The Issue The issues are whether Petitioner's Petition for Relief is untimely, and if not, whether Respondent committed an unlawful employment act against Petitioner contrary to Section 760.10, Florida Statutes.
Findings Of Fact S.M.A.R.T. is a company that provides mechanics, electricians, avionics inspectors, sheet metal laborers, and other technical employees to aircraft maintenance and repair companies on a temporary basis. In 1996, S.M.A.R.T. supplied Respondent with temporary contract laborers at Respondent's aircraft maintenance facility in Lake City, Florida. For example, S.M.A.R.T. supplied Respondent with approximately 25 percent of its 450 mechanics. Respondent did not maintain personnel files or conduct performance evaluations on S.M.A.R.T.'s contract laborers. Respondent provided S.M.A.R.T. with the number of man-hours that contract laborers worked so that S.M.A.R.T. could pay its employees. In 1996, Petitioner worked for S.M.A.R.T. as a contract laborer at Respondent's Lake City facility. Petitioner's work as a parts researcher required him to make sure that Respondent's customers, owners and operators of aircraft, had the right parts for their aircraft. On March 28, 1996, S.M.A.R.T. terminated Petitioner's employment due to a lack of work at Respondent's Lake City facility. Being laid off from a contract job as a parts researcher at a specific site was not unusual when an aircraft owner or operator stopped sending planes to the facility and the temporary labor company had no other work available for its employee. After being laid off by S.M.A.R.T., Petitioner was unemployed for a time. In November 1996, Kitty Hawk Air Cargo (Kitty Hawk) was Respondent's customer at the Lake City facility. Pursuant to a contract between Respondent and Kitty Hawk, some of Kitty Hawk's aircraft were being changed into freighters. Kitty Hawk had a separate contract with Allen Aircraft Radio Corporation (AAR) for customer-supplied parts. Under the contract, AAR acted as a parts vendor and supplied Kitty Hawk with parts researchers. Respondent did not have a role in Kitty Hawk's choice of AAR as a supplier of parts. Sometime after he was laid-off by S.M.A.R.T., Petitioner applied for employment with AAR as a parts researcher. Petitioner had an interview with AAR for a job at Respondent's Lake City facility. After the interview, Petitioner was under the impression that AAR had hired him for that job. Petitioner subsequently learned that he did not have a job with AAR. AAR never told Petitioner why he was not hired. Petitioner did not know the name, age, or qualifications of the person that AAR hired for the position at issue here. Petitioner did not know whether AAR had hired anyone for the position he was seeking. AAR's contract with Kitty Hawk terminated in 1996 except for aircraft then in Respondent's facility. The last of Kitty Hawk's aircraft departed Respondent's facility in March 1997. At that time, any employees of AAR at the Lake City facility would have either been laid off or transferred to another AAR job site. Respondent hired Dick Perkins on July 20, 1995, as a Manager of A & P Mechanics. Since that time, AAR has promoted Mr. Perkins to Director of Maintenance. Mr. Perkins had no involvement with AAR when it was working on Kitty Hawk's aircraft at the Lake City facility. Mr. Perkins had no responsibility over the Kitty Hawk contract in 1996. Petitioner did not personally overhear Mr. Perkins make a statement about him. Rather, Petitioner relies on statements allegedly made by Mr. Perkins, overheard by Doug Yormick, repeated to Tom Welcome, then relayed to Petitioner. At times relevant to this case, Mr. Yormick and Mr. Welcome were employees of S.M.A.R.T. Competent evidence indicates as follows: (a) Mr. Perkins does not know Petitioner; (b) Mr. Perkins never made a statement to anyone that he did not want that "old son-of-a-bitch" working on Respondent's property; (c) Mr. Perkins never made any statement relating to Petitioner's age; (d) Mr. Perkins never talked with anyone at AAR regarding the person AAR would hire as a parts researcher; (e) Mr. Perkins never talked with Keith Wild/Wilder, Bob Sorrentino, or Bob Sonne/Sonner at AAR. After November 19, 1999, Petitioner worked for several other companies, including but not limited to, Piping Design Systems in Orlando, Florida, and a company in Mexico.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue The issue in this case is whether Petitioner, a disappointed bidder, waived its right to pursue administrative remedies by failing timely to file a notice of intent to protest.
Findings Of Fact On November 26, 2002, Respondent Department of Transportation ("Department") issued a request for proposals on a contract for the development of a transportation facility, which was to be located adjacent to the Miami International Airport. On March 3, 2002, Petitioner MIC Development, LLC ("MIC") submitted the only proposal that the Department received in response to this solicitation. The next activity of relevance to this case occurred three years later, on May 20, 2005, when a selection committee decided to reject all proposals (as mentioned, there was just one) and discontinue the procurement. By two letters dated May 31, 2005, each of which was addressed to a principal of MIC and marked "certified mail," "return receipt requested," the Department notified MIC of its decision. It is undisputed that the Department did not post its decision on the internet. There is, however, a genuine and spirited dispute concerning the date on which MIC received the Department's decision-letters; as a result, the evidence is in conflict regarding whether MIC received the Department's notice of rejection on June 3, 2005, as the Department contends, or on June 10, 2005, as MIC maintains. It is not necessary to resolve this particular dispute because——for reasons that will soon become apparent——the contested fact is immaterial. On June 14, 2005, MIC filed a notice of intent to protest the Department's decision to reject its proposal. Nine days later, on June 23, MIC filed its formal written protest. The Department insists that MIC's initial protest- notice, having been filed more than 72 hours after MIC's receipt of the notice of rejection, was untimely, thereby constituting a waiver of the right to a hearing. The Department urges that this case be dismissed on that basis. MIC asserts that its notice was filed within 72 hours after receiving the Department's letters——which it claims were defective in any event and hence legally insufficient to trigger the 72-hour filing period——and that, even its protest-notice were untimely, equitable principles should be invoked to allow this case to go forward notwithstanding the filing delay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department refer this matter to DOAH for a final hearing on the merits of MIC's protest of the rejection of its proposal. DONE AND ENTERED this 20th day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of April, 2006.
The Issue The issue is whether Respondent should be terminated for just cause from his employment under a professional service contract pursuant to Section 231.36(6), Florida Statutes.
Findings Of Fact Petitioner hired Respondent as a school teacher under a Professional Service Contract for the 1997-1998 school year. Respondent's duties included teaching physical education and serving as head basketball coach at Dunnellon High School in Dunnellon, Florida. At all times material to this case, Bobby James was Respondent's principal. Sometime during the 1997-1998 school year, but prior to the incident at issue here, Mr. James had reason to counsel Respondent and the school's wrestling coach. Mr. James advised both teachers that they should not patronize a nightclub known as Party Central. 1/ Mr. James felt that such places were not appropriate for educators. 2/ On April 9, 1998, Mr. James performed an annual teacher assessment for Respondent. Mr. James found that Respondent met all acceptable standards. Mr. James concluded that Respondent did not have any professional areas that needed improvement. On the evening of May 9, 1998, around 11:00 p.m., Respondent and his then fiancée, Theresa Casko, went to Party Central/Shark Attack with one of their male friends, Mike MacGuymo. 3/ The purpose of the night out was to celebrate the 21st birthday of Ms. Casko's male cousin, Jason Tovine. During the evening, Ms. Casko began dancing with Tammy Burke and several of the club's male customers. Both Ms. Casko and Ms. Burke had been drinking alcoholic beverages. Respondent was drinking alcoholic beverages but he was not dancing. Respondent became upset with the manner in which a male customer was dancing behind Ms. Casko. Respondent repeatedly went on to the dance floor in an attempt to persuade his fiancée to leave the establishment. Shortly after midnight, on the morning of May 10, 1998, Respondent and Ms. Casko began arguing at the edge of the dance floor. Respondent took Ms. Casko by the arm and went outside with her. Ms. Casko's cousin followed them. The argument between Ms. Casko and Respondent continued in the parking lot of Party Central/Shark Attack because she did not want to leave the club. Respondent also became angry with Ms. Casko's cousin and grabbed him by the face. At that point, Ms. Casko stepped in between them and began hitting Respondent. During the altercation, Respondent struck Ms. Casko. There is no persuasive evidence that Respondent intentionally struck Ms. Casko. Ms. Casko gave Respondent his engagement ring and walked across the street in the area of a mobile home sales company. Respondent followed her. Ms. Casko told Respondent to get away from her and walked back across the street to the parking lot of Party Central/Shark Attack. Respondent remained in the vicinity of the parking lot of the mobile home sales company. The bouncer from the Party Central/Shark Attack observed the argument and the struggle between Respondent, Ms. Casko, and her cousin. The bouncer had seen Respondent hit Ms. Casko. He asked the club's manager to call the police. In the meantime, Officer Harold Compton was flagged downed by someone in the parking lot as he drove past the club. Soon thereafter, three other officers arrived in their patrol cars. The bouncer told Officer Compton that Respondent had hit Ms. Casko. Officer Compton then went across the highway and down the street in his patrol car to look for Respondent. Officer Wayne Sellers and Officer Tommy Ketner also drove across the street to look for Respondent. Officer Nick Viaggio stayed with Ms. Casko in the club's parking lot. Ms. Casko told Officer Viaggio and Tammy Burke that Respondent had hit her but that she did not want to press charges and that she did not need medical treatment. Calls made to the Ocala Fire Rescue Emergency Medical Service and the Munroe Regional Medical Center Ambulance Service to provide Ms. Casko with medical treatment were cancelled. Officer Compton eventually located Respondent and asked him to get in Officer Ketner's patrol car so that they could return to the Party Central/Shark Attack parking lot. Respondent was cooperative. When the police returned to the club's parking lot with Respondent, Officer Compton interviewed Ms. Casko and determined that he had probable cause to arrest Respondent for domestic violence. Upon learning that he was arrested and going to jail, Respondent became belligerent. As the officers attempted to handcuff Respondent, he backed away from them, tensed up his arms and shoulders, and began to utter profanity. The officers had to hold Respondent against the hood of a patrol car in order to put the cuffs on him. Ms. Casko began to plead with the officers to let Respondent go home with her. She told Respondent she wanted her ring back. The ring was in Respondent's pocket. Officer Compton and Officer Sellers walked Respondent over to Officer Compton's patrol car because he was the arresting officer. Ms. Casko followed trying to get the ring from Respondent. A crowd gathered as people began to leave the club. About the time that the officers and Respondent reached Officer Compton's vehicle, a call came through from a police officer in another location asking for assistance. Officer Viaggio got in his car and started to leave to respond to the emergency call. Respondent refused to get in the police car as directed by Officers Compton and Sellers. Instead, he turned to talk to Ms. Casko and to try to give her the ring. As Respondent turned to face Ms. Casko, he accidentally butted Officer Sellers in the head, leaving him stunned. Seeing that Officer Sellers was stunned and believing that Respondent might strike Officer Sellers again, Officer Compton sprayed Respondent's face with pepper spray. Respondent then began to struggle vigorously. Officer Viaggio rushed to assist in restraining Respondent. Eventually, the officers were able to subdue Respondent on the ground. They had to warn Ms. Casko and others to stand back out of the way. There was a large crowd in the club's parking lot. Consequently, the police officers took Respondent back across the road to await medical assistance to treat Respondent for injury due to pepper spray. The Ocala Fire Rescue Emergency Medical Service terminated its response because the Munroe Regional Medical Center Ambulance Service had arrived on the scene. The ambulance service medics irrigated Respondent's eyes with a saline solution. They also washed pepper spray from the hands of the officers. The medics wiped Respondent's face with a towel. They gave towels to the officers. Officer Compton then took Respondent to the jail. Respondent was released the next day. The State Attorney charged Respondent with resisting a law enforcement officer with violence, battery on a law enforcement officer, and domestic violence battery. On March 18, 1999, Respondent was tried on reduced charges of resisting arrest without violence and battery on a law enforcement officer. During the criminal trial, Respondent and his wife, formerly Ms. Casko, testified that Respondent did not strike her in the early morning hours of May 10, 1998. Respondent also testified that he received no medical attention whatsoever for his eyes before arriving at the jail. He stated that it was a "preposterous lie" that a rescue squad had irrigated his eyes across the street from the club. The jury acquitted Respondent of all charges. 4/ Petitioner suspended Respondent without pay on or about June 23, 1998. On or about July 21, 1998, before Respondent was acquitted, Mr. James made a public statement that was reported in the local newspaper. Mr. James indicated that he substituted another teacher in Respondent's coaching job because of the unresolved criminal case against him and not because of his professional performance. Specifically, Mr. James's comments included the following: Barry is to be commended for the tremendous job that he has done. No matter what happens, that is something you can't take away from anyone. He is an excellent coach and teacher. Mr. James's duties as principal include assessing the performance of teachers under his supervision. In making such assessments, Mr. James considers the teaching ability and classroom performance of teachers. He also considers the effectiveness of teachers in light of their presentation of themselves to their students, parents, and the community, i.e., as role models and counselors. Mr. James testified that he could not recommend retaining any teacher who was not "up front," trustworthy, and loyal. According to Mr. James, a teacher needs to maintain the highest standards and be able to give students the best possible advice. During the hearing, Mr. James testified that he would not recommend that Respondent be retained as a teacher. Mr. James based his decision on his reading of the criminal trial transcript, information in Joint Exhibit 2, 5/ Respondent's failure to heed the prior admonition not to patronize nightclubs like Party Central/Shark Attack, and the assumed impact of his performance if he were to be reinstated. Specifically, Mr. James stated as follows: The jury [in the criminal trial] that tried his [Respondent's] case had no bearing on my recommendation to the superintendent. The jury that tried his case is the jury of the young people that I have and the parents of those folks. Dr. John D. Smith, Superintendent of Marion County Schools, testified that he had: (a) read the criminal trial transcript; (b) considered information presented by his support staff; (c) considered Mr. James's recommendation to terminate Respondent's employment; (d) considered Joint Exhibit 2; (e) read newspaper articles relative to the May 10, 1998, incident; and (f) consulted with three members of the school advisory council of Dunnellon High School. Dr. Smith determined that Respondent should be terminated because of his questionable integrity. Dr. Smith did not believe that Respondent was trustworthy to be responsible for supervising, advising, and influencing students, especially in situations beyond the classroom or where he is the only adult present, such as field trips, athletic events, and club activities. Dr. Smith concluded that Respondent would no longer be effective as a teacher. He reached this conclusion in part based on his consultations with the three members of the student advisory council. Respondent did not present any evidence from students, parents, his colleagues, or community members regarding his continued ability to be an effective teacher.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent be reinstated in a teaching position with back pay and benefits lost during his suspension. DONE AND ENTERED this 4th day of October, 1999, in Tallahassee, Leon County, Florida. 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 4th day of October, 1999.
Findings Of Fact At all times material hereto, Respondent was employed as a fire inspector by the City of Clearwater with permanent status in the civil service system. Respondent has approximately nine years experience with the City of Clearwater as a fire inspector, and prior to this incident had never been the subject of disciplinary action. As a permanent civil service employee, Ordinance 1831 of the City of Clearwater, Guidelines of Disciplinary Action dated October 23, 1978, and Civil Service Rule 14 dealing with Suspensions, Demotions and Dismissals are applicable to the facts of this case and govern disciplinary action taken against Respondent. On September 17, 1985, Respondent was suspended for three (3) working days, without pay, and given forty (40) disciplinary points. In the Notice of Suspension the grounds for this action are stated as follows: Inspector Christopher Kingsley violated Rule 14, Section 1, Paragraph (k) of the Civil Service Rules and Regulations: "Has violated any lawful and reasonable official regulation or order or failed to obey any lawful and reasonable direction made and given to him by his superior officer when such violation or failure to obey amounts to insubordination or serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. * * * On June 15, Captain Yaudes dispatched Inspector Kingsley to 1468 Belleair Road to observe and assist Inspector Mattheus with the fire investigation. When Inspector Kingsley arrived at the fire scene he more or less worked independently. He did not provide the assistance or opinion to Inspector Mattheus when requested. This is further violation of the Guidelines for Disciplinary Action, Level 4, #3 offense: "Insubordination by refusal to perform work assigned or by failure to comply with written or verbal instructions of the supervisory force." Based upon the testimony and documentary evidence presented, the following findings of fact are made about Respondent's actions relative to the fire at 1468 Belleair Road on June 15, 1985: Between approximately 7:30 a.m. and 7:40 a.m. on June 15, 1985 Respondent arrived at work, although his shift did not begin until 8:00 a.m. When Respondent arrived, Captain Gordan Yaudes was talking with Captain Coleman about a radio transmission they had just overheard indicating that Inspector Harry Mattheus had been dispatched to investigate the Belleair Road fire. Since neither Captain Yaudes or Captain Coleman knew Inspector Mattheus, Captain Yaudes called Respondent into the office to see if Respondent knew anything about Mattheus' qualifications or background. Although Respondent and Mattheus had been working out of the same office for two months at the time, Respondent had only a brief acquaintance with Mattheus. They had never been introduced after Mattheus had been hired, their shifts and assignments were different and Mattheus had not yet done a fire scene investigation in the City of Clearwater. Therefore, Respondent told Captain Yaudes he did not know about Mattheus' qualifications. Captain Yaudes ordered Respondent to go to the Belleair fire scene, find out what was going on, and assist Inspector Mattheus, if necessary. Captain Yaudes testified that he wanted Respondent to take command of the investigation if Respondent determined that Mattheus was not properly certified. He specifically denied that he ordered Respondent to do a joint investigation with Mattheus. This order was given prior to 8:00 a.m., and thus prior to either Respondent or Captain Yaudes being on duty. Captain Coleman, who was on duty at the time, concurred in the order. Mattheus had been on the scene for thirty minutes before Respondent arrived. When Respondent arrived he put on protective pants, boots and gloves and entered the premises, a small flower shop. The fire had already been extinguished. Fire damage was confined to a twelve foot by twelve foot area at the front of the store where the cash register had been. Mattheus was not wearing protective gear since he had not been issued any at the time, although he was wearing his own steel reinforced boots. Upon approaching Mattheus at the scene, Respondent asked why he was there and on whose authority. Mattheus indicated he had been placed on the "call list" the night before by Fire Marshal Nic Lewis, and he was responding to a call to investigate the scene he received that morning at home. In making this inquiry, Respondent was responsive to Captain Yaudes' order that he go to the scene, find out what was going on and assume command of the investigation if he determined Mattheus was not qualified. Inspector Mattheus had been employed as a life safety inspector approximately two months prior to this incident. He is a certified fire inspector and was therefore qualified to be on the "call list" and to investigate fires. This was his first investigation for the City of Clearwater. After determining what was going on at the scene and that Mattheus was qualified to do the investigation, Respondent proceeded to assist Mattheus in several ways, including: surveying and discussing the scene together examining electrical wire and sockets, as well as the floor at the scene for possible causes of the fire clearing the area where the cash register had been and suggesting initially that Mattheus keep an aerosol can that had been punctured by a nail as possible evidence. Later, when arson was ruled out, he concurred in Mattheus' decision to discard the can. Respondent also helped clean up the scene since he was wearing protective clothing and Mattheus was not, and discussed an early morning thunderstorm with Mattheus as a possible cause of the fire. In this manner Respondent was responsive to Captain Yaudes' order that he render assistance, if necessary. On several occasions during the approximately thirty minutes when Respondent was at the fire scene, Inspector Mattheus asked him his opinion on the cause of the fire. Respondent responded by saying he did not know, or by shrugging his shoulders. He told Mattheus to list the cause as "unknown" if Mattheus could not determine a cause. Respondent also said to Mattheus on several occasions, "This is your fire." When Mattheus asked if Respondent was going to write a report on this fire, Respondent replied in the negative since this was Mattheus' fire. It is standard operating procedure for the first inspector on the scene to be the primary investigator who writes the report, and for other inspectors to assist the primary investigator. Mattheus was the primary investigator in this fire, and was in charge of the investigation. The terminology, "It's your fire," is commonly understood among firefighters and inspectors to mean that "you are in charge and will write the report." Respondent's use of this phrase in responding to Mattheus was therefore accurate and in recognition of standard operating procedures, and does not indicate any lack of cooperation on his part. Respondent was not ordered to conduct a "joint investigation," according to Captain Yaudes. When the term "joint investigation" is used, it is understood by firefighters and inspectors to mean an investigation which involves another agency, such as the State Fire Marshal's Office or the Electrical Department, in which the other department assists the Fire Department in trying to determine the cause of a fire. On June 14, 1985, the day prior to the Belleair fire, Respondent had called Inspector Jeff Daniels and expressed concern that life safety inspectors would be used to investigate fires since he felt they were not qualified. He also expressed concern about Inspector Mattheus' qualifications. Despite this prior expression of concern, when Respondent was ordered to the fire scene the next day, he did determine that Mattheus was qualified and assisted him as ordered. The testimony of Lieutenant Frank Hill and Firefighters John Milano and Charles Daniels, who were all at the scene on June 15, 1985, specifically confirms that Respondent and Mattheus worked together on the investigation without discord.
Recommendation Based upon the foregoing, it is recommended that the disciplinary charge against Respondent be dismissed, and that Respondent receive three days back-pay and the removal of all disciplinary points in his record arising from this charge. DONE and ENTERED this 27th day of January, 1986, at Tallahassee, Florida. DONALD D. CONN, 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 27th day of January, 1986. COPIES FURNISHED: Miles Lance, Esquire Assistant City Attorney Post Office Box 4748 Clearwater, Florida 33518 Stuart M. Rosenblum, Esquire, 220 South Garden Avenue.C3 Clearwater, Florida 33516 APPENDIX Rulings on Petitioner's Proposed Findings of Fact: Adopted in part in Finding of Fact 4(c) and rejected in part in Finding of Fact 4(g). Adopted in Finding of Fact 4(a). Adopted in Finding of Fact 4(f). 4-6 Adopted in part in Finding of Fact 8, but otherwise rejected as irrelevant, unnecessary and not based on competent substantial evidence. Rejected in Finding of Fact 4. Adopted in Findings of Fact 4(h) and 6. Rejected in Finding of Fact 4(g). 10,11 Adopted in part in Finding of Fact 4(h), but otherwise rejected as irrelevant. Adopted in Finding of Fact 4(i). Rejected in Finding of Fact 4. Respondent did cooperate and assist as necessary. Adopted in Finding of Fact 4(h) and 6, but otherwise rejected as erroneously stating Respondent failed to aid Inspector Mattheus. 15,16 Rejected as simply a summation of testimony rather than a proposed finding of fact. 17 Adopted in part in Finding of Fact 4(e), but otherwise rejected as irrelevant and unnecessary. 18,19 Rejected as irrelevant and unnecessary. Adopted in part in Finding of Fact 8 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Rulings on Respondent's Proposed Findings of Fact, as contained in Sections A and B of Respondent's Memorandum, Proposed Findings and Conclusions of Law: Adopted in part in Finding of Fact 4 but otherwise rejected as irrelevant and unnecessary. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 3. 4,5 Rejected as irrelevant and unnecessary. Adopted in part in Findings of Fact 1 and 2. Rejected as irrelevant and unnecessary. 8-12 Adopted in Findings of Fact 4(a)-(e). Adopted in part in Finding of Fact 4(g), but otherwise rejected as unnecessary and cumulative. Adopted in Findings of Fact 4(h), (i). Adopted in Finding of Fact 6, but otherwise rejected as irrelevant. Adopted in Finding of Fact 3.
