The Issue Whether Respondent should take final action to deny Petitioner's application for a real estate sales associate license on the ground that Petitioner was found guilty, in the State of Georgia, of the crime of theft by taking.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: On June 12, 2006, Petitioner was working as a clerk at a UPS store in Cherokee County, Georgia, when he "gave in to temptation" (as he described it at hearing) and stole $500.00 in cash from an envelope given to him by a customer for shipment to the customer's former wife in Kansas. When the customer's former wife received an empty envelope, she notified the customer, who, in turn, called the police. On June 16, 2006, the police went to the UPS store to investigate the matter. When questioned by the police during their visit to the store, Respondent admitted to stealing the $500.00. He was thereupon placed under arrest and, thereafter, criminally charged. On October 16, 2007, in Cherokee County, Georgia, State Court, Petitioner was found guilty of the misdemeanor crime of theft by taking and sentenced to 12 months' probation. Among the conditions of his probation was that he provide "proof of repay[ment]" of the $500.00 he had stolen. Petitioner has not been arrested again, and he has returned to its rightful owner the $500.00 he had stolen and has otherwise completed his probation. The record evidence, however, does not reveal how long ago Petitioner's probation was completed; nor, more importantly, does it shed any light on what Respondent has done with his life (other than completing his probation and not getting arrested) since the theft which led to his being placed on probation, or what his present reputation is for honesty, trustworthiness, and fair dealing. The record evidence, therefore, is insufficient to establish that there is reason to believe that, notwithstanding his commission of the aforementioned theft, it is not likely he would act dishonestly or in any other manner endangering the public were he to be granted the real estate sales associate license he seeks.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 5th day of December, 2011, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 5th day of December, 2011. COPIES FURNISHED: Kevin Vaughn, Jr. 931 Village Boulevard, Apartment 905-203 West Palm Beach, Florida 33409 Tom Barnhart, Esquire Special Counsel Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Roger P. Enzor, Chair, Florida Real Estate Commission 400 West Robinson Street, N801 Orlando, Florida 32801 Layne Smith, General Counsel, Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Danny Michael Shipp is a black male who was employed at the Jacksonville, Florida, aluminum can plant of Respondent Kaiser Aluminum and Chemical Corporation. This period of employment was from October 29, 1978 until November 19, 1978. Mr. Shipp was hired as an equipment tender. In that position his duties included loading pallets, maintaining six paint spray guns and generally checking on equipment to ensure that is was functioning properly in the assembly of aluminum cans. His job required no special skills or qualifications. At the tame Mr. Shipp was hired, Kaiser was adding 70 to 80 people to its working force because it was starting up a new production shift. There were approximately 500 applicants and around 300 people were interviewed by plant management. A background check was made by Pinkerton's of Florida, Inc. on the newly-hired personnel including Mr. Shipp and another employee K.M. 1/. Of the 70 to 80 people hired, only K.M., who is white, and Mr. Shipp were reported to have a criminal record. Mr. Shipp's Pinkerton's report indicated: 7-2-77 Case number 77-2789 Possession of Contra. Substance (more than 5 grams) WHASJ Guilty 19 Month Probation. Released on $751.00 Bond. 3-26-70 Case number 701455 Assault and battery, case discharged 4-7-70 Case number 70 1454 Malicious Mischief, sugar in gas tank of Gail Shipp. K.M.'s report stated: 4-30-76 Case number 21013 possession Narcotics implements Nol. Press. Possession controlled substance Marijuana, over 5 gr. $250.00 Fine 7-31-78 Case number 3105 Sale of controlled substance, 80 days Duval County jail, 1 year Probation. There were other charges which were later shown as misdemeanor's. (sic.) On the job application form filled in by Mr. Shipp, Kaiser asked if he had been convicted of a felony within the last seven years. Mr. Shipp answered by checking a box "no." After several weeks of employment, Mr. Shipp on November 19, 1978, was invited to a conference with Mr. Rice, the Kaiser administrative manager; the plant manager; and the plant superintendent. This was still during his thirty- day probation period when he could be fired without cause and without the right to grieve a discharge. He was told by Mr. Rice that he was being terminated due to the Pinkerton's report. When Mr. Shipp asked for a specific reason for his discharge, Mr. Rice responded: (From Hearing Transcript p. 142) "He said, Well what are you talking about specifically?' And I said, 'Well, based on the evidence, the background check, that we no longer want to keep you as an employee. He said, 'Well, what specifically are you talking about?' And I said, 'Well,' I said, 'You currently are on probation?' He said, 'Yes, sir.' And I said, 'Well, let's just let it go at that, and I'm not going to talk about it anymore.' And that's basically what we did. And then Mr. Carlson walked back to the lockerroom with Mr. Shipp and we all walked out to the front, shook hands, and that was it. On October 21, 1977, Mr. Shipp was placed on probation, adjudication withheld for the felony possession of more than 5 grams of marijuana. His probation successfully expired on April 21, 1979, subsequent to his discharge at Kaiser. On his application with Kaiser, gave "layoff" as the reason for leaving a former employer, Jacksonville Shipyard. In fact, as was brought out during his cross examination, he was terminated there due to being absent from work. Kaiser's primary reason for discharging Mr. Shipp was because of his arrest record. At the time of his termination, Mr. Rice believed after consulting with Kaiser counsel, that Mr. Shipp had not been convicted of any felonies. He further believed that for the purpose of terminating an employee, K. M.'s report was the equivalent of Mr. Shipp's. K.M. who was also in his probationary period as an equipment tender was dismissed by Kaiser because of his arrest record. Kaiser has and had no custom, policy (written or otherwise) or practice of terminating an employee for his arrest record, conviction or criminal probation status. The decision to fire Mr. Shipp and K. M. was made spontaneously by Mr. Rice, Mr. Gene Miller, the plant manager, and Mr. Curtis Thompson, who collectively are the top management at the Jacksonville plant. There is no proof that anyone has ever been fired either before or after the termination of Mr. Shipp and K.M. because of their arrest record, convictions or criminal probation status. After his discharge, Mr. Shipp spoke with his probation counselor, Mrs. Susan Karl, about his discharge. She wrote a letter to Mr. Kaiser on November 28, 1978, in which she explained Mr. Shipp's legal status and gave her opinion about his currently being a law-abiding citizen. She asked that Mr. Shipp be considered for reemployment. He was not rehired. A copy of the Notice of Failure of Conciliation in Mr. Shipp's case was sent to him on March 10, 1980. He filed his Petition for Relief with the Commission on April 8, 1980. For reasons not appearing in the record, a Second Notice of Failure of Conciliation was sent to Mr. Shipp on March 28, 1980. During his employment at Kaiser, Mr. Shipp received three weekly evaluations as a probationary employee. For the first week his evaluator rated him as "fair" and commented that he "overreacted and needs to study more for the test." During the second week he received a "good" with the note that he "Works good on line, picks up on job fast." Finally, on November 17, 1980, he was given a "good" rating with the comment that "Danny's performance has been consistently good overall (He was late once)." With respect to Mr. Shipp's complaint charging Kaiser with race discrimination the Commission by its Executive Director has made a determination of reasonable cause to believe that an unlawful employment practice occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the petition for relief filed by Danny Michael Shipp and supported by the Commission. DONE and RECOMMENDED this 8th day of January, 1981, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2018.
The Issue This cause arose upon a denial of an application for licensure by the Florida Real Estate Commission. Denial was based upon the applicant's answer to question six of the licensing application regarding his prior criminal record under authority of Section 475.17(1), as well as 475.25(1)(b), Florida Statutes (1979). Specifically, the Florida Real Estate Commission notified the Petitioner that the denial of the application was based upon the following: 1963 conviction of armed robbery 1965 conviction of false police report 1967 conviction of worthless check 1968 and 1971 convictions for public intoxication 1971 conviction for assault and battery 1976 and 1980 convictions for public intoxication 1982 indecent exposure charge The Petitioner requested a formal hearing to be permitted the opportunity to present testimony and evidence in support of his petition for application for licensure, and the cause ultimately came on for hearing on the above date after completion of discovery. At the hearing, the Petitioner presented the testimony of two witnesses, including himself, as well as the testimony of a witness from out of state who was unable to attend, whose testimony was admitted in the form of an affidavit stipulated into evidence by the parties. The Respondent presented one witness. The Petitioner presented six exhibits, all of which were admitted into evidence. The Respondent presented four exhibits which were admitted into evidence. At the conclusion of the hearing, the parties requested the benefit of a transcript and the right to file proposed findings of fact and conclusions of law. Proposed findings of fact and conclusions of law were timely filed by the Respondent. All proposed findings of fact and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent that such proposed findings and conclusions of the parties, and such arguments made by the parties are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented.
Findings Of Fact The Petitioner is a native of Ohio, having lived in that state until coming to the Ft. Myers area to live and enter business in 1980. Some twenty- one years ago, when he resided in Ohio at the age of thirteen years, he was charged with armed robbery, according to his arrest record in evidence. On that occasion, he was placed in the custody of the Ohio Youth Commission and placed in an industrial school for boys. Again, on September 9, 1965, he was arrested for making a false police report and was returned to the custody of the Ohio Youth Commission as a juvenile offender once again. While originally in the industrial school for boys in Ohio pursuant to the first arrest, he was not permitted to attend high school classes because of a severe vision problem (nearly legally blind) and the school had no facilities for education of those with his visual handicap. He was tutored instead by a priest, apparently at the school. Prior to that, he had been formally educated up to and including approximately three months of high school. In Ohio, at that time, these acts were considered to be "juvenile acts of delinquency" and not classed as criminal convictions. Between May 24, 1968, and June 24, 1980, the Petitioner had seven arrests for public intoxication. Those arrests culminated in the payment of $25 fines, and in one instance, a $40 fine with no court appearance. In effect, the bond was estreated. On July 20, 1971, he was arrested for assault and battery and paid a $100 fine, again with no court appearance. All of these arrests, with the exception of the original armed robbery juvenile delinquency instance, were misdemeanors. All occurred in Dayton, Ohio. On November 23, 1982, by Order of the Montgomery County, Ohio, Court of Common Pleas, Juvenile Division - the records of David Fugate were expunged. According to that Order, the court found that rehabilitation of the applicant, David Fugate, had been attained to a satisfactory degree and, accordingly, ordered that all records pertaining to David Fugate be sealed; that the proceedings in the case be deemed to have never occurred and that all index references to said applicant be deleted. This Order is somewhat ambiguous in that it mentions "case" in the singular, but then mentions all records pertaining to David Fugate and all "index references" referring to the applicant being deleted from his record and, further, that all copies of fingerprints or pictures taken of the applicant "in this cases" should be destroyed. It is not clear whether an expungement of all record of offenses committed in Ohio through 1980 was ordered, or merely of those matters involving the juvenile division of the court; that is, the three offenses occurring in 1963, 1965 and 1967. In any event, the Court's expungement of the applicant's "record in this court" is found to mean all three juvenile court offenses, especially in view of the applicant's and his corroborating witness' testimony. Further, with regard to the issue raised by the public intoxication charges (to the extent they may not have been expunged by the Order represented by Respondent's Exhibit 1), the Petitioner acknowledges that he had a drinking problem, related to marital difficulties, during his ten years of marriage. All those cases were misdemeanors and generally the subject of fines, not involving court appearances. Petitioner has since overcome his drinking problem, as evidenced in his unrefuted testimony, and that of witness Lawrence who has worked with him for approximately ten years and knows his personal habits quite well. It was thus established that the Petitioner has never had a problem with alcohol which interfered with his business and his relationship with the public and, indeed, his employer, witness Lawrence, was never aware that he had a drinking problem at all. Mr. Lawrence has employed the Petitioner over a period of approximately ten years in a finance company, loan and collection business. The Petitioner often was required to handle and transport large sums of money and never committed any dishonest act or irregularity concerning his handling of his employer's money. He has loaned several thousand dollars to the Petitioner and has been timely paid when any amounts came due and would not hesitate to enter into business dealings with the Petitioner in the future. Donald Jansen, a former professor in the areas of communication and criminal justice at Ohio State University, has known the Petitioner for approximately eighteen years. He first became acquainted with the Petitioner when the Petitioner was made a ward of the State of Ohio and placed in the Ohio Youth Commission Boys' Industrial School, where Mr. Jansen was employed at the time. One of his duties was to orient and counsel boys with regard to life at the school. He felt that David, the Petitioner, had a potential that most of the boys under his care did not have and he has maintained regular contact with him ever since. Petitioner worked with him as a volunteer in Dayton, 0hio, in the area of community contact work with youth in a salaried position and exhibited great concern for others, and in assisting young men who were in trouble, to better their lives. Mr. Jansen has observed Petitioner over the years and has observed the change in his attitude toward himself and others. He is more reliable than most people Mr. Jansen has dealt with and they have had financial dealings together in which the Petitioner has been honest and ethical in every way. He has never betrayed a trust and Mr. Jansen has placed thousands of dollars in the Petitioner's care in these financial dealings without regret. In the near future, he plans to engage in business with the Petitioner with proceeds of a large wheat farm which he plans to liquidate in the State of Nebraska. The Petitioner's conduct and attitude over the years shows that the Petitioner is determined to overcome his visual handicap and become a productive member of society, rather than seek public assistance and that he has genuinely rehabilitated himself in the long years since his more serious juvenile offenses. In that connection, this witness corroborated the testimony of the Petitioner in establishing that, indeed, the expungement order went to all three juvenile offenses, and, in the words of the court in that order, "the proceedings in such case be deemed never to have occurred." It is noted that the Petitioner, himself, established that his problem with alcohol was related to his domestic difficulties over a period of years and that with the resolution of those difficulties (his divorce) he has concomitantly overcome his alcohol problem. It has been clearly established that any problem with alcohol in the past has not interfered with his business and financial dealings. Indeed, his reputation for responsible conduct of his business affairs since arriving in Florida is demonstrated by the fact that he has recently been approved for a real estate mortgage loan in the amount of fifty-five thousand ($55,000) dollars together with an unsecured signature loan in excess of one thousand ($1,000) dollars. The Petitioner has achieved some financial success by his work in real estate investments, owning several parcels of real estate himself and serving as President of Florida Credit and Investment Corporation. The Petitioner's arrest in March, 1982, on a charge of indecent exposure, as freely admitted by the Petitioner, involved urination in a public place. The charge was nol prossed and the court informed the Petitioner that that event rendered the matter to be "as if it never occurred." Because of this belief, the Petitioner failed to list it on his application in answer to question number six. The Petitioner listed all other past charges or arrests, some of which were more serious, and failed to list the March, 1982, charge because he did not feel it relevant since the court informed him that he could conduct himself as if had not occurred. There was no showing of any facts surrounding that arrest which would demonstrate that the Petitioner is clothed with a character which might pose a danger to the interests of the public and investors if his registration and licensing were granted. In short, it has been established that the Petitioner has clearly attained rehabilitation from his earlier, aberrant behavior and that a sufficient lapse of time and subsequent good conduct reveals that the Petitioner's character is now such that he can be safely trusted with the affairs and finances of funds of members of the public who entrust their real estate and financial affairs to him in the capacity of a licensed realtor. The Petitioner has taken and passed the required real estate educational course and passed the test administered at the end of that course as a prerequisite to being admitted to the Florida real estate examination.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, it is therefore RECOMMENDED: That the application of David Fugate for a real estate salesman's license be GRANTED. D0NE and ENTERED this 26th day of 0ctober, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 1983. COPIES FURNISHED: David E. Fugate 1028 South East 18th Place Cape Coral, Florida 33904 Lawrence Gendzier, Esquire Department of Legal Affairs Office of Attorney General The Capitol Tallahassee, Florida 32301 Randy Schwartz, Esquire Assistant Attorney General Department of Legal Affairs Suite 212 400 West Robinson Street Orlando, Florida 32801 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue DOAH CASE NO. 85-1417 The issues in this case are those promoted by a Notice To Show Cause/Administrative Complaint brought by the Petitioner against Robert W. Browning as general partner in the limited partnership known as A.S.R.B. which does business as Suwannee Trails. In particular, it is asserted that Browning, in the aforementioned capacity, offered and disposed of, or participated in the offer and disposition of subdivided lands without having a valid order of registration, and without being exempt from the requirements of registration, and by such activity violated Section 498.023(1), Florida Statutes.
Findings Of Fact DOAH CASE NO. 85-1417 A.S.R.B. Limited Partnership, a Florida limited partnership which will be described in further reference as A.S.R.B., is the subdivider, as that term is defined by Section 498.005(18), Florida Statutes, of Suwannee Trails, Unit I, a subdivision. as the term is defined by Section 49S.005(19), Florida Statutes. This subdivision is found in Hamilton County, Florida. On April 11, 1983, A.S.R.B., in the person of Robert W. Browning, made application with the Petitioner to be granted an exemption from the requirements of Chapter 498, Florida Statutes, pertaining to the need to register with the Petitioner prior to the offer, sale or disposition of the afore mentioned subdivided lands. This request for exemption was under the terms of Section 498.025(3), Florida Statutes. The application for exemption was accompanied by an exemption affidavit executed by Browning as general partner for A.S.R.B. Through this affidavit Browning promised that the A.S.R.B. and Robert W. Browning ". will not offer or dispose of these subdivided lands until registered or exempt from registration under applicable statutes." Notwithstanding the representations which Browning made as the general partner of A.S.R.B., a position which he held on April 11, 1983, and has continued to hold, sales were made prior to registration and prior to obtaining any exemption from registration. The property which Browning had requested the Petitioner to exempt from registration, Suwannee Trails, Unit I, is constituted of Lots 1 through 55. Within that tract, A.S.R.B. sold Lot No. 45 to Jesse H. Tyre, on March 21, 1983, and Browning executed the conveyance document. Likewise, Browning executed the conveyance document for Lot No. 40, a sale to J. T. Bridges, Jr., which occurred on April 11. 1983, the date upon which the application for exemption was made. Other lots which were conveyed in Suwannee Trails, Unit I prior to July 11, 1983, were Lots 1, 2, 4, 5, 6, 8, 41, 42, 44, 47, 49 and 50. On July 11, 1983, in response to the request by Browning that A.S.R.B. be exempt from the requirements of Chapter 498, Florida Statutes, related to registration, an order was entered granting the exemption. This order was pursuant to the exemption contemplated by Section 498.025(3), Florida Statutes. It pertained to the 55 lots within Suwannee Trails, Unit I. No order of registration has ever been given for those lots within Suwannee Trails, Unit I, nor has any showing been made that either A.S.R.B. or Browning ever sought or was entitled to exemptions as set forth in Sections 498.025(1) and (2), Florida Statutes. In testimony presented in the course of the hearing, Robert W. Browning asserted that he was entitled to offer and dispose of the lots within Suwannee Trails, Unit I as early as April 1983. He was persuaded that effective that month and year those Lots 1 through 55, excluding Lots 10 through 20, were exempt from the requirements of registration announced in Chapter 49S, Florida Statutes. He offers these remarks based upon an alleged conversation which he had with an inspector employed by the Petitioner, one Jim Fulghum. According to Browning, Fulghum told him that lots other than 10 through 20 could be sold e£fective April 1983. Those lots, 10 through 20, could not be sold because of some problems of access to those lots, as Browning explained in describing remarks which Fulghum allegedly made to him. Having considered the remarks of Browning on the topic of Fulghum's reputed indication that lots other than 10 through 20 were exempt from the requirements of registration effective April 1983, and having in mind the testimony in this case, the tangible evidence presented and the provisions of Chapter 498, Florida Statutes, especially Section 498.025(3), Florida Statutes, which indicates-that an order of exemption is given upon a demonstration of a satisfactory showing that a subdivider is qualified for such order of exemption, as opposed to the idea that a subdivider is automatically entitled to such exemption upon application, Browning's testimony as to conversation with Fulghum about the exemption dating from April 1983 is not credited. In addition to rejecting those facts, Browning's remarks as to prior practices of the Petitioner in dealing with projects that Browning was affiliated with do not lead to the conclusion that in those other two subdivisions the State had condoned allowing transactions to be pursued before the grant of an order of exemption. In any event, the March 21, 1983, sale of Lot No. 45 occurred prior to Browning's contention that sales were exempt effective April 1983. Again this refers to Lot No. 45 within Suwannee Trails, Unit I.
The Issue Whether Respondent, Coastal Properties (“Respondent” or “Coastal Properties”), discriminated against Petitioner, Harry (Hal) Hingson (“Petitioner”), based upon his age and race in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11 and 509.092, Florida Statutes.1/
Findings Of Fact Petitioner is a Caucasian male who was 60 years old in May of 2014, when Respondent allegedly discriminated against him by terminating his employment because of his age. Respondent is a management company for third-party owners of apartment communities, home owners associations, and condominium associations. Respondent employed Petitioner as a maintenance worker at the Twin Oaks apartment complex, a 242-unit apartment complex in Tallahassee, Florida. On May 6, 2014, after work, Petitioner and his supervisor, Clint Creel, were involved in a physical altercation off the job site, while fishing together on a boat. After the boat returned to the dock, Petitioner went inside his home. Rather than securing himself in his residence and calling law enforcement, Petitioner retrieved a gun from his residence, exited his residence, and fired the gun multiple times at Mr. Creel. Mr. Creel was struck in the back of the leg by a bullet and received medical treatment for his gunshot wound. Although he was shot, Mr. Creel returned to work the next day. Petitioner did not return to work the day after the incident as he was seeking medical treatment for the injuries he sustained during the physical altercation. Two days after the shooting, Respondent terminated Petitioner's employment. The decision to terminate Petitioner was made by the Respondent's Vice-President, Ray Allen, in consultation with the President, Dennis Fuller, after Mr. Allen spoke to both Mr. Creel, and Petitioner, about the shooting. Respondent presented the undisputed testimony of Mr. Allen and Mr. Ray that Petitioner's employment was terminated to protect the safety of the other employees and the residents at the Twin Oaks property. Mr. Creel expressed concern about his safety to Mr. Allen if he had to continue working with Petitioner. Mr. Allen and Mr. Fuller also were concerned about the safety of Mr. Creel, as well as the other employees and residents, if Petitioner and Mr. Creel continued to work together. Petitioner's Discrimination Complaint alleges that Petitioner was discriminated against based on race and age. In particular, Petitioner alleges that he was discriminated against because he was terminated after the off-the-job altercation, but his younger supervisor was not. The evidence adduced at the final hearing, however, failed to substantiate Petitioner's claim of discrimination. Other than testifying that he at one time, prior to the incident, was told that he was moving slow and at another time was told he was acting feeble, Petitioner did not present any direct or circumstantial evidence sufficient to reasonably suggest that Respondent discriminated against him in employment because of his age. Even if Petitioner had presented evidence sufficient to establish a prima facie case of age discrimination, Respondent provided a legitimate non- discriminatory reason for terminating Petitioner's employment. Petitioner admitted that Mr. Allen advised him that he was being terminated because he no longer wanted Petitioner and Mr. Creel to work together. Petitioner admitted Mr. Allen told him that he would have continued to employ Petitioner by moving him to another property, but there were no other openings. Respondent’s evidence demonstrated that the day after Petitioner was terminated, of its 59 employees, 25 were over the age of 40, 11 were over the age of 50, and one employee was older than Petitioner. The evidence also showed that 54 days after Petitioner was terminated, of Respondent’s 64 employees, 25 were over the age of 40, 10 were over the age of 50, and one employee was older than Petitioner. Petitioner failed to establish Respondent's reason for terminating his employment was a pretext for age discrimination. Petitioner's Discrimination Complaint further alleges he was discriminated against based on his race because another employee, a younger African-American, was arrested for DUI but was not terminated. Petitioner presented no evidence at the final hearing to substantiate that allegation, and Petitioner failed to present any evidence whatsoever to show that Respondent discriminated against Petitioner because of his race. In sum, Petitioner failed to show that Respondent discriminated against Petitioner by treating him differently, or terminating his employment because of his race or age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 6th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2015.
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
The Issue The issues for determination are whether the Florida Commission on Human Relations (Commission or FCHR) lacks jurisdiction under Chapter 760, Florida Statutes (2003), over the claims in the Charge of Discrimination because the claims are barred by the doctrines of collateral estoppel and res judicata; the claims are time-barred by Subsections 760.01(1) and (5), Florida Statutes (2003); or both.
Findings Of Fact Respondent employed Petitioner in Respondent's Code Enforcement Division as a Program Coordinator from sometime in November 1999, until Petitioner resigned his employment on June 13, 2003. On April 2, 2002, while Petitioner was employed with Respondent, Petitioner filed identical charges of discrimination simultaneously with the Commission and the United States Equal Employment Opportunity Commission (EEOC). The charges alleged that Petitioner's employer discriminated against Petitioner on the basis of his race through disparate treatment in pay and promotion, retaliated against Petitioner, and created a hostile work environment for Petitioner. The EEOC assigned case number 150A201984 to the charge of discrimination. On April 29, 2002, the EEOC issued a Dismissal and Notice of Rights. On July 26, 2002, Petitioner filed a civil action in the United States District Court for the Middle District of Florida. The initial Complaint and subsequent Amended Complaint contained the same allegations as those set forth in the charges of discrimination filed with the Commission and the EEOC. The complaints alleged that Petitioner's employer violated Title VII of the Civil Rights Act of 1991 and the Florida Civil Rights Act by discriminating against Petitioner on the basis of race, through disparate treatment in promotion and pay; by retaliating against Petitioner; and by creating a hostile work environment. On February 12, 2004, Petitioner voluntarily dismissed his racial harassment claims in the federal civil case. On March 17, 2004, the federal court entered a Summary Judgment for the employer on all remaining claims and dismissed Petitioner's case with prejudice. The Summary Judgment expressly includes allegations of discrimination through the date of Petitioner's resignation from Orange County on June 13, 2003. On or about June 10, 2004, Petitioner appealed the Summary Judgment to the United States Court of Appeals for the Eleventh Circuit. On September 30, 2004, the Eleventh Circuit affirmed the Summary Judgment. On April 7, 2004, Petitioner filed the Charge of Discrimination over which the Commission determined it has no jurisdiction. The Charge of Discrimination alleges in its entirety: I believe I have been discriminated against pursuant to Chapter 760 of the Florida Civil Rights Act, and/or Title VII of the Federal Civil Rights Act, and/or the Age Discrimination in Employment Act, and/or the Americans with Disabilities Act as applicable: Once I filed a discrimination complaint (EEOC # 150A201984) I was retaliated against and subjected to disparate treatment because of my race (Black). Specifically, I was subjected to different terms and conditions, demoted and unfairly disciplined. Once I filed my complaint I was not invited to attend bi-weekly senior staff meetings and my job duties were diminished and reassigned to other staff. In addition, the entire Citizen Coordination Section which I supervised was eliminated and I was transferred to another Division in a position that had non-supervisory status. The position provided no opportunity for promotion and had minimal job duties. I was unjustifiably given a written reprimand for rude behavior and being absent without proper notification. After I grieved the reprimand it was reduced to an oral warning. One non-African American supervisor received numerous pay increases and unwarranted promotions. Eventually, he surpassed me in salary. Another non-African American supervisor was paid at a higher salary than myself, but did not qualify for the position and falsified the employment application. I filed a complaint with the Orange County Office of Professional Standards but they failed to conduct a fair and thorough investigation. Once I filed my complaint I was subjected to racial discrimination, retaliation and subjected to a hostile working environment from various members of County Administration which defamed my character and good name after working in County government for six years; thus purposely ruining my career to serve as a public servant in Orange County government. Ultimately, I was constructively discharged on June 13, 2003. Joint Ex. 18. The Commission investigated Petitioner's allegations in the Charge of Discrimination. The Commission provided Petitioner with an opportunity to explain how the allegations differed from the matters that the federal court disposed of in the Summary Judgment. Petitioner responded to the Commission in a timely manner. On July 28, 2004, the Commission determined that it did not have jurisdiction over the claims in the Charge of Discrimination. In relevant part, the Commission specifically stated: The Respondent is an employer within the meaning of one or more of the following laws: (a) the Florida Civil Rights Act of 1992, as amended, §760, Florida Statutes (2002); (b) Title VII of the Civil Rights Act of 1964, as amended; (c) the Age in Discrimination in Employment Act (ADEA); and/or (d) the Americans with Disabilities Act (ADA), however, all jurisdictional requirements for coverage have not been met. Federal case law interpreting Title VII is applicable to cases arising under the Florida Civil Rights Act because the Florida act was patterned after the federal civil rights laws. Florida State University v. Sondel, 685 So. 2d 923, 925 (Fla. 1st DCA 1996). On or about May 17, 2004, the Middle District of Florida, Orlando Division, decided the Complainant's claims against Respondent for discrimination and retaliation on summary judgment and dismissed all claims with prejudice. The failure to promote claim was dismissed for failure to exhaust administrative remedies. Complainant's complaint consists of substantially the same claims decided by the civil court. A dismissal of claims with prejudice is a final order. See Kobluer v. Group Hospitalization and Medical Services, Inc., 954 F. 2d 705 (11th Cir. 1992). As such, the appellate court has jurisdiction to decide such issues. Id. See also Solar v. Merit Systems Protection Bd., 600 F. Supp. 535 (D.C. Fla. 1985). The Commission does not have the authority to re-investigate and re-decide issues that were decided by the civil court, even if the reason for dismissal was failure to exhaust administrative remedies. See DOAH Docket Sheet filed 9-1-04. The Charge of Discrimination and Petition for Relief in this proceeding do not allege any acts or violations that were not raised in, and ruled on, by the federal court in prior litigation. Several of the allegations refer to matters that occurred more than 365 days before the filing of the Charge of Discrimination on April 7, 2004, including allegations contained in the charges of discrimination that Petitioner filed simultaneously with the Commission and EEOC on April 1, 2002. Other allegations of discrimination, hostile work environment, and retaliation through June 13, 2003, when Petitioner resigned from his employment with Respondent, are included in the Amended Complaint filed in federal court. It is undisputed that the allegations in this proceeding concerning demotion and transfer to a non-supervisory position refer to a transfer to Respondent's Neighborhood Services Division on June 16, 2003. The Summary Judgment expressly states that the Neighborhood Services Division "transfer has also become a part of this suit." The Summary Judgment notes that the transfer to the Neighborhood Services Division is an incident of retaliation alleged by the employee and ruled that the transfer was not retaliatory. Petitioner included the transfer in his Initial Brief to the United States Court of Appeals for the Eleventh Circuit and also argued that the elimination of his duties, his exclusion from key meetings, and the closing of the Citizen Coordination Section that he had supervised all supported his retaliation claim. The order affirming the Summary Judgment considered the issue of the alleged retaliatory transfer, the elimination of Petitioner's job duties over time, and an allegedly unwarranted written reprimand, and determined there was no retaliation. The Charge of Discrimination in this proceeding alleges, in relevant part, that the elimination of the Citizen Coordination Section that Petitioner had supervised was discriminatory and/or retaliatory. The order affirming the Summary Judgment considered the issue of the elimination of Petitioner's job duties over time and did not find retaliation. It is undisputed that the allegations in the Charge of Discrimination in this proceeding refer to a written reprimand issued by Petitioner's supervisor in March 2003. The written reprimand was part of the federal litigation, including the employee's Statement of Facts in Response to Orange County's Motion for Summary Judgment and in the employee's supporting exhibits. The order affirming the Summary Judgment specifically referred to the written reprimand and did not determine that the reprimand constituted retaliation. Moreover, neither DOAH nor the Commission has statutory authority to consider allegations concerning the written reprimand because those allegations involve acts that occurred more than one year before the filing of the Charge of Discrimination within the meaning of Subsection 760.11(1), Florida Statutes (2003). It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning disparate pay for two non-African American supervisors referred to higher pay for supervisors, identified in the record as Mr. Robert Hildreth and Mr. Ed Caneda, that occurred in March 2002. The federal civil court previously analyzed Petitioner's claims of pay disparity related to both supervisors. The court found that Petitioner was not similarly situated to either supervisor. The Charge of Discrimination in this proceeding alleges that Respondent subjected Petitioner to a hostile working environment when various members of the Orange County Administration defamed Petitioner's character and good name. Petitioner fully addressed the allegations of harassment and hostile work environment in his response to the motion for summary judgment in federal court. Petitioner stipulated to a dismissal with prejudice of his hostile work environment claims, and the federal court ruled that Orange County was the prevailing party on Petitioner's claims for hostile work environment. It is undisputed that the Charge of Discrimination in this proceeding does not contain any allegations concerning the failure to promote Petitioner. However, Petitioner did raise this issue and litigated the issue in federal court. The federal court ruled that Petitioner did not exhaust his administrative remedies concerning allegations that Respondent failed to promote Petitioner and that the claim arose in January 2002, prior to date when Petitioner filed simultaneous claims with the EEOC and FCHR. More than two years passed before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, Petitioner's claim of promotion discrimination falls outside the statutory one-year filing requirement prescribed in Subsection 760.11(1), Florida Statutes (2003). In any event, the claim that Respondent failed to promote Petitioner is not a new issue that was beyond the scope of the Summary Judgment. It is undisputed that allegations in the Charge of Discrimination in this proceeding concerning the alleged failure of Respondent's Office of Professional Standards (OPS) to conduct a fair and thorough investigation of his discrimination complaint referred to an investigation into Petitioner's complaint in March 2002. OPS issued its final report on July 3, 2002, approximately 21 months before Petitioner filed the Charge of Discrimination in this proceeding. Accordingly, the complaints about the OPS investigation fall outside the statutory one-year filing requirement set out in Subsection 760.11(1), Florida Statutes (2003). The federal litigation included identical allegations concerning the OPS investigation. During the federal case, Petitioner's attorney deposed Mr. William Moore, the manager of OPS, and questioned Mr. Moore extensively about the way OPS investigated Petitioner's complaint. In response to the motion for summary judgment, Petitioner specifically claimed that the investigation undertaken by OPS was unfair and discriminatory. The complaint in the Charge of Discrimination in this proceeding is not a new issue or claim, but is identical to the issue litigated in federal court. Allegations in the Charge of Discrimination that Respondent excluded Petitioner from key meetings refer to events in September 2001. The same allegations were litigated in federal court. Petitioner outlined his allegations to the federal court that allegedly showed his exclusion from key meetings. Petitioner also appealed the issue of exclusion to the appellate court. The Charge of Discrimination presents no new issue, and the issue falls outside the one-year filing requirement in Subsection 760.11(1), Florida Statutes (2003). It is undisputed that the allegation in the Charge of Discrimination that Respondent constructively discharged Petitioner, refers to being demoted, reprimanded, excluded from meetings, and transferred to the Neighborhood Services Division. The allegation of constructive discharge is not a new claim, but is the same claim that was litigated in federal court.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order dismissing this proceeding for the reasons stated in this Recommended Order. DONE AND ENTERED this 25th day of January, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 25th day of January, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esquire Deborah L. La Fleur, Esquire Gray Robinson, P.A. Post Office Box 3068 Orlando, Florida 32802 Kelvin D. Bodley Post Office Box 680507 Orlando, Florida 32686-0507 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Respondent, the Department of Insurance (the Department), has an unpromulgated agency rule not to reimburse routine defense fees at more than $85 per hour when providing for the defense of civil actions against state employees.
Findings Of Fact The Petitioner, Richard L. Windsor (Windsor), was an attorney employed by the Department of Environmental Regulation (DER, now called the Department of Environmental Protection, or DEP) when he and another DER employee were named along with the DER as defendants in a counterclaim filed in 1995 in a lawsuit (the Coxwell case) that had been brought by DER, through Windsor as its attorney of record, in state circuit court in Okaloosa County to remedy alleged intentional violations of state environmental laws and regulations. The "counterclaim" initially was not served on Windsor, and DER declined Windsor's request to defend him at that time. Instead, it was decided to ignore the "counterclaim" against Windsor until it was served on him. In 1996, after Windsor terminated his employment with DEP, the "counterclaim" was served on him. Windsor requested that DEP defend him, and DEP agreed to refer the matter to Risk Management. Risk Management agreed to defend Windsor and in September 1996 assigned the defense to an Okaloosa County attorney named Jim Barth, who agreed to an hourly rate of $75. Barth telephoned Windsor to discuss the case, and Windsor suggested that Barth investigate an out-of-state property rights organization Windsor said was sponsoring and financing the claim against him and the other DEP employee. Barth rejected Windsor's suggestion. Windsor was discomforted from Barth's decision but decided not to press the issue. In a subsequent meeting with Barth, Windsor suggested that Barth should assert the government employee defense of qualified immunity from suit. It seemed to Windsor that Barth accepted the idea. In May 1997, with trial set for July, Barth telephoned Windsor to tell him that trial was set for July 1997, and a court-ordered mediation conference was scheduled for June 1997. Windsor asked about the immunity defense and felt that Barth tried to avoid answering the question. At the mediation conference in June 1997, Barth and Risk Management made a nominal settlement offer, while DEP's lawyer refused to make any offer of settlement on the ground that the counterclaim was frivolous. Although Barth's settlement offer was rejected, Windsor became very concerned about the quality of Barth's representation. He also established through conversation during the course of the day that Barth had not asserted the immunity defense on his behalf. With trial set for July 1997, Windsor decided that he no longer could rely on Barth but would have to raise the defense on his own. Windsor consulted Davisson F. Dunlap, Jr., a Tallahassee attorney with the Carlton Fields law firm. Windsor knew Dunlap from Dunlap's representation of another DER employee who had been named along with DER as a defendant in a counterclaim filed in a previous lawsuit that had been brought by DER, through Windsor as its attorney of record (the Dockery case). Windsor was impressed with Dunlap's work on the Dockery case, including his filing of a motion for summary judgment on behalf of his client on the defense of qualified governmental immunity. Dunlap explained that his hourly rate at Carlton Fields was $175, and Windsor agreed to hire Dunlap at that rate to help get Windsor's defense where Windsor and Dunlap thought it should be. Based on this understanding, Dunlap immediately began preparing a motion for summary judgment. At Windsor's request, Dunlap presented his work product to Barth, who agreed to use it to file a motion for summary judgment. When Windsor learned that Barth missed the court's deadline for filing motions, Windsor became completely dissatisfied with Barth and eventually requested that Risk Management reassign his case from Barth to Dunlap. Risk Management agreed, contacted Dunlap, and entered into a Legal Services Contract with Dunlap's new law firm at the same $85 hourly rate in the Pennington law firm's contract. At some point (probably before Dunlap and the Carlton firm actually entered into the Legal Services Contract with Risk Management), Dunlap reported to Windsor that the contract would be for $85 an hour and that the Carlton firm would not allow Dunlap to undertake representation at that rate of pay. Windsor, who was happy just to have gotten Dunlap substituted for Barth, assured Dunlap that Dunlap would receive his full $175 an hour, as initially agreed between them, and that Windsor would pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. Neither Dunlap nor Windsor advised Risk Management of the agreement for the payment of Dunlap's full $175-an-hour fee after Risk Management's Legal Services Contract with the Carlton firm at $85 an hour. However, Windsor had in mind that, at some point in the future, he would raise the issue and be able to persuade Risk Management to contribute more towards the payment of Dunlap's $175-an-hour fee. In October 1997, Windsor began an exchange of correspondence with Risk Management that went on for several months. While touching on a number of different topics, Windsor's primary initial concern in this correspondence was the payment of Dunlap's fees for work done on Windsor's case before Dunlap's Legal Services Contract with Risk Management. Risk Management agreed without much question (notwithstanding Windsor having retained Dunlap without notice to Risk Management), since Risk Management determined that Dunlap's work did not duplicate much of Barth's. When Risk Management indicated its intent to pay Dunlap for the work at the contract rate of $85 an hour, Windsor advised Risk Management for the first time that Windsor was obligated to pay Dunlap for the work at the rate of $175 an hour; Windsor requested that Risk Management "make him whole" by paying Dunlap's full fee of $175 an hour. However, Windsor did not make it clear to Risk Management in this correspondence that he also wanted Risk Management to pay Dunlap $175 an hour for work done after Dunlap's Legal Services Contract with Risk Management. Neither Windsor nor Dunlap made it clear to Risk Management either that Dunlap also had a contract with Windsor, in addition to the Legal Services Contract, for work done by Dunlap after Dunlap's Legal Services Contract with Risk Management, or that the additional contract was for $175 an hour, which obligated Windsor to pay Dunlap the difference of $90 an hour after payment of $85 an hour from Risk Management under the Legal Services Contract. By letter dated July 1, 1998, Risk Management's Director, R.J. Castellanos, advised Windsor that Risk Management would not pay Dunlap more than $85 an hour for the work done before the Legal Services Contract. The letter explained that review did not disclose support for Windsor's contention in correspondence that Risk Management was negligent, requiring Windsor to retain Dunlap at $175 an hour prior to the Legal Services Contract. It pointed out that Windsor retained Dunlap at the time without any notice to Risk Management and that Risk Management was "deprived of any opportunity to contract with a firm at a negotiated rate" for those services (as it was able to do for subsequent services when it entered into the Legal Services Contract with Dunlap's firm). For those reasons, the letter explained, Risk Management "reimbursed you at an $85.00 rate, which is the maximum amount we pay as routine defense fees." Windsor contends that the latter quotation is, or is evidence of, an unpromulgated Division rule. The intent of the statement in Castellanos' letter was to explain why, under the circumstances, Risk Management would not reimburse Windsor more than $85 an hour for the fees he incurred for work Dunlap did before the Legal Services Contract; it was not intended to even address Dunlap's fees after the Legal Services Contract. At the time the statement was made, Castellanos did not realize there was any issue as to payment of Dunlap's fees for work done after the Legal Services Contract. The statement in Castellanos' letter was not a statement of general applicability. Risk Management generally does not reimburse defense fees; rather, it negotiates contracts directly with lawyers to provide those services and pays the fees directly to the lawyer under contract. Rather, the statement in Castellanos' letter was intended to explain that, under the circumstances, Risk Management was not going to reimburse more than maximum amount it pays attorneys with whom Risk Management contracts directly. As a matter of fact, Risk Management has approximately 250 open-ended contracts for legal services with law firms all over Florida. (It is not clear from the evidence when these contracts were negotiated, or which are still in use.) The hourly rates for those contracts range from a low of $65 an hour to a high (in approximately five or six of the 250 contracts) of $85 an hour for routine defense cases. (Hourly rates for trademark and copyright specialties are $150 an hour.) These included the $85-an-hour legal services contracts with Dunlap, once as a member of the Pennington firm and again as a member of the Carlton Fields firm. The evidence also did not prove that Risk Management has an unpromulgated rule not to exceed a fee of $85 an hour in negotiating directly with attorneys for legal services contracts for routine defense cases. The evidence was that Risk Management considers itself to be bound by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 when contracting with attorneys for legal services. The maximum fees allowed by the statute and those rules exceed $85 an hour for routine defense cases. In addition, the statute and rules allow agencies such as Risk Management to exceed the maximum standard fees under certain circumstances. See Conclusion of Law 21, infra. Risk Management interprets Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2- 37 to require it to negotiate fees below the maximum standard fees. Id. When negotiating with a lawyer or law firm, Risk Management attempts to utilize the leverage it enjoys from the ability to offer lawyers an open-ended contract with the possibility of volume business contract to negotiate for the lowest possible fee for quality services. To date, these legal services contracts have been for $85-an-hour or less for routine defense cases. But it was not proven that Risk Management has established an $85-an-hour maximum for routine defense in conflict with the maximum standard fees established in Rule Chapter 2-37. Windsor seems to make a vague argument that Section 111.07, Florida Statutes (1997), which requires an agency such as Risk Management to reimburse a prevailing employee a "reasonable" attorney fee when the agency declines to provide legal representation to defend the employee, and common law (which Windsor does not elaborate), requires Risk Management to reimburse him for Dunlap's services and that such reimbursement is not limited by Section 287.059(7), Florida Statutes (1997), and Florida Administrative Code Rule Chapter 2-37. Windsor seems to further argue that the statement in Castellanos' letter was generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments. But it was not apparent that Windsor was making these arguments until post-hearing submissions in this case. Clearly, Risk Management does not agree with Windsor's arguments (the merits of which are not subject to determination in this proceeding); more germane to this proceeding, Risk Management never understood or considered such arguments at the time of the statement in Castellanos' letter, and Castellanos clearly did not intend the statement in his letter to be generally applicable to establish the amount of reasonable attorney fees reimbursable under Windsor's legal arguments.
