The Issue Whether Respondent (“Tractor Supply”) committed an unlawful employment practice by subjecting Petitioner (“David C. Montague”) to a hostile work environment.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the entire record of this proceeding, and matters subject to official recognition, the following Findings of Fact are made: Tractor Supply is a retail store chain that sells a wide variety of products geared toward agricultural uses. Mr. Montague is a 41-year-old African American male. He has a GED and an associate’s degree in psychology. At the time of the final hearing in this matter, he was five classes short of obtaining a bachelor’s degree in industrial psychology. Since leaving high school, Mr. Montague has worked in a variety of fields such as retail, construction, farming, and landscaping. 1 The undersigned deferred ruling on the admissibility of Respondent’s Exhibit 13 because it was a hearsay statement provided by an employee of Tractor Supply. After further review, the undersigned accepts Respondent’s Exhibit 13 into evidence because it supplements and/or corroborates testimony given during the final hearing. Mr. Montague began working at a Tractor Supply store in Chiefland, Florida in April or May of 2020. His duties at Tractor Supply included handling 50-pound bags of feed, arranging those bags on the store shelves, assisting customers with transporting their purchases to their vehicles, and maintaining the store’s parking lot. Mr. Montague worked 40 hours a week with occasional overtime. Mr. Montague and his friend, Darryl Whitehead, shared rides to and from work at the Chiefland store. They were two of the three African Americans working there. Mr. Montague, Mr. Whitehead, and Steven Todor often worked together handling inventory. Mr. Todor is Caucasian. They frequently made off-color comments about each other and fellow co-workers. Those comments were often related to male genitalia and were inappropriate for a workplace. Mr. Todor was counseled on at least one occasion after a customer overheard the three men engaging in their usual, off-color banter. Mr. Montague had been counseled at least once about inappropriate comments and jokes. On June 30, 2020, a nondescript, unmarked white box, addressed to Mr. Todor, arrived at the Chiefland store. There was no indication who had sent the package, and it was taken to the store’s breakroom. The breakroom is adjacent to another room that serves as the store manager’s office. Alexandra Lounsbury, who was the acting manager of the Chiefland store at the time, paged Mr. Todor over the store’s intercom system and announced that he had a package in the breakroom. When Mr. Todor arrived at the breakroom, Ms. Lounsbury, Madison Douglas, the acting assistant store manager, and Ashley Peterson, a team leader, were in the office area but could see the breakroom through an open door. Mr. Todor arrived in the breakroom, opened the package, and immediately recognized it as a gag gift. He saw what he described as a “chocolate candy phallic object” inside the package, and the bottom of the package’s lid had a message that read, “eat a dick.” Mr. Todor was amused by the package, and asked the three ladies present if one of them were responsible for sending him the package. They were also amused by the package but denied being responsible. Mr. Todor then suspected that Mr. Montague and Mr. Whitehead were the culprits and asked Ms. Lounsbury to summon them to the break room: A: And, you know, me trying to be a logical person, one and one together, I received a chocolate phallic object in the mail addressed to me, so I go to the next logical, for me anyways [sic] person to ask, and I asked Alex if she could – because I didn’t have a phone on me – if she could intercom Darryl and David to the office in a hasty manner. Because this is, like, around 10 or 11. So I’m in there – I was getting a water anyways, and so when they made their way over, Darryl was the first one in. And I sat there in front of the door, you know, looking like an idiot, holding the box open like so (gestures) with the lettering that says eat a dick, more or less as a joke. And the first thing I said is, did you send this, when Darryl walked in. Darryl didn’t answer me. He said something along the lines of, like, what the F is this and walked past me and sat down behind me, smiled and shook his head. David was not far behind Darryl. He opened the door, saw me looking like an idiot with, you know, a box in my hand, mumbled something along the lines of, I can’t believe this shit . . . Mumbled something along those lines, turned around and walked away, closed the door. Didn’t come into the break room. And I don’t really remember much after that. I think that we went on, continued doing a normal day. I think I did inevitably try that chocolate and it wasn’t very good chocolate. I kept the box in the freezer and then threw it away when I left or after I got written up, should I say. Because we did get reprimanded for this situation. Q: Okay. Okay. So who else did you show this to? A: Throughout the day I think everyone saw it. At the end of the day everyone saw it. I’m pretty -- I don’t think I walked around on the floor with it. I wasn’t going to go to that extreme, but I think throughout the day whoever was working that day did in fact see that object. Q: Did anybody admit to having sent it? A: To this say I have no idea. I don’t know, Personally, I do not know. Mr. Montague was appalled by Mr. Todor’s actions and felt disrespected. He finished his shift and reported the incident via text message the next morning to Mike Davis, the regional manager who oversaw the Chiefland store. Mr. Davis requested that Mr. Montague transmit a statement about the incident via facsimile or electronic mail, but he failed to do so. Mr. Davis told Mr. Montague that he would be at the Chiefland store the next day and asked to meet with him. However, Mr. Montague did not report for work at the Chiefland store on July 1 or 2, 2020. Mr. Davis attempted to contact him via telephone, but Mr. Montague did not return the call. Mr. Davis collected statements about the incident from Ms. Lounsbury, Ms. Peterson, Ms. Douglas, and Mr. Todor. Because Ms. Peterson and Ms. Douglas were new to the supervisory roles they were filling, Mr. Davis had a coaching session with them regarding the June 30, 2020, incident. However, Ms. Lounsbury and Mr. Todor received written final warnings stating that similar conduct in the future would result in termination.2 Mr. Montague never returned to the Chiefland store. He felt that the incident on June 30, 2020, rendered working at the Chiefland store “intolerable.” He never notified the Chiefland store that he was resigning his position, and Tractor Supply ultimately fired Mr. Montague on July 8, 2020, for not reporting to work. Mr. Montague has failed to demonstrate that Tractor Supply should be held responsible for the June 30, 2020, incident. Once Mr. Davis became aware of the incident, he promptly initiated an investigation that resulted in particular employees being disciplined in a manner commensurate with their involvement with the incident. Moreover, Tractor Supply’s response was reasonably likely to prevent similar misconduct from happening again. 2 Ms. Lounsbury’s written warning stated the following: “On June 30, 2020 a package was received at the Chiefland location of [Tractor Supply Company], addressed to the Receiver. The Receiver opened the package in the office, in the presence of the Interim Store Manager as well as the two other Team Members. After the Receiver opened the package it was found to be a sexually explicit piece of candy. Rather than throwing the candy away and acting in a professional manner by apologizing to the Receiver that it had happened, Alexandra admits to asking two additional Team Members to come to the office so the Receiver could confront them in front of others and ask if they sent the candy. It is the policy of Tractor Supply Company to promote a productive work environment and not accept any conduct by any Team Member that harasses, disrupts or interferes with work performance, or that creates an intimidating, offensive or hostile work environment.” Mr. Todor’s written warning stated the following: “On June 30, 2020 a package was received at the Chiefland location of [Tractor Supply Company], addressed to Steven. After opening the package Steven realized that it was [a] sexually explicit piece of candy. Rather than throwing the candy away Steven asked if he could approach two additional Team Members to confront them and ask if they sent the candy. Those two Team Members denied that they had sent the candy and they were offended at what he showed them and that they were asked if they had sent it. While the concern noted above was being investigated, Steven admitted that he and the Team Members he confronted had been joking with each other inappropriately and he believed the package was connected to these inappropriate jokes. It is the policy of Tractor Supply Company to promote a productive work environment and not accept any conduct by any Team Member that harasses, disrupts or interferes with work performance, or that creates an intimidating, offensive or hostile work environment.”
Conclusions For Petitioner: David C. Montague, pro se Post Office Box 471 Newberry, Florida 32669 For Respondent: Lara J. Peppard, Esquire Ogletree, Deakins, Nash, Smoak and Stewart, P.C. Suite 3600 100 North Tampa Street Tampa, Florida 33602 Kristin U. Somich, Esquire Ogletree, Deakins, Nash, Smoak and Stewart, P.C. Suite 2300 201 South College Street Charlotte, North Carolina 28244
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Mr. Montague’s Petition for Relief. DONE AND ENTERED this 27th day of September, 2021, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 2021. COPIES FURNISHED: David C. Montague Post Office Box 471 Newberry, Florida 32669 Stanley Gorsica, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 Kristin U. Somich, Esquire Ogletree, Deakins, Nash, Smoak and Stewart, P.C. Suite 2300 201 South College Street Charlotte, North Carolina 28244 Lara J. Peppard, Esquire Ogletree, Deakins, Nash, Smoak and Stewart, P.C. Suite 3600 100 North Tampa Street Tampa, Florida 33602
The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
The Issue The issue is whether Respondent is guilty of employment discrimination against Petitioner.
Findings Of Fact Petitioner was born in Spain and is of Hispanic origin. At all material times, he has been employed by Respondent. Since 1992, he has been employed as a truck driver. At the time of the incident described below, Respondent was a Waste Truck Driver. His job was to drive a 66,000-pound truck in Miami to collect garbage from the utility customers. On February 28, 2006, Petitioner was operating his truck along Northwest 54th Street. This is a major east-west arterial through central Dade County. At the location of the incident, this busy road contains five lanes of traffic. Leaving a strip mall, from which he had just collected garbage, Petitioner drove the truck across this arterial, crossing double-yellow lines in the middle, in order to save time in driving to the next pick-up location. Petitioner was not at an intersection and knew that the double-yellow lines meant that his maneuver was illegal. Petitioner "explains" that he chose to do this maneuver at the urging of the Waste Collectors riding on the back of the truck and with the knowledge that other truck drivers had done it too. Unable to clear all of the lanes at one time, Petitioner was forced to stop the truck around the middle of the highway at an angle closer to perpendicular than parallel to the direction of the traffic flowing around him. A collision resulted when a passenger car tried to pass the garbage truck on the left at the same time that Petitioner moved his truck forward to try to complete his maneuver. After an investigation, Petitioner's supervisor, who is black, decided to demote him to Waste Collector, which resulted in a small decrease in pay, but presumably less-preferred tasks involving more direct contact with solid waste. The supervisor weighed Petitioner's substantial experience with Respondent as a driver against the facts that he could have prevented this accident, even though he did not receive a citation, and that he has had five other preventable accidents while driving Respondent's vehicles. Respondent had previously required Petitioner to take good-driving courses on three occasions due to avoidable accidents. He had also been given progressive discipline for his driving mishaps, culminating in an eight-day suspension for his last accident, which was in December 2004. Petitioner claimed to his supervisor that he had done nothing wrong, that he had not violated any rules, and that everyone drives like he did. The supervisor was unfavorably impressed by his failure to accept responsibility for the accident and his nonchalant attitude. The supervisor legitimately concluded that this attitude combined with Petitioner's driving history unreasonably raised the risk of additional accidents caused by Petitioner. Petitioner's attempt to show disparate treatment was unpersuasive. Either similar discipline was imposed for a similar number of similar offenses, supervising personnel were different, or the similarity of past offenses could not be determined. Petitioner's supervisor testified that she did not demote him because he is Hispanic, and this testimony is credited.
Recommendation Based on the foregoing, It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of September, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of September, 2009. COPIES FURNISHED: Erwin Rosenberg, Esquire Post Office Box 416433 Miami Beach, Florida 33141 Eric A. Rodriguez, Esquire Office of Dade County Attorney 111 Northwest First Street, Suite 2810 Miami, Florida 33128-1930 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner is guilty of operating an overweight, unregistered commercial vehicle and, if so, the amount of the penalty.
Findings Of Fact On November 3, 1997, Petitioner was operating a U-Haul truck on County Road 951 in Collier County. Respondent's weight and safety officer pulled over the vehicle for a routine inspection. Petitioner was in the moving business and was transporting a third party's household goods from Chicago, Illinois, to Naples, Florida. Petitioner produced an Ohio- apportioned registration, which had expired on May 31, 1997. However, Petitioner had no log book concerning his driving activity. Respondent's weight and safety officer weighed the vehicle, which was a laden straight truck, and found that it weighed 13,400 pounds. Respondent's law enforcement officer thus issued Load Report Citation Number 090045M and collected $170 for the overweight load and Safety Report Number 085886 and collected $100 for the failure to maintain a log book.
Recommendation It is RECOMMENDED that Respondent enter a final order dismissing Petitioner's request for a refund of the penalties in the amount of $270 already collected from him. DONE AND ENTERED this 8th day of July, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1998. COPIES FURNISHED: Kelly A. Bennett Assistant General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Christopher W. Campbell 14751 South Homan Number 5 Midlothian, Illinois 60445 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Attn: Diedre Grubbs Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact Respondent operated a truck on May 14, 1991, which had a legal weight of 80,000 pounds. The truck was weighed on May 14, 1991, at the White Springs Scales on I-75. At the time it was weighed, the truck weight registered 87,600 pounds. The actual weight of the truck exceeded the legal weight by 7,600 pounds. The operator of the truck requested a second weighing. A second weighing was performed with the same result as the first weighing. Petitioner imposed a penalty of $380 which was paid by Respondent. The amount of the penalty was accurately calculated in accordance with applicable law.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order upholding the fine imposed against Respondent. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of January, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1992.
The Issue Whether the sign on the side of the Respondent's trailer, which has been placed on the east side of I-4, .01 mile south of Buffalo Avenue in Hillsborough County, is a nuisance which should be removed, pursuant to Chapter 479, Florida Statutes.
Findings Of Fact In early February 1990, the Department's Outdoor Advertising Administrator with District 7 observed the following: a 13' x 40' metal trailer with a large advertisement for Contractor's Exams on its side in a stationary location. The trailer was approximately twenty feet from the I-4 right-of-way fence, on the east side of the highway, one-tenth of a mile south of Buffalo Avenue in an unincorporated area of Hillsborough County. The advertising message was clearly visible from the main travel way of the interstate highway. During a sixty-day period, the administrator regularly observed this trailer to see if it had been relocated in anyway. When he determined from the observations that the trailer had not been moved, he visited the property where the trailer was located on April 2, 1990. The business enterprise at this location is South Florida Engineering Company. As part of its business, this company has trailers, tractors and other equipment parked on site. When the administrator and an outdoor advertising inspector entered the property, they went to the office and inquired about the one trailer. The administrator was directed to another manager who has his office in the dock area. No one met with him at this location, and he was unable to get any more assistance from the man with whom he had spoken earlier. Having observed the trailer on the premises, and having observed its distance away from other equipment, along with its position in relation to the highway and the type of message printed on its side, the administrator issued a Notice of Violation. The administrator determined that the printed message on the trailer's side advertising Contractor's Exams was a unpermitted sign, in violation of Section 479.07(1) Florida Statutes. Another copy of the notice was mailed to Carl Mathews Construction School. The reason the notice was mailed to this enterprise was because the school's services were being advertised by the sign. The mailing address was ascertained by calling the phone number on the advertisement and requesting the address. The inspector accompanying the administrator physically attached the Notice of Violation on the trailer and took a picture of it on this same date. Subsequent to April 2, 1990, the inspector took pictures of a different trailer on the same site with the same advertising message. In these later pictures, the trailer was farther away from the right-of-way fence, but the message could still be seen from the interstate highway. The trailer remained isolated from other trailers on site. These additional pictures were taken on June 15 and 26, and July 18, 1990. In addition to the trailer in I-4 and Buffalo Avenue, the inspector became aware of another trailer with the same message at State Road 60 and Adamo Drive. This trailer's message could also be seen from the road. It remained at this location in the same stationary position from the middle of June through mid July. This trailer was parked in a trailer yard. Mr. Carl Mathews is the owner of Carl Mathews Construction School, the business advertised on the side of these two trailers. In addition to this enterprise, Mr. Mathews is actively involved in the business of leasing trailers, like the two previously mentioned. Ordinarily, these are leased to Contractors for the storage of on-site supplies or to truckers for over the road hauling. Through his various interests in a number of corporations, Mr. Mathews has an interest in one hundred and thirty trailers as well as the trailer yard at State Road 60 and Adamo Drive. Only two of these trailers display an advertisement for Carl Mathews Construction School. The trailer originally at the I-4 and Buffalo Avenue site from February through April 2, 1990, was there for two reasons. First of all, the strip of property where both trailers were ultimately located had been leased by one of the corporations in which Mr. Mathews is a principle. The purpose of the lease was to store empty trailers during the time periods they were not being leased. Storage of this type of trailer is difficult in Hillsborough County because ordinances only allow them on property zoned for industrial use. Secondly, the trailer in question needed its brakes redone. During this time period, this repair was going to be performed by South Eastern Mechanical, who runs a repair business at this site. Later, this trailer was moved to the State Road 60 - Adamo Drive storage yard in which Mr. Mathews has an ownership interest. This yard had recently acquired its own mechanic who will repair the brakes. The second trailer was also placed at the I-4 - Buffalo Avenue location for storage purposes. The Carl Mathews Construction School is located at 7207 North Nebraska Avenue in Tampa. There are no school functions at the I-4 - Buffalo Avenue location. The purpose of the written message on each trailer was to inform members of the public interested in Contractor's Exams that Carl Mathews Construction School was offering new courses. A sign permit has not been issued by the Department for either trailer during their stays at the I-4 - Buffalo Avenue location.
Recommendation Based on the foregoing, it is recommended: That the Notice of Violation issued against the first trailer at the I- 4 - Buffalo Avenue location be found be have been properly issued by the Department. That Contractor be found to have fully complied with the Notice of Violation issued April 2, 1990. RECOMMENDED this 25th day of September, 1990, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2427T The Department's proposed findings of fact are addressed as follows: Accepted. See HO number 1, number 2 and number 5. Accepted. See HO number 10, number 11, number 14 and number 16. Accept first sentence. See HO number 10. The rest is rejected as irrelevant to the dispute of material fact. Contractor's proposed findings of fact are addressed as follows: Accepted. Although the Department did comply with all necessary legal requirements when the violation was posted on the first trailer. Accept all but last two sentences. See HO number 8. The last two sentences are contrary to fact. See HO number 15. There was no showing that the second trailer had been moved from the I-4 - Buffalo Avenue location. There was insufficient reliable evidence presented at hearing for the Hearing Officer to accept this presumption. More reasonable, contrary evidence was accepted by the Hearing Officer which revealed that the second trailer remained at this location. See HO number 9. Rejected. Contrary to fact that the first trailer was able to operate on the road. See HO number 14. Otherwise, accept that trailers were the type of trailers pulled by truck tractors. Accepted. But factual dispute was reconciled. See HO number 1 and number 8. Rejected. Contrary to fact. See HO number 18. Accept all except last sentence. See HO number 10, number 12, number 13, number 14 and number 15. Last sentence is improper conclusion and contrary to reasonable inference. See HO number 9. Rejected. Improper comparison without proper foundation. Rejected. Improper legal argument. Accept the first sentence. See HO number 10. Reject the last sentence as self serving. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Joseph R. Fritz, Esquire 4204 North Nebraska Avenue Tampa, Florida 33603 Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against based upon his age when he was not selected for promotion by the Respondent Corporation, and when he was ultimately terminated.
Findings Of Fact The Petitioner, Harlan Hamer, has many years of experience working in the trucking industry, particularly in management capacities. He has been engaged in managing safety, finance and administrative operations of large motor carriers, as well as operational aspects of a 350- truck unit motor carrier corporation. He has an extensive knowledge of the various aspects of regulation and operations pertaining to the trucking industry. He is also a licensed commercial, Class A driver, qualifying him to operate commercial vehicles such as large, over-the-road trucks. The Respondent is a dry-freight trucking company which, at the height of its operations in 2006-2007, operated 260 to 300 trucks. Apparently most of these were owned by the Respondent Shoreline. It employed the requisite number of drivers to keep this approximate number of trucks operating, as well as a significant number of office and terminal administrative, operations, management, and maintenance personnel. In early 2007, the Petitioner interviewed with Shoreline concerning an employment position. He interviewed with Randa Shipp, who was a recruiter for Shoreline at that time. Ultimately, Mr. Hamer was not selected for that job and secured alternative employment as a driver for Mineola Water Company. Soon thereafter, however, he received a call from Shoreline offering him a position as a "night dispatcher." He accepted that position and began working for Shoreline on May 14, 2007, at a weekly salary of $750. He completed an application at that time in which he revealed his age. The Respondent thus became well aware of his age at the time it hired him. His resume also describes his birth year as being 1947. The Shoreline form which documents his hiring, signed by the safety director at that time, Cheryl Allender, also reflects that birth date. His age of 60 or 61 years, at times pertinent to this case, was well known by the Respondent and had been since he was hired. The Petitioner had been a truck driver early in his career and later managed drivers. He was a manager for Pucket Oil Company; Santee Carriers, Inc; and Transwood, Inc. In some of these capacities he had been responsible for U.S. Department of Transportation mandated compliance with government regulations applicable to the trucking industry, as well as Equal Opportunity (EEO) compliance. When the Petitioner was hired as a night dispatcher he was given approximately three nights of training. Greg Bruce, testifying for the Petitioner, was also a night dispatcher and the Petitioner's counterpart. For the first three months of his employment in 2006, however, Greg Bruce had worked with the dayshift team as a Fleet Manager, in which he performed dispatching duties, while managing a group of drivers. Beginning in October 2006, Bruce had worked as a night dispatcher. He testified that the Petitioner responded well to training and, as far as he knew, performed his duties well after commencing his employment. Bruce however, did not observe the Petitioner performing his duties after the training period ended because they worked at different times. He did establish that the Petitioner consistently arrived early for his shift and communicated regularly with the day shift team, before they departed at the end of their shift. He established that the Petitioner had a good attendance record, and was seldom or never absent, because he never had to "cover" the Petitioner's duties, which he would have done if the Petitioner had missed work. The night dispatcher for Shoreline functioned alone while on shift, had to answer four telephone lines and respond to text messages from drivers, concerning any issues arising during the night. The night dispatcher was also required to communicate with customers and to generate new loads. The night dispatcher had responsibility for resolving equipment break-down issues for Shoreline as well as Shoreline Transportation of Alabama, a related trucking company under the same ownership. The night dispatcher's duties were essentially the same as those performed during the day by fleet managers, as well as load data entry personnel and customer service personnel. The testimony of the Petitioner and Bruce, together, establishes that the Petitioner was generally adequately qualified to perform the duties of Night Dispatcher. Mistakes were made by the night dispatchers, including the Petitioner, as well as by day-shift personnel. Day-shift personnel would sometimes omit a correct "pick-up number" so that the night dispatchers would have to search the office to locate a particular bill of lading to determine load/delivery information. Because of the large number of trucks on the road at any given time, resolving such issues could take a considerable period of time. Both the night dispatchers, including the Petitioner as well as the day-shift personnel, made mistakes such as entering incorrect numbers in the company record system concerning trucks, drivers and loads. The totality of the testimony and evidence shows, however, that, after training, and after gradually improving on the job the Petitioner was adequately qualified for the night dispatcher job at the time of his termination. Sometime in August 2007, the Petitioner learned that the company would be hiring an Operations Manager to assist Clayton Gremillion in his operations management duties. The Petitioner therefore approached Clayton Gremillion (his supervisor) about his interest in being considered for that new position. Clayton Gremillion acknowledged in his testimony that the Petitioner had informed him of his interest in moving into a management position, and had informed him about his qualifications. Clayton Gremillion further acknowledged that the company was creating such a management position and that he told the Petitioner that he would "keep him in mind" for that position. The position was not posted or advertised and there was no actual opportunity to make a formal application. In any event, the Petitioner was never interviewed for that position nor was it ever discussed with him, after the initial conversation he had with Clayton Gremillion. Clayton Gremillion, and his father, Don Gremillion, the owner, interviewed and then hired Justin Allen for the new position, on January 21, 2008. He was hired as an Operations Manager, at a weekly salary of $1,346.15. Allen was much younger than the Petitioner, being born in 1979. Mr. Bruce testified that he had more than 20 years experience in trucking management and he would have been qualified and wished to have been considered for the job. He testified that he considered the Petitioner even more qualified because of his longer experience in management with trucking companies with similar operations. Justin Allen had much less experience in the trucking business than either the Petitioner or Greg Bruce. He did have a few years of experience working for J.B. Hunt Trucking Company, but he lacked significant management experience. Justin Allen was hired, however, because it was believed that he had business connections which would be of significant assistance in generating new revenue and accounts for the company, chiefly accounts with Lowe's and Wal-Mart. This was the primary reason for Shoreline to hire Allen, as well as the fact that it was considered important to obtain help for Clayton Gremillion in managing the company's operations. The evidence is not clear as to how much new revenue Allen may have generated for Shoreline. Allen also performed some human resource duties, as well as helping Clayton Gremillion in operations management. In 2007, as well as into 2008, Shoreline was adversely impacted by an economy entering a severe recession, with a particularly severe financial strain caused by escalating diesel fuel prices. Indeed, Shoreline lost $1.7 million in 2007 and lost over $2 million in the first six months of 2008, which resulted in its closure, effective July 1, 2008. On that date, the company operations ceased and all assets and equipment were leased to Evergreen Transportation Corporation. During the period leading up to this company closure, economic adversity caused Shoreline to take some 40 trucks out of service, in approximately early February of 2008. This resulted in the layoff of numerous drivers and some office personnel. In early 2008, the New Orleans office of Shoreline was closed, due largely to economic conditions. An employee, Mike Hill, who had been staffing the New Orleans office, was transferred to the main office in Cantonment, Florida. Mike Hill had been initially hired by Shoreline on August 30, 2004. He had worked in the trucking industry prior to that time as a driver and also had approximately ten months experience in dispatching before being hired by Shoreline. In 2007 and early 2008, Hill was being paid a $1,000 weekly salary plus a $300 car allowance. While working for Shoreline in the New Orleans area he serviced the Gulf States Coca-Cola Company account, at its facility in New Orleans, as one of Shoreline's most important customers. Hill is a substantially younger person than the petitioner, being born in 1971. Apparently, Mr. Hill had communication difficulties, or disputes, with Coca-Cola's representative, Shawn Blazer. While that may have affected the decision to remove him from the Louisiana office and return him to the Florida office, the evidence shows that Shoreline kept the Coca-Cola account and had it serviced by Hill, and later Norman Macintosh and ultimately by Greg Bruce. Bruce testified that because of his efforts Shoreline regained business that Hill had lost with Coca-Cola. Be that as it may, the evidence shows that the primary reason that Mike Hill was transferred back to the Cantonment office was due to the economic downturn and the Respondent's closure of the New Orleans area office or terminal. Mike Hill had worked for Shoreline since 2004 and had worked in the night dispatching and breakdown clerk position before Mr. Hamer ever joined the company. Consequently, due to his seniority and due to his relevant experience, Hill was moved back from New Orleans and given the position held by the Petitioner. The Petitioner was therefore informed by Cheryl Allender, on or about February 6, 2008, that Clayton Gremillion had decided to terminate the Petitioner's employment because the position would be filled by Mike Hill. The Petitioner was told it was necessary to lay him off due to the need to reduce forces as a result of economic conditions. The financially-driven reduction of Shoreline's forces in New Orleans and the decision to retain Mike Hill who was an employee with seniority, according to the Respondent, led to the Petitioner's layoff. In addition to the Petitioner, six other office personnel were laid off within thirty days of the Petitioner's layoff. Clayton Gremillion testified that there were certain performance deficiencies displayed in the Petitioner's work as a night dispatcher. These involved tardy or incorrect input of data into the computerized load/truck/customer tracking and records system, and some delays in arranging for the repair of truck break-downs and for alternative means of delivery or pick-up of the relevant loads. The primary reason for the layoff, however, was as a result of the reduction of forces in the New Orleans operation and the decision to transfer employee, Mike Hill, with his seniority, and experience in dispatch work, to replace the Petitioner in his position. It is true that Shoreline hired some other personnel after the Petitioner's layoff, and in the face of the economic downturn. However, none of these personnel were hired to fill the Night Dispatch/Break-Down Clerk position that the Petitioner had occupied. Lloyd Randall was hired after the Petitioner was laid off. Lloyd Randall, born in 1954, was approximately seven years younger than the Petitioner. He was hired to work as a fleet manager on the recommendation of a mutual acquaintance to Clayton Gremillion. In fact, as Clayton Gremillion conceded, he hired him "as a favor to a friend." He hired him at a salary rate of approximately $475 per week. On the day of his hire, Mr. Randall decided he would not stay, whereupon Clayton Gremillion offered him $565 per week for the position. Mr. Randall, however, determined that it was not the type of work he desired and left after being employed for approximately one day. Mike Hill, who had been hired in the position from which the Petitioner was terminated, left the company fairly soon, on March 31, 2008. The position which had been occupied by the Petitioner, and then Mike Hill, was next filled by Norman Macintosh, who is over 50 years of age and had worked with Shoreline since the 1980's. Shoreline employed people in all age ranges. This included several over the age of 40, some over the age of 50, and some over the age of 60. In February 2008, for example, when the Petitioner was laid off, numerous drivers were employed over the age of 50 and Norman Macintosh and Jerry Adkins, longtime company employees, respectively in the dispatcher positions and maintenance supervisor positions, were over the age of 50. Mr. Adkins was over 60 years of age at the time. Shoreline continued to run ads seeking to fill certain positions, including office positions, after the Petitioner's layoff. These were not ads seeking employees for the night dispatcher/break-down clerk position that the Petitioner had held, however. Although Shoreline hired some additional personnel after the Petitioner's layoff, none of them were hired to fill his position. In any event, the Petitioner noticed the ads and called Jerry Adkins to find out "what was going on." The fact is, however, that in response to the ads the Petitioner never contacted anyone else at Shoreline in an effort to either get his former job back, or to seek some other position with the company, such as those referenced in the ads. Mr. Adkins, the Maintenance Supervisor for Shoreline, was over 60 years of age. The Petitioner contends that he is a biased witness because he was a long- time company employee and, even after the cessation of company operations, still had a company-supplied vehicle. It is not found that this fact, together with any facts elicited on cross-examination of Mr. Adkins, or otherwise, has established him to be lacking in credibility, however. Mr. Adkins did not believe that the Petitioner's layoff was associated with his age. Instead, he stated that it was to accommodate bringing the more senior employee, Mike Hill, back to the company headquarters location from the closed New Orleans location and operation. His testimony is accepted as credible. When the Petitioner learned that his former position with Shoreline was being advertised, in March 2008, he did not apply for it. He had an application pending with another trucking company at the time which he anticipated would be a better employment opportunity. Moreover, he did not apply for other employment positions which he maintains were filled with younger people. There is no evidence to show that in instances when substantially younger people were hired for positions with the company, before and after the Petitioner's layoff, that it was at the expense of persons more in the Petitioner's age range, who sought the positions also and were rejected. That was simply not shown, in addition to the fact that the Petitioner did not apply for other positions. In fact, these positions have fairly low pay levels. It thus may be that these positions, or some of them, were filled by significantly younger people because older, more experienced applicants would not be attracted by the relatively low pay levels. In any event, had the Petitioner made an inquiry concerning being re-hired by the Respondent for any position, it would not likely have occurred. This is because of performance problems described by the testimony of daytime dispatcher Chip Wasdin, as well as by Clayton Gremillion. The Petitioner made mistakes and had difficulty ensuring that data was entered correctly into the company's computer system. The Petitioner acknowledged making mistakes in this regard, even after his first few months in his position. In summary, it has not been demonstrated that the Petitioner was terminated, nor that he failed to receive the promotion to the management position, because of his age. The Respondent has established the above-referenced legitimate business reasons for the hiring of Justin Allen and Mike Hill. Other substantially younger people hired for positions, even if their tenure was very short in those positions in late 2007, or the spring of 2008, were not shown to be hired at the expense of the Petitioner or any other applicants in the Petitioner's age range. In fact, the Petitioner applied for no such positions. Given the overall tenor of Clayton Gremillion's testimony, it may even be the case that, in one or more of the hiring situations, the hiring related at least somewhat to cronyism. Clayton Gremillion admitted hiring Lloyd Randell as a favor to a friend, and the same may be true in terms of a friend's recommendation with regard to Justin Allen. In any event, however, there was no showing of any intent to discriminate, based upon age, by the hiring of significantly younger people than the Petitioner, or in the failure to promote or the termination of the Petitioner. Finally, the lack of intent to discriminate based upon age is borne out by the fact that the Respondent was fully aware of the Petitioner's age in the spring of 2007, when it chose to hire him.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that no discriminatory employment actions based upon the Petitioner's age occurred and dismissing the Petition in its entirety. DONE AND ENTERED this 16th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 16th day of June, 2009. COPIES FURNISHED: Heather F. Lindsay, Esquire Lindsay & Andrews, P.A. 5218 Willing Street Milton, Florida 32570 Michael W. Kehoe, Esquire Fuller, Johnson, Kehoe, Horky and Rettig, LLC 3298 Summit Boulevard, Suite 11 Pensacola Florida 32503 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon the prehearing stipulation, the testimony of the witnesses, and the documentary evidence received at the hearing, the following findings of fact are made: Sometime prior to May 27, 1992, the Department solicited bids for contract no. 18103, section/job no. 11130-3518 (the project). The DBE goal for the project was stated at ten percent. The bids for the project were opened on May 27, 1992, and six timely bids were received including one from Hubbard and one from APAC. Hubbard's bid was the apparent low bid at $1,573,558.00 when compared to APAC's bid of $1,706,337.22. All other bids were presumably higher and are not at issue in these proceedings. All such bids were, however, deemed responsive by the Department. The Department established two dates for the posting of the award for this project. One date, June 18, 1992, was twenty-two days after the letting. That calculation requires that the actual letting date (May 27, 1992) be counted as the first day. The second date, using the same approach, was specified at forty days after the letting, July 6, 1992. The Department elected to post for this project on day 22, and its intent to award the contract to APAC was therefore disclosed on June 18, 1992. Hubbard timely filed an initial protest to the intent to award, and subsequently timely filed its formal protest on June 29, 1992. The Department rejected Hubbard's bid solely because one of its subcontractors, CDS Trucking, was not on a list of certified DBE firms on the day the bids for the contract were opened. Hubbard is a highway construction contractor which bids for, and performs, highway construction projects with the Department and other public entities. Hubbard is aware of public contracts that require a specified percent to be performed by DBE subcontractors. In fact, most of Hubbard's work is performed pursuant to such contracts and, as Petitioner has been in business for a number of years, it has vast experience meeting DBE goals. More important, Petitioner has never failed to meet a DBE goal. The Department is fully cognizant of Hubbard's past performance and reputation regarding compliance with DBE goals. When it receives an invitation to bid on a public construction project, Hubbard contacts DBE subcontractors for quotes for the job. While these contacts may be informal, such as by telephone conversation or facsimile transmission, the subcontractor is made aware that it is being contacted for the quote in reference to the DBE goal for the proposed project. In this case, Hubbard contacted CDS Trucking for a DBE subcontractor quote. Petitioner has used CDS Trucking numerous times in the past to perform services and on each such occasion CDS Trucking has been identified and accepted as a DBE. CDS Trucking gave Hubbard a quote of $30,000.00 to perform asphalt hauling services on the subject project. Taken in total with the other four DBEs who gave quotes to Hubbard, the total proposed DBE participation on Petitioner's bid was 10.65 percent. This amount exceeded the Department's stated goal for the project. Without including CDS Trucking, Hubbard's bid did not meet the 10 percent DBE goal. Under the Department's policy, in order to be eligible for inclusion as a DBE, a subcontractor must be listed in a DBE directory published each month by the Department. To be included in the directory a subcontractor must be a certified DBE as determined by the Department's minority programs office, must be in the process of seeking DBE certification renewal by having applied for such renewal not later than 90 days prior to certification expiration, or be certified on the date the directory list is closed for the month. Additionally, the Department will allow a contractor to use a DBE firm that is certified subsequent to the printing of the DBE directory, if such company is certified prior to the submission of bids. Under the foregoing policy, it is not unusual for the DBE directory to include numerous subcontractors who are, in fact, noncertified DBEs at the time of the bid letting or award. Consequently, a contractor using a noncertified DBE may qualify for, and receive, a contract award simply because it used a subcontractor listed in the DBE directory. Conversely, the use of a subcontractor who is not included in the DBE directory but is, in fact, a certifiable DBE may result in the contractor's bid being deemed nonresponsive for not meeting the DBE goal. Pertinent to this case, CDS Trucking has been identified and certified as a DBE since 1985. During that time there have been two lapses in DBE's certification status. Both lapses were voluntary in the sense that CDS Trucking, through its own conduct, intentionally failed to renew its certification. In the first instance, the company was undergoing internal organizational changes that delayed the application process. In the second case, Mrs. Cantero, the office manager and person responsible for the recertification application, was out of the office ill for an extended period of time. During these occasions, CDS Trucking knew its certification as a DBE would be suspended until completion of the renewal applications. CDS Trucking has never been denied DBE certification. The factual circumstances giving rise to CDS Trucking's initial eligibility and certification as a DBE and its current status have not changed. The DBE certification held by CDS Trucking for the 1991/92 year expired on March 13, 1992. On February 7, 1992, CDS Trucking filed an application for DBE recertification. Had the Department acted on that application within 90 days of its filing, CDS Trucking would have been recertified as a DBE on or before May 7, 1992. At the time the application for recertification was filed, CDS Trucking had submitted all information required by law or rule as set forth on the application form. No additional information from the applicant was required by law or rule in order for the Department to act on the application. Instead of processing the application within 90 days, the Department requested copies of two contracts recently executed by the applicant. The form letter issued by the Department provided: "Your application is presently under review. In order to complete this review, please submit the following additional information." (emphasis added) Such letter incorrectly suggested to CDS Trucking that if it did not furnish the information, its application would not be completed. On March 24, 1992, CDS Trucking responded to the request and submitted the additional information which it thought was required to complete its application. Because it had requested additional information, the Department extended the time within which to act on CDS Trucking's application for recertification. Since the Department's request for such information was made on the last possible date to make such request, the time to act on the application, under the Department's interpretation, was extended the maximum length of time. More important to this case, however, is the fact that the Department had no basis, in law or fact, to seek additional information from CDS Trucking. Moreover, had CDS Trucking filed its application for recertification prior to 90 days before the expiration of its certificate, the Department would have left CDS Trucking on the DBE roster regardless of the length of time necessary to process its renewal, including any delays created by the Department's requests for additional information. The Department does not have a rule that requires DBE applicants for recertification to file for renewal not later than 90 days prior to expiration of their certifications. The DBE directory used for this bid letting included the names of many DBE subcontractors whose certifications had expired before April 8, 1992, the date of printing for the directory. An even larger number of DBE subcontractors whose certifications expired before May 27, 1992, were included in the DBE directory used for this bid letting. One of the DBE subcontractors used by an unsuccessful bidder on this project (whose bid the Department did not deem nonresponsive) had a certification that had expired on June 12, 1988. At the time it gave Hubbard the quote for this project, CDS Trucking believed it was operating as a DBE. Since CDS Trucking had supplied all requested information to the Department and had a history of certification, no reasonable basis existed to presume CDS Trucking was not a bona fide DBE. CDS Trucking, by giving a quote to Petitioner, represented itself as a DBE to Hubbard. Hubbard relied on the quote from CDS Trucking and presumed it to be a DBE. As such, Hubbard further presumed it had met the DBE requirement for this project and, consequently, did not believe it needed to make an additional good faith showing. Indeed, had the Department followed its applicable rules, CDS Trucking would have been certified on the date of the letting, May 27, 1992. Had Hubbard known CDS Trucking was not certified on May 27, 1992, other arrangements could have been made. The Department arbitrarily rejected Hubbard's bid and refused to look at the facts and extenuating circumstances regarding CDS Trucking and the Department's own failure to timely process the DBE's renewal application. The fact that CDS Trucking, because of the Department's own failure to timely issue the recertification, was not certified on the date of letting is a minor irregularity in that CDS Trucking was certified on the date of the award and clearly was eligible for certification at all times. More important, the inclusion of CDS Trucking as a DBE does not convey an improper advantage on Hubbard not enjoyed by the other bidders. The Department failed to consider any of the factual matters related to CDS Trucking when it determined Hubbard's bid to be nonresponsive for its alleged failure to meet the DBE project goal. In fact, when the fact that CDS Trucking should have been certified by the Department on May 27, 1992 is considered, Hubbard's bid for this project did and does meet the DBE project goal.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Transportation enter a final order finding Hubbard Construction Company's bid responsive, and awarding contract no. 11130-3518 to Hubbard Construction Company. DONE and ENTERED this 21st day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of October, 1992. APPENDIX TO CASE NO. 92-4018 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 through 33, 36, 38, 41, 43, 47, 48, 51, and 55 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as hearsay, argument, presuming facts not in evidence, contrary to the weight of the evidence or misstatement of the record, irrelevant, or repetitive. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: 1. Paragraphs 1 through 5, 8, 11, 14, 15, 16, 17, 18, 19, 20, 22, 24, 29, 31, 32, 36, 38, 45, 46, 47, 48, 50, 51, 52, 53, 54, 55, 57, and 59 are accepted. 2. Except as specifically addressed in the foregoing findings of fact, all remaining paragraphs are rejected as incorrect or incomplete references of fact, recitation of testimony not accepted as ultimate fact, argument, irrelevant, contrary to the weight of the total evidence, or inapplicable as a matter of law and therefore immaterial. COPIES FURNISHED: Susan P. Stephens Asst. General Counsel Dept. of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 F. Alan Cummings, Esquire Mary Piccard, Esquire P.O. Box 589 Tallahassee, Florida 32302-0589 Ben G. Watts, Secretary Attn: Eleanor F. Turner Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458 Thornton J. Williams, Esquire General Counsel Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399 0458
Findings Of Fact Joseph Rodriguez, Respondent's President, is a licensed dealer in agricultural products under the provisions of Sections 604.15 to 604.30, Florida Statutes, and acts as a negotiating broker between the producer and the buyer. Respondent is bonded through Aetna Casualty & Surety Company, co-Respondent in this case, as required by Section 604.19, Florida Statutes. Respondent acted as broker on thirty sales of Petitioner's cabbage between May 21 and June 7, 1984. On each occasion, Respondent provided Petitioner with a written confirmation of sale which specified the buyer, the place of delivery, the amount of cabbage sold and the terms of the sale, the name of the company supplying the truck to pick up the cabbage and who was supplying the truck. On several occasions, Respondent supplied the truck. However, on all written confirmations provided by Respondent, the following appears: BROKER ARRANGES TRUCK FOR GROWER FOR CONVENIENCE PURPOSES ONLY. On June 8, 1984, Respondent contacted Petitioner's salesman, Donald Waters and ordered 150 bags of cabbage to be sold to Harvey Kaiser, Inc. Respondent was acting as a broker in this transaction between the buyer and seller. Respondent contacted Patterson Truck Brokers and ordered a truck to pick up the cabbage at Petitioner's farm on June 9 and make delivery under the terms of the sale. Petitioner could only provide 121 bags of cabbage. Respondent agreed to this lesser amount and was invoiced accordingly by Petitioner on June 9 in the amount of $272.25. The truck from Patterson Truck Brokers never arrived to pick up the cabbage. Petitioner's father, Donald A. Dunn, Jr., testified that he contacted Joseph Rodriguez on two occasions by telephone to find out where the truck was, and was told that Patterson would be sending it. Rodriguez testified that Patterson Truck Brothers had agreed to provide a truck but when they were unable, he then contacted other trucking companies, as well as other buyers, in an attempt to get a truck on June 9 or 10, or to arrange another sale of Petitioner's cabbage. However, he was not successful and the cabbage went bad. Although there was no completed sale of this cabbage and therefore he earned no brokerage fee on the transaction, Respondent paid Petitioner one-third of the invoice amount for this cabbage, $86.21, on July 23, 1984, as an act of "good faith" and in recognition of the good business relationship they had. He also informed Petitioner that Patterson Truck Brothers and Donald Waters had each also agreed to pay one-third and Petitioner should contact them for payment. Petitioner contends that it should be Respondent's responsibility to pay the entire amount still owing, $172.43. Acting as a broker, Respondent earns no commission for making arrangements to supply a truck for the convenience of the seller. He invoices the buyer, collects the total amount due from the buyer, remits the freight charge to the shipping company, and pays the seller minus his brokerage fee.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Agriculture issue a Final Order dismissing the complaint. DONE and ORDERED this 30th day of May, 1985, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 1985. COPIES FURNISHED: Joseph Rodriguez President Golden Touch Corporation 950 Colorado Avenue Stuart, FL 33497 The Aetna Casualty & Surety Company 151 Farmington Avenue Hartford, CT 06115 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee FL 32301 Donald A. Dunn, III Route 2, Box 68 Sanford, FL 32771 Honorable Doyle Conner Commissioner of Agriculture The Capitol Tallahassee, FL 32301
The Issue Whether Dionaris Cabrera, (hereinafter "Petitioner Cabrera") the sole stock holder of Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation, was correctly assessed a penalty for violating the workers' compensation laws of Florida, during the period of 2006 through 2008. Whether Petitioner, Florida Sunset Shuttle, Inc., (hereinafter "the old corporation") is responsible for providing workers' compensation coverage for its alleged employees, and whether the old corporation was properly noticed of the violation. Whether Petitioners or either one of them, are in violation of the Workers' Compensation Act during the relevant time period due to the failure to secure workers' compensation coverage for its employees. Whether Florida Sunset Shuttles and Charters, Inc., (hereinafter "the new corporation") is a successor entity of Florida Sunset Shuttle, Inc., or Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., pursuant to Chapter 440, Florida Statutes, and/or Florida Administrative Code Chapter 69L-6. Whether the Stop-Work Orders and amended penalties issued to Petitioner Cabrera and the old corporation were properly applied to the new corporation. Whether the Department of Financial Services, Division of Workers' Compensation (hereinafter "Respondent") is estopped from imposing a penalty on the new corporation due to a prior determination made by the investigator assigned to the file in 2006 and the detrimental reliance upon representations made to Ruben Cabrera and Jennifer Crain, who were representing the old corporation in the proceeding.
Findings Of Fact Respondent is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. PARTIES INVOLVED AND RESPONDENT'S ACTIONS Petitioner Cabrera is the sole owner and director of Petitioner Florida Sunset Shuttle, Inc., (the old corporation) a Florida Corporation. She founded the company in 2005. At the time of the hearing and at the time of the imposition of the Stop-Work Order, she was residing outside the United States, most likely in the Dominican Republic. At the time of the issuance of the first Stop-Work Order, the old corporation was administratively dissolved for failure to file its annual report. During the relevant time period, there is no evidence that Petitioner Cabrera was actively controlling day-to-day operations of either the old corporation or the new corporation. Ruben Cabrera and Jennifer Crain were employed by the old corporation, with Ruben Cabrera being the manager and Jennifer Crain being his assistant. Ruben Cabrera also held himself out as an officer of the old corporation. Ruben Cabrera and Jennifer Crain were not directors of the old corporation. Ruben Cabrera had managed the business operations of the old corporation since its creation in 2005. On November 13, 2007, Respondent's investigator, Lisette Sierra (Sierra), conducted a compliance check at the old corporation's worksite, located at 851 East Donegan Avenue, Kissimmee, Florida, to verify compliance with the workers' compensation statutes. Upon arrival at the worksite, Sierra observed that it consisted of a fenced lot with a trailer and several parked buses. At the worksite, Sierra personally spoke with Jennifer Crain and Ruben Cabrera. Petitioner Cabrera was not present. On and after November 13, 2007, Petitioner Florida Sunset Shuttle, Inc., did not carry workers' compensation for anyone associated with the corporation. On November 13, 2007, Respondent issued a Division of Workers' Compensation Request for Business Records to the old corporation. Although two documents were tendered, the records requested were not produced within the 5 business day time period specified in the request. On November 28, 2007, Respondent issued a second Request for Production of Business Records for Penalty Assessment Calculation (hereinafter "Request") directed to Petitioners, Cabrera and Florida Sunset Shuttle, Inc. The Request required Petitioners or either of them, to produce records related to bus drivers who performed services for the company during the specified period. On the same date, Respondent issued a "Stop-Work Order" to Petitioner Cabrera and the old corporation for failure to meet the requirements of Chapter 440, Florida Statutes, and the Insurance Code, ordering Petitioner Cabrera and the old corporation to cease all business operations and assessing a $1,000.00 daily penalty against Petitioner Cabrera and the old corporation, pursuant to Subsection 440.107(7)(d), Florida Statutes, for failure to comply. The Stop-Work Order and Request was posted on the work site on November 28, 2007. On November 30, 2007, Sierra was unable to serve the Stop-Work Order on the old corporation, via its registered agent or an officer. She served the Stop-Work Order and the Request by hand delivery on Jennifer Crain, Assistant Manager, at the company offices. On December 10, 2007, Respondent issued a subsequent Stop-Work Order and Order of Penalty Assessment. It was served on a representative of counsel for all of the Petitioners. The parties named on the first and second Stop-Work Order were "Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc., and Florida Sunset Shuttle, Inc., a Dissolved Florida Corporation." Florida Sunset Shuttle, Inc., was found to be an administratively dissolved corporation at the time the Stop-Work Orders were issued. The old corporation continued to operate its business in violation of both Stop-Work Orders issued by Respondent. On December 17, 2007, Respondent issued an Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, amending the penalty assessed to $346,349.58, pursuant to the formula listed in Sections 440.107 and 440.10, Florida Statutes. Since no business records were received from either Petitioner in response to the Request, the penalty was calculated by imputing the old corporation's gross payroll. After unsuccessful attempts to serve either Petitioner Cabrera or the old corporation, Respondent served the Amended Order, dated December 17, 2007, on an alleged employee of Petitioner Cabrera and/or the old corporation, name unknown, at the company offices on January 3, 2008. Petitioner Cabrera is the mother of Ruben Cabrera, the company manager. She is the sole stockholder, corporate officer, and registered agent listed for Florida Sunset Shuttle, Inc., in the Florida Secretary of State's records. There has not been any contact with Petitioner Cabrera during the course of Respondent's investigation. It appears that Petitioner Cabrera does not live in or around Orlando, Florida. According to Ruben Cabrera, Petitioner Cabrera was living in Santo Domingo, Dominican Republic, during the entire course of their investigation and this proceeding. Ruben Cabrera was the manager who operated the old corporation from its company offices in Kissimmee. He entered into arrangements to provide shuttle bus services for guests to tourist destinations with several hotels in the Kissimmee/Orlando area. While negotiating and signing these contracts with hotels, he held himself out to be an officer of the old corporation. It was unclear from the evidence when the old corporation closed business operations, but it appears to have done so prior to January 1, 2008. On November 30, 2007, Ruben Cabrera incorporated the new corporation. He was named the sole owner, corporate officer, and registered agent. The principal place of business was the same as the worksite of the old corporation, and the addresses of the registered agent and corporation's sole officer were the same as well. On January 30, 2008, Respondent served a 2nd Amended Order of Penalty Assessment (hereinafter "2nd Amended Order") directed to Petitioner Cabrera and the old corporation, on Jennifer Crain, Assistant Manager, at the company office, assessing a $406,349.58 penalty on these two Petitioners. The increase in penalty was due to the allegation that the old corporation continued to operate in violation of the Stop-Work Order. In addition, none of the parties listed on the Penalty Worksheet, attached to the 2nd Amended Order, had current, valid exemptions from workers' compensation coverage. An exemption from workers' compensation allows the exemption holder to be exempt from having to secure the payment of workers' compensation on behalf of himself or herself. None of the persons used to calculate the penalty had workers' compensation exemptions. The penalty period began on November 20, 2006, because a prior investigation by Respondent found the old corporation to be in compliance only up to that date. Utilizing the Scopes Manual published by the National Council on Compensation Insurance and adopted by Florida Administrative Code Rule 69L-6.021, as guidance, Respondent determined that Petitioner Cabrera and/or the old corporation's activities involved clerical workers and bus drivers. Thus, she assigned the class codes 8810 and 7382, respectively, to the old corporation's activities. On January 30, 2008, Respondent also served an Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity (hereinafter "Order Applying") on the new corporation. The Order Applying transferred the effect of the Stop-Work Order and Amended Order issued to the old corporation to the new corporation, based on the allegation that the new corporation was a successor corporation, pursuant to Subsection 440.107(7)(b), Florida Statutes. Ruben Cabrera, the owner/operator, transferred ownership and control of the new corporation to Jennifer Crain on January 9, 2008. Jennifer Crain became the registered agent, sole owner, and officer of the new corporation. It hired some of the drivers who previously worked for the old corporation and put them on salary under the new corporation. The new corporation leased new vehicles and served some of the same routes as the old corporation from the same company location. The new corporation properly carried workers' compensation insurance when served with the Order Applying. Therefore, the new corporation was in compliance with Subsection 440.10(1)(a), Florida Statutes, at the time Jennifer Crain took over ownership and control of the new corporation. COMPANY OPERATIONS Drivers for the old corporation submitted applications for employment to the company, prior to being hired. However, drivers signed contracts with the old corporation which stated that they were independent contractors and not employees, and no deductions were taken out their pay. 1099 Forms were issued at the end of the year. Drivers for the old corporation did not pay insurance on the vehicles they used for business purposes. Drivers for the old corporation were not responsible for the expenditures associated with repair or maintenance of the vehicles used by the drivers for business purposes. The corporation paid for the insurance. Drivers for the old corporation did not pay any fees or charges to the company for use of the vehicles. Drivers for the old corporation paid their own admission fees for entry into amusement parks, or other incidental expenses. Drivers for the old corporation wore black pants and a white shirt as a standard uniform. Drivers for the old corporation were paid according to the length of time for which they worked each day. Drivers for the old corporation did not own the vehicles they used for business purposes. They did not pay the old corporation for use of the vehicles in carrying out the contracts of the old corporation. The vehicles were leased under contract by the old corporation. Drivers for the old corporation did not individually contract with hotels for services, but carried out the contracts entered into by the old corporation. The old corporation did not submit any invoices for services rendered by its drivers. There is no evidence that the drivers maintained separate businesses. Payments to drivers were made to individuals rather than to their "businesses." Drivers for the old corporation were paid by the full day or half day, according to the span of time they worked. Ruben Cabrera entered into contracts with clients of the old corporation. He signed the contracts as either manager or as president of the old corporation. Drivers for the old corporation regularly visited the old corporation's clients to pick-up or drop-off passengers in the course of their employment. The old corporation's contract with at least one hotel refers to the old corporation's drivers as "employees." On June 16, 2008, Respondent issued a 3rd Amended Order of Penalty Assessment directed to Petitioner Cabrera and the old corporation, reducing the fine assessed to them to $131,504.60. The penalty was reduced after Respondent received the old corporation's business records and was able to use them to calculate a penalty. The old corporation received payment for its services from multiple businesses in the Kissimmee/Orlando area. The old corporation's records do not specify who, if any, of the drivers paid by the old corporation are independent contractors. The 3rd Amended Order of Penalty Assessment was served at the DOAH on counsel for the parties. Following a hearing, the Motion to Amend Order of Penalty Assessment was granted by the undersigned ALJ, and this matter proceeded to final hearing. PRIOR INVESTIGATION BY RESPONDENT On September 12, 2006, Respondent initiated an investigation into the alleged violation of the workers' compensation laws of Florida by Petitioner, Florida Sunset Shuttle, Inc. The investigating agent for Respondent, Ray Reynolds (Reynolds), issued a Stop-Work Order on September 15, 2006, for failure to obtain coverage for its employees. It is alleged that in a meeting with Ruben Cabrera, his attorney at the time, and Jennifer Crain, held on September 15, 2006, Reynolds reviewed the contracts with the drivers, and, apparently based on those facts alone, agreed that the bus drivers who worked for Florida Sunset Shuttle, Inc., were independent contractors. He advised the parties of such findings. However, on September 19, 2006, an Amended Order of Penalty Assessment was issued assessing the corporation a penalty of $2,084.09 for the violation. Florida Sunset Shuttle, Inc. did not challenge the findings of Respondent that a violation had occurred, and voluntarily paid the fine for failing to provide coverage for those employees named. It also produced proof of workers' compensation coverage for nine employees, which included Ruben Cabrera and Jennifer Crain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Financial Services, Division of Workers' Compensation, enter a final order dismissing the "Stop- Work Order and Order of Penalty Assessment" directed to Dionaris Cabrera, d/b/a Florida Sunset Shuttle, Inc.; The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Stop- Work Order and Order of Penalty Assessment" and its successor orders directed against Petitioner Florida Sunset Shuttle, Inc., a dissolved Florida corporation; and that The Department of Financial Services, Division of Workers' Compensation, enter a final order upholding the "Order Applying Stop-Work Order and Amended Order of Penalty Assessment to Successor Corporation or Business Entity" against Florida Sunset Shuttles and Charters, Inc., and imposing a penalty of $131,604.60. DONE AND ENTERED this 8th day of December in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of December, 2008.
