Findings Of Fact Based on the testimony of the witnesses and the exhibits received in evidence at the hearing, I hereby make the following findings of fact: On February 27, 1984, the premises operated by Tony's Sea, Inc., were inspected by two inspectors of the Department of Agriculture and Consumer Services. On that date the inspectors observed, among other things, four boxes of frozen lobster tails which had been processed and packed by Tony's Sea, Inc. The four boxes of frozen lobster tails which came to the attention of the inspectors were sealed and labeled. The label on each box stated that the net weight of the contents was ten pounds. None of the labels contained the name of a dealer or responsible firm, nor did the name of a dealer or responsible firm appear elsewhere on the boxes. The inspectors removed the ice from the frozen lobster tails in each of the four subject boxes and weighed the lobster tails without ice. The net weight of the frozen lobster tails was approximately six pounds per box. The Administrative Complaint served on the Respondent contained the following opening paragraph: You are hereby notified that the Florida Department of Agriculture and Consumer Services intends to take disciplinary sanction authorized by Section 500.121, F.S., and seeks to impose an administrative fine of $1,000 for violation of certain laws of the state applicable to food processors and certain rules of the department.
Recommendation On the basis of all of the foregoing it is recommended that the Department of Agriculture and Consumer Services enter a Final Order ordering the Respondent, Tony's Sea, Inc., to pay an administrative fine in the amount of $1,000.00, such fine to be paid within 15 days of the issuance of the Final Order. DONE and ORDERED this 10th day of May, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1985. COPIES FURNISHED: Mr. Antonio Martinez-Malo President, Tony's Sea, Inc., 7716 N.W. 76 Avenue Medley, Florida 33166 Frank A. Graham, Jr., Esquire Resident Counsel Department of Agriculture and Consumer Services Room 512, Mayo Building Tallahassee, Florida 32301 Honorable Doyle A. Conner Commissioner of Agriculture The Capitol Tallahassee, Florida 32301
The Issue This is a case in which the Petitioner seeks to impose an administrative fine against the Respondent by reason of alleged sanitary violations described in an administrative complaint.
Findings Of Fact At all times material to this case, the Respondent has been licensed as a permanent food service facility, having been issued license number 2318478. The Respondent's last known business address is 9796 S.W. 24th Street, Miami, Florida 33165. On March 17, 2004, the Respondent's licensed premises were inspected by Pedro Ynigo, an inspector employed by the Division of Hotels and Restaurants. During the course of his inspection on March 17, 2004, Inspector Ynigo observed more than thirty fresh mice droppings on the shelves of the second floor storage room. Rodent droppings (including mice droppings) are a critical violation because rodent droppings indicate the presence of vermin and rodents inside the facility which can contaminate the food. The 1999 Food Code, Recommendations of the United States Public Health Service, Food and Drug Administration, have been incorporated into the rules of the Division of Hotels and Restaurants at Florida Administrative Code Chapter 61C. Food Code Rule 6-501.111 requires that steps be taken by the operators of food service establishments to minimize the presence of "insects, rodents, and other pests."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that a final order be entered in this case imposing an administrative fine in the amount of five hundred dollars ($500.00). DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2005. COPIES FURNISHED: Geoff Luebkemann, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Leon Biegalski, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2201 Ms. Madelaine Galindo Odnilag Incorporated 9796 Southwest 24 Street Miami, Florida 33165
The Issue The issue in this case concerns whether the Respondent violated Sections and 585.80, Florida Statutes, by selling or offering to sell animal products that were adulterated, misbranded, or uninspected, and, if so, a determination of the appropriate penalty to be imposed.
Findings Of Fact Respondent is engaged in the business of selling meat products at its location at 4267 Northwest 12th Street, Lauderhill, Florida 33313, and holds Food Permit No. 55402, pursuant to Section 500.12, Florida Statutes. On January 12, 1993, a United States Department of Agriculture Compliance Officer performed an inspection at Respondent's facility. During this inspection, the Compliance Officer examined and placed under detention approximately 327 pounds of uninspected meat product, consisting of the following: two pig carcasses, one cow head, singed cow feet, beef lungs, and goat tripe. None of the products bore any marks of inspection. With the exception of the two pig carcasses, 1/ all of the uninspected meat product was being offered for sale to retail customers. Beef lungs, or "lite," may not be sold as human food under any circumstances in the State of Florida. The goat tripe, or stomachs, were adulterated with ingesta, which is the contents of the stomach at the time the animal is slaughtered. Some of the beef lungs were darkly colored which, in the opinion of the Compliance Officer, was because they were either old or had been left unrefrigerated for some period of time. One of the pig carcasses was unclean and bruised, and was therefore condemned. The other carcass was released to Mr. Richard Gray after it was determined by the Compliance Officer that, despite the lack of proper labeling, the pig carcasses were being held for the personal use of Mr. Gray. On February 12, 1993, a Department Compliance Officer performed a second inspection at Respondent's facility. At this time, the Compliance Officer examined and detained approximately 65 pounds of uninspected meat products, consisting of the following: goat feet (hide on), goat intestines, goat tripe, and beef lungs. None of the products bore marks of inspection, nor were they marked as "Not for Sale." The goat feet and beef lungs were adulterated with ingesta and were generally dirty. The products detained during the February 12, 1993, inspection, were delivered to Respondent's facility on January 19, 1993, as part of the same purchase of meat products as the items found by the USDA Compliance Officer on January 12, 1993. The Florida meat inspection program requires an animal to be inspected both before and after slaughter. Antemortem inspection is necessary to determine the general health of the animal, while postmortem inspection may reveal pathological conditions and diseases. The tissue is also examined for evidence of abscess, parasites, and arthritic conditions, as well as drug residues. These steps must be taken to safeguard the consumer from exposure to contaminated and diseased meat products. By means of the Department's letter dated May 29, 1991, Respondent has previously received a formal notice of warning concerning a separate violation of the same statutory prohibition, namely the sale and offer for sale of adulterated and misbranded cow and goat feet.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Department of Agriculture and Consumer Services issue a Final Order in this case to the following effect: Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on January 12, 1993; Concluding that the Respondent is guilty of a violation of Sections 500.04 and 585.80(2), Florida Statutes, by offering for sale uninspected animal products and adulterated animal products on February 12, 1993; and Imposing an administrative fine in the amount of $1,000.00 for each of the two violations mentioned above, for a grand total of $2,000.00 in administrative fines. DONE AND ENTERED this 27th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of May 1994.
The Issue The issues in these consolidated cases are stated in the counts set forth in the Administrative Complaint for each case: Whether Falcon Catering Service No. 7 (hereinafter "Falcon 7") and Falcon Catering Service No. 8 (hereinafter "Falcon 8") failed to maintain the proper protection and temperature requirements for food sold from their mobile site in violation of the federal Food and Drug Administration Food Code ("Food Code"). In the Prehearing Stipulation filed in this matter, each Respondent generally admitted to the violations in the Administrative Complaints, but suggested that mitigating factors should absolve them of the charges or greatly reduce any administrative fine imposed.
Findings Of Fact The Division is responsible for monitoring all licensed food establishments in the state. It is the Division's duty to ensure that all such establishments comply with the standards set forth in relevant statutes and rules. Respondents Falcon 7 and Falcon 8 are licensed mobile food dispensing vehicles. Falcon 7 has license No. MFD5852560, which was initially issued on April 23, 2005; Falcon 8 has license No. MFD5852642, which was issued on October 19, 2005. Each of the Respondents serves meals and snacks to, inter alia, laborers at construction sites. On or about March 13, 2009, the Division conducted a food service inspection on Falcon 7. At that time, the food truck was located at 4880 Distribution Court, Orlando, Florida. One of the Food Code violations found by the inspector was Item 53b. That citation meant there was no validation of employee training on the truck. A follow-up inspection was deemed to be required. On April 10, 2009, a follow-up inspection was conducted by the Division. At that time, Item 53b was cited as a repeat offense. Also, Item 8a was cited. Item 8a refers to protection of food from contaminants and keeping food at an acceptable temperature. Notes by the inspector indicate that a further violation of Item 8a occurred because customers were allowed to serve themselves directly from food containers, and there was no fan in operation during the serving of food. On May 28, 2009, another inspection of Falcon 7 was conducted. At that time, the food truck was located at 12720 South Orange Blossom Trail, Orlando, Florida. Item 8a was again cited as a deficiency. The inspector's notes indicate that food was not properly protected from contamination and that customers were being served "buffet style" from the back of the truck. The inspector noted that this was a repeat violation. A follow-up or "call-back" inspection was conducted on December 3, 2009, at which time the temperature in Orlando was unusually cold. The food truck was at the same address on Orange Blossom Trail as noted in the prior inspection. Falcon 7 was again found to have been serving food buffet style from the back of the food truck. An Item 8a violation was again noted by the inspector. Another inspection of Falcon 7 was conducted on January 19, 2010, another very cold day in Orlando. At that time, the food truck was located at the same site as the last two inspections. The inspector cited the food truck for an Item 8a violation again, stating that the food was not being protected from contaminants. Dust was flying up on the back of the truck to exposed food items. An inspection of Falcon 8 was conducted on August 25, 2009, while the truck was located at 4880 Distribution Court, Orlando, Florida. An Item 8a violation was noted by the inspector, who found that displayed food was not properly protected from contaminants. The food truck was located under an Interstate 4 overpass and was open to flying debris. The inspector noted that customers were being served buffet style and that there was no protection of food from contamination by the customers. A follow-up inspection for Falcon 8 was conducted on August 27, 2009, at 9:12 a.m., while the food truck was located at the same site. Another Item 8a violation was cited at that time. The violation notes indicate essentially the same situation that had been cited in the initial inspection two days earlier. Less than one hour after the follow-up inspection, another inspection was conducted on Falcon 8 at the same location as the prior two inspections. There were no Item 8a citations issued during this inspection, but the food truck was found to have no water available for hand washing. The food truck employee was using a hand sanitizer to clean her hands. Respondents do not dispute the facts set forth above. However, Respondents provided mitigating facts for consideration in the assessment of any penalty that might be imposed. Those mitigating factors are as follows: The food trucks were serving an inordinately large number of workers during the dates of the inspections. The City of Orlando was constructing its new basketball arena, and there were numerous laborers involved in the project. In order to serve the workers, it was necessary for the food trucks to put their food out on tables, rather than ladle the food directly from the food warmers in the food truck. In fact, the shelves in the food trucks are so narrow that dipping food out of the warmers would be impossible. Due to the cold weather in Orlando during this time, it was impossible to keep the food at acceptable temperature levels for very long. The large number of workers washing their hands at the food trucks caused the trucks to run out of water much more quickly than normal. When the water ran out, the employees took care to sanitize their hands as well as possible. Ms. Falcon testified that the inspector's testimony concerning use of tables to serve food was erroneous. However, Sabrina Falcon was not present during the inspections, and her contradictory testimony is not reliable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Business and Professional Regulation, Division of Hotels and Restaurants, imposing a fine of $500.00 against Falcon Catering Service, No. 7, in DOAH Case No. 10-10925; and a fine of $750.00 against Falcon Catering Service, No. 8, in DOAH Case No. 10-10930. All fines should be paid within 30 days of the entry of the Final Order by the Division. DONE AND ENTERED this 10th day of May, 2011, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 2011. COPIES FURNISHED: William L. Veach, Director Division of Hotels and Restaurants Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Layne Smith, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Sabrina Falcon Falcon Catering Service 642 Mendoza Drive Orlando, Florida 32825 Megan Demartini, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Modley is a resident of Shalimar, Florida. He is an African-American male, who at the time of the hearing was 35 years of age. At the time of the hearing, he was employed by Winn Dixie, Inc., as a meat cutter. The Fresh Market is in the grocery business, operates many stores, and is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. The Fresh Market operates a store in Destin, Florida. On November 8, 2006, Mr. Modley applied for a "meat/seafood" position in the Destin store. Mr. Modley had previous experience in similar positions at Publix and Sam's Club. This position required Mr. Modley to process meat and seafood to be sold at retail and to provide customer service. The application submitted by Mr. Modley had upon it a question that stated, "Have you been convicted of a crime in the past 10 years?" Mr. Modley typed in "No." The application also had upon it the following statement, in pertinent part: "I certify that the facts set forth in my application for employment are true and complete. I understand that, if employed, false statements on this application shall be considered sufficient cause for dismissal. I authorize The Fresh Market, Inc. to verify all statements contained in this application and to make any necessary reference checks except as limited above for my present employer." The Fresh Market employed Mr. Modley as a meat cutter subsequent to his application. Mr. Modley was aware at the inception of his employment on January 19, 2007, that a person from the southern part of the state would soon arrive and assume the position of meat manager. Mr. Modley assumed, without any foundation whatsoever, that he was next in line to become meat manager. Saul Zaute, an experienced meat manager, who had been working for The Fresh Market in South Florida, assumed the position of meat manager shortly after Mr. Modley began working as a meat cutter. After 90 days of employment, Mr. Modley became eligible for certain fringe benefits. During an open enrollment period for insurance benefits, Mr. Modley sought insurance coverage for his wife and his "domestic partner." On May 7, 2007, Mr. Modley completed and signed a Declaration of Domestic Partnership Form declaring "under penalty of perjury" that he and his "domestic partner" were "not married to anyone" and that he and his "domestic partner" met all criteria for "domestic partnership." On this application he did not mention his wife. Following open enrollment periods, the Fresh Market's Benefits Department conducts a review of all applications for domestic partner benefits to ensure that the applicants meet the criteria specified on the Declaration of Domestic Partnership Form. The employee assigned to accomplish this was Martha Holt. Ms. Holt worked in Greensboro, North Carolina, and she was not acquainted with Mr. Modley. Ms. Holt reviewed the 14 domestic partner applications received during open enrollment by The Fresh Market. She did this by conducting a public records search on the internet. Ms. Holt noted the first application for insurance benefits listed a spouse. Ms. Holt was unable to find any record of Mr. Modley having divorced his wife. While searching for information that might illuminate Mr. Modley's marital status, Ms. Holt discovered that he had a criminal history. This became important because of Mr. Modley's assertion on his employment application that he had not been convicted of a crime in the past 10 years. It is noted at this point that Mr. Modley had not been convicted of any crime because judgment was withheld on his several criminal cases. When a judge withholds adjudication, the defendant has not been convicted, even though he may have been found guilty. Ms. Holt relayed the discovery of Mr. Modley's criminal history to her supervisor who informed Bill Bailey, Vice President of Human Resources for The Fresh Market, and Christine Caldwell, Regional Human Resources Coordinator. Mr. Bailey conducted his own Internet research and discovered that Mr. Modley was serving a two-year supervised probation for a felony, which was committed on November 30, 2005. Mr. Bailey erroneously concluded that Mr. Modley had falsified his application for employment. At the request of Mr. Bailey, District Manager Debbie Smart asked Mr. Modley directly if he had been convicted of a felony. Mr. Modley denied having any felony convictions. Mr. Modley, while not exactly dissembling, was not being helpful in illuminating this conundrum. A more honest answer would have informed Ms. Smart that he had been found guilty of several felonies, but had never been adjudicated and, therefore, convicted. Subsequent to Ms. Smart's request, on August 23, 2007, Mr. Modley signed a consent form authorizing The Fresh Market to employ an outside agency to conduct a more detailed criminal background check. The background check, conducted by an outside agency named Insight, resulted in a report indicating guilty findings with resultant sentences of 14 counts of uttering, larceny, procuring for prostitution, using false information to obtain a driver's license, and a failure to appear. Nothing in the Insight report indicates that Mr. Modley was found adjudicated of a felony. Melvin Hamilton was the regional vice-president charged with supervising the store in which Mr. Modley worked. When he was informed of the perceived discrepancy regarding Mr. Modley's job application, he decided to terminate Mr. Modley. No evidence was produced that indicated Mr. Hamilton was aware of Mr. Modley's race, and, in fact, Mr. Hamilton is an African-American. Mr. Hamilton's decision to discharge Mr. Modley was based on information that, at least in a technical sense, was incorrect. However incorrect the basis, the decision was not grounded in racial discrimination. During the time period December 2005 and February 2008, The Fresh Market terminated seven employees for falsifying their employment applications. Of those seven employees, four were white and three were African-American. When Saul Zaute left in late July 2007, The Fresh Market advertised a vacancy for the position of meat manager. This was done by a posting in the store and an advertisement in a local newspaper. This is the method normally used by The Fresh Market when seeking applicants for a position. At no time did Mr. Modley apply for the job of meat manager even though the position was advertised similarly to other positions. It appears that he continued under the erroneous belief that when he began his employment, The Fresh Market was aware that he eventually desired to be meat manager. How he came to that conclusion was not explained. The employee hired as meat manager was Gary Arnold. Mr. Arnold had many years of experience as a meat manager. Mr. Arnold had owned an operated a meat market for 17 years and had served as meat manager for two facilities totaling 19 years. The Fresh Market has an active anti-discrimination program and maintains policies and procedures to effect that program. Mr. Modley did not complain about any discrimination pursuant to those policies or in any other manner during the time he was employed by The Fresh Market.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petition of Carlos T. Modley be dismissed. DONE AND ENTERED this 10th day of June, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 10th day of June, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Regina Alberini Young, Esquire Rogers Towers, P.A. 1301 Riverplace Boulevard, Suite 1500 Jacksonville, Florida 32207 Carlos T. Modley Post Office Box 430 Shalimar, Florida 32579 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner was subject to an unlawful employment practice by Respondent based on her sex in violation of section 760.10, Florida Statutes (2015)1/; and if so, what penalty should be imposed.
Findings Of Fact Background Petitioner, Rhonda Wilkinson, was employed by Publix in the meat department from January 8, 2004, until her discharge on January 12, 2016. There are four sub-departments of the Publix meat department: lunch meat and cheese, seafood, frozen foods, and fresh meats. Petitioner began as a clerk in the lunch meat and cheese sub-department at the Thomas Drive Publix in Panama City. After completing meat cutter training, Petitioner was promoted to the position of meat cutter and transferred to store 0823 in Lynn Haven (the Lynn Haven store). She was subsequently promoted to Assistant Manager of the meat department at the same store. In March 2014, Petitioner was promoted to Meat Department Manager at store number 1005 in Panama City Beach (the beach store), where she remained until July 2015. During the busy season, the beach store would cut meat “as fast as they got it in” in order to keep up with demand. To help meet demand, John Sperandeo, an Assistant Meat Department Manager from the Lynn Haven store frequently assisted Petitioner as a meat cutter at the beach store. By all accounts, Petitioner’s relationship with Mr. Sperandeo was professional and without conflict. Petitioner transferred back to the Lynn Haven store as Meat Department Manager in July 2015. Petitioner supervised, among others, Mr. Sperandeo and Stephen Southerland, Assistant Meat Department Managers, and a meat cutter named Ervin Broxton. At the Lynn Haven store, Petitioner testified that Mr. Sperandeo would not “get on the same page” with her in terms of filling out paperwork properly. Petitioner complained that he inappropriately delegated that responsibility. Petitioner testified that it was her job, as manager, to set an example for all her subordinates of the proper way to execute Publix’s policies, even completion of paperwork. Petitioner introduced no evidence of complaints filed against Mr. Sperandeo or any counseling or disciplinary action taken against him. By all accounts, Petitioner’s career with Publix was without incident. Meat Department Policies Fresh meats are processed by the Publix meat department as follows: employees unload the supplier’s delivery trucks, scan the bar code on each box of meat product into the meat- cooler inventory, and store the product in the meat cooler. Each box is dated with the supplier’s pack date of the product. Publix’s policy is to store product in the cooler such that the meat with the oldest pack date is most readily accessible. The employee unloading the product is responsible to stack boxes so that the oldest product is on the top of the stack. Publix maintains a strict policy governing the shelf life of all meat products. The shelf life is the amount of time a product is available for sale, and is noted on the product packaging as the “sell by date.” Pursuant to Publix’s policy, fresh meat products generally have a five-day shelf life (the supplier’s pack date plus four days). It is against Publix’s policy for an employee to apply additional shelf life to any product when it reaches the end of the original shelf life. If product must be rewrapped during its shelf life, due to wet or bloody outside packaging, the employee must maintain the original sell-by date on the rewrapped package. The meat cooler is inventoried each day at or before store closing for product exceeding its shelf life, or “out-of- date.” This practice is referred to as “dating the cooler.” All product identified as out-of-date is designated for disposal and scanned out of the inventory system. Each morning, the store generates an adjustment transaction report which lists the specific products which were disposed of at the store on the prior closing date. The report also includes the “extended cost” of disposing of the particular products from the department. The adjustment transaction report is one tool the meat department uses to determine the appropriate amount of product to order from each supplier, as well as the amount of product to cut on a given day. The Dismissal Incident On January 6, 2016, Petitioner worked the early shift and was nearing the end of the shift, which is 4:00 p.m. Mr. Sperandeo was scheduled to close, and was preparing to take the standard lunch break--4:00-5:00 p.m.--for a closer. Mr. Braxton was dating the cooler at Petitioner’s direction, and Mr. Southerland was assisting him. Mr. Southerland and Mr. Braxton exited the cooler and reported to Petitioner that they had identified six boxes of out- of-date product. Petitioner said something to the effect of “don’t throw it out, John [Sparendeo] will cut it anyway.” Mr. Braxton re-entered the cooler. Mr. Sperandeo was in close proximity preparing to take his lunch break and remarked that he would not cut the meat. Mr. Southerland, who had reached the end of his shift, left the store. Petitioner did not deny making the statement. Her position is that the statement was meant as a joke and made in an off-hand manner. However, she did acknowledge that the remark was unprofessional and she knew she should not have said it to her subordinates. Shortly thereafter, Petitioner entered the cooler and told Mr. Braxton to put the boxes of out-of-date meat aside so that Mr. Sperandeo could “take care of it” at closing. Mr. Sparendeo did indeed dispose of the six boxes of out-of-date product and the quantities were included on the following day’s adjustment transaction report. At no time did Petitioner explain to Mr. Sparendeo that she had made the statement in jest and retract her direction to cut the out-of-date product. As he left the store, Mr. Southerland approached Mr. Sparendeo, who was taking his lunch break in his car in the parking lot. They discussed the incident and determined that they should report the incident to their superior. Mr. Southerland and Mr. Sparendeo approached Jeff Siltanen, the store Assistant Manager, who was on his lunch break in his car. They related the incident to Mr. Siltanen. Mr. Southerland left for the day, and Mr. Sparendeo returned to the meat department after his lunch. Later that evening, Mr. Siltanen and store Manager, Stephen Tucker, visited the meat department. Mr. Sparendeo showed them the subject boxes of out-of-date product, which Mr. Siltanen photographed. At Mr. Tucker’s direction, Mr. Siltanen also took written statements about the incident from both Mr. Braxton and Mr. Sparendeo. Later that same evening, Mr. Tucker notified Publix Regional Manager, Pat McGowan, of the incident. The following day, January 7, 2016, Mr. McGowan met with Mr. Tucker and Nicole Shurgar from Publix Human Resources. When Petitioner returned to work on January 7, 2016, she was called to Mr. Tucker’s office. When she arrived, she was met by Mr. Tucker, Mr. McGowan, and Ms. Shurgar. Mr. McGowan asked Petitioner about the allegation that she had instructed Mr. Sparendeo to cut out-of-date product. Petitioner admitted making the statement, although she explained that it was meant in jest. Mr. McGowan then informed Petitioner that she was suspended for a week, pending an investigation into the incident. During the investigation, Ms. Shurgar interviewed Mr. Sparendeo, Mr. Southerland, and Mr. Broxton. She found their statements consistent and corroborating. Ms. Shurgar also reviewed Publix’s policies and her files relating to discipline for violations of Publix’s food safety policies. Ms. Shurgar recommended to Mr. McGowan that termination was appropriate. On January 12, 2016, Mr. McGowan discharged Petitioner from her employment with Publix. The discharge notification contained the following description: On 1/6/16 after learning of multiple boxes of out of date product and in the presence of witnesses, Rhonda instructed AMM [Assistant Meat Market Manager] John Sparendeo to cut the out of date product. Rhonda is being discharged for violating Publix food safety practices and instructing another associate to violate the practice. Comparison Incident Petitioner complains that her discharge was discriminatory in light of the more favorable treatment of male associates who violated Publix’s food safety practices. Over the 2015 Thanksgiving holidays, an associate at the Lynn Haven store informed Mr. Siltanen that the sell-by date of a pot roast had been extended. The associate had been considering buying the pot roast on a Friday and noted the sell- by date of November 30, 2015. On Sunday the 30th, the associate observed that the package had been rewrapped, repriced, and the sell-by date extended. Mr. Siltanen retrieved the subject pot roast and briefly asked the meat department employees if they knew anything about the rewrapping and redating of the product. No employee was forthcoming. Mr. Siltanen notified Mr. Tucker of the incident via email. Mr. Tucker interviewed the employees, but did not obtain any information. Mr. Siltanen then viewed the Lynn Haven store’s internal video feed, from Friday evening through Sunday morning, to determine which employee had rewrapped and redated the product. Mr. Siltanen’s review of the video was inconclusive. Mr. Sparendeo, Mr. Broxton, and a third employee, a meat cutter named Addison Sharp, all appeared in the video handling a variety of meats in the case. However, Mr. Siltanen was unable to determine whether the particular pot roast was handled by any of the three men specifically. Petitioner was not working on the date of this incident, and was out on vacation for a few days during the Thanksgiving holidays. Mr. Siltanen and Mr. Tucker decided that, since they could not tie a specific employee to the redated meat, they would hold a departmental meeting, bring the incident to the attention of all meat department employees, and review department policy on shelf-life of products with all relevant employees. Mr. Siltanen took a picture of the offending pot roast and posted it on the bulletin board for all employees to see. He conducted the departmental meeting the following day, December 1, 2015. When Petitioner returned to work on December 1, 2015, Mr. Siltanen informed her of the incident and decision to hold the meeting and review policy with employees. None of the three employees observed in the video who had access to the pot roast during the time it was rewrapped and redated were disciplined in any manner. All three employees were male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner against Respondent in Case No. 201600629. DONE AND ENTERED this 17th day of January, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 17th day of January, 2017.
