The Issue The issue to be determined is whether Petitioner proved that Respondent, SolarTech Universal, LLC ("SolarTech"), discriminated against him on the basis of Petitioner's race, national origin, age, or disability in violation of section 760.10, Florida Statutes (2020).
Findings Of Fact Based on the evidence presented and the record as a whole, the undersigned makes the following findings of relevant and material fact: Petitioner was employed by Respondent. He worked on the production line, working at different stations, assembling various components of solar panel systems or related equipment. 2 At the beginning of the hearing, Respondent represented that it would order the hearing transcript. Respondent later filed a request to dispense with ordering the transcript, due to the fact that it could not afford the transcript. A telephonic hearing was held to discuss the request. Respondent again asserted it could not afford the transcript. When asked if he wanted to order the transcript, Petitioner disclosed, essentially, that he was also unable to afford the hearing transcript. The undersigned was careful to explain to both parties that if no transcript was ordered, there would be no official hearing transcript and the undersigned would rely upon his notes, his recollection of the evidence, and the hearing exhibits. The On March 22, 2019, Petitioner voluntarily resigned from his employment with Respondent. His exit interview was performed that same day and the exit forms he signed contained no mention of discrimination of any kind. Significantly, Petitioner never filed any verbal or written complaints of discrimination during his employment at SolarTech. Apparently, Petitioner had some sort of physical disability, but offered no detailed or helpful testimony to explain the nature, scope, or extent of his disability. Based on the limited evidence and the reasonable inferences from the evidence, Petitioner's disability involved some sort of unexplained vision impairment or limitation. There was no medical evidence, documentation, or certifications offered to verify or describe his disability or condition. The narrative testimony presented by Petitioner regarding his employment problems or issues was brief, indistinct, and vague. Petitioner's voluntary resignation--as best as could be determined by the undersigned--had something to do with a report that was filed, which involved Petitioner's alleged sexual misconduct against a female employee by the name of Danita Jackson ("Jackson"). Petitioner claimed that the report was false. Petitioner said he quit because he was "going through all those issues." Petitioner added that another reason he quit was because the company intended to, or did, use him, and two other black employees, as "modern slaves" for only low pay. Petitioner offered no documents during his presentation. When asked by the undersigned if he had any documents to offer during his case-in-chief, he responded that the documents "he needed" were "not here." Essentially, this was the sum and substance of Petitioner's brief evidentiary presentation. undersigned reluctantly agreed not to require Respondent to order the transcript, and entered an Order to that effect. As a result, there is no existing transcript of the hearing. The undersigned finds that Petitioner failed to establish a prima facie case of discrimination or retaliation of any sort at the hearing. Despite the brief and unpersuasive presentation by Petitioner, Respondent called two witnesses and offered a variety of documents to explain its position in response to the disjointed and imprecise "claims" presented by Petitioner at the hearing. Evidence Offered by Respondent During Petitioner's tenure at SolarTech, Petitioner did not report or document any claims of discrimination for the management team or Human Resource Department ("Human Resources"). During his exit interview, Petitioner likewise made no references to any claims of discrimination or retaliation. In response to Petitioner's claim of retaliation, in that Respondent shared or issued an allegedly false sexual harassment claim, Respondent offered Exhibits 7-1, 7-2, 7-3, and 8-1, and the testimony of Roraff. Exhibit 7-1 is an Employee Incident Report completed by Horace Ducram (Shift Supervisor), which specifies that the complaint made against Petitioner was for "harassment" (second sentence) and not "sexual harassment" as claimed by Petitioner. Exhibit 7-2 is an Employee Incident Report completed by Jodilynn Brown (HR Manager) that reviews the incident, as well as the action that was taken to resolve the harassment claim that was made by Jackson. As documented in these notes, Petitioner was advised not to have any direct contact or conversation with Jackson. Petitioner said "he understood and that this will never happen again." On September 11, 2018, both parties were advised to keep their distance from one another, that this was best for both parties involved. SolarTech's Human Resources followed up on September 28, 2018, and determined that there were no further issues reported by either party. Exhibit 7-3 is a letter written on September 17, 2018, by Petitioner, in response to the harassment complaint. In it, Petitioner acknowledged that the claim by Jackson was general harassment misconduct, and not sexual harassment. Petitioner provided no persuasive direct or circumstantial evidence that supported his claim that Respondent discriminated or retaliated against him by sharing any reports or claims of sexual harassment. Respondent determined that no false or slanderous reports about Petitioner were shared with the Florida Division of the Blind Services or any other potential employer. It was SolarTech's policy only to confirm employment, dates of hire, and position or title. This evidence was credited by the undersigned. Petitioner also unpersuasively claimed that one of the forms of discrimination was SolarTech's requiring him to operate two workstations during his shift as "slave labor." To address this "claim," Respondent submitted Exhibits 5-1, 5-2, and 5-3, and the testimony of Roraff. Exhibit 5-1 outlines the staffing requirements by assignment or workstation. This document was supplied by Meyer Burger, the company that designed and manufactured the solar panel manufacturing equipment used by SolarTech. Thirteen employees, per shift, were considered full capacity to operate the production line. Exhibit 5-2 shows the staffing census by month, as supplied by Paychex, Respondent's payroll processing company. Production on the line required 13 employees to work at full production. The staffing during each of the months in question was: November 2018: 22 employees (+8 employees over staffed)[.] December 2018: 22 employees (+8 employees over staffed)[.] January 2019: 19 employees (+6 employees over staffed)[.] February 2019: 18 employees (+5 employees over staffed)[.] March 2019: 14 employees (+1 employee over staffed)[.] Exhibit 5-2 reflects that SolarTech had to implement a reduction in force ("RIF"). It was required to reduce its staff by three employees in February 2019. This is one month before Petitioner resigned and not three days as Petitioner claimed. The RIF was legitimate and necessary. As outlined in Exhibit 5-2, SolarTech's staffing was overstaffed by one employee at the time Petitioner resigned. This fact belies Petitioner's claim that Respondent was understaffed, or that he was being used or forced into "slave labor." Exhibit 5-3 illustrates the number of units produced per month versus production capacity (4200 modules per month). This exhibit also shows that monthly production, relative to production capacity, presented no strain on labor, nor would it have resulted in Petitioner being overworked. In fact, for the months Petitioner complained he was overworked, production was: 1. November 2018: 100 out of 4200 (2.3% of capacity)[.] 2. December 2018: 16 out of 4200 (0.3% of capacity)[.] 3. January 2019: 126 out of 4200 (3% of capacity)[.] 4. February 2019: 722 out of 4200 (17% of capacity)[.] 5. March 2019: 1539 out of 4200 (37% of capacity)[.] At no time during the five months prior to Petitioner's resignation was the facility at SolarTech understaffed, nor was he overworked. The production team was only required to work at a limited pace, that was, at peak, only 37% of the speed or output designed by the machine manufacturer. Staffing levels at the work stations were always above that required by the machine manufacturer. During the months that Petitioner complained about, the machines ran at a limited production capacity or speed that was, at its highest pace, only 37% of capacity. Conversely, approximately 63% of the employee's time was not working on production. So, Petitioner and other employees had more time to take additional breaks. Petitioner had a chair at his station to sit in during these down times. Even though production employees were required to be trained at multiple stations, as referenced by their job description, they were only required to work one station at a time. SolarTech employees worked on a linear production line. On a linear production line, the employees can not physically work more than one station at the same time. If there was a requirement to operate two stations during a shift, the workload did not increase. The employee merely moved back and forth a few steps between two consecutive work stations in the process. This explanation offered by SolarTech constituted persuasive and credible evidence to establish that any actions by it involving Petitioner during the five months leading up to his voluntary resignation were for legitimate business reasons, and not discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 4th day of December, 2020, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 4th day of December, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Jodilynn Brown SolarTech Universal, LLC 1800 President Barack Obama Highway Riviera Beach, Florida 33404 (eServed) Errol Hayden White Apartment 1 194 Norwich West Palm Beach, Florida 33417 Cheyenne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The stipulated issue1 is whether Respondent discriminated against Petitioner on the basis of her race by denying Petitioner equal pay in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2007).2
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is an African- American female and filed a complaint of race discrimination, with the Commission. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is the Office of the Sheriff for Brevard County, Florida. The evidence, in its entirety, does not establish a prima facie showing of discrimination. Nor does the evidence prove that Petitioner received unequal pay. Respondent first employed Petitioner sometime in October 2002. Petitioner voluntarily resigned her position of employment with Respondent on May 30, 2008, for a higher-paying position with another employer.3 On July 29, 2006, Respondent transferred Petitioner from the position of payroll specialist, in the accounting department, to a position of personnel officer in the personnel department. The transfer was a promotion, and Petitioner received a 10 percent increase in pay. Ms. Bridget Bauer replaced Petitioner in the accounting department. The supervisor in the personnel office was Ms. Imogene Mullins. Ms. Mullins supported the transfer of Petitioner and considered Petitioner to be a valuable asset due to Petitioner's varied experience, including experience in human resources. On April 3, 2008, Ms. Bauer transferred from the accounting department to another position within Respondent's organization. Ms. Denise Postlethweight, the supervisor of the accounting department, asked Petitioner to temporarily assist the accounting department until the department could replace Ms. Bauer, to train the replacement for Ms. Bauer, and to assist in interviewing applicants to replace Ms. Bauer. Petitioner agreed to perform these temporary duties. Respondent, Ms. Postlethweight, and Ms. Mullins did not promise Petitioner she would receive additional compensation for performing these temporary duties in the accounting department until the accounting department replaced Ms. Bauer. Respondent's administrative policy does not authorize compensation for temporary duties. Ms. Mullins attempted to obtain authorization for increased compensation for the temporary duties performed by Petitioner without success. No pay increase was approved because Petitioner was performing equivalent supervisory duties in the accounting and personnel departments on a temporary basis. One alleged comparator relied on by Petitioner is not a comparator. Ms. Lisa Gillis performed equivalent supervisory duties as the special projects coordinator and sheriff's assistant. However, Ms. Gillis performed equivalent supervisory duties on a permanent basis rather than a temporary basis. Respondent's administrative policy authorizes additional compensation for dual duties performed on a permanent basis. Petitioner spent much of her time during the hearing attempting to show that Ms. Mullins promised additional compensation to Petitioner as an inducement for Petitioner's agreement to perform dual duties on a temporary basis. As previously found, the fact-finder does not find that evidence to be persuasive, and, if it were, the evidence does not rise to the level of a preponderance of the evidence. Moreover, evidence of an offer and acceptance of additional compensation between Ms. Mullins and Petitioner as an inducement for the performance of dual duties is relevant to an action for breach of contract rather than discrimination. Jurisdiction for an action for breach of contract is in circuit court rather than DOAH.
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 allegations against Respondent and dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 15th day of June, 2010, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2010.
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
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. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Soler and Palau USA Ventilation Systems, LLC (“Soler & Palau”), discriminated against Petitioner based upon his race or color, in violation of section 760.10, Florida Statutes (2016).2/
Findings Of Fact Soler & Palau is an employer as that term is defined in section 760.02(7). Soler & Palau is mainly in the business of manufacturing and supplying fans and other recovery ventilators to various industries, including residential, commercial, industrial, and institutional buildings. Petitioner, a black male, was hired at Soler & Palau as a Crater I in the distribution department at the company’s B-2 warehouse facility on July 21, 2014. Petitioner was interviewed and hired by Soler & Palau’s warehouse distribution manager, Tracy Noble, who is a white female. As a Crater I, Petitioner was responsible for fabricating wooden crates or boxes, using woodworking hand tools and power tools, around the items (mostly industrial fans and accessories) to be shipped. Crater I was the entry level position at Soler & Palau’s warehouse. Petitioner was the only Crater I at the B-2 facility, but most, if not all, of the other employees at B-2 had started at the Crater I position and understood its duties and job requirements. Eight employees worked under Ms. Noble at the B-2 facility. Six of those employees were black and two were white. Ms. Noble testified that training as a Crater I normally takes about 90 days, and that Petitioner was fully trained. She testified that, although it is an entry level position, Crater I is very important because Soler & Palau’s customers order fans specific to their needs and the crater is responsible for making sure the right fan goes in the crate. Many Soler & Palau customers are restaurants that cannot open if the correct equipment is not in place. Some building codes require specific fans. Each Soler & Palau fan has a specific drive pack that provides the horsepower to move a specific amount of air. Two fans may look the same but have very different capabilities. One fan may meet code for a specific purpose and one may not. It was Petitioner’s responsibility to review the orders, which listed everything that should go into the package by part number. Petitioner would pull the corresponding fan, and any accessories (such as a damper or speed controls), and place them on a pallet. Petitioner would then build the crate around the fan. He would weigh the order, record the weight and dimensions of the package, and turn that information over to the shipping clerk, who would print the shipping documents and labels for Petitioner to affix to the package. Petitioner would place the labels on the fan, again making sure that all numbers matched and that he had the correct fan. Petitioner would then send out the order. On May 19, 2015, nearly 10 months after his hiring, Petitioner pulled and shipped the wrong product to a customer. On June 2, 2015, Petitioner again shipped the wrong product to a customer. The product was needed by another customer immediately. At its own expense, Soler & Palau rushed another order to that customer. As a consequence of his errors, Petitioner received an informal warning from Ms. Noble on June 8, 2015. On the same date, Ms. Noble sent an email to human resources administrator Krissy Velleca (née Carter) requesting that the informal warning be noted in Petitioner’s employee file. Ms. Noble wrote that the company was going through a transition to new fans that were very similar to the old ones, and that she counseled Petitioner “to double-check and triple-check himself until the transition is complete.” She wrote that Petitioner agreed to watch his work more closely and that she had asked a couple of other employees to check behind him “until we are all used to the changes.” Finally, Ms. Noble wrote that she did not want to issue a formal warning to Petitioner because of all the recent changes and that she would watch Petitioner to make sure the problem did not repeat itself. Ms. Noble testified that she had three different people attempt to retrain Petitioner, out of concern that he was not catching on to the job because of the manner of his original training. On June 19, 2015, Petitioner again made a mistake on an order by placing the wrong part number and wrong order identification on the shipment. Soler & Palau incurred additional freight and expedited UPS charges in correcting Petitioner’s mistake. The company also had to deal with a disappointed customer who had been mistakenly informed that their shipment was in transit. On June 22, 2015, Ms. Noble issued a formal written warning to Petitioner for the June 19 incident. The warning statement read as follows: This statement will serve as a verbal warning for Poor Workmanship in accordance with Section 3.26 of the Employee Handbook. Gus[3/] is required to always verify that the fan tag matches the order acknowledgement with both the order and part number. Both of these orders were entered 06/19/15 with a “same day” shipping request that did put additional workload and time pressures on the crew, but this is one step that cannot be skipped. In accordance with the company handbook, any future occurrences of this same offense can result in a written warning, (3) days suspension and/or termination. Petitioner signed the statement, acknowledging that he had read and understood the formal written warning. Ms. Noble testified that Petitioner was again provided additional training. On July 20, 2015, Ms. Noble completed Petitioner’s annual performance review. She noted that Petitioner needed improvement in the quality of his work and in his knowledge of the technical aspects of his job. She further noted that Petitioner’s attendance and punctuality verged on an “unsatisfactory” rating. In spite of Petitioner’s spotty evaluation, Ms. Noble recommended him for the full three percent raise available to Soler & Palau employees upon their annual reviews. In an email to Ms. Velleca and vice president of operations, Greg Johnson, Ms. Noble explained her rationale as follows: Please see attached for Gus’ annual review. You may question why I am giving him the full 3% when I didn’t give him a great review. All of his attendance issues have stemmed from transportation issues as far as I remember. I know it must be hard to do anything about that situation when he is barely making enough to live on. I’m hoping it will make a difference in what he is able to do to remedy his attendance problems. I don’t think there would have been these issues if there were bus service offered here, but that is not currently available. Please let me know if this seems out of line. He is currently at the minimum for his position, so it is not an overly generous move. Please let me know if you see anything else that needs to be clarified or changed. Mr. Johnson responded, “I am fine with your decision and reasoning.” At the hearing, Ms. Noble testified that she knew Petitioner had trouble getting to work. She thought that if he were making enough money to get his truck repaired, his attendance issues would stop and he would feel less stress and make fewer mistakes on the job. Ms. Noble stated that she does not like firing people because it causes disruption to the operation and means that she has to hire and train a new person, who may or may not turn out to be a good employee. She was willing to do everything she could to improve Petitioner’s deficiencies because he did a good job most of the time. On September 3, 2015, while Ms. Noble was on vacation, Mr. Johnson discovered that Petitioner had once again shipped the wrong product to a customer. Mr. Johnson sent an email to Ms. Velleca inquiring about Petitioner’s hiring date and job responsibilities. He wrote, “I ask because he just made a significant mistake in pulling 2 fans for shipment. I need to dig into how he was trained, are we asking him to do something outside his expected responsibilities, etc.” Ms. Velleca testified that she investigated to make sure that Petitioner was on the job when the error occurred and that a fill-in had not made the mistake. She stated that she and Mr. Johnson did not want to take action against Petitioner if the error was not his fault. She ultimately determined that Petitioner had made the error. Ms. Velleca testified that the B-2 facility had historically been graded as 100 percent efficient and 99 percent error-free by the parent company in Spain. Petitioner’s errors were affecting B-2’s overall performance. The parent company was starting to notice a falloff in customer orders and the additional freight costs attributable to correcting Petitioner’s errors. Upon returning to work, Ms. Noble began her own investigation of the mistake, which involved Petitioner’s mixing up two fans for shipment. On the same day, Ms. Noble caught Petitioner making yet another error by placing the wrong tags on a fan. Though she caught this mistake on the warehouse floor before the fan shipped, Ms. Noble decided that Petitioner had made too many mistakes and that he should be terminated from employment with Soler & Palau. On September 18, 2015, Petitioner was called to Ms. Noble’s office and provided with a separation notice from Soler & Palau. The stated reason for his discharge was unacceptable performance of his job duties. At the hearing, Petitioner testified that he believed he was fired because he did not volunteer for overtime work. He believed that the errors of which he was accused were the fault of other employees and constituted a pretext for his dismissal. Specifically, Petitioner blamed two delivery truck drivers for the erroneous deliveries. They were Gevon Campbell, who was black, and a white driver whom Petitioner knew only as Mike. Petitioner claimed that these drivers were charged with checking the orders and ensuring that they are correct. Aside from his claim, Petitioner offered no evidence that the delivery drivers were responsible for checking the orders. Ms. Noble persuasively described Petitioner’s Crater I job as inclusive of ensuring that the correct items go into the crates. Petitioner also alleged that a wiring technician named Dave Boyin told him that when he worked as a crater, he made many mistakes on the job but was nonetheless promoted to a higher position. Mr. Boyin is white. He did not testify at the hearing. Ms. Noble testified that she promoted Mr. Boyin to wiring technician because he was doing a good job as a crater. She stated that Mr. Boyin made errors during his 90-day training period, as does any trainee, but that he made no mistakes as a crater after his training period was over. Ms. Noble’s testimony was persuasive. At the hearing, Petitioner’s testimony was mostly directed toward making a case of wrongful termination, not racial discrimination. At the conclusion of Petitioner’s testimony, the undersigned counseled Petitioner that the jurisdiction of this tribunal was limited to his discrimination claim. In response, Petitioner stated, “I don’t think it was race. I don’t really think it was race, you know what I’m saying?” Petitioner continued to insist that he was fired for refusing to work overtime. Even if Petitioner’s insistence on this point were credited, it would not establish that he had been discriminated against because of his race or color.4/ Petitioner offered no credible evidence that Soler & Palau discriminated against him because of his race or color 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 Soler and Palau USA Ventilation Systems, LLC, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 21st day of March, 2017, 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 21st day of March, 2017.
The Issue The issue in this case is whether Petitioner was dismissed from her employment with Respondent on the basis of racial discrimination.
Findings Of Fact Petitioner is an African-American female. She was employed as a Revenue Specialist I by the Department's Child Support Enforcement Program for a little over four years, from September 20, 2000, until January 28, 2005. On January 24, 2005, the Department notified Petitioner by letter that her employment would be terminated, effective January 28, 2005, for violating three Disciplinary Standard Rules and the Department's policies related to "loafing," conduct unbecoming an public employee, and the misuse of state property and equipment. The Department charged Petitioner with using the State's SunCom system to make 711 personal long-distance calls totaling 5,483 minutes in the 18-month period from December 1, 2002, to May 31, 2004.1 Petitioner claimed that some of calls, totally about 700 minutes, were not personal calls.2 Petitioner admitted that the balance of the calls, totaling about 4,783 minutes, were personal calls. When Petitioner began employment with the Department, she signed a form acknowledging that she read and understood the "Department of Revenue Personnel Disciplinary Procedures and Standards Rule (#12-3.011, F.A.C., effective July 1999)." This rule includes a prohibition against personal use of state property or equipment without authorization. The rule further provides that the disciplinary action for a violation of this prohibition ranges from oral reprimand to dismissal for the first occurrence, suspension to dismissal for the second occurrence, and dismissal for the third occurrence. Petitioner did not receive authorization to use the SunCom system for personal long-distance calls. Petitioner admitted that she knew it was wrong to use the SunCom system to make personal long-distance calls, but she "really didn't think that it was something that [she] would be terminated for." Petitioner believes her co-workers also used the SunCom system to make personal long-distance calls. Even if this claim were relevant to the issue of whether the disciplinary action taken against Petitioner was discriminatory, she presented no evidence to support the claim. Petitioner argues that her dismissal for misuse of the SunCom system was a pretext for her dismissal and that racial discrimination was the true reason. Petitioner did not pursue at the final hearing her initial claim that age discrimination was another basis for her dismissal. Petitioner presented no evidence of written or oral statements made by Department supervisors or administrators indicating a racial motive for her dismissal. The sole basis for Petitioner's claim of racial discrimination is that other Department employees who were not African-Americans were not dismissed for their misuse of the SunCom system. In determining what disciplinary action to take against an employee, the Department considers mitigating factors, including the quality of the employee's work performance and his or her length of employment. On December 3, 2003, Petitioner received an oral reprimand from her immediate supervisor, Betty Tanner, for tardiness. On February 25, 2004, Petitioner received another oral reprimand from Ms. Tanner for tardiness. On January 5, 2005, Petitioner received an oral reprimand from Ms. Tanner for an absence without leave and a "Memo of Concerns" because of unsatisfactory work performance issues. Respondent's Exhibit 4 is a compilation of information about 25 cases of SunCom misuse by Department employees from 1996 through 2006. The list of employees is organized according to the number of minutes of SunCom misuse in an 18-month period. Of the 25 cases reported, Petitioner ranks third highest in total minutes of SunCom system misuse. Respondent's Exhibit 4 indicates that the worst SunCom abuser was M.D., an African-American male, who had 15,000 minutes of SunCom misuse. In the case of M.D., the Department's human resources administrator recommended that M.D. be dismissed, but he was ultimately demoted, instead. According to the Department's witness, Nancy Kelly, the decision not to dismiss M.D. was because of his length of service (7 years) and good work record. The next worse case of SunCom abuse by a Department employee involved L.W., an African-American female who had 13,186 minutes of SunCom system misuse. L.W. had 18 years of service and a good work record. Dismissal was recommended for L.W., but she was suspended, instead. Dismissal was recommended for a Caucasian male employee, F.S., who had 11 years of service and who had misused 4,574 minutes on the SunCom system. He resigned before his dismissal. An African-American female, L.C., with nine years of service, was allowed to refund the value of 3,551 minutes of personal use of the SunCom system. The Department's disciplinary actions in the 25 cases of SunCom system misuse do not indicate a pattern of racial discrimination. It should be noted that the director of the Child Support Enforcement Program in which Petitioner works, Lilly Bogan, is also an African-American. In considering mitigating factors, the Department determined that Petitioner's past incidents of unsatisfactory work performance and her relatively short length of service did not provide a basis for taking disciplinary action other than dismissal for her extensive misuse of the SunCom system. The Department followed the procedures set forth in Subsection 110.227(5)(a), Florida Statutes (2005), that are required before an agency can dismiss a Career Service employee, including giving written notice of the proposed disciplinary action, providing an opportunity to appear before the Department official taking the action, and providing an appeal to the Commission. Petitioner failed to prove that racial discrimination was the reason for her dismissal. The more persuasive evidence in the record shows that the reason Petitioner was dismissed was the reason given to her by the Department's Employee Relations Manager, "It was the minutes and they were just way too high."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of January, 2007, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 3rd day of January, 2007.
The Issue The issue for determination is whether Petitioner was subjected to a hostile work environment condoned by Respondent due to Petitioner's race and sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by the Auditor General, Division of Public Assistance Fraud. That program, along with Petitioner, co-workers, and the persons in her chain of command, were later legislatively transferred to the Florida Department of Law Enforcement. On January 28, 1999, Petitioner filed a complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that the State of Florida, Office of the Auditor General discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01- 760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's race (African- American) and sex (female). Petitioner claimed that Respondent's actions created a hostile work environment as a consequence of her race and/or sex. Petitioner has not been demoted, reassigned, or terminated by her employer. Petitioner complained of certain events that occurred in 1994 regarding the assignment of particular cases. She alleged that she was not being fairly treated in the assignment of pending cases. These events, which occurred in 1994, are time-barred from further consideration by virtue of Section 760.11(1), Florida Statutes, which requires filing of a complaint within 365 days of occurrence of an alleged violation. On one occasion on an unspecified date during her employment, a co-worker asked Petitioner whether her ponytail was real. On March 11, 1998, Regional Supervisor William Martin, a white male, typed a memorandum for Petitioner. The memorandum was precipitated by a conference between Petitioner and her immediate supervisor in which procedures regarding work hours, breaks, and lunch hours were discussed. Petitioner was told in the course of the conference that some staff members perceived Petitioner as "not playing by the rules." Petitioner responded through the memorandum typed by Martin. The memorandum set forth Petitioner's complaints concerning her work situation, inclusive of her observation that others were committing the same violations of policy of which she was accused with no repercussions occurring to them. Petitioner had the opportunity to review a draft of the memorandum and made corrections to the draft. Petitioner then signed the final version of the memorandum, which included Petitioner's express declination to pursue the matter further, stating that she "wanted my personal concerns and feelings on record." Nowhere in the memorandum does Petitioner allege that she has been treated differently on the basis of her race or her sex. There are two supervisors in Respondent's Jacksonville, Florida, office. Petitioner’s immediate supervisor is Laverne McKinney, an African-American female. The other supervisor in the Jacksonville office is Stan Stephens, a white male. The relationship between Stan Stephens and Petitioner is strained. The strained relationship is not due to racial or sexual discrimination. On one occasion during Petitioner's employment, Stan Stephens asked Laverne McKinney to instruct Petitioner to let him know when Petitioner would not be available to work until 5:00 p.m., so that the office could be properly manned until that time. The request followed an incident when Stephens, who usually leaves the office at 4:30 p.m., was unable to find someone to mind the office when he left. Unknown to Stephens, Petitioner had left early to perform official business for Respondent. On another occasion during Petitioner's employment, while Laverne McKinney was the designated "Acting Regional Supervisor," Stan Stephens called William Martin, a former supervisor at the time, on a travel issue regarding Petitioner. Martin was working in Respondent's Miami, Florida, office at the time and McKinney was away from the Jacksonville Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ DON W. DAVIS 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 13th day of February, 2001.
The Issue The issue in this case is whether Respondent, Just 1 More Bar and Grill (hereinafter the "Bar"), discriminated against Petitioner, Mildred R. Smith, by refusing her entry into the Bar due to her race, African-American.
Findings Of Fact Petitioner is an African-American woman. The Bar is a Florida sole proprietorship which operates as an establishment selling alcohol for consumption on the premises. Despite its name, there is no grill or food service at the Bar. The Bar is owned by Kerry Winkler, a Caucasian male. On or about May 8, 2011, Petitioner was going to meet a male friend at an establishment across the street from the Bar. Petitioner could not remember the exact date, but thought it was in April or May. Petitioner was accompanied by a female friend. Petitioner and her female friend had just left church, and it was approximately three or four o'clock on a Sunday afternoon. Upon arrival at the male friend's establishment, no one was there. Petitioner decided to go into the Bar to have a beer while she waited. Her companion did not join her. Petitioner recounts that as she started to enter the Bar, a man stood in the doorway, held out his hand, and said, "You can't come in here." Nothing more was said. The man was a large white man and wearing a "biker's jacket" with a rag on his head. He had a large mustache. Petitioner says that she could see into the Bar and that all the patrons in the Bar were white. She turned around and walked back to her car. As she crossed the parking lot, a man sitting on a motorcycle said, "Man, that was quick." Petitioner concluded that she had been discriminated against because of her race. She believed she had been denied admission to the Bar because she is African-American. She filed a complaint with the Florida Commission on Human Relations about the incident. In her verified complaint, Petitioner said that she "was met by a white female (Kerry Winkler) who told me I could not enter the building and that I was not welcome there." Under oath at the final hearing, Petitioner said that she could not explain her verified statement to the Commission, because she remembers being met by a large white male, not a woman. She did not know why the name Kerry Winkler was in her signed statement. Kerry Winkler, the owner of the Bar, is, in fact, a Caucasian male. At the final hearing, Petitioner was introduced to Kerry Winkler; she said he was not the man who met her at the door of the Bar. No one associated with the Bar knows who the man was that Petitioner met at the front door. There are no employees fitting his description and neither the owner, nor patrons at the Bar, recognized the person Petitioner described. Several regular patrons of the Bar testified at final hearing. Each of them was an African-American male. Each affirmed the Bar's open policy of allowing all people to come into the Bar. None of them had ever witnessed any discriminatory behavior at the Bar, especially by the owner who they all knew and respected. Neither the owner, nor his wife (who was likely operating the Bar on the day in question), could identify the person that Petitioner described. No one by that description is an employee or otherwise affiliated with the Bar. Neither the owner, nor his wife, was aware that Petitioner had allegedly been denied admission into the Bar until several months after the fact. They received notice of the allegation from the Commission well after the fact. Petitioner did not contact the Bar after the fact to make a complaint or report the alleged incident.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by Mildred R. Smith in its entirety. DONE AND ENTERED this 8th day of August, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 2011. COPIES FURNISHED: Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mildred R. Smith Post Office Box 4158 Lake Wales, Florida 33859 Robert H. Grizzard, II, Esquire Robert H. Grizzard, II, P.A. Post Office Box 992 Lakeland, Florida 33802-0992
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of his national origin, or by retaliating against him, and if so, what remedy should be ordered.
Findings Of Fact The Department of Environmental Protection (DEP or the Department) is an agency of the State of Florida. The Guana Tolomato Matanzas National Estuarine Research Reserve (Reserve) in Ponte Vedra, Florida, is a part of the Department, managed under the Coastal and Aquatic Managed Areas Program (CAMA). The Reserve is essentially an institution for research and education, often involving partnerships with universities and other government entities. The Department has more than 15 employees. In July 2011, approval was granted to create a new position for an Environmental Specialist I to provide for the Geographic Information Systems (GIS) needs of long-term monitoring, modeling, and mapping projects at the Reserve. Dr. Michael Shirley is the director of the Reserve, a position he has held since 2007. He has been an employee with the DEP or its predecessor agencies since 1990. Dr. Shirley is also the regional administrator for the East Coast of Florida Aquatic Preserve Program, and in that capacity is responsible for overseeing the management of the Aquatic Preserves on the East Coast of Florida. Dr. Shirley is responsible for some 44 employees, including 34 at the Reserve. Since Dr. Shirley knew a lot about GIS from his research background, he was excited about the prospect of having a new GIS position at the Reserve. Dr. Shirley was very involved in filling the new GIS analyst position. He reviewed the approximately 20-30 applications for the position, helped select individuals to interview, and participated in interviews. Six applicants were ultimately chosen for interview by telephone or in-person by the selection team. While the testimony was not entirely clear as to the national origin of all of these individuals, one of them had a national origin from China and one, Petitioner Mr. Dasyam Rajasekhar, had a national origin from India. Mr. Rajasekhar‘s application and resume indicated that he held a master‘s degree in forestry from Stephen F. Austin University, was experienced in GIS, Remote Sensing, and Geo- Spatial analysis, and that he held a GIS Professional Certification. Mr. Rajasekhar did an excellent job in the interview. On his own initiative, he gave a PowerPoint presentation, which Dr. Shirley later made available to other staff. Dr. Shirley testified that he was ?very excited? about the prospect of Mr. Rajasekhar‘s coming on board and stated that, ?his resume, his credentials, were by far the best of the applicants we had received.? All of the members of the interview team supported him for the position. The team made a unanimous recommendation to the CAMA director, who had final approval authority, that Mr. Rajasekhar be hired. In October 2011, Mr. Rajasekhar was hired as an Environmental Specialist I at the Reserve by the DEP. On November 7, 2011, he acknowledged access to several Department administrative policies, including DEP 435, entitled ?Conduct of Employees? and DEP 436, entitled ?Discrimination and Harassment.? Mr. Rajasekhar was a probationary employee for the first year, as are all new hires, which meant that he could be dismissed without cause and that he did not have the right to grieve or appeal Department actions. After the initial year, a probationary employee becomes a permanent career service employee. This information was contained in DEP 435. Mr. Rajasekhar‘s GIS analyst position was supposed to be supervised by the watershed coordinator, but this position had not yet been filled, so Mr. Joseph Burgess, the resource management coordinator for the Reserve, reporting to the assistant director, Ms. Janet Zimmerman, was named as Mr. Rajasekhar‘s immediate supervisor. Mr. Burgess, Ms. Zimmerman, and Dr. Shirley were thus all three supervisors of Mr. Rajasekhar, moving up his chain of command, and none of them was a probationary employee. Mr. Burgess did not have any experience in GIS, so any detailed oversight of Mr. Rajasekhar‘s work product was conducted by Dr. Shirley. Mr. Rajasekhar‘s Position Description indicated that among other duties, he was to apply GIS tools and products to address resource conservation issues, develop inundation models to reflect the impact of projected sea level rise on local natural communities and public infrastructure, and develop GIS maps for National Estuarine Research Reserve System (NERRS) initiatives such as habitat mapping and change. Mr. Rajasekhar had excellent skills in performing ?high–end? geospatial analysis. He could look at satellite imagery and turn it into a product. Mapping products were used in every one of the Reserve‘s programs and were important in making decisions on land-use and the protection of Reserve resources. They were also very important to the grants obtained by the Reserve. Mr. Rajasekhar was well-qualified to do his job. One grant project, in place before Mr. Rajasekhar was employed, was from the University of Florida (UF) to map changes that would occur in wetlands due to sea level rise. Dr. Shirley was one of the Co—Principal Investigators on the project. Co- principal investigator status is conferred on the people who write the grant proposal. Another major Reserve grant was from the National Oceanic and Atmospheric Administration (NOAA), which funded 40 percent of the Reserve. It is very important for the Reserve to maintain these grant relationships, because these partnerships provide funds as well as visiting personnel to allow research to continue. On December 26, 2011, the Reserve hired Ms. Andrea Small as its Watershed Coordinator, reporting to Mr. Burgess. Under the new staffing plan, the GIS analyst was supposed to report to the watershed coordinator. As a new employee, Ms. Small was in probationary status. While Mr. Rajasekhar‘s ability to do high-end geospatial analysis was never in question, issues soon arose involving other tasks he was supposed to perform. He took longer than most employees in using basic computer programs, such as Microsoft Office programs, and staff complained to Dr. Shirley that he would keep asking them to perform the same basic tasks for him. Dr. Shirley‘s response generally was: He‘s new. Help him, because we help everyone. Let‘s get him –- you know, get him moving in the right direction. As time went on, the pattern did not change, and some staff members concluded that Mr. Rajasekhar was always going to ask them to perform certain tasks for him, so they took the position that they would show him something once, but then insist that he do it for himself the next time. Within the first three months of his employment, Mr. Rajasekhar made an appointment to meet with Dr. Shirley. At the meeting he firmly stated that he needed a pay raise. Dr. Shirley testified that in tone it was ?more strong than =asked,‘ but not quite a demand.? Dr. Shirley thought that the request was badly timed. State government was laying off workers, he had several other deserving employees who had not had a raise in several years, and Mr. Rajasekhar was still on probation. Raises had to be approved at the deputy secretary level, and Dr. Shirley felt that although Mr. Rajasekhar had good geospatial analysis skills, he could not justify putting him in for a raise. Dr. Shirley explained why the timing was bad and why he felt he could not make the case for giving Mr. Rajasekhar a raise just then. Mr. Rajasekhar took out a notebook and indicated to Dr. Shirley that he was writing down, ?[y]ou will not give me a pay raise.? Dr. Shirley felt that exaggerated effort at documentation was meant to infer some sort of discrimination on Dr. Shirley‘s part. Dr. Shirley explained that he was not treating Mr. Rajasekhar differently from anyone else. He told Mr. Rajasekhar that if any employee came in after only three months on the job, he would decline to put him in for a raise. Dr. Shirley told him that if he believed that this was some sort of discrimination, they needed to contact the Bureau of Personnel Services and talk to them. This seemed to de-escalate the situation, and Mr. Rajasekhar stopped writing. Mr. Rajasekhar said that he did not want to call the Personnel office, and indicated to Dr. Shirley that he understood the situation. When a ranger needed maps relating to a prescribed fire for resource management, Mr. Rajasekhar told the ranger that this was ?low-end? GIS work, that the ranger could do it himself, and that Mr. Rajasekhar would show him how to do it. Dr. Shirley testified that the ranger was unfamiliar with GIS software and that this was part of Mr. Rajasekhar‘s job. The Reserve had a limited number of employees and everyone needed to help everyone else to accomplish the Reserve‘s mission. Dr. Shirley felt that morale and teamwork were suffering. However, Mr. Rajasekhar ultimately completed the burn maps. Mr. Rajasekhar also had difficulty completing other more sophisticated tasks assigned to him. He asked Dr. Shirley to run Kappa statistics for him. Kappa statistics are commonly used in GIS work to correlate computer images with known reality in the habitat. Mr. Rajasekhar had indicated on his resume that he had developed a field sampling protocol to calculate Kappa statistics. Yet, Mr. Rajasekhar approached Dr. Shirley at one point and asked if Dr. Shirley would do the Kappa statistics on a project. When Dr. Shirley asked Mr. Rajasekhar why he was asking the director of the Reserve to do the statistics, Mr. Rajasekhar replied, ?[i]t needs to be done by a Ph.D.? Dr. Shirley testified that Mr. Rajasekhar later went to the research coordinator and asked the same question, but that ultimately Mr. Rajasekhar ended up doing the statistics himself. Mr. Rajasekhar‘s presentation at his employment interview and his credentials indicated that he could work with pollution loading coefficients and determine how water flowed and affected estuarine water quality. But, when Dr. Shirley asked him to conduct such an analysis, he replied that this work required a Ph.D.-level hydrologist. One of the first mapping projects Mr. Rajasekhar produced for Dr. Shirley involved flow ways, the way water flows through a watershed. Dr. Shirley was using the map in a meeting with Flagler County officials when he realized that Mr. Rajasekhar had indicated that in one canal water was flowing in opposite directions. When this was called to Mr. Rajasekhar‘s attention, he simply removed the arrow directions and started referring to the maps as ?flow lines? rather than ?flow ways.? The maps then didn‘t show the information that was needed, which Dr. Shirley explained to Mr. Rajasekhar. Mr. Rajasekhar stated in his applicant profile, ?[e]stuarine scientists would rate my knowledge of estuarine ecology at an experienced professional level.? Yet in working on a project in which a vendor was going to take satellite imagery, when it was necessary for Mr. Rajasekhar to determine the time of low tide, he asked Mr. Burgess how he could do this. Mr. Burgess had to show him how to read the NOAA tide chart. Within the same period of time, Mr. Rajasekhar also asked Dr. Shirley the same question, who showed him the same thing. In later conversations between Mr. Burgess and Dr. Shirley, they realized this had happened and discussed how odd this was, if Mr. Rajasekhar was an experienced professional of estuarine ecology. When asked to do a project, Mr. Rajasekhar would often say that in order to do it properly, he would need a certain amount of money, or new software, or additional hard drive space. Dr. Shirley would have to repeatedly explain that the Reserve was unfortunately on a limited budget and that a product would still be valuable if done under less-ideal conditions. Rather than delay the project, he would tell Mr. Rajasekhar that the analysis should be performed with the best technology practically available, and for Mr. Rajasekhar to annotate the data to indicate the level of accuracy. In early January, the Reserve was hosting a tour of the watershed for UF personnel working on the sea level rise project. The UF participants came over in two vans with lots of the students who were working on the project. The trip required four-wheel drive vehicles, and given the large number of people from UF and the limited number of vehicles, there was only enough room for a few Reserve personnel to visit the watershed. Dr. Shirley chose himself, as Director, Ms. Emily Montgomery, the coastal training program coordinator and a co-principal investigator on the grant, and Ms. Small, the watershed coordinator, who was giving the tour of Pringle Creek, one of her acquisition projects. Mr. Rajasekhar subsequently approached Dr. Shirley and said that he felt he had been excluded from the trip. Dr. Shirley explained why so few Reserve personnel could participate and why he had selected the ones that he did. In late January, when Dr. Shirley was on the road visiting a preserve site, the UF team asked Dr. Shirley which ?tiles? of LIDAR data were missing for Pellicer Creek, because they had decided to pick up the cost of filling in the missing pieces. The UF people were going to meet with the vendor that afternoon, so they wanted the information as soon as possible. Dr. Shirley e-mailed Mr. Rajasekhar to ask which tiles were still missing based on the map that Mr. Rajasekhar had shown him a month earlier. Mr. Rajasekhar‘s response only described background information regarding the map. Dr. Shirley replied that he only needed the number of tiles that were still missing. Again, Mr. Rajasekhar was argumentative and evasive: he gave explanations, but not the number of tiles that were missing. This dialogue went on for four or five e-mails. Ms. Small, who had been copied on all of the e-mails, finally e-mailed Mr. Rajasekhar to explain that all Dr. Shirley wanted to know was whether or not the imagery had been acquired and the number that were still missing. Mr. Rajasekhar finally provided that information to Dr. Shirley. Ms. Small and Mr. Rajasekhar were working in the same small office, which was only about 12 square feet, with their desks in opposite corners. After this incident, Ms. Small testified that Mr. Rajasekhar got up from his desk, put his hands on his hips, and said, ?[w]ell, I‘ve been excluded from the project, so I don‘t feel like I have to answer you,? or words to the effect. Ms. Small believed Mr. Rajasekhar was referring back to the UF watershed tour. Ms. Small felt that because she was a woman, Mr. Rajasekhar was not giving her the respect she deserved and that he was being insubordinate to her as his supervisor. Ms. Small told Mr. Rajasekhar that if he was going to be demeaning to her, he needed to leave the room. Mr. Rajasekhar did not leave, and Ms. Small decided that she should leave instead. After Ms. Small left the room, Mr. Rajasekhar e-mailed Dr. Shirley, with copy to Mr. Burgess, saying: ?A little while ago Andrea told me that I should not be working in this office and leave. Please let me know.? Mr. Burgess replied, ?Raj, You do not have to leave your office, continue working.? Dr. Shirley received complaints from both Ms. Small and Mr. Rajasekhar about the incident. Ms. Small told him she felt threatened and disrespected and Mr. Rajasekhar told him he felt as if his character had been attacked. Upon further inquiry, Dr. Shirley decided that Ms. Small had not been physically threatened, but rather that she was upset at Mr. Rajasekhar‘s ?posturing,? which she felt was inappropriate, as she was his supervisor. Dr. Shirley was very concerned with the misunderstanding that had occurred and with this type of interaction between his employees. Dr. Shirley was also concerned that he had not been able to easily get a simple answer from Mr. Rajasekhar. Dr. Shirley wanted to make things work. He wanted to get his employees working together and not lose the potentially very important contribution Mr. Rajasekhar could make to the Reserve. On January 30, 2012, Dr. Shirley met with Mr. Burgess, Ms. Small, and Mr. Rajasekhar to find out more details about the incident and to try to work out a plan for the future. In considering options to resolve the tensions, Dr. Shirley discovered after talking with Department personnel in Tallahassee that because Ms. Small and Mr. Rajasekhar were both serving in the position of Environmental Specialist I, that she could not technically be his supervisor, even though she had been serving in that role for about a month. On January 31, 2012, Dr. Shirley sent an e-mail to the three summarizing their meeting. The e-mail outlined several procedures to ?improve communication and efficiencies? with respect to GIS services. Among other items, the e-mail outlined that Mr. Rajasekhar would report to Mr. Burgess, Mr. Rajasekhar would provide a list of current GIS projects underway with milestones to completion, GIS projects would be completed using the best practically available data, notations would be made as to the accuracy of the product, and a summary report would be prepared by Mr. Rajasekhar at the completion of each project. The e-mail identified three projects as ?high priority?: SLAMM Model Inputs to the UF Team; the NERRS Habitat Mapping and Change Initiative; and the Reserve‘s Flow-Ways modeling effort. Dr. Shirley, Mr. Burgess, and Mr. Rajasekhar jointly developed a GIS analyst work plan for Mr. Rajasekhar. It listed seven major projects that he was to be working on, including the updating of ?burn maps,? SLAMM inputs to the UF group, the preparation of a GTMNERR Habitat Mapping plan, and generation of LIDAR based water flow ways. These projects included interim and final products, as well as due dates. Dr. Shirley was very pleased with the e-mail outlining workflow changes and the work plan, because he believed they reflected collaborative effort and he hoped and believed that they would improve operations at the Reserve and resolve some of the issues regarding Mr. Rajasekhar‘s employment. DEP Deputy Secretary Greg Munson was scheduled to visit the Reserve on May 25, 2012. Dr. Shirley prepared an agenda for the visit, establishing staff assignments and themes for various tours and briefings to complement DEP headquarters initiatives relating to restoration, ecotourism, and water resources. While some agenda items specified participation by specific staff members, Mr. Rajasekhar was not listed on any of these. Other items, including lunch at the Matanzas Inlet Restaurant, and a meeting with all Reserve staff, were open to everyone. Mr. Rajasekhar did not show up at the time and place scheduled for Deputy Secretary Munson to meet with staff, but Mr. Rajasekhar did meet with him for a short period shortly after the scheduled meeting time. Sometime in May, Mr. Rajasekhar e-mailed Dr. Kathryn Frank, head of the sea level rise project being conducted by the Reserve and UF, requesting that he be added as a co-principal investigator on the project ?for ethical reasons.? He did not let his supervisor, Mr. Burgess, or the director, Dr. Shirley, know that he was doing this. Dr. Frank explained to Mr. Rajasekhar that his contribution was appreciated, but that co-principal investigator status rested with the people who initially submitted the grant. Dr. Frank called Dr. Shirley to ask what was going on and to comment that the request was very strange. Dr. Shirley was concerned because of the important relationship between UF and the Reserve. On May 29, 2012, Mr. Rajasekhar was counseled by Dr. Shirley for inappropriately contacting the head of the UF project to request co-principal investigator status without even advising his superiors or getting their permission to do so. Mr. Rajasekhar indicated that he understood and would not do it again. On May 31, 2012, a meeting was held at UF on the sea level rise project. Dr. Shirley, Ms. Montgomery, Ms. Small, and Mr. Rajasekhar made the drive over. Mr. Rajasekhar was critical of the UF speakers and the SLAMM modeling that was presented. Dr. Shirley was not too concerned for the presenters themselves, because as scientists, he believed that they would be used to criticism. However, he later testified that he was concerned because Mr. Rajasekhar had offered no solutions, but had just criticized the accuracy of the model, with no constructive suggestions about how it could be improved. Then, during discussions at the meeting about emergency management issues relating to sea level rise and people getting away from the coast, Mr. Rajasekhar made the comment that he personally had a low income and would not be able to get out because he was at the poverty level. Dr. Shirley was concerned because he believed this personal reference was ?inappropriate,? that it was not true, and that it embarrassed the Department and presented the Department in a bad light. On June 4, 2012, Mr. Rajasekhar received an official ?oral? reprimand from Dr. Shirley for conduct surrounding the UF project team meeting and his comments regarding his personal income. The reprimand cited his behavior as a violation of DEP Standard of Conduct 435-7(a), Conduct Unbecoming a Public Employee. Mr. Rajasekhar was directed not to engage in further conduct that would bring discredit to DEP or to the State. The reprimand also noted that Mr. Rajasekhar ?barely spoke? on the two-hour drive to and from the meeting and did not walk with the rest of the delegation, but walked far in front of them. Dr. Shirley noted that this behavior was not unprofessional, but that it concerned him. The reprimand further advised that if Mr. Rajasekhar was having issues or problems that he felt he could not discuss with Dr. Shirley, that the Employee Assistance Program was available to him and to his family. When Mr. Rajasekhar was presented with the reprimand, he became defensive and argumentative. He denied having said that his income was at poverty level. However, Dr. Shirley did not believe this because the other Reserve employees present at the UF meeting confirmed that he had made that statement. Mr. Rajasekhar went on to tell Dr. Shirley that he felt he had been excluded from the Deputy Secretary‘s visit that occurred earlier in the month. Mr. Rajasekhar began talking about discrimination, saying that he had been a union representative at the Minnesota Department of Natural Resources and that knew what his rights were. Dr. Shirley was surprised at this response to the oral reprimand, because he considered it to be only a minor corrective action, not action leading toward dismissal or constituting significant discipline. Mr. Rajasekhar prepared a written response to the reprimand that same day. After presenting his differing recollection of the remarks regarding low-income housing and poverty-level incomes, his response went on to state in part: I appreciate you bringing your concerns about my behavior during the drive and the walk. Thanks for letting me know that the same is not un-professional. I participated in the work-related topics and fully acknowledge that I did not do so in non-work related topics (such as individual private matters). * * * Finally in future even if I am cautious, there inevitably would come some complaints that my conduct is unbecoming of a public employee in the eyes of some or few; for example when issues such as ethnicity/ demographics crop up. Would I then be subjected to more disciplinary action? Would minimizing (or possibly eliminating) my presence in public or other forums be helpful? Petitioner‘s presumably sarcastic reference to courses of conduct he should follow in the future when issues might arise involving ethnicity fell short of a direct claim that the oral reprimand was an act of discrimination. However, his response did indicate that Mr. Rajasekhar perceived some connection between his comments at the UF meeting, his national origin, and the reprimand. In response to Mr. Rajasekhar‘s statement during the meeting on the oral reprimand that he had felt excluded during the Deputy Secretary‘s visit, Dr. Shirley found the original e-mail that he had sent out to all of the staff with the agenda attached. Dr. Shirley forwarded this e-mail to Mr. Rajasekhar on June 4, 2013, stating that Mr. Rajasekhar had not been excluded and again explaining that due to the limited time, only a few aspects of Reserve functions that related to DEP priorities could be placed on the agenda. Shortly afterward, Ms. Zimmerman was coordinating preparation of NOAA Operations Grant progress reports. She sent out an e-mail at 12:38 p.m. on June 11 to several staff members, including Mr. Rajasekhar, explaining that two reports were due: progress report #4 on F0990; and the second progress report on F1001. Both of these reports were to cover the first half of the calendar year. She explained that she was attaching to the e-mail the remaining tasks from F0990 that she needed an update paragraph on, as well as a copy of progress report #3 so the staff could see what had been sent for the previous reporting period. She requested the update paragraphs by July 13, 2013, and advised that she would send out similar information on her request for the other grant report, F1001, shortly. At 2:37 p.m. on June 11, Mr. Rajasekhar replied to Ms. Zimmerman‘s e-mail by pasting two paragraphs from progress report #3 along with the following comments: I have gone through the documents and perused the items of relevance as requested by you. I seem to be in the dark and also somewhat confused. Below is the summary of what I just learned: (text pasted from progress report #3) * This is the first time; I am coming across this information in any significant way. I believe I have not been provided this document before for perusal. I have not been involved in any decisions either. (more text from progress report #3) * The above document contains much more information (GIS) and is concise (the way that would be ideal). However the information for most part is new to me. Flow ways update: I have not been privy to most of the information and neither have been involved (in any significant way) in any aspect of development. Habitat mapping and change plan Update: The same as above. Hence if you need professional, accurate and significant response from [sic], I request that I be more involved in the critical processes that produce these portions of the document so that I may be better equipped to do so. In addition it would greatly help some aspects of my work. Please let me know. Later that same afternoon, Ms. Zimmerman sent a second e-mail to several staff members, including Mr. Rajasekhar, specifically requesting input into the second progress report for NOAA F1001. She attached the original grant task text, as well as a copy of the previous progress report (July through December 2011) as an example of what she was looking for. The e-mail further identified the specific tasks each of the staff members was responsible for (Mr. Rajasekhar‘s were identified as Task 4, outcome 4; and Task 5, outcome 1), asking for an update paragraph by July 13, 2012. Ms. Zimmerman and Mr. Rajasekhar had further communications regarding the update paragraphs. He forwarded her e-mails he had sent earlier involving the two projects. She requested him to summarize this information into update paragraphs. He sent her another document. She asked him to carefully review her original e-mails and to submit an updated paragraph on each project. On June 12, 2012, Mr. Rajasekhar responded to Ms. Zimmerman, with copies to Dr. Shirley and Mr. Burgess, in part as follows: I have gone through the two documents (the relevant part). Both the documents contain information that is new to me for the most part. In addition, I have not been involved in producing or guidance of these documents. In fact very little of my time or efforts are spent on such activities. A very minor part of these large documents is in fact relevant to my performance. After spending significant time going through the documents and perusing the items of relevance, I am more confused. One document has items of relevance (4 & 1) as guided by you that I am not aware of till now. Had my work involved discussing or guiding these in any way, I would have been more equipped to adequately respond. More over when such documents come to my attention for response, I recommend that relevant part/s be sent to me so that I am not confused anymore and do not unnecessarily tax my time or efforts. These communications from Mr. Rajasekhar were not helpful to Ms. Zimmerman in preparing the progress reports. The tasks for which she was requesting update paragraphs from Mr. Rajasekhar involved the flow ways project and the Habitat Mapping and Change Plan, which were part of Mr. Rajasekhar‘s agreed-upon work plan and which had been identified as ?high priority? projects. Ms. Zimmerman sent an e-mail to Ms. Geraldine Austin, with copy to Dr. Shirley and Mr. Burgess, stating in part, ?[a]s a probationary employee the amount of oversight/direction needed of this employee and his response lead me to believe that termination is necessary.? On June 13, 2012, Dr. Shirley sent an e-mail to Mr. Larry Nall, interim CAMA Director, describing some of the incidents and concerns regarding Mr. Rajasekhar. In the discussion of the oral reprimand, the e-mail specifically mentioned Mr. Rajasekhar‘s references to discrimination. The e- mail also summarized the situation involving Ms. Zimmerman‘s attempts to update the progress reports for the NOAA grants. Dr. Shirley also forwarded the e-mail to Mr. Kevin Claridge, who had been hired to fill the open position of CAMA Director, but had not yet begun work. Dr. Shirley testified that he believed that the situations involving Mr. Rajasekhar were affecting staff, morale, teamwork, and the Reserve‘s partners. He found Mr. Rajasekhar‘s communications in response to requests from other staff members, including the assistant director and himself, to be often evasive and defensive. He believed that Mr. Rajasekhar defined his own duties very narrowly and that Mr. Rajasekhar‘s conduct and communications negatively impacted Reserve workflow and had the potential to damage the Reserve‘s partnerships. Mr. Rajasekhar was notified by letter signed by Mr. Kevin Claridge, Director of CAMA, that his employment was being terminated for failure to satisfactorily complete his probationary period, effective at close of business on June 29, 2012. This was a form letter used whenever it was found necessary to terminate the employment of a probationary employee. On October 5, 2012, Petitioner filed a complaint with the Commission, alleging that the Department had discriminated against him based upon his national origin, and had retaliated against him. In a November 7, 2012, Affidavit, Dr. Shirley set forth reasons for Mr. Rajasekhar‘s termination for submission to the Commission in response to Mr. Rajasekhar‘s complaint. It stated that Mr. Rajasekhar demonstrated ?inconsistent work performance and unacceptable behavior.? It noted that Mr. Rajasekhar had been counseled on occasions prior to his termination. It gave three reasons for Mr. Rajasekhar‘s dismissal: that his abilities were not consistent with the skills that had been reported on his job application, that Mr. Rajasekhar exhibited a defensive and negative attitude when confronted with expectations that were clearly within the scope of his job, and that on occasion Mr. Rajasekhar did not interact positively with other employees who depended on GIS support for their job functions. The Commission issued its Notice of Determination of No Cause on March 25, 2013, advising Petitioner of his right to file a Petition for Relief within 35 days. Petitioner filed his Petition for Relief on April 23, 2013. Mr. Rajasekhar was an excellent high-end geospatial analyst, but he had difficulty accepting any assignments not directly involving such analysis even though they were part of his job description. It is not entirely clear if this was because he was simply uncomfortable with some tasks, or unable to easily perform them, as appeared to be the case with some analyses involving hydrology or the calculation of Kappa statistics; or, alternatively, whether he simply felt such tasks were inappropriate for his position, which appeared to be the case with the preparation of burn maps and some tasks involving basic computer skills. In any event, his narrow definition of his job responsibilities adversely affected the work flow and made his work performance inconsistent. This affected team productivity at the Reserve. Mr. Rajasekhar never seemed to understand his role as part of the Reserve team. He made a request for a raise while still on probationary status, he made an inappropriate request for co-principal investigator standing directly to Dr. Frank without even notifying his superiors, and he indicated on more than one occasion that he believed he was being improperly excluded from events or activities at which his presence was not actually needed to support the Reserve mission. His relationship with other members of the Reserve team, including his superiors, was awkward, and at times his conduct was unacceptable and embarrassing to the Reserve. Mr. Rajasekhar was extremely sensitive to any comments about his performance. He became defensive and hostile at any suggestion that his performance was lacking in any way, and sometimes interpreted questions or comments that were not intended to question his performance as doing so. No evidence was presented to show that there were other probationary employees of the DEP who had received an oral reprimand and then continued to exhibit unsatisfactory behavior during the time that Mr. Rajasekhar was employed. Mr. Rajasekhar believed that he had been ?excluded? from the Secretary‘s visit and that there was a connection between his comments at the UF meeting, his national origin, and the reprimand. The comments Mr. Rajasekhar made in his oral and written responses to the reprimand to the effect that he had been discriminated against were statutorily protected activity. The actions of the Department toward Mr. Rajasekhar, and those of its employees, were not motivated in whole or in part by Mr. Rajasekhar‘s national origin. Mr. Rajasekhar‘s dismissal was not an act of discrimination or retaliation.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Mr. Dasyam Rajasekhar‘s Petition for Relief. DONE AND ENTERED this 11th day of September, 2013, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 September, 2013.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearings the following facts are found: At all times pertinent to this proceeding, Petitioner was a producer of agricultural products in the State of Florida as defined in Section 604.15(5), Florida Statutes (1983). However, since the pallets were not an agricultural product produced by Petitioner and were not considered in the price of the bahia sod but were exchanged back and forth between Petitioner and his customer, including Respondent American, they are not considered to be an agricultural product in this case and are excluded from any consideration for payment under Section 604.15-604.30, Florida Statutes. The amount charged Respondent American for these pallets was $1,188.00. At all times pertinent to this proceeding, Respondent American was a licensed dealer in agricultural products as defined by Section 604.15(1), Florida Statutes (1983), issued license No. 3774 by the Department, and bonded by Respondent Peerless Insurance Company (Peerless) in the sum of $15,000 - Bond No. SK-2 87 38. At all times pertinent to this proceeding, Respondent Peerless was authorized to do business in the State of Florida. The complaint filed by Petitioner was timely filed in accordance with Section 604.21(1), Florida Statutes (1983). During the month of January, 1985 Respondent American purchased numerous pallets of bahia grass sod from Petitioner paying $16.00 per pallet but has refused to pay for 240 pallets at $16.00 per flat for a total amount of $3,840.00 picked up by Respondent American's employees and billed by Petitioner between January 16, 1985 and January 26, 1985. Respondent American did not contest having received 204 pallets of bahia grass sod represented by invoice number. 6774- for 18 pallets on 1/16/85; 6783, 6785, and 6788 for 18 pallets each on 1/17/85; 6791, 6793, 6794, 6795, and 6800 for 16 pallets each on 1/18/85 and 6799 for 18 pallets on 1/18/85, 6831 for 18 pallets on 1/28/85; and 6834 for 16 pallets on 1/30/85 but contested invoice numbers 6835 and 6836 for 18 pallets each on 1/26/85. Gary L. Curtis stipulated at the hearing that Respondent American had received the 36 pallets of bahia grass sod represented by invoice numbers 6835 and 6836 which left only the matter of Respondent American's contention that it was owed credit for 20 pallets of bahia sod received in December, 1984 that was of poor quality and fell apart and had to be replaced because it could not be used. The evidence was insufficient to prove that any of the sod purchased by Respondent American from Petitioner fell apart or was of poor quality and as a result could not he utilized by Respondent American.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein it is RECOMMENDED that Respondent American be ordered to pay to the Petitioner the sum of $3,840.00. It is further RECOMMENDED that if Respondent American fails to timely pay the Petitioner as ordered then Respondent Peerless be ordered to pay the Department as required by Section 604.21, Florida Statutes (1983) and that the Department reimburse the Petitioner in accordance with Section 604.21, Florida Statutes (1983). Respectfully submitted and entered this 10th day of March, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 10th day of March, 1986. COPIES FURNISHED: Doyle Conner, Commissioner Department of Agriculture and Consumer Services The Capitol Tallahassee, Florida 32301 Robert Chastain, General Counsel Department of Agriculture and Consumer Services Mayo Building, Room 513 Tallahassee, Florida 32301 Ron Weaver, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 Joe W. Kight, Chief License and Bond Mayo Building Tallahassee, Florida 32301 Gary L. Curtis, President American Sod Company, Inc. Post Office Box 1370 Longwood, Florida 32750 Mid Florida Sod Company 4141 Canoe Creek Road St. Cloud, Florida 32769 Peerless Insurance Company 611 Aymore Road/Suite 202 Winter Park, Florida 32789 Raymond E. Cramer Esquire Post Office Box 607 St. Cloud, Florida 32769
The Issue The issues in this case are whether Respondent committed the allegations contained in the Second Amended Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Since 1999, Respondent has been licensed in the State of Florida as a health insurance agent. Pursuant to chapter 626, Florida Statutes, Petitioner Department of Financial Services has regulatory jurisdiction over licensed health insurance agents. The Events On or about December 12, 2006, Respondent was appointed as an agent with SunCoast Physicians Health Plan, Inc. ("SunCoast"), an insurer that offered Medicare Advantage HMO plans. Although Respondent was one of its appointed agents, he did not receive a salary from SunCoast, nor was he provided an office.1 In or around January 2007, Respondent was contacted by telephone by an individual——previously unknown to Respondent and whose name Respondent no longer recalls——who claimed that a local physician was interested in converting a number of consumers from other coverage to SunCoast. As the conversation progressed, it appeared to Respondent that the individual was presenting a legitimate business opportunity, as he mentioned the names of several of Respondent's acquaintances. At the conclusion of the call, Respondent agreed to meet the individual (and the individual's associate, whose name Respondent likewise does not remember) later that day at an office building at the intersection of Flagler Street and Fontainbleau Boulevard in Miami. Respondent proceeded to the agreed upon location and met with the two individuals, both of whom demonstrated substantial knowledge regarding SunCoast and its benefits. During the meeting, the two individuals advised that Dr. Abreau, a physician familiar to Respondent, desired to perform a membership conversion. As the discussion progressed, the individuals presented Respondent with approximately 30 enrollment applications for the SunCoast plan, all of which were blank with the exception of the pre-printed material. As a purported sign of "good faith,"2 the two individuals insisted that Respondent sign each of the forms on the signature line reserved for persons (e.g., agents or brokers) who assisted consumers in completing the application. Respondent ultimately agreed to do so——and to allow the unknown individuals, at their insistence, to temporarily retain the blank applications bearing his signature——with the understanding that he would return to the office the next morning, at which point Respondent would speak personally with Dr. Abreau and make arrangements to meet with the potential enrollees.3 On the following day, Respondent returned to the office building to continue with the transaction. Unable to find any trace of the two individuals, Respondent eventually located a custodian within the building, who advised that the office had been vacant for "a while." After repeated attempts over the next several days, Respondent was able to reach one of the unknown individuals by telephone, at which time Respondent was informed that the "deal was off" and that the enrollment forms would be mailed to him. Although Respondent never received the enrollment application as promised, he believed——based upon his prior experience in the industry that enrollment forms could only be submitted to an insurance company by the agent, i.e., Respondent——that the forms could not be misused and therefore no further action on his part was necessary. As such, Respondent never notified SunCoast that third parties were in possession of blank enrollment forms that bore his signature. Later during the month of January 2007, one or more unknown persons submitted approximately 30 enrollment forms (the same applications signed by Respondent) to SunCoast for processing. There is no record of who delivered the applications or by what means. Although SunCoast should have utilized the Centers for Medicare and Medicaid Services (CMS) computer database to confirm the accuracy of the personal information of each applicant that appeared on the forms, SunCoast did not do so. Had SunCoast performed such a verification, it would have discovered that the residential addresses for all of the applicants were incorrect——a clear sign that the applications were fraudulent. SunCoast processed the applications shortly thereafter, which resulted in unauthorized changes in health coverage for approximately 30 persons. In February 2007, Gabrial San Quintin was hired by SunCoast as its Director of Enrollment and Member Administration. Shortly thereafter, Mr. San Quintin discovered that an unusual number of SunCoast's mailings to its enrollees were being returned due to incorrect address information. Mr. San Quintin investigated the matter and ultimately determined that the January 2007 enrollment forms bearing Respondent's signature had not been authorized by the persons whose names appeared on the applications. However, neither Mr. San Quintin nor any other SunCoast employee notified Respondent of this information.4 In fact, Respondent credibly testified that he did not learn of the improperly submitted applications until approximately one year after his meeting with the unknown individuals. Although the approximately 30 applications processed by SunCoast in January 2007 had not been authorized by the enrollees, SunCoast continued to provide full insurance coverage until such time that the enrollees were switched back to their original coverage. During the final hearing, Petitioner presented the testimony of two of the individuals whose insurance coverage was improperly switched to SunCoast pursuant to applications bearing Respondent's signature: Digna Blanzaco and Rafael Alpizar. From the testimony of Ms. Blanzaco, it is apparent that she suffered no financial harm due to the unauthorized switch, nor was she denied any medical services. Likewise, there is no evidence that Mr. Alpizar suffered any physical harm or financial loss as a result of the improper change in coverage.5 In August 2007, SunCoast became insolvent and was subsequently liquidated. The undersigned credits Respondent's testimony that: he was not the person who submitted the applications to SunCoast in January 2007 and has no knowledge of who did so; he had no knowledge that the applications bearing his signature were going to be misused in any manner whatsoever, nor did he intend or desire for the applications to be misused; the reason he signed the forms and left them with the unknown individuals was because he believed it was necessary to do so in order to preserve what reasonably appeared to be a legitimate business opportunity; the January 2007 incident was the only occasion in which he left blank applications bearing his signature with third parties; and he received no remuneration as a result of the fraudulently submitted applications. The undersigned also finds, based upon the evidence adduced during the final hearing, that Respondent acted in good faith at all times in connection with the SunCoast applications. Ultimate Findings of Fact Petitioner has failed to prove by clear and convincing evidence that Respondent has demonstrated a lack of fitness or trustworthiness to engage in the business of insurance. Petitioner has failed to adduce clear and convincing evidence that Respondent has demonstrated the lack of reasonably adequate knowledge and technical competence to engage in insurance transactions. Petitioner failed to present clear and convincing evidence that Respondent engaged in unfair or deceptive acts or practices, as defined and prohibited by Part IX of Chapter 626, Florida Statutes, or has otherwise shown himself to be a source of injury or loss to the public.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter an order dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 2nd day of September, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 2nd day of September, 2011.
