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 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 The issue is whether respondent acted fraudulently, arbitrarily, illegally, or dishonestly in proposing to award a contract for DASD drives and controllers to EMC Corporation.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Department of Health and Rehabilitative Services (HRS), operates a computer system known as the Florida System (system). That system is used to store and process large quantities of client benefit information. Because of various deficiencies in the system, the 1993 legislature authorized HRS to make an expenditure from other appropriated moneys to enhance the performance of the system and to meet federal certification requirements. HRS was required, however, to execute a contract and encumber the moneys for the new services no later than June 30, 1994, or forfeit the appropriation. This controversy involves a dispute between HRS, intervenor, EMC Corporation (EMC), the vendor ranked first by HRS and selected as the winner of the contract, and petitioner, International Business Machines Corporation (IBM), the second ranked vendor. Because of the above time constraints and threatened loss of moneys, HRS has requested that this matter be resolved on an expedited basis so that a final order can be entered and a contract signed by June 30, 1994, the end of the current fiscal year. By way of background, on January 14, 1994, HRS issued a request for proposal (RFP) inviting various vendors to submit proposals for providing direct access storage devices (DASD) and controllers for the system. The RFP is more specifically identified as RFP 94-10BB-DSD. HRS structured its request for services as an RFP rather than an invitation to bid because it knew there was more than one product on the market that could meet its requirements, the RFP process gives it more flexibility and would result in a better price, and the RFP process allows vendors more options in providing a solution to a problem. As amended, the RFP called for a bidder's conference to be held on February 2, 1994, written proposals to be filed with HRS by 2:00 p.m. on March 14, 1994, and all proposals to be opened the same day. Thereafter, the offers were to be evaluated by a team of HRS employees whose role was to evaluate the various proposals and assign each proposal a score. A selection committee then had the responsibility of preparing a final report and recommendation for the HRS deputy secretary for administration. The authority to make a final decision rested with that individual. HRS originally anticipated a contract start date of April 1, 1994, but later changed this to May 1, 1994. That date is now in suspense pending the outcome of this case. Three vendors submitted a total of five proposals in response to the RFP. They included IBM and EMC, both of whom submitted two offers, identified as the IBM-1, IBM-2, EMC-1 and EMC-2 proposals, respectively, and Hitachi Data Systems, who is not a party in this case. After an evaluation of all proposals was conducted by the evaluation team, it recommended that the EMC-2 proposal be selected. This recommendation was accepted by the selection committee, which then submitted a final report and recommendation to the HRS deputy secretary for administration, Lowell Clary. After reviewing the report and recommendation, Clary issued a notice of intent to award the contract to EMC on April 19, 1994. Upon receipt of this advice, IBM timely filed its protest, as amended, alleging that EMC's proposal was deficient in four respects and that its IBM-2 proposal should have been ranked first. Subsequent efforts to informally conciliate the dispute have obviously been unsuccessful. The Specifications HRS currently uses 3390 DASD disc drives on its IBM 9021-900 mainframe computer. By its RFP, HRS seeks to purchase additional disc drives and associated controllers to enhance the system's storage capacity and ability to process the data from storage to the processor. Once installed, these enhancements should significantly improve the response time of the system and complete the financial management section of the child support system. The DASD is a device that stores data or information. The DASD is controlled by a controller, a box containing electrical circuitry that manages the movement of data stored in the DASD between that device and the mainframe computer (CPU) which processes the data. The controllers are attached to the CPU by channels, which are the paths between the storage system and the CPU. Data can be moved through copper or fiberoptic cables (channels), with fiberoptic providing much faster transfer than copper. Finally, the word "cache" is used in computer jargon to describe the storage of data in the controller as opposed to the storage of data in the DASD unit. Data is moved to and from cache through sophisticated algorhythms. Because data in cache is stored on computer memory chips, the retrieval of data from cache is substantially faster than the retrieval of data from DASD. The specifications for the equipment to be supplied by the vendor are found in paragraphs 1.1 and 1.2 on page 9 of the RFP, as amended. Those paragraphs read in pertinent part as follows: Statement of Need The Department currently uses 3390 DASD drives on its IBM 9021-900 mainframe computer. The department wishes to purchase two to four 3390-A28 DASD or equivalent and four (4) to eight (8) 3390-B2C DASD or equivalent. In order to support these devices two (2) to three (3) additional 3990-006 controllers or equivalent will also be purchased. This bid is for new DASD and Controller devices or equivalent hardware. If equivalent hardware is proposed the DASD and Controllers must be capable of being managed by IBM's software, and the SMS software support capabilities must be at the latest release level. Also, the maintenance vendor and the cost of maintenance for a period not less than three years after the warranty must be identified. The DASD Controllers must be capable of containing at least one gigabyte of CACHE memory (a minimum of 256 MB of CACHE is required in this proposal). Any Controller/DASD Configuration proposed for these bid requirements must be capable of functioning in ESCON mode. Statement of purpose The department will purchase the proposed equipment in increments as funds become available. The initial purchase will consist of at least two (2) 3390-A28 DASD or equivalent, at least four (4) 3390-B2C DASD or equivalent and at least two 3390-006 controllers or equivalent. The remaining devices will be purchased as funds become available. * * * Equivalent is defined in paragraph JJ. of the definitions section of the RFP as "(c)apable of providing equal or superior performance and having equal or greater capacity." In wording the definition in this manner, HRS intended to give a very broad interpretation to the word "equivalent," and to allow vendors maximum flexibility in providing a solution to HRS's equipment needs. Importantly, HRS did not intend to make IBM the sole source for supplying the equipment. Thus, if a vendor could provide equivalency with a single controller and all other specified functionality, that was permissible under the RFP. Also, paragraph 4.1 of the RFP provides in part that a material deviation may not be waived by the department. A deviation is material if, in the department's sole discretion, the deficient response is not in substantial accord with this Request for Proposal's requirements, provides an advantage to one proposer over other proposers, has a potentially significant effect on the quantity or quality of items proposed, or on the cost to the department. Material deviations cannot be waived. (Emphasis in original) This provision is consistent with the requirements of HRS Rule 10-13.012, Florida Administrative Code, which provides that the "Department shall reserve the right to waive minor irregularities in an otherwise valid bid or proposal." The statement of need in paragraph 1.1 used IBM nomenclature because that is a common language that HRS personnel use, and it is one that is commonly understood in the computer industry. As noted earlier, however, HRS was simply looking for a solution to its need for more data storage and data transfer capacity, and it was not dictating that the equipment proposed be identical to that described using IBM nomenclature. Several other RFP requirements are pertinent to this dispute. First, the RFP required that "(e)ach controller shall support eight (8) channels," or a total of sixteen. This meant that each control unit should have eight-channel capability, or a total of sixteen channel connections. The controller technology also had to be ESCON (enterprise systems connection) capable, that is, capable of using fiberoptic technology (rather than copper cables) in the event HRS later decided to upgrade its equipment. Contrary to IBM's assertion, there was no requirement in the RFP concerning "concurrent I/O's," an acronym for input/output operations. Thus, in order to satisfy the RFP, the unit did not have to have a specified number of channel directors with the ability to make simultaneous data transfers between the storage device and the CPU. In terms of cache capacity, HRS required a storage subsystem having at least 120 gigabytes, with the ability to later upgrade to a maximum capacity of 240 gigabytes. Finally, the successful vendor was required to post a performance bond, and it would not receive any payments under the contract until the equipment was functioning at 99 percent availability for thirty consecutive days within a ninety day period. Otherwise, the equipment would be removed at the firm's expense and the contract terminated. The EMC-2 and IBM-2 Proposals In its EMC-2 proposal, EMC proposed to furnish one Symmetrix 9100-9016 unit at a unit price of $561,000 for a total price of $561,000. This unit combines the DASD and the controller in a single box. It can be configured to function as up to four controllers. The unit proposed by EMC provides 136 gigabytes of capacity and can be expanded to provide 272 gigabytes. The unit uses a different architecture than that used by IBM and takes approximately one-sixth of the floor space of the proposed IBM units. Thus, it requires less electrical power and produces less heat, thereby reducing the cost of electricity and air-conditioning by 80 percent to 87 percent. IBM took a very literal approach to the RFP's Statement of Need and concluded that any equipment proposed as equivalent must be identical to the IBM equipment described in the Statement of Need. Under IBM's construction of the RFP, since the Statement of Need described two IBM 3390-006 controllers, two controllers must be supplied in order to be equivalent. Similarly, since one IBM 3390-006 has capacity for eight concurrent I/Os, IBM erroneously concluded that the RFP required eight concurrent I/Os. While one IBM 3390-006 controller configured with Model 3 DASD as proposed in the IBM-2 proposal can handle 180 gigabytes of capacity and can satisfy the minimum capacity requirements, two IBM 3390-006 controllers were necessary in order to handle the RFP's maximum capacity requirements of 240 gigabytes. Thus, IBM offered equipment with the following characteristics: 8 concurrent I/Os, 16 ESCON channels, and the capacity to handle up to 360 gigabytes. The Evaluation Process In conjunction with this project, HRS established an HRS DASD and Controller Project Team which consisted of an evaluation team and a selection committee. The evaluation team was divided into two segments, a technical evaluation team with five members and a business evaluation team with two members. The selection committee consisted of two members. All team and committee members were HRS employees. Prior to the opening of the proposals, all members of the evaluation team were given an evaluation manual to be used in evaluating the responses to the RFP. In addition, on February 21, 1994, all team members were required to attend an "in-depth" training session. Ten days after the RFP was released, a bidder's conference was held in Tallahassee. The purpose of the conference was to discuss the contents of the RFP and firms' inquiries and recommended changes. Among other vendors, representatives of IBM and EMC were in attendance. It should be noted that no vendor had previously challenged any part of the specifications within the statutory three day time period for doing so. Firms were also afforded the opportunity to submit written inquiries to HRS to which HRS replied in writing. Three questions were submitted by IBM, all designed to elict an admission from HRS that IBM was the sole source of the equipment. HRS declined to agree with this premise. On March 14, 1994, the technical proposals were opened. A determination was first made as to each vendor's compliance with mandatory requirements. In this case, all proposals were found to comply with the mandatory requirements. The proposals were then evaluated on both a technical and business basis. Under the technical evaluation, which consisted of two sections, corporate capabilities and technical approach, each team member scored the proposal using pre-established criteria on eighteen technical criteria and eight corporate criteria. Points ranging from 0 to 4 were assigned for each criterion in descending value based on whether the proposal received a superior, good, acceptable, poor, or no value rating. A maximum of 400 points could be achieved on this part of the evaluation, with 300 available for the technical approach and 100 points available for the corporate capabilities. Each proposal was then assigned final weighted points according to the formulas presented in the RFP. As it turned out, the IBM-1, IBM-2, EMC-1, EMC-2 and Hitachi proposals received 395, 396, 356, 338 and 283 points, respectively. It should be noted that during the technical scoring process, each proposal was scored on its own merits and not by comparing one proposal with another, and all technical scoring was completed before the cost proposals were opened. Under the business evaluation, the proposals were evaluated on the basis of equipment and maintenance costs. Because cost was a very important factor to HRS, it was allocated 60 percent of the total points. According to the RFP, the vendor submitting the lowest priced proposal would receive 540 points while 60 points would be awarded the vendor proposing the lowest maintenance costs for the first three years of the contract. The higher costing proposals were awarded points pro rata based on an RFP formula. In this case, the EMC-2 proposal carried a price of $561,000, with no maintenance costs for the first three years, as compared to the cost on the IBM-2 proposal of $1,148,216, the second ranked offer. Therefore, the EMC-2 proposal received the full 600 points while the IBM-2 offer received only 293 points. Based on the above evaluation, which was done in a fair and consistent manner in accordance with the HRS evaluation manual, the final scores were allocated as follows: Proposer Technical Points Cost Points Total Points IBM-1 395 242 637 IBM-2 396 293 689 EMC-1 356 246 602 EMC-2 338 600 938 Hitachi 283 368 651 Given these rankings, the selection team issued its final report and recommendation on April 13, 1994, recommending that the EMC-2 proposal be ranked first and that EMC be awarded the contract. Was EMC's proposal nonresponsive? Initially, because no proof was submitted at hearing as to IBM's claim that EMC did not submit three corporate references who used EMC equipment similar in magnitude and scope to that requested in the RFP, that allegation has been deemed to have been abandoned. Remaining at issue are contentions that EMC-2's proposal was nonresponsive in two respects and deficient in one other respect. As to the alleged nonresponsive features of the proposal, IBM claims that (a) EMC-2's proposal contains technology which is not yet available on the market in the time required under the terms of the RFP, and (b) the 9100 model proposed by EMC is not of equal or superior performance or of equal or greater capacity to two IBM 3990-006 controllers. As to the other alleged deficiency, IBM contends that the specifications of the 9100 model vary from the specifications described in the EMC-2 proposal and thus EMC will have an advantage over other proposers if it is allowed to substitute equipment or not meet specifications. IBM first contends that the EMC-2 proposal contains technology which is not yet available on the market in the time required under the terms of the RFP. In this regard, the evidence shows that EMC introduced a 5500 model in November 1992. That unit uses a large amount of cache and a five and one- quarter inch disk technology. Sometime later, EMC began to develop a new unit with "somewhat less" capacity than the 5500 unit but using a much newer and higher density disc drive in the five and one-quarter inch format with the capability of storing nine gigabytes of capacity. During the preliminary stages of the development of the model, EMC referred to it as the "Jaguar," because of its high performance technology. Before publicly marketing the unit, EMC briefly identified the model as the 9100 unit because it had nine gigabyte capacity. Later on, however, EMC elected to place the device within its 5000 series in part to reflect to the industry that the device uses the same technology as EMC's existing 5500 series and in part to avoid confusion with a competitor's recent introduction of a 9000 series machine. Accordingly, the model number was changed to 5200-9 because it had smaller capacity than the existing 5500 model, but used nine gigabyte disc drives. The first 9100/5200 technology was delivered to Delta Airlines on January 10, 1994, and the second and third units were delivered to The Home Depot, Inc. and General Accident Insurance Company of America within the next few months. In April 1994, or after the model was already in use, EMC published a marketing brochure and on May 12, 1994, it offically announced the introduction of the new unit. When the RFP package was prepared, EMC had not yet made a decision to rename the 9100 unit a 5200-9 model, and thus it used the 9100 nomenclature throughout its proposal. Even so, Karin Morris, the HRS systems programmer administrator, established that this type of error (i. e., changes in model numbers) occurs "regularly" on RFP submissions by data processing vendors, and it is of no concern to the agency. Because model 5200 (previously known as 9100) was current technology at the time the EMC-2 proposal was submitted, IBM's contention to the contrary is rejected. It is further found that, for all practical purposes, models 5200 and 9100 are one and the same in that they have the same cache and amount of disc drives, and when EMC referred in its proposal to model 9100, it was referring to what is now known as the model 5200-9. Thus, EMC did not substitute technology after its proposal was opened, nor did it obtain an unfair advantage over the other vendors by making this change. The change in model number was a minor irregularity, and one that could be waived by HRS. IBM next contends that the EMC-2 proposal contains a material error and that the unit described therein does not meet the RFP specifications. More specifically, in paragraph 4 of Tab 3 of the proposal, EMC gave the following description of the proposed hardware: Within the Symmetrix unit, up to eight (8) control units may be defined to the operations system. In addition, the unit allows up to eight concurrent I/O's. The maximum number of parallel channels is sixteen, or will allow up to thirty two ESCON channels for the unit. In drafting the RFP, an EMC account executive inadvertently described the characteristics of the EMC 5500 model rather than the new 5200 model. At the outset of hearing EMC conceded that the above descriptive language was in error, and that it did not discover the error until it was pointed out by IBM during a deposition taken on May 25, 1994, or just two days prior to hearing. The language should have read as follows: Within the Symmetrix unit, up to four (4) control units may be defined to the operations system. In addition, the unit allows up to four (4) concurrent I/O's. The maximum number of parallel channels is sixteen, or will allow up to sixteen ESCON channels for the unit. Like EMC, HRS became aware of the error at the deposition taken on May 25, 1994. It views the error as immaterial because none of the eighteen technical criteria in the manual considered by the evaluation committee addressed the number of concurrent I/Os the equipment must be able to accomplish. This is confirmed by the fact that none of the evaluator's scoresheets gave material consideration to that matter. Indeed, with the possible exception of subpart C on question 8, no evaluation criterion specifically related to the above language. Even if the EMC-2 proposal was reevaluated and a zero given for question 8, it would not result in a change in the rankings. At the same time, by amending its proposal in this respect, EMC did not obtain an advantage over other vendors since factors not relevant to the technical scoring criteria can not afford a competitive advantage. Given these considerations, it is found that the error in paragraph 4 of Tab 3 is immaterial, and HRS could properly waive this minor irregularity. Finally, IBM contends that the single EMC model 9100 (5200) was not of equal or superior performance or of equal or greater capacity to two IBM 3990- 006 controllers. The more credible and persuasive evidence supports a finding, however, that the 5200-9 model has eight actual channel capability, it has ESCON channel capability, it has a total potential cache of 272 gigabytes, it is the equivalent of two 3390-A28 DASDs, four 3390-B2C DASDs and two 3390-006 Mod 6s in that it provides the same capabilities and functionalities and the same result to customers as IBM equipment, and thus it satisfies the equivalency requirements of the RFP. Therefore, it is found that the EMC-2 proposal is responsive in all respects to the RFP and that HRS properly ranked that proposal first.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the contract for RFP 94-10BB-DSD to EMC Corporation and dismissing with prejudice the protest of International Business Machines Corporation, Inc. DONE AND ENTERED this 16th day of June, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 16th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2588BID Petitioner: Partially accepted in findings of fact 2 and 4. Partially accepted in finding of fact 2. Partially accepted in finding of fact 6. Rejected as being contrary to the more credible and persuasive evidence. Partially accepted in finding of fact 13. Partially accepted in finding of fact 16. Partially accepted in finding of fact 18. Partially accepted in finding of fact 17. Partially accepted in finding of fact 4. Partially accepted in finding of fact 10. Partially accepted in findings of fact 5, 9 and 21. 12-13. Partially accepted in finding of fact 21. Partially accepted in finding of fact 6. Partially accepted in finding of fact 13. Rejected. See findings 22 and 23. Rejected. See findings 9 and 22. Rejected. See findings 22 and 23. Rejected. See findings 6, 8 and 9. Rejected as being irrelevant. See finding 9. Rejected as being contrary to the more credible and persuasive evidence. Partially accepted in finding of fact 13. Rejected as being contrary to the more credible and persuasive evidence. Respondent: 1. Partially accepted in finding of fact 2. 2. Partially accepted in finding of fact 3. 3. Partially accepted in finding of fact 5. 4. Partially accepted in finding of fact 14. 5-6. Partially accepted in finding of fact 18. 7. Partially accepted in finding of fact 19. 8-9. Covered in preliminary statement. 10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 8. 12-13. Partially accepted in finding of fact 6. 14. Partially accepted in finding of fact 15. 15. Partially accepted in finding of fact 10. 16. Rejected as being unnecessary. 17. Partially accepted in finding of fact 8. 18. Partially accepted in finding of fact 23. 19. Rejected as being unnecessary. 20-24. Partially accepted in finding of fact 20. 25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 20. 27. Partially accepted in finding of fact 19. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 20. 30. Partially accepted in finding of fact 16. 31. Partially accepted in finding of fact 23. 32-33. Partially accepted in finding of fact 21. 34-36. Partially accepted in finding of fact 22. Intervenor: Partially accepted in finding of fact 2. Partially accepted in finding of fact 5. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 15. Rejected as being unnecessary. Partially accepted in finding of fact 14. Partially accepted in finding of fact 3. 9-13. Partially accepted in finding of fact 16. 14-15. Partially accepted in finding of fact 17. 16. Partially accepted in finding of fact 4. 17-19. Partially accepted in finding of fact 18. Partially accepted in finding of fact 4. Partially accepted in findings of fact 6 and 15. 22-24. Partially accepted in finding of fact 6. 25. Partially accepted in finding of fact 5. 26-27. Partially accepted in finding of fact 8. 28. Partially accepted in finding of fact 15. 29-33. Partially accepted in finding of fact 9. 34. Partially accepted in finding of fact 10. 35-39. Partially accepted in finding of fact 20. 40. Partially accepted in finding of fact 12. 41. Rejected as being unnecessary. 42. Partially accepted in finding of fact 6. 43-44. Partially accepted in finding of fact 10. 45. Partially accepted in finding of fact 11. 46. Partially accepted in finding of fact 12. 47-48. Partially accepted in finding of fact 21. 49. Partially accepted in finding of fact 23. 50. Partially accepted in finding of fact 22. 51. Partially accepted in finding of fact 20. 52. Partially accepted in finding of fact 11. 53. Partially accepted in finding of fact 23. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, not supported by the evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kimberly J. Tucker, Esquire Building One, Room 407 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Hume F. Coleman, Esquire Post Office Drawer 810 Tallahassee, Florida 32302-0800 Daniel W. Schenck, Esquire 4111 Northside Parkway HO7K2 Atlanta, Georgia 30327 William A. Freider, Esquire Building E, Suite 200 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Terrence J. Russell, Esquire P. O. Box 1900 Fort Lauderdale, Florida 33302-1900 Margaret-Ray T. Kemper, Esquire 215 South Monroe Street Suite 815 Tallahassee, Florida 32301
The Issue The primary issue for determination is whether the bid of Intervenor, in response to Respondent's invitation to bid, is non-responsive. Secondary issues to be resolved include Petitioner's legal standing to protest all recommended awards to Intervenor in all the bid's categories where intervenor was deemed the successful bidder; whether Intervenor is an operational division of a corporation authorized to conduct business within the State of Florida; whether Intervenor satisfied bid requirements for submission of a valid manufacturer's certificate; and whether intervenor satisfied bid requirements involving identification of a service coordinator and provision of a list of service representatives in the State of Florida for the computer equipment which is the subject of the bid.
Findings Of Fact Respondent issued an Invitation To Bid (ITB) for microcomputers, Bid No. 129-250-040-B, on February 19, 1990. The ITB was revised by a March 22, 1990 addendum which established April 9, 1990, as the date for opening bid responses with bid tabulations to be posted on May 7, 1990. The purpose of the ITB was to establish a twenty-four (24) month contract for the purchase of microcomputers and equipment by all State of Florida agencies and other eligible users. Political subdivisions of the State of Florida, as well as state universities, could exercise the option of purchasing from the contract, if they so desired. The ITB invited bids in several categories of microcomputer equipment. Petitioner's timely filed written protestaddresses 17 of those categories where Intervenor was determined by Respondent to be the successful bidder. Those categories are numbered 255, 256, 257, 258, 259, 260, 266, 267, 268, 269, 271, 272, 273, 275, 276, 277, and 278. However, the bid tabulation posted by Respondent on May 7, 1990, establishes that Petitioner was the next lowest bidder in only four of the 17 categories. Those four categories are 266, 267, 268, and 269. In accordance with Paragraph 13 of the ITB general conditions, all corporations responding to the ITB were required to be registered with the Florida Department of State and authorized to transact business in the state in accordance with requirements of Chapter 607, Florida Statutes. Further, such bidders were required to insert their corporate charter number, resulting from that registration, in the appropriate space in the bidder acknowledgement form provided by Respondent for inclusion in responses to the ITB. Intervenor provided the Department of State Corporate Charter No. 822327 in the bidder acknowledgement form submitted with its response to the ITB. That charter number is assigned by the Department of State to VGC Corporation d/b/a VGC Corporation of Delaware, a corporation organized under laws of Delaware and authorized to transact business in the State of Florida since 1969. Intervenor mistakenly listed, in its bid, the federal employment identification (FEID) number of another subsidiary corporation of VGC Corporation (VGC). The FEID number submitted by intervenor was that of Graphic Arts Supply, Inc., (GAS), acquired by VGC in December of 1986. GAS became a wholly owned subsidiary of VGC at that time and remains such at the present time. At the time of its acquisition, there existed within GAS a particular segment of that business which dealt primarily with computer products. This computer segment of GAS was set up by VGC as a separate division of the parent corporation in November, 1988. The formation of the new division within VGC was announced at that time by the VGC president in an interoffice memorandum which stated in pertinent part: The Computer Products Group of Graphic Arts Supply has grown significantly in the last several years, accounting for approximately 10% of the total corporation's sales. The growth opportunities in this area are enormous and our long term goal is to become one of the major material distributors of computer products in the United States. Accordingly, I am pleased to announce that we will make this operation a separate division, reporting to Tom Mclaughlin. At the time of the issuance of the November 1988 interoffice memorandum, Tom Mclaughlin was a vice-president and subsidiary manager of VGC corporation. Another individual, Pat Mclaughlin, was a VGC vice-president and general manager of the new division, the intervenor in this cause. Another memorandum issued by the VGC president on September 14, 1989, further emphasized that VGC's Business Systems Division, which is also intervenor, was an operating division of VGC. That memorandum stated that the company comprising the Business Systems Division was known as "GA Computer Systems" and further provided in pertinent part that: The Business System Division is an operating unit and not a subsidiary. The Business Systems Division relies on VGC-Rochester for financial and administrative support, and VGC-Florida for all other support and reporting. On the date of Intervenor's response to the ITB, GAS and Intervenor continued to maintain a business relationship. Pursuant to that relationship, GAS provides certain administrative services to Intervenor in the form of certain record keeping and payment of various taxes in the state of New York. Intervenor pays a fee to GAS for these services. Other administrative functions, such as federal and state tax return preparation, are performed by VGC-Rochester and VGC-Florida, other components of VGC. Intervenor's response to the ITB was submitted and signed by John J. Piseck, an employee of VGC who serves as the eastern regional sales manager for Intervenor's computer products. Another of the ITB's general conditions requires that bids from non manufacturers to provide microcomputers must be accompanied by a certification from the manufacturer that the bidder is an authorized representative of the manufacturer. The certification submitted by Intervenor with its bid response was executed by a representative of Hewlett-Packard Corporation, the computer manufacturer, certifying that GA Computer Products is an authorized dealer/representative. On the date of Intervenor's response to the ITB, adealer/representative contract existed between Intervenor and Hewelett-Packard. The agreement was signed on Intervenor's behalf by Patrick Mclaughlin, VGC vice- president and general manager of Intervenor. Page 12 of the ITB special conditions provides in pertinent part that: The bidder shall name a service coordinator and provide a complete list of in-state representatives, and manufacturer's authorized service repair centers on page 19 as part of the bid response. In the course of fulfilling its responsibility to evaluate each vendor's response to the ITB, Respondent accepted either a list of the bidders' own in-state representatives or a list of the manufacturer's in-state representatives as meeting this service requirement of the ITB. Respondent does not, and is not required to, verify information supplied by vendors relating to service locations. Intervenor has fully complied with the ITB requirement relating to naming a service coordinator and providing a list of service representatives and repair centers. Specifically, Intervenor named one of its employees as the service coordinator, provided a toll-free telephone number for communication with the coordinator, and listed five Hewlett-Packard service locations within the State of Florida. These service locations honor the warranties of the manufacturer, Hewlett-Packard, without regard to which Hewlett-Packard dealer sold the product. Intervenor was responsive in all material respects to Respondent's ITB No. 129-250-040-B.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that upon Intervenor's submission of a corrected FEID number, a Final Order be entered denying Petitioner's claims and confirming the award of the contested 17 categories of Respondent's ITB No. 129-250-040-B to GA Computer Products, a division of VGC Corporation. DONE AND ENTERED this 23rd day of July, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 23rd day of July, 1990. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. Petitioner's proposed findings consisted of 32 pages encompassing unnumbered paragraphs dealing with an intertwined mixture of legal conclusions, argument and proposed factual findings. Therefore, Petitioner's submission cannot be treated by the Hearing Officer in this appendix on an individualized basis for each proposed finding. However, Petitioner's submission has been reviewed and addressed, where possible, by the findings of fact set forth in this recommended order. Otherwise, all disputed issues of material fact have been addressed by the evidence adduced at the hearing held in this cause. Intervenor's Proposed Findings. 1.-32. Adopted in substance. Respondent's Proposed Findings. 1.-2. Adopted in substance. 3.-4. Rejected, unnecessary. 5.-24. Adopted in substance. 25.-27. Rejected, unnecessary. 28. Adopted in substance. COPIES FURNISHED: Thomas F. Morante, Esq. One Biscayne Tower Suite 3750 Two S. Biscayne Boulevard Miami, FL 33131 Susan Kirkland, Esq. Jim Bennett, Esq. Office of General Counsel Department of General Services Suite 309 Knight Building 2737 Centerview Drive Koger Executive Center Tallahassee, FL 32399-0950 Lowell L. Garrett, Esq. 5300 Southeast Financial Center 200 S. Biscayne Boulevard Miami, FL 33131 Ronald W. Thomas Executive Director Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, FL 32399-0950
The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issues are whether Respondent was substantially justified in issuing an initial Stop Work Order and Order of Penalty Assessment against Petitioner for failing to comply with a Business Records Request, followed by an Amended Stop-Work Order and an Amended Order of Penalty Assessment to Petitioner for alleged noncompliance with workers’ compensation coverage requirements, and if so, is an award of attorneys’ fees and costs appropriate.
Findings Of Fact Respondent is the state agency charged with enforcing the requirements of Section 440.107, Florida Statutes, requiring that employers in Florida secure the payment of workers’ compensation insurance coverage for their employees. Petitioner is a Florida corporation that conducts business in Florida, with headquarters in Pensacola, Florida. Petitioner’s business involves the transportation of vehicles, utilizing a fleet of approximately 61 tractor-trailers and accompanying auto transport trailers. Michelle Newcomer is a compliance investigator for Respondent. Her duties focus on conducting inspections/investigations of Florida businesses to ensure compliance with Florida’s workers’ compensation coverage requirements. She also issues Stop Work Orders (SWOs) and Orders of Penalty Assessment (OPAs) when Respondent believes a business is non-compliant with Florida’s workers’ compensation law. Ms. Newcomer and her supervisors are familiar with the definition of "independent contractor" set forth in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. However, they never tested Petitioner’s claim that its truck drivers were independent contractors and not employees against the criteria in that definition. On March 16, 2009, Ms. Newcomer received information from an anonymous source that Petitioner was not in compliance with the workers’ compensation laws in Florida. The anonymous source asserted that Petitioner’s drivers were being misclassified as independent contractors. Ms. Newcomer performed a search of Respondent’s database. She learned that Tracie Hedges and George Hedges, as corporate officers, were exempt from having workers’ compensation insurance. She found that Petitioner had no workers’ compensation coverage for any employees. On March 18, 2009, Ms. Newcomer visited Petitioner’s office. Upon arrival, she met Ms. Hedges. During the meeting, Ms. Newcomer inquired about the company, its operations, and its truck drivers. Ms. Hedges told Ms. Newcomer that Petitioner had about 50 to 60 truck drivers who were independent contractors. Seeing only one other employee, Ms. Newcomer left and terminated her investigation. On April 8, 2009, Ms. Newcomer received a referral from Respondent’s Employee Assistance Office. The referral indicated that one of Petitioner’s former drivers, Mike Borders, had suffered an injury while working for Petitioner, but was not receiving workers’ compensation benefits. The referral included a copy of one of Mr. Borders’ pay stubs. Upon reviewing Mr. Borders’ pay stub, Ms. Newcomer noticed that federal income tax withholding was deducted along with various deductions for Social Security and Medicare. The federal payroll deductions were identical to those any employer would deduct from an employee’s wages. Ms. Newcomer performed another search of Respondent’s database, finding that Petitioner had workers’ compensation insurance through Allstates Employer Services, effective March 17, 2009. Ms. Newcomer then contacted Allstates Employer Services and requested a copy of Petitioner’s employee roster. When she received the roster, Mr. Borders’ name was not on the roster. Ms. Newcomer next interviewed Mr. Borders, inquiring about Mr. Borders’ relationship with Petitioner. She wanted to know the following: (a) whether he drove Petitioner’s vehicle; (b) whether he signed any employment contracts; and (b) whether he considered himself Petitioner’s employee. Mr. Borders responded as follows: (a) he considered himself an employee of Petitioner; (b) he had signed an employment application; (c) he drove Petitioner’s truck; and (d) he took orders from Petitioner as to when and where to pick up the cars that needed to be transported. After speaking with Mr. Borders, Ms. Newcomer conducted further review via various state databases. She researched the database maintained by the Florida Department of State, Division of Corporations, to determine the relationship of Petitioner to Transport TK 131, LLC, another company listed on Mr. Borders’ pay stub. This search revealed 21 limited- liability companies using the Transport TK name. Ms. Newcomer learned that Transport TK 131’s managing member was Gary Hedge. Ms. Newcomer believed that Mr. Hedge also was a principal of Petitioner. Ms. Newcomer also reviewed the database maintained by the Florida Department of Revenue to determine who was paying the unemployment compensation tax for Petitioner’s drivers. She learned that Transport TK 131, LLC, listed two to three employees for purposes of unemployment withholdings. The same was true for all of the other Transport TK companies. Ms. Newcomer believed her investigation presented numerous inconsistencies with statements made by Ms. Hedge. Ms. Newcomer presented her findings to her supervisors. They gave her approval to investigate Petitioner. Ms. Newcomer prepared a Business Records Request Form 1 (BRR#1) for Petitioner and Transport TK 131, LLC. Both BRRs requested the companies to provide payroll information for employees and any forms of workers’ compensation coverage for its employees for the period January 21, 2009, through April 21, 2009. The BRRs also made the following request: Record Category #12--For each independent contractor who performs any service with regard to the completion of a contractual obligation of the employer listed above, at any time during the period specified above: all contracts for work, licenses, invoices, ledgers, payments made pursuant to that contract, and any other documents that support the status of an independent contractor under section 440.02(15)(d), F.S. The request for records did not give the companies the option of creating and providing affidavits or other documents to support the status of independent contractors if no written contracts for work existed. The BRRs were sent to Petitioner and Transport TK 131, LLC, by certified mail on April 22, 2009. Petitioner failed to provide all of the requested records within the required five-day time period. Accordingly, Respondent issued a SWO and an OPA to Petitioner. Ms. Newcomer posted the SWO and OPA at the worksite on May 5, 2009. While Ms. Newcomer was at Petitioner’s headquarters, Ms. Hedges provided her with some records, including Petitioner’s QuickBooks registry, showing all checks written for a three-month period. Ms. Hedges also answered Ms. Newcomer’s questions about the records, including questions about DTS, LLC, a company described by Ms. Hedges as a payroll account. Ms. Hedges explained that before August 2008, Petitioner paid DTS, LLC, for work performed by “employees” of the Transport TK companies. DTS, LLC, would then pay the truck drivers. However, when DTS, LLC, ran out of checks in August 2008, Petitioner began paying the Transport TK employees directly. The documentation and information provided by Ms. Hedges, resulted in the SWO being revoked for Transport TK 131, LLC. The revocation was based on a showing that Transport TK 131, LLC, and other Transport TK companies did not have bank accounts. The SWO against Petitioner, for failing to produce sufficient records, remained in place, pending further review. Ms. Newcomer continued to have discussions with Ms. Hedges relative to Petitioner’s business. Ms. Newcomer discussed the case again with one of her supervisors. She explained that Petitioner was paying individuals that were reported as employees of the Transport TK companies. She also stated that Petitioner pays its corporate officers, Bradley Hedges, Gregory Hedges and Teri Forret, who did not have workers’ compensation exemptions and were not covered by Allstates Employer Services workers’ compensation coverage. Ms. Newcomer and her supervisor decided to amend the SWO to add the charge of failure to provide workers’ compensation coverage for employees. On May 6, 2009, Respondent sent the SWO, the Amended Stop Work Order (ASWO,) and a Business Records Request Form 2 (BBR#2) to Petitioner by certified mail. Petitioner received the documents the next day. Ms. Newcomer had a meeting with Ms. Hedges on May 8, 2009. During the meeting, Ms. Hedges explained that DTS, LLC, is just a bank account, used to pay the employees of the Transport TK companies. Ms. Hedges also stated that Petitioner has full control of its customer contracts and directs the drivers where to go for work. On May 11, 2009, Ms. Newcomer received Petitioner’s Quickbook report for the period of the BBR#2 records request. On May 13, 2009, Ms. Newcomer staffed the case with Respondent’s legal counsel. On May 14, 2009, Ms. Newcomer received some contracts between Petitioner and truck drivers who owned and operated their own trucks. Respondent calculated Petitioner’s penalty using the Quickbooks report, in conjunction with W-2 documents provided for tax years 2007 and 2008. As of May 18, 2009, Petitioner’s penalty was $1,496,680.40. Ms. Newcomer requested and received approval to issue an Amended Order of Penalty Assessment (AOPA) for that amount. The AOPA was served on Petitioner by hand delivery on May 19, 2009. Ms. Newcomer did not include Petitioner’s office staff/dispatchers, including Ms. Hedges, in calculating Petitioner’s penalty. Ms. Newcomer was able to confirm that those individuals had workers’ compensation coverage through the employee leasing company. Ms. Newcomer did not include the owner/operator truck drivers in calculating Petitioner’s penalty. Ms. Newcomer had copies of contracts indicating that they were independent contractors. Ms. Newcomer did include the 50 to 60 truck drivers who drove Petitioner’s trucks in calculating the penalty. Ms. Newcomer knew that Petitioner was paying those individuals by check and that their pay-stubs showed various deductions, including withholdings for federal income taxes, Social Security, Medicare, and even deduction options for various forms of Individual Retirement Accounts, both standard and “Roth” versions. For some of the drivers, Petitioner deducted child support payments. If Ms. Newcomer had asked more questions or talked to more drivers, she would have learned that Petitioner made the deductions from the checks of drivers who drove Petitioner’s trucks at their request and in exchange for a smaller commission. Petitioner did not make the deductions as an employer. Ms. Newcomer also learned that all individuals driving Petitioner’s trucks signed employment applications. Apparently, Ms. Newcomer did not believe Ms. Hedges when she explained that the employment applications were used as forms to comply with the Federal Motor Vehicle Carrier Safety Act for drivers of trucks with Petitioner’s name. Ms. Newcomer never attempted to find out whether the drivers of Petitioner’s trucks were independent contractors pursuant to oral contracts. She did not ask Ms. Hedges questions that track the definition of “independent contractor” status in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. In other words, Ms. Newcomer did not try to ascertain whether and/or to what extent Petitioner or the truck drivers controlled or directed the manner in which the work was done. Ms. Hedges told Ms. Newcomer that Petitioner’s corporate officers had filed for workers’ compensation exempt status by delivering exemption application forms to one of Respondent’s offices in 2005. Ms. Hedges did not have a receipt showing delivery of the forms. Ms. Newcomer could not find the names of two of these officers in the state’s database of corporate officers electing exempt status. Therefore, Ms. Newcomer included the two corporate officers in the penalty calculation. Apparently, Ms. Newcomer never considered that Ms. Hedges was telling the truth about the exemption forms and that, pursuant to statute, the exemptions became effective 30 days after Ms. Hedges delivered them to Respondent even though Respondent never processed them. Ms. Newcomer also did not go back to Mr. Borders to question him about his claim of being Petitioner’s employee as opposed to an independent contractor, using the definition of independent contractor set forth in Sections 440.02(15)(d)1a and 440.02(15)(d)1b, Florida Statutes. Additionally, Ms. Newcomer did not attempt to interview any other individuals that drove Petitioner’s vehicles to determine whether they considered themselves employees or independent contractors. On or about June 5, 2009, Petitioner requested an administrative hearing to challenge the ASWO and AOPA. The hearing was held on November 3, 2009. On January 29, 2010, Administrative Law Judge P. Michael Ruff issued a Recommended Order, finding that Petitioner was compliant with Florida’s workers’ compensation coverage and recommending that a final order be entered dismissing the ASWO and AOPA. On April 28, 2010, Respondent entered a Final Order adopting Judge Ruff’s legal and factual findings. The parties stipulate as follows: (a) Petitioner is the prevailing party in the underlying case; (b) Petitioner was a small business at the time the ASWO and AOPA were served; and (c) The reasonableness of the amount of attorney’s fees and costs claimed by Petitioner, namely $50,000, is not in dispute.
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
The Issue The issue in this case is whether Respondent, Gulf Coast Enterprise (GCE), discriminated against Petitioner, Terry R. Douglas, based on his race--African-American--or his disability-- hearing impairment.
Findings Of Fact Petitioner, Terry R. Douglas (Douglas) is an African- American male. He is hard of hearing and uses hearing aids (when he can afford the batteries) and relies upon interpretive sign language when it is available.1/ At all times relevant hereto, Douglas worked as a food line server under the employ of GCE, which is a division of Lakeview Center, Inc., an affiliate of Baptist Health Care. The stated purpose of GCE is "to operate a successful business which will provide meaningful employment to persons with disabilities in accordance with the requirements of the AbilityOne Program." AbilityOne is a program that creates jobs and training opportunities for people who are blind or who have other severe disabilities, empowering them to lead more productive and independent lives. GCE is an equal opportunity employer and does not discriminate on the basis of race, color, national origin, religion, gender, age, marital status, disability, or any other category protected by law. Douglas had been previously employed by GCE in 2010 as a custodian but voluntarily resigned to pursue employment elsewhere. He briefly took a job in the Orlando area, then went to Memphis for about one year. When he returned to Pensacola he took a position with GCE commencing May 9, 2013, in the food service division. He was hired to work the night shift, from 7:00 p.m., until approximately 1:30 a.m. As part of being hired anew by GCE, Douglas filled out an "Employee Self-Identification Form" in order to advise GCE of his status within a protected class. Douglas identified himself as an individual with a disability but stated that there were no accommodations which GCE needed to provide in order to improve his ability to perform his job. When Douglas recommenced employment with GCE in May 2013, he went through employee orientation. He received copies of the Employee Handbook and various written policies addressing issues such as discrimination, harassment, drug-free workplace, etc. He was also provided training on the GCE Code of Conduct and Respect in the Workplace policies. Douglas' job entailed preparing and/or serving food at the cafeteria in Building 3900 at the Pensacola Naval Air Station (NAS). He was by all accounts a good employee, a hard worker, and gained the respect of his supervisor, Prospero Pastoral (called "Mr. Pete" by most employees). In fact, when Mr. Pete was going to take an extended vacation to visit his home in the Philippines, Douglas was selected as one of the individuals to take over some of Mr. Pete's duties in his absence. Douglas got along well with his fellow employees and co-workers. Douglas' supervisors were Mr. Pete and Paul Markham, the assistant building manager of Building 3900. Douglas had a good relationship with Markham when he first started working in food service, but (according to Douglas) they did not get along so well later on. There did not appear to be any overt animosity between the two men during the final hearing. In November 2013, Markham was advised by the kitchen manager that some food items (including several hams) were missing from the kitchen inventory. It was suspected that some night shift employees may have been stealing the food items. Markham was asked to investigate and see if there was any suspicious behavior by any employees. On the evening of November 22, 2013, Markham changed from his work uniform into civilian clothes just prior to midnight. He then drove to a parking lot just behind Building 3900 and sat inside his darkened vehicle. He had driven his wife's car to work that day so that his pickup truck (which employees would recognize) would not alert others to his presence. At around midnight, he saw two employees (Gerry Riddleberger and Andy Bartlett) sitting outside Building 3900 talking. He could see Douglas in the building through the window. A few minutes later, Douglas exited the building carrying a large black garbage bag. Markham got out of his car and walked toward Douglas. As he approached, Markham began to "chat" with Douglas about trivial things. He asked how he was doing; he asked where Ira (another employee) was; he made small talk.2/ Finally, Markham asked Douglas what was in the bag. Douglas responded that "these are tough times" and that "I have to take care of my family." He then opened the bag and showed Markham the contents therein. The bag contained numerous bags of potato chips and snacks, some bananas, packets of coffee creamer, and other small items. Markham asked Douglas to hand over the bag and he did so. He then asked Douglas for his badge and access key. When Douglas handed those over, Markham told him to leave the NAS and he would be hearing from the GCE human resources/employee relations department (HR). Douglas left the base and Markham waited around a while to see if any other employees were carrying suspicious items. Not observing any other suspect behavior, Markham concluded his investigation for that evening. The next day, Markham handed over the bag and Douglas' badges to HR. It was determined by HR that Douglas' attempted theft of the property constituted just cause for termination of his employment with GCE. The HR office notified Douglas of the decision to terminate his employment. Douglas thereafter visited the HR office to ask that the decision be reconsidered. Douglas was told that the process for reconsideration was to submit, in writing, his statement of the reasons and whether there were mitigating factors to be considered. Douglas submitted a four-page request for reconsideration to Kahiapo, director of employee relations, dated December 2, 2013. In the letter, Douglas admitted to the theft but rationalized that other employees were stealing food as well. He said he had seen Markham taking boxes out of storage and putting them in his truck, but did not know what the boxes contained. He said a blonde worker on the food line ate food from the serving line, but had no details about the allegation. He complained that other workers had been caught stealing but had not been terminated from employment. He alleged that a worker (Jeanette) stole a bag of bacon and only got suspended. Markham had no support or independent verification of the allegations. GCE had one of its employee relations specialists, Alan Harbin, review Douglas' reconsideration letter and investigate the allegations found therein. All of the allegations were deemed to be unfounded. There was a worker named Jeanette who had been suspended for eating an egg off the serving line, but this did not comport with Douglas' allegation. When Harbin's findings were reported to HR, Kahiapo notified Douglas via letter dated December 18, 2013, that his request for reconsideration was being denied. The termination of employment letter was not rescinded. The decision by HR was in large part due to the zero tolerance policy against theft adhered to by GCE. The GCE Employee Handbook contains the following: In accordance with the general "at will" nature of employment with GCE, generally, employees may be discharged at any time, and for any reason. * * * An employee may be discharged on a first offense and without prior disciplinary action if the violation so warrants. * * * Conduct that may result in immediate termination of employment includes, but is not limited to: * * * [12] Theft, pilfering, fraud or other forms of dishonesty. It is clear--and Douglas admits--that Douglas was guilty of theft. He attempted to steal a bag of food items from the building in which he worked. During his term of employment, Douglas never made any claim concerning discrimination against him or anyone else due to his race, African-American. He was never mistreated or treated differently than any other employee by his supervisors. Douglas did not have any problem doing his job. His disability, being hard of hearing, did not adversely affect his employment. He never asked for any accommodation to do his job or suggested to anyone that his disability interfered with his ability to perform his duties. There are simply no facts in this case upon which a claim of discrimination could reasonably be based.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations, upholding its determination that no cause exists for a finding of discrimination against Petitioner, Terry R. Douglas, by Respondent, Gulf Coast Enterprise. DONE AND ENTERED this 27th day of August, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, and the prehearing stipulation, I hereby make the following relevant factual findings. Respondent holds Florida teaching certificate 473497 issued by the Florida Department of Education covering the area of auto body repair. At all times material hereto, Respondent was employed by the Dade County School Board as an auto body instructor at Robert Morgan Vocational Technical Institute (herein sometimes referred to as "Robert Morgan"). Respondent began his employment at Robert Morgan on a part-time basis during May of 1980 and was employed on a full-time basis during August of 1900. Prior thereto, Respondent had been employed in private industry working at Williamson Cadillac for several years and, later, Rhinehart Volkswagen. Respondent has worked in the auto body industry for approximately 20 years prior to being employed at Robert Morgan. The Dade County School District has adopted an internal accounting operating policy and procedure for production shops numbers 2-6 which was in effect during the time of Respondent's employment. (Joint Exhibit 21) Additionally, Robert Morgan adopted "management procedures and policies" which were set forth in a production manual, copies of which were provided to all production shop instructors. (Joint Exhibit 21) School Board policy and school production policy provides that the following individuals may have their automobiles worked on in Robert Morgan's Auto Body Repair Shop: (a) students currently enrolled in a particular program (in this case, auto body); (b) employees of the Dade County School District; and (c) non-profit organizations which submit a request to the school principal and whose requests are accepted. (Joint Exhibit 21) School Board policy and school production policy each require the preparation of a Work Order for each job received in the Auto Body Shop. Each customer is required to sign the Work Order disclaimer statement set forth in the Work Order form prior to the performance of any service upon the automobile. (Joint Exhibit 21) School Board policy and school board production policy required that a deposit be received for work to be performed in the event that the estimated costs exceed a sum of $50. The customer is required to make a deposit for the amount of the estimated cost over $50 which deposit is submitted to the School Treasurer prior to performance of the requested repairs. (Joint Exhibit 21) School production policy provides that the instructor completely fill in the upper portion of the Work Order. (Section IX, B of School Board production policy) After the work is completed, the Instructor must complete the description of materials used on work performed, including all charges for parts, supplies, shop fees, taxes and the final total to be paid by the customer. (Section IX, G of School Board production policy) The instructor thereafter sends the complete Work Order to the Treasurer's Office where the Treasurer checks the accuracy of totals on the Work Order. The instructor then notifies the customer that the work is completed and ready for pick-up. At that time, the instructor informs the customer of the total amount due and where the customers go to pay for services. The repaired automobile "shall not be released" until the customer presents a paid receipt from the Business Service Office to the instructor. (Section IX, H, I, and J of School Board production policy) Both School Board policy and School Board production policy prohibit any instructor, student or school employee from soliciting or accepting gratuities or remuneration for production work performed on the school premises or during school hours. No instructor, student or School Board employee is permitted to use his position to solicit work for private business or outside interests. (Joint Exhibit 21) At the beginning of each school year involved herein, Dade Program Coordinator, Clifton Lewis, conducted in-service meetings with all instructors to review School Board and Robert Morgan production policies which were contained in the Teachers' Handbook. At these in-service meetings, which Respondent attended, production policies were discussed in detail. Coordinator Lewis discussed any problem areas which may have arisen in the past as well as any discrepancies noted in their audit report in order that such matters might be corrected. Respondent attended these in-service meetings prior to the commencement of both the 1980-81 and 1981-82 school years. Additionally, Coordinator Lewis discussed School Board and Robert Morgan production policy with instructors informally from time to time when a discrepancy or problem would arise during the course of the school year. During Respondent's first year of employment at Robert Morgan (1980- 81), Coordinator Lewis' practice was to meet with first-year teachers every Wednesday to cover school production policies. Respondent attended those meetings. Among the subjects covered during these weekly meetings were the payment of deposits by customers for work to be performed as well as school policy requiring customers to pay in full for their vehicle prior to its removal from school grounds. Respondent attended approximately 60 of such meetings during his tenure at Robert Morgan. While the policy has been modified and has changed from time to time, at no time did Respondent indicate to Coordinator Lewis during any of those meetings that he did not understand the policies as discussed. Respondent received a Teachers' Handbook for the 1980-81 school year which incorporated Robert Morgan production policy. (Joint Exhibit 20) Sometime after August 24, 1982, Respondent signed a Memorandum of that date indicating that he read and that he had a working knowledge of the Robert Morgan Production Policy Manual. (Joint Exhibit 19) Additionally, Burton Watkins, the evening Program Coordinator at Robert Morgan during Respondent's employment, conducted in-service training for Respondent both individually and collectively with other instructors. Respondent attended those sessions during the 1980-81 and 1981-82 school years. During those sessions, Watkins discussed county and school policy concerning clientele and such matters as whose automobile may be repaired, methods of payment, requirement for deposits and a requirement for payment in full prior to a removal of the vehicle from school grounds. Respondent never expressed a lack of understanding of the applicable policies for the Auto Body Repair Shop to Coordinator Watkins. (TR volume 3, pages 98 and 99) Additionally, Robert Snyder, Assistant Principal at Robert Morgan from August 1980 through August 1983, discussed the Auto Body Shop procedures with Respondent several times. Based thereon, it is found that during his tenure as an auto body repair instructor at Robert Morgan, Respondent was aware of School Board and Robert Morgan policies and procedures with respect to processing automotive body repair work in his day and evening classes. Respondent received excessive formal and informal training from Coordinators Lewis and Watkins and he (Respondent) indicated his working knowledge of that policy in writing on or about August 24, 1982. 4/ (Joint Exhibit 19) Robert Morgan production policy specifies that when an instructor orders parts for production work, the Work Order number is supplied to the vendor as the purchase order number. (Section VIII, A, Joint Exhibit 21) On or about November 12, 1980, Respondent prepared a Work Order, number 5997, for himself upon which he indicated that materials were ordered from Service Auto Supply of Homestead in the amount of $255. (Joint Exhibit 24) The invoice received by Robert Morgan from Service Auto Supply of Homestead dated November 17, 1980, in the amount of $255 was paid by the school on or about January 30, 1981. (Joint Exhibit 25) Frances Mesiano, school Bookkeeper, received the bill from Service Auto Supply and contacted Respondent concerning that Work Order when she discovered that she had not received any deposit for that Work Order and she did not know who the work was for. Respondent acknowledged to Ms. Mesiano that it was for himself and that he would bring the Work Order to her. (TR volume III, page 170) Ms. Mesiano told Respondent that "You need to pay us some money on that. I'm paying it out of school funds and I do not have a deposit on it." Respondent indicated that he would do so; however, when he failed to make any payment by the end of the month, Ms. Mesiano reported the matter to Mr. John White, Vice Principal, who spoke to Respondent about the matter. Following the conversation with Mr. White, Respondent gave Ms. Mesiano a deposit on May 8, 1981, of $150 and the balance due of $105 which Respondent owed Robert Morgan on that Work Order remained unpaid until April 15, 1983. (TR volume III, pages 170-173) The parts Respondent purchased during November of 1980 consisted of a front and rear "spoiler" which he intended to mount on a personal automobile which he was in the process of customizing. (TR volume IV, page 333) When Respondent paid the balance owed to Robert Morgan for the parts ordered during November of 1980, he was under investigation by Petitioner, Dade County School Board, for violation of School Board policies. On March 2, 1982, Respondent accepted for repair at Robert Morgan a 1974 Porsche automobile owned by Roy E. Bates. Mr. Bates was not a Dade County School Board employee. Kenneth Rogers, Assistant Principal at Homestead Junior High School, had previously discussed purchasing that car from Mr. Bates, if Mr. Bates would have certain body damage repaired. Mr. Rogers recommended that Mr. Bates contact Respondent about performing the necessary repairs. Mr. Rogers contacted Respondent and advised him that a friend of his had a Porsche which he (Rogers) wanted to buy if the body damage to the automobile was repaired. Mr. Rogers asked Respondent if he would repair it. Rogers told Respondent that the car belonged to a friend and that he was going to buy it if it was repaired. Initially, Messrs. Bates and Rogers planned on having Respondent repair the automobile at Respondent's home but they were unable to contact Respondent at home. Respondent finally told Rogers to have the automobile brought to Robert Morgan. Bates drove the Porsche to Robert Morgan one evening, followed by Mr. Rogers. After examining the body damage, Respondent told Mr. Bates that he would need $400 "to get started." Mr. Bates gave Respondent a check dated March 2, 1982, in the amount of $400 payable to Respondent. (Joint Exhibit 1) Mr. Bates left the Porsche at Robert Morgan's Auto Body Shop, or in the immediate vicinity thereof. (TR volume I, pages 48-50) Approximately one month later, Respondent contacted Mr. Rogers to request more money for the repair work to the Porsche. Mr. Rogers talked to Mr. Bates, who gave Mr. Rogers a check in the amount of $200 made payable to Respondent. Mr. Rogers gave the check to Respondent. A day later, Respondent contacted Mr. Rogers and requested that he come pick up Mr. Bates' check, give it back to Mr. Bates and tell him to issue a new check made payable to Robert Morgan. Mr. Rogers relayed that information to Mr. Bates. Respondent later went to Mr. Bates' home to discuss the matter. At that time, Respondent requested that Mr. Bates tell anyone who inquired that the $400 check which Mr. Bates had first given him was for the rental of a mobile home. Respondent also requested that Mr. Bates reissue the $200 check, this time made payable to Robert Morgan. At the time, Respondent was concerned about the investigation being conducted of him by the petitioner, Dade County School Board. Mr. Bates told Respondent that he would not lie about the origin and the reason for the $400 check. Respondent thereafter became angry and made what Mr. Bates considered to be an "indirect threat" to the effect that he would hate to see anybody like Mr. Bates with his position giving trouble. (TR volume I, pages 31-32) Mr. Bates never leased a mobile home, motor home or trailer of any kind from Respondent. At Respondent's request, Mr. Bates wrote another check made payable to the Dade County School Board in the amount of $200. Mr. Bates, however, stopped payment on the check several days later. (TR volume I, pages 26, 27) Once the investigation of Respondent was underway by the Dade County School Board, Mr. Rogers was interviewed by School Board Investigator Dodson concerning the $400 check issued to Respondent. Respondent thereafter contacted Mr. Rogers and asked him to change his story that he had given the investigator telling him that he had made a mistake and that the check was not for parts but for the rental of a camper. Mr. Rogers advised Respondent that he could not do that whereupon Respondent told him that if he got in trouble, it would be because he was trying to do both Rogers and Bates a favor. In a later telephone conversation, Respondent told Mr. Rogers that he had gotten in trouble because he was doing Mr. Bates and him a favor. At that time, Respondent warned Mr. Rogers about showing up for a hearing in this case. Also, Respondent made what Mr. Rogers considered to be a veiled threat. Mr. Bates' 1974 Porsche automobile sat on Robert Morgan school grounds from March 2, 1983, until near the end of the 1982-83 school year when it was towed away. The car was sold by the towing company that picked it up from school grounds. Respondent assigned Work Order number 10337 to the Porsche. The Work Order was not fully completed by Respondent. Respondent indicated on the Work Order, however, that the vehicle was owned by Ken Rogers. When Coordinator Lewis inquired of Respondent concerning the Porsche prior to the summer of 1982, Respondent advised him that it was "a night job," indicating that Mr. Watkins, the evening Coordinator, was aware of the car and had accepted it for repair. (TR volume I, page 75) When Mr. Watkins first noticed the Porsche sometime in 1982, he inquired of Respondent concerning the vehicle and was informed that Coordinator Lewis, the day Coordinator, had approved the car for repair. (TR volume I, page 105) Students of Robert Morgan in the evening program performed work to the left rear quarter panel of the Porsche automobile in the body shop used by night students. Respondent did not pay over to Robert Morgan the $400 given him by Roy E. Bates at Robert Morgan on or about March 2, 1982. Instead, Respondent endorsed and cashed Mr. Bates' check himself. (Joint Exhibit 1) When Coordinator Lewis inquired of Respondent concerning the $400 check written to him by Mr. Bates, Respondent told him that the money was for the rental of his "motor home." (TR volume I, page 83) A few days later, Respondent made the statement in Coordinator Lewis' presence that Mr. Bates' $400 payment was for a trailer which he had made for Mr. Bates. Respondent acknowledges that he negotiated the $400 check written to him by Mr. Bates. Respondent purchased a left rear quarter panel and a front bumper which he used to repair the Porsche automobile. When Coordinator Lewis discussed a $200 check written by Mr. Bates, Respondent told him that Mr. Bates was the owner of the Porsche, although Respondent had previously told Coordinators Lewis and Watkins that Mr. Rogers owned the vehicle. On or about September 23, 1982, Respondent ordered parts totalling $424.41 from Toyota of Homestead, giving said parts supplier a purchase order number 10330. (Joint Exhibit 3) Respondent ordered those parts to repair his personal Toyota truck which was damaged in an auto accident. The parts ordered by Respondent for his truck were ordered on the wholesale account of Robert Morgan. Respondent signed for the parts when they were delivered to Robert Morgan. (Joint Exhibit 3) On or about October 8, 1982, Respondent ordered an air conditioner from Toyota of Homestead on the account of Robert Morgan for installation in his personal Toyota truck. Respondent provided Toyota of Homestead with purchase order number 10341. The air conditioner ordered on the account of Robert Morgan cost $425. (Joint Exhibit 4) Respondent prepared Work Order number 10330 to indicate that the work to be done by the Robert Morgan Auto Body Shop was for a 1979 Chevrolet owned by Dr. Burt M. Kleiman, a School Board employee. (Joint Exhibit 15) Dr. Kleiman's Chevrolet had, in fact, been repaired under Work Order number 10328. (Joint Exhibit Respondent assigned Work Order number 10341 to himself on or about October 7, 1982, in order to use said Work Order as a purchase order for ordering the air conditioning unit for his Toyota truck from Toyota of Homestead. (Joint Exhibit 16) Respondent placed no information on Work Order number 10341 to indicate that the work to be performed pursuant to that Work Order would be upon his personal vehicle. Ms. Mesiano, the School Treasurer, first received notice from Toyota of Homestead in November 1992 of outstanding charges on the account of Robert Morgan. She requested duplicate copies of the invoice from Toyota of Homestead. Upon examining the duplicate Work Orders, she determined that the purchase order numbers coincided with Work Orders contained within Respondent's lot of Work Orders. Ms. Mesiano called Respondent on the telephone to inquire about which customers those Work Orders were for. Respondent told Ms. Mesiano that the Work Orders were not with him, that they were in his car and that he would have to call her back with the information. Later that day, Respondent told Ms. Mesiano that Work Order 10330 was his and that he would get her a duplicate copy of the invoice from Toyota of Homestead. Later that same day, Respondent also advised Ms. Mesiano that Work Order 10330 involved an insurance settlement on his part. Tom Huddleston, Parts and Service Director for Toyota of Homestead, contacted Respondent when their invoice for parts ordered by Respondent and delivered during September and October 1982 went unpaid past thirty days. Respondent advised Mr. Huddleston that he would look into the matter and "get it squared away." (TR volume I, pages 130-131) When the matter remained unpaid the following month, Mr. Huddleston again contacted Respondent and Respondent told him that he would clear the matter up with Robert Morgan. During December of 1982, Mr. Huddleston personally visited Robert Morgan and spoke to Respondent. Respondent told Mr. Huddleston that there would be no problem in getting the bill paid. On December 16, 1982, Respondent called Mr. Huddleston and told him that the school (Robert Morgan) wanted him to pay the bill. Respondent requested that Mr. Huddleston send him a copy of the statement. Mr. Huddleston complied that same day. (TR volume I, pages 134-135) When Respondent had not paid the bill by January 1983, Mr. Huddleston contacted Respondent about getting the payment for the bill. During that period, Respondent agreed to pay the bill in two installments beginning the first of February and the remaining 50 percent on the first of March. At that time, the bill totalled $751.41. Mr. Huddleston agreed with Respondent's assumption of the financial responsibility for the bill and to his method of repaying one half the bill in February and the remaining one half in March 1983. Respondent failed to make the 50 percent payment, as agreed, on February 1, 1983. Mr. Huddleston attempted to get the payment and Respondent asked him (Huddleston) to send his driver by Robert Morgan to pick up some money from him. When the driver returned, he presented Mr. Huddleston with a check in the amount of $100, which amount was unacceptable and not in conformance with the agreement. Respondent became hostile, accused Mr. Huddleston of "hassling" him and told Mr. Huddleston to throw the check in the garbage. (TR volume I, pages 138, 139) Following receipt of the check for $100 Huddleston prepared a letter dated February 25, 1983, to the Principal of Robert Morgan concerning the matter. (Joint Exhibit 5) In the letter, Mr. Huddleston and Mr. John A. Machado, General Manager of Toyota of Homestead, outlined the contacts which they had recently made with Respondent. In summary, they demanded that the school immediately pay the bill in full. Following said correspondence, Respondent contacted Mr. Machado and arranged to pay $100 a week until the bill was paid in full. Toyota of Homestead then negotiated Respondent's first $100 check and then received a second check in the amount of $100 on March 14, 1983. They received no further payments from Respondent during that month and determined that they should go back and demand full payment from Robert Morgan. Toyota of Homestead sent Robert Morgan a statement dated March 31, 1983, for the balance due of $551.41 with the notation contained thereon that "Mr. Johnson has failed to keep the agreement with us of $100 every week. We request that you pay the balance in full immediately." (Joint Exhibit 6) As of the date of the final hearing herein, there remains an outstanding balance of $351.41 due Toyota of Homestead on the account of Robert Morgan for Toyota truck parts Respondent ordered for his personal truck during September and October 1982. On November 28, 1982, a friend suggested that Sally Bradley, a retiree, contact Robert Morgan concerning auto body repairs which she desired for her 1972 Ford LTD. 5/ Ms. Bradley lives in the Pine Wood Villas senior citizens' section of the Perrine/Cutler Ridge area. Those villas are owned by the Lutheran Church for the Elderly. Ms. Bradley was told to contact Respondent while she attended a Christmas party at the Veterans of Foreign Wars on November 28, 1982. She was referred to the school by Edward Oberlies, a photographer for the News Leader, a local newspaper. Ms. Bradley was talking about her car being "rusted out" and wanted body work done. Mr. Oberlies informed her that they had a body shop at Robert Morgan school and that some of the instructors there "moonlighted." Ms. Bradley contacted the school during early December and asked to speak to someone in the body shop. Ms. Bradley learned that Archie Johnson worked on cars at his home so she asked, "May I speak with him?" Respondent was summoned to the phone and he spoke with Ms. Bradley arranging to inspect her automobile at her house on December 5, 1982. Base on Ms. Bradley's testimony which indicates that she was looking for someone to do the work at their home; the fact that no work was done by Respondent to Ms. Bradley's car while on school premises, and, finally, that no work was done to Ms. Bradley's car by Respondent during school hours, this situation involves a purely private matter which was not prohibited by the school's policies or were in some other manner, in violation of the Petitioner, Department of Education's rules and regulations. 6/ On March 28, 1983, Carol Fontani, a teacher at Killian High School, took her 1978 Lancia automobile to the vicinity of Robert Morgan in order to have it painted by Respondent's class. Ms. Fontani and her husband previously had their 1976 Dodge Charger painted by Respondent's class at Robert Morgan and were pleased with the result. Prior to that time, Ms. Fontani had spoken to Respondent about getting her Lancia painted at the school and Respondent had advised her that he did not think that a second car could be painted within a short span of time following repairs of her first car. Respondent agreed to check into that situation and advised Ms. Fontani that he could not paint her Lancia at school but that he would do so at his home. Ms. Fontani agreed and requested an estimate as to the charges to paint the Lancia. Respondent gave a $450 estimate to Ms. Fontani. Respondent demanded and Ms. Fontani gave him a $200 deposit, made payable to him. Approximately one month later, on April 25, 1983, Ms. Fontani, her husband and their two children, went to Robert Morgan in the evening to pick up their car. A student accompanied the Fontanis to Respondent's home where they picked up their Lancia automobile. When the Fontanis arrived at Respondent's home, Respondent's wife, Mrs. Johnson, asked for the remaining balance of $250 before giving them the car keys. The Fontanis indicated that they were pleased with the way that the car looked and openly praised Respondent's workmanship to Mrs. Johnson and the student who accompanied them to Respondent's home. The Fontanis stopped payment on the $250 check given Mrs. Johnson the following morning claiming that the work was shabbily done and that they could not determine the shoddiness of Respondent's work until the following morning. 7/ After learning that he was under investigation for violation of School Board and school policies, Respondent made numerous charges of alleged violations of School Board and school policies and procedures by school administrators and his colleagues including allegations against a fellow auto body instructor, Charles Taylor, Assistant Principal, Robert Snyder, evening program Coordinator, Burton Watkins and Robert Morgan's Treasurer, Frances Mesiano. Petitioner, Dade County School Board, conducted an internal investigation of the allegations of impropriety leveled against administrators and colleagues by Respondent. As a result of that investigation, Respondent's allegations were determined to be "unfounded." (TR volume II, page 201 and Stipulation of Respondent's counsel) Respondent's conduct, as set forth herein, generated notoriety beyond that reported in the media, which notoriety adversely affected both Respondent's effectiveness and the standing of Robert Morgan in the community. As a result of Respondent's orders of parts for his Toyota truck from Toyota of Homestead on the account of Robert Morgan, Robert Morgan lost its good credit standing with the auto suppliers. (TR volume I, page 148) Additionally, Toyota of Homestead intends to sue Robert Morgan if the remaining balance on Respondent's bill is not paid. Respondent's unfounded accusations against fellow Robert Morgan employees further impaired his effectiveness in that they no longer trust him nor would they want to work with him in the future. (TR volume II, page 330; volume III, page 113 and 102) According to the expert testimony of Dr. Pat Gray, Executive Director, Division of Personnel Control for the Dade County Public Schools and an employee of the school system since approximately 1965, Respondent has "clearly failed to demonstrate the standards expected of a public school teacher. He has impugned the integrity of himself as well as that of the education profession and, in so doing, he has violated the specific statutes and state regulations with regard to the expected standards for public school teachers." (TR volume III, pages 146, 147) Respondent's effectiveness "has been so seriously diminished and reduced that he could not possibly function in an efficient and professional manner as a public school teacher." Respondent's performance as an instructor during his tenure at Robert Morgan Vocational Technical Institute has been outstanding. While his performance is not here at issue, it is, no doubt, the reason that he has found himself here in violation of Petitioners' rules and regulations. Respondent was sought out by fellow school board employees and administrators to perform work on their private vehicles. Respondent, having come from the private industry, had no prior experience with the procedures expected of instructors in the various vocational technical shops at Robert Morgan, the largest vocational technical school in the southeast. Also, during the period of Respondent's tenure, the production policy at Robert Morgan was anything other than static. As example, during 1980, the policy changed respecting when a deposit had to be placed for a customer who wanted his automobile painted. Also, policies as to when the Work Order would be signed were indefinite during 1981. As example, it was as likely that a Work Order could be signed on picking up an automobile as upon dropping it off. (Testimony of John D. White, Vice Principal at Robert Morgan from its inception through 1983.) Finally, while the results of the Petitioner, School Board of Dade County's, internal investigation revealed that the allegations of impropriety filed by Respondent against administrators and his colleagues were unfounded, the facts herein do not support a conclusion that they were made maliciously and with knowledge that the charges were false. Respondent credibly testified herein that he believed those charges were true and he was encouraged by Dr. Patrick Gray to give him information concerning those matters. Respondent's conduct as set forth herein is the type conduct that cannot be countenanced by the Petitioners. Given the Respondent's prior work experience, his on-the-job performance, the continued state of flux of the petitioner's, Dade County School Board's production policy in effect at Robert Morgan, and the entire circumstances herein, coupled with the fact that Respondent was at no time ever issued a written reprimand or disciplined in any other way for any violation of School Board policy such consideration was given as to the imposition of an appropriate penalty. Based thereon, the ultimate penalty of termination and revocation of Respondent's teaching certificate for a period of ten years, as requested by Petitioners, would be too harsh and does not appear to be indicated by the facts herein. I shall therefore recommend lesser penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Petitioner, School Board of Dade County, Florida, enter a Final Order affirming its suspension of the Respondent without pay through the end of the 1983-84 regular school year. That the petitioner, Department of Education, Education Practices Commission, enter a Final Order suspending Respondent's teaching certificate number 473497 issued by the Florida Department of Education covering the area of auto body repair for a period of one (1) year from the date of his suspension by Petitioner, School Board of Dade County. 8/ RECOMMENDED this 18th of October 1984, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October 1984.
