The Issue The issue is whether any of the respondents is guilty of discriminating against Petitioner on the basis of her sex in connection with her rental of a lot in the Galaxy Mobile Home Park, in violation of the Florida Fair Housing Act, section 760.23(2), Florida Statutes.
Findings Of Fact In September 2010, Petitioner, a 54-year-old female, moved into Galaxy Mobile Home Park, 5810 U.S. Highway 92, West, Plant City, Florida. Since her arrival at the park, Petitioner has occupied her lot based on a month-to-month rental agreement. The park consists of 33 mobile home lots, four cabins, six RV lots, and one house. At present, 27 females and 22 males live there; most residents are 55 years old and older. The park manager is Respondent Adams, an 85-year-old female. She and her late husband moved to Galaxy Mobile Home Park in 1988. Initially, she was not the manager, but her husband performed all of the maintenance and lawn mowing. Ownership and property-management duties lie with Respondent David and Respondent PGM; one of them employs Respondent Adams and pays her $300 per month to serve as the park manager. In 2002, Respondent Adams moved out of the park and into a nearby residence. She works mornings in a small office located at the park, although, if needed, she remains at the park until as late as 4:00 p.m. or returns to the park in the afternoon. Her duties include cleaning the laundromat, collecting rents, showing prospective tenants available lots, and arranging for repairs. She is paid $300 per month for her services. Respondent Perez, a male reportedly 68 or 70 years old, formerly was the maintenance man at the park--the lawn mowing responsibilities having been assigned to another person. Using supplies provided by Respondent David or Respondent PMG, Respondent Perez performed maintenance work around the park as needed. No one recorded his time, and he did not work according to a set schedule. At times, he would travel and be gone for extensive periods, during which minor maintenance duties were apparently deferred until his return, sometimes months later. Respondent Perez lived in a mobile home at the park, and his sole compensation was free lot rent of about $300 per month. This obviously was a part-time job. When she first moved to Galaxy Mobile Home Park, Petitioner owned an RV, so she rented lot 148, which is an RV lot. Petitioner first arrived at the park late in the day when the office was closed, so, the next morning, she and Respondent Adams were speaking in front of Petitioner's RV. After Petitioner had paid the first-month's rent, Respondent Adams was describing the park amenities to Petitioner when Respondent Perez approached the two women, cursing loudly. Few incidents involving Respondent Perez acquired much clarity in the record, and the first of these is no exception. As Respondent Perez approached Petitioner and Respondent Adams, he appeared to be concerned about an item of potentially dangerous maintenance equipment that Petitioner may have lent to another resident. Pointing a finger at Petitioner, evidently from some distance from the two women, Respondent Perez warned her that if she lent this equipment to someone, "it is on your fucking ass," implying that she, not he, would be responsible if the resident injured himself using the equipment. For emphasis, Respondent Perez then pounded his chest, shouting, "I'm a fucking man." Petitioner replied, "and I'm a fucking woman." Later that day, two male residents were helping Petitioner set up her RV. Driving by, Respondent Perez shouted a warning to Petitioner from his vehicle, "if you let those fucking men in your yard, you'll have a yard-full of fucking men." The following morning, Respondent Perez knocked on Petitioner's door. This appears to have been the only time that he did so, and he never entered Petitioner's home at any time. When Petitioner answered the door, Respondent Perez told her that everyone was "fucking complaining" that she was using too much toilet paper, plugging up the sewage system at the park. Petitioner replied that, due to problems with her holding tank, she did not flush her toilet paper, but disposed of it in her trash, and invited Respondent Perez to take a look. Respondent Perez declined, saying, "Well, I don't know. That's what the fuck they say." In October 2011, when a resident left her mobile home to move north, Petitioner moved into the mobile home, which was at lot 163. The mobile home had a screen porch, where Petitioner would often sit, enjoying watching television and smoking cigarettes, which she tried not to smoke inside. From time to time, Respondent Perez would walk by the screen porch, and sometimes he would utter unpleasantries to Petitioner, warning her that no one could do his work. On one occasion, Petitioner complained to Respondent Adams that Respondent Perez was disturbing her by his use of a flashlight as he walked through the park at night. Respondent Adams spoke to Respondent Perez, who replaced the flashlight with a brighter lantern. The evidence does not establish that Respondent Perez was walking at night to bother Petitioner; given the location of their lots, he would have to pass her lot as he walked or drove toward the front of the mobile home park where amenities were located. Also, Respondent Perez was in an intimate relationship with a woman named Mrs. Miller, and Petitioner's lot was between the lots of Respondent Perez and Mrs. Miller. ("Mrs. Miller" is a pseudonym to protect the privacy of the resident.) In the spring of 2012, while Petitioner was talking to a male resident at the picnic area, Respondent Perez drove up and began talking to the man, evidently ignoring Petitioner. Respondent Perez told him that, the prior evening, he had met a woman in a bar. Professing to be a Christian, she had told him that she did not believe in sex before marriage. But Respondent Perez loudly proclaimed that he had had sexual intercourse with the woman that very night. At this point in the story, Respondent Perez laid face down in the grass and began violently thrusting, in a pantomime of sexual intercourse, explaining that "when I get a woman, I can go all night." Other problems arose between Petitioner and Respondent Perez. When she moved from the RV, Petitioner placed a PVC pipe from the RV in her new yard, keeping it for the new owner of the RV. Respondent Perez removed the pipe, likely as part of his duties in keeping the park clean and thinking that the used pipe had been discarded. Petitioner called Respondent Adams, accused Respondent Perez of stealing the pipe, and threatened to call the sheriff's office. Respondent Adams told her that would not be necessary, and she would buy whatever PVC pipe the new owner required to connect his RV to the park's plumbing. At some point, dissatisfied with Respondent Adams' handling of her complaints about Respondent Perez, Petitioner demanded a meeting with Respondent David. Respondent David, Respondent Adams, and Petitioner met at the park. They were talking while looking at a repair job that Respondent Perez had done, suggesting that the focus of Petitioner's complaints at least included poor workmanship on Respondent Perez's part. But when Petitioner tried to talk about Respondent Perez, Respondent David declined to do so unless Respondent Perez was present. Respondent David and Petitioner had no further conversations. The final incident coincided with the death of a neighbor, according to Petitioner, who testified that Respondent Perez's animosity toward her intensified at this time. The death seems to have taken place in July 2013. The record is insufficiently developed to find any possible connection between the resident's death and Respondent Perez's increased animosity. However, at some point, Mrs. Miller died, and Respondent Perez and Respondent Adams believed that Petitioner and another neighbor entered Mrs. Miller's mobile home after the ambulance had removed her body to rifle through her medications in order to steal those that they wanted. Petitioner admitted that she was in the mobile home going through the medications, but only to assist the emergency medical technicians in their effort to identify Mrs. Miller's prescriptions. The record is poorly developed in other respects. Petitioner testified to a steady verbal barrage from Respondent Perez, seemingly on every occasion that the two met, usually featuring epithets describing Petitioner as a "whore" or "prostitute." Petitioner called as a witness her brother, who could recall only that Respondent Perez complained about where he and his son had parked and that Respondent Perez was always "on" his sister about something, although he could not recall anything in specific. The nephew also testified, adding only that Respondent Perez often told them that they could not "fucking park" where they had parked, and he generally swore a lot. The neighbor who had joined Petitioner in Mrs. Miller's mobile home testified that she had once overheard Respondent Perez say to a male resident that all women are "whores and prostitutes." On another occasion, she overheard Respondent Perez say to Respondent Adams, as he pointed to a woman some distance away, "there's another one of those whores over there." And the neighbor overheard Respondent Adams reply, "I told you to keep that word from your mouth." A deputy who was called out in response to a complaint made by Petitioner could not remember a single detail of the call. By contrast, Respondent Adams proved to be a memorable witness. Demonstrating the danger of compound questions posed to aged witnesses, when asked by her attorney if Respondent Perez drove by Petitioner's home every day and harassed her, Respondent Adams answered that he had to--meaning that he had to drive by Petitioner's lot. When asked by her attorney (twice) if Respondent Perez harassed Petitioner, Respondent Adams answered definitively, yes. She explained that he harassed everyone, but also denied that he harassed anyone. As Respondent Adams saw it, the relationship between Petitioner and Respondent Perez was that of two residents, not a resident and the park maintenance man. On occasion, though, Respondent Adams directed Respondent Perez to watch his language. One such occasion has been noted above; on another occasion, she said that Petitioner "has a name. It is Lisa. Use it." Respondent Perez's reference to Petitioner that prompted this directive is undisclosed. Respondent Adams also witnessed occasions during which Petitioner employed profanity toward Respondent Perez, as well as at least one other individual. On one such occasion, when a male tree-trimmer at the park warned Petitioner to keep a safe distance from his work area, she responded, "You son of a bitch. Drop a limb on me and I will sue you." It is difficult to characterize Respondent's state of mind at the time of his vulgar utterances, of which some, it is safe to assume, were uttered at Petitioner. The present record supports findings that Petitioner and Respondent Perez had a poor relationship. It is impossible to determine whether either party was at fault for this relationship or the degree of any fault that each party bore. However, from Respondent Perez's point of view, Petitioner's behavior was, on one occasion, substantially unjustified, as in the case of the removed PVC pipe from the yard, and, on another occasion, open to justifiable suspicion, as in the handling of the prescription medicines after Mrs. Miller's death. The present record supports a finding of abusive verbal exchanges between Petitioner and Respondent Perez, but not their frequency. If Petitioner's recounting of them were fully credited as all of them, there were very few such exchanges over the three years in question. Undoubtedly, Respondent Perez's swear words and other insults were grounded in gender relations or gender, as in his use of the words, "fuck" or "fucking," "bitch," and "whore." Respondent Perez was unable to direct a park visitor to move his car without uttering "fucking," employed either as an adverb to intensify the verb (i.e., "move") or an adjective to intensify the object (i.e., the "car")--or, of course, both. Most importantly, though, the present record in no way supports a finding that these exchanges were so frequent or intense as to deprive Petitioner of the use and enjoyment of her home and the amenities in the park.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of March, 2015, 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 23rd day of March, 2015. COPIES FURNISHED: Yaron M. David Properties Group Management, LLC 5810 U.S. Highway 92, West Plant City, Florida 33567 Rachel K. Beige, Esquire Cole, Scott and Kissane, P.A. 2nd Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) C. Martin Lawyer, III, Esquire Bay Area Legal Services, Inc. 1302 North 19th Street, Suite 400 Tampa, Florida 33605-5230 (eServed) Melissa Ann Craig, Esquire Bay Area Legal Services, Inc. 18238 U.S. Highway 301, South Wimauma, Florida 33598 (eServed) Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue Whether the Petitioner, Macia Poole, was subject to an unlawful employment practice by Respondent, Westminster Village of Pensacola, on account of her sex or due to retaliation for her opposition to an unlawful employment practice in violation of section 760.10, Florida Statutes.
Findings Of Fact On April 3, 2015, Petitioner’s Employment Complaint of Discrimination and Petition for Relief were transmitted to the Division of Administrative Hearings by the Florida Commission on Human Relations for a formal administrative hearing to be held in accordance with section 120.57, Florida Statutes. On April 10, 2015, a Notice of Hearing by Video Teleconference was entered which set the final hearing for June 1, 2015, at 9:00 a.m., Central Time, (10:00 a.m., Eastern Time), at video teleconference sites in Pensacola, at the Office of the Judges of Compensation Claims, Video Teleconferencing Room, 700 South Palafox Street, Suite 305, Pensacola, Florida, and in Tallahassee, at the Division of Administrative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida. On May 4, 2015, one Subpoena Duces Tecum and four Subpoenas Ad Testificandum were issued at the request of Petitioner. On May 14, 2015, Petitioner electronically filed her Notice of Appearance in this proceeding. On May 26, 2015, Petitioner filed a Request to Reschedule Video Hearing. The Request made no allegation of an inability to attend the hearing, only that her attendance would be an “inconvenience.” The Request was denied. The filing of the Request is convincing evidence that Petitioner knew that the final hearing was scheduled to be heard in accordance with the Notice of Hearing by Video Teleconference. On June 1, 2015, at the scheduled date, time, and place, the final hearing was convened. Mr. Moran, representing Respondent, Westminster Village of Pensacola, made his appearance. Petitioner did not appear. The final hearing was recessed for twenty minutes to allow Petitioner to appear. During the recess, the undersigned confirmed that the Division had not received any communication from Petitioner of exigent circumstances that may have interfered with her appearance at the final hearing. After twenty minutes had passed, the final hearing was re-convened. Petitioner was not in attendance. Respondent was prepared to proceed, and had its witnesses in attendance at the Pensacola video location. Mr. Moran confirmed that he had received no emails from Petitioner, that being their normal form of communication. At 9:25 a.m., Central Time, (10:25 a.m., Eastern Time), the final hearing was adjourned. There was no evidence presented at the final hearing in support of Petitioner’s Employment Complaint of Discrimination and Petition for Relief.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, Westminster Village of Pensacola, did not commit an unlawful employment practice as to Petitioner, Macia Poole, and dismissing the Petition for Relief filed in FCHR No. 2014-01235. DONE AND ENTERED this 3rd day of June, 2015, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of June, 2015. COPIES FURNISHED: Tammy Scott Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 Brian J. Moran, Esquire Moran Kidd Lyons Johnson, P.A. 111 North Orange Avenue, Suite 900 Orlando, Florida 32801 (eServed) Macia Deanne Poole Apartment 176 6901A North 9th Avenue Pensacola, Florida 32504 (eServed) Christopher R. Parkinson, Esquire Moran, Kidd, Lyons, and Johnson, P.A. 111 North Orange Avenue Orlando, Florida 32801 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issues are: (1) whether Respondent violated Subsection 112.3148(8), by failing to report a $2,606.25 gift of Disney World and Universal Studios tickets on a Quarterly Gift Disclosure Form, CE Form 9; and (2) if so, what is the appropriate penalty.
Findings Of Fact At all times pertinent to the proceedings, Respondent, Alan Keen, served as chairman of the Orlando-Orange County Expressway Authority. At all times relevant hereto, Respondent was subject to the requirements of Chapter, Part III, Florida Statutes, Code of Ethics for Public Officers and Employees, for his acts and omissions as chairman of the Expressway Authority. See §§ 112.311(6) and 112.313, Fla. Stat. In April 2006, Respondent was contacted by a family friend, James Stanley, who resides in Costa Rica. Mr. Stanley indicated that his father-in-law was paying for the family, consisting of four children and eight adults, to travel to the Orlando area in the Fall of 2006 and requested that Respondent see if he could obtain theme park tickets for their use. Mr. Stanley called Respondent and asked him to obtain theme park tickets so that the tickets could be in-hand prior to Mr. Stanley and his family arriving in Orlando. This request was made purely for the purposes of convenience.2 Respondent has known Mr. Stanley for more than 20 years and considers to him to be a friend. Mr. Stanley described Respondent as his mentor and a close friend. Respondent and Mr. Stanley and their respective families socialize and have visited with each other in the United States and in Costa Rica. Mr. Stanley never asked for or expected Respondent to obtain free theme park tickets. In fact, it was Mr. Stanley's understanding and belief that his father-in-law, Rodrigo Esquivel, was going to pay all the costs associated with the trip. Respondent contacted Bryan Douglas, the then director of marketing for the Expressway Authority and asked Mr. Douglas if he had access to complimentary tickets to Universal Studios and Disney World theme parks.3 In response to this request, Mr. Douglas told Respondent that he did not know if he had access to complimentary tickets, but indicated that he would check. As chairman of the Expressway Authority, Respondent had no supervisory authority over Mr. Douglas and never signed any of his paychecks. Approximately two or three weeks after his initial telephone call to Mr. Douglas, Respondent requested that his personal assistant, Sherry Cooper, follow-up on whether Mr. Douglas had any success in obtaining any complimentary tickets. Respondent understood that Ms. Cooper, at the request of Mr. Douglas, had inquired of Mr. Stanley how many adult and how many children tickets were needed. In 2006, Ronald Pecora was the owner of Pecora and Blexrud, a marketing communications and public relations firm that had a contract to do work the Expressway Authority. In or about May 2006, Mr. Pecora became aware of the request for theme park tickets from Christy Payne. Ms. Payne was the representative of Pecora and Blexrud who was assigned to work with the Expressway Authority. According to Mr. Pecora, Ms. Payne reported to him that she was contacted by Mr. Douglas, the marketing director for the Expressway Authority in regard to theme park tickets. Based on the above-referenced conversation between Mr. Pecora and Ms. Payne, it was his (Mr. Pecora's) understanding that the subject theme park tickets were for Respondent. However, Mr. Pecora had no idea who would be using the theme park tickets and never spoke to Respondent about those tickets. During Mr. Pecora's conversation with Ms. Payne regarding the theme park tickets, he authorized her to purchase the theme park tickets with her corporate credit card. As a result of Mr. Pecora's authorization, a total of 12 theme park tickets having a value of $2,606.25 were purchased using the Pecora and Blexrud credit card. At the time Mr. Pecora authorized Ms. Payne to purchase the 12 theme park tickets, he anticipated being repaid for the tickets. Mr. Pecora's actions after he received the theme park tickets and the invoice for the purchase of those tickets are consistent with that belief and expectation. In mid-May 2006, the 12 theme park tickets and receipt for payment invoice ("invoice") were delivered to Mr. Pecora's business address in Winter Park, Florida. The invoice indicated that the $2,606.25 payment for the theme park tickets had been charged to Mr. Pecora's credit card.4 A few days after receiving the tickets and invoice, Mr. Pecora had one of his employees deliver the theme park tickets and the original invoice for those tickets to Keewin Properties. The reason Mr. Pecora sent the invoice to Keewin Properties, whose principal was Respondent, was so that the recipient would know how much to pay him for the tickets. At the time that Mr. Pecora had the theme park tickets and invoices sent to Keewin Properties, he knew that Respondent was the owner of that business. At or near the time Mr. Pecora directed his employee to deliver the theme park tickets and invoice for those tickets to Keewin Properties, he memorialized that transaction. In a hand-written note dated May 18, 2006, Mr. Pecora indicated that the original invoice had been sent to Keewin Properties. Mr. Pecora understood that theme park tickets were not for official business purposes of the Expressway Authority. Accordingly, he did not send the invoice for the theme park tickets to the Expressway Authority, but to Respondent's privately-owned business. On or about mid-May 2006, Respondent received the theme tickets and the invoice that were delivered to him in a small brown envelope. When he received the tickets, Respondent was surprised that Mr. Pecora was involved in obtaining the tickets because he had merely asked Mr. Douglas whether he had access to complimentary theme park tickets. However, Respondent was not surprised to have received an invoice. Upon receipt of the tickets, Respondent telephoned Mr. Stanley and advised him that he had obtained the theme park tickets and the invoice for the purchase of those tickets. Because Respondent would be in Costa Rica in a few weeks, he told Mr. Stanley that he would deliver the tickets and the invoice when he arrived in Costa Rica. As he had promised, a few weeks after speaking to Mr. Stanley, Respondent traveled to Costa Rica and, while there, personally delivered the theme park tickets and the invoice to Mr. Stanley. When Mr. Stanley received the theme park tickets and the invoice, he reviewed them. Soon thereafter, Mr. Stanley gave both the tickets and the invoice to Mr. Esquivel. Prior to giving the tickets and the invoice to Mr. Esquivel, Mr. Stanley highlighted the name of the individual printed on the invoice who was to be paid for the tickets. On or about September 23, 2006, Mr. Stanley and his family, including Mr. Esquivel, began their visit to the Orlando area. During this trip, the theme park tickets were used by Mr. Stanley's family. Respondent did not use any of the theme park tickets. Mr. Esquivel did not pay for the theme park tickets prior to the time that Mr. Stanley's family used the theme park tickets. About ten days after Mr. Stanley's family, including Mr. Esquivel, returned to Costa Rica from Orlando, Mr. Esquivel suffered a stroke. As a result of the stroke, Mr. Esquivel was hospitalized for about a week, but later returned to most of his usual activities. Respondent first learned that the theme park tickets had not been paid for in December 2006, after reading an article in the Orlando Sentinel newspaper. Until that time, Respondent had assumed that Mr. Stanley or his father-in-law had paid for the theme park tickets. Soon after reading the above-referenced newspaper article, Respondent called Mr. Stanley to ask if they had paid for the theme park tickets. Mr. Stanley told Respondent he believed that his father-in-law had paid for the tickets, but indicated that he would check on the matter. Upon checking, Mr. Stanley determined that his father-in-law had not paid for the tickets. Based on his personal knowledge of his father-in-law, Mr. Stanley concluded that his father-in-law simply forgot to pay for the tickets.5 Soon after discovering that Mr. Esquivel had not paid for the theme park tickets, Mr. Stanley also learned that criminal proceedings related to the theme park tickets were pending against Mr. Pecora. Therefore, Mr. Stanley, in consultation with his attorneys, decided that payment for the theme park tickets should be made after the criminal proceedings were over. About a month prior to this proceeding, Mr. Stanley received wiring instructions from Mr. Pecora's attorney. Immediately thereafter, Mr. Stanley wired the full payment for the theme park tickets to Mr. Pecora's attorney, on behalf of Mr. Pecora. Mr. Stanley's father-in-law gave him the funds which were wired to Mr. Pecora's attorney. Respondent did not file a Quarterly Gift Disclosure, CE Form 9, regarding receipt of the theme park tickets. The reason Respondent did not file a Quarterly Gift Disclosure Statement was that the theme park tickets were not for him and were not used by him. Therefore, Respondent did not believe that the tickets were a gift. Mr. Pecora, the procurer of the theme park tickets, did not consider the theme park tickets as a gift. Moreover, he never intended to make those tickets a gift.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics issue a final order and public report finding that Respondent, Allen Keen, did not violate Subsection 112.3148(8), Florida Statutes, and dismissing the Complaint filed against him. DONE AND ENTERED this 20th day of November, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 20th of November, 2009.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Mr. Phillips is a person of the masculine sex. He was employed as a maintenance foreman at Respondent Martin Stables South, Inc. (Martin Stables), of Reddick, Florida, from May 19, 2005, until June 27, 2005. Edmund Martin is the president of Martin Stables. He is also the only stockholder. Mr. Martin is aware of the number of employees working at Martin Stables. He testified that Martin Stables had less than 15 employees during the period May 19, 2005 to June 27, 2005. Moreover, he testified that Martin Stables never employed 15 or more employees in the current year, or in the year preceding May 19, 2005. He further stated that Martin Stables had never employed as many as 15 employees at any given time. Mr. Phillips provided no evidence contradicting this assertion.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations dismiss the Petition. DONE AND ENTERED this 11th day of May, 2006, 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 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 John L. Phillips Post Office Box 771011 Ocala, Florida 34477 David A. Glenny, Esquire Bice Cole Law Firm, P.L. 1333 Southeast Twenty-Fifth Loop Suite 101 Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent committed the unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner be granted.
Findings Of Fact Petitioner is a black male and is an African-American. He was employed by Respondent in 2005 and continued his employment until May 2009. Petitioner worked the area of the property known as “Fun World.” Petitioner was a ride attendant and was assigned to operate one of the rides available to the public in the park. Respondent is a flea market and family amusement park, operated for the public on Highway 17-92, in Sanford, Florida. At the time of the allegations of this case, Respondent had approximately 24 employees: ten Caucasian, ten black or African-American, and four Hispanic. Fun World has a number of rides described in the record of this case. Petitioner’s assignment varied based upon the need of the park. Petitioner was assigned to the Tilt-A-Whirl ride, at the times most pertinent to the allegations of the case. A series of incidents ultimately led to Petitioner leaving employment at Fun World. First, Petitioner described an incident wherein he was in need of using the restroom. He did not see his supervisor or another ride attendant who could watch his ride, but due to his personal need, he left his station unattended. A second employee observed the unattended ride and told a company manager that Petitioner had left his ride with people waiting and, thereby, made the ride unavailable to the public. Thereafter, Petitioner and the other ride attendant, a Caucasian male, exchanged harsh words. Based upon Petitioner’s admission of what he said, Petitioner received a warning and counseling regarding his behavior and verbal threat to the co- worker. A second incident resulted in Petitioner's being sent home, because he attempted to clock-in late. Respondent has a strict policy that requires employees to clock-in at a designated time. If an employee is going to be late, he must call in advance of the clock-in time and advise a supervisor or manager that he will be late. On one date mentioned by Petitioner, he was on time to work, and in the general vicinity of the time clock, but was technically late to the clock-in process. Respondent sent Petitioner home and advised him he was not needed that day. Another employee was allowed to clock-in after Petitioner had been denied. That worker, a high school football player, had called in to let Respondent know he would be five minutes late. Petitioner and the football player are the same race. Based upon what he believed was disparate treatment, Petitioner determined that Respondent’s management was “out to get him.” First, Respondent had taken the Caucasian co-worker’s side in the dispute arising from the unattended ride issue. Secondly, Respondent had allowed an employee, who was much later than he, to clock-in. Respondent’s acts regarding Petitioner’s assertions had nothing to do with Petitioner’s race. Moreover, Petitioner’s race had nothing to do with why he ultimately left employment with Respondent. The final issue came to light after the aforementioned incidents. Respondent received a telephone tip that Petitioner was selling ride tickets off property. In theory, Petitioner failed to turn in tickets at the ride site, then pocketed tickets for resale off property. To follow up on the allegation, Respondent audited the Tilt-A-Whirl ride tally sheets to compare the number of riders to the number of tickets turned in by Petitioner. Simply stated, Petitioner was required to keep tabs on the number of riders based upon the hour, the ride, and the type of rider (ticket holder or banded pass) before each ride started. For up to eight times per hour, the ride could be operated, and, for each ride, the designated information was to be entered on the tally sheet. At the end of the day, Petitioner was to turn in the tally sheet with his notations for all of the pertinent data. Tickets turned in for the ride were to be placed in the ticket box. The number of tickets in the box should correspond to the tally sheet data. The ticket box was locked and was to be opened by management. Petitioner’s tickets did not match the tally sheet data. When confronted with the discrepancy, Petitioner was given the option of leaving employment or having Respondent call in law enforcement to address the ticket discrepancy. Petitioner clocked out and left the property. Respondent did not act based upon Petitioner’s race, but due to the fact that it was concerned that tickets were missing and unaccounted for from Petitioner’s ride.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 15th day of November, 2010, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2010. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Timothy J. Faison Post Office Box 470572 Lake Monroe, Florida 32747 Sid Levy Flea World 610 North Orange Avenue Orlando, Florida 32801 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Respondent is guilty of discriminating against Petitioner in employment based on his age, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner was born on September 13, 1955. He was initially employed by Respondent in 1996. He remained employed with Respondent until he was terminated in late November 2000. At the time of his termination, Petitioner served as the Assistant Director of Parks. His immediate supervisor was Julio Martinez, who was the Director of Parks. On July 18, 2000, Yioset de la Cruz was elected Mayor of Respondent. Mayor de la Cruz had been employed by Respondent during the administrations of Mayors Oliveros, Fatima, and Morejon. However, Mayor Morejon terminated the employment of Mr. de la Cruz, as well as several other employees who had served under Mayor Fatima. Running on the promise to clean up the city, Mr. de la Cruz won 57 percent of the vote and defeated then-Mayor Morejon. When he assumed office, Mayor de la Cruz had to address several pressing financial issues, including a projected deficit of $540,000 for the fiscal year and the cancellation of Respondent's insurance by The Florida League of Cities. At the same time, the people of Hialeah Gardens had become dissatisfied with the maintenance and operation of their city parks, which are the most visible reflection of the quality of their city government. Appointing Arturo Ruiz to oversee the parks and their maintenance and operation, Mayor de la Cruz nonetheless remained directly involved in parks administration by imposing new discipline upon parks workers to ensure public satisfaction with the maintenance and operation of city parks. Shortly after disciplining Petitioner for improper use of his city telephone, Mayor de la Cruz visited Respondent's office, which was located in one of the major city parks, to assure that city park employees had completed their preparations for the long holiday weekend of Thanksgiving 2000. Unable to find Petitioner at his office, Mayor de la Cruz asked to see Petitioner's time card and found that he had not punched out for the day. After driving through nearby parks in search of Petitioner, Mayor de la Cruz returned to the office, where the secretary belatedly informed him that Petitioner had called in to say that he had fallen ill and asked that another employee punch him out for the day. After Mayor de la Cruz and the secretary finished speaking, Mayor de la Cruz spoke with Petitioner by telephone. When Mayor de la Cruz attempted to discuss the matter with Petitioner, Petitioner became disrespectful and insubordinate. Petitioner began screaming and swearing at the Mayor, who responded by promptly firing Petitioner. The evidence in this case is clear that Mayor de la Cruz fired Petitioner due to his insubordination, not due to his age.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Request for Administrative Hearing. DONE AND ENTERED this 7th day of February, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 7th day of February, 2002. COPIES FURNISHED: Gary A. Costales Law Office of Gary A. Costales, P.A. 2151 LeJeune Road, Suite 200 Coral Gables, Florida 33134 J. Frost Walker, III, Esquire Law Office of J. Frost Walker, III 100 West Sunrise Avenue Coral Gables, Florida 33133 Derick Daniel, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Cecil Howard, General Counsel Florida Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Violet D. Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S, William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election. Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees; however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD). Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews. The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash. Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid. The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00 p.m. They are paid for a full eight hour work day. Parks Department employees, also in the PWD, commence work at 7:00 a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash. Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city. Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred. On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties. Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed. Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed. A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them. When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed. The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office. Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office. Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours. Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked: "Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work? Yeah; true. Q. Is that true? A. uh-huh. Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union? A. Him and some other people too." Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236) The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time. In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed. Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction. Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
Findings Of Fact In April, 1975 Mrs. Wright, an inspector assigned to the District Office in Panama City inquired of her supervisor regarding outside employment and was told she had to obtain permission from Tallahassee. She subsequently telephone Jack Pelham in Tallahassee who advised her the department would have no objection if it did not interfere with her state duties, but she would have to send a request in writing stating the details of her outside employment. On April 25, 1975 she submitted a letter (Exhibit 4) stating she had accepted outside employment on weekends at an amusement park starting at 6:00 P.M. on Friday afternoon, and requested she be advised if the employment constituted a conflict of interest. No response was received indicating objection on behalf of the Department. Some time in early June Petitioner commenced working on week days in addition to weekends. No request for authority to so work was submitted by Petitioner. Department regulations and policy require prior approval for outside employment. During the period from June 6, 1975 through June 27, 1975 time sheets certified by Mrs. Wright showed she worked from 8:00 to 12:00 and 1:00 to 5:00 Mondays through Friday. Time sheets on June 30 and July 1st showed work hours from 8:00 to 12:00 and 12:30 to 4:30. On July 2 and 3 time sheets showed work from 8:00 to 12:30 and annual leave for 3 hours on July 2 and 8 hours on July 3rd. From July 7 through 10 time sheets showed hours worked from 7:15 to 12:15 and 12:45 to 3:45. From July 14 through 17 time sheets showed hours worked from 7:30 to 12:00 and 12:30 to 4:00. Time sheets from Miracle Strip Amusement Park showed that on June 6, 9, 12, 18, 20, 23, 25, 26 and 30 Mrs. Wright commenced work at 4:30 and on July 7, 8, 9, 10, 11, 16, and 17 she commenced work at 2:45 P.M. Copies of Department policy manual and personnel rules and regulations are available in the District Office out of which Mrs. Wright worked, but she was not furnished a copy of the policy manual until October, 1975 after the incidents herein involved. Testifying in her own behalf Petitioner contends that she signs most of the time sheets in blank and the secretary filled in the hours for her the same as she did for the other inspectors. She further contends that she was unaware that she needed approval for changing the hours of outside employment from the weekend to include weekdays; that she had worked overtime on many occasions for which she had not made a claim; that her supervisor told her he had no objection to her working outside so long as she put in 8 hours for the state; and that she could work early hours if she desired. Except for about 4 days in July she contended that each day she worked the full 8 hours required by the Department. With respect to those 4 days in July for which attendance sheets show less than 8 hours per day worked, she contends she asked if she could take leave and was told it wasn't necessary. Her supervisor has no recollection of such a request and no leave slips were presented to him for approval.
