threatened at that point? A: Of course. As big as he is. Of course, I felt threatened. I thought he was going to knock me out. Q: What was your natural response at that point? A: I told him he was crazy. I got away from him. " The Petitioner claimed for the first time, during his closing statement made at the unemployment appeals hearing, that he felt threatened about falling into the production line conveyor chain. The testimony of both Mr. Jenkins and Mr. Cooper, however, belies the Petitioner's position in this regard. They established that the Petitioner was not pushed toward the chain and that Ms. Brown did not move toward him in an aggressive manner or move toward him at all. The Petitioner remained stationary during the incident and was never in a position so that he could have been in danger of falling on the production line chain. The specific opening which the Petitioner claimed he could have fallen into was protected by guardrails, as shown by witness Jenkins. Ms. Brown told the Petitioner that she was going to tell Earl Lee, their supervisor, about the incident. She walked to the end of the production line looking for her supervisor and saw Mr. Cooper, who directed her to Mr. Lee's location. Ms. Brown then went upstairs and found Mr. Strickland, the lay- up line supervisor, and Earl Lee to tell them about the incident. Although the Petitioner maintains that Ms. Brown was the aggressor in the incident and that he was only defending himself, the Petitioner never made an effort to notify anyone of the incident. Upon Ms. Brown's report of the incident, an investigation was commenced by the company to determine what had happened and who was at fault. The investigation began with Mr. Lee questioning Ms. Brown and the Petitioner about the incident. During the questioning, the Petitioner told Mr. Lee, Jim Stelbasky, and Mike Strickland, all supervisory personnel, that he would have hit Ms. Brown if she had been a male. Ms. Brown gave details of the incident to Mr. Lee, as well. She told Mr. Lee that she hit the Petitioner with some veneer but that it was accidental. Witnesses Jenkins and Cooper gave statements to Mr. Lee about the incident. Each claimed that they were witnesses to the incident in whole or in part. They gave statements concerning their observations regarding the incident to Mr. Lee, which are contained in Respondent's Exhibits 11 and 12, in evidence. Mr. Lee and other management personnel with decision-making authority in employment discipline matters did not observe the incident. Therefore, Mr. Lee, in making his investigation, relied upon the statements of Mr. Jenkins, Mr. Cooper, the Petitioner, and Ms. Brown and considered all of them in making a decision. The statements of Mr. Jenkins, Mr. Cooper, and Ms. Brown, along with Mr. Lee's belief that in this circumstance, the victim, not the aggressor, would be the one likely to report such an incident, were consistent and persuasive to the effect that the Petitioner was the instigator or aggressor in the incident. Therefore, in accordance with the results of Mr. Lee's investigation and pursuant to consistent company policy of terminating employees for threatening other employees, even for the first offense, the Respondent elected to terminate the Petitioner from employment. Mr. Lee, the decision-maker herein, believed Ms. Brown and the witnesses who corroborated her version of events. He determined that, in his mind, they were telling the truth. Mr. Lee thus believed that the Petitioner was threatening another employee and under the company policy, that was cause for termination. Consequently, he did so, although he testified that he did not terminate the Petitioner because he was a male and that his sex had nothing to do with his decision. It also had nothing to do with the decision that Ms. Brown should not be reprimanded. He did not reprimand Ms. Brown because he did not feel that she was at fault in the incident. He felt that the Petitioner was the aggressor, which is why the Petitioner was disciplined and Ms. Brown was not. The Respondent has a policy providing that when any employee makes any type of threat against another employee, the graduated disciplinary procedures are not applicable, rather, termination can be immediately meted out. It is noteworthy, in terms of establishing that this is a regularly-followed practice, and in refuting the Petitioner's claim that he was discriminated against because he is a male, that approximately two weeks prior to the Petitioner's termination, the Respondent terminated a female employee for fighting on the job. This substantiates that the Respondent has a consistent policy of not tolerating threats made against any other employees by an employee, regardless of that employee's gender. The testimony of Steve Hoffman, the Respondent's Human Resources Officer, shows that in his two and one-half years in that capacity or a related capacity with the company, in any case where an employee has been determined to have made threats against another employee, the company consistently terminates such an employee. The Petitioner has simply not established that he has been the victim of disparate treatment because he is a male. It was not demonstrated that upon his termination, the Petitioner was replaced by an employee of another class, i.e., a female, nor did the Petitioner demonstrate that the Respondent has meted out less severe discipline to such offending employees who are non-male. In fact, the Petitioner himself was replaced with a male employee. There has simply been no proof to establish that the employment decision herein, however harsh it may seem, was motivated by discriminatory intent to single out the Petitioner for disparate treatment because he is a male.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Commission on Human Relations which dismisses the Petition in its entirety. DONE AND ENTERED this 24th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-4718 Petitioner's Proposed Findings of Fact 1-5. Accepted. 6-18. Rejected, as not entirely in accord with the preponderant weight of the credible evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. 19-21. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as irrelevant and immaterial. Rejected, as contrary to the preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter based thereon. 24-25. Accepted, but not dispositive of the material issues presented. Accepted, only in the sense that there is not a written formal reprimand in the Petitioner's personnel file. The evidence reflects that he had been informally admonished or disciplined concerning acts related to his temper. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and for the reason that it was not necessarily a first offense since the Petitioner had been informally disciplined concerning his past inability to control his temper at times. Respondent's Proposed Findings of Fact The Respondent's proposed findings of fact, to the extent they are not inconsistent with the Hearing Officer's findings of fact, are accepted. To the extent that they are so inconsistent, they are rejected as not being supported by preponderant, credible evidence of record, as being immaterial, irrelevant, or unnecessary. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 Ms. Marilyn Strange Coastal Lumber Company Post Office Box 1128 Havana, Florida 32333 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
