The Issue The issue is whether Respondent committed an unlawful employment action against Petitioner by discriminating against her based on her disability in violation of Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is a 120-bed skilled nursing home. Respondent is licensed by the State of Florida and certified by Medicare and Medicaid. Petitioner is and has been a Certified Nurse Assistant (CNA) since 1975. In January 2005, Petitioner worked for Elder Care, sitting with one of Respondent's resident's from 7:00 a.m. to 3:00 p.m. Toward the end of the month, she began looking for another job because her hours as a sitter were being cut back. Petitioner learned that Respondent had an opening for a floor technician (floor tech). Petitioner had experience cleaning floors, so she applied for the job on January 31, 2005. Petitioner gave her application to Respondent's receptionist. Respondent then sent the application, to Teresa Engram, Respondent's Assistant Director of Housekeeping. The application included a health checklist/assessment. Petitioner indicated on the form that she suffered from high blood pressure, back pain, and asthma. Ms. Engram reviewed Petitioner's application, and, during an interview, inquired whether Petitioner would be able to perform the necessary work. Ms. Engram explained that the person hired for the job would have to work a flexible schedule because the facility's floors could only be stripped and waxed at night when the patients were asleep. Petitioner assured Ms. Engram that she would be able to do the job. Petitioner did not reveal that she suffered from depression. Petitioner did not tell Ms. Engram that her health problems, such as asthma, would prevent her from working around the strong chemicals used in stripping floors. Petitioner told Ms. Engram she would be able to work at nights with advance notice so that she could arrange a babysitter for her grandchild. Petitioner passed the required medical test and background check. She began working on or about February 1, 2005. Her regular hours were from noon to 8:00 p.m., Sunday through Thursday, with the understanding that she would have to work scheduled night shifts. Petitioner initially trained with another floor tech, Johnnie Betsy. After a few days, Petitioner worked on one side of the facility and Mr. Betsy worked on the other. Her duties included sweeping, mopping, and buffing the floors, as well as taking out the trash. At least once a year, Respondent's floor techs strip and wax the floors in the facility. The project takes about a month from start to finish. The work is performed at night. The waxing and stripping project was already underway for 2005 when Petitioner began working for Respondent. Ms. Engram made several attempts to schedule a night shift for Petitioner so that she could train with Mr. Betsy and help him strip and wax floors. Petitioner let Ms. Engram know that she did not want to work the night shift. Additionally, Petitioner was unhappy with her salary and complained that she should be making more money. Ms. Engram discussed Petitioner's complaints with Rhonda Cheney, Respondent's Director of Laundry and Housekeeping. Eventually, Petitioner learned that Respondent had an opening for a CNA position. Petitioner told Ms. Engram and Ms. Cheney that Petitioner was going to apply for the CNA position because it involved fewer hours, two days on and four days off. At some point in time, Petitioner received Social Security disability benefits. There is no competent evidence to show what disability Petitioner had that entitled her to disability benefits. Apparently, Petitioner lost her disability benefits before she started working for Respondent because she made too much money at a prior job. Petitioner wanted the new CNA position even though she would make less money than a full-time floor tech. Petitioner believed she could reestablish her disability benefits if she earned less money. Sometime during the first week of March 2005, Ms. Engram advised Petitioner that she would have to work the night shift beginning 9:00 p.m. on March 6, 2005, till 5:00 a.m. on March 7, 2005. Petitioner agreed to work as scheduled, with the understanding that she and Mr. Betsy would strip and wax hall floors. Petitioner testified that she told Ms. Engram that she should have an ambulance present on the night of March 6, 2005, in case Petitioner had an asthma attack from the strong chemicals used to strip the floors. Petitioner's testimony in this regard is not persuasive. The greater weight of the evidence indicates that Petitioner never verbally discussed her mental or physical health problems with Ms. Engram. On March 3, 2005, Petitioner learned from Mr. Betsy that there was not enough wax to complete the job planned for the evening of March 6, 2005. Even without the wax, Petitioner and Mr. Betsy had plenty of work to do stripping floors. The floors did not have to be waxed the same night they were stripped. Petitioner decided to work her regular hours on March 6, 2005, from noon to 8:00 p.m. Petitioner made this decision without Ms. Engram's knowledge or approval. Mr. Betsy worked alone on the March 6, 2005, night shift. He spent the evening stripping floors, using the wax that was available to polish a small area, and performing other routine tasks. On March 7, 8, and 9, 2005, Petitioner worked her regular hours. Ms. Engram did not discover that Petitioner had not worked her scheduled shift on March 6, 2005, until Ms. Engram made a routine check of the time cards on or about March 9, 2005. Petitioner was still hoping to get the new CNA position on March 9, 2005. That evening, Petitioner was working as a floor tech when she noticed that Sid Roberts, Respondent's interim administrator, was working late. Petitioner approached Mr. Roberts to tell him about her application for the CNA position and why she needed the new job. During that conversation, Petitioner told Mr. Roberts that she suffered from depression and that she had previously received disability benefits for that condition. On or before March 10, 2005, Ms. Engram consulted with Ms. Cheney about Petitioner's decision not to work her scheduled shift on March 6, 2005. Ms. Engram and Ms. Cheney did not discuss Petitioner's alleged disability or health problems. Ms. Engram was not aware that Petitioner had any health problems that needed to be accommodated. Ms. Cheney was not aware that Petitioner had any health problems at all. After consulting with Ms. Cheney, Ms. Engram made the decision to terminate Petitioner's employment. Ms. Engram took this action because Petitioner did not work from 9:00 p.m. on March 6, 2005, to 5:00 a.m. on March 7, 2005, as agreed, but unilaterally and without Ms. Engram's knowledge, decided to work her regular hours on March 6, 2005. Subsequently, Mr. Roberts attended a meeting with Ms. Cheney. Inquiring about Petitioner's employment status, Mr. Roberts learned that Ms. Engram already had terminated Petitioner. Mr. Roberts did not have any part in the decision to hire or fire Petitioner. Mr. Roberts did not tell Ms. Cheney or Ms. Engram about his conversation with Petitioner on the evening of March 9, 2005, until after Ms. Engram terminated Petitioner's employment. Mr. Roberts' knowledge that Petitioner suffered from depression did not contribute to the decision to terminate Petitioner's employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2005, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 2005. COPIES FURNISHED: Cecil Howard, 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 Barbara Martin 635 West Hubbard Avenue Deland, Florida 32720 Kelly V. Parsons Cobb and Cole Post Office Box 2491 Daytona Beach, Florida 32115-2491
Findings Of Fact When Petitioner applied to take the Florida Real Estate Salesman's Licensure Examination in approximately 1971 or 1972, it was discovered that criminal charges were still pending against Petitioner as a result of a check which had "bounced" in 1962, or 1963. He therefore made restitution on that check, even though the charges had been pending for almost ten years, and Petitioner was allowed to take the licensure examination. He failed to achieve a passing score. Petitioner did not immediately attempt to sit for the licensure examination a second time but rather simply continued operating his retail florist business. In 1976 he had a dispute with an intermittent employee who had just left Petitioner's employment and started working for one of Petitioner's competitors. When an insurance/salary reimbursement check made payable to petitioner's florist shop and that employee arrived, Petitioner endorsed the names of both payees and cashed the check. Charges arising from that $46.00 check were dismissed after Petitioner had been arrested and had made restitution. For approximately three years before her death in 1973, Petitioner and his wife "cared for" his mother-in-law who was in a nursing home. During that time her only source of income was her Social Security checks, and Petitioner had a power of attorney to sign her name and cash her checks. After her death the checks continued to come although Petitioner called and wrote the Social Security Office. He started collecting them and storing them in a box. In 1975 his florist business encountered financial difficulties, and Petitioner signed his name and his deceased mother-in-law's name to the checks he had been collecting and cashed them. He was subsequently arrested by the F.B.I. and charged with 46 counts of uttering forged U.S. Treasury checks, one count for each check. On December 12, 1977, Petitioner plead guilty and was found guilty. He was committed to some type of work release program on one count. As to counts two through 46, sentence was withheld and he was placed on probation for a period of three years with the additional condition that restitution be made. Petitioner did make restitution. Toward the end of 1982 Petitioner realized that his educational credits would soon expire and he again wished to apply to take the Real Estate Licensure Examination. Where questioned on his application whether he had ever been arrested or charged with any offenses, Petitioner responded in the affirmative and listed the 1963 bad check which was paid, the "1977" check which was paid, and a 1978 three year probation with restitution. Based upon that information, Respondent denied Petitioner's application to take the licensure examination.
Recommendation Based on the foregoing findings of facts and conclusions of law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure. DONE and RECOMMENDED this 27th day of August, 1984, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1984. COPIES FURNISHED: Mildred Smith Brown, Esquire 4173 Southwest LeJeune Road Miami, Florida 33146 Ralph Armstead, Esquire Department of Legal Affairs 400 West Robinson Street, Suite 212 Orlando, Florida 32001
The Issue The issue is whether Respondent committed an unlawful employment action in violation of Section 760.10(1), Florida Statutes, by failing to hire Petitioner based on his race, sex and age.
Findings Of Fact Petitioner is a white male who was born on August 13, 1928. He was 73 years old, and retired from state employment, when he applied for the employment positions at issue here. Petitioner majored in sociology/psychology, earning a Batchelor of Arts degree from San Jose State University, San Jose, California, in 1954. He completed post-graduate work in English and education, earning a master of science degree at Purdue University, Lafayette, Indiana, in 1980. Petitioner became a paralegal after earning an associate of science degree at Tallahassee Community College, Tallahassee, Florida, in 1995. Petitioner received teaching certificates in California in 1960 and in Florida in 2001. He has over 22 years of teaching and administrative experience. He was qualified to work as a behavioral specialist in a skills program. Petitioner's recent job history includes, but is not limited to, the following: (a) from February 27, 2001 to August 17, 2001 (approximately six months), contract administrator for the Florida Department of Juvenile Justice; (b) from August 15, 2000 to December 27, 2000 (approximately four months), counselor for inmates in drug treatment program at Jefferson County Correctional Institution; (c) from December 4, 1994 to June 30, 2000 (approximately five and one-half years), coordinated offender placement program for Florida Department of Labor and Employment Security; and (d) from March 11, 1992 to September 18, 1992 (approximately six months), drug counselor for Liberty County Correctional Institution. Petitioner's prior work experience also includes, but is not limited to, the following: (a) 1990/91 school year as a teacher at the Dozier School for Boys in Mariana, Florida; (b) 1990/91 school year as residence hall manager for Chipola Junior College; (c) five months in 1988 as coordinator of a drug program for the Florida Department of Education; (d) 1985/86 school year as instructor of military personnel in Korea and Japan for Central Texas College; (e) one year and three months in 1984/85 as a program coordinator for Florida Department of Transportation; (f) from 1975 to 1989, as a contractor on state and national governmental projects; (g) six months (1980/1981) as assistant safety director for George Washington University; (h) from 1968 to 1976 as teacher in California secondary schools; (i) from 1965 to 1968 as teaching supervisor for Job Corps program in California; (j) 1964/65 school year as instructor for University of Nevada; and (k) 1961 to 1964 as teacher/principal in a California elementary school. Respondent has a written procedure for processing job applications. One purpose of the procedure is to maintain a pool of qualified applicants for each position. Another purpose is to assure each applicant or employee an equal employment opportunity without regard to a person's age, race, color, sex, religious creed, national origin, handicap, military or marital status. Respondent's Human Resources Department is responsible for receiving and taking the initial steps in processing employment applications. As applications are processed, they are checked for completeness and evidence of minimum qualifications for the position or positions for which the applicant is applying. First, essential information about each applicant is typed into the corresponding computerized position requisition file. The input data includes the following: (a) applicant name; (b) applicant sex and race; (c) applicant veteran status; (d) how applicant learned of position; (e) date of application; (f) applicant current employment status; and (g) applicant met minimum qualifications. Respondent's Human Resources Department then prints a computerized applicant referral form, which does not contain any reference to the applicant's age or birth date. Next, Respondent's Human Resources Department copies the applications except for certain sections. One section that is not copied is the EEO Survey, which contains a statement directing applicants who believe they have been discriminated against to file a complaint with FCHR. The EEO Survey also requests information about the applicant's sex, birth date, and race. It is not mandatory for applicants to provide Respondent with the information requested in the EEO Survey. Respondent's Human Resources Department sends the original applicant referral form and a copy of the application to the hiring supervisor. The materials reviewed by the hiring supervisor do not include the EEO Survey or refer to the applicant's age or birth date. Finally, the original application in its entirety is filed alphabetically by name of applicant in the application file. The application file is purged twice a year, eliminating any applications that are one year old. An employment position is open or available on the date that the hiring supervisor fills out a position requisition form. The employment position remains open until someone is hired to fill the position. On or about January 28, 2002, Respondent's Director of Clinical Skills, Alicia Conger, Ph.D., completed a position requisition form for position #2055. The position related to a behavioral specialist in a skills program at Stewart Street Elementary School in Quincy, Florida. On or about February 22, 2002, Respondent's behavioral analyst and clinical supervisor at Pace School, Ginger Stodard, completed a position requisition form for position #2129 for a behavioral specialist in a skills program at Pace School in Tallahassee, Florida. The position requisition form indicated that the position would not be available until March 1, 2002. Dr. Conger subsequently reviewed the applications sent to her by Respondent's Human Resources Department for position #2055. The applications included one submitted by Adrian Mills. On February 26, 2002, Dr. Conger completed a personnel action form, recommending that Respondent hire Ms. Mills to fill position #2055 for $11.50 per hour. Respondent's Chief Administrative Officer accepted this recommendation on February 28, 2002. Ms. Mills was hired effective March 4, 2002. In the meantime, Petitioner became aware of Respondent's February 27, 2002, advertisement for position nos. 2055 and 2129. Petitioner was not aware that position #2055 was closed on February 28, 2002, before he submitted his employment application. Petitioner filed an employment application with Respondent on March 4, 2002, while position #2129 was still available. His application referenced five employment positions in which he was interested. Petitioner was especially interested in working as a behavioral specialist in position #2055 or #2129. The application clearly states that Petitioner's minimum acceptable salary was $12.10 per hour. Respondent's Human Resource Department processed Petitioner's application pursuant to Respondent's written procedure. His application, among others, was sent to Ms. Stodard for consideration of Petitioner as a candidate for position #2129. Ms. Stodard reviewed the applications for position #2129 as she received them. However, she did not interview any applicants because, about the time the position became vacant, Respondent placed a hold on the hiring procedure for position #2129. Respondent funds behavioral specialists positions using Medicaid dollars. Respondent must have six Medicaid eligible students for every behavioral specialist position. Pace School's student population is very transient. After Respondent advertised position #2129 in February 2002, Pace School lost three Medicaid eligible students to a program operated by the Florida Department of Juvenile Justice. Another student lost his Medicaid eligibility when he became 18 years old. Consequently, the Pace School did not have a sufficient number of Medicaid eligible students to support the hiring of another behavioral specialist when position #2129 became vacant on March 1, 2002. The training that Respondent provides to persons hired as behavioral specialists is very intensive. Typically, it takes from six months to one year before a person is proficient in that position. Accordingly, Ms. Stodard always considers an applicant's work history, focusing on the length of time spent in prior jobs. Ms. Stodard reviewed Petitioner's application when she received it even though she was not interviewing applicants at that time. She noted that he had stayed in his last two jobs for only six months and four months respectively. She was not impressed with Petitioner's work experience because she wanted to hire a person with better staying potential. People hired as behavioral specialist stay in that position for about two years on average. Some employees remain in that position for a much longer period of time. On or about June 17, 2002, Ashley Doyle submitted an application for employment as a behavioral specialist in position #2129. The application indicated that Ms. Doyle could begin working on July 10, 2002. In April 2002, Ms. Doyle earned a bachelor of science degree in Family and Child Sciences/Counseling from Florida State University, in Tallahassee, Florida. Ms. Doyle's work experience included the following: (a) from January 7, 2002 to April 9, 2002, intern guidance counselor at an elementary school; (b) from August 2001 to December 2001, after-school teacher at a private preparatory school; and (c) from July 2000 to June 2001, psychometrist for Psychology Associates of Tallahassee, Florida. Ms. Doyle was qualified to work as a behavioral specialist in a skill program. Petitioner testified that Ms. Doyle was a female in her twenties. There is no evidence to the contrary. By the time Respondent took position #2129 off hold, Ms. Stodard had received a stack of applications. Ms. Stodard decided who she would interview by reviewing the stack of applications that she had received in the last month. After finding candidates to interview, Ms. Stodard did not reconsider Petitioner's application or any of the earlier filed applications. On June 20, 2002, Ms. Stodard recommended that Respondent hire Ms. Doyle for position #2129. Dr. Conger accepted Ms. Stodard's recommendation and completed the paperwork on June 26, 2002. Respondent's Chief Administrative Officer subsequently approved Dr. Conger's decision to hire Ms. Doyle effective July 12, 2002. Position #2129 was closed in Respondent's records on June 28, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 1st day of October, 2003, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32302-0190 D. Paul Sondel 2135 Victory Garden Lane Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner, Kendal Pierre Cobb, should be issued a license by Respondent, Department of Financial Services, as a resident customer representative insurance agent.
Findings Of Fact In May 2015, Petitioner applied to the Department for a license as a resident customer representative insurance agent. A customer representative is an individual appointed by a general lines insurance agent or agency to assist in transacting the business of insurance. In his capacity as a customer representative, Petitioner would directly interact with customers in the agency or agent’s office who have been solicited as part of the agent’s insurance business. See §§ 626.015(4) and 626.7354(2), Fla. Stat. A customer representative routinely handles customer payments and is only allowed to work in an office setting under the general agent’s supervision. The Department has jurisdiction over licensing procedures for customer representatives. See § 626.016(1), Fla. Stat. Pursuant to this statutory responsibility, after receiving Petitioner’s application for licensure, the Department issued a Notice of Denial on September 25, 2015, notifying Petitioner of its intent to deny his application. The Department denied Petitioner’s application based on its determination that he lacked the fitness or trustworthiness to engage in the business of insurance. The specific basis for the Department’s denial was information the Department received that Petitioner had allegedly committed inappropriate sexual contact with a child. In July 2012, Petitioner was arrested for lewd or lascivious conduct involving his (then) five-year-old daughter. In October 2013, Petitioner was tried for the crime in Orange County Circuit Court in Case No. 2012-CF-010041-A-O. Petitioner was charged with three crimes including Lewd or Lascivious Molestation in violation of section 800.04(5)(b) and section 775.082(3)(a)(4), Florida Statutes (2012) (Count I); Lewd Act Upon a Child in violation of section 800.04(1) (Count II); and Lewd or Lascivious Conduct in violation of section 800.04(6)(b) (Count III). A jury found Petitioner not guilty on Count I--Lewd or Lascivious Molestation. (Petitioner’s defense counsel successfully moved for judgment of acquittal on Count III during the criminal trial.) But, the jury did find Petitioner guilty of Count II--Lewd Act Upon a Child.3/ Count II, according to the Information, specifically alleged that Petitioner: Between June 1st 2012 and June 3rd 2012, . . . did, in violation of Florida Statute 800.04(1), with his penis make contact with the body of a child under the age of sixteen (16) years in a lewd, luscious or indecent manner, and in furtherance thereof [PETITIONER] did rub his erect penis on [A.C.][4/] Petitioner was sentenced to 51.15 months in prison followed by ten years’ sex offender probation. Petitioner appealed his conviction. In January 2015, the Fifth District Court of Appeal overturned the conviction in Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015). The court ruled that the criminal charging document contained a fundamental error in that “the information neither referenced a statute that establishes a criminal offense nor set forth the essential elements of any substantive crime.” Id. In other words, Petitioner’s conviction under section 800.04(1) was “based on a non-existent crime.” Id. Since Petitioner’s criminal conviction was overturned, Petitioner has not been found guilty of or convicted of any crime based on the alleged lewd act upon a child.5/ At the time of the final hearing, Petitioner was facing no further criminal charges in this matter. No information or testimony was provided at the final hearing identifying an alternate or more appropriate crime that Petitioner allegedly committed involving the incident with his daughter. The Department, in its Notice to Petitioner, states that the factual basis for its denial of Petitioner’s application was his “inappropriate sexual contact with a child.” To support its determination, the Department cites to Petitioner’s criminal case stating: [Y]ou were criminally charged in Orange County Circuit Court Case No. 2012-CF- 010041-A-O with committing a lewd act upon a child. You were found guilty of the charge in a jury trial. The Department is aware your criminal conviction was reversed by Cobb v. State, 156 So. 3d 581 (Fla. 5th DCA 2015), because of a technical deficiency in the criminal charging document. While the Department acknowledged that Petitioner’s conviction was reversed, the Department maintains that the circumstances surrounding the incident demonstrate that Petitioner lacks the required fitness or trustworthiness to be issued a customer representative license.6/ Consequently, the Department denied Petitioner’s application for licensure. This administrative proceeding followed. The Incident Involving Petitioner’s Daughter Certain facts regarding the incident are undisputed. The child involved is Petitioner’s daughter, A.C.7/ A.C. was five years old at the time of the encounter. Petitioner is married to, but estranged from, A.C.’s mother, H.L. Over the weekend of June 1, 2012, A.C. was visiting Petitioner at his residence. On Saturday evening, June 2, 2012, Petitioner and A.C. were watching television in the room where A.C. slept during her visits. A.C. was wearing pajamas, and Petitioner was wearing short pants. Petitioner and A.C. were sitting or lying on the bed. At some point, the two were engaged in some sort of (non- violent) physical activity, e.g., hugging or light horseplay. The activity ended when Petitioner ejaculated, and A.C. felt the “wet” on the bed, her clothes, and her thighs. A little over a week later, on June 11 or 12, 2012, A.C. told her mother, H.L., that Petitioner had “peed” on her during her visit. On June 14, 2012, H.L. contacted the Florida Department of Children and Families (“DCF”) to report A.C.’s complaints about her encounter with her father. Both DCF and the Orlando Police Department investigated the matter. This investigation eventually led to the criminal charges levied against Petitioner. The principal factual dispute in this matter is how and what caused Petitioner to ejaculate in the presence of and on A.C. A.C.’s Version of the Incident A.C. did not testify at the final hearing. Her story was conveyed through a videotaped interview with a Child Protective Team (“CPT”) interviewer, as well as a transcript of her sworn testimony at Petitioner’s criminal trial.8/ After receiving H.L.’s report of suspected abuse, on or about June 14, 2012, A.C. was interviewed by investigators for DCF and the Orlando Police Department. During these interviews, A.C. stated that Petitioner had “peed” on her and had “humped” her. A.C. also used a teddy bear to physically demonstrate what happened between her and her father. She placed the teddy bear (in place of herself) on her lap between her legs and rocking her legs up and down. On or about June 26, 2012, the Orlando police coordinated with Arnold Palmer Hospital to have A.C. participate in a forensic interview with the CPT. CPT provides assessments to DCF and the police department regarding suspected child abuse or neglect. Brandi Silvia, a senior case coordinator with CPT, interviewed A.C. A video recording of Ms. Silvia’s interview with A.C. was played at the final hearing. Ms. Silvia described her interview with A.C. at the final hearing. Ms. Silvia is experienced in conducting child interviews. Ms. Silvia was trained to act as an unbiased interviewer. To accomplish this goal, she asks open-ended questions to obtain information that the child freely provides to her. Ms. Silvia began her interview by asking A.C. a series of questions to ascertain whether A.C. could differentiate between a true statement and a lie. Ms. Silvia testified that, in her opinion, A.C. knew to tell the truth. Ms. Silvia then questioned A.C. to determine whether she could effectively identify all of her body parts. A.C called her genitals her “pee pee.” During the interview, A.C. described the incident as “my Dad just peed on my bed.” A.C. explained that her father was sitting on the bed with his legs crossed. At some point, he took hold of A.C. and placed her in his lap. He then wrapped his arms around her and rocked his pelvis up and down against her. After a brief moment, A.C. felt something wet on her thighs. A.C. believed that Petitioner had “peed” on her. A.C. expressed to Ms. Silvia that Petitioner “was humping on me. Then, he peed on me and on my bed. And, I said [for Petitioner] to go to the bathroom!” At some point during the “humping” activity, A.C. cried out for Petitioner to “stop!” A.C. further recounted that she told her father that she “didn’t want him to, to do that again, never.” A.C. reenacted for Ms. Silvia how her father had placed her on his lap and “humped” her. During the interview, A.C. commented to Ms. Sylvia that she knew that people were not supposed to touch her “pee pee.” A.C. explained that Petitioner had not touched her “pee pee.” Neither did she see or touch Petitioner’s “pee pee.” A.C. also appeared at Petitioner’s criminal trial on October 7, 2013. A.C. testified that Petitioner touched the front of her body with the front of his body. A.C. stated that Petitioner “humped” her. A.C. described that Petitioner was laying down on the bed with his legs crossed at his ankles, and he moved them up and down. She then felt the bed, and it was wet with “pee.” Petitioner’s Version of the Incident During the course of this matter, from the initial investigation in June 2012, through his criminal trial in October 2013, and ultimately to the final hearing in January 2016, Petitioner offered an evolving explanation of what happened between him and his daughter on the night of June 2, 2012. As detailed below, Petitioner readily admitted the undisputed facts listed above. Petitioner also expressed that his understanding of how he ejaculated on his daughter develops as he continues to reflect upon the event. On June 19, 2012, Petitioner voluntarily provided a videotaped statement, under oath, to Detective Rick Salcedo of the Orlando Police Department as part of its investigation. During the interview, Petitioner refuted much of his daughter’s statement. Petitioner explicitly denied “humping” A.C. He also specifically denied ejaculating or “peeing” on his daughter. Petitioner confided to Detective Salcedo that he believed that his daughter had developed a fascination with peeing. He also intimated that A.C. had a habit of humping objects and even people. Petitioner further disclosed that during A.C.’s last visit to Petitioner’s house, the two “had a whole conversation about pee.” Petitioner, however, had no explanation for why A.C. would accuse him of “humping” her that night. On July 16, 2012, in reaction to A.C.’s interview with Ms. Silvia, Petitioner provided a sworn, written statement to the Orlando Police Department. Petitioner admitted that he was not “trueful [sic] about the situation” during his first interview. In reference to the situation, Petitioner wrote that, “I’ve had no sexual intent toward her, but her sexual actions in this case did cause me to ejaculate. I tried my best to stop her movements and action but I lost control of my ejaculation. After pushing her off my leg repeatedly, she jumped on my legs and her knee or leg caused me to ejaculate.” After providing his written statement, Petitioner sat for a second audio-taped, sworn interview with Detective Salcedo. During this interview, Petitioner presented an expanded, and revised, description of what occurred between A.C. and him while they were lying on the bed. Petitioner revealed that A.C. started straddling him and trying to hump his leg. Petitioner was wearing short pants. However, her skin rubbed his skin around his crotch. During this physical contact, A.C. “hit him the wrong way,” and he became aroused. He “lost control” of the situation and ejaculated. Petitioner surmised that A.C. “was straddling my leg so she probably felt something.” Petitioner told his story for a fourth time at his criminal trial in October 2013. During his testimony, Petitioner denied any lewd contact with his daughter. Instead, Petitioner expressed to the court that he was lying down on the bed, and A.C. was being playful and jumping around. He dozed off and woke up with an erection. Without warning, A.C. jumped on him. Petitioner testified that then he “sat her to the side, and she had calmed down, I believe, at that moment. And, right after that - that’s when I believe she had jumped on me again. And, I was sleeping, and ejaculated.” During cross-examination, Petitioner explained that he was asleep experiencing a wet dream. A.C. jumped on top of him, and he ejaculated when he woke up. At the final hearing, Petitioner admitted to ejaculating in the presence of and on his daughter. Petitioner repeated that he was asleep on the bed. He remembers that he was experiencing a wet dream. He awoke to find his daughter “humping” him. Petitioner described the incident as an “accident” and that he had no criminal or sexual intent. Petitioner denied that he physically touched A.C. in a sexual manner. Petitioner’s position is aptly summarized in his Petition for an Administrative Hearing in which he states that: As I was trying to put her to sleep, I accidentally fell asleep a couple of times without realizing . . . I believe I had a wet dream and was awoken by my daughter jumping on me and saying that I peed on her leg. I am not sure exactly how or when the wet dream or reaction occurred because I was disoriented from waking up. Petitioner conceded that he did not give the whole truth to Detective Salcedo during his first interview on June 19, 2012. Petitioner explained that, at the time of his initial interviews, he did not have a clear understanding of what had happened that night. At the final hearing, Petitioner conceded that he still remains confused by the exact turn of events. Petitioner expounded that: When I looked back and I tried to say well what happened . . . it wasn’t conclusive for me . . . I didn’t really find out to give a clear understanding for myself or anybody else at the time. I just have remembered some things happened. I remembered I was awake at this point. I don’t remember when I went to sleep . . . it was very, very foggy when I remember her actually saying that I had peed on her and I had – I remembered pushing her to remove her. I remember turning over. All of these things that I’ve mentioned. Those are the things I remembered. I think the real issue is the timeframe, and when these things happened is where I was really not sure myself. I was not sure. So, I just explained what I could. At both his criminal trial and the final hearing, Petitioner explained that the incident was exacerbated by several medical conditions from which he suffers. Petitioner represented that nerve pain from a 2010 surgery for a herniated disk causes him to experience increased sensitivity in his groin area. He also has increased sensitivity in his genital region due to a skin condition called folliculitis.9/ Petitioner stated that he has suffered from folliculitis outbreaks since December 2011. As a result, Petitioner experiences increased sensitivity in his groin, more frequent wet dreams, and an inability to control erections. Petitioner further testified that he was just getting over a folliculitis outbreak during the weekend of June 1, 2012. At the final hearing, Petitioner did not present any medical records or a medical professional diagnosis or opinion supporting his claim that his medical conditions cause him to experience increased sensitivity to wet dreams or uncontrollable erections or ejaculation. Following his victory in the Fifth District Court of Appeal, Petitioner was released from prison in November 2014. Shortly thereafter, he began working at an Allstate insurance agency as a telemarketer. He has worked at the agency without incident or consumer complaint. Based on the evidence and testimony presented at the final hearing, Petitioner has not met his ultimate burden of proving, by a preponderance of the evidence, that he is entitled to a license as a resident customer representative. Based primarily on Petitioner’s misrepresentations to law enforcement officials, Petitioner’s actions show that he is untrustworthy. Accordingly, Petitioner lacks the requisite fitness and trustworthiness to engage in business of insurance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, the Department of Financial Services, enter a final order denying Petitioner’s application for licensure as a customer representative in Florida. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 29th day of April, 2016.
The Issue The issue addressed in this proceeding is whether Respondent's life and health insurance agent's licenses should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 626, Florida Statutes and whether Respondent is eligible for renewal of his life insurance agent's license.
Findings Of Fact Respondent, Lemar Bonne Hall, is a licensed life and health insurance agent in the state of Florida. He has been so licensed for more than 10 years. Respondent has made application for the renewal of his life insurance agents license pursuant to Chapter 626, Florida Statutes. In the early 1980's, Respondent and his wife began experiencing credit difficulties due to some inaccurate information on their individual credit reports. The nature of the inaccuracy was not disclosed by the evidence presented at the hearing. Respondent and his wife could not get the inaccurate information removed from their credit reports and in 1983 sought the help of a credit repair service located in Houston, Texas. After paying the credit repair service $1,800.00, the service advised the Halls to create alternate credit reports through the use of different social security numbers. The credit repair service represented that this tactic was legal as long as there was no intent to defraud a financial institution. The credit repair service gave the Hall's a list of social security numbers to use. The social security numbers were numbers of various relatives of the Halls and included Mr. Hall's military identification number. It was not until 1988 that the Halls implemented the repair service's program of creating alternate credit reports. In 1988 the Halls made application to several financial institutions for loans of differing amounts. The loan officers Mr. Hall dealt with had been acquainted with him for several years. Mr. Hall testified that he gave these various officers all of his social security numbers. However, when the loan officer's secretary typed in the information on the loan application, the secretary only inserted one of the many numbers he had given. No substantial evidence was submitted to rebut Mr. Hall's testimony. The Halls made regular payments on the loans until they filed for bankruptcy in 1989. Payments on the loans eventually resumed. The bankruptcy was filed because of a potential judgment which might result from tort litigation involving Mr. Hall. At that time the bankruptcy trustee discovered the anomalous social security numbers and contacted the FBI. Mr. Hall cooperated with the FBI in every respect and is one of the government's witnesses in a nationwide investigation of credit repair services advising people to use the file segregation method of credit repair. However, on August 3, 1989, Respondent was indicted on seven (7) counts of violating Title 18, United States Code, Section 1014, and with seven (7) counts of violating Title 42, United States Code, Section 408(g)(2). All the counts involved felonies, punishable by more than one year imprisonment, and were generally related to obtaining or attempting to obtain a loan from a federally insured financial institution by the use of false social security numbers, misrepresentation or fraud with the intent to defraud such institution. Respondent's wife was also indicated on similar counts. Throughout the FBI investigation and in particular after the Halls' indictment, Ms. Hall's health began to seriously fail her due to the embarrassment and pressure she felt from the criminal charges she and her husband were facing. Therefore, on November 29, 1989, Respondent sacrificed himself for the sake of his wife and entered a plea of guilty to three (3) counts of violating Title 18, United States Code, Section 1014, and three counts of violating Title 42, United States Code, Section 408(g)(2), as charged in the indictment in Case No. TCR-04036. As part of the plea agreement entered into by Mr. Hall, all charges were dropped against Ms. Hall. The plea of guilty, involved in this case, was entered for the convenience of the Halls and not because Mr. Hall had committed any crimes involving moral turpitude. In fact, the evidence did not demonstrate that the Halls had any intent to defraud the financial institutions they dealt with and did not demonstrate that Mr. Hall was untrustworthy or lacked the fitness necessary to engage in the business of insurance. However, the evidence did demonstrate that Mr. Hall violated Section 626.621(8), Florida Statutes, by pleading guilty to a felony or a crime punishable by more than one year imprisonment. Respondent is, therefore, subject to discipline for the violation outlined above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is, RECOMMENDED: That the Respondent be found guilty of the violating Section 626.621(8), Florida Statutes, and that his licenses and eligibility for licensure be suspended for a period of six (6) months, after which Respondent's licenses and eligibility for licensure be reinstated without prejudice. DONE and ORDERED this 14th day of January, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1991. APPENDIX TO RECOMMENDED ORDER 1. The facts contained in paragraphs 1, 2, 3, 4, 5 and 6 are adopted in substance, in so far as material. COPIES FURNISHED: Tom Gallagher State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 David D. Hershel, Esquire Department of Insurance Division of Legal Services 412 Larson Building Tallahassee, Florida 32399-0300 Mark Zilberberg, Esquire 217-19 East 6th Avenue Tallahassee, Florida 32302 Don Dowdell General Counsel The Capitol, Plaza Level Tallahassee, Florida 32399-0300 =================================================================
The Issue The issue is whether Respondent discriminated against Petitioner in employment on the basis of age in violation of section 760.10(1)(a), Florida Statutes (2013).
Findings Of Fact Formed in 1976, Respondent is a small federally chartered savings bank, also known as a community bank, with its main office in Miami. At all material times, Respondent has maintained three or four branch offices in south Florida. Respondent has 73 fulltime and parttime employees in its main and branch offices and has, at all times, employed the jurisdictional minimum of employees to be covered by the Florida Civil Rights Act of 1992, as amended. Respondent is a minority-owned bank that specializes in service to the Hispanic community. Respondent's primary banking services are checking, savings, and mortgage lending for residential and commercial properties. Respondent suffered a decline in business during and after the 2008 recession. Even so, in one fiscal year ending between 2008 and 2012, Respondent had $1-$1.5 million in earnings. However, its revenues declined sharply in 2011 and 2012. For the fiscal year ending June 2012, Respondent reported $8.5 million in losses. In anticipation of future losses, Respondent transfered $6 million from capital to a loss-reserve fund. Due to Respondent's decline in business, as well as a decline in the value of Respondent's mortgage portfolio, the Office of the Comptroller of the Currency (OCC) conducted ongoing examinations from 2008 through 2012. Eventually, in September 2012, Respondent and OCC entered into a Consent Order, under which Respondent continues to operate. Among other things, the Consent Order has required Respondent to streamline its workforce in order to reduce expenses. Although the Consent Order had not been executed during the summer of 2012, Respondent's officers and directors were aware at that time that their bank would soon be under a consent order that would require significant restructuring of Respondent's workforce. Petitioner, who was born on January 27, 1941, started working at Respondent in the late 1980s. During the ensuing 26 years, she has always worked in the bookkeeping department, which is located in the main office. In 2012, Petitioner's primary duty was to process Automated Clearing House (ACH) returns on unsuccessful debit transactions. This job required an employee manually to enter a code for the reason for the return--e.g., insufficient funds or incorrect account number--and ensure that the proper account credit was entered. Although the components of this job have been progressively automated over the years, Petitioner testified that she was spending five to six hours daily on this work during mid-2012. In 2012, Petitioner also performed a couple of other jobs at the bank. She closed overdrawn customer accounts, which required four to five hours weekly. And she backed up for an employee who handled large checks--i.e., over $5000--to ensure that they were properly processed by the bank. Petitioner testified that no other employee was trained to perform the ACH returns. One or two other employees performed this assignment when Petitioner was not in the office, but Petitioner found their work to be substandard. In the first half of 2012, Petitioner's supervisor asked her to train another employee, Lisette Hadad, to handle the ACH returns. Petitioner did so, typically spending an hour or two at a time, over the course of three months. On July 12, 2012, when the training was substantially done, Respondent terminated Petitioner and turned her ACH duties over to Ms. Hadad. Ms. Hadad, who was 57 years old at the time, has been with the bank for 14 years. She started as a teller, but, after three years, was promoted to vault teller. After serving as vault teller, Ms. Hadad was promoted to assistant head teller. After two years in this position, Ms. Hadad was promoted to head teller. Ms. Hadad served as head teller until 2007 when Respondent created the wire transfer department and directed Ms. Hadad to handle all of the wire transfers for the bank. This is a position of high responsibility because the bank has many customers with multinational ties. As a result, Ms. Hadad daily handles wire transfers totalling millions of dollars and must ensure that each transfer complies with applicable federal laws. However, wire transfers did not fill Ms. Hadad's work day. She has assumed all of Petitioner's duties concerning ACH returns while continuing to perform the wire transfer duties. Several nondiscriminatory reasons explain Petitioner's termination. First, in the summer of 2012, the bookkeeping department consisted of three employees, and the other two employees had worked with the bank for about four years longer than Petitioner and performed work that Petitioner was not able to perform. At the same time, the bookkeeping department was slowly losing staff due to automation. Ms. Hadad did not transfer to the bookkeeping department after Petitioner was terminated. One of the other bookkeeping employees was transferred to an opening in customer services, so that, today, the bookkeeping department consists of a lone employee. Petitioner testified that the ACH return work resisted automation. However, over time, more parts of this job have been automated, according to Ms. Hadad. In the same vein, Petitioner's abilities were limited. While she was performing the ACH return work, external auditors routinely found the same errors, year after year. Since Ms. Hadad has assumed this responsibility, the external auditors have found the work to be much better--to the point that, last year, there was not a single repeated error. Nothing in the record supports an inference of age discrimination in the termination of Petitioner. Respondent had a pressing need to cut its workforce in response to reduced revenues in general and auditors' demands in particular. At the same time, Respondent maintains a remarkably mature workforce and does not appear to have used workforce reductions as a means to trim the age of its workforce. At the time of the hearing, four of Respondent's employees were in their 70s, 14 of its employees were in their 60s, and 23 of its employees were in their 50s-- with the average age of its employees being 50 years. Respondent added two employees in 2012; both were in their 70s. At the hearing, Petitioner admitted that her allegation of the termination of another employee of advanced years was a mistake. The former employee testified that she chose to retire less than three months after Petitioner had been terminated. At the time of her retirement, at 72 years of age, this employee rejected an offer from the bank to continue to work part time. Respondent also maintains an unusually cohesive, loyal workforce. As noted above, Petitioner's coworkers in the bookkeeping department had each worked with the bank for 30 years. The 72-year-old employee mentioned in the preceding paragraph had worked with the bank for 33 years at the time of her retirement. The Chief Financial Office, Victor Fernandez, who informed Petitioner that she was being terminated, has worked at the bank for 20 years and, earlier in his career, regularly had lunch with Petitioner. From this personal relationship with Petitioner, Mr. Fernandez knew that she owned or leased an apartment at Hallandale Beach, and she intended to live in the apartment after she retired. For this reason, at the meeting at which Mr. Fernandez terminated Petitioner, he tried to make Petitioner feel better by mentioning how she could now live in her apartment at the beach. This comment was not an unguarded disclosure of an unlawful focus on Petitioner's age; rather it reflected Mr. Fernandez's concern for the feelings of Petitioner and his knowledge that, at some point, she wanted to retire to the apartment. Given the above-cited evidence clearly establishing nondiscriminatory reasons for Petitioner's termination, it hardly seems necessary to add that, in any event, Mr. Fernandez was only communicating to Petitioner a decision that had been made by others. As part of its streamlining efforts, Respondent had retained outside consultants to study Respondent's workforce for inefficiencies and redundancies. The consultants recommended workforce reductions, which were then considered and implemented by department managers in conjunction with human resources staff. Mr. Fernandez took no part in this process as it applied to Petitioner.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed on January 14, 2014. DONE AND ENTERED this 31st day of March, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 31st day of March, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jay J. Lorenzo, Esquire Lorenzo and Rodriguez-Rams 9192 Coral Way, Suite 201 Miami, Florida 33165 Eddy O. Marban, Esquire Law Offices of Eddy O. Marban 1600 Ponce De Leon Boulevard, Suite 902 Miami, Florida 33134 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
