Findings Of Fact Gerald M. Swindle was employed by the SFWMD on May 15, 1974 as a Water Resource Technician, and remained employed by SFWMD until he was terminated July 25, 1990. In 1977, Petitioner was counseled regarding his performance of duty needing improvement (Exhibit 11). In 1978, Petitioner violated a verbal order not to become involved in enforcement matters with E. N. Willis. This order was reiterated in Exhibit 13 dated October 24, 1978. In 1981, Petitioner was placed on probation which ended November 15, 1981 (Exhibit 15). During this probationary period, SFWMD continued to receive complaints regarding personal use of the district vehicle assigned to Petitioner (Exhibit 15). In his evaluation report dated 11/23/81, Petitioner was given an overall grade of satisfactory, although he was marked slightly below average on 6 of the 11 items on which rated. In 1988, a reorganization changed the job description of Water Resource Technician to Field Service Technician with a higher pay grade. Petitioner was not reclassified into this position when the other Water Resource Technicians were reclassified because his superiors felt he was deficient in some of the skills required of a Field Service Technician (Exhibit 19). By letter dated November 4, 1988 (Exhibit 17), Petitioner was advised of the need to make improvements in reading and interpreting blueprints, site plans and as-builts; in the production of accurate and timely reports; in basic knowledge of district rules; and in effective communication. By memorandum dated March 15, 1989, William Hartman, Petitioner's supervisor, submitted a memorandum to the Director, Bartow Permitting Department, advising that he, and others, had spent time with Petitioner reviewing and interpreting blueprints, as-builts, aerial maps, etc., that Petitioner had attended workshops, and that some improvement was noted. By memorandum dated April 10, 1989 (Exhibit 19), the Director, Bartow Permitting Department, recommended Swindle not be promoted to Field Services Technician II. In 1989, Petitioner was suspended from duty without pay for two weeks (80 hours) for an incident involving playing cards at a public park for some two hours during working hours and falsifying a log entry to conceal the time so spent (Exhibit 22). In Swindle's evaluation for the first quarter of 1989, his supervisor, William Hartman, gave him an overall evaluation of Effective, although in the narrative he noted that what he observed most about Petitioner is his apparent paranoia over "someone out to get him." The narrative also referred to his weak areas of preparing investigative reports and surveying. In his comments to this report, Petitioner generally denied all of the adverse comments and contended that, if given the proper training, he could do the job in a wholly satisfactory manner. About this time, Petitioner was getting the impression that his present supervisors were looking for grounds to dismiss him. In the April 1990 evaluation of Petitioner (Exhibit 3), he was given an overall evaluation of "Acceptable," but he was marked in the lowest category for meeting minimum requirements in quantity of work, stability, and requiring more than average instructions. Most of the other categories were marked below average. A nominal supervisor at this time, Jim Calandra, was a contributor to the April 1990 evaluation, and in his comments pointed out that considering his time with the Department, the training received, and comments from his superiors over the years, Petitioner should possess "better and more varied technical skills needed for his FST II position." Calandra further concluded that "Gerry will inevitably blame any of his technical deficiencies on lack of training provided by the District or the absence of cooperation from others." The comments of Petitioner's immediate supervisor, Steve Stokes, further noted Petitioner's deficiencies in preparing field investigation reports and in his log keeping. Also the comments of Robert Viertel, Director, Permitting Department, attached to this evaluation, expressed his concern about the lack of initiative, dependability, stability and alertness reflected in the evaluation. To more rapidly gauge the adequacy of Swindle's efforts to improve, Viertel recommended by-monthly evaluations of Petitioner. In his comments to this evaluation (Exhibit 4), Petitioner essentially denied all of the adverse comments made on this evaluation, and blamed the poor evaluation on an "intent ... to upset me, break down my morale and cause me to loose [sic] faith in my ability." In commenting on those factors reflecting poor utilization of his time, Petitioner contended he uses his time better than some others in the Bartow office and specifically alleged that Calandra conducted much personal business on District time, used Department vehicles for personal business and used Petitioner to pick up personal items for Calandra during regular business hours. These comments regarding Calandra led to the memorandum dated 5/15/90 from Stokes to Swindle (Exhibit 8) in which Swindle was directed to be specific as to times and places regarding the allegations. Petitioner's response is a part of Exhibit 8. The charges made by Petitioner against Calandra were investigated, and some of these charges were confirmed in the investigation. Calandra was given an oral reprimand for conducting personal business during District working time and for using District vehicles on personal business. Petitioner apparently contends that his actions in June 1990 in stopping the dredging in a canal in Peace Creek because no permit was issued also affected his dismissal as this constituted "whistle blowing" by him. It was determined by Petitioner's supervisor that no permit was required for this dredging, and no further record or notation of this incident was presented which, in any wise, was shown to be a factor in his dismissal. On the special evaluation of Swindle dated July 20, 1990, Petitioner was marked unsatisfactory in 7 of the 16 categories on which he was rated, and the overall evaluation was "unacceptable." In his comments, Stokes noted that the April evaluation of "acceptable" was based partly on the fact that "Stokes and Viertel had been Swindle's supervisors for only three months, and since Swindle was a longtime employee of the District they decided to rate him marginally satisfactory." Stokes noted no improvement in Swindle's performance during the period between April and July, and cited specific incidents of unsatisfactory performance. In Viertel's comments on this evaluation, he concurred in the evaluation and recommended biweekly evaluations following which, if Petitioner's performance remained unacceptable, that he be terminated. Facing the likelihood of dismissal, Petitioner went on sick leave during July 1990 contending he was under stress. He submitted a letter from Dr. Jones at the Peace River Crisis Center confirming Swindle had been seen for stress-related adjustment (Exhibit 7). During this time, Petitioner, when contacted by District personnel regarding his absence from work, referred to the Jacksonville, Florida, incident in which a disgruntled (and mentally disturbed) employee had entered the workplace with an AK-47 and killed several people. This led the person to whom Petitioner relayed this message to think Petitioner may be contemplating similar action. Petitioner's last day at work was July 25, 1990, after which he took leave. He was dismissed sometime after July 25, 1990. The allegations Petitioner made against Calandra were not a factor in a decision of SWFMD to dismiss Petitioner.
Recommendation It is recommended that a Final Order be entered finding Gerald M. Swindle was dismissed as a Field Services Technician II by SFWMD because of poor performance, and Swindle's allegations made against a fellow employee was not a proximate cause of his dismissal. ENTERED this 28th day of February, 1991, in Tallahassee, Florida. K. N. AYERS 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 28th day of February, 1991. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact are accepted, except: Rejected. The Peace Creek incident occurred in June 1990, and Petitioner's allegations against a fellow employee (Calandra) were made April 30, 1990. Second sentence rejected. Rejected. Rejected that Swindle lost knowledge of his job responsibilities. 13. Rejected as irrelevant. Proposed findings submitted by Respondent are generally accepted. Those not included herein were deemed unnecessary to he results reached. COPIES FURNISHED: Richard D. Mars, Esquire Post Office Box 1276 Bartow, FL 33830 Joseph W. Carvin, Esquire Post Office Box 1427 Tampa, FL 33601 Catherine D'Andrea, Esquire 2379 Broad Street Brooksville, FL 33609-6899 Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue Whether Petitioner was discriminated against by being given poor evaluations, receiving disciplinary action as the result of grievances, and being passed over for a promotion because of his race.
Findings Of Fact Petitioner was an employee of Respondent, Sunrise Community, Inc. He was employed by Respondent for eleven years. He worked as a caregiver in a facility for persons requiring intermediate care or therapy. He was a home manager supervising several co-workers in caring for and training mentally handicapped residents. Approximately one year prior to filing his complaint in 1996, Petitioner was counseled for improperly touching a female employee with whom he worked. He did not perform certain activities associated with his job. Because of his conduct and work deficiencies, Petitioner was given a poor performance evaluation. Subsequently, a promotional position became open. Petitioner applied for the opening. He was qualified for the position. He was not promoted. Petitioner is a black male. Petitioner asserts that he was not promoted because he is a black male. The evidence shows that Petitioner did touch a female co-worker inappropriately, and that Respondent gave him a reprimand for this conduct. He received a poor performance evaluation. Such evaluations are by their nature subjective; however, the reprimand and his poor job performance were sufficient cause to reduce his evaluation. The promotional position was filled by a black female employee of the company who had more experience than Petitioner, and who had previously performed similar duties. There was no showing that the grievances, evaluations, or failure to promote were racially motivated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing Petitioner's Petition. DONE AND ENTERED this 21st day of August, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 2000. COPIES FURNISHED: Wilford Evans 925 Cochran Street Tallahassee, Florida 32301 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, Respondent was a certified residential contractor having been issued license number CR C018874 since 1981. Respondent, during late 1986, was approached by a Mr. Marlar, owner of Pinellas Builders, who requested that Respondent affiliate with Pinellas Builders using his licensure to qualify Pinellas. Respondent tentatively agreed to a business arrangement with Marlar, however, prior to the time that Respondent formally qualified Pinellas, the negotiations broke down and Respondent never formally qualified Pinellas. During January, 1987, Pinellas entered into a contract with a customer, John Kane of Clearwater, Florida, to build an addition to Mr. Kane's residence for a sum of $33,000. (Petitioner's Exhibit 1.) Pinellas was required to obtain a permit to construct the addition to Kane's residence. Pinellas obtained the permit and utilized Respondent's license to do so. Kane encountered difficulty with Pinellas as the subcontractors were not paid and liens and/or notices of intent to file liens were placed on his home. Mr. Kane ultimately had to rehire the subcontractors and pay them directly resulting in an additional expenditure by Kane of approximately $10,000 over and above the amount that Pinellas agreed to complete the addition to his home. During June of 1987, Kane filed a complaint with Petitioner and in connection therewith, Petitioner's investigator, H. Dennis Force, spoke to Respondent via telephone respecting the fact that permits were being pulled under his name. Respondent was unaware that Pinellas was utilizing his name as a qualifier to obtain permits nor was Respondent aware that Pinellas had obtained contracts to perform work utilizing his name as the licensing authority. As a result of Investigator Force's conversations with Respondent, Respondent revoked the letter of authorization given to Marlar during April, 1987. Respondent distributed copies of the revocation of authorization given to Marlar to the various local cities in the surrounding area. Respondent acknowledges his liability as a qualifier and accepts that responsibility. Respondent is not presently affiliated with any corporate entity in that he prefers to work as an individual such that he can insure the quality which he strives for comes to reality. Mr. Kane acknowledges that he never saw Respondent on the jobsite and had never met him during any of the negotiations with Marlar (Pinellas). Respondent received no monies from Kane or any other persons who had entered dealings with Pinellas.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a civil penalty of $500 payable to Petitioner within thirty (30) days and issuing a written letter of reprimand to Respondent based on his authorization of an unlicensed person to use his name to obtain permits. 1/ DONE and ENTERED this 7th day of April, 1989, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 1989.
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
The Issue Whether the Respondent should be terminated from her employment with the Dade County School District.
Findings Of Fact At all times material to the allegations in this case, Petitioner was authorized by Florida law to operate the public schools within Dade County, Florida. Such authorization includes, but is not limited to, the employment, control, and supervision of non-instructional employees of the school district. At all times material to the allegations of this case, Respondent was employed as a non-instructional employee of the school district. She was classified as a specialist II and, as such, was governed by the labor contract between the Miami-Dade County Public Schools and the United Teachers of Dade (UTD). Petitioner first employed Respondent in 1992. At that time, as a part-time clerk in the Office of Grants Administration at the Satellite Parent Education Resource Center in Region III, Respondent exhibited unacceptable work performance. Respondent’s interim and overall annual evaluations for her work as a clerk at the satellite center were unsatisfactory. Throughout the 1992/1993 school year Respondent was counseled as to her deficient performance areas. Additionally, she was offered assistance and strategies for improvement, yet failed to improve her work performance. As a result of this initial employment experience, Respondent was fully apprised of the evaluation and remediation process utilized by Petitioner. When Respondent did not improve during the 1992/1993 school year she could not be recommended for full-time employment. Her last day of work for that year was April 23, 1993. Over a year later, Petitioner employed Respondent as a data-input specialist at the Coral Gables AEC. On her May 30, 1995, evaluation, Respondent was advised of several areas of work performance that needed improvement. Among the areas needing improvement were attitudes toward other staff and the public as well as the quality of her work product. The next year, school year 1995/1996, Respondent’s work performance was no better. On May 23, 1996, a conference-for- the record (CFR) was held to review the problems with Respondent’s work performance. At the May 23, 1996, CFR, in addition to reviewing the unacceptable work performance issues, Respondent was given a referral to Petitioner’s Employee Assistance Program (EAP) due to her unacceptable behavior, her mood changes, and conflicts with staff and the public. When Respondent failed to attend two conferences with the EAP, her referral was closed. Respondent requested and was granted a one-year personal leave of absence for the 1996/1997 school year. On or about May 28, 1997, Respondent returned to Coral Gables AEC and was supervised by Alonzo Kilpatrick. On October 30, 1997, Respondent received a directive to adhere to her work schedule. This directive resulted from Respondent’s record of poor attendance or punctuality. On December 12, 1997, Respondent’s mid-year evaluation rated her work performance as unsatisfactory. The areas of work performance inadequacy were fully outlined and explained. Basic areas of performance such as attendance and punctuality were deficient. Additionally, the quality of Respondent’s work was inadequate. As a result of the unsatisfactory performance, Respondent was placed on prescriptive status and issued activities to improve her work performance. This prescription outlined deadlines and specific assignments to be completed by Respondent. On January 12, 1998 a CFR was conducted to address Respondent’s interim unsatisfactory evaluation. Respondent was advised that she had failed to comply with the prescription activities. This CFR ended when Respondent became agitated and refused to participate calmly. On January 23, 1998, Respondent was notified that she had failed to complete her prescription and was directed to attend a CFR for that day to discuss the matter. When she failed to attend, Respondent was notified that failure to attend conferences would be considered insubordination. On February 20, 1998, Respondent failed to attend a conference scheduled for that date to review her prescription activities. On March 6, 1998, Respondent was given notice of a CFR that was to take place on March 12, 1998. The agenda for this CFR was to cover Respondent’s failure to complete her prescription and to attend previously scheduled CFRs. Respondent did not attend the March 12, 1998, meeting. Based upon the failure to attend, on March 24, 1998, the Respondent was given a written reprimand and notice that advised her that continuing failures to complete the prescription, failure to attend meetings, and failure to comply with administrative directives would result in disciplinary action, including dismissal. Another CFR was scheduled for April 15, 1998. Respondent was given advance, written notice of the meeting, yet failed to attend. Consequently, Respondent received a written reprimand. Such reprimand cited Respondent for gross insubordination. Further, Respondent was again directed to comply with the administrative directives given to her to attend conferences and to complete the prescription for work improvement. Respondent was given written prior notice to attend a conference scheduled for May 8, 1998. This conference was scheduled to address her continuing failure to attend conferences as well as her prescription requirements and to review Respondent’s deficient work performance. She did not attend. Respondent’s failure to attend the May 8, 1998, CFR marked the third time Respondent failed to comply with the directive to attend. Moreover, she failed to complete her prescription and failed to offer any credible excuse for having not complied with the directives of the administrator. As a result of the foregoing, Respondent was given another written reprimand outlining the failures. On May 15, 1998, Respondent received an annual evaluation that noted her work performance was unsatisfactory. She was also advised she had failed to complete her prescription for improvement and had failed to offer an explanation for why the prescription activities could not be completed. On May 28, 1998, a district level (as opposed to school level- all previous CFRs had been at the school level) CFR was held with Respondent at the School Board’s Office of Professional Standards. At that time Respondent was advised that the school administration would recommend disciplinary action against Respondent. Respondent had still not completed the prescription activities assigned to encourage remediation of work deficiencies. On June 3, 1998, Dr. Pullum, the principal at Respondent’s work site, recommended that Respondent’s employment be terminated due to her failures to follow directives, to attend CFRs, to complete prescription activities, and to improve work performance. On August 26, 1998, the School Board of Miami-Dade County, Florida, took action to suspend Respondent and to initiate dismissal proceedings for just cause, including incompetency, gross insubordination, and willful neglect of duty.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order sustaining the suspension of Respondent and dismissing her from employment with the school district. DONE AND ENTERED this 9th day of November, 1999, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1999. COPIES FURNISHED: Luis M. Garcia, Esquire Miami-Dade County Schools 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132-1308 Theslie Sessions 1348 Northwest 95th Street, No. 301 Miami, Florida 33147 Tom Gallagher, Commissioner of Education Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 Roger Cuevas, Superintendent Miami-Dade County Schools 1450 Northeast 2nd Avenue, No. 403 Miami, Florida 33132-1308
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been subjected to discrimination within the meaning of the relevant provisions of Chapter 760, Florida Statutes, based upon alleged sexual harassment in the course of her employment and retaliation for her complaints concerning the alleged sexual harassment.
Findings Of Fact The Petitioner was an employee of the Respondent at times pertinent hereto. It is undisputed that that Respondent is an employer within the meaning of Chapter 760, Florida Statutes, and that timeliness and jurisdictional requirements have been met. The Respondent obtained a contract with the United States Navy for a project to be performed at the Naval Air Station in Pensacola, Florida. It became the contractor for the project in approximately December of 1991. The contract, in pertinent part, provided that the Respondent would provide local cartage trucking services for the Navy on and in the environs of the Pensacola Naval Air Station. The project involved loading and transportation of aircraft parts and related supplies and equipment. The Petitioner was hired as a truck driver, delivering aircraft parts for the naval aviation depot (NADEP). During the course of that employment, there came a time when the Petitioner contended that she had been discriminated against because of her gender. The Petitioner contends that in a meeting in December of 1991, she was told by Terry Meyers, an employee of the Respondent and the Petitioner's supervisor, that she "didn't look like a truck driver" and that she had three weeks to look for another job. The meeting in which the statements were allegedly made was a meeting called by the Petitioner's supervisor and the project manager, Mr. Danny Francis, to address certain deficiencies in the Petitioner's performance. Another employee, Mr. Braughton, was also counseled at the meeting concerning his performance as a truck driver. His was the same type of employment position as that occupied by the Petitioner. Mr. Braughton is a white male. The Petitioner maintains that she informed a white male employee, Mike Morris, of the statements allegedly made at the meeting and that he immediately made a telephone call to Mr. Frank Moody, the president of the corporation, to put the president and the corporation on notice of sexual discrimination against the Petitioner. The Petitioner, however, was not present when Mr. Morris made that telephone call to Mr. Moody. Even had he made reference to alleged sexual discrimination in his telephone call to Mr. Moody, Mr. Morris only learned of the purported sexually-discriminatory statements from the Petitioner. The Petitioner maintained that Mr. Morris informed her that he had heard the statements made while standing at the door of the room in which the meeting occurred and that Mr. Morris initiated the telephone call on his own volition to Mr. Moody, based upon hearing those statements. Mr. Morris, however, testified to the contrary, stating that the Petitioner approached him and claimed that she was on probation and was fearful of being laid off from employment and that the Petitioner told him of the alleged sexually-discriminatory statements and that he did not hear them himself. He further testified that the Petitioner instructed him to contact Mr. Moody concerning her fears about her job and the alleged discriminatory statements or she would contact "HRO and EEO and have the contract shut down". Mr. Morris, indeed, called Mr. Moody but never mentioned the statements alleged by the Petitioner to have been made to her by Mr. Meyers during the performance evaluation meeting. In fact, it has been demonstrated by Mr. Morris' testimony, which the Hearing Officer accepts as more credible, that the Petitioner never complained to Mr. Morris about a sexually-discriminatory statement or purported sexual discrimination. Mr. Morris, instead, spoke to Mr. Moody about problems he saw occurring in the operation in Pensacola which he attributed to the project manager, Mr. Danny Francis. He told Mr. Moody that Mr. Francis was allowing employees to leave work early without Mr.. Moody's knowledge and still crediting them with working a full day on such occasions which, in effect, cost the corporation additional salary monies which were unearned. The meeting in which the Petitioner was allegedly confronted with the statement that she did not look like a truck driver and had three weeks to look for another job was called and conducted by Mr. Francis and Mr. Meyers was present. It is undisputed that Mr. Moody terminated Mr. Francis shortly after the telephone conversation with Mr. Morris. He replaced Mr. Francis with the current project manager, John Jacobs. Mr. Moody testified that in a telephone conversation with the Petitioner that she never mentioned to him the alleged sexually-discriminatory statements referenced above. Instead, he was told by both Mr. Morris and the Petitioner that she was concerned that she might lose her job because of the results of the meeting with Mr. Francis, in which he told her that she needed to improve her job performance. In fact, the management of the Respondent perceived a genuine job performance problem involving the Petitioner's conduct of her job duties. This was disclosed in the testimony of both Mr. Jacobs and Mr. Morris, where it was revealed that the Petitioner had had a continuing problem performing her job correctly and that Mr. Morris and the management personnel had worked with her constantly during the course of her employment term with the Respondent, taking more time and personal attention with her than with other employees. This was done in order to repetitively explain her job duties and give her additional chances to improve her work performance, in comparison to the lesser degree of attention and remedial help that they accorded other employees. Prior to February 3, 1993, the Petitioner had been employed with the Respondent for over a year. The testimony of Mr. Jacobs established, however, that even though her probationary period had long since elapsed, he still considered the Petitioner to be, in effect, an employee in training because she was deficient in correctly accomplishing all of the duties of her job. She was slow in performing her job duties, including preventive maintenance inspections of her vehicle and in making the "pickups and deliveries" of freight she was required to transport on her truck in the performance of her duties. The counseling session concerning her work performance occurring in December of 1991, referenced above, was during her probationary period. The white male employee, Mr. Rick Braughton, who was also counseled about deficient work performance on that occasion, was informed that he might not remain employed past his probationary period unless his performance improved. The Respondent had a regular practice and procedure, as part of its truck safety and preventive maintenance program, that employees, who were drivers, were required to give a preventive maintenance and safety inspection of their vehicles each day prior to leaving the company facility or terminal to transport aviation parts or other freight. This was regarded as crucial to proper job performance by the employer because of the concern about safety of the drivers and avoidance of damage, and liability for damage, to the expensive equipment and parts which the Respondent was required by its contract to transport, such as expensive military aircraft parts and related equipment. Among these preventive maintenance inspection duties that driver/employees, such as the Petitioner, were required to perform daily was the requirement to check the air in the truck tires and "top off" the tires with the required air pressure, if necessary. 10 Mr. Jacobs established that there came a time when the Petitioner was noted to have failed on multiple occasions, in the same week, to check and air her tires. Finally, upon this deficiency coming to his attention again on February 3, 1993, Mr. Jacobs suspended the Petitioner for a day without pay, for failing to check and air her tires. The Petitioner claims that she was the only employee singled out for this treatment concerning failure to inspect and air her tires. The testimony of Mr. Jacobs is deemed more credible, having observed the candor and demeanor of all of the witnesses, and it is determined that the employer had a good-faith belief that the Petitioner was deficient in this regard and that the reprimand, consisting of the one-day suspension, was justified. It was not demonstrated that, even if the Petitioner's version of events is true and that other driver/employees were not disciplined for failure to air their tires, that such a circumstance occurred as a result of the employer's knowledge of other driver/employees failing to air their tires and arbitrarily choosing not to discipline them. In fact, it was not demonstrated by preponderant, non-self-serving evidence that other employees had not been disciplined for failure to air their tires. In fact, it was not shown, other than by the self-serving testimony of the Petitioner, that other employees had failed to air their tires when required. The other drivers are mostly male, but one is a female. There was no showing that she was treated any differently than the male drivers. In summary, it has been established that the employer accorded the reprimand to the Petitioner because of a good-faith belief that her performance had been deficient, on repeated occasions, in this respect. It is undisputed that prior to the date the Petitioner received the reprimand, consisting of one-day suspension without pay, that the Petitioner had a generally good attitude about her job insofar as management was able to observe. Even though management had had some concerns about her performance and the slow manner in which she was learning certain aspects of her job, with resulting deficient effects upon her performance, management forbore from using these concerns to reduce her performance rating. She received good evaluations of her performance, insofar as her personnel record is concerned, prior to the time she was suspended for one day on February 3, 1993. After the Petitioner received the suspension she developed a "bad attitude" insofar as her perception of management was concerned. She began to complain frequently about vehicle safety or purported concerns she had about the condition of her vehicle related to safety, particularly the truck brakes. Prior to her suspension, she had never complained in this regard. Management also perceived that she appeared to show down her work performance and management came to believe that it was an intentional delay of her work performance on an ongoing basis. Prior to receiving the reprimand, she was never known to complain to management concerning discrimination on account of her gender. She had never informed the project manager or any other supervisory personnel concerning her purported belief that employee Meyers was "following her". Only after she received the reprimand on February 3, 1993 did she elect to file a sexual discrimination charge with the Commission. Mr. Meyers had some supervisory authority over the Petitioner. His job duties also required that he drive his truck around the Naval Air Station and the immediate vicinity in the normal performance of his duties. This circumstance resulted in his being in close proximity to the Petitioner during the course of their respective work days. He contends that he was not purposely following her for the purpose of harassing her. The overall evidence of record reveals, however, that he, indeed, did follow or stop in her vicinity on a number of occasions to observe her work performance. This was not shown to be out of the ordinary scope of his supervisory duties, especially because of management's concern that the Petitioner was not progressing in the learning and performance of her job duties as well as other employees, including the other female driver. The project manager, Mr. Jacobs, felt that the Petitioner's attitude continued to decline after the February 3, 1993 reprimand. He felt that her attitude and performance reached its lowest level on the date she was observed to be loading "unauthorized equipment" (apparently a portion of a helicopter assembly weighing approximately 4,000 pounds) on the flatbed trailer of her assigned work truck. She was not authorized to load that equipment and apparently, according to her testimony, she did so in order to provide a substantial amount of weight on her trailer for the purpose of having her brakes inspected by the quality assurance official for the project. She went to an unauthorized area for approximately one hour to have this inspection performed without the approval of the Respondent's management. Further, it was not necessary, in order to evaluate the brakes on the vehicle for proper function and safety, to have the weight of the unauthorized load placed on the trailer. If, indeed, the brakes had been defective, it would have been entirely possible that the expensive aircraft parts she had placed on the trailer without authorization could have been substantially damaged, the truck or other property could have been damaged, and, indeed, the Petitioner or other persons could have been injured. Additionally, the Petitioner misrepresented the reason she was in the unauthorized area where she had her brakes inspected by Mr. Lett, the quality assurance officer. In this connection, because she had begun to complain repeatedly about the condition of her brakes and her vehicle (after her reprimand), the project manager, Mr. Jacobs, had had certain other employees come in on several occasions at approximately 6:00 a.m., before normal working hours, and before the Petitioner arrived on the job site, to inspect the Petitioner's truck for safety and appropriate preventive maintenance purposes. These employees were not informed that it was the Petitioner's truck they were inspecting at the time they were told to do the inspections. The Respondent was attempting to ascertain the true condition of the Petitioner's truck and determine whether her reports concerning safety problems, particularly with her brakes, were accurate or not. In fact, on the morning of the day when the unauthorized load was placed on the truck and the Petitioner had Mr. Lett perform the inspection of her brakes at the unauthorized area, one of the Petitioner's co-employees had inspected her brakes before she arrived to take custody of her truck that morning. He had determined that the brakes were operating properly. The Petitioner and Mr. Lett apparently felt that the brakes were deficient when they were inspected early in the afternoon of that day. The record does not reveal whether the brakes were deficient when Mr. Lett inspected them or that some change in the adjustment of the brakes or other problem had arisen since the employee inspected them early that morning and found them to be in proper operating order. Be that as it may, management was of the belief on that day and prior thereto that the Petitioner, although reporting brake deficiency problems, did not truly experience such brake deficiency problems with her truck. This belief was based upon management perceptions concerning the Petitioner's attitude after her reprimand and upon the independent, confidential inspections management had other employees do on the Petitioner's truck. Accordingly, whether its belief was accurate or not, management was of the good-faith belief, on the date she was observed loading unauthorized, expensive equipment onto the flatbed truck, in an unnecessary fashion, for the purpose of having her brakes inspected, while being absent from her work assignment for one hour in an unauthorized area, that it had performance-related reasons to terminate her, which it did. This decision was made against the background of the increasingly poor attitude displayed by the Petitioner since her reprimand and because of the continuing problems management had experienced with the Petitioner's job performance since her initial employment one and one- half years previously. Although the Petitioner testified that as early as December of 1991, the management of the Respondent had spoken with her regarding her work performance and she interpreted that meeting as an attack on her gender and not upon her poor work habits, this contention was not verified by any other testimony. Having observed the candor and demeanor of the Petitioner versus that of the other witnesses, it is determined that her testimony is less creditable because of its self-serving nature. Although the Petitioner testified that a comment was made that "she did not look like a truck driver" and that she had three weeks to find another job, this was not verified through testimony of any other witness. To the extent that any other witnesses testified concerning these statements being made in a belief that discrimination had been exhibited toward the Petitioner, the evidence reveals that this information only came to these people through self-serving reports by the Petitioner herself. Meyers directly contradicts that these statements were made to the Petitioner and he states that he never heard anyone tell her that she had three weeks to look for a job or that she "didn't look like a truck driver". The petitioner provided no testimony or evidence which could show how these alleged statements constituted "sexual discrimination" or how the statements related to her sexual discrimination claim. It was not shown that any member of management, with employment-decision authority, made or condoned such statements even if it had been established that they evidenced gender-based discrimination, which was not done. The Petitioner did not complain of sexual discrimination per se until after she had received a reprimand from management. Likewise, she began to repetitively claim that her equipment was unsafe after the reprimand. The Petitioner may have been overly sensitive to management's concern for safety inspections of her truck because of being reprimanded for safety violations and was afraid she would "get into trouble" with management if she did not constantly report feared safety problems. The fact was established, however, that management had a genuine, good-faith belief that it was being harassed by these repetitive, unsafe equipment reports by the Petitioner, given the then- prevailing atmosphere surrounding the Petitioner's employment, characterized by her less than satisfactory attitude, as perceived by management, and the fact that management's confidential inspections of her equipment did not reveal any safety problems of the type reported by the Petitioner. Finally, it is especially noteworthy that during this period of time when the Petitioner made the claim of sexual discrimination and retaliation based upon her claim, that the Respondent had in its employ, in an identical job position, a female truck driver who had had no unsatisfactory experience by management with her performance, was not subjected to investigative or disciplinary measures, and who is still satisfactorily employed with the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the petition herein in its entirety. DONE AND ENTERED this 7th day of March, 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 7th day of March, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1459 Petitioner's Proposed Findings of Fact The Petitioner has submitted proposed findings of fact which are not in separately-numbered, discrete paragraphs. The paragraphs contain some proposed findings of fact which the Hearing Officer accepts and some which are rejected as being not supported by preponderant evidence and subordinate to the Hearing Officer's findings of fact on the same subject matter. The proposed findings of fact submitted by the Petitioner are intertwined with argument and discussions of the weight of the evidence or testimony. Because the paragraphs in the proposed findings of fact contain both findings of fact which the Hearing Officer accepts and which the Hearing Officer rejects, discrete, specific rulings thereon are not practicable. It suffices to say that all of the proposed findings of fact submitted by the Petitioner are subordinate to, but have been considered and addressed in the findings of fact portion of this Recommended Order and have been in that fashion completely ruled upon. Respondent's Proposed Findings of Fact The same considerations are true of the Respondent's proposed findings of fact. Some portions of the findings of fact proposed by the Respondent consist of merely discussions and argument concerning the weight of the evidence and some are acceptable to the Hearing Officer based upon the Hearing Officer's determination of the weight and credibility of the testimony and evidence. Some are rejected as being unnecessary or subordinate to the Hearing Officer's findings of fact made on the same subject matter. Here, again, this Recommended Order completely and adequately addresses the proposed findings of fact submitted by the Respondent, and the Respondent's proposed findings of fact are accepted to the extent they are not inconsistent with those made by the Hearing Officer and to the extent they are inconsistent therewith, they are rejected as being not supported by preponderant evidence or as being immaterial, unnecessary, or subordinate to the Hearing Officer's findings of fact. COPIES FURNISHED: Barry W. McCleary, Esquire 3 West Garden Street Suite 380 Pensacola, FL 32501 Donna Gardner, Esquire 213 South Alcaniz Street Pensacola, FL 32501 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
Findings Of Fact The Petitioner, Myra McKinney, is a black female. The Respondent is an insurance company which conducts operations in Florida, as pertinent hereto, consisting of the receipt of insurance policy applications with attendant premium payments, the recording of such policy applications, and other administrative procedures and operations necessary to act on the applications and receipt of premium monies by underwriting the risks involved by insurance policies issued by the company. The Respondent is an employer in the State of Florida for the purposes of Chapter 760, Florida Statutes. The Petitioner was employed by Respondent at times pertinent hereto and from 1981 through June 2, 1992. When she was terminated she held the position of "processing manager." This position involved presiding over the department as supervisor, with the responsibility and function of receiving insurance policy applications and related binder and/or premium monies and properly accounting for them in the process leading up to the Respondent company issuing insurance policy contracts. The Petitioner was the supervisor of personnel charged with the receipt of and proper accounting for such applications and premium monies. On or about June 11, 1992, after being terminated by the Respondent on June 2, 1992, the Petitioner filed a charge of racial discrimination related to her termination with the Florida Commission on Human Relations (Commission). An investigation was conducted by the Commission which ultimately resulted in the determination of "no cause." The Petitioner had been placed on work probation on May 11, 1992, because of poor work performance. The terms of her probation status specified that her work performance would have to be reviewed in 30 days and that if objectives were not met she would be terminated. The Petitioner had been asked by her manager or supervisor to provide him with reports on missing work (lost or misplaced applications), as well as a plan to correct the processing deficiencies leading to this problem and to eliminate the backlog of unprocessed applications. The Petitioner failed to provide the requested response and report until the supervisor had to make a second request of her. Witness John Burkhalter, the Petitioner's most recent supervisor, as well as witnesses Maria Diaz and Connie Bonner, established that a corporate audit revealed severe deficiencies and discrepancies in the processing department's function, which the Petitioner supervised. Under the Petitioner's management the processing department had fallen into severe disarray with a serious backlog of unprocessed work, a loss of control by Ms. McKinney over the processing of the work, particularly the problem of lost or misplaced insurance policy applications and related premium or binder checks. There were organizational and work-flow management problems, and very poor morale throughout the processing department. Ms. Diaz established that the poor morale was directly attributable to the Petitioner's performance because she had poor organizational skills. Numerous meetings were held with no apparent purpose for the meetings and little was accomplished. Meeting agendas between the Petitioner and her subordinates were lacking or rudimentary. The Petitioner had the habit of intimidating employees, being critical of them, and causing the employees to feel reluctant to express ideas and opinions clearly, particularly criticisms of the manner in which the office was operated. Once the Petitioner left employment, the backlog of unprocessed work and the problem of missing or misplaced applications was immediately alleviated, with the office functioning in much better fashion ever since. Additional missing applications and a box of "backlogged", unprocesed applications were found concealed in the office on the day of the Petitioner's termination, June 2, 1992, during the course of her work probationary period. Mr. Burkhalter established, as the immediate supervisor of the Petitioner and the regional operations officer of the Respondent company, that the Respondent had a progressive discipline policy and termination policy. The corporate policy was followed with regard to the termination of the Petitioner. The Respondent employed progressive discipline when it learned of the severity of the problems in the processing department, imposing a probationary period first, and giving the Petitioner an opportunity to correct the problems, followed by termination for work performance deficiencies when the opportunity to correct those deficiencies was not taken advantage of by the Petitioner. Ms. McKinney's actual performance in May of 1992 was not consistent with her previous performance evaluations. Her former manager, Mr. McFall, had inflated her performance ratings and given her satisfactory ratings when actually her performance did not justify such. Mr. McFall himself was terminated near the same time as the Petitioner and testified on behalf as concerning purported satisfactory performance but, given the totality of the circumstances surrounding his termination and testimony in support of the Petitioner, is deemed a biased witness against the Respondent. His testimony was colored by his own dispute and history of litigation with the Respondent concerning his employment and termination. Mr. Burkhalter reviewed the Petitioner's entire personnel file, the deficiencies in her work performance and her lack of any improvement during the work probationary period when the Respondent gave her an opportunity to improve and make corrections. He determined termination was, therefore, the only option. He reviewed such considerations as transferring the Petitioner or demoting her to another position. However, because of the exceedingly poor morale generated in the department largely by the Petitioner's management and supervisory practices, Mr. Burkhalter determined that neither option was in the best interest of the Respondent or Ms. McKinney. He, therefore, terminated Ms. McKinney in compliance with the provisions of the work probation policy of the Respondent. He did not terminate her or otherwise discipline her for any reasons motivated by consideration of her race. In establishing this as fact, his testimony is corroborated by that of Ms. Lynn Jones, a black female employee, who testified that she had never been personally discriminated against by Mr. Burkhalter or Colonial nor had she observed any other black person employed by the Respondent treated in what appeared to her to be a disparate fashion, including the Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the evidence of Record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition of Myra McKinney in its entirety. DONE AND ENTERED this 11th day of January, 1994 in Tallahassee, Leon County, 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 11th day of January, 1994. APPENDIX Petitioner's Proposed Findings of Fact: Accepted but not in itself materially dispositive of the relevant issues. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of credible evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as not in accordance with the totality of the preponderant, credible evidence. 8-9. Accepted, but not dispositive of the material issues presented. Rejected as not in accordance with the preponderant, credible evidence of record. Rejected as not clearly established by the preponderant evidence of record. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Accepted. Rejected as immaterial and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not entirely in accord with the preponderant weight of the evidence. Rejected as contrary to the preponderant weight of the credible evidence. Rejected as contrary to the preponderant weight of the credible evidence. Accepted. Rejected as immaterial. Rejected as immaterial. Accepted. Rejected as subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as immaterial. Rejected as immaterial given the issues in this proceeding. Rejected as immaterial and not in accord with the preponderant weight of the evidence and subordinate to the Hearing Officer's Findings of Fact on this subject matter. Rejected as not in accordance with the preponderant weight of the credible evidence. Rejected as immaterial. Rejected as not 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. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Rejected as immaterial under the circumstances presented by the issues in this case. Respondent's Proposed Findings of Fact: 1-14. All accepted, but subordinate to the Hearing Officer's Findings of Fact on the same subject matter to the extent that they differ. COPIES FURNISHED: Ms. Myra McKinney 1823 Mayfair Road Tallahassee, Florida 32303 Lucinda A. Reynolds, Esquire McCutchan, Druen, Maynard, Rath & Dietrich One Nationwide Plaza Columbus, Ohio 43216 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent committed the acts alleged in the Administrative Complaint and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints made to the Department for violations of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e); 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set forth in that section. At the times material to this proceeding, Mr. Tagliaferro has been licensed by the Department as a certified building contractor, having been assigned license number CB C020944 by the Board. His license is currently suspended for failure to make payments pursuant to the terms of a stipulation adopted in a final order of the Board effective June 20, 1994. At all times material to this proceeding, Mr. Tagliaferro was the licensed qualifying agent for C. J. Construction Corporation. On or about May 15, 1994, Mr. Tagliaferro, d/b/a C. J. Construction Corporation, entered into a contract with Mr. Esteban Garcia to build a second-floor addition to Mr. Garcia's home located at 7541 Northwest 1st Court, Pembroke Pines, Florida. The contract specified that C. J. Construction Corporation would construct an area approximately 24' x 17', and the scope of the work included installing roof shingles to match the existing roof, new windows, a stairway to the new second- floor addition, a new entrance door, new electrical wiring for the second-floor addition, and new plywood flooring over the existing roof. No completion date was specified in the contract. The price stated in the contract for this construction was $17,000, with one-third of the price due on signing the contact and the remainder due as the job progressed. On May 16, 1994, the date the contract was signed, Mr. Tagliaferro received payment of $5,000. The building plans were approved on or about August 11, 1994, and Mr. Tagliaferro began construction immediately thereafter. Payments were made to Mr. Tagliaferro by checks dated August 30, 1994, September 22, 1994, and October 21, 1994, in the amounts of $5,000, $3,000, and $2,000, respectively. Mr. Tagliaferro found that it was necessary to change the dimensions of the addition from 24' x 17' to 24' x 24' to accommodate the stairway to be built to the second floor. Had the addition been built to the original dimensions, the stairway would have covered a window. Mr. Tagliaferro prepared a written change order, with an estimate of $6500 to construct the addition to the increased specifications. Although the change order was never signed, Mr. Tagliaferro framed the addition at 24' x 24'. Mr. Tagliaferro installed the plywood flooring over the existing roof, framed the addition, installed the roof trusses, installed plywood sheeting on the exterior walls and roof, installed the new staircase, and tin-tagged the roof. Mr. Tagliaferro called for an inspection of the framing on October 27, 1994. The framing did not pass inspection because there was no approved copy of the plans on site, as required. Mr. Tagliaferro did not remove the plans from the site prior to the inspection. After the failed inspection on October 27, 1994, a member of Mr. Tagliaferro's family died, and it was necessary for him to go to New York, where he remained for three or four days. Mr. Tagliaferro telephoned Mr. Garcia's daughter, Mirna Espina, and told her that he was in New York to take care of personal matters. When he returned, he contacted the architect to have another set of plans drawn up so he could re-submit them for approval and continue construction. Ms. Espina telephoned Mr. Tagliaferro numerous times after October 27 to ask when he intended to return to complete the construction. She received no answer and left messages on the answering machine. Mr. Tagliaferro did not return her calls. At some point after October 27, Ms. Espina went to the police department and asked that a police officer accompany her to Mr. Tagliaferro's house so she could talk to him and ask when he intended to return to complete the construction. Mr. Tagliaferro answered the door and, when the police officer asked when he was going to finish the construction job, Mr. Tagliaferro explained that he had a problem but intended to return to complete the job. When the police officer told him to tell the truth about whether he intended to complete the job, Mr. Tagliaferro did not respond and closed his door. Mr. Garcia, Ms. Espina, and her husband decided to complete the project themselves in early-to-mid December 1994. Although he eventually obtained another set of plans, Mr. Tagliaferro did not return to the Garcia house to complete the addition. As of October 21, 1994, when he was last on the job, Mr. Tagliaferro had not installed roof shingles, new windows, an entrance door, wirelath or stucco on the exterior walls, electrical wiring, sheet rock with popcorn ceiling, or insulation, and he had not extended the air conditioning ductwork to the new addition. A proposal for the installation of wirelath and stucco, dated December 10, 1994, was prepared by Repairs Unlimited, Inc., and was accepted by Mr. Garcia. On January 11 and 30, 1995, respectively, Mr. Garcia also accepted proposals from Miller Roofing to install asphalt shingles on the roof and from Cayamas Electric Corporation to do the electrical work in the addition. Numerous receipts from building supply stores attest to the materials purchased by Mr. Garcia to complete the project, and a statement dated January 30, 1995, indicates that repair and reinstallation work was performed for Mr. Garcia by Samuel Benson on January 15, 22, and 29. These contracts total $5,421.00. Mr. Garcia hired an attorney on December 16, 1994, and filed suit against Mr. Tagliaferro in circuit court. A hearing was held, which Mr. Tagliaferro attended. On May 18, 1995, a final judgment was entered against Mr. Tagliaferro directing him to pay to Mr. Garcia and Ms. Espina $15,000 and costs of $250, with interest accruing at the rate of eight percent per annum. Mr. Tagliaferro has not satisfied the judgment and has not engaged in any discussions with Mr. Garcia or Ms. Espina to arrange for payment of the judgment. The evidence presented by the Department is not sufficient to support a finding of fact that Mr. Tagliaferro abandoned the Garcia construction project. The only evidence presented to support such a finding was the hearsay-within- hearsay testimony of Ms. Espina that her father, Mr. Garcia, told her that Mr. Tagliaferro told him that he did not intend to complete the project. The evidence is sufficient, however, to permit the inference that Mr. Tagliaferro was precluded from completing work on the project prior to the expiration of ninety days from October 21, 1994, when he last worked on the project. Although the evidence establishes that Mr. Garcia was harmed financially by Mr. Tagliaferro's failure to complete the addition, no evidence was presented by the Department to support a finding of fact that Mr. Tagliaferro caused the financial harm by mismanaging the construction project or by engaging in misconduct. Specifically, the Department presented no evidence to support its assertion that Mr. Tagliaferro completed only thirty percent of the job before Mr. Garcia took over the construction. Therefore, it failed to establish that the amount paid to Mr. Tagliaferro exceeded the percentage of completion. Additionally, the Department presented no evidence to establish the relevant standards of competency in the practice of contracting or the manner in which Mr. Tagliaferro failed to meet those standards in the work done on the Garcia project. It is, however, uncontroverted that Mr. Tagliaferro has not satisfied a judgment entered against him and C. J. Construction Corporation in May 1995 in favor of Mr. Garcia and Ms. Espina.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board enter a Final Order: Finding John A. Tagliaferro guilty of having violated Section 489.129(1)(n) and Section 489.129(1)(r), Florida Statutes; Dismissing Counts I and II of the Administrative Complaint; Imposing an administrative fine of $4,000; and Suspending Mr. Tagliaferro's license as a building contractor until he submits proof that he has satisfied the judgment entered against him on May 18, 1995, in Case No. 94-15660 (21), in the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. DONE AND ENTERED this 6th day of April, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1998. COPIES FURNISHED: Ruby Seymour-Barr, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399 John A. Tagliaferro, pro se 601 Northwest 103 Avenue No. 357 Pembroke Pines, Florida 33026-6023 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney Hurst, Executive Director Construction Industry Licensing Board 7960 Arlington Expressway, Suite 300 Jacksonville, Florida 32211-7467
