The Issue Whether Respondent, Northrop Grumman Corporation, discriminated against Petitioner, James L. Heidel, on the basis of his age and disability, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).
Findings Of Fact Northrop Grumman Information Technology (Northrop Grumman IT) is the information technology sector of Northrop Grumman Corporation. Northrop Grumman IT is divided into several business units, one of which is Internal Information Services (IIS), which is headquartered in Dallas, Texas, and has over 2,000 employees at Northrop Grumman Corporation locations across the country and the world. IIS provides internal information services support to the Northrop Grumman Information Systems (IS) sector facility (AGS&BMS) in Melbourne, Florida. The IIS support of the Melbourne site mirrors its IS customer's functions and organizations. Petitioner began working for Northrop Grumman Corporation in 1996, as a database administrator (job title: DB Arch Tech NG Internal Sys. 4). Petitioner was a database administrator for the CoastPoint finance system at the Melbourne site. After Petitioner was moved off of the CoastPoint effort, Petitioner provided database administration support for the MetaPhase system for a number of months concurrently with his database administration work in the ILS (logistical support directorate of Northrop Grumman Corporation). Petitioner was added to the ILS area as a database administrator. Petitioner also performed limited software engineering tasks to the extent that he had time in addition to his primary role of ILS database administration duties. Petitioner never disputed that Joe Boniface had superior familiarity and experience with all aspects of the ILS area. Indeed, if Petitioner compared himself to Mr. Boniface for purposes of layoff, Petitioner agrees that Respondent should have kept Mr. Boniface because of his seniority, greater experience, and managerial leadership. In 2002, the IS customer's budget for the ILS area was reduced as a result of the ramping down of "JSTARS" work, which is the primary focus of the Melbourne facility. This budget cut affected the level of budget that was available for IIS support work and resulted in Petitioner's layoff. At the time of Petitioner's layoff, there were two employees, Petitioner and Mr. Boniface (job title: S/W Eng NG Internal Sys. 4), providing database administration support for the ILS area of the IS customer. Mr. Boniface was the IIS lead for the ILS area and, in addition to his database system administration efforts, he worked in a software engineer capacity, developing and/or maintaining Oracle applications for ILS, and was the primary interface with the IS customer regarding IIS support of the ILS area. Simply stated, Mr. Boniface was a critical and irreplaceable person for IIS support in Melbourne. Upon Petitioner's layoff, Mr. Boniface continued the Oracle database administration duties that Petitioner had performed. At the time of Petitioner's layoff, there were two Database Services employees, Petitioner and Jim Ardito (job title: DB Arch Tech NG Internal Sys. 4), for Oracle database support needs at the Melbourne site. Mr. Ardito was a 20-year veteran of database administration, was the administrator of nine databases supported by IIS in Melbourne, and was a 32-year employee of Northrop Grumman Corporation. Petitioner was a back-up Oracle database administrator for Mr. Ardito to the extent he took vacation or was out of the office. As part of the layoff decision process affecting Petitioner, management and human resources prepared a rank order analysis, comparing the charging party to the other person in his job group, Mr. Ardito. Mr. Ardito was 59 years old at the time of Petitioner's layoff. Upon Petitioner's layoff, Mr. Boniface resumed the database administration duties that Petitioner had been performing, in addition to his other duties. Mr. Boniface was 46 years old at the time of Petitioner's layoff. Andrew Caldwell worked for IIS as a "job shopper" at the Melbourne site, as a computer consultant to Northrop Grumman Corporation from July 1997 to August 1998. Mr. Caldwell was formally hired as a Northrop Grumman Corporation employee on or about August 1998. He was hired as a software engineer (job title: S/W Eng NG Internal Sys. 3). Mr. Caldwell supported the CoastPoint project as a software engineer prior to his role supporting the ILS area as a software engineer. At the time he was terminated from employment with Respondent, Petitioner was 50 years old. Petitioner's job responsibilities were assumed by Mr. Boniface, Petitioner's technical lead who had done Petitioner's job before Petitioner was hired. Petitioner offered no evidence of any physical disability or any suggestion that he had been discriminated against because of a physical disability. Petitioner suggests that he was replaced by a "younger" co-employee, Mr. Caldwell; however, no evidence was presented regarding Mr. Caldwell's age (Petitioner testified "I don't know his exact age. He is about 30, I would guess"). In addition, Mr. Caldwell's job description was software engineer (job title: S/W Eng NG Internal Sys. 3), a job in which he continued after Petitioner's termination. Mr. Caldwell was not a database administrator which was Petitioner's job description. Faced with a significant budget cut, Respondent conducted an orderly analysis of its customer requirements and decided it had to eliminate a database administrator. Faced with a management direction to reduce employees, Bob Gildersleeve and John Tartaro, Petitioner's supervisors, made a decision between Petitioner and Mr. Ardito, as set forth herein above (paragraphs 11, 12 and 13). The decision was based on sound reasoning and was not based on the ages of the individuals.
Recommendation Based of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief and finding that Petitioner failed to present a prima facie case and, additionally, that Respondent demonstrated, by a preponderance of the evidence, that Petitioner's termination was not based on unlawful discriminatory reasons. DONE AND ENTERED this 8th day of July, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 8th day of July, 2004.
The Issue The issue is whether Respondent should be assessed a penalty of $150,707.39 as set forth in the Amended Order of Penalty Assessment dated February 13, 2007, for failure to secure the payment of workers’ compensation within the meaning of Subsection 440.107(2), Florida Statutes (2004 to 2006).1
Findings Of Fact The Department is the state agency responsible for enforcing the workers’ compensation coverage requirements pursuant to Section 440.107, Florida Statutes. Burton Construction is a corporation operating in the construction industry in Florida. The primary work of Burton Construction is framing. On November 11, 2004, Burton Construction entered into a contract with Administrative Concepts, a professional employee organization that provides workers’ compensation coverage and administrative duties for client companies. As part of the agreement, Administrative Concepts agreed to lease employees to Burton Construction, to provide workers’ compensation coverage for the leased employees, and to pay the leased employees. In order for a person to become employed by Administrative Concepts, the person must complete an application form and a W-4 withholding form prior to employment. Until Administrative Concepts receives the application and W-4, the person is not considered to be an employee of Administrative Concepts and is not covered for workers’ compensation. In return for Administrative Concepts’ services, Burton Construction agreed to reimburse Administrative Concepts for the payroll and workers’ compensation coverage and to pay a service fee. As part of the agreement with Administrative Concepts, Burton Construction agreed that all wages, including bonuses paid to any employee would be paid through Administrative Concepts. Each week Burton Construction was to provide Administrative Concepts a list of the employees who worked that week along with the number of hours which they worked. If Burton Construction failed to provide the list of employees and hours worked or paid the employees directly, the employees would not be considered to be leased employees and would not be covered by Administrative Concepts for workers’ compensation. As a result of an anonymous tip, John Kulha, an investigator for the Department, went to a construction site at 1675 Lakeport Street, Northport, Florida, where a crew of five workers was framing a house, to determine whether the workers had workers’ compensation coverage. He interviewed Mike Laveque, Todd Burton, Joe Guelfi, Jason Carey, and Jason Guelfi, who were working at the site. Joe Guelfi, Jason Carey, and Jason Guelfi were not employees leased from Administrative Concepts and had no workers’ compensation coverage. Mr. Kulha issued a Stop Work Order to Burton Construction and a Request for Production of Business Records for Penalty Assessment Calculation. Burton Construction produced the requested business records for 2005, 2006, and part of 2007.4 Mr. Kulha reviewed the records produced by Burton Construction and calculated a penalty of $150,707.39 for failure to obtain workers’ compensation coverage. Mr. Kulha based his assessment on the payments recorded in Burton Construction’s check register and on the employees who were working on the site on the day of his visit and were not listed with Administrative Concepts. Burton Construction does not contest that it should be assessed a penalty, but does contest the amount of the penalty. Mr. Kulha testified that that he determined the payroll for each of the employees being paid directly by Burton Construction. These employees did not have workers’ compensation coverage through Administrative Concepts, and Burton Construction had not otherwise secured workers’ compensation coverage for these employees. After determining the payroll for each employee, he used the SCOPES Manual to determine a class code for the type of work being performed. Mr. Kulha determined that the class code that identified the work being performed by Burton Construction employees was Class Code 5645, which is the class code assigned to framing. A dollar amount is assigned to each class code to calculate the premium for workers’ compensation coverage. The premium is based on the risk involved in the work. The manual rates for premium calculation change from year to year. The premium rate for framing in 2005 was $38.40. For 2006, the rate was $35.12, and for 2007 the rate was $27.21. The manual rates are the rates that would have been paid for each $100 of payroll. Mr. Kulha determined the premium that should have been paid for each employee paid directly by Burton Construction for 2005, 2006, and a portion of 2007. Each premium was multiplied by 1.5 to determine the penalty that should be assessed. Mr. Kulha used the correct method to determine the assessed penalty; however, based on Burton Construction’s check registers, which were entered into evidence, not all of Mr. Kulha’s payroll calculations were accurate and the class code for framing should not have been used for all employees as discussed below. Between January 2005 and February 2007, the following persons were paid directly by Burton Construction and did not have workers’ compensation coverage: Amanda Beal, Bill Malone, Brandon Burton, Brian Elswick, Carlos Fuller, Chad, Charlie McNealy, Cody Matson, Darrell Browning, David Carey, George Stevens, James Jacquet, Jason Carey, Jason Guelfi, Jason Moore, Jason Olis, Joe Guelfi, Josh Wright, Kyle Browning, Kyle Moore, Louis Scarsella, Michael Malinoswski, Nate, Robert Ward, Ron Pennington, Steve, Tammy Pennington, and Todd Burton. The amount of the gross payroll for the following persons as calculated by Mr. Kulha was supported by the evidence presented at the final hearing: Bill Malone, Ron Pennington, Tammy Pennington, Robert Ward, Todd Burton, Mike Malinoswki, Jason Moore, Kyle Browning, James Jacquet, David Carey, Cody Matson, Louis Scarsella, Brian Elswick, Carlos Fuller, Josh Rice, George Stevens, Mike, Nate, Jason Olis, Jason Guelfi, and Joe Guelfi. The gross payroll amount calculated for Darrell Browning for 2005 was supported by the evidence presented at the final hearing. The gross payroll amount calculated for Brandon Burton for 2005 was supported by the evidence presented at the final hearing except as noted below relating to the payments made to Amanda Beal. Mr. Kulha calculated the gross payroll for Darrell Browning for 2006 to be $6,262. The evidence presented at the final hearing establishes that the gross payroll for Darrell Browning for 2006 was $6,162. Brandon Burton is the son of Gary Burton, who is one of the owners of Burton Construction. Amanda Beal is the girlfriend of Brandon Burton and the mother of his child. At times, Gary Burton would write checks to Amanda Beal from the account of Burton Construction. These checks were to defray living expenses. However, Gary Burton would describe the checks in the check register as being for “sub work” for Brandon Burton, and Burton Construction would include these amounts in calculating income received by Brandon Burton for income tax purposes. On two occasions, Ms. Beal received checks from Burton Construction for cleaning. The money that Ms. Beal received for Brandon Burton's sub work should be included in the gross payroll for Brandon Burton at the class code for framing. The payments were treated as income for Brandon Burton, and there is no indication based on the records of Burton Construction that the payments were to be treated as gifts. The two checks that Ms. Beal received for cleaning should be calculated at a class code for cleaning and not for framing and included in the gross payroll for Ms. Beal. On March 24, 2006, Burton Construction made a payment of $204 to Kyle Moore for lawn and landscaping. The $204 should be included in the gross payroll for penalty assessment, but the class code used to determine the premium to be paid should be adjusted from framing to a class code for lawn and landscaping. By checks dated September 27, 2006, Burton Construction made payments to Steve and Chad for applying bath tiles. The payments should be included in gross payroll for penalty assessment, but the class code used to determine the premium to be paid should be adjusted from framing to a class code for laying bath tiles. By check dated August 17, 2006, Burton Construction made a payment of $205 to Charlie McNealy for washing and waxing trucks. The check should be included in the gross payroll amount, but the class code should be adjusted to reflect the work of washing and waxing trucks. Mr. Kulha calculated the gross payroll for Brandon Burton for 2006 to be $41,100.41. The check registers reflect total payments of $39,691.41. The penalty should be assessed based on a gross payroll for Brandon Burton in 2006 of $39,691.41.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered adjusting the penalty assessed as set forth in this Recommended Order. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 10th day of August, 2007.
Findings Of Fact The Board and its program. The Florida Prepaid Post-Secondary Education Expense Board (Board) is an agency which administers the Florida Prepaid College Program. The Board sells advance payment contracts for tuition and dormitory expenses at Florida post- secondary education institutions. The Board is required by Section 240.551(8)(a), Florida Statutes (1991), to contract with a records administrator to conduct the day-to-day operations of its program. The Petitioner, BTI Services, Inc. (Barnett), is the current records administrator. BTI Services, Inc., is affiliated with Barnett Bank. The Board issued its Request for Proposal Number 92-1 on July 31, 1992, seeking a records administrator for a 3- year contract term with the option to renew the contract for further periods. The following portions of the Request for Proposal (RFP) bear upon the responsiveness of the proposals submitted by the parties: SECTION I GENERAL INFORMATION * * * 1.4 Period of Contract The duration of any contract resulting from this RFP shall be for three (3) years from the date of its execution. The current records administration contract expires on June 30, 1993. Respondent shall be completely operational on July 1, 1993. It is the intent of the Board to review and define necessary services at the end of three (3) years. Respondents shall submit in their response to this RFP, the terms and conditions for service in additional years. The Board reserves the option to renew the contract or any portion of the contract under the terms and conditions set forth in this RFP or any other such conditions as may be negotiated between the parties for two additional one (1) year periods. Renewal shall be contingent upon, among other things, availability of funds, continued need, and satisfactory performance by the successful Respondent. Moreover, the contract is subject to an annual performance evaluation of the successful firm. * * * Proposal Opening It is the Respondent's responsibility to assure that its proposal is delivered at the proper time and place of the proposal opening. Proposals which, for any reason, are not timely delivered will not be considered. Late proposals will not be accepted; they will be returned unopened to the Respondent. Offers by facsimile or telephone are not acceptable. A proposal may not be altered after opening. [Emphasis in original] Acceptance of Proposal by Board The Board reserves the right to accept or reject any and all proposals and to award the issuing contract in the best interest of the State of Florida. * * * 1.17 Restrictions on Communications with Board Staff From the date this RFP is issued until a determination is made, the only Respondent- initiated contact related to this RFP allowed between Respondent and any member of the Prepaid Postsecondary Education Expense Board, or member of the Board staff, is during the prebidder's conference. Any unauthorized contact may disqualify the Respondent from further consideration. * * * SECTION III INFORMATION REQUIRED FROM RESPONDING PROPOSERS 3.2 Sufficiency of Response Respondent's proposal must be submitted in the format outlined below. There should be no attachments, enclosures or exhibits other than those considered by the Respondent to be essential to a complete understanding of the proposal submitted. Each section of the proposal must be clearly identified with appropriate headings. . . . * * * F. Price Proposal The information requested in this section is required to support the reasonableness of the Respondent's quotation. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The price proposal shall be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of the proposal. Respondent shall also provide specific Records Administrator charge rates as referenced in Section 2.2(F)(13) for such items as computer programming, etc. * * * 3.7 Regulatory Restrictions and Litigation Each Respondent must describe in detail any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the Respondent or any of its principals, owners, directors or officers has ever been a party that would affect its ability to provide the required services. Respondents must indicate if any officers, principals, owners or directors have been convicted of a felony. If so, a detailed description of each incident must be included. Respondent must also indicate whether or not any liquidated damages have ever been imposed against the Respondent for the untimely completion of any task required by the terms of any contract for services entered into between the Respondent and any other entity during the past five (5) years. If so, a detailed description of each such incident, including the amount of liquidated damages imposed, must be included. Respondent must execute a sworn statement on public entity crimes, exhibit "F." SECTION IV MANDATORY REQUIREMENTS Introduction The Board has established certain mandatory requirements which must be included as a part of any submitted proposal. The use of "shall," "must," or "will" (except to indicate simple futurity) in this RFP indicates a mandatory requirement or condition. The words "should" or "may" in this RFP indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable will not by itself cause rejection of a proposal. The right is reserved to determine which Respondents have met the basic requirements of this RFP, and to determine whether any deviation from the requirements of the specifications, terms and conditions contained herein is merely minor or technical in nature; the right to accept bids which deviate in minor or technical fashion is also reserved. Only those Respondents who have met the basic requirements of this RFP will be considered; any Respondent who has not done so will be rejected. The right is reserved to reject any or all proposals. Failure to meet any contractual obligations may result in cancellation of any award. Mandatory Criteria Specific attention is directed to the following mandatory provisions contained in this RFP. Each Respondent must comply with each of these provisions and present an index citing the page number within its proposal that fulfills these mandatory provisions. Failure to comply with these mandatory provi sions is sufficient cause to disqualify the proposal without further evaluation or consideration. [Emphasis in original] Each Respondent must provide evidence of, or expressly indicate a willingness and ability to meet, the following mandatory criteria: RFP Section Numbers Provisions 1.9 Proposals to be signed and sealed 1.13 Primary responsibility for delivering services 1.19 Annual appropriations 2.1-2.2 Scope of services requested 2.3 Control Identification of Respondent Sufficiency of response Copies of proposals Financial information Regulatory Restrictions and Litigation 6.1 General terms 6.2(A)-6.2(BB) Contents of contract SECTION IV EVALUATION Proposal Submission Only proposals submitted in the time frame stated herein and with the content as required by this RFP will be reviewed and considered by Board staff and the Board. Evaluation Criteria If Respondent does not meet all of the mandatory requirements set forth in Section IV above, such proposal may be rejected by the Board as nonresponsive. The Board seeks to contract for services described herein with the responding firm who submits the best proposal. The written proposals will be evaluated by Board staff and rankings submitted to the Board will utilize the following 100 point grading system. A. Price (35 points)--Fees and other costs charged to purchasers that affect account values or operational costs related to the program will be evaluated. THIS PORTION OF THE PROPOSAL MUST BE LABELED, THEN BOUND AND SEALED SEPARATELY FROM THE REMAINDER OF THE PROPOSAL. The fees proposed must be in the format as described in exhibit "D", Price Proposal Worksheet. Any deviation from the worksheet format or instructions will be cause for rejection of Respondent's proposal. * * * C. Personnel and Computer Capability (20 points)--The proposal shall clearly describe the background, quality and level of expertise of Respondent's staff and affirmatively state agreement with the provisions of Section 1.13, 2.2(A)(7), 2.2(A)(8), 2.2(G), 2.3, 3.2(A)-(C) and 6.2(A)-(BB). Computer capability for the scope and level of service described in paragraph 2.2 shall be evaluated. North American Financial Services, Ltd. (North American), International ComputaPrint Corporation (ICC), and Barnett submitted timely responses to the RFP which were opened by Board staff on September 30, 1992. The response of Barnett was voluminous, containing about 1,000 pages in three bound volumes. The proposal submitted by Barnett omitted 35 pages, numbered C-129 through C-164, which contained information concerning Barnett's computer capabilities. The index required by Section 4.2 of the RFP submitted with Barnett's proposal showed that the missing pages were responses to Criteria 2.2(G)6 through 2.2(G)13, which were mandatory criteria under Sections 4.2 and 5.2(C) of the RFP. These pages described the computer services to be provided during the contract term which would commence in July of 1993. Barnett's index did not indicate that the necessary response to Section 2.2 of the Board's RFP could be found in any other portions of its proposal. Because Barnett is the Board's current records administrator, Board staff knew of Barnett's current computer capabilities. What the RFP required, however, was an offer of services to be provided during the new contract term. Staff members could have drawn on their familiarity with Barnett as an existing vendor, but it would be improper for the staff to evaluate the proposal based on Barnett's current services, as they were not necessarily ones Barnett proposed to provide in the future. The discovery that pages were omitted from the Barnett proposal caused Board staff to carefully go through the proposals received from North American and ICC and, in the process of doing so, staff found in them certain defects and omissions. Neither of those proposals omitted entire sections of responses required by the RFP, however. The North American proposal omitted pricing for the two option years after the three-year base contract, which had been requested by Section 1.4 of the RFP, and failed to respond fully to Section 3.7 of the RFP, which sought a detailed description of any past or pending regulatory restrictions, consent orders, stipulations or litigation to which the bidder or any of its officers or directors had been a party which would affect the bidder's ability to provide services to the Board. The response of ICC failed to address sections of the RFP involving the contents of the contract for services. The Board 's Executive Director sent letters to all three bidders on October 26, 1992, requesting that they file the omitted materials or supplement deficient items, and offer a full explanation of why that information had not been included in their initial submissions. Each bidder then submitted a letter of explanation and the supplemental information Board staff requested. Board staff referred all three proposals, together with the supplemental information, to an evaluation committee for review, evaluation, and ranking. Under the evaluation procedure described in Section V of the RFP, a total of 300 points (100 per evaluator) could be awarded to a bidder. The committee ranked Barnett's proposal first, awarding 276 points; North American's second with 270 points; and ICC's third with 257 points. The total projected three-year costs based on each bid were: Barnett - $9,389,887; ICC - $7,789,259; North American - $7,977,564 (Barnett Exhibit 8, attachment 4, page 4, paragraph C). The evaluation was brought to the Board at its meeting on December 15, 1992. Barnett's initial proposal and supplemental response. Section 4.2 of the RFP required that every proposal include an index, citing the page numbers which addressed mandatory provisions of the RFP. It was obvious that the responses would be large, and Board staff is small. Staff could not search through proposals to try to determine whether information submitted was meant to satisfy a mandatory provision of the RFP. Bidders' attention had been specifically directed in Sections 4.1 and 4.2 of the RFP to the mandatory indexing requirements. They had notice that failure to respond to the section of the RFP dealing with the scope of services requested, or with any other specifically designated mandatory requirement, would be "sufficient cause to disqualify the proposal without further evaluation or consideration" (RFP, Section 4.2). At final hearing, Barnett identified for the first time pages within its proposal which it claimed responded to the mandatory requirements of Sections 2.2(G)6 through 2.2(G)13 of the RFP. This new index was never provided to members of the evaluation committee, for it did not exist then. It is not clear that the pages identified in this new index actually respond to the requirements of Sections 2.2(G)16 to 2.2(G)13, for no witness at the final hearing testified that they did. The submission of this new index evidences a misunderstanding of the purpose of this hearing, however. The question presented is not whether Barnett now can identify portions of its original submission which responded to mandatory requirements of the RFP. Those pages of its original submission were not indexed for the use of the evaluation committee. The Hearing Officer cannot act as a member of the bid evaluation committee and make some de novo, independent determination of the sufficiency of this new index. The only purpose of the index was to permit evaluation of the proposal, something the Hearing Officer cannot do. When Barnett replied with its letter of explanation, it included what it then characterized as the "9 copies of pages C-129 through C-164" originally required, explaining that "these pages were intended to be included in [Barnett's] response" as evidenced by "the detailed table of contents and cross- reference provided" in its initial response (North American Exhibit 4). Barnett blamed the omission on a photocopying error. Barnett's letter did not tell the Board that changes had been made to these 35 pages. They were not the pages Barnett originally intended to include with its response to the RFP, but amended pages which did not exist on the bid opening date in the form submitted on October 30, 1992 (Tr. 69, 77). Barnett's changes were due, at least in part, to Barnett's review of the North American and ICC proposals opened on September 30, 1992, and its analysis of what it believed were "overall deficiencies" in them (Moorer Deposition at 28). Barnett knew from comments by Board staff that its price proposal was about 20% higher than the other proposals (Moorer Deposition at 40). The evidence is unsatisfactory on just who initiated this discussion. Had Barnett done so, it would have been in violation of Section 1.17 of the RFP, which prohibited vendor initial contact with Board staff on the substance of the proposals before a proposal was selected by the Board. The most significant change Barnett made in the revised 35 pages offered to "serialize" dormitory and tuition accounts. Other changes referred to software modifications Board staff and Barnett were already working on. This was an attempt to increase its score under the evaluation criteria found in Section 5.2(A) of the RFP. To the extent that Mr. Stabler was careful, at final hearing, to deny that the new "serialization" proposal was a price change, but merely created a potential for a price reduction, that testimony is unconvincing. Mr. Stabler acknowledged during his deposition that the effect of serialization, if implemented, would be to cut substantially the cost to the Board for handling contracts which included payments for both tuition and dormitory space. The changes also emphasized the programming ability of Barnett, for after review of the other proposals Barnett believed that those bidders had placed too much emphasis on hardware capability and too little on programing ability. These changes were designed to enhance Barnett's competitiveness in the technical areas of personnel and computer capabilities under the evaluation criteria found in Section 5.2(C) of the RFP (Moorer Deposition at 37). Board staff recognized that the offer to provide a serialization computer program was new, and realized it could reduce the costs paid by the Board. The evaluators did not include the serialization proposal in its evaluation, because staff regarded it as an inappropriate attempt to modify price. The evaluation committee did award points for other parts of the 35 pages submitted with Barnett's October 30, 1992, letter of explanation. North American's initial proposal and supplemental response The price proposal which North American submitted used the Board's price proposal worksheet, the form specifically required by Section 3.2(F) of the RFP, which tells bidders: "Any deviation from the worksheet format or instructions will be cause for rejection of the proposal." The Board's worksheet has no space for supplying separate "option year" pricing information, even though Section 1.4 of the RFP indicated that the Board wanted pricing for a three-year base period and for two additional one-year option periods. The usefulness of the option year prices is problematic, for Section 1.4 of the RFP stated the Board's intent to redefine the services to be provided at the end of the three-year base contract, which would require a price renegotiation. The way the Board's worksheet is set up, charges are based upon the number of tuition and dormitory accounts serviced, not upon a "per year" charge. Nothing in the price worksheet or Section 3.2 of the RFP mention the possibility of stating an option year price separately from the price for the base three-year term. The Board staff did not mention the omission of option year pricing as a deficiency in the October 26, 1992, omissions letter. North American's proposal did not deviate from the worksheet format or instructions. Nothing in the RFP required that the option year prices be separately stated if no price change in the option years was proposed. North American contends that its price was good for the initial contract term and for the renewal periods. While this is somewhat self-serving, it is also consistent with the required format of the price proposal worksheet. The fundamental problem is the RFP's internal inconsistency. The request that the bidder include the terms and conditions for service in the option years (the fourth and fifth years) appears in the general information section of the RFP. But the price proposal worksheet, part of Section 3.2 of the RFP, has no place to enter option year price information. This inconsistency probably went unnoticed by Board staff because they placed no importance on the option year pricing. It has been the Board's practice to circulate a new Request For Proposal at the end of each three-year period and to negotiate new services and prices at the end of that base term. The text of Section 1.4 is consistent with this practice. The Board was focusing on the selection of a vendor to provide services during the three-year base period of the contract. The evaluation committee never considered the option year pricing in its scoring. Had it done so, it would have been a detriment to Barnett, for it already had the highest price proposal. The two other bidders had not proposed any price increase for the "option years," while Barnett had proposed an 8% price increase for those years. Because the Board's past practice has been not to rely on the option year pricing to extend contracts for the records administrator beyond the base period, North American gained no advantage in the evaluation process by failing to specifically include option year pricing, which was not called for on the required price proposal worksheet. The initial response of North American contained the sworn statement on public entity crimes required by Section 3.7 of the RFP. The submission said nothing about any past or pending regulatory restrictions, consent orders, stipulations or litigation to which North American or its officers or directors had been a party which would affect its ability to provide the required services. What is most significant is that the opening phrase of Section 3.7 requires the bidder to "describe in detail" any such matters. North American indicated by its response to the October 26, 1992, omissions letter that it had nothing to say on the subject because there were no such restrictions which it could describe (North American Exhibit 6, final page). There is no evidence that there are any restrictions which North American should have described, but did not. Another portion of Section 3.7 of the RFP required bidders to indicate "whether or not" liquidated damages had been imposed against them in the past five years for failure to meet contract obligations. Arguably, this sentence could require the response that no such damages had ever been imposed. As with the regulatory restrictions, there is no evidence that any liquidated damages had been imposed against North American in the last five years which should have been disclosed, but were not. Read together, however, it was not unreasonable for North American to say nothing in response to these portions of the RFP. North American concealed nothing by its failure to respond in the negative to Section 3.7. It gained no advantage as a result of its interpretation that the text of the section required no response from it. Its supplemental submission did not affect its bid price. Action by the Board After staff evaluated and ranked the proposals, they were submitted to the Board for formal action. The Board decided to reject the Barnett proposal as nonresponsive because the initial proposal had omitted 35 pages of mandatory information. The omission was properly chargeable to Barnett's neglect to verify that all pages required were being submitted to the Board. Although the Board did not know it, Barnett had altered the pages it submitted after its competitors' bids had been opened, in a manner designed to enhance Barnett's bid. The Board accepted the North American proposal as responsive and indicated its intention to negotiate with North American as the highest ranked responsive bidder. The Board was persuaded by North American's explanation of its failure to include specific option year pricing and failure to state that there were no applicable regulatory restrictions or instances where liquidated damages had been imposed, because there were none. The Board believed that North American had made an understandable interpretation of the Board's RFP, and that North American gained no advantage over any other bidder as the result of those omissions. Barnett filed a timely protest and formal written protest of the Board's action under Section 120.53(5), Florida Statutes (1991).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Prepaid Post-Secondary Education Expense Board rejecting the protest of BTI Services, Inc., and ordering staff to negotiate a contract with North American Financial Services, Ltd. DONE AND ENTERED in Tallahassee, Leon County, Florida, this day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-0180BID The following constitute my rulings on proposed findings of fact submitted by the parties, as required by Section 120.59(2), Florida Statutes (1991). Rulings on findings proposed by Barnett: Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Sentences 1 and 2 adopted in Finding of Fact 4. Sentence 3 rejected for the reasons stated in Finding of Fact 3. The final sentence is rejected as irrelevant. Rejected because in its prehearing stipulation Barnett challenged only North American's failure to include option year pricing and to respond to the inquiry on regulatory restrictions. See also Finding of Fact 7. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Findings of Fact 9 and 13-15. Sentences 1 and 2 adopted in Finding 14. The remainder is rejected for the reasons stated in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 10 and 16. Rejected for the reasons stated in Findings of Fact 19 and 20. Generally accepted in Finding of Fact 24. The final sentence is rejected for the reasons stated in Finding of Fact 23. Adopted in Finding of Fact 25. Adopted in Finding of Fact 26. 15 & 16. Addressed in preliminary statement. Rulings of findings proposed by the Board: 1 & 2. Adopted in Finding of Fact 1. 3. Adopted in Finding of Fact 3. 4. Adopted in Finding of Fact 1. 5. Adopted in Finding of Fact 3. 6. Adopted in Finding of Fact 4. 7 & 8. Adopted in Finding of Fact 6. 9-13. Adopted in Finding of Fact 9. 14. Adopted in Finding of Fact 11. 15. Adopted in Finding of Fact 5. 16. Adopted in Finding of Fact 4. 17 & 18. Adopted in Finding of Fact 11. 19. Adopted in Finding of Fact 13. Generally adopted in Finding of Fact 12. Adopted in Finding of Fact 13. 22 & 23. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 16. Adopted in Findings of Fact 6 and 9. Generally adopted in Findings of Fact 9 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 17. Generally adopted in Finding of Fact 17. Adopted in Finding of Fact 18. Implicit in Finding of Fact 20. Adopted in Finding of Fact 20. Adopted in Finding of Fact 19. Adopted in Findings of Fact 18, 19 and 21. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. 38-40. Adopted in Findings of Fact 10 and 24. Adopted in Finding of Fact 26. Addressed in the Conclusions of Law. Rulings on findings proposed by North American: Adopted in Finding of Fact 1. Adopted in Findings of Fact 1 and 2. Adopted in Finding of Fact 3. II.1. Adopted in Finding of Fact 4. Adopted in Finding of Fact 11. Adopted in Finding of Fact 5. Adopted in Finding of Fact 9. Generally adopted in Finding of Fact 13. Adopted in Findings of Fact 13 and 14. Adopted in Finding of Fact 13. Adopted in Findings of Fact 14 and 15. Adopted in Finding of Fact 16, although it is not clear that 2.5 millions dollars would be saved over the three-year base term of the contract. Adopted in Finding of Fact 14. Addressed in Conclusions of Law 44. Adopted in Finding of Fact 16. Implicit in Finding of Fact 13. Adopted in Finding of Fact 12. Implicit in Finding of Fact 16. Implicit in Finding of Fact 12. 17-26. Unnecessary for the reasons stated in Finding of Fact 12. Generally accepted in Findings of Fact 5 and 11. Generally accepted in Finding of Fact 10. III 1. Adopted in Findings of Fact 3, 7 Generally adopted in Finding of Fact 23. Unnecessary, covered in the prehearing stipulation. III A.1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 19. Generally adopted in Finding of Fact 18. Adopted in Finding of Fact 2. Implicit in Findings of Fact 18 and 20, when read together. Adopted in Finding of Fact 21. Adopted in Finding of Fact 21. Adopted in Finding of Fact 20. III B.1. Adopted in Finding of Fact 22. Adopted in Finding of Fact 2. Adopted in Findings of Fact 2 and 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. Adopted in Finding of Fact 23. IV 1. Adopted in Findings of Fact 10, 24 and 25. 2. Adopted in Finding of Fact 26. COPIES FURNISHED: Robert J. Winicki, Esquire Mahoney, Adams & Criser, P.A. 50 North Laura Street, Suite 3300 Jacksonville, Florida 32202 Geoffrey Smith, Esquire Blank, Rigsby & Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Paul Ezatoff, Esquire Katz, Kutter, Haigler, Alderman, Davis & Marks, P.A. 106 East College Avenue Tallahassee, Florida 32301 Mr. William W. Montjoy, Executive Director Florida Prepaid Postsecondary Education Expense Board 345 South Magnolia Drive, Suite D-13 Tallahassee, Florida 32301
The Issue The issue is whether General Electric Company (GE) engaged in an unlawful employment practice by discriminating against Petitioner, Shahla Evans (Evans), on account of sex or by retaliating against her for filing a complaint of sex discrimination.
Findings Of Fact At all times relevant to this proceeding, Shahla Evans was employed at GE's Simulation & Control Systems department in Daytona Beach, Florida. The Simulation & Control Systems department (SCSD) is part of GE's aerospace business group. Employees at SCSD are primarily engaged in the design, development and assembly of computer generated visual simulation systems and training programs and of automated ship control systems. GE and SCSD are employers within the definition relevant to this case. Evans received her master's degree in computer science from the University of Utah in 1974 and another master's degree in electrical engineering in Iran in 1970. After moving to Florida from California, Evans was hired by GE at a salary level 10 and began work at SCSD on August 16, 1982. In her previous job she had excellent reviews and had in excess of ten years of experience in engineering and two years as an instructor and teaching assistant prior to coming on board at the GE's Daytona Beach facility. Evans' technical abilities and intellect rendered her an extremely talented engineer. Although Evans was initially offered a position at SCSD as a senior engineering programmer analyst, she did not accept the job because she was afraid it was too regimental and required too much programming. Prior to informing GE of her decision, however, she was contacted and interviewed by Dr. Richard Economy, SCSD's manager of advanced engineering. Unaware of the outstanding offer until their interview, Dr. Economy offered Evans a position in research & development, which she accepted. Dr. Economy extended the job offer based on Evans' resume and his belief that she was talented and could be a contributor to the company. The Simulation & Control Systems department is divided into sections, subsections and units. During the relevant time frame, Dr. Economy was the manager of advanced engineering, a subsection of the engineering section. The advanced engineering subsection consisted of four units. Until mid-1986, Evans received good to excellent evaluations, but notations consistently showed a need for improvement in the areas of negotiating, particularly in selling a product, taking a more diplomatic approach to leadership, and integrating her work with related projects. In 1985 she was promoted to level 11 and rated as progressing upwardly in her subsection. Dr. Economy recommended Evans for a promotion to level 12 in early 1986, however that recommendation was never approved. Until mid-1986, Evans' work involved Research and Development in Data Base Generations Systems (DBGS). At times the thrust of the DBGS Research and Development was to unify the Data Base Generation Systems. At that point the Research and Development Project was called Unified Special Modeling Systems (USMS). The thrust of Evan's work always involved Research and Development on Data Base Systems. She was a leader of the Data Base Research and Development effort under Dr. Economy. In May, 1986, Dr. Kenneth Donovan became Evans'unit manager. At the time, Evans and Barry Fishman, a white male, were co-managers of the database research & development project. During the latter part of 1986, Dr. Donovan took over the project manager role for the database area and another project in the advanced engineering architectural area. Although Evans and Fishman were still considered the leaders of the database project, Dr. Donovan became the overall manager of the project and remained the functional manager of the unit to which Evans was assigned. During the 1986-87 time frame, the business needs at SCSD changed from an internal focus on projects and research to applying research to the products SCSD was producing. These changes required significant communication between Evans and Fishman and other engineers outside the database project. In June of 1987, Evans' performance was evaluated by Dr. Donovan. In this performance evaluation, Dr. Donovan addressed certain areas of Evans' performance that needed improvement in order for her and the database project to succeed. The areas noted by Dr. Donovan were Evans' ability to communicate and negotiate with people outside her project in order for them to understand the project's needs and requirements. Sometime in the latter part of 1987, Dr. Donovan proposed that Evans assume the project manager role of the database area in 1988. This proposal was made in conjunction with a career planning discussion between Dr. Donovan and Evans. In the fourth quarter of 1987, Dr. Donovan sought the assistance of Evans and Fishman in drafting the 1988 plan for the database research & development effort. As a result of meetings and discussions between Dr. Donovan, Evans and Fishman, it was apparent to Dr. Donovan that changes he had proposed for the project in 1988 were viewed by Evans and Fishman as unrealistic. Based on Dr. Donovan's perception that Evans had not made sufficient progress in the development needs he identified in the 1987 performance evaluation in terms of communication skills, willingness to negotiate, and a willingness to determine the needs of other projects, and because of Evans' handling of the interchanges with other project leaders, he did not feel she was suited for the project manager role at that time. Several memoranda were generated regarding the work necessary to finalize the 1988 plan. These memoranda, which are Petitioner's exhibits 7, 8 and 10, bear the names of Evans and Fishman and were distributed to Dr. Donovan, Dr. Economy and others. Although Fishman, and not Evans, drafted these memoranda, Evans agreed with their content and allowed them to be distributed with her name on them. Dr. Donovan responded to those memos from Evans and Fishman on February 9, 1988. On March 14, 1988, Dr. Donovan wrote Evans a memo entitled "Unsatisfactory Performance." Prior to this memo, Dr. Donovan had had several discussions with Evans regarding what Dr. Donovan felt were areas Evans needed to improve in order to build the support necessary to get the database project incorporated into GE's products. Dr. Donovan cited several events that concerned him, some of which were the three memoranda from Evans and Fishman. The March 14, 1988, memo addressed certain actions by Evans which were not constructive to the database project and were even derogatory towards the professionalism and views of other engineers. The memo indicated that Evans' behavior must change and that Dr. Donovan desired to meet with her as soon as possible to discuss the situation. Dr. Economy concurred with this memorandum. Dr. Donovan did not send a similar memo to Fishman because he was not Fishman's unit or functional manager. During that time, Fishman was in a unit managed by Randy Abidin. As Fishman's unit manager, Abidin believed the best way to address the derogatory comments and negative tone of the memos was in a direct meeting with Fishman. Although Fishman does not have a clear recollection of the memos being addressed by Abidin, he recalled a meeting with Abidin during this time frame where Abidin referred to problems between Evans and Dr. Donovan. Abidin told Fishman in a face to face meeting that the memos were unprofessional and to cease writing them. Dr. Donovan never took any action with respect to the USMS project that affected Evans only. Any changes in the direction or breadth of the project affected Barry Fishman just as much as Evans. On March 22, 1988, Evans sent a letter to the manager of SCSD's personnel department, Robert Tucker. In that letter, Evans complained about Dr. Donovan's March 14, 1988 memo. Nowhere in that letter did she complain that she believed she was a victim of gender discrimination. Mr. Tucker referred Evans' March 22, 1988, letter to Wayne Norfleet for a reply. Mr. Norfleet has been in employee relations with GE for 25 years. Through Norfleet's assistance, a meeting between Evans and Dr. Donovan was arranged in order to allow both of them the opportunity to air their grievances, concerns and criticisms of each other in a face to face session. Dr. Donovan documented the discussion process with a note and letter to Evans on May 16, 1988. Dr. Donovan was willing to continue the process; however, at Evans' request, she was transferred to a different unit in advanced engineering headed by Stanley Urbanek. This transfer took place in the summer of 1988. In June of 1988, Dr. Donovan became a consultant with the company and no longer had any supervisory responsibilities over Evans. After her transfer to Mr. Urbanek's unit in the summer of 1988, Evans continued to do the same work as before. GE has a policy that allows exempt employees such as Evans to self- nominate for open positions in the department. During 1988 and the early part of 1989, Evans applied for several posted positions. Ms. Evans was not selected for any posted position for which she applied. The persons selected for the positions were all males. The only position for which she applied that was the subject of much evidence was the position of Advanced Course Supervisor. While Evans was equally qualified on paper, Don Rollins was hired for that position because of his outgoing personality, his history of thoroughness and technical achievement, his performance as a student in the advanced courses, and his communication skills. Evans did not have a good interview for the position. No evidence was presented to show any discriminatory motive in GE's personnel selections for these positions. Evans remained in Urbanek's unit and continued to work on the USMS project until October, 1988. After Dr. Donovan's transfer, Dr. Economy selected Bob Ferguson to be project manager in the database area. Ferguson was selected for the project manager role because the USMS activity Evans had been working on was perceived by management not to be broad enough to cover all of GE's image generator business activities. Because Ferguson had image generator experience, he was selected. Because of Ferguson's concern about Evans' focus in research and development, he did not select her to work on the database project. Although Fishman was approached and asked to work part time on the project, he refused this offer. Ms. Evans claims that she was advised on two occasions by her managers to leave GE, once by Dr. Economy and then again by Mr. Urbanek. The managers who are alleged to have told Evans this deny any such statement. They both testified that leaving the company was mentioned in passing with Evans as a career option that any employee could choose if they were dissatisfied with the circumstances of their employment. Evans was openly expressing such dissatisfaction. After Dr. Donovan left the unit manager position in 1988, Dr. Economy acted as unit manager until March of 1989 when he selected Michael Nelson to fill the position. On at least two occasions, Nelson attempted to assign tasks to Evans. On both occasions, Evans told Nelson that she did not want to do the tasks. She told Nelson she was more qualified for other kinds of jobs and that she should be doing managerial type of work. She believed the tasks to be programming and she did not want to do programming. In April, 1989, Evans filed a complaint with the Florida Commission on Human Relations. In the complaint, Evans charged that projects were taken away from her and she was not being given any work, all because she was a female. From January, 1988, through September of 1989, Evans claims that she spent most of her time doing technical and professional studies and received no assignments from any GE managers. GE's aerospace business began a downturn in 1987, and by 1989, SCSD had more employees in advanced engineering than its business could accommodate. In the spring of 1989, GE identified several employees to be laid off. Other employees were transferred to different areas of the department. Evans was considered for layoff in 1989, but considering its affirmative action responsibilities, GE chose not to place Evans on lack of work status. In August, 1989, Dr. Economy told Evans that she should go see Tim Connolly because he had a job for her. Mr. Connolly was the manager of systems engineering, which is another subsection of the engineering section at SCSD. Dr. Economy encouraged Evans to take this job. Because of reductions in his subsection, Dr. Economy did not have a position for her in advanced engineering. Mr. Connolly's subsection was in charge of upgrading the software system from a microcomputer environment to a network environment in order to incorporate the database system into the product for delivery to customers by the end of the year. From discussions with Dr. Economy, Connolly was aware that there had been a relationship problem between Dr. Donovan and Evans. Connolly was not aware until told by Evans, however, that she had filed a discrimination complaint against the company. Ms. Evans claims that she made it clear to Mr. Connolly prior to accepting a position in his subsection that she would not do programming work. Prior to officially accepting a position in Connolly's subsection, Evans spoke with Mr. Urbanek, who was to be her unit manager. Although Evans claims to have informed Urbanek that she would not do any programming, Urbanek recalls that Evans said she did not want to be a programmer. Mr. Urbanek and Evans discussed the fact that essentially all of the positions in his unit involved some aspect of software engineering or programming. A programmer is an employee whose entire job consists of operating a keypunch machine. A programmer takes a design given to them by someone else and puts it into programming language. On the other hand, a software engineer is someone who designs and selects requirements for other aspects of software engineering. Part of a software engineer's tasks includes programming. Evans officially joined Connolly's subsection on September 11, 1989. Prior to her joining Connolly's subsection, Urbanek was transferred. Accordingly, Evans reported directly to Connolly after she joined the advanced database engineering unit. Upon joining the unit, Connolly gave Evans tasks to be accomplished. Ms. Evans' initial reactions was that she did not want to perform many of the tasks because they involved programming. According to Connolly, the tasks were high level systems tasks that required implementation and testing of the computer systems in order to put the systems in the product for sale to the customer. Ms. Evans felt that the tasks assigned to her constituted a demotion. She felt like she was not qualified to do the tasks and she did not understand the system. While she was capable of doing tasks involving some programming, Evans simply believed that she should not have to do any programming. Ms. Evans told Mr. Connolly that she would not and could not do the tasks he assigned her. Upon learning that Evans needed more time to understand how the system worked, Connolly agreed to give her more time, and in fact, gave her more time to understand tasks than any person that had come into his area from another area. Because of Evans' continued refusal to do the work assigned and because in several of the conversations between her and Connolly she made outbursts about the assignments and GE in general, Connolly went to see Norfleet in employee relations. Norfleet recommended that a work package be put together that involved tasks indisputably within Ms. Evans' expertise and skill level. It was decided that if Evans refused to accept the assignment, it would be explained to her that he actions left Connolly no choice but to recommend that she be terminated. After Connolly's meeting with Norfleet, Connolly assigned Evans a detailed design, implementation, validation and documentation task involving DMA manuscript files. Ms. Evans refused to do this task. These tasks were within her expertise, training and experience. Mr. Connolly told Evans that she should go home and consider the consequences of her refusal to perform the work assigned to her. When she returned the next day, she again refused to perform any task involving detailed design, implementation, validation or documentation, because she incorrectly classified the tasks as being programming. After seeking and receiving the approval of his immediate manager, Connolly notified Evans that her employment was terminated on October 6, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order determining that Shahla Evans has failed to establish that GE discriminated against her on the basis of her sex in the decisions affecting her employment. DONE and ENTERED this 23rd day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 23rd day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 91-6396 AND 91-6879 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Shahla Evans 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4&5(2); 6&7(3); 8(4); 9(5); 11(5); 12(2); 19&20(7); 24(8); 30(9); 31(10); 107(42); and 127(50). 2. Proposed findings of fact 1, 2, 13-17, 21, 23, 25, 34-36, 40- 50, 52-54, 57-68, 72, 75-89, 95, 98-104, 106, 108, 113, 115- 118, 122-126, 128-131, 136, 137, 139, 140, 142-149, 152-155, 157-160, 164, and 165 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 10, 18, 22, 27, 28, 32, 33, 37-39, 51, 55, 56, 69-71, 73, 74, 90-94, 96-both 97s, 105, 111, 112, 114, 119-121, 132-135, 138, 141, 151, and 156 are unsupported by the credible competent and substantial evidence. Proposed findings of fact 26, 29, 109, 110, 150, and 162 are irrelevant. Proposed findings of fact 161, 163, and 166-168 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, General Electric Company 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(4-6); 6-10(11-14); 11-15(15-18); 16-25(19-27); 26-30(28-31); 31-34(32-34); 35- 49(35-47); and 50-63(48-61). COPIES FURNISHED: Rick Kolodinsky Attorney at Law 1055 N. Dixie Highway, Suite 1 New Smyrna Beach, Florida 32169 Francis M. McDonald, Jr. Attorney at Law Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether the proposal Petitioner submitted in response to Respondent's Invitation to Negotiate No. 03-01/02/C was non- responsive.
Findings Of Fact Stipulated Facts In December of 2001, Petitioner timely responded to ITN Number 03-01/02/C issued by the Department. The ITN sought in part, proposals for the provision of advertising and related services in a category entitled "Spanish Language Hispanic Market Advertising." On March 21, 2002, Petitioner was notified that its proposal was deemed non-responsive for the following reason: "Financial information for Publicis USA Holdings, Inc. was not provided (SEC 4.9)." In determining Petitioner non-responsive to the ITN for failing to submit financial statements for Publicis USA Holdings, Inc., the Department assumed that Publicis, Sanchez & Levitan, LLC, was the product of a merger between Sanchez & Levitan, Inc., and Publicis USA Holdings, Inc., and thus was required under the second paragraph of Section 4.9 of the ITN to submit financial statements or federal income tax returns for pre-merger entities. Petitioner is a Delaware limited liability company authorized to do business in Florida. Petitioner was created on March 14, 2002, under the name Sanchez & Levitan, LLC. At the time of its creation, Petitioner was owned 100% by Sanchez & Levitan, Inc., a Florida corporation. On March 16, 2001, Publicis USA Holdings, Inc., a Delaware corporation, acquired a minority ownership of 49% of Petitioner. The ownership of the controlling majority interest of 51% was retained by Sanchez & Levitan, Inc. On June 18, 2001, Petitioner amended its name from Sanchez & Levitan, LLC, to its current name, Publicis Sanchez & Levitan, LLC. Sanchez & Levitan, Inc., continues to own the controlling majority interest of 51%, while Publicis USA Holdings, Inc., continues to own a minority interest of 49%. For the past several years, Petitioner's parent company, Sanchez & Levitan, Inc., a Florida corporation incorporated on October 10, 1985, was a contractor to the department providing Spanish language Hispanic market advertising and related services. Petitioner is a separate company created in 2001 and is not the product of a merger. Petitioner is a subsidiary of its parent company, Sanchez & Levitan, Inc. Because Petitioner was created in March of 2001, and its response to the ITN was submitted on December 5, 2001, it had neither certified financial statements nor federal income tax returns for the past two years. Similarly, Petitioner's parent company, Sanchez & Levitan, Inc., did not have consolidated financial statements for the past two years because Petitioner, the subsidiary, did not exist for 1999 and 2000. In response to Section 4.9 of the ITN, Petitioner submitted federal income tax returns for calendar years 1999 and 2000 for Petitioner's parent company, Sanchez & Levitan, Inc. Findings of Fact Based on the Evidence of the Record While Petitioner's parent company provided Spanish language Hispanic market advertising to the Department for the past several years, that contract was assigned to Petitioner in August 2001. The Department acknowledged that at the time Petitioner submitted its proposal to the ITN, Petitioner was performing essentially identical services in a successful and financially responsible manner. Section 5.2 of the ITN specifies that the evaluation of responses for each category of the ITN will be conducted in two phases. All responsive proposals will be reviewed in Phase I by an evaluation committee. Those proposers scoring 90% or more of the total possible points for Phase I will be invited to participate in Phase II as a finalist. Thus, this case only involves whether or not Petitioner's proposal should be evaluated in Phase I. Section 2.1 of the ITN specifies that the Department has established certain mandatory requirements which must be included as part of any proposal and that the use of the words "shall", "must", or "will" in the ITN indicates a mandatory requirement. The language of the ITN is clear in informing potential proposers that non-compliance with material requirements will have harsh consequences. Section 2.2 of the ITN provides in pertinent part: 2.2 NON-RESPONSIVE PROPOSALS, NON- RESPONSIBLE RESPONDENTS Proposals which do not meet all material requirements of this ITN or which fail to provide all required information, documents, or materials, or are conditional will be rejected as non-responsive. Material requirements of the ITN are those set forth as mandatory, or without which an adequate analysis and comparison of proposals is impossible, or those which affect the competitiveness of proposals or the cost to the State. The Lottery reserves the right to determine which proposals meet the material requirements of the ITN. The section of the ITN which is at issue in this controversy is Section 4.9 and is a material requirement. As amended,1/ it reads in pertinent part as follows: 4.9 Financial Statements Respondents and substantial subcontractors in all categories will be required to submit certified financial statements in conformity with generally accepted accounting principles for the last two years including an auditor's report for both years and any management letters that have been received, or Federal Income tax returns for the past two years if certified financial statements are unavailable. If financial statements are not yet completed for the most recently completed fiscal year, the entity must submit statements for the two (2) prior years and subsequently submit the most recently completed fiscal year statement immediately upon its issuance. If a Respondent does not have certified financial statements, or if applicable, Federal Income tax returns, as a result of a merger of other entities, each pre-merger entity must submit certified financial statements, or if applicable, Federal Income tax returns, for the two most recent years. Certified financial statements or, if applicable, Federal Income Tax returns for the Respondent that are available must be submitted with its proposal, and any that become available during the procurement process must be submitted immediately upon issuance. Certified financial statements must be the result of an audit of the entity's records in accordance with generally accepted auditing standards by a certified public accountant (CPA). The financial statements must include balance sheets, income statements, statements of cash flows, statements of retained earnings, and notes to the financial statements for both years. Respondents or substantial subcontractors who are CMBE's may provide for the two (2) years most recently completed, the information provided to become a certified minority business enterprise (CMBE) including the supporting documentation used to arrive at the financial information. If the CMBE has not been a CMBE for two (2) years, it must provide the information submitted with its current CMBE application and similar information for the preceding year, as well as any other documentation which may substantiate the CMBE's financial responsibility. If a Respondent submits a consolidated financial statement of its parent corporation, the parent corporation must serve as financial guarantor of Respondent. Parent corporations that serve as financial guarantors of the subsidiary firms shall be held accountable for all terms and conditions of the ITN and resulting Contract and shall execute the Contract as guarantor. The Lottery shall hold all firms jointly and severally responsible for carrying out all activities required by the Contract. * * * Financial statements must be submitted with Respondents' proposals. There is nothing in the record to indicate that Petitioner challenged the terms of Section 4.9 of the ITN as being too restrictive at a time it could have done so. David Faulkenberry, Director of Finance and Budget for the Department, was responsible for determining whether or not proposals were in compliance with Section 4.9 of the ITN. He analyzed each submittal received to determine whether the proposer achieved compliance through any of the methods set forth in Section 4.9 of the ITN. When initially reviewing Petitioner's proposal, he assumed that Petitioner had been the product of a merger and applied the language of the second paragraph of Section 4.9. Petitioner was found to be non-responsive because neither the certified financial statements or federal income tax returns of pre-merger entities had been submitted. This conclusion resulted in the Department's posting of the Notice of Responsiveness and Responsibility that Petitioner was non- responsive because, "financial information for Publicis USA Holdings, Inc. was not provided (Sec.4.9)". After the posting of the Notice of Responsiveness and Responsibility, Mr. Faulkenberry became aware that Petitioner was not the product of a merger. As a result, Mr. Faulkenberry then reviewed the financial information submitted by Petitioner to determine whether it was responsive to Section 4.9. He reviewed the submission of Petitioner in light of each avenue of compliance provided in Section 4.9 of the ITN and determined that the proposal was non-responsive: Q As a result of that understanding, did you go back and review the financial information submitted by Publicis to determine whether indeed it was responsive to Section 4.9? A Yes. I looked at what they submitted and examined each of the avenues in Section 4.9 that a respondent could take. And, again, they did not submit--if you look at route 1, the respondent could submit certified financial statements, or, if they--those aren't available, federal income tax returns. They did not do that. So they were not--they did not pass that test. The next test was the merger outlet. We now understand that it was not a merger, so that outlet was closed. We knew they weren't a CMBE contractor respondent, so that paragraph did not apply. And then the last outlet was a respondent could have their parent submit consolidated financial statements. We did not receive consolidated financial statements of the parent, so that outlet or avenue was not met. And based on those outlets they, again, were found non-responsive. The information submitted by Petitioner in response to Section 4.9 of the ITN did not meet any of the avenues specified in that section. The Department applied Section 4.9 of the ITN to all proposers in the same manner as it did to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of the Lottery enter a final order dismissing Petitioner's protest. DONE AND ENTERED this 18th day of October, 2002, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 2002.
Findings Of Fact Introduction On February 26, 1988 respondent, Department of Health and Rehabilitative Services (HRS), through its District IX office, advertised a Request for Proposal (RFP) in the Florida Administrative Weekly inviting qualified and interested organizations and vendors to submit proposals for the designation of an Area Agency on Aging in District IX. The designation would run from May 2, 1988 through the end of the calendar year but the successful vendor could be expected to be redesignated in subsequent years. According to the advertisement: Proposals will be received by District IX until 12:00 p.m., EST, March 24, 1988, for the designation of an Area Agency on Aging authorized under Title III of the Older Americans Act as amended, within the jurisdictional areas of Martin, St. Lucie, Indian River, Okeechobee and Palm Beach Counties. * * * Contract awards will be based on approximately 75 percent federal funds, 11 percent general revenue and 14 percent local matching funds. * * * Written inquiries concerning the Request for Proposals will be received until 4:00 p.m., EST, March 11, 1988. A Bidders Conference, to review the proposed format and contract award process, will be held on March 4, 1988. * * * Under this proposal, HRS intended to award the contract to the best qualified firm since price proposals were not being submitted. To this extent, the proceeding differs from the typical state project where the contract is ordinarily awarded to the lowest and most responsive bidder. In response to the above RFP, petitioner, Banyan Area Agency on Aging, Inc. (Banyan), timely submitted its proposal. As it turned out, Banyan was the only organization that filed a bid. After being reviewed by a seven person evaluation committee, the proposal was given a score of 480 out of a possible 1525 and a recommendation that it be rejected. This recommendation was later adopted by the District Administrator. This decision was conveyed to petitioner by letter dated April 4, 1988. That prompted a request for hearing by petitioner to challenge the preliminary agency action. As grounds for contesting the action, petitioner contended the agency was arbitrary and capricious in rejecting its proposal. If its preliminary action is sustained, HRS intends to seek authority from the Department of General Services to negotiate a noncompetitive bid. Under this process, HRS desires to designate, after a screening process, one person from each of the five counties to serve on the board of a corporation to be established to run the program. Thus, HRS does not intend to readvertise the RFP and seek competitive proposals a second time. The Contract The contract in question is funded principally through federal grant dollars under the federal Older Americans Act of 1965, as amended. The monies, commonly known as Title III funds, are used to provide programs for senior citizens. Respondent is the State agency charged with the responsibility of administering the program funds. To receive federal funds, HRS was required to prepare a state plan and submit it to the U.S. Commissioner on Aging for his approval. A part of that plan calls for HRS, or District IX in this case, to designate an area agency on aging (AAA) to plan and administer a comprehensive and coordinated system of services for the aging in the five county area of Palm Beach, Okeechobee, Indian River, Martin and S. Lucie Counties. Among other things, the local AAA must develop an area plan for supportive services, senior centers and nutrition services in the five county area. The AAA will receive $300,000 to cover administrative costs in administering the program and will be in charge of dispensing several million dollars annually in grant dollars for aging programs. District IX had previously designated Gulfstream Area Agency on Aging (Gulfstream) as its AAA. However, due to a combination of faulty management, lack of supervision and other factors, Gulfstream was designated as AAA in May, 1987. Since then, HRS has received several waivers from the Commissioner on Aging but now faces a mandate to designate a District IX AAA by October 1, 1988 or lose its federal funding. To avoid a recurrence of the Gulfstream problem, the HRS District IX contract manager, and several other district personnel, prepared a comprehensive RFP to be issued in conjunction with the selection of a new AAA designee. After a draft was assembled at the local level, the RFP was forwarded to HRS' Tallahassee office where further refinements were made. The final product has been received in evidence as petitioner's exhibit 9 and respondent's exhibit 11. According to the District IX contract manager, the RFP is the "state of the art" in terms of what an AAA ought to be. The RFP is a voluminous document, weighing some 6 1/2 pounds according to Banyan, and requires a great deal of information and detail regarding the AAA organization, procedures, and program plans and goals to satisfy the federal act. The RFP was given to interested organizations, including Banyan, around March 1, 1988. This gave vendors approximately three and one-half weeks to prepare and submit a proposal. Only Banyan was interested in being the designee and thus was the only bidder on the job. Its proposal contained 135 pages. Evaluation Process HRS created a seven person evaluation committee to review the proposals. The committee included five HRS employees and two non-HRS members. All members were given Banyan's proposal prior to the selection date. On March 28, 1988 the committee met and each member independently evaluated Banyan's proposal. Although a top score of 1525 was theoretically possible, Banyan received an average overall score from each There of 480, or a rating of approximately thirty-one and one half percent. After the scores were tallied, Banyan was given one hour to orally explain its proposal before the full committee. At the conclusion of the presentation, the committee voted unanimously to reject the proposal. The reasons for rejecting Banyan's proposal are set forth in respondent's exhibit 2. The three primary deficiencies, as broadly stated, were the "proposal did not develop ideas fully enough to demonstrate a clear understanding of the needs and conditions of the District IX 60+ population," the proposal "did not demonstrate a clear understanding of the role and responsibility of area agency on aging nor was there evidence of administrative capability,' and (c) the proposal "did not offer assurance that current board members fully understood their position as the governing board." At hearing, several members of the committee amplified on the above three shortcomings and pointed out specific deficiencies in Banyan's proposal which led them to reject the proposal. For example, the proposal failed to focus on areas outside of Palm Beach County, did not contain a proposed budget, lacked minority representation, failed to fully identify goals and objectives, did not include a detailed description of the fair hearing process and the make- up and procedure of the advisory council and omitted the corporation's bylaws. Given these deficiencies, and others, HRS was justified in rejecting the bid. Petitioner's Case Petitioner contends that three and one-half weeks was too short a time to prepare a responsible proposal to the RFP. In this regard, HRS acknowledged it was a lengthy RFP, but it considered the time adequate for a qualified and experienced organization, particularly since much of the RFP was reference material. Banyan also pointed out that its board of directors was made up of highly qualified people with impressive work experience. While this is true, as evidenced by testimony at hearing, none were experienced in managing a federally funded program of this magnitude. Banyan further stated that, after the proposal was filed, it could have corrected or expanded on many of its abbreviated responses. However, once the proposal was filed, such changes were impermissible. Finally, Banyan conceded that while many of its responses were brief and nonspecific, this was because Banyan intended to rely upon HRS for technical assistance to implement the programs. However, the RFP called for specific, detailed responses so that HRS could properly evaluate the proposal. Allegations of Bias or Impropriety There is no evidence that the committee acted unfairly or improperly during the evaluation process or that any eber was personally biased towards Banyan. There is also no evidence that HRS rejected the bid so that it could "control" the management of the program.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the protest filed by petitioner be DENIED and that a Final Order be entered confirming the rejection of petitioner's proposal. DONE AND ORDERED this 20th day of June, 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 20th day of June, 1988. COPIES FURNISHED: Mr. Colman B. Stein 100 Worth Avenue Apartment 416 Palm Beach, Florida 33480 Laurel D. Hopper, Esquire 111 Georgia Avenue Third Floor West Palm Beach, Florida 33401 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner and a business associate formed a partnership for the purpose of publishing an administrative reporter. In pursuit of that purpose the Petitioner's partner, in October, 1978, requested from the Division of Personnel, Department of Administration, (hereinafter referred to as "Respondent") copies of several Career Service Commission orders. On October 16, 1978, Petitioner's partner received a packet from Respondent containing the requested orders. The orders totaled 183 pages for which Petitioner and his partner were charged fifty cents a page. Petitioner paid Respondent $91.50 for the copies. The charge of fifty cents a page was assessed by Respondent pursuant to its Rule 22-1.115(1), Florida Administrative Code. It was undisputed at the final hearing that the actual cost of the materials, rental on the copying machine, and the cost to Respondent of its service agreement on the copying machine was less than two cents per page copied. One of Respondent's employees expended time in pulling the requested orders from the files and copying the orders pursuant to the request. The employee did not record nor clearly remember how much time she spent responding to the request for copies. On the evidence presented it is reasonable to conclude that the employee expended one hour of time at the rate of $6.95 per hour, and two hours of time at the rate of $4.63 per hour. Petitioner paid the $91.50 charqe by warrant. Respondent's fiscal officer testified that he did not have at head the cost to Respondent of processing a warrant but he roughtly estimated that cost to be $5.00. The cost items set forth in paragraphs 3, 4, and 5 above are the only elements of the cost of copying for which Petitioner or Respondent could establish a firm dollar value. These elements total $24.87 for the 183 copies. Respondent charged Petitioner $91.50 for the 183 copies. The Respondent presented evidence showing that there are many indirect, "incalculable" costs attributable to the production of copies of public documents pursuant to a request from a member of the public. As examples of these "incalculable" costs Respondent referred to state auditing procedures; budgeting procedures; administrative hearings, such as the instant proceeding; bookkeeping required by the Comptroller's office and Treasurer's office; the cost of obtaining legal opinions; the cost of space for the copying machine; and the cost of electricity for the copying machine. Respondent's witnesses testified that these costs are "incalculable" and therefore have to be estimated. No evidence was presented which would establish that but for the necessity of providing copies to the public these "incalculable" costs would not be incurred. On the contrary, the evidence indicated that these "incalculable" costs would, in large part, be incurred by the agency in the pursuit of their responsibilities without regard to providing the public copies of public records. Respondent's evidence established that, with regard to the challenged rule, these "incalculable" costs were estimated by the Secretary of the Department of Administration and several of his division directors, including the State Budget Director and the State Personnel Director. No evidence was presented to show that these persons had the benefit of any formal or informal estimate or study of these "incalculable" costs. No evidence was presented to establish that these persons made an attempt, beyond their discussion of the matter at a meeting, to accurately and finitely estimate these "incalculable" costs. Other than the fact that these persons occupied senior management positions in State government, no evidence was presented which would establish their expertise or experience in estimating the "incalculable" costs appurtenant to copying public records pursuant to requests from members of the public. No evidence was presented which would establish that the price of fifty cents for the first copy of each page and twenty cents for each additional copy of each page, set forth in Rule 22-1.115(1), Florida Administrative Code, is based on any accounting study or other detailed inquiry into the cost of providing, to the public, copies of public records. Those elements of that price for which known dollar amounts have been established include the costs of the machine, which total less than two cents per copy; the cost of labor involved to produce the copies, which in this case has been established to be 8.86 cents per copy; and the cost of processing the payment warrant, which in this case has been established as 2.7 cents per copy. These identifiable costs with regard to the instant case total approximately 13.6 cents per copy. Respondent argues that the other 36.4 cents charged per copy are accounted for by the above-referenced "incalculable" costs which have been estimated without benefit of any studies as heretofore mentioned.
Findings Of Fact Based upon all of the evidence, the following findings of fact have been determined: These cases involve allegations of misconduct by respondents, John E. Phillips, Jr. (Phillips) and Bruce M. Walker (Walker), both registered as associated persons with Aragon Financial Services, Inc. (Aragon) by petitioner, Department of Banking and Finance, Division of Securities and Investor Protection (Division). The Division alleges that in May 1988 respondents induced a consumer, Jane Hubbard, to make an "investment" of $50,000 in their business by making untrue statements or omitting material facts and then failed to account to her for the monies. For these reasons, the Division also proposes to deny an application by Phillips for registration as an associated person with a new firm. It is further alleged that Walker violated two statutes and a Division rule by failing to disclose certain adverse information on his 1990 application for registration as an associated person with Aragon, and by not timely amending his application to make such disclosure. Finally, it is charged that during the course of the Division's investigation in October 1991, Walker made a false statement to the Division. After the charging document was issued on February 4, 1994, respondents timely requested a hearing. In 1986, respondents formed a Subchapter S corporation known as Phillips, Walker & Associates, Inc. (PWA). Each owned 50 percent of the stock and was a director in the corporation. In addition, Walker served as president while Phillips served as vice president. The business was created for the purpose of selling insurance products. Respondents had previously worked together as agents for Prudential Insurance Company (Prudential). Respondents were promised financial help from Mutual of New York (MONY), an insurance company, in starting up their new insurance firm. When MONY did not provide the promised capital, and Walker saw financial "difficulties looming," he contacted a former insurance client, Jane Hubbard, a Gulf Breeze realtor, whose husband had recently died, to see if she would be interested in providing capital to the firm. The two had previously met when Walker was associated with Prudential, and he had assisted her in collecting more than $400,000 in proceeds from her deceased husband's life insurance policies. Walker also sold Hubbard a prepaid $50,000 whole life insurance policy. Walker talked to Hubbard by telephone on three occasions in late April and early May 1988 ostensibly about arranging a meeting to discuss the money. Hubbard did not recall these conversations. In any event, a meeting was arranged at Walker's office on the morning of May 4, 1988. At the meeting, which lasted more than an hour, Walker did virtually all of the talking while Phillips was "in and out" while attending to other business. This was Phillips' first and only meeting with Hubbard. The facts surrounding the substance of the conversations at the meeting are in sharp dispute. Hubbard could not recall Phillips saying anything at the meeting, but she did recall Walker representing that PWA was in "solid" financial condition and that by investing $50,000, she could make "some real money." She understood that the money was to be used to expand the business and viewed the transaction as an investment. She was also offered the opportunity to purchase 20 percent or 25 percent of PWA's stock later on, an offer that never materialized. Instead of characterizing the transaction as an investment, both respondents view the transaction as a loan. Walker says he told Hubbard that while he was "positive" or upbeat as to the firm's future, he saw difficulties ahead for the firm since a loan application with a bank had been denied, and PWA needed cash to work through this difficult period. Phillips confirmed that while he was in the meeting, Walker stressed the fact that there was some risk in Hubbard providing capital for the firm, that the firm was experiencing some "cash-flow" problems, and that the money was needed to sustain the business until revenues were increased. This testimony is accepted as being credible. Walker agrees, however, that he spoke in "generalities" when describing PWA's financial condition, and that he described his personal financial situation in "only a general sense." Phillips was not asked for, nor did he volunteer, details on his own financial condition. In actuality, Walker described his financial condition in 1988 as "fair but deteriorating," while Phillips said his condition was "good" early on but "deteriorating" as the year progressed. Copies of PWA's financial statements were not requested by Hubbard nor volunteered by respondents. Although Hubbard did not seek collateral for her money, Walker advised her a Subchapter S corporation had no assets of value, but he offered her the then highest legal rate of interest he could give, 18 percent, and for both he and Phillips to personally co-sign on a promissory note. Hubbard accepted this offer and, later on that day, wrote a check for $50,000 to PWA and delivered it to Walker. On the check, she noted it was for a "1 yr loan Int. only mo. 18 percent." She says she used the word "loan" instead of "investment" due to a lack of space on the face of the check. According to the offer presented by Walker, PWA agreed to pay Hubbard the entire principal amount ($50,000) at the end of one year, or on May 1, 1989, and beginning on June 1, 1988, to pay $750 in interest each month until the principal was due. Thereafter, on May 8, 1988, a promissory note reflecting these terms was executed by both Walker and Phillips and was given to Hubbard. In summarizing the transaction, it is fair to say that while Hubbard was not a securities customer of PWA or respondents, she made a commitment of money that was principally induced by respondents' representation that an economic benefit would be derived from her commitment. The money obtained from Hubbard was used by PWA to pay salaries, utilities, rent and other office expenses. According to Phillips, it was used up within 4 to 6 months. By the end of the year, Phillips left the firm to find other employment because the business could not sustain both he and Walker. Although he did not make any formal arrangement concerning the disposition of his interest in the corporation, Phillips says he basically "turned everything over to (Walker) . . . and went and looked for a job." In the words of Walker, at that time the company was just "milling around." Walker, however, stayed on trying to make a go of it. Hubbard received $750 each month for the remainder of 1988 as provided by the note. In early 1989, the payments began to "slow," and they continued in that fashion until mid-1989. At that time, Walker told her he could not repay the principal when it was due. Consequently, Hubbard agreed to allow respondents to execute a second promissory note calling for another year of interest only payments with the principal due on July 1, 1990. The new note was executed on July 1, 1989. The interest payments stopped within a few months and Hubbard received no further repayment of her loan. She reported the interest payments as "interest income" on her income tax returns. In January 1990, Phillips filed a chapter 7 bankruptcy proceeding. Hubbard did not file a claim in that proceeding because Walker had told her that he had assumed the assets and liabilities of PWA when it was dissolved and that he would personally see that she was paid in full. Thereafter, Phillips' personal obligation to Hubbard was discharged by the bankruptcy court. In May 1990, PWA ceased doing business. In August 1992, Walker filed for bankruptcy. In December 1992, Hubbard filed a civil action against PWA and Walker (but not Phillips) seeking to recover her $50,000. Because of the pending bankruptcy filing, and PWA's lack of assets, her suit was unsuccessful, and in May 1993, Walker's personal obligation to Hubbard was discharged by the bankruptcy court. To date, Hubbard has never been repaid her principal by either respondent. The failure to repay the money was due wholly to PWA's steadily deteriorating financial condition and concomitant lack of resources rather than a conscious effort by respondents to defraud Hubbard of her money. Indeed, all of the money was used for its intended purpose, namely, to provide an infusion of capital for PWA until revenues hopefully increased. Both respondents are charged with failing to make adequate disclosures regarding the true financial condition of PWA when they obtained the money. Although the meeting occurred some six years before the hearing, and Hubbard could not recall many of the details, she did not deny respondents' assertions that Walker told her that the loan was "risky," a bank had turned down PWA for a loan, and cash was needed since MONY had not followed through on its promise. At the same time, it is undisputed that Hubbard did not request a copy of PWA's financial statements. Accordingly, it is found that respondents made reasonably adequate disclosures regarding the condition of PWA, and they did not make untrue statements or omit material facts in that respect. Respondents are also charged with failing to disclose other material financial facts to Hubbard while seeking her money. Since these facts pertain to personal debts incurred by Walker during a nine-year period prior to 1988, knowledge of such facts cannot be imputed to Phillips, and he cannot be held accountable for this omission. Two such debts involved Sandra Ray, a friend of Walker's former wife, from whom Walker borrowed $5,000 in 1979 or 1980 to purchase a sailboat, and another $10,000 in 1981 or 1982. Except for $2,000 or $3,000 repaid on the first loan, the balance owed remains unpaid. As to the second loan, Walker approached Ray to offer her an opportunity to make a "tax- free investment" of $10,000. As it turned out, the monies were used by Walker to pay off outstanding federal taxes owed by he and his wife. This loan remains unpaid. It was also established that Walker obtained $25,000 from the cash value of his then sister-in-law's whole life insurance policy in December 1987. The policy had been sold to her by Walker, and as such, she was a former customer. The sister-in-law, Gail Ohler, had been widowed in 1982 when her husband, a Marine, was killed in Beirut, Lebanon. Walker claims he had Ohler's consent to obtain the money. Ohler denies this assertion and says she signed a blank form believing it was merely a credit recommendation for Walker, but that later a check was sent by the insurance company to her sister, who was then Walker's wife. In any event, Ohler later filed a civil action in January 1992 against Walker and MONY seeking to recover her money on the basis of fraud. A judgment was issued against Walker in Ohler's favor for the amount borrowed plus interest. MONY then agreed to repay the principal amount owed in return for Ohler subrogating to MONY her claim against Walker, its former agent. None of these transactions were reported to Hubbard during the meeting on May 8, 1988. Whether such personal information dating back some nine years is normally disclosed to an investor as a matter of practice or custom when soliciting an investment, or is required to be disclosed under agency policy, is not of record. According to Hubbard, had she known of these matters, it would have affected her decision to give Walker the money. During the course of the Division's investigation of this matter, the Division requested by letter dated October 4, 1991, that Walker provide the following information: A list of all customers in which you have directly or on behalf of a business have entered into loan agreements, promissory notes or trust agreements from January 1, 1987 to present. In response to this inquiry, Walker listed only the Hubbard transaction. At the end of his response, Walker noted that he had "tried to be as complete as possible, based upon your letter and our subsequent telephone conversation," and if any further information was required, to "please call and it will be provided." Since Ray was not a customer, and her loans occurred prior to 1987, there was no need for Walker to disclose the two Ray transactions. As to Ohler, she was a former customer, but Walker did not enter into a formal agreement with her, and thus disclosure was not required under the terms of the Division's inquiry. Even if it was required, there was no evidence to establish that such nondisclosure was intentional, or that Walker intended to deceive the Division. Since October 25, 1993, Phillips has had an application pending with the Division for registration as an associated person with Meeder Advisory Services, Inc. Based on the alleged misconduct associated with the Hubbard transaction, the Division proposes to deny this application. Since Phillips has not been found to have made misrepresentations in procuring the money from Hubbard, and the money was not repaid because of a business failure and personal bankruptcy (but not fraud), there is no basis upon which to deny his new application. In 1990, Walker filed an application (Form U-4) to become an associated person with Aragon. This application was later approved. According to Division Rule 3E-600.010(1)(a), Florida Administrative Code, an applicant or registrant is required to notify the Division within thirty days after any charges are filed against the applicant or registrant which pertain, either directly or indirectly, to his activities as a registrant or "any other activity in which he was involved where a breach of a fiduciary trust is alleged." It may be fairly inferred that information of this nature must be disclosed on the initial application. When such events occur after an application has been filed, a registrant (or applicant) notifies the Division by filing an amended Form U-4. On June 8, 1993, and presumably at the Division's request, Walker filed an amended Form U-4 to reflect that (a) he had sought bankruptcy protection in August 1992, (b) a civil action was filed against him by Jane Hubbard in August 1992, (c) another civil action was filed against him by Jane Hubbard's son, Van Hubbard, in September 1991, (d) a third civil action was filed against him by Gail Ohler in January 1992, and (e) in 1987 the Internal Revenue Service had placed a lien on his house and garnished his family's wages for failing to pay income taxes. When the original Form U-4 was filed in 1990, Hubbard, her son and Ohler had not yet filed suit against Walker, and no bankruptcy proceeding had been filed. Therefore, those items could not have been disclosed on the original form. As to the IRS lien, there is no evidence that it involved an activity where "a breach of a fiduciary trust is alleged" as required by the rule. Therefore, there was no need to make such a disclosure on the application. As to the amended Form U-4, it was clearly not filed within thirty days after the reported events occurred. Even so, none of the transactions pertained to his registration with Aragon, and thus they could not relate, directly or indirectly, to Walker's activities as a registrant. As to the remaining items, there is no proof concerning the nature of Van Hubbard's suit and whether it falls within the perameters of the rule, and the personal bankruptcy filing is not identified in the rule as an item requiring disclosure. The Hubbard and Ohler lawsuits arguably represent "civil . . . charges filed against him . . . where a breach of fiduciary trust is alleged," and thus they should have disclosed in a timely fashion. There is no evidence, however, that Walker intentionally violated the rule. The Division commenced its investigation of respondents in late 1991 after Hubbard had lodged a complaint seeking assistance in collecting her money. Although the adminstrative complaint was not issued until February 4, 1994, or more than two years later, there was no showing that the agency violated any procedural time limitation during the investigative phase, or that respondents were otherwise seriously prejudiced by this delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order dismissing all charges against John E. Phillips, Jr. and approving his application for registration as an associated person with Meeder Advisory Services, Inc., and that Bruce M. Walker be found guilty of failing to timely update his Form U-4 in two respects for which his registration should be suspended for thirty days. DONE AND ENTERED this 13th day of September, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 13th day of September, 1994. APPENDIX TO RECOMMENDED ORDER Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-6. Partially accepted in finding of fact 6. 7-16. Partially accepted in finding of fact 14. 17-18. Partially accepted in finding of fact 3. 19. Partially accepted in finding of fact 5. 20. Partially accepted in finding of fact 7. 21. Partially accepted in finding of fact 6. Partially accepted in findings of fact 7 and 8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 11. 25-26. Partially accepted in finding of fact 12. 27. Rejected as being contrary to the more persuasive and credible evidence or irrelevant. 28-29. Partially accepted in finding of fact 14. Partially accepted in finding of fact 5. Partially accepted in finding of fact 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 15. Respondent (Phillips): 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 16. 3. Partially accepted in finding of fact 1. 4-7. Partially accepted in finding of fact 2. 8-10. Partially accepted in finding of fact 4. 11. Partially accepted in finding of fact 3. 12-15. Partially accepted in finding of fact 4. 16. Partially accepted in finding of fact 5. Partially accepted in findings of fact 5 and 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 8. Partially accepted in finding of fact 6. 21-22. Rejected as being unnecessary. 23-24. Partially accepted in finding of fact 8. Partially accepted in finding of fact 6. Partially accepted in finding of fact 7. Partially accepted in finding of fact 6. 28-29. Partially accepted in finding of fact 7. Rejected as being unnecessary. Partially accepted in finding of fact 7. 32-36. Rejected as being unnecessary. Partially accepted in finding of fact 5. Partially accepted in finding of fact 10. Partially accepted in finding of fact 8. Partially accepted in finding of fact 10. Partially accepted in finding of fact 7. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. 44-45. Partially accepted in finding of fact 10. 46. Rejected as being unnecessary. 47-48. Partially accepted in finding of fact 9. Partially accepted in finding of fact 11. Partially accepted in finding of fact 18. Rejected as being unnecessary. 52-55. Partially accepted in finding of fact 13. 56-73. Rejected as being unnecessary. 74-75. Partially accepted in finding of fact 14. Partially accepted in finding of fact 16. Rejected as being being contrary to the evidence. Respondent (Walker): 1-77. These findings are identical to those submitted by Phillips and the same rulings are hereby made. Partially accepted in finding of fact 6. Rejected as being irrelevant. Partially accepted in finding of fact 8. Partially accepted in finding of fact 6. 82-83. Partially accepted in finding of fact 17. 84. Rejected as being irrelevant. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, cumulative, not supported by the evidence, a conclusion of law, or subordinate. COPIES FURNISHED: Honorable Gerald Lewis, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 William G. Reeves, Esquire General Counsel Department of Banking and Finance The Capitol, Room 1302 Tallahassee, FL 32399-0350 Margaret S. Karniewicz, Esquire Suite 1302, The Capitol Tallahassee, FL 32399-0350 J. Lofton Westmoreland, Esquire Post Office Box 1792 Pensacola, FL 32598-1792 Paul R. Miller, Esquire 201 East Government Street Pensacola, FL 32501
The Issue Whether the Respondent discriminated against the Petitioner for exercising her rights under Sections 760.01-760.011, Florida Statutes (2001), and, if so, the appropriate remedy.
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: Miami-Dade Community College is an employer within the meaning of the Florida Civil Rights Act, Sections 760.01- 760.011, Florida Statutes (2000). General Information In October 1998, Ms. Rodriguez was hired as Technical/Classified Staff at the Consolidated College Warehouse ("Warehouse") maintained by Miami-Dade Community College. At the times material to this proceeding, the main section of the Warehouse served as a storage facility for furniture and equipment that was no longer being used on the various campuses of Miami-Dade Community College. In another section of the Warehouse, called the "surge" section, furniture and equipment were stored temporarily, while portions of the campuses were undergoing renovations. Two employees were responsible for doing the manual labor in the Warehouse, which involved collecting furniture and equipment from the campuses, storing them in the Warehouse, and retrieving them when necessary. A third section of the Warehouse was devoted to collecting used computers that were being replaced on the various campuses of Miami-Dade Community College. There were four employees in this section of the Warehouse, including the head of the section, Maggie Zilliner. The old computers were collected from the campuses and logged into the property control system. The computers were sorted into those that worked, those that did not work but could be repaired, and those that could not be repaired. Two of the four employees were responsible for doing the computer repairs. The Warehouse also served as the site for storing records generated on the various campuses of Miami-Dade Community College. A large part of the work in this section consisted of maintaining a computer record containing the identification and location of the records stored in the facility. In addition, records were retrieved and provided to the campuses as requested, and documents were destroyed in accordance with state regulations. Frank Meistrell, who is now retired, was the Risk Manager for Miami-Dade Community College and was in charge of setting up and managing the Warehouse. He reported to Will Bailey, who was at the time the Director of the Budget for Miami-Dade Community College. The employees working in the Warehouse were, at the times relevant to this proceeding, part- time employees of Miami-Dade Community College with the exception of James Roof, who held a full-time position as the supervisor of operations for the Warehouse. Mr. Meistrell was Mr. Roof's direct supervisor, and he had recommended that Mr. Roof be promoted to the supervisor's position at the Warehouse. Mr. Meistrell and Mr. Roof had both worked for Miami-Dade Community College for many years, and, at one time, their offices were close to one another. The relationship between Mr. Meistrell and Mr. Roof was, however, strictly a business relationship; Mr. Meistrell did not know Mr. Roof socially and never interacted with Mr. Roof outside of the office. Mr. Meistrell may have gone to lunch with Mr. Roof one or two times over the years they worked together, and Mr. Meistrell may, on occasion, have shared a sandwich with Mr. Roof and other Warehouse staff. Ms. Rodriguez was initially hired in October 1998 as a part-time employee to work in general warehouse operations, when the Warehouse was just getting established. Ms. Rodriguez's only job experience prior to being hired to work at the Warehouse was as a leasing agent for an apartment building, a position she occupied from 1990 to 1999 and which involved some clerical duties. Once the Warehouse was somewhat organized, Ms. Rodriguez worked as a technician in the computer section, where she inventoried computers coming into the Warehouse and removed the software from the computers; Maggie Zilliner was her immediate supervisor in the computer section. In the fall of 1999, Ms. Rodriguez was asked to work with other Warehouse employees, under the supervision of Mr. Meistrell, to organize the layout of the records section of the Warehouse. After the records section became operational, and at the times material to this proceeding, Ms. Rodriguez worked in that section of the Warehouse. Mr. Roof was her immediate supervisor. Mr. Meistrell developed and distributed to the campuses a manual for handling records that was based on the state's record retention requirements. He obtained standardized boxes for the storage of records, and he developed a form to be used through Miami-Dade Community College to record the contents of each box. Personnel on the various campuses packed their records in the boxes and completed the form recording the contents of each of the boxes. One copy of the form was retained, one copy was put in each box, and one copy was taped to the top of the box. Warehouse employees collected the boxes from the campuses and delivered them to the Warehouse. The boxes were stacked on pallets, and the pallets were stored on racks in the Warehouse. A Miami-Dade Community College faculty member, Sally Musay, wrote a program for a database to keep track of the boxes of records stored in the warehouse. The program was written in English, and Ms. Rodriguez worked with the faculty member developing the program, which required entry of, among other items, the names of the Miami-Dade Community College employees whose records were stored in the Warehouse, the year in which each record was to be destroyed, and the location of the records in the Warehouse. In March 1999, Olga Mejia Morales ("Ms. Morales") was hired as a part-time employee in the Warehouse. Ms. Morales began working for Miami-Dade Community College in April 1996 as a student assistant in the Bursar's office at Miami-Dade Community College's north campus. Her duties included typing, filing, and answering the phone. In the spring of 1997, Ms. Morales moved to the property control section at Miami-Dade Community College's north campus, where she continued to work as a student assistant. Her duties in this position included filing, inputting data into the computer, typing, and answering the telephone. Ms. Morales worked at this position for two years before applying for the part-time position in the Warehouse. During the time she worked as a student assistant, Ms. Morales was attending Miami-Dade Community College, studying business software applications. When Ms. Morales came to work in the records section of the Warehouse, she was very familiar with computers and with various types of business software, such as Excel, Access, Power Point, and Microsoft Word. Ms. Rodriguez introduced Ms. Morales to the computer program developed by Ms. Musay to inventory the boxes of records sent from the various campuses to the Warehouse, although Ms. Morales was familiar with the type of program because it was a variation of the Access program. Because of her familiarity with the type of program used to keep track of the records, Ms. Morales was able to suggest to Ms. Musay some ways in which the program could be improved. Both Ms. Rodriguez and Ms. Morales input data into the computer regarding the records, although Ms. Morales was more proficient in using computers than Ms. Rodriguez as a result of her studies in business software applications. When requests for records were received from Miami- Dade Community College campuses, the location of the boxes of files to be retrieved would be obtained from the computer program, and either Ms. Rodriguez or Ms. Morales or another employee of the Warehouse would retrieve the boxes. Ms. Rodriguez was trained in the operation of a forklift and was certified to operate one. Ms. Rodriguez used a forklift to retrieve pallets on which the boxes of records were stored when the pallets were stored on one of the higher storage racks. Ms. Rodriguez also used a pallet jack to move pallets of boxes around the warehouse, and she would pick up and move individual boxes of records, which weighed 40 to 50 pounds. Ms. Morales was not an employee at the Warehouse when the forklift training was offered, and she did not know how to operate a forklift. She did, however, know how to use a pallet jack, and she used one routinely to move pallets of boxes around the warehouse. When pallets were stored on the second or third level, she often requested that Rafael Rodriguez, an employee who routinely operated a forklift in the Warehouse, retrieve pallets of records for her. Both Ms. Morales and Ms. Rodriguez prepared the boxes for delivery to the office requesting them. Before Ms. Morales began working in the records section, when the records storage and retrieval system was first implemented, Ms. Rodriguez would load boxes of records in her Jeep Cherokee and deliver them herself to the person requesting the files. Once the records section was better organized, a mail service picked up the boxes and delivered them to the persons requesting the records, and the mail service also returned the boxes of records to the Warehouse. In addition to her duties involving records storage and retrieval, Ms. Morales did typing and general office work for Ms. Zilliner and Mr. Roof, including answering the telephone. Ms. Rodriguez is fluent in both English and Spanish. Ms. Morales's first language is Spanish, but she began studying English in 1994. All of her courses at Miami-Dade Community College were taught in English, and Ms. Morales also took formal classes in English. At the times relevant to this proceeding, Ms. Morales could understand, speak, and read English; her command of spoken English has improved since September 2000. During the times relevant to this proceeding, when a telephone caller spoke only English, Ms. Morales would often ask another Warehouse employee to handle the call. She was, however, able to communicate adequately with Mr. Roof and Ms. Zilliner, and she had no trouble doing her work.3 Ms. Rodriguez's grievance In May 2000, Ms. Rodriguez filed a complaint against Mr. Roof, the supervisor of warehouse operations and her direct supervisor, with Dr. Joy Ruff, Miami-Dade Community College's Director of Employee Relations. The complaint was misplaced in Dr. Ruff's office, and, in July, 2000, when Dr. Ruff realized the error, she apologized and asked Ms. Rodriguez to re-file the complaint, which Ms. Rodriguez did on July 17, 2000. In her complaint, Ms. Rodriguez described several instances in which she believed Mr. Roof had acted inappropriately towards her, and she confirmed to Dr. Ruff that the basis for her complaint was discrimination on the basis of gender, specifically sexual harassment. Because he was Mr. Roof's supervisor, Dr. Ruff advised Mr. Meistrell that Ms. Rodriguez had filed the grievance. Mr. Meistrell told Dr. Ruff that he would make sure that Dr. Ruff had access to all the Warehouse employees for interviews and that the employees were paid for their time. Mr. Meistrell had no further involvement in the investigation of Ms. Rodriguez's complaint against Mr. Roof. During the course of her investigation, Dr. Ruff interviewed the employees who worked in the Warehouse. In their statements to Dr. Ruff, which were given on July 11, 12, 13, 24, and 28, 2000, several of the employees indicated that they had heard Mr. Roof make inappropriate comments to and about Ms. Rodriguez; three employees told Dr. Ruff that they had not observed Mr. Roof make inappropriate comments to or about Ms. Rodriguez, one of which was Ms. Morales. In addition to denying ever having heard Mr. Roof make any inappropriate comments to or about Ms. Rodriguez, Dr. Ruff's notes reflect that Ms. Morales commented during her interview that Ms. Rodriguez was a liar. This statement was not, however, related to the complaint Ms. Rodriguez had made against Mr. Roof; rather, Ms. Morales commented that Ms. Rodriguez lied about the hours she worked and about Maggie Zilliner, the head of the Warehouse's computer section. Specifically, Dr. Ruff's notes reflect that Ms. Morales commented that she "observed Janet coming in at 9 & leaving at 12, but tells people she's in at 8 & out at 4" and that she "sees Brian and Jorge (computer technicians) talking & talking & Maggie (Zilliner) only one working. Janet lies about Maggie & Maggie is a good woman." At some point during the investigation, Dr. Ruff suggested that Ms. Rodriguez work in the computer section of the Warehouse, at her original job, so that she would be directly supervised by Ms. Zilliner rather than Mr. Roof. Dr. Ruff completed her investigation in late July 2000, and she had a meeting with Mr. Meistrell, Mr. Roof's supervisor, on August 2, 2000, during which she advised Mr. Meistrell of her findings that Mr. Roof had made inappropriate comments to Ms. Rodriguez but that he had not engaged in discrimination based on sex. Dr. Ruff also told Mr. Meistrell that disciplinary action would be taken against Mr. Roof and that Mr. Roof would be required to write Ms. Rodriguez a letter of apology. Dr. Ruff met with Ms. Rodriguez on August 2, 2000, and Dr. Ruff discussed with her, in detail, the results of the investigation, including Dr. Ruff's conclusion that Mr. Roof had made inappropriate comments to Ms. Rodriguez. Dr. Ruff advised Ms. Rodriguez during the meeting that disciplinary action would be taken against Mr. Roof by Miami-Dade Community College and that he would be required to write her a letter of apology. Dr. Ruff also documented attempts to arrange a meeting with Mr. Roof on August 2, 2000, but Mr. Roof was not available. Dr. Ruff did, however, discuss the investigation and her conclusions with Mr. Roof in August 2000, while she was on vacation, and she advised him during the discussion that he would be subject to disciplinary action, that he would be required to write Ms. Rodriguez a letter of apology, and that he should begin drafting the letter of apology. After she returned from vacation, Dr. Ruff prepared a letter to Ms. Rodriguez dated September 1, 2000, in which Dr. Ruff formally advised Ms. Rodriguez that she had completed the investigation of Ms. Rodriguez's complaint against Mr. Roof and had concluded that Mr. Roof had made inappropriate comments to her in specific instances but that this behavior did not constitute discrimination based on sex. Dr. Ruff further advised Ms. Rodriguez in the letter that Mr. Roof would be disciplined for his behavior and that he would provide her with a written apology. On September 5, 2002, Dr. Ruff provided Mr. Meistrell with a draft of a formal letter of reprimand to be issued to Mr. Roof. Mr. Meistrell, as Mr. Roof's supervisor, incorporated the draft provided by Dr. Ruff into a memorandum of reprimand addressed to Mr. Roof and dated September 5, 2000. Dr. Ruff confirmed that Mr. Roof had received the written reprimand and that it had been included in his personnel file. The letter of complaint against Mr. Roof sent via facsimile to Dr. Ruff by Ms. Rodriguez on July 17, 2000, was not signed. A note dated August 14, 2000, that appears in the margin of Dr. Ruff's notes of her August 2, 2000, meeting with Ms. Rodriguez states: "Schedule mtg w/ Janet Rodriguez - signature on complaint." Decision to terminate Ms. Rodriguez In a memorandum dated July 26, 2000, Mr. Bailey, Mr. Meistrell's supervisor and Director of the Budget for Miami- Dade Community College, notified Mr. Meistrell that there was a shortfall in Miami-Dade Community College's operating budget for the 2000-2001 fiscal year of approximately $4 million, and he directed Mr. Meistrell to conduct his operations within the budget assigned to his areas of responsibility. The salaries for part-time employees at the Warehouse exceeded the amount budgeted for the 2000-2001 fiscal year by approximately $75,000. It was, therefore, necessary for Mr. Meistrell to reduce the staff at the Warehouse. Mr. Meistrell developed a plan for reducing the number of staff at the Warehouse, and he advised Mr. Bailey of the plan and of the corresponding reduction in the services that could be provided by the Warehouse. Mr. Bailey approved Mr. Meistrell's plan for staff reductions at the Warehouse, and Mr. Meistrell implemented the plan. Mr. Meistrell cut the program involving the repair of old computers, and the two part-time computer technicians who repaired the computers were terminated. Another employee of the computer section had recently quit, so three employees were cut from that section, leaving the supervisor of the computer section as the only employee. Mr. Meistrell decided that, for safety reasons, he could not reduce the staff doing the manual labor in the Warehouse from two employees to one. He, therefore, decided to reduce the staff of the records section of the Warehouse from two part-time employees to one. At the time, Ms. Morales and Ms. Rodriguez were the two part-time employees in the records section, and Mr. Meistrell decided to terminate Janet Rodriguez. Mr. Meistrell was solely responsible for choosing the individuals that would be terminated under the staff-reduction plan, and he did not consult with anyone at the Warehouse regarding who should be terminated. In making the decision to retain Ms. Morales and terminate Ms. Rodriguez, Mr. Meistrell concluded that Ms. Morales was better qualified than Ms. Rodriguez for the position in the records section, based on his consideration of the following factors: Mr. Meistrell believed that both Ms. Rodriguez and Ms. Morales understood the system for keeping track of the records stored at the Warehouse, and both had participated in the development of the program for keeping track of the records. Ms. Morales was first employed by Miami-Dade Community College as a student assistant in April 1996, and she worked as a student assistant until she accepted the part-time position at the Warehouse in March 1999. Mr. Meistrell believed that, during her employment with Miami-Dade Community College, Ms. Morales had acquired secretarial, administrative, and general office skills. She was, in addition, certified in business software applications. Mr. Meistrell believed that Ms. Morales would be a long-term employee, given her length of service with Miami-Dade Community College. Mr. Meistrell considered Ms. Rodriguez to be a good employee who knew a great deal about the operation of the records section of the Warehouse. He believed, however, that Ms. Rodriguez had very little experience in general office work, and he believed that, with her limited experience working at Miami-Dade Community College, Ms. Rodriguez was not as familiar with the source of the records and the operations of Miami-Dade Community College in general as Ms. Morales. Mr. Meistrell considered this lack of knowledge a drawback as the Warehouse received more and more records from the various Miami-Dade Community College campuses. In addition, Mr. Meistrell believed that Ms. Rodriguez would not be a long-term employee because she was attending college and was about to graduate with a bachelor's degree. In Mr. Meistrell's estimation, Ms. Rodriguez was not as proficient as Ms. Morales in inputting data into the computer and handling the paperwork relating to the records stored at the Warehouse, and he believed that Ms. Morales's administrative and organizational skills were superior to those of Ms. Rodriguez. Both Ms. Rodriguez and Ms. Morales did typing and filing for the computer section, but Mr. Meistrell believed that Ms. Morales was more proficient at this type of work than Ms. Rodriguez. In addition, because Ms. Morales was familiar with the property control system, Mr. Meistrell believed that she could also assist the computer section by handling the paperwork and inputting data relating to the old computers being sent to the Warehouse for the various Miami-Dade Community College campuses. Although Ms. Rodriguez was certified to use a forklift and Ms. Morales was not trained in the use of a forklift, Mr. Meistrell did not consider the use of a forklift to be a job requirement for those working in the records section of the Warehouse; usually, one of the employees of the furniture and equipment section of the Warehouse would retrieve pallets of boxes from the higher levels. Pallet jacks were then used to move the pallets of boxes around the Warehouse, and both Ms. Rodriguez and Ms. Morales knew how to use a pallet jack. Mr. Meistrell was aware that both Ms. Rodriguez and Ms. Morales were bilingual in Spanish and English. Mr. Meistrell was also aware that Ms. Rodriguez's command of spoken English was superior to that of Ms. Morales, but, in his opinion, Ms. Morales could communicate adequately in person or on the telephone with the staff in the Warehouse, including Mr. Roof and Ms. Zilliner, and with Miami-Dade Community College staff and others who spoke only English. In a memorandum dated September 6, 2002, Mr. Meistrell notified Mr. Roof, the head of warehouse operations; Ms. Zilliner, the head of the computer section of the Warehouse; and Rafael Rodriguez, the head of the storage section of the Warehouse, of the budget reduction and the decision he had made to reduce the number of staff in the Warehouse. Mr. Meistrell advised in the memorandum that, in addition to reducing the number of employees at the Warehouse, the maximum hours of the remaining Warehouse employees were restricted to 30 hours per week. Mr. Meistrell notified Ms. Rodriguez and the two employees from the computer section of their termination on September 6, 2000; he went to the Warehouse and gave the termination letters to each of the three employees. Ms. Rodriguez was advised that she would receive her salary through September 17, 2000. On September 6, 2000, after she was told of her termination and while she was packing up her belongings to leave the Warehouse, Ms. Rodriguez received a call from Dr. Ruff's office asking that she visit Dr. Ruff's office to sign some documents before she left. Ms. Rodriguez went to Dr. Ruff's office, where she signed and dated the complaint that she had sent to Dr. Ruff by facsimile on July 17, 2000. At this time, Dr. Ruff presented her with a letter of apology prepared by Mr. Roof and dated September 1, 2000. Computer records maintained by Miami-Dade Community College's indicate that Ms. Rodriguez was actually terminated from her employment on May 25, 2001. It was, however, Mr. Meistrell's practice to keep many terminated part-time staff on active status in the computer system, at no cost to the college, so that, if he needed a part-time employee to work for a couple of weeks, he could call and offer work to one of the people in the system without going through hiring formalities; because they were retained in the computer on active status, these employees could start working almost immediately. Ms. Rodriguez was one of the Warehouse employees that Mr. Meistrell kept on active status in the computer after her termination-in-fact. When he was told that he had too many people on active status in the computer, he cleaned out the records, and Ms. Rodriguez's was one of the records he took off of the computer. Ms. Rodriguez has not been employed since her termination from the Warehouse. Even though she has had interviews, Ms. Rodriguez believes that prospective employers lose interest in her when she explains that she has a pending sexual harassment complaint against Miami-Dade Community College. No one has been hired to fill the positions held by Ms. Rodriguez and the two employees from the computer section that were terminated on September 6, 2000. Summary Ms. Rodriguez presented evidence (1) that she filed a grievance against her supervisor, Mr. Roof, with Miami-Dade Community College in July 2000, charging that he had sexually harassed her in the workplace; (2) that she was terminated from her part-time employment with Miami-Dade Community College on September 6, 2000; and (3) that Mr. Meistrell was aware that she had filed a grievance against Mr. Roof and notified her of her termination less than two months after she filed the grievance, approximately one month after he was advised by Dr. Ruff that Mr. Roof would be reprimanded for making inappropriate comments to Ms. Rodriguez, one day after Mr. Meistrell prepared a memorandum of reprimand to Mr. Roof, and the same day Ms. Rodriguez was given Mr. Roof's letter of apology. Miami-Dade Community College in its turn produced evidence that, because of a reduction in the funds allocated for part-time salaries in Miami-Dade Community College's budget for Fiscal Year 2000-2001, Mr. Meistrell decided to re-organize the operations of the Warehouse and to cut the staff of the records section of the Warehouse from two employees to one employee. Miami-Dade County also produced evidence that Mr. Meistrell's decision to terminate Ms. Rodriguez rather than Ms. Morales was based on the length of Ms. Morales's employment with Miami-Dade Community College and his determination that Ms. Morales had more experience in general office work and was better qualified to carry out the duties of the remaining position in the records section than Ms. Rodriguez. Ms. Rodriguez's proof is insufficient to establish with the requisite degree of certainty that the reasons articulated by Mr. Meistrell were not the true reasons for her termination and that her filing a grievance against Mr. Roof was the true reason for her termination. Ms. Rodriguez did not dispute Mr. Meistrell's explanation that budget cuts required him to re-organize the Warehouse and reduce the staff of the records section to one part-time employee. Rather, Ms. Rodriguez claimed she was more qualified for the position than Ms. Morales; she implied that the removal of Ms. Rodriguez's position from Miami-Dade Community College's computer records on May 31, 2001, somehow undercut the credibility of Mr. Meistrell's explanation of the reasons for her termination; and she asserted that Ms. Morales strongly supported Mr. Roof when she was interviewed by Dr. Ruff during the investigation of Ms. Rodriguez's sexual harassment complaint. Ms. Rodriguez's perception that she was more qualified for the one remaining position in the records section of the Warehouse than Ms. Morales does not discredit the reasons given by Mr. Meistrell for his decision to terminate Ms. Rodriguez. Mr. Meistrell's explanation of the factors that he considered in reaching the decision to terminate Ms. Rodriguez rather than Ms. Morales establishes that he chose Ms. Morales based on his determination that she was more qualified for the position that Ms. Rodriguez, given his understanding of the duties that the person in the position would be required to perform and of the office skills and work experience of Ms. Morales and Ms. Rodriguez. Second, although the evidence supports the finding that Ms. Rodriguez's position was not removed from Miami-Dade Community College's computer files until May 25, 2001, Ms. Rodriguez does not dispute that she was terminated in fact on September 6, 2000, and she has failed either to establish that the deletion of her position from the computer records in May 2001 was more than a ministerial act or to explain how the delay in deleting her position from the computer records supports in any way her contention that she was terminated because she filed a claim of sexual harassment against Mr. Roof. Finally, Ms. Rodriguez presented no evidence tending to show that Mr. Meistrell knew the details of Ms. Morales's statement to Dr. Ruff regarding Ms. Rodriguez's sexual harassment complaint against Mr. Roof. Ms. Rodriguez has failed to produce proof sufficient to permit the inference that Mr. Meistrell intentionally discriminated against her when he decided to terminate her employment in the records section of the Miami-Dade Community College Warehouse. Not only did she fail to present sufficient evidence to discredit Mr. Meistrell's explanation of the reasons underlying his decision to terminate Ms. Rodriguez, she failed to establish that Mr. Meistrell's decision was influenced in any way by the fact that she filed a sexual harassment grievance against Mr. Roof. The evidence presented by Miami-Dade Community College is sufficient to establish that Mr. Meistrell did not have a close personal relationship with Mr. Roof, did not seek Mr. Roof's input regarding whether Ms. Rodriguez or Ms. Morales should be terminated or discuss the matter with him, and did not make Mr. Roof aware of his decision to terminate Ms. Rodriguez prior to September 6, 2000.4
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Janet Rodriguez. DONE AND ENTERED this 29th day of January, 2003, 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2003.
The Issue The issue to be determined is whether Respondent has committed the acts alleged in the Administrative Complaint and if so, what penalty should be imposed.
Findings Of Fact At all times material to the Amended Administrative Complaint, Respondent was a certified general contractor, holding license numbers CGC 1505096 (d/b/a Redland Company, Inc.), and CGC 1507772 (d/b/a Welling Construction, Inc.). Respondent was also licensed as a certified utility and excavation contractor, holding license numbers 1223883 (d/b/a Redland Company, Inc.), CUC 1224007 (d/b/a Welling Construction, Inc.). At all times material to the Amended Administrative Complaint, Respondent was a primary qualifying agent for Redland Company, Inc., which held a certificate of authority license number QB 0009978. Respondent was also a primary qualifying agent for Welling Construction Company, which held certificate of authority license number QB 34340. On or around June 21, 2007, Respondent executed a plea agreement in Case No. 07-20415-CR-MARTINEZ, in the United States District Court for the Southern District of Florida. In the plea agreement, Respondent pled guilty to an Information which charged him with one count of mail fraud in violation of 18 U.S.C. § 1341. On that same day, the plea agreement was considered and accepted by the Honorable Jose Martinez. Before acceptance of the plea agreement, the following colloquy occurred: COURT: Mr. Nowell, before you signed this document, did you have the opportunity to discuss it with your lawyer? I did. Q. Did you, in fact discuss it with your lawyer? A. I did. Q. Did you review it with him and do you feel that you fully understood it at the time you executed it? A. Yes, sir. THE COURT: Counsel, do you believe your client fully understood this document before he executed it? MR. ZIMMERMAN: Yes, Your Honor. * * * BY THE COURT: But let me ask you, Mr. Nowell: Is there anything other than what is contained in this eight pages that has been promised to you or made known to you? Do you have any additional promises or assurances of any kind in an effort to induce you to enter into a plea of guilty other than what is contained in those eight pages? A. No, sir. Q. Has anyone attempted in any way to force you to plead guilty, threatened or coerced you? A. No, sir. Q. Do you understand that if I don't accept the sentence recommendation in your plea agreement, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. Do you understand that if the sentence is more severe than you expected it, you will still be bound by your plea and have no right to withdraw it? A. Yes, sir. Q. How do you now plead to the information pending against you? A. Guilty. THE COURT: It is the finding of the Court in the case of U.S.A. vs. Frederick Bradley Nowell, Sr. that the defendant is fully competent and capable of entering an informed plea, that his plea of guilty is a knowing and voluntary plea supported by an independent basis in fact, containing each of the essential elements of the offense. His plea is therefore accepted. He is now adjudged guilty of that offense. Attached to the plea agreement signed by Respondent was an Agreed Statement of Facts. Those facts supporting the plea provide in pertinent part: The Redland Company, Inc., (hereinafter referred to as "Redland Company"), a Florida corporation, was an engineering construction company [in] Homestead, Florida. The Redland Company provided a broad range of services in the South Florida area, including road, bridge and sewage work, and excavation. Defendant Frederick Bradley Nowell, Sr. was hired by the Redland Company . . . with various duties including the preparation of work estimates, the negotiation of contracts and subcontracts, and the approval of invoices and payments. . . . The Redland Company maintained its operating account at Community Bank of Florida, in Homestead, Florida. [Nowell] had signatory authority over the Redland Company operating account. In or around October 1992, [Nowell] established Nowell Group, Inc., a Florida corporation of which he was president. * * * 6. In or around November 1997 through in or around October 2006, . . . [Nowell] did knowingly and with intent to defraud devise and intend to devise a scheme and artifice to defraud and to obtain money and property from the Redland Company by means of materially false and fraudulent pretenses, representations, and promises, knowing that they were false and fraudulent when made, and knowingly caused to be delivered certain mail matter by United States Mail and by a private and commercial interstate carrier, for the purpose of executing the scheme. * * * [Nowell], having control of the payment of vendor invoices at the Redland Company and signatory authority over the company's operating bank account, issued and signed numerous unauthorized Redland Company checks payable to NGI Marine. In one instance, Nowell made the unauthorized Redland Company check payable to Welling Construction, a construction company owned by his wife. [Nowell] would deposit the unauthorized Redland Company checks made payable to "NGI Marine" and "Welling Construction" into his Nowell Group, Inc. bank account. Through this scheme, Nowell was able to defraud the Redland Company of approximately $11,441,100 dollars, which monies Nowell used for travel, gambling, and his general personal benefit. [Nowell] concealed the issuance of the unauthorized checks by writing "NGI Marine" or "Welling Construction" only on the negotiable copy of the check, while falsifying the corresponding duplicates of the check to make it appear that the original check had been made payable to an established Redland Company vendor. Nowell would then [sic] attach old, legitimate vendor's invoices to the false duplicates as purported support for the checks, and place and cause to be placed the fraudulent documents in company files. To further conceal the fraud, [Nowell] would review the monthly Community Bank of Florida bank account statements for the Redland Company and remove evidence of his wrongdoing. Where the bank statements reflected checks issued to NGI Marine, Nowell would alter the documents to make it falsely appear that the checks had been issued to legitimate vendors. On or about January 16, 2003, [Nowell], for the purpose of executing and in furtherance of the aforesaid scheme and artifice to defraud and to obtain money and property from others by means of materially and false and fraudulent pretenses, representations, and promises, and attempting to do so, did knowingly cause to be delivered by United States Mail or a commercial interstate carrier, a 2003 Uniform Business Report on behalf of Nowell Group, Inc., sent from the Southern District of Florida to the Florida Secretary of State in Tallahassee, Florida. The transfer of funds and the receipt and issuance of checks arec essential to the practice of contracting. Financial responsibility is inextricably intertwined in the practice of contracting. In this case, the acts to which Respondent stipulated involved defrauding the company for which Respondent was a primary qualifying agent. Respondent was adjudicated guilty of a crime directly related to the practice of or the ability to practice contracting. Respondent has challenged the propriety of his guilty plea in the federal courts. To date, his challenges have been unsuccessful. The total investigative costs of this case incurred by the Department, excluding costs associated with any attorney's time, was $223.21.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered: Finding that Respondent violated Section 489.129(1)(c), Florida Statutes, as charged in Count I of the Amended Administrative Complaint; Finding that Respondent violated Section 489.129(1)(c), by violation of Section 455.227(1)(c), Florida Statutes, as charged in Count II of the Amended Administrative Complaint; Revoking Respondent's certifications and certificates of authority, and imposing a fine of $10,000 for the violation of Count I of the Amended Administrative Complaint; imposing an additional fine of $5,000 for Count II of the Amended Administrative Complaint; and imposing costs in the amount of $223.21. DONE AND ENTERED this 27th day of January 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 27th day of January, 2009.
