Findings Of Fact On the July 1983 optometry pharmacology/pathology examination, Questions Nos. 33 through 36 refer to a hypothetical patient whose case history was set forth as follows: A 46 year old white male complains of redness of the lid margin, crusting of the lids, occasional burning and foreign body sensation. Symptoms are reported to be worse upon awakening. Patient has no visual complaints. SLE indicates redness of the lid margin, crusts surrounding the base of the lashes, (collarettes) and there are tiny ulcerated areas along the lid margin, and mader[os]is. TA normal OU. Lid scrubs, thus far, have not reduced patient symptoms. What medication would you add to his current regiment [sic]? Question No. 33 is not in issue. It called for a primary diagnosis of blepharitis, which petitioner correctly gave. NO CREDIT Question No. 34 asks what medication is appropriate, Question No. 35 requires that dosage and frequency be specified, and Question No. 36 asks for side effects. With coded responses, petitioner answered Question No. 34 "Bleph- 10," which is a trade name for certain ophtalmic preparations containing sulfacetamide. In answer to other questions, petitioner indicated eyedrops should be used, rather than ointment. As a result, he received no credit for medication, dosage, frequency or side effects. SCORING METHODOLOGY Petitioner's final test score was stipulated to be 66, four points shy of a passing grade. The answer to Question No. 34 (medication) was to have been scored, as follows: Best Choice (4 points) Adequate (3 points) Useless/Dangerous (0 points) The answer to Question No. 35 (dosage and frequency) was to have been scored, as follows: Optimal (2 points) Marginal (1 point) Inadequate (0 points) In the study guide prepared by respondent for applicants appears the following: The candidate is expected to select the best [answer] . . . only one diagnosis will be acceptable; however, more than one drug may be suitable for a given condition. * * * If a candidate selects a drug which is inappropriate for the described condition, then dosage and frequency (even if reason- able for the drug) will not be given credit. . . . Joint Exhibit No. 1. This approach is seen as in keeping with a purpose of the examination "to simulate a real patient encounter." Deposition of Pappas, p. 13. Testifying on deposition, Dr. Pappas, a Florida optometrist, explained, "Proper management means you can resolve the patient problem, not whether you know the right dosage of a medication that was ineffective for the patient's problem." At 14. STAPHYLOCOCCUS Blepharitis, medical argot for inflammation of the margins of the eyelids, is a common precursor of inflammation of the conjunctiva, or conjunctivitis, which has symptoms that include a foreign body sensation, a scratching or burning sensation and itching. The case history's report of "occas[ional] burning and foreign body sensation" suggests a secondary diagnosis of incipient conjunctivitis. The "tiny ulcerated areas along the lid margin" reported in the case history indicate staphylococcus, not seborrhea, as the cause of the blepharitis. Staphylococcus also causes conjunctivitis. SULFACETAMIDE The active ingredient in Bleph-10 is sulfacetamide, which is effective against staphylococcal infection. Candidates who listed ointments containing sulfacetamide in answer to Question No. 34 got full credit, as did candidate who answered "Sodium Sulamyd" which is a brand name both for an ointment and for a solution that contain sulfacetamide. Bleph-10 is also a brand name both for an ointment and for a solution that contain sulfacetamide, which petitioner knew at the time he answered the question. No candidate got credit for listing a medication that did not contain sulfacetamide. RELATIVE VISCOSITY Eyedrops reach the margins of the eyelids and wet the eyelashes themselves. Some authorities recommend sulfacetamide drops for blepharitis unaccompanied by conjunctivitis, although more recommend an ointment. But it is possible to apply an ointment in a way that blurs the vision, which makes eyedrops more likely to be used by some patients, and eyedrops, not ointment, are indicated for conjunctivitis. Bleph-10 solution has a polyvinyl alcohol base, which keeps sulfacetamide in contact with the lid margins (and other surfaces) for three or four times as long as when an aqueous solution is used. Ointments last still longer, 30 to 60 minutes. Insofar as pertinent here, the 1984 Physicians' Desk Reference lists identical indications for Sodium Sulamyd ointment, for the two Sodium Sulamyd solutions, for Bleph-10 solution and for Bleph-10 ointment. More frequent application of drugs compensates for their shorter contact period. In Florida, incidentally, optometrists cannot legally prescribe Bleph-10, Sodium Sulamyd or other sulfacetamide compounds. Respondent's proposed recommended order has been considered in preparation of the foregoing. Proposed findings of fact have been adopted in substance, as to the extent they are supported by the weight of the evidence, are material, and are not cumulative or subordinate.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED That respondent grant petitioner's application for licensure as an optometrist. DONE and ENTERED this 7th day of September, 1984, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1984. COPIES FURNISHED: Algia R. Cooper, Esq. 24 West Government Street Suite 275 Pensacola, Florida 32501 Frank Vickory, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mildred Gardner, Executive Director Department of Professional Regulation Board of Optometry 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent, The MG Herring Group, Inc. (MG Herring), was an employer of Petitioners.
Findings Of Fact Xencom provides general maintenance, landscaping, housekeeping, and office cleaning services to retail facilities. In September of 2015, Xencom entered three contracts for services with CREFII Market Street Holdings, LLC (CREFII). The contracts were to provide maintenance, landscaping, and office cleaning services for a mall known as Market Street @ Heathbrook (Market Street) in Ocala, Florida. Michael Ponds, Xencom’s president, executed the contracts on behalf of Xencom. Two individuals executed the contracts on behalf of CREFII. One was Gar Herring, identified as Manager for Herring Ocala, LLC. The other was Bernard E. McAuley, identified as Manager of Tricom Market Street at Heathbrook, LLC. MG Herring was not a party or signatory to the contracts. MG Herring does not own or operate Market Street. A separate entity, The MG Herring Property Group, LLC (Property Group) operated Market Street. The contracts, in terms stated in an exhibit to them, established a fixed price for the year’s work, stated the scope of services, and detailed payment terms. They also identified labor and labor-related costs in detail that included identifying the Xencom employees involved, their compensation, and their weekly number of hours. The contract exhibits also identified operating costs, including equipment amortization, equipment repairs, fuel expenses, vacation costs, health insurance, and storage costs. The contracts ended December 31, 2016. The contracts specify that Xencom is an independent contractor. Each states: “Contractor is an independent contractor and not an employee or agent of the owner. Accordingly, neither Contractor nor any of Contractor’s Representatives shall hold themselves out as, or claim to be acting in the capacity of, an agent or employee of Owner.” The contracts also specify that the property manager may terminate the contract at any time without reason for its convenience. The contracts permit Xencom to engage subcontractors with advance approval of the property manager. They broadly describe the services that Xencom is to provide. Xencom has over 80 such contracts with different facilities. As the contracts contemplate, only Xencom exerted direct control of the Petitioners working at Market Street. Property Group could identify tasks and repairs to be done. Xencom decided who would do them and how. In 2013, Xencom hired Michael Harrison to work as its Operations Manager at Market Street. He was charged with providing services for which Property Group contracted. His immediate supervisor was Xencom’s Regional Manager. In 2016, that was David Snell. Mr. Snell was not located at Market Street. Property Group also did not have a representative on site. Before Xencom hired him, Mr. Harrison worked at Market Street for Property Group. Xencom hired the remaining Petitioners to work at Market Street under Mr. Harrison’s supervision. Each of the Petitioners completed an Application for Employment with Xencom. The application included a statement, initialed by each Petitioner, stating, “Further, I understand and agree that my employment is for no definite period and I may be terminated at any time without previous notice.” All of the Petitioners also received Xencom’s employee handbook. As Xencom’s Operations Manager and supervisor of the other Petitioners, Mr. Harrison was responsible for day-to-day management of Petitioners. He scheduled their work tasks, controlled shifts, established work hours, and assigned tasks. Mr. Harrison also decided when Petitioners took vacations and time off. His supervisor expected him to consult with Property Group to ensure it knew what support would be available and that he knew of any upcoming events or other considerations that should be taken into account in his decisions. As Operations Manager, Mr. Harrison was also responsible for facilitating payroll, procuring supplies, and managing Xencom’s equipment at the site. Xencom provided Petitioners work uniforms that bore Xencom’s name. Xencom required Petitioners to wear the uniforms at work. Xencom provided the supplies and equipment that Petitioners used at work. Only Xencom had authority to hire or fire the employees providing services to fulfill its contracts with the property manager. Only Xencom had authority to modify Petitioners’ conditions of employment. Neither MG Herring, Property Group, nor Xencom held out Petitioners as employees of MG Herring or Property Group. There is no evidence that MG Herring or Property Group employed 15 or more people. Property Group hired Tina Wilson as Market Street’s on- site General Manager on February 1, 2016. Until then there was no Property Group representative at the site. The absence of a Property Group representative on-site left Mr. Harrison with little oversight or accountability under the Xencom contracts for Market Street. His primary Property Group contact was General Manager Norine Bowen, who was not located at the property. Ms. Wilson’s duties included community relations, public relations, marketing, leasing, litigation, tenant coordination, lease management, construction management, and contract management. She managed approximately 40 contracts at Market Street, including Xencom’s three service agreements. Ms. Wilson was responsible for making sure the contracts were properly executed. Managing the Xencom contracts consumed less than 50 percent of Ms. Wilson’s time. During the last weeks of 2016, Mr. Harrison intended to reduce the hours of Kylie Smithers. Ms. Wilson requested that, since Ms. Smithers was to be paid under the contract for full- time work, Ms. Smithers assist her with office work such as filing and making calls. Mr. Harrison agreed and scheduled Ms. Smithers to do the work. This arrangement was limited and temporary. It does not indicate Property Group control over Xencom employees. Ms. Wilson was Xencom’s point of contact with Property Group. She and Mr. Harrison had to interact frequently. Ms. Wilson had limited contact with the other Xencom employees at Market Street. Friction and disagreements arose quickly between Mr. Harrison and Ms. Wilson. They may have been caused by having a property manager representative on-site after Mr. Harrison’s years as either the manager representative himself or as Xencom supervisor without a property manager on-site. They may have been caused by personality differences between the two. They may have been caused by the alleged sexual and crude comments that underlie the claims of discrimination in employment. They may have been caused by a combination of the three factors. On November 21, 2016, Norine Bowen received an email from the address xencomempoyees@gmail.com with the subject of “Open your eyes about Market Street.” It advised that some employees worked at night for an event. It said that Ms. Wilson gave the Xencom employees alcohol to drink while they were still on the clock. The email said that there was a fight among Xencom employees. The email also said that at another event at a restaurant where Xencom employees were drinking, Ms. Wilson gave Ms. Smithers margaritas to drink and that Ms. Smithers was underage. The email claimed that during a tree-lighting event Ms. Wilson started drinking around 3:30 p.m. It also stated that Ms. Wilson offered a Xencom employee a drink. The email went on to say that children from an elementary school and their parents were present and that Ms. Wilson was “three sheets to the wind.” The email concludes stating that Ms. Wilson had been the subject of three employee lawsuits. On December 14, 2016, Ms. Wilson, Ms. Bowen, and Mr. Snell met at Property Group’s office in Market Street for their regular monthly meeting to discuss operations at Market Street. Their discussion covered a number of management issues including a Xencom employee’s failure to show up before 8:00 to clean as arranged, security cameras, tenants who had not paid rent, lease questions, HVAC questions, and rats on the roof. They also discussed the email’s allegations. The participants also discussed a number of dissatisfactions with Mr. Harrison’s performance. Near the end of a discussion about the anonymous email, this exchange occurred:2/ Bowen: Okay, so I know that David [Snell], I think his next step is to conduct his own investigation with his [Xencom] people, and HR is still following up with John Garrett, and you’re meeting with Danny [intended new Xencom manager for Market Street] tonight? David Snell: Yes. Bowen: To finish up paperwork, and, based on his investigation, it will be up to Xencom to figure out what to do with people that are drinking on property, off the clock or on the clock, you know, whatever, what their policy is. * * * Bowen: So, I don’t know what to make of it. I’m just here to do an investigation like I’m supposed to do and David is here to pick up the pieces and meet with his folks one-on- one, and we’ll see where this takes us. This exchange and the remainder of the recording do not support a finding that Property Group controlled Xencom’s actions or attempted to control them. The participants were responsibly discussing a serious complaint they had received, their plan to investigate it, and pre-existing issues with Mr. Harrison. The exchange also makes clear that all agreed the issues involving Xencom employees were for Xencom to address, and the issues involving Property Group employees were for Property Group to address. At the time of the December 14, 2016, meeting, the participants were not aware of any complaints from Mr. Harrison or Mr. Smithers of sexual harassment or discrimination by Ms. Wilson. On December 15, 2016, Gar Herring and Norine Bowen received an email from Mr. Harrison with an attached letter to Xencom’s Human Resources Manager, and others. Affidavits from Petitioners asserting various statements and questions by Ms. Wilson about Mr. Harrison’s and Mr. Smithers’ sex life and men’s genitalia and statements about her sex life and the genitalia of men involved were attached. Xencom President Michael Ponds received a similar email with attachments on the same day. On December 21, 2016, Mr. Ponds received a letter from Herring Ocala, LLC, and Tricom Market Street at Heathbrook, LLC, terminating the service agreements. Their agreements with Xencom were going to expire December 31, 2016. They had been negotiating successor agreements. However, they had not executed any. Xencom terminated Petitioners’ employment on December 21, 2016. Xencom no longer needed Petitioners’ services once MG Herring terminated the contract with Xencom. This was the sole reason it terminated Petitioners.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order denying the Petitions of all Petitioners. DONE AND ENTERED this 11th day of May, 2018, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2018.
The Issue Did Respondent, Commercial Concrete Systems, LLC (Commercial Concrete), discriminate against Petitioner, Bernard Maybin, because of his race or color?
Findings Of Fact Mr. Maybin was an employee of Commercial Concrete in 2019. Mr. Maybin is a dark-skinned African-American. In 2019, Commercial Concrete reprimanded Mr. Maybin for tardiness and absenteeism on January 18, April 15, and August 16, 2019. On November 8, 2019, Commercial Concrete terminated Mr. Maybin for being absent all of the preceding 30 days. This was consistent with its policy of terminating employees who were absent for thirty days without communicating with the company. During at least some of the days that he was absent, Mr. Maybin was recovering from an automobile accident. He advised Commercial Concrete of the accident. But he did not advise it which days he would be unable to work due to the accident or request leave. He also did not communicate with Commercial Concrete during the period of absenteeism, beyond advising it of the accident when it first occurred. There is no evidence that any non-African-Americans or light-skinned employees with attendance failings similar to Mr. Maybin's were treated differently than him. There is no evidence of statements by any manager or other employee of Commercial Concrete alluding to Mr. Maybin's race or color. There is no evidence that non-African-American or light-skinned employees were paid more than Mr. Maybin or received vacation pay that he did not, although his petition makes that allegation. When Commercial Concrete discharged Mr. Maybin, it was not aware that he had filed a complaint of discrimination with the Commission.
Recommendation Based on the preceding 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 of Petitioner Bernard Maybin. 2 Federal case law dealing with Title VII applies when interpreting chapter 760. School Bd. of Leon Cty. v. Hargis, 400 So. 2d 103, 108 n. 2 (Fla. 1st DCA 1981). DONE AND ENTERED this 9th day of February, 2021, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us COPIES FURNISHED: Filed with the Clerk of the Division of Administrative Hearings this 9th day February, 2021. Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Peter Shoup Commercial Concrete Systems, LLC 6220 Taylor Road, Suite 101 Naples, Florida 34109 Bernard Maybin 290 Lowell Avenue North Fort Myers, Florida 33917 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of national origin or race in violation of Section 760.08, Florida Statutes (2005),1 during Petitioner’s visit to a Burger King Restaurant on June 3, 2006.
Findings Of Fact Petitioner is in a protected class within the meaning of Subsection 760.02(6). Petitioner’s national origin is Haitian, and his race is Black. Respondent operates a Burger King restaurant located at 1260 North Fifteenth Street, Immokalee, Florida 34142 (the Restaurant). The Restaurant is a place of public accommodation, defined in Subsection 760.02(11)(b). Petitioner and two friends visited the Restaurant on June 3, 2006, for the purpose of purchasing and consuming food served by the Restaurant. Petitioner waited in line to order food for himself and his two friends. Petitioner placed his order and paid for the food he ordered. The cashier and food service employee on duty at the Restaurant was Ms. Jessica Lopez. Ms. Lopez is a Hispanic woman who is married to a Haitian man. At the time the food was ready, Ms. Lopez called the order number. Petitioner attempted to retrieve the food and Ms. Lopez asked him for his receipt with the order number on it. Petitioner indicated that he did not have the receipt. Ms. Lopez directed Petitioner’s attention to a sign stating that customers must have a receipt in order to be served. After a short conversation about the store’s policy and requirement to have a receipt, Ms. Lopez served Petitioner his food. The food order was correct, but Petitioner objected to the manner in which Ms. Lopez placed his food service tray on the counter. Petitioner claims that Ms. Lopez threw the tray on the counter. None of the food spilled out of containers or off the tray. Petitioner demanded that she serve him correctly or refund his money. Ms. Lopez refunded Petitioner’s money. It is undisputed that Petitioner had concluded his business transaction with the Restaurant after requesting the refund. Petitioner intended to leave the Restaurant. Petitioner claims that before he left the Restaurant, Ms. Lopez cursed at him and referred to his national origin by saying, “Get the fuck out, fucking Haitians.” Ms. Lopez testified that she may have cursed at him at the time she refunded the money. However, Ms. Lopez denied making any comments related to national origin. The fact-finder finds the testimony of Ms. Lopez to be credible and persuasive. During the incident at the Restaurant, Petitioner’s two friends and another gentleman joined Petitioner at the counter as he argued with Ms. Lopez. None of the men testified at the hearing. It is undisputed that the alleged comments by Ms. Lopez are the only alleged references to the national origin or race of Petitioner by any employee or manager at the Restaurant. Respondent’s store manager, Mr. Lewis Sowers, a Caucasian male, heard the disturbance at the counter of the Restaurant. Mr. Sowers asked Petitioner and the other gentlemen to leave the Restaurant. Mr. Sowers contacted the police department regarding the disturbance, and the officer on the scene completed a police report. A copy of the police report was admitted into evidence as Respondent’s Exhibit 2 without objection. The alleged discrimination by Ms. Lopez did not impede Petitioner’s ability to contract for goods or services at the Restaurant. The absence of a receipt did not prevent Respondent’s employee from serving Petitioner his food order, and the order appeared to be correct. Once Petitioner received his refund, Petitioner had no intention of staying in the Restaurant and does not have a practice of visiting Burger King restaurants unless he is eating there. Thus, any attempt to contract for goods and services with Respondent had terminated before the alleged discrimination. Petitioner did not see any other customers who lost or did not produce their receipts. Petitioner did not recall the race or national origin of any other customers who may have had their food order served in a different manner. Petitioner presented no evidence of any damages sustained as a result of the alleged discrimination. Petitioner failed to answer Respondent’s Request for Documents evidencing mental anguish, suffering or punitive damage awards he believed to be appropriate.
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 finding Respondent not guilty of the alleged discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2008, 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 17th day of October, 2008.
Findings Of Fact The Southland Corporation is a corporation engaged in the operation of convenience food stores under the name "Seven Eleven Food Stores." Petitioner, Richard V. Ballard, was employed by Southland in March of 1984. Michael Jones, Supervisor of Southland, hired Ballard. Jones interviewed Ballard and reviewed his application prior to hiring him. At the time he interviewed Ballard, Jones noticed a gap on the application in Ballard's employment which he asked Ballard about. Ballard stated he had some operations on his arm and leg and that he had omitted a job with Huntley Jiffy Foods Stores where he had been terminated unfairly and had filed a handicap complaint against them. Jones asked him if he had left anything else out, to which Ballard replied no. Ballard had been previously employed part-time at Citgo, another convenience food store, and failed to reveal this on his application. He also failed to tell Jones about this previous employment when Jones questioned him prior to his being hired by Southland. Southland was aware that Ballard was handicapped when he was hired. In fact, Jones had a discussion with Ballard at the time he was hired about any possible limitations which would have an affect on his job performance. Ballard has cerebral palsy. Jones hired Ballard knowing that he was handicapped and knowing that he had filed a handicap complaint against Huntley Jiffy Foods. After he was employed, Ballard received two raises including a $0.20 merit increase, which was the highest increase for which he was eligible, and the increase was approved by Jones on May 25, 1984, effective May 11, 1984. Subsequent to his receiving the merit increase, Ballard was counseled for several incidents involving his job performance. On September 14, 1984, Jones became aware through a conversation with a former supervisor of Ballard's that Ballard had worked for Citgo previous to his working with Southland. Jones double-checked Ballard's application and found that he had omitted his employment with Citgo from his application and he had failed to disclose the Citgo employment to Jones during the interview. Ballard was suspended on September 14, 1984, pending a meeting with Jones on September 17, 1984. At the meeting on September 17, 1984, Ballard admitted that he had worked for Citgo and that he had omitted it from his application because he did not think he would be hired if he put it on his application because he would have been terminated from two previous jobs. Ballard had omitted two previous jobs in his application, Huntley Jiffy Foods and Citgo. The application which Ballard filled out contained the statement "I certify the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal." Southland has a policy prohibiting falsification of applications and providing for termination of employees for falsifying their applications. Southland had terminated employees other than Ballard for falsification of applications. While Ballard alleges that he was terminated because he had filed a discrimination complaint against Citgo, in fact, Jones had no knowledge at the time he terminated Ballard that Ballard had filed a charge against Citgo. Southland did not learn that Ballard had filed a discrimination charge against Citgo until sometime in October, 1984, after it terminated Ballard. Southland learned of the charge against Citgo from the documents Ballard filed charging retaliation in this case. Southland purchased a part of City Service (Citgo) in September, 1983, including the Kwik Mart facilities where Petitioner had worked previously. However, it did not incur liability for charges filed against City Service. The discrimination charge filed by Ballard against City Service is being defended by City Service. Southland is not involved in the that matter in any way.
Findings Of Fact At all times relevant hereto, Respondent, William C. Leistner, was the holder of registered pool contractor's license number RP 0026242 issued by Petitioner, Department of Professional Regulation. On or about October 20, 1978, Respondent contracted with Mr. and Mrs. Joseph Caiazzo to construct a pool at 700 Coronado Drive, Punta Gorda Isles, Florida. Construction began on November 1, 1978, and Respondent was paid in full on December 8, 1978. On or about April 14, 1979, and July 13, 1979, the Respondent received two notices of additions or corrections from the City of Punta Gorda for violations of the city code on work relating to the construction of the pool. Because of Respondent's failure to make the aforesaid additions or corrections, the City of Punta Gorda revoked the license of Respondent on August 13, 1979. Respondent admitted that the above violations occurred. However, he declined to present any mitigating evidence.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent William C. Leistner, be found guilty of the charges set forth in the Administrative Complaint and that his license be suspended for a period of six months from the date of the final order entered herein. DONE and ENTERED this 12th day of June, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER 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 12th day of June, 1981. COPIES FURNISHED: Charles F. Tunnicliff, Esquire 130 North Monroe Street Tallahassee, Florida 32301 Mr. William C. Leistner 741 Sabal Palm Lane Punta Gorda, Florida 33950
The Issue The issue for consideration in this hearing is whether the Petitioner, Lee C. Smith, was unlawfully discriminated against by the Respondent, Food Lion, Inc., on the basis of his marital status.
Findings Of Fact At all times in issue, Respondent, Food Lion, Inc., operated its food supermarket, No. 728, in Tampa, Florida. Petitioner, Lee C. Smith, was employed by Respondent as manager. Petitioner was discharged from employment with the Respondent on December 2, 1990. The "constructive advice memo" supporting the discharge indicated the action was being taken because of "dishonesty - fraud - reputation of manager." The background to the charge related that 9 checks, totalling $1,100.00 were cashed by Petitioner's wife and "possibly endorsed or OK'd by Mr. Smith." The memo went on to further state that the decision [to discharge] was based on current evidence "and also failure to maintain mgt. role." The memo further indicated that while in management training, Mr. Smith had a problem with returned checks and "was documented on same." The memo was signed by Mr. Legett and was also signed by the Petitioner on December 5, 1990. Petitioner claims that when he first learned of the check situation, during the period March through June, 1990, when he was a management trainee, on his own initiative and without prompting by anyone in authority, he notified his store manager and assistant manager of the situation and suggested they call in a tel-alert advising all Food Lion stores in the area not to cash any checks for his wife. He was not discharged at that time. He also claims that after he was promoted to manager, his wife again started passing bad checks without his knowledge. When he found out about them, in October and November, 1990, before he was discharged, he paid some of them off. He also instituted another tel-alert through the Dunedin store, where some of the checks had been written, but he did not alert the people in his own store not to cash them. Apparently, Mrs. Smith cashed some checks in Store 728 but only one was approved by Petitioner. An area-wide listing of dishonored checks shows some that were cashed by Mrs. Smith. This listing is sent to each store and probably came to Petitioner's store. Petitioner admits he may have seen it but most of the checks written by Mrs. Smith were approved by the assistant manager. Whenever he saw a check listing with his wife's name on it, he redeemed that check, but the listing he saw was for his store only. He claims not to have seen listings from other stores, but from time to time, the manager of other stores would call him to ask if they could take her checks. He claims always to have said no. None of the checks relied upon by Respondent in the discharge action were admitted in evidence. Petitioner claims that at the time in issue, he had no knowledge his wife was writing the bad checks. During this period, he and his wife were having domestic difficulties. Some of the time they were living together and some of the time they were separated. Even when they were separated, she continued to come into the store for purchases and to cash checks. Petitioner claims that as a result of his discharge by the Respondent he has been damaged in a total amount of between $452,122.55 and $518,122.55, including legal fees. These sums are based on his salary at the time of his discharge, modified by certain assumptions regarding sick pay, bonus, profit sharing and holiday pay. At the time of his discharge, Petitioner was earning $550.00 per week and claims he was due an increase to $610.00 per week. Therefore, he claims, his base salary for December, which he was not paid, would have been $2,440.00. Added to that, he claims is 2 percent for sick pay totalling $572.00, a 2 percent bonus of $572.00, a 15 percent profit sharing pay out of $4,290.00 and holiday pay for 6 days at $110.00 per day, for $660.00. This additional amount totals $6,094.00 which, when added to the base salary claimed due amounts to $8,534.00 for December, 1990, not paid to him because of his termination. His base salary of $610.00 per week for calendar year 1991, would have totaled $31,720.00 and his insurance benefit would have been an additional $1,242.60. This totals $32,962.60. Added to that, he claims are the bonuses, sick pay, profit sharing, profit forfeiture, holiday pay at $122.00 per day for 6 days, and two weeks vacation ($1,220.00) for a subtotal of $9,566.00. When this figure is added to his base for 1991, he claims his total income from Respondent would have been $42,528.60 for the year. However, when his actual earnings from Kash & Karry, with whom he found employment after he was discharged by Respondent, in the amount of $13,941.58 are deducted, his actual loss for calendar year 1991 is, he claims, $28,587.60. Following the same formula, using identical factors but with slightly different amounts for each due to a projected increase in weekly salary, the net loss to Petitioner is claimed to be $19,903.32 for calendar year 1992, and through March 5, 1993, the date of the hearing, his calendar year 1993 loss is claimed to be $6,474.39. The sum total of the yearly losses is $71,109.77 to which Petitioner has added a 1 percent per month interest figure which totals $19,910.73 for the 28 months in issue. The sum of these figures is $91,020.50. To this Petitioner has also added a 4 year loss of projected profit sharing pay outs had he stayed with Food Lion which he estimates at between $30,000.00 to $45,000.00 per year. At $30,000.00 the total would be $120,000 to which Petitioner has added an unexplained $200,000.00. Adding this to the $120,000.00, and the $91,020.50 amounts to $411,020.50 to which Petitioner has added 10 percent legal fees of $41,102.05 for a grand total of $452,122.55. Applying the same calculations to a loss of profit sharing figure of $45,000 per year for 4 years, and the unexplained $200,000.00 addition, with similar 10 percent legal fees and the actual claimed out of pocket loss described above, his claim amounts to $518,122.55. In support of his claim of Food Lion earnings, Petitioner submitted only one pay slip, for the period ending 12/01/90 which showed his regular earnings to be $1,100.00 and special earnings of $650.00 for the period. The evidence he presented is insufficient to support his monetary claim. His earnings at Kash and Karry are not questioned. Petitioner's wife's bad check activity first came to light when he was a manager trainee and he paid those checks off immediately. However, in the latter part of 1990, a loss prevention investigation was initiated into alleged cash shortages and bad checks at Petitioner's store. Mr. Satterfield, the Area Perishable Supervisor was told by the investigator that Petitioner was aware of his wife's passing of bad checks. Mr. Satterfield also talked to other employees. One of these, Mr. Koonce, cashed several checks for Mrs. Smith which had been approved by one of the managers. Petitioner was one of those approving managers on only one occasion. Based on that one approval, which he does not know to have been for a subsequently dishonored check, he merely assumed the Petitioner approved the others. An unsworn written statement to the investigator, Mr. Greer, by Kimberly Lantrip, an employee of another Food Lion store, indicates that Petitioner told the grocery manager it was OK to cash his wife's checks and hid the bad check register bearing his wife's name for several weeks when it came in. This evidence is clearly double and even triple hearsay evidence, however, and though admissible here, is of minimal probative value. Furthermore, neither were the checks themselves nor photocopies thereof were offered. Mrs. Smith, by sworn affidavit, also hearsay, indicated that at no time did Petitioner have any knowledge she had written checks in Food Lion stores, nor did he ever approve any for her or tell anyone else to cash them. This statement carries little evidentiary weight. Petitioner clearly had knowledge of his wife's prior check writing activity and, in fact, paid off several. He obviously failed to take appropriate action to correct her activity or to preclude her writing other checks at Food Lion stores. After the investigation, Satterfield met with Petitioner and other supervisors, and as a result of that meeting, where at least one supervisor recommended termination, Mr. Satterfield, who had observed Petitioner over the months in both training and as assistant manager and saw him do nothing wrong, nonetheless decided to put the Petitioner on indefinite suspension with pay pending further investigation. Mr. Satterfield then notified the Regional Supervisor and Mr. Legett, the Area Supervisor, of what he had done. The next he heard about it was when the constructive advice memo terminating Petitioner was issued. He thereafter had nothing more to do with the matter. Mr. Legett was satisfied at the way Petitioner took care of the first series of bad checks written by Petitioner's wife in the Spring of 1990. However, based on what he was told by Mr. Satterfield, and the information contained in the loss prevention investigation, he concluded that Petitioner was aware of the second series of bad checks his wife was writing and did not attempt to stop them. Based on this, which he found showed fraud and dishonesty on Petitioner's part, he decided to discharge Petitioner Before doing so, however, he discussed the matter with Food lion's Vice President for Personnel who agreed with the decision to discharge. While Petitioner's failure to take corrective action to preclude his wife from cashing any further checks at Food Lion stores reflects on his management ability and may support termination for that reason, absent a clear showing of his conspiracy with her, his encouragement of her actions, or his knowing acquiescence in her misconduct, it does not rise to the level of fraud or dishonesty. Regarding Petitioner's claim for damages, Mr. Legett indicates a proposed raise of $60.00 per week in 1990 is not justified. A maximum raise is $20.00 per 6 month increment based on performance. Not all managers get raises each year. In addition, continuing employees do not get paid for holidays they don't take off. If the time is not taken, it is lost. However, if a person is terminated, any unused accrued vacation time for that year is paid. By the same token, sick days are not compensated. Employees receive 2 percent of salary as a sick pay bonus at the end of the year unless too much sick leave is taken. In general, a sick day taken once a week results in a net loss, not earned bonus. Also, profit sharing is not a constant but varies year by year. In 1990 and 1991, the amount was 15 percent. The amount for 1992 had not been determined as of the hearing, but 15 percent is a maximum. In any case, employees do not become eligible to participate in the profit sharing plan until they have been with the company for 5 years. If the employee leaves before the five years are up, the accrued but unpaid profit sharing maintained in his name is forfeited and paid on a pro rata basis to other employees. The most Mr. Legett, an individual relatively high up in management, ever got was 2 percent. He has never received anywhere near 5 percent of his salary. Effective January 1, 1993, employees contribute $21.00 per month for insurance. Prior to that time, there was no contribution.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, recommended that Lee C. Smith's Petition for Relief from Unlawful Discrimination based on marital status, relating to his discharge from employment by Respondent, Food Lion, Inc., be dismissed. RECOMMENDED this 13th day of April, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-6047 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: Respondent's counsel submitted Proposed Findings of Fact but failed to number them. They will be treated paragraph by paragraph, however, in this appendix. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and, except for references to hearsay evidence, incorporated herein. Mr. Koonce, the only individual interviewed by the investigator who appeared at hearing indicated he had seen Petitioner approve only one check for his wife and assumed from that, he had approved others. The balance of the hearsay evidence, though admissible for a limited purpose, is considered of minimal probative value. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Not a Finding of Fact but more a comment on the state of the evidence. Accepted only as to the showing that the issue of Petitioner's knowledge of his wife's check writing activities was a part of the related case involving discrimination based on race. Irrelevant to the issues herein. COPIES FURNISHED: Lee C. Smith P.O. Box 260922 Tampa, Florida 33685-0922 Steven C. Ellingson, Esquire Arnold & Anderson 1200 Peachtree Center Cain Tower 229 Peachtree Street, N.W. Atlanta, Georgia 30303 Margaret Jones Clerk Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
