The Issue The issue in the case is whether the Respondent’s suspension and eventual termination of the Petitioner from employment were in retaliation for complaints of sexual harassment made by the Petitioner against a co-worker.
Findings Of Fact The Petitioner began employment with the Respondent in October 1990 as an Automotive Service Worker in the maintenance department. At various times during his employment, there were between nine and eleven employees in the maintenance department. The Petitioner's responsibilities included mechanical work on the Respondent's police vehicles. At all times material to this case, the Petitioner's immediate supervisor was Chris Marinari. Ben Lacy, the Maintenance Division Director, supervised Mr. Marinari. At all times material to this case, Benjamin Lanahan was employed in the maintenance department and worked at the same facility as the Petitioner. Mr. Lanahan occasionally exhibited inappropriate behavior around the mechanic's shop, including exposing his sexual organs to co-workers and grabbing at their groins or buttocks. Mr. Lanahan exhibited such behavior in the presence of, and towards, the Petitioner. The Petitioner was offended by the behavior and on several occasions told Mr. Marinari of his objection to the behavior. Mr. Marinari apparently regarded the conduct as mutual "horseplay" and although he may have verbally instructed Mr. Lanahan to refrain from the behavior, he took no official action on Petitioner’s verbal complaints. The Petitioner received periodic evaluations throughout his employment. The Petitioner did not note his concern about Mr. Lanahan's behavior in the employee comment section of the evaluation form, but noted his apparent increasing satisfaction with the workplace. On April 15, 1992, the Petitioner was promoted to Auto Mechanic I. On December 8, 1993, the Petitioner was promoted to Auto Mechanic II. There is no evidence that the Petitioner filed any written complaints with his employer regarding Mr. Lanahan's behavior prior to his termination from employment. In May 1995, the Petitioner apparently became dissatisfied with Mr. Marinari’s response to his complaints about Mr. Lanahan’s behavior and took his complaint to Mr. Lacy. The Petitioner asserts that Mr. Lacy threatened to terminate his employment if he "made waves." Mr. Lacy denies that he threatened the Petitioner's employment. The Respondent's sexual harassment policy authorizes an employee to contact the Director of Human Resources if an employee believes that a supervisor has not adequately addressed a complaint. The Petitioner received a copy of the policy as set forth in the personnel rules. The Petitioner did not report the alleged threat by Mr. Lacy until 1996, when Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated for the reasons addressed herein. The greater weight of the evidence fails to establish that Mr. Lacy made the alleged threat to terminate the Petitioner's employment based on the complaint of harassment. Mr. Lacy investigated the Petitioner’s complaint and, determining it to be valid, issued a written disciplinary report against Mr. Lanahan in June 1995. Mr. Lacy and the Respondent’s Director of Human Resources recommended to the city manager that Mr. Lanahan’s employment should be terminated. The city manager did not accept the recommendation, and instead suspended Mr. Lanahan for two weeks without pay and required him to go to counseling. The Respondent also offered counseling to employees at the facility who had been subjected to Mr. Lanahan’s behavior. In August 1995, the Petitioner realized that, when attempting to cash a check, his driver's license had expired. He advised Mr. Marinari, who told him to take emergency vacation time to renew his license. The Petitioner renewed his license. Driving a city vehicle without a valid license is a "Group II" violation of the Respondent's personnel rules, and warrants a seven-day suspension without pay. The Petitioner received the suspension. He did not file a grievance at that time. The Petitioner eventually learned that some city government employees who worked in other departments and were found to be driving with invalid licenses apparently received lesser penalties for the infraction. The Petitioner then filed a grievance regarding his suspension, but the filing deadline had passed and it was dismissed. The Petitioner’s grievance did not raise the alleged threat by Mr. Lacy to terminate his employment for complaining about Mr. Lanahan. There is no evidence that the Petitioner's supervisors were aware of what other supervisors were doing at the time they suspended the Petitioner for driving without a valid driver's license. There is no evidence that the Petitioner’s suspension was related in any way to his complaint regarding Mr. Lanahan’s behavior. The Petitioner suggests that the Respondent, which maintained a database of relevant information in order to remind employees of license expiration dates, inaccurately informed him that his license was valid when it had expired. The evidence establishes that the Petitioner provided the inaccurate database information to the Respondent. There is no evidence that the Respondent knew or should have known that the Petitioner's license had expired. In September 1995, the Petitioner asked to be placed on "flextime" so that he could leave work early in the afternoon and pick up a child from school. Initially his request was denied because there were already two other employees working flextime, and the supervisor was concerned about the small shop not being fully staffed at normal hours. Within a few days, one of the other employees was returned to a regular work schedule and arrangements were made to allow the Petitioner to work a flexible schedule from 6:30 a.m. to 3:00 p.m. At the time the flextime request was approved, the Petitioner was advised that because he would start his workday an hour before the maintenance shop was otherwise staffed or supervised, it was necessary that he remain on task in order to complete work assignments. At some point around this time, the Petitioner found a piece of city equipment (an “A/C leak detector”) under the seat of his truck. He complained to Mr. Marinari, who questioned the Petitioner’s co-workers but was unable to determine how the equipment came to be in the Petitioner’s truck. There was no disciplinary consequence to the incident. During the time the Petitioner worked a flex schedule, the building maintenance supervisor also arrived for work at about 6:30 a.m. The building manager became aware that the Petitioner and the other co-worker on flextime would routinely leave the shop in a city vehicle shortly after arriving and “punching the clock” at 6:30 a.m. The building manager reported the practice to Mr. Marinari, who in turn told Mr. Lacy. On January 12, 1996, Mr. Marinari and Mr. Lacy arrived at the shop early enough to precede the Petitioner, and waited to see what would happen. The supervisors observed the Petitioner and the other co-worker arrive at about 6:30 a.m., clock in, almost immediately leave in a city vehicle, and then return with food at about 7:00 a.m. and eat breakfast. While the Petitioner and the co-worker went to get breakfast, the maintenance shop was unattended and unsecured. Prior to January 12, 1996, the supervisors were unaware that the flextime employees were taking a city vehicle to get breakfast while being "punched in" on the time clock. The Petitioner asserts that leaving work in a city vehicle for breakfast was a common practice. The evidence fails to support the assertion. The supervisors confronted the employees at the time the practice was discovered. Both employees were subsequently disciplined for the incident. The co-worker was suspended for a period of seven days without pay. Because the Petitioner had committed two "Group II" offenses within an eighteen-month period, Mr. Lacy recommended to the City Manager that the Petitioner's employment be terminated. The City Manager declined to follow the recommendation and instead suspended the Petitioner for a period of thirty days without pay. During the thirty-day suspension period, Mr. Marinari learned that the Petitioner had a statue in his backyard that was presumed to be city property. The source of Mr. Marinari's information is unclear. Mr. Marinari advised Mr. Lacy of the matter. Mr. Lacy investigated the report by driving by the Petitioner's house with the director of the city parks department, where they determined that the statue was similar to one kept at a city storage area. The matter was referred to the city police department. After investigation, a police investigator determined that the statue was city property. The investigator attempted to discuss the matter with the Petitioner, who suggested other city employees had placed it there at some earlier time. The Petitioner declined to identify the individuals he believed were responsible, and asserted that the whole incident was a conspiracy by people trying to "get him." The evidence fails to establish that other city employees placed the statue in the Petitioner's backyard. The statue was in the Petitioner’s possession for an undetermined period of time. There is no evidence to suggest that someone involved in a “conspiracy” to have the Petitioner’s employment terminated placed the statue in his yard. There is no evidence that the Petitioner reported to law enforcement officials the initial appearance of the statue in his yard. There is no evidence that the Petitioner attempted to identify or return the statue to the owner. The Petitioner asserts that the police investigator suggested that the Petitioner should resign to avoid prosecution for possession of stolen city property. The investigator denies the assertion. The greater weight of the evidence fails to support the assertion. Misuse of city property is a "Group III" offense, and pursuant to the personnel rules, is punishable by termination of employment. The supervisor recommended termination to the city manager. The Petitioner was suspended for five days pending an administrative hearing. Subsequent to the hearing, the city manager accepted the recommendation and terminated the Petitioner's employment effective February 6, 1996. There is no credible evidence that the termination of the Petitioner’s employment was a result of his complaints about Mr. Lanahan’s behavior.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Human Relations Division, City of St. Petersburg, enter a final order dismissing the complaint of employment retaliation filed by Timothy Henault against the City of Pinellas Park. DONE AND ENTERED this 1st day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 2002. COPIES FURNISHED: J. Robert McCormack, Esquire Persante & McCormack, P.A. 2555 Enterprise Road, Unit 15 Clearwater, Florida 33763 Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez, P.A. 109 North Brush Street, Suite 200 Tampa, Florida 33602 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Stephanie N. Rugg City of St. Petersburg 175 Fifth Street, North St. Petersburg, Florida 33701
The Issue Should Petitioner's request for exemption from disqualification pursuant to Section 435.07, Florida Statutes, be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Prior to August 9, 1996, Petitioner was employed by Avon Park Cluster Home in a position that required background screening. At the request of Petitioner's employer, Avon Park Cluster Home, the Department conducted a background check on Petitioner. As a result of this background check, it was determined that there were potentially disqualifying criminal offenses pending against Petitioner in the State of New York and the State of Florida. Because of the lack of information as to the disposition of these potentially disqualifying offenses the Department was unable to complete the background screening on Petitioner. In accordance with Section 435.05(1)(d), Florida Statutes, the Department, by letter dated August 9, 1996, advised Petitioner that it was his responsibility to provide the Department with the necessary documentation to show the disposition of those offenses so that it could complete its background check of Petitioner. By letter dated September 11, 1996, the Department advised Petitioner that since he had not been able to provide the Department with the necessary information as to the disposition of the potentially disqualifying offenses, the Department could make no screening determination and therefore, Petitioner was not eligible for a position requiring background screening. Subsequent to the Department's letter of September 11, 1996, Petitioner furnished certain information concerning the potentially disqualifying offenses. By letter dated October 9, 1996, the Department again advised Petitioner that it was unable to conduct a proper background screening with the information furnished by Petitioner. Therefore, Petitioner was not eligible for a position that required background screening and further advised Petitioner that he could request a hearing to be exempted from this disqualification. Petitioner timely requested a hearing which was afforded to him by the Department. At this hearing, Petitioner was allowed to present evidence to show that he was entitled to be exempted from this disqualification. After hearing Petitioner's evidence, the Department determined that Petitioner had failed to present sufficient evidence to prove that he was entitled to an exemption from disqualification. Petitioner timely requested a hearing under Chapter 120, Florida Statutes. Although Petitioner was given ample time and opportunity to present evidence of the disposition of the potentially disqualifying offenses, he failed to present any evidence of the disposition of those offenses. Likewise, Petitioner failed to present any evidence of rehabilitation or circumstances or evidence indicating that Petitioner would not present a danger if continued employment was allowed as required by Section 435.07(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order denying Petitioner's request for exemption from disqualification. DONE AND ENTERED this 29th day of January, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran General Counsel Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32299-0700 William Brown, pro se 504 West Halmcrae Boulevard Avon Park, Florida 33825 Jack Emory Farley Chief Legal Counsel, District 14 Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33813-2030
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 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 Whether Respondent, Department of Environmental Protection's ("Department") intended decision to award a contract to Intervenor, US eDirect, Inc. ("US eDirect"), for a Parks Business System ("PBS"), pursuant to Invitation to Negotiate 2019002 ("the ITN"), is contrary to the Department's governing statutes, rules, or the ITN specifications, and contrary to competition, clearly erroneous, arbitrary, or capricious.
Findings Of Fact The Parties The Department is the state agency responsible for managing and preserving Florida's 175 state parks. The Department has been recognized as the nation's only three-time winner of the National Gold Medal Award for Excellence in the management of the state park systems. This achievement makes Florida the only state park system in the nation to win more than one Gold Medal award. The Department is committed to excellence and sustaining its high level of service for its park visitors. Petitioner, RA Outdoors, LLC, d/b/a Aspira, is a limited liability company organized under the laws of the State of Texas. Aspira is registered to do business in the State of Florida. Aspira is the incumbent contractor for the CRS and POS services being requested under the ITN. Aspira has been under contract with the Department to provide a CRS system for the past 19 years and a POS system for the past four years. Intervenor, US eDirect, Inc., is a corporation organized under the laws of the State of New York. The ITN The process for the ITN began many years ago when the Department was in the process of renewing its contract with Aspira for the final renewal period. Knowing that the end of its contract with Aspira was approaching, the Department sought to gain knowledge of the products and solutions available in the industry for CRS and POS systems. The Department issued a Request for Information ("RFI") in 2016, 2017, and 2018. The 2016 RFI sought to obtain industry information related to the Department's acquisition of a POS system. The 2017 RFI sought to obtain industry information about automated park entry technology solutions. The 2018 RFI sought to obtain industry information about park business systems technology. The 2017 and 2018 RFIs expressed the Department's interest in obtaining functionality, including "'[f]ast pass' or quick access lane options for both day use admission as well as for registered campers" and "entry ticket sales in a high-sales environment." The responses to the RFIs indicated there are multiple viable products, which varied significantly in technology, solution, cost model, total cost, integration potential, and requirements. The Department chose to utilize the most flexible comparative procurement process to achieve its goals; specifically, an ITN method of procurement rather than an invitation to bid or request for proposals. The Department chose an ITN because it wanted industry leaders to craft individual and innovative solutions so that the Department could then determine the best value option for the State. Against this backdrop, on March 18, 2019, the Department posted the ITN on the Florida Vendor Bid System ("VBS"), seeking replies from qualified vendors to provide a PBS. The procurement officer designated by the Department for the ITN was Gloriann McInnis. The primary focus ("core services") of the ITN was to procure the CRS and POS business systems. The ITN stated its "[p]urpose and [s]cope" as follows: The Department of Environmental Protection (hereinafter referred to as the "Department" and/or "DEP") is seeking offers from qualified vendors to provide a Park Business System (PBS), that includes both the implementation and ongoing operation, including maintenance and management, of a comprehensive integrated technology solution for park business needs (Solution). This solution should include, at a minimum, a Central Reservation System (CRS) capable of supporting online, in-person, and call center reservations for multiple locations statewide on a 24/7 basis, and a day-use Point of Sale system (POS) capable of supporting over $70 million, with the capacity for growth, in financial transactions on an annual basis.[1] The Department's goals for the ITN included "solutions which can provide the primary functions of a CRS (for camping and cabin reservations) and a day-use POS system (for park admission sales, annual entrance pass sales, equipment rentals, facility rentals, merchandise sales and other park fees) in an integrated, easy-to-use and highly accessible format." In addition to the core CRS and POS systems, the ITN also indicated that the Department "is open to considering outcomes beyond [the] CRS and POS functionality that would make the system more efficient and effective. If a Respondent has additional services to offer, these options should be documented in the response." The potential additional optional services the Department indicated it was open to considering included, but were not limited to, automated entry solutions, mobile ticket applications, self-service kiosks, technology to support fast-past entrance lanes, online merchandise sales, and online park guide or park guide applications. The ITN provided two pricing components: one price proposal for the core solutions based on a mathematical percentage fee of the estimated annual park system revenue of $55 million, and a second price proposal for the value-added or optional services. The Price Sheet attached to the ITN (Section 7.00) provided spacing for the vendors to submit their prices for the core solutions only, based on a projected mathematical percentage fee of the estimated revenue of $55 million. The Price Sheet did not include spacing for value-added services. 1 The ITN contained attachments that included, among other things, the Requirements Document for the ITN labeled as Attachment G, and the Service Level Agreement and Performance Standards for the ITN labeled as Attachment H. From the time the ITN was posted on VBS, on March 18, 2019, through the Department's intended award decision on July 6, 2020, the Department posted nine Addendums to the ITN on the VBS. No vendors protested the ITN terms, conditions, or specifications, including as amended by the addenda. The Department made clear in the ITN that, with respect to vendor replies as to the core solutions, it "will consider the Respondent's Percentage Fee only, all other pricing requested is 'value added.'" With respect to the value-added services, the Department had no preference as to how a vendor priced its value-added services. The ITN expressly stated: "At the conclusion of negotiations, the Department will request best and final offers (BAFOs) from the remaining respondents and notify them of the selection criteria on which the award will be based."2 The ITN further stated: "After receipt of the BAFOs, the Department may conduct a Public Meeting for the negotiation team to discuss the results of negotiations and formulate their recommendations to the Department as to whether and how to award a Contract pursuant to this solicitation." "The negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." Submission and Evaluation of Replies to the ITN After conducting an initial review of vendor submissions addressing the ITN's Minimum Mandatory System Requirements, the Department identified five vendors with the greatest degree of fit with the requirements of the ITN. On June 5, 2019, the Department posted ITN Addendum No. 3, which identified the following top five vendors that would be allowed to submit full replies to the ITN: Aspira, US eDirect, Sovereign Sportsman Solutions, Conduent, and Mission Critical Solutions of Tampa. A full reply was comprised of a business volume, which included a completed Price Sheet, a technical volume, and an operational volume. The Department established an evaluation team, which evaluated the five replies and identified the three highest scored vendors within the competitive range reasonably susceptible to an award with whom the 2 That selection criteria was not posted on VBS. Department would negotiate. The Price Sheet attached to the ITN was used by the evaluation team to evaluate the replies. On November 5, 2019, the Department posted its decision on VBS, inviting the top three vendors (Aspira, US eDirect, and Conduent) to participate in negotiations with the Department pursuant to Addendum No. 6 of the ITN. The parties agree that Aspira and US eDirect submitted responsive replies to the ITN and are responsible vendors. Site Visit, Demonstrations, Negotiations, and Strategy Sessions Following the evaluation of the replies to the ITN, the Department entered into the negotiation phase. The Department designated Fran Spivey as the lead negotiator and non-voting member of the negotiation team. The voting members of the negotiation team were Sasha Craft, a park manager; Warren Sponholtz, a Department IT specialist; Warren Poplin, a Department bureau chief for District 1, Division of Recreation and Parks; Carla Gaskin, a business expert with the Department; and Jim Brook, a Department business and contract supervisor.3 Prior to beginning negotiations, the Department invited the three vendors to a pre-negotiation site visit at Wekiwa Springs State Park ("Wekiwa") on November 22, 2019. Speed of entry of visitors into state parks is important. The Department chose Wekiwa because it is one of the busier parks in the state park system. The purpose of the site visit was to allow the vendors to observe "pertinent facilities and processes" and ask questions. The ranger station is the "hub" of where point-of-sale and reservation systems occur. Even though Wekiwa is one of the busier parks, only one ranger staffed the ranger station, which was typical. Points of interest to be observed during the site visit included observing traffic patterns and typical 3 Jim Brook was an alternate until May 21, 2020, and Warren Poplin was a subject matter expert until March 7, 2020, but both attended all the solution demonstrations. layout, functionality, and visitor interactions and park processes at the ranger station. During their site visit at Wekiwa, the vendors observed multiple campers waiting in line to make payments and the one ranger using two separate computers while working on multiple tasks, including "ringing up people as they came through the admission window, taking their payment, [and] answering the phone." At hearing, Mara Dombrowski, a planning consultant with the Department's Division of Recreation and Parks, who was involved in the development of the ITN, testified that "this one person has to be so efficient in order to keep things moving smoothly and quickly, getting people through the line, keeping the campers happy, checking them in quickly, really to keep the park running smoothly and operating." Following the site visit, the Department hosted meetings with each of the three vendors selected for negotiations so that the vendors could demonstrate the efficiency and operability of their proposed solutions to the ITN. Aspira demonstrated its solution to the Department at meetings held on March 10 and 17, 2020, and May 7, 2020. US eDirect demonstrated its solution to the Department at meetings held on March 11 and 18, 2020, and May 8, 2020.4 The vendors demonstrated their ability to run transactions to simulate entry into a state park. All devices demonstrated by US eDirect performed without issue. Mr. Poplin attended all the vendors' demonstrations. Mr. Poplin testified that Aspira failed to print a receipt during one of its demonstrations. On the other hand, Mr. Poplin described "US eDirect's printing of a receipt as 'instantaneous.'" Mr. Poplin was so impressed with the speed of US eDirect's printing of a receipt during its demonstration that he retained the receipt. 4 The Department also held demonstration sessions with Conduent, which is not a party to these proceedings. Ms. Craft, the park manager at TopSail Hill Preserve State Park, which contains the State's largest campground, also attended the vendors' demonstrations from her perspective as a park manager. As a park manager, Ms. Craft uses the POS and CRS systems on a daily bais. One of Ms. Craft's considerations as she watched the demonstrations was to observe the speed with which she could get visitors into the park. Ms. Craft observed that US eDirect's solution for check-in and POS items was integrated in an all-in-one system. At hearing, Ms. Craft testified that US eDirect's solution would be an improvement over the current system, which requires her to use two separate computers for POS and CRS transactions. Mr. Poplin and Ms. Craft also noted that Aspira's solution required a separate credit card machine. In addition, Ms. Craft noted and testified that under Aspira's solution, in order to process a credit card transaction, she would still have to manually select the type of credit card (i.e., Mastercard or Visa). On May 26, 2020, the Department revised the Price Sheet, Attachment 5, for the three vendors to resubmit their pricing prior to the beginning of negotiations. The Department revised the Price Sheet to include a separate section for value-added services so that vendor pricing for the core services and any value added services could be included in one cohesive document for the negotiation team's ease of reference. Throughout the procurement, the Department conducted internal strategy sessions with its negotiators, subject matter experts, and other personnel to discuss the procurement. The Department recorded these strategy sessions. After the demonstrations and initial strategy session meetings, the negotiation team began negotiations with the three vendors. The Department conducted separate negotiations with Aspira on June 9, 12, and 18, 2020, and with US eDirect on June 10, 16, and 18, 2020.5 During the negotiation phase, the negotiation team also conducted strategy sessions to strategize, discuss issues, and analyze the vendors' proposals. During strategy sessions, and as required by the ITN, the negotiation team developed and created the selection criteria to be used in determining "best value." During strategy sessions, the negotiation team also created an internal document titled "Best and Final Offer Guidelines" ("BAFO Guidelines"). Based on the sheer volume of information and time constraints, the negotiation team created the BAFO Guidelines as an internal aide if any individual members of the negotiation team felt they needed a tool to assist them in their individual review of the BAFOs. The BAFO Guidelines set out the selection criteria. Although the BAFO Guidelines contained a scoring matrix, weights, and subparts for the various criteria, negotiators were not required to score the BAFOs. The BAFO Guidelines that were utilized by certain individual negotiators were not collected or shared with any other negotiators.6 During the strategy sessions, including sessions held on June 16 and 17, 2020, the negotiation team decided to modify the Department's May 26, 2020, Price Sheet, Attachment 5, to attach to the Department's request for best and final offer ("RBAFO"). The Price Sheet f attached to the RBAFO was different from the Price Sheet attached to the posted ITN. During negotiations on June 18, 2020, Aspira asked the Department, "[I]s there a preferred path that you can say, you know, that DEP would like 5 The Department also conducted negotiation sessions with Conduent in June 2020. 6 The weights and subparts were created by the negotiation team in two strategy sessions. The Department did not provide the vendors with the BAFO Guidelines and the BAFO Guidelines were not posted on VBS. to have either it's everything--that one base fee is all-inclusive for everything that says it's included in the base fee or you'd like to have that additional hypothetical, if you want to do a kiosk, it's going to be an additional X dollars a month. Is there a proposed path?" The negotiation team stopped negotiation with Aspira and held a sidebar strategy session to discuss how to answer Aspira's question. The negotiation team understood that Aspira proposed to charge the Department the same flat-fee percentage price structure for the core solutions and any value-added services. The negotiation team realized that the revised Price Sheet did not provide spacing for Aspira to list its proposed percentage fee for value-added services. The negotiation team decided to modify the revised Price Sheet prior to BAFO submissions to allow Aspira to present its price for value-added services as a percentage of the transactions processed through individual value-added optional items. After the sidebar strategy session, negotiations resumed between the Department and Aspira. The negotiation team informed Aspira that the Price Sheet would be revised to allow for percentage based pricing for value-added services prior to the BAFO submissions. In response, Aspira asked again, "is there a preference that you can tell us that DEP would like as far as methodology?" In response, Mr. Brook responded, "we're fine with your methodology, we just want to confirm that is your methodology, that is your proposal. We understand that proposal to be, for a lack of a better way to describe it, a flat fee across all methods of revenue collection. And that's great, that's fine, yeah." The negotiation team, however, gave no indication of its preference nor instructions on how Aspira should price its proposed value- added services. During negotiations on June 18, 2020, Mr. Sponholts also explained to U.S. eDirect changes to the layout of the Price Sheet regarding value-added services, stating: So, some of the discussions we had, we were getting questions about, you know, how many of these are you going to need? How important is this? When are you going to need these? And, you know, usually our answers end up being, we're not really sure, it may be in a couple years. And we're gonna need at least some of them. So, I know it was hard for respondents to come up with some good pricing to be able to respond to that and make sure--like was alluded to the other day, make sure the backpack was filled correctly. So we've kind of changed the way we're asking for some of the pricing for additional and value-add items. And moving to more of a monthly service per-unit style approach, more of a--as a service approach. So, it allows us to consume and doesn't have to make any of the respondents kind of go out on a limb and to gamble on how much they think we need. So we've kind of listed everything here as-- into a per unit or a per-package pricing model on monthly fee. And then we would just pay for those items on a monthly basis. So, just want to make sure you understood the reason for that. The only exception for that is at the bottom. There are a couple of things that don't lend themselves to a service model, and that the-- Keep going down. MS. SPIVEY: Annual pass. MR SPONHOLTZ: Yeah, So, like the annual passes and the text messaging for mass communication, I know we've been going back and forth talking to you guys specifically about whether that's included in the base percentage or whether that's something outside of the base percentage. It's--but we'll leave the options in this sheet whether you can include it in your base fee or you can describe or you can present a more a la carte model. But the text messaging and the annual passes, they don't really lend themselves to a per-month model, they lend themselves to a per-month model, they lend themselves to more of a consumption model. So we want to leave that open for you guys to describe. That's it. Joint Ex. 63, pp. 1851-52. Contrary to Aspira's assertion, Mr. Sponholtz's comments to US eDirect during this negotiation session do not reflect a preference and direction to US eDirect that it should price its value-added solutions through an "a la carte" pricing model rather than a percentage-fee-based pricing model. As a review of the above comments and Mr. Sponholtz's testimony at hearing reflect, Mr. Sponholtz merely explained to both Aspira and US eDirect the Department's goal of moving more towards a service model approach (purchasing equipment as it is needed) and away from an ownership of equipment model approach because the Department did not want to own a lot of equipment it may not ever need. At hearing, Mr. Sponholtz explained that his comments made to both Aspira and US eDirect gave each vendor "flexibility to be able to price things so--to kind of move with our--move with our scale." As testified to by Mr. Sponholtz at hearing, his comments "fit[ ] in with the modification that the negotiation team [made] to the value-added prices on the final Price Sheet with the three columns of compensation." As further explained by Mr. Sponholtz at hearing: A: Right. So after speaking with all the respondents, we want to make sure the price sheet was set up such that it would work for the different pricing models. So we expected--we expected some different pricing models and we just wanted to provide some organization via the pricing sheet so that we could be able to, you know, review those pricing models, so that's why we put that in there. We also told them, though, that if they had aspects of their pricing model that did not match that format, then to go ahead and just add rows and columns and describe their pricing--pricing methodology and we would consider it. T., Vol. IV, p. 568. The second revised Price Sheet (Attachment 5; Joint Exhibit 24, pages 294 through 297) made clear to the vendors, "[i]f your pricing method for any service does not align with the models provided below, please insert rows and/or columns to the appropriate tables and describe your proposed pricing model in detail." Again, the Department did not dictate how the vendors should price value-added services; rather, the ITN and instructions allowed the vendors flexibility to choose how to configure and price any value-added services. The BAFOs and the Negotiation Team's Recommendation On June 19, 2020, the Department sent the three vendors an RBAFO, and the Procurement Officer emailed the three vendors: (1) the selection criteria on which the award would be based; (2) the second revised Price Sheet (Attachment 5); (3) the Department's Standard Contract to be signed and returned by the vendor selected for the ITN services; (4) Supplement Scope of Work Sample; and (5) Contract Certifications. BAFO's were due to the Department by June 26, 2020, at 4:00 p.m. Both Aspira and US eDirect timely filed BAFOs.7 The selection criteria for reviewing the vendors' BAFOs, as provided to the three vendors, provide as follows: F. SELECTION CRITERIA The Department shall make its determination of which solution provides the best value to the state based on the selection criteria below: Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's technical requirements as 7 Attachment 5 of the RBAFO was not posted on the VBS. demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for CRS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the Department's operational requirements for POS as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Respondent's articulation, innovation, and demonstrated ability of the proposed approach to meet the operational requirements for administrative and reporting web application as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Proposed staff experience (including proposed subcontractors) and respondent's responsibility as demonstrated by the entire response, system demonstrations, and negotiation sessions. Optional solutions: Respondent's articulation, innovation, and demonstrated ability of the proposed for the optional solutions as well as the approach availability and pricing as demonstrated by the BAFO, system demonstrations, and negotiation sessions. Acceptance of standard contract terms and conditions including SLAs and financial consequences as demonstrated by the BAFO. Respondent's pricing as submitted in the BAFO. Joint Ex. 227, p. 7273. US eDirect's BAFO proposed a flat-fee percentage of 4.75% for its core solution during the initial term of the contract and 4.5% for its core solution for the renewal term of the contract. For value-added solutions, US eDirect proposed its proprietary Yodel System, which is comprised of a Yodel App for the public, Yodel Ranger App for park staff, and a Yodel camera and barrier gate. The Yodel system is a completely automated solution which reads license plates to grant park entry. US eDirect proposed a flat-fee transaction of $0.15-$0.40 depending on the equipment the Department chose to employ. This flat-fee would be paid by park visitors as a convenience fee for use of the technology. Additionally, US eDirect proposed other value-added solutions via an "a la carte model," by which the Department could pick and choose to employ other value-added solutions for an additional monthly charge. Aspira's BAFO proposed a flat-fee percentage of 4.95% for its core solution during the initial term of the contract and 4.7% for its core solution for the renewal term of the contract. Similar to US eDirect's proposal, Aspira's BAFO proposed a list of value-added solutions from which the Department could choose. However, Aspira proposed a price model for its value-added solutions based on the same flat-fee percentages as its core solutions (4.95% for the initial term and 4.7% for the renewal term). In addition, Aspira purposefully chose to leave its BAFO section for value-added solutions vague by not listing specific hardware. As Aspira explained to the Department during a negotiation session on June 18, 2020, Aspira wanted "flexibility going forward as to those vendors who introduce new hardware and their features and functions, to be able to substitute that hardware at that kind of standard fee percentage versus us having to do more complicated things or having you do capital expenditures…." Aspira also declined to specify the quantity of value-added solutions it would provide. Instead, Aspira vaguely indicated it would "'work together' [with the Department] to identify appropriate locations" for implementing value-added solutions which are "both financially viable and provide[s] an increase in customer service." On July 6, 2020, the negotiation team held a public meeting (Intent to Award Meeting) to discuss which vendor the team believed presented the best value to the State. Each negotiator commented on which vendor he or she believed provides the best value to the state based on the selection criteria. Mr. Sponholtz stated, from his IT perspective, that he liked US eDirect because its solution had a very clean and intuitive design. He also felt US eDirect had a very high rate of configurability, which was "super important" because of the diverse makeup of the parks throughout the State. Mr. Sponholtz further stated that US eDirect had a proven endpoint management software solution in place available to manage all those endpoints throughout the State. He characterized US eDirect as a "market leader in that sense." Mr. Sponholtz further stated that US eDirect "also performed very well during the demonstration," with "[n]o issues popp[ing] up during the demonstrations." Mr. Poplin felt US eDirect provided "really good innovativeness." He explained his rationale from the perspective of the Department's "field operations and the ease of use for our park-level staff and ease of site and use for our visitors as well." Mr. Poplin went on to state that one of the things he had been "pushing hard on for each one of the respondents was the speed of transactions." He thought it was very important to be "able to move our guests into the parks" because "we have several of our busy parks that bottleneck." According to Mr. Poplin, US eDirect demonstrated the faster solution. Ms. Craft, from her perspective as a park manager at Topsail Hill, stated that her "selection came down to the system that I felt was innovative and user friendly." For her, ease of use and speed of transactions for the field staff was important, and US eDirect's "fully innovative system would be perfect for our field operations." Both Ms. Gaskin and Mr. Brook viewed Aspira as the top solution during the preliminary vote. From Ms. Gaskin's perspective, the "main deciding factor" between US eDirect and Aspira was Aspira's "ability to leverage customers that they already have--from a marketing perspective." However, Ms. Gaskin acknowledged she is not "in the field" and "not an IT person," so she would "respect the opinions of those two who would actually be using the system." Mr. Brook also felt Aspira "offered proven customer reservation system and expertise" through its marketing channel ReserveAmerica.com. Thereafter, the negotiation team engaged in a discussion amongst themselves to try and reach a consensus on the vendor who presented the best value, and a second vote was taken. Mr. Sponholtz, Mr. Poplin, Ms. Craft, and Ms. Gaskin voted for US eDirect as the best value to the State. At hearing, Ms. Gaskin testified that she changed her vote after hearing Mr. Poplin's and Ms. Craft's comments related to the functionality and ease of use of US eDirect's system for field staff, which she decided was more important than marketing. Only Mr. Brook voted again for Aspira in the second vote. After the second vote, Mr. Brook said he believed consensus is important, that he and the program will move forward enthusiastically with US eDirect, and the negotiation team unanimously recommended the award to US eDirect.8 8 Aspira failed to prove the allegations in its Amended Petition that "[u]tilizing any website but Reserve-America will result in the loss of 40% of the State's revenue." Indeed, the belief regarding any potential loss of revenue by leaving the ReserveAmerica.com platform is speculative. In any event, Mr. Brook and Ms. Gaskin raised the issue of the revenue generated by Aspira's website and marketing during the award recommendation public meeting; the issue was discussed, and, as detailed herein, it was ultimately determined at the public meeting that other factors were more important in determining best value. At no time during the public meeting were scores discussed with the group. The negotiators did not mention scores or scoring during the public meeting. After the public meeting, the Department posted its Notice of Intent to Award the contract to US eDirect on the VBS. Aspira's Protest Aspira raises numerous issues, none of which warrant rescission of the Department's intended award to US eDirect. Comparison of Pricing Aspira's primary contention is that the negotiation team "failed to properly price the 'core services'" and conduct an "apples-to-apples" comparison of Aspira's and US eDirect's pricing models for the value-added solutions set forth in their BAFOs. The persuasive evidence adduced at hearing demonstrates that the negotiation team properly conducted a mathematical formulaic "apples-to- apples" comparison of the flat-fee percentage prices for the core services, and that the price offered by US eDirect for the core services was lower than the price offered by Aspira. As to the optional value-added services, each vendor was given the freedom to present its best value-added solutions and best price model for the value-added services. Contrary to Aspira's assertions, the extensive negotiations were handled properly and in a collaborative and non-biased manner with no competitive advantage given to US eDirect. The negotiation team properly considered the prices offered by Aspira and US eDirect for value-added services as part of their individual best value determinations, but price was not a determinative factor and was, therefore, given nominal weight. The negotiation team did not do an "apples-to-apples" comparison of the value-added services because each vendor's pricing model was different and, in any event, such an analysis was not required in determining best value. The pricing of value-added services was not the focus of the selection criteria or ITN. The ITN and selection criteria centered on the core services for a POS and CRS system; not the pricing for value-added services. The Department does not even know what value-added services it may purchase in the future. On the other hand, the Department is required to pay the core price upon execution of the contract. Under the facts of this case, it was well within the negotiators' discretion to accord nominal weight to the pricing of value-added services contained in the BAFOs and more weight to the core solution price, superior functionality, ease of use, and innovativeness of the core solutions offered by US eDirect. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiation team's consideration of pricing was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. BAFO Guidelines Aspira also contends that the creation and use of the BAFO Guidelines by the negotiators violated the ITN's specification that "[t]he negotiation team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting." The persuasive evidence adduced at hearing demonstrates that the negotiation team's best value determination was properly made by a discussion at the public meeting and not based on the use or scoring of the BAFO Guidelines. The negotiators understood that the BAFO Guidelines were merely a "tool" to aide them in their individual deliberations, and not a requirement of scoring the vendors. The negotiators who scored the vendors pursuant to the BAFO Guidelines did not share their individual scores with other negotiators or anyone else, and the scores were not turned into the procurement officer to tally. Instead, the negotiation team met in a public meeting and had a discussion as to whom they each believed represented best value--a discussion that did not include scores or scoring. After an initial vote, the negotiation team further discussed who they believed presented the best value. Notably, based on this discussion, Ms. Gaskin was persuaded to change her vote from Aspira to US eDirect. A second vote was taken and the negotiation team voted four to one in favor of US eDirect. After that, Mr. Brook was persuaded to change his vote and the recommendation of award was unanimous. In sum, the persuasive and credible evidence adduced at the hearing demonstrates that the negotiators' creation and use of the BAFO Guidelines was not contrary to the Department's governing statutes, rules, or, the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. Speed of Entry In its Amended Petition, Aspira further alleged that the negotiation team improperly considered speed of park entry as a factor in the award because the ITN does not address "speed of entry." However, the ITN is replete with language showing the Department's desire to increase the speed of entry for park visitors. For example, the ITN stated: (1) the Department is seeking a PBS with proposed solutions that "offer convenience to park visitors, staff, and management, and capabilities with DEP systems for mobile devices and personal computer dashboard, reporting, and management." (2) "To support the Division's mission, it is imperative that the Department have access to tools that are intuitive and efficient to use to ensure visitor satisfaction and stimulate customer-based marketing." (3) "Park Admission transactions are the primary focus of the POS. The POS must be a robust system to allow for fast and efficient park entry." (4) POS and CRS "[s]ystem must provide efficient and intuitive functionality to allow park staff to process transactions in a high-volume environment." (5) "All POS transactions and screen navigations will complete in under .2 seconds as measured at the POS location." In addition, Aspira understood through negotiations that speed of entry into the state parks was very important. During negotiations with Aspira, Mr. Brook told Aspira's representative that, "… and just to reiterate that we have an understanding that speed is of the essence in Florida state parks … speed is of the essence, speed of entry. So our goal is to make that even faster…." In response, Mr. Trivette, Aspira's chief executive officer, stated, "You guys have made it crystal clear, and frankly, if you look at the majority of the new technologies that we positioned in the ITN, they're pretty much all around speed, ease of entry, being consumer friendly and helping get people in the parks faster, which ultimately is a better consumer experience and drives additional revenue." The persuasive and credible evidence adduced at hearing demonstrates that the negotiation team's consideration of speed of entry into the park was not contrary to the Department's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious. In sum, the persuasive and credible evidence adduced at hearing demonstrates that the Department appropriately determined that the proposed award to US eDirect will provide the best value to the State based on the selection criteria. The Department's intended award to US eDirect is not contrary to the Department's statutes, rules, or the ITN specifications, clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the protest of Petitioner, RA Outdoors, LLC, d/b/a Aspira. DONE AND ENTERED this 15th day of October, 2020, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 October, 2020. Yodel system. As previously discussed, pursuant to the ITN, Aspira was free to propose whatever pricing method it desired for value-added services. At hearing, Mr. Trivette admitted that Aspira could have bid its proposal other ways, but it chose not to do so. At hearing, Aspira dropped the allegations within sections "H" and "I" of its Amended Petition. COPIES FURNISHED: Kristin Mai Bigham, Esquire Ronald Woodrow Hoenstine, Esquire Kathryn E.D. Lewis, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Thomas Porter Crapps, Esquire James Zubko Ross, Esquire Joy Ryan, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 (eServed) Kirsten H. Mathis, Esquire Meenan P.A. 300 South Duval Street, Suite 410 Tallahassee, Florida 32301 Richard E. Coates, Esquire Coates Law Firm, PL 115 East Park Avenue, Suite 1 Tallahassee, Florida 32301 (eServed) Marion Drew Parker, Esquire Christopher Brian Lunny, Esquire Radey Law Firm 301 South Bronough Street, Suite 200 Tallahassee, Florida 32301 (eServed) Dawn Stern, Esquire Richard P. Rector, Esquire DLA Piper, LLP 500 Eighth Street Northwest Washington, DC 20004-2131 Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
The Issue The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility. Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms. O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner. Ms. Banton did what she had been directed to do. Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.
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 determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof. DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000 COPIES FURNISHED: Priscilla M. Young 312 Lime Avenue Orlando, Florida 32805 Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on September 12, 2011.
Findings Of Fact The events at issue concern Embarq's termination of Mr. Garcia's employment on September 13, 2010. At the time of his termination, Mr. Garcia was a 45-year-old male. His national origin is Puerto Rico, and he is of Hispanic descent. Further, Mr. Garcia suffered from migraine headaches, which were the result of a work-related injury. He had been an employee of Embarq, and its predecessor companies, since August 10, 1998. Before his termination, Mr. Garcia worked as a technician servicing business and residential customers. His base of operations was at the customer service center located in Winter Park, Florida, referred to by Embarq as the Winter Park "Railroad Avenue" Center. As a service technician, Mr. Garcia would receive his daily customer calls through a computer system that sent out work orders. Mr. Garcia would drive the Embarq vehicle to the customer's house or business to complete the service. The Embarq vehicle was equipped with a global positioning satellite (GPS) monitor tracking the vehicle's location, including the time the vehicle left and returned to the Embarq office. Finally, Mr. Garcia's work time was recorded by Embarq's computer system, named SAP, in which Mr. Garcia would enter a code indicating the tasks accomplished in customer service, the time when the task began and the time when he completed the task. As a service technician, Mr. Garcia was required to truthfully and accurately enter his time worked into the SAP system. Ms. Smith was Embarq's area operations manager for the Central Florida area, including the Winter Park center where Mr. Garcia worked. In the summer of 2010, Ms. Smith noted that some of the Embarq vehicles were returned to the customer service centers before the end of the work day at 4:30 p.m. Consequently, she asked the customer service center supervisors to examine all employee time records and determine whether or not a problem existed. Ms. Smith learned from Charles Clendenny (Mr. Clendenny), the acting manager for the Winter Park customer service center, that the examination showed some questionable activities. Based on Mr. Clendenny's report, Ms. Smith asked Ms. Trinder to conduct an independent review of all the employees at the Winter Park “Railroad Avenue” center. Ms. Trinder was Embarq's human relations business-partner, and part of her duties involved conducting employee investigations. Ms. Trinder examined the GPS documentation, the SAP time sheets, and the computer systems work force management assignments for all of the Winter Park “Railroad Avenue” employees. Her examination revealed questionable activities by four employees: Mr. Garcia, Scott Somner, James Shaunessy, and William Allison. The record showed that Mr. Somner is an African American and was approximately 48 years old at the time; that Mr. Shaunessy is a Caucasian, age in his sixties; and that Mr. Allison is an African American, age in his twenties. Of the four employees, only two were terminated, Mr. Garcia and Mr. Somner. Ms. Trinder and Ms. Smith credibly testified that during the interviews, they had learned that Mr. Shaunessy and Mr. Allison had received approval from their prior supervisor, Joe Venezia, to leave work early on the specific dates. Further, the data from the three computer systems confirmed Mr. Shaunessy's and Mr. Allison's explanations for leaving work early for the specific dates. Both Mr. Shaunessy and Mr. Allison were given training by Ms. Smith and Ms. Trinder concerning Embarq's work attendance polices. As to Mr. Garcia, Ms. Trinder's examination showed that Mr. Garcia had falsified his time records, and that he had unscheduled work absences. At the conclusion of the interview, Ms. Trinder typed a statement of Mr. Garcia's interview. The statement indicates that Mr. Garcia stated he did not know why he had entered that he had worked on two unscheduled work days, July 2, 2010, and July 14, 2010, and that he had mistakenly entered 4.75 hours as worked on an August 3, 2010, a date he actually took unscheduled time off. The result of these time entries was that Mr. Garcia was paid for work days on which he did not work, and that he avoided discipline for missing work. The Embarq employee handbook shows that employees are subject to discipline, if the employee misses work on a scheduled work day. The record shows that Mr. Garcia had previously been trained by his supervisor about the problem of missing work without providing the required 24-hour notice. On September 10, 2010, Ms. Smith sent a request to Ms. Susan Sarna, vice president/general manager, recommending that Mr. Garcia be terminated. Similarly, Ms. Trinder sent a recommendation to her supervisor recommending Mr. Garcia's termination. On September 13, 2010, Mr. Garcia was terminated as an Embarq employee. Mr. Garcia clearly testified that even though he had migraines that he had not requested any type of accommodation from his supervisors or from Embarq. Mr. Garcia did not bring forward any evidence, either direct or indirect, showing that Embarq's termination of his employment was the result of an unlawful employment practice. Mr. Garcia did not bring forward any evidence showing that Embarq's offered explanation that it terminated Mr. Garcia for attendance and time falsification was pretextual.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Petitioner failed to show that Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act, and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2012, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2012.
The Issue The issue in this case is whether Respondent discriminated against Petitioner in refusing to hire him.
Findings Of Fact On July 24, 1991, Respondent posted a Job Posting for the job of Fire Coordinator at an annual salary of $24,566 to $34,619. The County advertised the job in general runs of the Orlando Sentinel and Tampa Tribune, as well as local newspapers. The application deadline was August 14, 1991. Learning of the job opening, Petitioner submitted an application. Based on background and experience, Petitioner was well qualified for the job. Consistent with County practice, either the County Commission or the County Administrator had appointed a Selection Committee. The purpose of the Selection Committee was to interview qualified applicants, rate the applicants, and forward their scores to the County Commission. Because the Fire Coordinator is a department head, only the County Commission had the authority to hire the person for the job. The Selection Committee included the chief of the Avon Park Fire Department, the chiefs of either a volunteer or another municipal fire department within the County, the County Administrator, the County Personnel Director, and the Director of the County Office of Management and Budget. The Selection Committee chose five persons to interview, including Petitioner. During the interviews, the Personnel Director asked Petitioner about his relationship with the City of Avon Park. Petitioner admitted that he was preparing to file a job discrimination complaint against the City because he believed that he had been unfairly terminated due to some legal problems that his wife had had. The Selection Committee rated the applicants after the interviews. Petitioner rated the highest. He was tied for the highest on the Personnel Director's tally sheet. The Selection Committee then forwarded the three top applicants to the County Commission for further action. These were Petitioner, Mr. Larry Butler, and Mr. Paul Goddard. The County Commission is free to disregard the recommendations and recommence advertising for the position. Expressing some discontent with the selections, the County Commission unanimously voted to do just that when it considered the recommendations on September 3, 1991. The Commission directed that advertisements should be placed locally and in a regional edition of the Tampa Tribune, following which the applicants should be reduced to five and brought to the County Commission for interviews. There is little evidence of the reasoning for the County's action. One Commissioner is a former Mayor of the City of Avon Park, and she may have expressed some reservations about Petitioner and another former employee of the City. In any event, the County, on September 4, 1991, again posted the Job Posting for the Fire Coordinator's job. The ads were run as directed by the County Commission. The application deadline was September 20, 1991, which was a Friday. On this round, the job of determining what applicants were sufficiently qualified to be granted interviews was borne by the County Administrator and the County Personnel Director. Receiving 14 applications, they determined that two of the new applicants were qualified to be interviewed. These persons were Mr. Mike McCann and Mr. Tim Eures, who was the son of an applicant from the prior round. However, others were entitled to interviews due to County custom. One custom was that whenever the County Commission rejects the recommendations of a Selection Committee and readvertises the position, the persons earlier recommended are entitled to be interviewed during the second round. This meant that Petitioner was entitled to an interview, as were the two other persons recommended by the Selection Committee during the first round. In this case, Mr. Goddard affirmatively indicated that he did not want to submit to an interview with the County Commission, and Mr. Butler presumably showed no interest in the interview. The other relevant custom in the County required that current County employees be allowed a full interview when they applied for a job. Mr. McCann was in this category, although he also was sufficiently qualified to earn an interview without regard to his current employment by the County. Also, Mr. Hank Eures, the father of Tim Eures and an unsuccessful candidate the first time, was extended an offer to interview with the County Commission because he was a current County employee. The County Administrator and County Personnel Director decided on Monday, September 23, 1991, that Mr. McCann, Mr. Tim Eures, Petitioner, and Mr. Hank Eures were entitled to interviews with the Board of County Commissioners. Following the custom of setting the interview schedule at its next regularly scheduled Commissioners meeting, the Board, on September 24, chose the date and set aside time for the interviews to take place. It chose Tuesday, October 1, 1991. On September 26, 1991, (September 27 for Mr. Hank Eures), the County mailed letters to each of the persons to be interviewed informing them of the date, time, and location of the interviews. The County Personnel Director normally telephones the candidates and gives them the same information, but it is unclear if he did so, or was able to do so, with respect to Petitioner. Petitioner received the September 26 letter on Saturday, September 28. He had since become employed as a long- distance tractor-trailer operator and was booked for a long haul on October 1. He was unable to find a substitute for this job. On Monday, September 30, Petitioner's wife called a County employee and informed her of Petitioner's scheduling problem. She explained that Petitioner could not attend the interviews and asked that his interview be rescheduled for another date. As is customary with interviews, the County Commission refused to accommodate Petitioner, so the interviews proceeded without him as scheduled. Following the interviews, the Commissioners selected Mr. Tim Eures as the new Fire Coordinator. The record does not permit a determination as to Mr. Tim Eures' relative qualifications as compared to those of Petitioner. There is no evidence that Petitioner failed to be hired for the Fire Coordinator position due either to legal problems that his wife was having at the time or due to the filing of a charge of discrimination against Petitioner's prior employer, the City of Avon Park.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on April 20, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 20, 1993. APPENDIX Treatment Accorded Proposed Findings of Respondent 1-2: rejected as not findings of fact. 3-5: adopted or adopted in substance. 6: rejected as subordinate. 7: adopted or adopted in substance. 8: rejected as subordinate and recitation of evidence. 9-15 (second sentence): adopted or adopted in substance. 15 (third and fourth sentences)-17: rejected as irrelevant. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 J. Ross Macbeth County Attorney Highlands County P.O. Box 1926 Sebring, FL 33871-1926
