Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by R. Bruce McKibben, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s Notice of Withdrawal of Notice of Establishment and Motion to Dismiss, filed March 16, 2011. Accordingly, it is hereby ORDERED and that this case is DISMISSED. Filed March 25, 2011 9:39 AM Division of Administrative Hearings DONE AND ORDERED this a 7 day of March, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Interim Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Division gf Motor Vehicles this_2&/ day of March, 2011. fe labies Cirmnpale as NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: John W. Forehand, Esquire Kurkin Forehand Brandes, LLP 800 North Calhoun Street, Suite 1B Tallahassee, Florida 32303 J. Andrew Bertron, Esquire Nelson Mullins Riley & Scarborough, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312 James L. Ferman, Jr. Ferman on 54, Inc. 24252 State Road 54 Lutz, Florida 33559 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 Nalini Vinayak Dealer License Section
The Issue The issue in this case is whether Respondent's certificate of registration (Certificate) should be revoked for alleged failures to comply with requirements of chapter 212, Florida Statutes.
Findings Of Fact The Department is the state agency charged with administering and enforcing Florida's revenue laws, including the laws related to the imposition and collection of sales and use taxes pursuant to chapter 212. Colorcars is a Florida corporation engaged in the retail auto sales business in Nokomis, Florida. Colorcars is a "dealer" within the meaning of section 212.02(6). In order to engage in business as a "dealer," Colorcars was first required to apply for and obtain a Certificate from the Department. Colorcars first obtained its Certificate in 1994. As a "dealer" holding a Certificate, Colorcars is obligated to comply with the sales tax laws, including collecting sales tax from its auto customers, filing returns, and remitting the collected sales tax to the Department. In a prior DOAH proceeding, Colorcars initially requested an administrative hearing to contest a Notice of Proposed Assessment (NOPA) issued in 2005, by which the Department asserted that Colorcars' sales tax payments were deficient in the amount of $185,376.54, based on the results of an audit of Respondent's business for the period from August 1, 2001, through July 31, 2004. With additional penalties and interest claimed by the Department, the total proposed assessment as of June 14, 2005, according to the NOPA, was $245,057.07. Respondent pursued the protest avenues within the Department, but was unsuccessful, and the NOPA was confirmed in the Department's notice of reconsideration dated August 19, 2008. Colorcars was given notice of its rights, and Mr. Early filed a Petition for a Chapter 120 Hearing on Colorcars' behalf. The case was forwarded to DOAH and assigned DOAH Case No. 08-5442. DOAH Case No. 08-5442 was closed without an evidentiary hearing. The parties filed an Agreed Dismissal With Prejudice on February 13, 2009 (2009 Agreed Dismissal), whereby Colorcars dismissed its petition with prejudice, thereby withdrawing its request for an administrative hearing to contest the NOPA. Mr. Early signed the 2009 Agreed Dismissal as Colorcars' qualified representative in that DOAH proceeding,3/ on February 13, 2009. The 2009 Agreed Dismissal included the following provisions: Colorcars filed this proceeding to contest the sales tax assessment (the "Assessment") arising from audit number 200005030 for the period August 1, 2001 through July 31, 2004, which was final upon issuance of the Department's August 19, 2008 notice of reconsideration. This proceeding to contest the Assessment is hereby dismissed with prejudice. The Assessment remains final, valid, and effective in its entirety. The sales tax assessment initially contested by Colorcars in DOAH Case No. 08-5442 will be referred to hereafter as the Final 2008 Assessment. On February 19, 2009, the Department issued a tax warrant in the amount of $319,512.05 to secure the unpaid Final 2008 Assessment. The tax warrant amount reflected the unpaid tax liability, plus penalties, filing fee, and additional interest that had accrued as of that date. The tax warrant was recorded in the official records of Sarasota County on February 20, 2009. No evidence was presented to demonstrate that the tax warrant recorded in Sarasota County was ever withdrawn, amended, invalidated, or satisfied. No evidence was presented to demonstrate that the validity of the tax warrant was ever challenged in any tribunal (except to the extent that Colorcars seeks to question its validity in this proceeding). On February 16, 2010, the Department filed a judgment lien against Colorcars with the Florida Secretary of State to secure the same unpaid Final 2008 Assessment, based on the tax warrant recorded in Sarasota County on February 20, 2009. According to the judgment lien certificate in evidence, as of February 16, 2010, Colorcars' tax liability had mounted to $365,395.84, which was the amount of the filed judgment lien. No evidence was presented to demonstrate that the judgment lien recorded with the Secretary of State was ever withdrawn, amended, invalidated, or satisfied. No evidence was presented to demonstrate that the validity of the judgment lien was ever challenged in any tribunal. Mr. Early admitted that as of September 20, 2012, Colorcars has not made any voluntary payments to reduce the sales tax liability established by the Final 2008 Assessment. In April 2009, the Department froze funds in a Colorcars bank account at Liberty Savings Bank. Over a two-year period, Colorcars fought the Department's effort to levy the funds in the Liberty Savings Bank account. Following litigation, the validity of the Department's action was ultimately confirmed, and the Department was allowed to levy approximately $64,000.004/ to apply to Colorcars' tax liabilities. However, according to the Department's witness, the funds levied were applied to offset other Colorcars tax liabilities, and thus, were not applied to reduce Colorcars' tax liability stemming from the Final 2008 Assessment. Colorcars took issue with this testimony, claiming that the levied bank funds should have been applied to reduce the Final 2008 Assessment. Neither party presented evidence sufficient to resolve this dispute, but it is unnecessary to decide whether the Department has properly applied and accounted for the levied funds for purposes of this proceeding, because the exact amount of Colorcars' remaining tax debt need not be determined. The primary basis for seeking revocation of Colorcars' Certificate is Colorcars' failure to comply with the requirements of chapter 212 by failing to pay the mounting tax liability that Colorcars admitted it owed in February 2009, when it voluntarily dismissed with prejudice its challenge to the Final 2008 Assessment. Colorcars conceded that it has not voluntarily undertaken to pay one dime of the substantial sales tax deficiency attributable to a three-year period of business operations that began more than a decade ago. Colorcars presented no explanation for its failure to pay this admitted liability, which grows daily with accruing interest; Colorcars only asserted that possibly the Department succeeded in wresting away Colorcars' funds to force a partial payment, which Colorcars fought. Even if the evidence established that the levied bank funds should be applied to reduce the total amounts due from the Final 2008 Assessment, Colorcars would still owe more than $300,000.00 from the Final 2008 Assessment, which would have to be paid for Colorcars to come into compliance with its obligations under chapter 212. As a related, but independent basis for seeking revocation, the Complaint alleged that the Department has issued one or more tax warrants and/or judgment lien certificates, filed in the public records, for collection of Colorcars' sales tax liability resulting from the Final 2008 Assessment. The Department presented proof that both a tax warrant and a judgment lien were issued against Colorcars and duly recorded in the public records. Colorcars acknowledged that a tax warrant was filed, but argued that the tax warrant should be deemed void or invalid because it was issued less than 30 days after the 2009 Agreed Dismissal, which was before the time to appeal had expired. Colorcars did not dispute the Department's evidence of a duly-recorded judgment lien. Colorcars did not present any evidence or argument questioning the validity of the judgment lien, which was not recorded until February 16, 2010. The Complaint also charged Colorcars with failing to pay sales tax when due after collecting the sales tax from customers, despite filing sales tax returns for December 2011 and January 2012 that established Colorcars' sales tax liability. The total amount of sales tax collected by Colorcars from its customers and not paid over to the Department in those two months was $1,401.16. The Complaint alleged that as of March 5, 2012, an additional $145.93 in penalties and interest was owed in connection with this sales tax liability. Colorcars admitted that it collected sales tax from customers that it has not paid over to the Department for those two months. Colorcars did not dispute the amount of collected sales tax it failed to pay, or the amount of penalties and interest, as alleged in the Complaint. Colorcars claimed that its failure to pay sales tax collected from its customers should be excused because the Department made it impossible for Colorcars to pay. According to Colorcars, the bank account that was frozen by the Department was the one set up to make electronic sales tax payments to the Department. Thus, while Colorcars was required to, and did, timely file its sales tax returns for December 2011 and January 2012, Colorcars contends that it was unable to make the tax payments admittedly due because it could not do so electronically. Contrary to Colorcars' claim, the evidence established that Colorcars could have made arrangements to pay the sales tax liability some other way besides an electronic payment from the frozen account that had been set up to make electronic payments. The Department's witness testified credibly and without contradiction that Colorcars could have sent payment the old-fashioned way, by mail or delivery to the Department. Colorcars could have made the payments by check from another account, or by tendering cash, cashiers' check, or money order, and such payment would have been accepted by the Department. Mr. Early admitted that the sales taxes collected from customers that should have been paid to the Department were being held "at the office of corporations attorney." Mr. Early admitted that Colorcars never tried to make these tax payments some way other than electronically from the frozen account, such as by offering to write a check to the Department or to pay in cash. Mr. Early admitted that as of the date of the hearing, the sales tax collected from customers that should have been paid over to the Department at the time the December 2011 and January 2012 tax returns were filed, remains unpaid. Mr. Early gave no legitimate explanation for holding these funds, instead of paying them over to the Department.5/ As a final item, the Complaint charges Colorcars with failing to pay a penalty and a fee, totaling $275.00, assessed because Colorcars allegedly filed its 2009 corporate income tax return late. Colorcars contends that it believes the return was timely filed, but was just received late by the Department. The Department failed to present evidence clearly substantiating its allegation of a late-filed 2009 corporate income tax return.6/ Colorcars offered no evidence to prove that it timely filed its 2009 corporate income tax return. On November 18, 2011, the Department initiated the process for revocation of Colorcars' Certificate by issuing a notice of revocation conference, requesting Colorcars to appear at an informal conference. The notice informed Colorcars that revocation was being considered because of Colorcars' failure to comply with chapter 212, resulting in a total sales tax liability claimed by the Department of $432,474.52. Colorcars was informed that, at the informal conference, Colorcars would have the opportunity to make payment or present evidence to demonstrate why the Department should not revoke Colorcars' Certificate. The notice advised that the informal conference would be held on January 18, 2012. A handwritten note on the copy of the notice in evidence indicates that it was received on December 14, 2011. Four weeks after the apparent receipt of the notice, on January 11, 2012, Mr. Early wrote a letter, sent by overnight courier to the Department, requesting that the informal conference be rescheduled because Mr. Early was out of the country. Mr. Early identified two ten-day periods, one in February and one in March, when he would be in Florida and could attend an informal conference; Mr. Early expressed a preference for the latter month, and in particular, for March 7, 2012. Mr. Early indicated that he intended to be represented by counsel at the meeting and was interviewing candidates. The Department agreed to reschedule the informal conference and accommodated Mr. Early by resetting the conference for the date that Mr. Early said he preferred. The Department's January 30, 2012, letter rescheduling the conference warned that "there will be no more change" to the rescheduled revocation conference. Mr. Early attended the March 7, 2012, revocation conference, without counsel. At the final hearing, Mr. Early indicated that despite the warning that there would be no more changes to the rescheduled conference date that Mr. Early had requested, Mr. Early, nonetheless, asked the Department to delay the conference again because he had retained counsel who was not available on March 7, 2012. The Department apparently adhered to its warning and did not agree to another delay of the conference. At the informal conference, the Department and Colorcars apparently came close to reaching a compliance agreement, a draft of which is in evidence. According to Mr. Early, he refused to sign the draft agreement offered by the Department because he would not agree to personally guarantee the payment schedule agreed to by Colorcars to retire its sales tax liability. Mr. Early suggested that this was a surprise clause added at the last minute. In contrast, the Department's witness testified that it is a standard provision. Mr. Early seemed to suggest that if the Department doubted whether Colorcars could meet the schedule of payments to satisfy its sales tax liability, then the Department should have compromised the debt and agreed to accept less from Colorcars. Collectability is one factor considered by the Department in determining whether to exercise its discretion to compromise a sales tax liability, but it is only one factor. It is unclear whether Mr. Early presented evidence at the informal conference regarding Colorcars' financial status or regarding other factors bearing on the Department's consideration of a possible compromise. It is also unclear whether Mr. Early presented evidence related to Colorcars' sales tax liabilities claimed by the Department in the notice of revocation conference. Other than the draft compliance agreement itself, which is in evidence as the proposed agreement that the Department offered but Mr. Early refused to sign, no credible evidence was presented to establish what was said or what evidence was presented at the informal conference. However, following the informal conference, the total tax liability claimed by the Department was reduced from the $432,474.52 claimed in the November 18, 2011, revocation conference notice to $375,473.15, the total amount for which repayment was sought in the draft compliance agreement and the total amount set forth in the Complaint. The Complaint was filed after Mr. Early's rejection of the draft compliance agreement offered by the Department. Claimed Deprivation of Right to Counsel/Qualified Representative In its PRO, Respondent asserted as a "procedural issue" that it was deprived of its right to be represented by counsel or qualified representative at the final hearing. Thus, additional Findings of Fact are made to specifically address this claim. The Complaint was mailed to Respondent on April 25, 2012. In addition to setting forth the charges, the Complaint informed Respondent of its right to an administrative hearing and its right to be represented by counsel or other qualified representative. Respondent was given 21 days in which to request an administrative hearing, and Respondent was informed that if a hearing was requested, Respondent would be given at least 14 days' notice before the hearing would be held. Thus, Respondent was on notice that it needed to act quickly to exercise its right to be represented by counsel or qualified representative, because the final hearing could be held in very short order. Respondent's timely-filed Petition set forth Respondent's choice of representative as follows: "John T. Early, III, esq. . . . shall be the representative of the Petitioner [sic: Respondent]." Mr. Early clarified at the hearing that he uses the title, "esq.," because he is a lawyer in the state of Connecticut, but he is not admitted to practice in the state of Florida. The Initial Order entered by DOAH on June 1, 2012, referred the parties to the governing procedural statutes and rules and contained a summary of procedures. The summary provided a second notification to Colorcars that it may appear personally or be represented by counsel or other qualified representative. The summary also gave explicit notice that under the governing rules, any requests for continuance of the final hearing must demonstrate good cause and must be filed at least five days before the hearing date, absent extreme emergency. On June 7, 2012, the parties filed a joint response indicating that they were available for a final hearing in early August 2012. On August 2, 2012, a Notice of Hearing was issued, scheduling the final hearing for September 20, 2012. A separate Order of Pre-Hearing Instructions established various deadlines for the orderly and timely preparation for the final hearing. These deadlines included the following: by September 5, 2012, the parties were required to meet to discuss settlement possibilities, exchange witness lists disclosing all potential witnesses and designating experts as such, exchange all proposed exhibits, and prepare a joint pre-hearing stipulation; by September 10, 2012, the parties were required to file their joint pre-hearing stipulation; and alternatively, if no joint pre-hearing stipulation could be reached, then by September 13, 2012, the parties were required to file separate unilateral pre-hearing statements. From May 30, 2012, when this case first arrived at DOAH, through the close of the entire pre-hearing preparation phase, during which settlement was to be explored, witness and exhibit choices were to be made and disclosed, and pre-hearing stipulations or pre-hearing statements were to be finalized and filed, Mr. Early remained as Respondent's sole designated representative pursuant to its Petition. On September 18, 2012, two days before the final hearing, Robert Resnick filed a Notice of Appearance on behalf of Respondent, along with a motion for continuance. The motion contended that Mr. Resnick had "just been retained" and needed additional time to prepare for hearing and to pursue settlement with the Department. The motion was denied, because it failed to demonstrate an emergency as required by rule 28-106.210. On September 19, 2012, less than 24 hours before the hearing was supposed to begin, Mr. Resnick filed an amended motion for continuance, disclosing for the first time that he was scheduled to be in court in a criminal matter in Broward County on September 20, 2012, and, thus, was unavailable for the final hearing for which he had just been retained to represent Respondent. As detailed in the Second Order Denying Continuance, the amended motion was found insufficient to demonstrate an emergency. In particular, it was noted that Respondent's failure to retain counsel until the last minute and Respondent's failure to ensure that the counsel retained at the last minute was actually available for the scheduled final hearing, did not constitute emergencies. At the outset of the final hearing, Mr. Early renewed the request for a continuance, but offered nothing by way of additional reasons or explanation that would justify the last-minute nature of his request, why Respondent did not attempt to secure counsel sooner and why Respondent selected a lawyer at the last minute who was not available to appear at the final hearing. Instead, Mr. Early made light of the delay, at one point characterizing himself as "president of the procrastinators' club." Mr. Early displayed a lack of candor in his effort to delay the hearing by representing that counsel for the Department and Mr. Resnick "had reached an agreement to continue between themselves[.]" Counsel for the Department denied any such agreement, stating that the Department's position was only that it did not oppose Respondent's request for continuance, which was not the same thing as agreeing to a joint motion to continue. Mr. Early then admitted that he had only sent an email to counsel for the Department requesting an agreement, but that counsel for the Department apparently "didn't receive my e-mail last night where I had to ask him that. . . . I don't mean to jump the gun on it." The undersigned finds that Colorcars had full rein to exercise its right to be represented or advised by counsel or qualified representative throughout this administrative process. Colorcars exercised its right by designating Mr. Early as its representative in the Petition. Mr. Early had previously represented Colorcars in a DOAH proceeding in which he requested and attained "qualified representative" status. Mr. Early was capable of serving as Respondent's representative in this proceeding. Even so, Colorcars has retained the right to be advised by counsel throughout these proceedings, and Colorcars was allowed to have its counsel of record prepare and file Colorcars' PRO, despite not having appeared at the final hearing. The undersigned finds that Colorcars waived its right to change the choice of representative it made in its Petition, so as to be represented by late-appearing counsel at the final hearing, by not attempting to exercise that right in a timely and appropriate manner consistent with the governing procedural rules. Colorcars was on notice of its representation rights for months, just as it was on notice of the limitations on continuances. Colorcars offered no reason why it could not have timely retained an attorney who could be available on the scheduled hearing day. The totality of the circumstances, including the timing of Colorcars' actions, suggests an inappropriate strategic purpose of securing delay. That is particularly true since Colorcars selected an attorney at the last minute who was not available on the scheduled hearing date. Colorcars has demonstrated a pattern of picking different counsel at the last minute in order to attempt to trigger a delay, because the counsel selected has a schedule conflict. Colorcars retained a different lawyer before the March 7, 2012, informal revocation conference, and then asked to delay that hearing because the lawyer was not available that day. In telling fashion, Mr. Early complained that the Department would not agree to a second postponement of the informal revocation conference when "we had requested--in a similar situation requested an extension of time because counsel couldn't be there that day. Not Mr. Resnick, but a different counsel."7/ Whether by strategy or by the strangest of coincidences, Colorcars' penchant for last-minute attempts to change its representatives to attorneys with schedule conflicts cannot be countenanced as a way to evade procedural deadlines and requirements imposed on all parties in the interest of the orderly administration of justice in administrative proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Revenue revoke the Certificate of Registration held by Respondent, Colorcars Experienced Automobiles, Inc., now known as Experienced Vehicles, Inc. DONE AND ENTERED this 13th day of December, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 13th day of December, 2012.
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by terminating Petitioner because of his age and in retaliation for complaining about age discrimination, or whether, instead, Respondent had a legitimate non-discriminatory reason for terminating Petitioner that was not a pretext for discrimination or retaliation.
Findings Of Fact Petitioner is a male whose date of birth is June 23, 1958. Petitioner completed high school and had specialized training in welding. He has been working since he was 14 years old and has a varied employment history. Before 2006, Petitioner was a welder for a few months with Gencor Industries. He left that position because of what he described as unsafe working conditions. Before working for Gencor, he was a warehouse manager and shop foreman for Structural Waterproofing, but was terminated when he had a disagreement with the boss. Before that job, he was self- employed in construction and photography. In 2006, Petitioner was hired as a sales consultant with the Holler Classic Group, a car dealership. Petitioner had never had a job in car sales previously, but had worked as a travel agent for 13 years. He explained that there was no money to be made in travel anymore, but he heard that there was money to be made in car sales, so he thought he would try it. Petitioner left Holler Classic after about two years, because he found it was getting hard to compete against salespersons who he claimed "were being given deals by management." Petitioner was hired on July 11, 2008, as a sales associate at Courtesy Chevrolet on West Colonial in Orlando. Courtesy Chevrolet is an employer within the meaning of the Florida Civil Rights Act and is a subsidiary of Respondent AutoNation. Petitioner was hired by Courtesy Chevrolet as an at-will employee. The terms of his employment were that he would be paid by commissions earned on car sales and would be given a draw against commissions so that there would be compensation in case there were periods of low sales. According to Petitioner, there was no fixed amount of cars he had to sell, except that, as he acknowledged, "[y]our commissions had to outdo your draw[.]" In other words, Petitioner understood that while the draw might cover an occasional low-sales month, there could not be continual low-sales months such that earned commissions were not sufficient to cover the draw. Petitioner also testified that shortly after he started at Courtesy Chevrolet, in August 2008, the manufacturer, General Motors (GM) imposed a rule that required car salesmen to sell at least six cars per month. Petitioner testified that he was aware this rule went into effect in August 2008, but that he did not think that the new rule applied to him, because he believed he was under the "old system." No evidence was presented to establish that certain car salespersons were allowed to continue under an "old system" that was exempt from the new minimum monthly sales quota. Instead, the more credible, consistent testimony of all witnesses, besides Petitioner, was that the six-car minimum monthly sales quota applied to all dealerships with GM franchises and to all car salespersons at Courtesy Chevrolet, including Petitioner. When Petitioner began working at Courtesy Chevrolet, the general manager was Paul Letso, who was eight or nine years older than Petitioner. Shortly thereafter, Mike Taylor was hired as the sales manager, and he was Petitioner's supervisor. Mike Taylor also was older than Petitioner, approximately 59 years old. Right away, Petitioner had problems working as a car salesman at Courtesy Chevrolet. Within a month or so after starting, he complained of "theft of my commissions" by other employees. He first spoke with the local human resources person at the dealership. She told him to report the problem to Bibi Bickram, who was the head of human resources for the region. Petitioner was given Ms. Bickram's cell phone number, and he contacted her, reaching her while she was at an airport. She got back with him a month later and told him that his manager, Mike Taylor, was handling the complaint. However, Mr. Taylor denied having heard about it, and Petitioner was not happy with the handling of his complaint. When Petitioner was first hired, he underwent training and orientation and was given a large amount of material, including an AutoNation Code of Business Ethics and an Associate Handbook, for which Petitioner signed acknowledgement forms. The form that Petitioner signed to acknowledge receipt of the Code of Business Ethics informed Petitioner that he had a number of options for reporting complaints, problems, or suspected violations of the code, of the law, or of any company policies. These options included notifying a manager, contacting someone in AutoNation's corporate or regional human resources departments, or calling the ACT-AlertLine. The ACT-AlertLine is a third-party administered, tip/complaint hotline where problems or complaints regarding any AutoNation dealership can be raised, anonymously or otherwise. The toll-free number for the ACT-AlertLine was provided in the document signed by Petitioner. In addition, the undisputed testimony was that flyers with the ACT-AlertLine are on display at the Courtesy Chevrolet employee break room. There was no credible evidence that before Petitioner was notified that he was being terminated, Petitioner ever utilized any of these options to notify anyone of problems or complaints, except for the single instance discussed above when Petitioner called Ms. Bickram's cell phone to complain about theft of his commissions. Petitioner's first full calendar quarter at Courtesy Chevrolet was October to December 2008. Based on his sales figures for his first full quarter, Petitioner was given a documented verbal counseling for inadequate work performance, followed by a written corrective action record. In pertinent part, this record provided: Facts and Events: Your performance for the months of October, November and December of 2008 were below target. They were as follows: ** October - you saw 20 customers, sold 1 unit - 5% closing ** November - you saw 22 customers, sold 3 units - 13.6% closing ** December - you saw 15 customers, sold 2 units - 15.1% closing Dealership closing percentage is 27%. Due to your low performance, it has negatively impacted your income and you are currently in the rears [sic: arrears] $2751.54. Required Improvement: The level of performance is below target and you must take action to improve. As a Sales Associate of Courtesy Chevrolet West Colonial, you are responsible for utilizing the company's processes and tools while maintaining an acceptable level of performance. You must maintain a 20% closing ratio each month. . . . Failure to achieve sustained improvement in units sold or other performance issues related to your role as Sales Associate . . . will result in further disciplinary action up to and including termination. Petitioner signed this corrective action record, without commenting in the space provided. At the final hearing, Petitioner claimed that some of the sales figures may have been incorrect, although Petitioner was not specific in this regard and presented no evidence to support his vague claim. Petitioner's claim, more than two years after the fact, is not credible, in light of Petitioner's failure to attempt to correct any errors that may have been in the report at the time he signed it or to otherwise complain about errors in his sales figures. Petitioner acknowledged that he was having trouble meeting his sales goals, but claimed that it was because he "was being harassed" by Paul Letso and Mike Taylor. Petitioner admitted that this asserted harassment had nothing to do with age discrimination, as he was substantially younger than either one of his managers. Petitioner claimed that these two older managers were always trying to blow up his deals, such as by starting arguments with Petitioner in front of potential customers. Business was not good in the auto industry during the time that Petitioner was employed by Courtesy Chevrolet in 2008 and 2009. Overall, there was a lot of consolidation in the industry and staff reductions. Several Chrysler dealerships closed as a result of Chrysler's bankruptcy, including two AutoNation dealerships in the region: Courtesy Chrysler Jeep in Casselberry and Courtesy Chrysler Jeep in Sanford. Other dealerships were under pressure as well. As noted above, one example of how the industry pressures came to bear on the dealerships was the establishment by GM of a new requirement in August 2008 that all car salespersons at its franchise dealerships had to sell at least six cars each month. Courtesy Chevrolet was not doing well. By May 2009, the general manager of Courtesy Chevrolet (one of the managers whom Petitioner claimed had been harassing him), was terminated. In June 2009, several managers and sales associates from the closed Chrysler dealerships were brought over to Courtesy Chevrolet, consolidating the sales forces. Todd Tyree, former manager of the Casselberry Chrysler dealership, was made general manager of Courtesy Chevrolet. Mr. Tyree, though young--in his 30s--had nearly 20 years of experience in the car dealership business, with substantial managerial experience. He was charged with the task of overhauling the dealership to upgrade its facilities, improve its operations, and conform its processes to AutoNation standards, which had been loosely followed or not followed at all previously. Two former managers from the Sanford Chrysler dealership, Mike Stachowicz and Ryan Matthews, were brought over to serve in managerial/supervisory positions in the sales department. Mr. Stachowicz was in his late 40s, approximately three years younger than Petitioner, with 28 years of experience in the car business. Mr. Matthews was younger, but he still had seven years' experience in the car business. The three managers embarked on an immediate effort to tighten up on procedures, spruce up the facilities, review and evaluate employees, and work with the sales staff to turn around the performance of the dealership. According to Petitioner, a sales meeting was held the day after the new managers arrived at Courtesy Chevrolet. Petitioner claims that at this meeting, Mr. Tyree stated that he wanted a young, aggressive sales staff. Petitioner stated that all three of the new managers were present at this meeting and that there were a number of other witnesses to the statement. Despite Petitioner's claim that there were many witnesses to Mr. Tyree's statement, no witness corroborated Petitioner's claim. Mr. Tyree denied making that statement and his testimony was credible in this regard. Messrs. Stachowicz and Matthews confirmed that they never heard Mr. Tyree make such a statement, although according to Petitioner, they were present at that meeting. Petitioner did not produce any other witness who could support Petitioner's claim that the statement was made. There is no evidence that Petitioner complained to anyone in the human resources department, to someone at the dealership, at a regional or national AutoNation office, or even anonymously to the ACT-AlertLine, right after Petitioner claimed the statement was made by Mr. Tyree on June 6, 2009. The first mention by Petitioner of the alleged statement by Mr. Tyree about a "young, aggressive" sales staff was after Petitioner received a monthly sales associate evaluation on June 15, 2009, putting in writing to him for the second time that improvement was needed for his sub-par sales performance; after Petitioner received another monthly sales associate evaluation on July 8, 2009, giving him the lowest rating of "below target" in the categories of meeting sales objectives and meeting profit objectives; and after Petitioner received a "final warning" counseling and corrective action record on July 13, 2009, reporting another three-month period of below-par sales and commissions that did not cover Petitioner's draw. Petitioner's June 15, 2009, evaluation was signed by Ryan Matthews, who was the general sales manager. It indicated that Petitioner had only "sometimes" achieved acceptable performance goals for sales and profit margins, a grade of "C" on a scale of "A" to "D." The evaluation comment was that one-on-one training was needed to improve performance. Mr. Matthews confirmed that he conducted one-on-one training sessions with Petitioner, including sales menu training, which focuses on how numbers are presented to customers; and training in product knowledge, an area found to be critically lacking at this dealership when the three new managers arrived. However, Mr. Matthews testified, as did the other new managers, that Petitioner was not at all receptive to training, improvement, or doing anything to change how he was used to doing things. Instead, he was stubbornly resistant to change and very combative with the new managers. Petitioner apparently resented being told that he was not performing up to standards and needed to improve. Petitioner tacitly acknowledged the new managers' point by testifying that he did not understand how the new managers could come in and evaluate sales associates after only a few short days at the new dealership and expressing skepticism that they could have any kind of meaningful perspective. However, it should have been clear to Petitioner from his prior evaluation, counseling, and corrective action record issued by the prior management team that the focal point for the dealership, and the measure of his performance, would, in large part, be on sales statistics: how many cars were sold and how big was the profit margin. The recent sales information for Petitioner that was available for the new management team to review in June 2009 showed that Petitioner was credited with selling a total of 10.5 cars during the months of February, March, April and May 2009. His best month, and the only month in his employment history with Courtesy Chevrolet in which the evidence showed that he met a six-car sales minimum, was in March 2009, when he sold six and one-half units. In February, he sold three cars; in April, he did not sell a single car; and in May, he sold one car. After Mr. Tyree arrived at Courtesy Chevrolet, he had Petitioner sign a written acknowledgement memorializing the GM requirement that sales associates had to sell six cars each month, with a rolling average of 18 cars every three months. Mr. Tyree testified that he had all of the Courtesy Chevrolet sales associates sign the form that he had utilized at his prior dealership to impress upon them what they already should have been aware was the requirement imposed by GM for the dealership.3/ As noted above, Petitioner was indeed aware of this requirement, acknowledging that GM adopted this rule in August 2008, although Petitioner continued to assert that he was somehow exempt. The monthly sales associate evaluation signed by Petitioner on July 8, 2009, was signed by Mike Stachowicz. This evaluation of continued low sales production, as well as low profit-per-vehicle, was based on Petitioner's sales performance in the month of June 2009, during which he sold two cars. By the end of June 2009, Petitioner had the highest amount of arrears (draws exceeding earned commissions), more by far than any other salesperson at Courtesy Chevrolet. Petitioner signed this evaluation and wrote the following comment on it: "WILL BE FILING COMMENTS BY NEXT WEEK." Petitioner did not elaborate, or explain the nature of the comments he intended to file. Petitioner's consistent sub-par performance continued, as did his resistance to changing how he went about his business so as to be open to improving his performance. For example, despite the fact that Saturdays are the busiest days of the week for car sales, Petitioner took off Saturdays once a month to pursue his hobby of bird-watching. While the new management was willing to accommodate Petitioner's request, the expectation was that Petitioner would be receptive to making changes to improve his car sales, whether it be giving up his bird-watching Saturdays or making up for it in other ways. When this did not happen, Petitioner received his "final warning" and corrective action record on July 13, 2009, from Michael Stachowicz. This record summarized Petitioner's below-target performance in April, May, and June, with an average car sale of only one car per month. The report reminded Petitioner: "You must maintain a level of 6 units sold monthly." Petitioner remained in arrears by several thousands of dollars. Petitioner signed this record, and his sole written comment in the space provided for comments was: "WILL BE FILING COMPLAINT SOON." Petitioner did not explain his comment or volunteer any information about the nature of the complaint he was going to file. The corrective action record signed on July 13, 2009, stated that there would be a meeting in 30 days to evaluate Petitioner's progress and review his "implementation of specific actions to improve units sold." However, after just a few weeks in which the managers saw no sign of any specific actions being taken by Petitioner to improve his overall performance and no change in his attitude with regard to being resistant to change and combative, Mr. Tyree made the decision to terminate Petitioner's employment. Through the month of July, Petitioner's three-month rolling average was 2.166 units per month, well below the target of six units per month, and Petitioner was still in arrears by several thousands of dollars. Indeed, there was no evidence presented that Petitioner ever earned more commissions, for any period of time, than he took out in draws.4/ The termination action record was signed July 31, 2009, which was Petitioner's last day of employment, and he was terminated effective August 1, 2009. On August 3, 2009, a written complaint by Petitioner that he sent on July 28, 2009, to the AutoNation Human Resources Department in Fort Lauderdale, Florida, was received and provided to the ACT-AlertLine to log in. The complaint was then turned over to Bibi Bickram, the human resources specialist, to conduct an investigation. This written complaint by Petitioner was a five-page, single-spaced, rambling diatribe, which lobbed assorted accusations of harassment by the three new managers at Courtesy Chevrolet. The complaint alleged that Mr. Tyree "gawked" at another employee; that the female employee who was "gawked" at had violated safety regulations by coming to work in flip flops; that Michael Stachowicz showed favoritism to another female employee; that some salespersons had to work more hours than other salespersons; that one employee was absent too much; that gay customers had been made fun of; and that some employees have already been given evaluations by the new managers that had "no reflections on actual reality." Ms. Bickram conducted a thorough investigation in which she interviewed numerous sales associates, reviewed records, talked to the managers, contacted Petitioner to see if he wanted to add anything, and then prepared a detailed report that analyzed, point by point, each and every complaint raised in Petitioner's written complaint. Ms. Bickram found all of the complaints unsubstantiated, with the exception of one complaint regarding scheduling inequity, found to be partially substantiated and corrected. None of the complaint issues raised and investigated had anything to do with age discrimination. Months later, in October 2009, in connection with proceedings regarding Petitioner's entitlement to unemployment compensation, Petitioner prepared another detailed document setting forth a timeline of his view of events at Courtesy Chevrolet. This document was also logged in with the ACT-AlertLine and turned over to Ms. Bickram as a follow-up complaint to the written complaint received on August 3, 2009. The October 2009 timeline document included Petitioner's claim that in a June 6, 2009, sales meeting, the day after Mr. Tyree assumed the position of general manager, he had allegedly stated that he wanted a "young, aggressive sales staff." This claim was investigated for the first time by Ms. Bickram as part of her follow-up complaint investigation; Petitioner did not include this allegation in the July 28, 2009, written complaint. Ms. Bickram's report, issued on December 4, 2009, found that in her interviews of numerous sales associates regarding the sales meetings conducted by the new general manager, none of the associates mentioned anything about inappropriate comments. Ms. Bickram also interviewed Mr. Tyree and reported that he denied making any such statement. Further, Ms. Bickram noted that the "current sales staff ranges in age from 33 to 54," so there had been no youth movement under the new management, as one would assume would have occurred following that alleged statement. Petitioner submitted to the FCHR as part of his complaint in 2010 and offered into evidence at the hearing, a two-page letter from Petitioner to "Bebe" in human resources. On the first page, the date is typed in as "July [day obscured], 2009." On the second page, just above Petitioner's signature, the following date reference is typed in: "Post dated July 9, 2009 to be changed and signed at a later date." In this letter of uncertain actual date, Petitioner reported to "Bebe" that since his first verbal complaint to her "regarding thief [sic] of my money," he had "been subject [sic] to NON-STOP harassment" including the following itemized examples: Deliberately blowing deals by 2 General Managers, 2 General Sales managers and 3 Sales Managers. Prejudice towards GAY customers. . . Lying to customers. Having other employees, who were friends of Ian M. Simpson's, harassed and written up . . . At a meeting on June 6, 2009, Todd Tyree made a comment which insulted most of the employees at the meeting. He stated that he wanted a young and aggressive, sales staff. . . . Petitioner testified that he hand-wrote the number "13" in the date on the first page so that the letter was dated July 13, 2009. However, a handwritten date, whether 13 or some other number, cannot be discerned on the letter admitted into evidence. Petitioner's testimony was that he put the letter on Ms. Bickram's desk in her office at the Courtesy Chevrolet dealership on July 13, 2009. Petitioner claims to have personally laid the letter on her desk. While Petitioner said that he "never saw [Ms. Bickram] in the office," he also claimed that he "saw her later on that day reading the complaint." He admits he did not discuss the complaint with her at that time, stating that he "thought she would have to have time to review it." Petitioner's testimony regarding his delivery of the letter on July 13, 2009, was not credible. Ms. Bickram testified that she never received the letter Petitioner claims to have left for her on her desk. Ms. Bickram explained, credibly, that she is in her office that she maintains at Courtesy Chevrolet one or two times per week and that when she is not in the office, even if she is just out for lunch, she keeps the office locked. Others do not enter her office to leave her mail or to take items from her desk; she uses her other office at a different Courtesy location as the primary office where she receives and processes her mail. Therefore, it would not have been possible for Petitioner to have entered her office when she was not there, as he claimed, to leave a letter on her desk. It is also not credible that Petitioner would not have attempted to discuss the complaint with Ms. Bickram if, as Petitioner claimed, he had seen her reading the letter later that day. Petitioner had recently received two sub-par evaluations from the new management, and on that same day, Petitioner had received his "final warning" based on his failure to approach meeting the stated sales target of six cars per month. Petitioner had to know, with nothing but sub-par performance evaluations, below-target sales, and consistent draws exceeding commissions, his time was running out. The more credible testimony and evidence establish that Petitioner did not lodge his complaint of an age-related comment by Mr. Tyree until well after Petitioner was terminated, and that claim was contrived and not genuine. With the exception of Petitioner's claim of a single age-related comment attributed to Mr. Tyree and found not credible, Petitioner presented no direct or circumstantial evidence of any discrimination against him based on his age. To the contrary, Petitioner complained equally about harassment by former managers who were older than he and by the new management team who were younger than, or about the same age as, Petitioner. Petitioner claimed that younger and older managers alike tried to blow up his sales, started arguments with him while he was with customers, gave deals away to other salespersons, and were to blame for Petitioner's consistent sub-par sales performance and Petitioner's consistent failure to earn enough commissions to cover his draws. Petitioner's complaints have nothing to do with his age; instead, Petitioner's complaints are his attempt to blame all others, young and old alike, for his consistent failure to achieve the work performance standards set by Respondents. No credible evidence was presented to establish that Petitioner's termination was in retaliation for Petitioner's complaint about age discrimination. The more credible evidence established that Petitioner did not communicate any complaint about age discrimination until after he was given his termination notice. After Petitioner was terminated from Courtesy Chevrolet, he was hired as a car salesman at Toyota of Orlando, He started working there on December 15, 2009. After about a month and a-half, he was terminated. The reason for Petitioner's termination was not established in the record. Petitioner has been unemployed since being terminated by Toyota of Orlando and has gone back to school. No evidence was presented regarding Petitioner's efforts, if any, to obtain substantially equivalent employment, besides his brief experience with Toyota of Orlando.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Ian Simpson's Petition for Relief. DONE AND ENTERED this 25th day of August, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 25th day of August, 2011.
The Issue The issue is whether Nissan North America, Inc.'s (Nissan) rejection of the proposed transfer of the equity interest in Love Nissan, Inc. (Love), from Robert Halleen and Chad Halleen to Marilyn Halleen, is in violation of the laws regulating the licensing of motor vehicle dealers and manufacturers, maintaining competition, providing consumer protection and fair trade and providing minorities with opportunities for full participation as motor vehicle dealers, as set forth in Sections 320.61-320.70, Florida Statutes.
Findings Of Fact Nissan is a "licensee" as defined by Section 320.60(8), Florida Statutes. Love is a "motor vehicle dealer" as defined by Section 320.60(11)(a)1, Florida Statutes. Love serves a territory centered on Homosassa, Florida. Nissan and Love are parties to a Dealer Sales and Service Agreement (Agreement), which is an "agreement" or "franchise agreement," as defined by Section 320.60(1), Florida Statutes. Robert Halleen and Chad Halleen became owners of Love as the result of a 1999 gift of the equity of Love from Robert's father and Chad's grandfather. Subsequent to the donation, Robert became a 90 percent owner of Love and Chad became a ten percent owner. Robert Halleen and Chad Halleen entered into the Agreement with Nissan on March 4, 1999. Since that time Robert Halleen has served as the Dealer Principal and Principal Owner of Love Nissan, and Chad Halleen has served as the Executive Manager and Other Owner. The Agreement has never been amended. The Agreement clearly states that Nissan relied on the personal qualifications of the Principal Owner, Other Owner, and Executive Manager in entering into the Agreement. In addition to personal qualifications, the Agreement recites expertise, reputation, integrity, experience, and ability, as characteristics expected of the Principal Owner, Other Owner, and Executive Manager. Since Robert and Chad Halleen became owners of Love the dealership has never met the regional average sales penetration. The regional average sales penetration is the measurement used by Nissan to evaluate the sales performance of each of its dealers. Subsequent to the inception of the Agreement, Nissan has issued multiple Notices of Default to Love citing Love's poor sales performance. In an effort to facilitate Love's success, Nissan contracted their primary market area on several occasions. This and other efforts to bolster Love's performance failed. As a result, Nissan issued a Notice of Termination of the Dealer Sales and Service Agreement between itself and Love, dated April 1, 2004. This precipitated a protest and a formal hearing before Administrative Law Judge Ella Jane Davis who recommended that DHSMV dismiss the protest and ratify the Notice of Termination. As noted above, DHSMV has not issued a final order. Because it has not, and because an appeal could follow, Nissan has not yet entered into a franchise with a new dealer for the Homosassa primary market area. It is Nissan's intention to award the area to a qualified minority candidate. Eleven days after the issuance of Judge Davis's order, on July 25, 2005, Robert and Chad Halleen notified Nissan of their intent to sell all of their stock in Love to Marilyn Halleen. In a short letter to Nissan, the selling price was said to be $100 with an increase to $5,000,000 should the sale ultimately be made to a third party. The dealership, if sold on the open market, would bring much more than $100. It could sell for as much as five million dollars. The letter also averred that there would not be a change in the executive management. The decision to sell all of the stock in Love to Marilyn Halleen was made by Robert Halleen. Chad Halleen was instructed by his father to comply with his decision to sell and he did as instructed. Prior to the issuance of Judge Davis's Recommended Order, Robert and Chad Halleen decided that if the termination case had an unfavorable outcome, they would avoid it by selling Love to a family member. They attempted to give effect to this course of action by discussing with Robert Halleen's father the possibility of transferring ownership to him. Robert and Chad Halleen desired to keep the dealership in the family and to ensure that Chad remained employed. Pursuant to the contemplated transfer to Robert Halleen's father, Chad Halleen would continue as Executive Manager, which was also the case in the proposed transfer to Marilyn Halleen. The discussion with Robert Halleen's father did not ripen into a course of action. During their tenure at Love, Robert and Chad Halleen informally divided the operational responsibilities between themselves. Chad Halleen was primarily responsible for the sales department and Robert Halleen focused on supervising the day-to-day operations of the parts, service, and accounting departments. However, it is clear that Robert Halleen, has been since the inception of the Agreement, and was, at least up to the date of the formal hearing, in ultimate overall charge of all of the operations of Love. Robert Halleen asserted at the hearing that he would abandon his role in the management of Love. Love attempted to prove that Chad Halleen was capable of successfully managing the operation without the aid of his father. However, the evidence taken as a whole, indicated that he had never operated the dealership without the assistance of Robert Halleen and that he would have difficulty doing so without that assistance. Subsequent to the proposed transfer, the management of Love would, allegedly, consist of Marilyn Halleen and Chad Halleen. They would be, under the Agreement, the "executive management," which is the term used in the Agreement to describe the Dealer Principal and the Executive Manager. It is not necessary under the Agreement, for a Dealer Principal to be actively involved in the daily business of the dealership, and because a Dealer Principal may own dealerships in more than one geographical area, it is not unusual to find a Dealer Principal who is not active in the day-to-day management of dealerships she or he owns. However, in this case it is contemplated, and Marilyn Halleen has so stated, that she and Chad Halleen would operate the business together. Currently, Marilyn Halleen's participation in the operation of the dealership has been working as a bookkeeper in the accounting department. Marilyn Halleen stated that should the transfer be approved, she would make the decisions about running the dealership, how the dealership is capitalized, new car sales, used car sales, allocation and ordering, marketing, management of the parts and service departments, and all of the other myriad responsibilities incumbent on a manager of an automobile dealership. However, her work experience does not qualify her to successfully accomplish all of these tasks and this plan is contrary to the assertion in the notice to Nissan that there would be no change in executive management. Marilyn Halleen has never owned a dealership or any other business. Her management experience is limited to filling a position as an office manager in a Buick dealership many years ago. In various automobile dealerships she has worked as a title clerk, receptionist, cashier, and in a warranty department. Prior to becoming bookkeeper at Love she worked full-time selling cosmetics for Mary Kay. Nissan was unaware of the details of Marilyn Halleen's business experience, or lack of it, at the time they determined that they would reject the proposed transfer. However, the notice to Love that the proposed transfer was rejected, dated September 20, 2005, recited in the attachment that the rejection was based on Nissan's belief the transfer was a sham. Marilyn Halleen's lack of experience is evidence tending to prove that the transfer was a sham. To find as a fact that Robert and Chad Halleen were really going to give Marilyn Halleen complete ownership and control over Love would require a suspension of disbelief. Having observed the lackluster performance of Robert and Chad Halleen over a five-year period, Nissan reasonably concluded that Marilyn Halleen was unlikely to ramp up Love's performance. Although Section 320.943(2), Florida Statutes, does not require that a transfer of an equity interest be at arms- length, the fact that a purported transfer is not an arms-length transaction, when considered with other evidence, may tend to demonstrate, as it does in this case, that the purported transfer is a sham. The fact that the purchase price is remarkably below market value does not in every case mean that a purported transfer is a sham. Under the facts of this case, however, the below market sales price tends to prove that the purported transfer is illusory. The evidence, taken as a whole, proves that the purported transfer is an artifice or device designed to avoid the consequences of the poor performance of Love while under the command of Robert and Chad Halleen. Thus the proposed transfer is not a real transfer; it is a sham designed to avoid Judge Davis's Recommended Order upholding the termination. Marilyn Halleen, although a human being separate from her spouse and off-spring, cannot be considered "any other person or persons." She is the alter ego of Robert and Chad Halleen and, should the transfer be approved, the evidence demonstrates she will be a mere agent or tool of the current owners and the inept management of Love will continue. It was not proven that Marilyn Halleen lacked good character as that term is used in Section 320.643(2), Florida Statutes, which governs the transfer of an equity interest in a dealership. The question of whether or not the proposed transfer involved a change in executive management at Love, which might trigger consideration of Section 320.643(1) or 320.644, Florida Statutes, a question advanced by Nissan, at the hearing, and in Nissan's Proposed Recommended Order, need not be addressed for the reasons set forth in paragraph 23, above. In order for those sections to be invoked there must first be a valid transfer.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Highway Safety and Motor Vehicles enter a Final Order stating that pursuant to Nissan's verified Petition for Determination of Invalid Proposed Transfer Pursuant to Section 320.643, Florida Statutes, and Notice of Rejection of Proposed Transfer, no transfer under Section 320.643, Florida Statutes, is proposed and Nissan's rejection of it was proper. Further, the Department of Highway Safety and Motor Vehicles should enter a Final Order dismissing Robert Halleen and Chad Halleen's Petition for Determination of Wrongful Turndown. DONE AND ENTERED this 18th day of January, 2006, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2006. COPIES FURNISHED: Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0500 S. Keith Hutto, Esquire Nelson, Mullins, Riley & Scarborough, LLP 1320 Main Street Columbia, South Carolina 29201 Dean Bunch, Esquire Sutherland, Asbill & Brennan, LLP 3600 Maclay Boulevard South, Suite 202 Tallahassee, Florida 32312-1267 John W. Forehand, Esquire Lewis, Longman & Walker, P.A. 125 South Gadsden Street, Suite 300 Tallahassee, Florida 32301-1525 Alex Kurkin, Esquire Pathman Lewis, LLP One Biscayne Tower, Suite 2400 Two South Biscayne Boulevard Miami, Florida 33131 Carl A. Ford, Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B-439 Tallahassee, Florida 32399-0600 Enoch Jon Whitney, General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399-1701
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s withdrawal of his objection to the establishment of a new dealership, filed April 5, 2011. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Scott Koster d/b/a Sunrise Scooters, Inc., be granted a license for the sale of motorcycles manufactured by Taizhou Chuan! Motorcycle Manufacturing Co. Ltd. (CHUA) at 1923 South Federal Highway, Fort Lauderdale (Broward County), Florida 33316, upon compliance with all applicable requirements of Section 320.27, Florida Statutes, and all applicable Department rules. Filed April 19, 2011 12:28 PM Division of Administrative Hearings DONE AND ORDERED this Sh day of April, 2011, in Tallahassee, Leon County, Sandra C. Lambert, Seon Director Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Florida. Filed with the Clerk of the Division of Motor Vehicles this_+Y day of April, 2011. alias Virogsl ‘Ramninistrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Noel Farbman USA Wholesale Scooters, Inc. 4316 North Dixie Highway Oakland Park, Florida 33334 * eel \ “FotattainimbA eango 1elsa ,AByeniV ini Scott Koster Sunrise Scooters, Inc. 300 Southwest 7 Street Fort Lauderdale, Florida 33316 Gloria Ma EI Sol Trading, Inc. 19877 Quiroz Court City of Industry, California 91789 Robert E. Meale Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
The Issue The issue in this case is whether Respondents committed the offenses described in an Administrative Complaint entered by Petitioner on or about January 10, 1997.
Findings Of Fact Petitioner, The Department of Agriculture and Consumer Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department is charged with responsibility for enforcing the Florida Motor Vehicle Repair Act, Sections 559.901-559.9221, Florida Statutes (hereinafter referred to as the "Act"). Respondent, Adam's Street Muffler Shop and Service Center, Inc. (hereinafter referred to as "Adam's Street Muffler"), is a dissolved Florida corporation. Adam's Street Muffler is located at 1401 South Adam's Street, Tallahassee, Leon County, Florida. Adam's Street Muffler is registered with the Department under the Act as a motor vehicle repair shop. The Department has assigned registration number MV-15484 to Adam's Street Muffler. Respondent, Tim Tanner, is the owner and operator of Adam's Street Muffler. At the time that Adam's Street Muffler register pursuant to the Act, a registration packet, including a copy of the Act, was provided to Adam's Street Muffler. On July 24, 1995, Robert Dan Drake, an investigator with the Department's Bureau of Motor Vehicle Repair, went to Adam's Street Muffler. Mr. Drake performed a compliance audit to determine whether repair estimate statements and invoices for services were in compliance with Sections 559.905 and 559.911, Florida Statutes. A copy of the repair invoice provided by Adam's Street Muffler personnel to Mr. Drake was determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. See Petitioner's Exhibit 9. Mr. Drake discussed the requirements of the Act pertaining to repair estimates and invoices with Peggy Folsom, the secretary for Adam's Street Muffler. Mr. Drake also provided an On-Site Inspection Report/Citation (Petitioner's Exhibit 7), and a Compliance Checklist/Citation (Petitioner's Exhibit 8), to Ms. Folsom. These forms described the deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. Adam's Street Muffler was given thirty days to correct the repair estimate and invoice. A revised form was submitted to the Department. See Petitioner's Exhibit 10. The corrected form was accepted by the Department. On July 1, 1996, Mr. Drake returned to Adam's Street Muffler. Mr. Drake discovered that the repair estimate and invoice used by Adam's Street Muffler for a complaining customer was the same form that he had found to be deficient on July 24, 1995. See Petitioner's Exhibit 12. Mr. Drake issued a second On-Site Inspection Report/Citation to Adam's Street Muffler as a result of the July 1, 1996 visit. Petitioner's Exhibit 11. The report again described the specific deficiencies with the repair estimate and invoice form being used by Adam's Street Muffler. On October 1, 1996, Mr. Tanner paid a $300.00 fine for violating Sections 559.905 and 559.911, Florida Statutes. On December 1, 1996, two months after Mr. Tanner paid the fine, and approximately six months after the second violation of the Act, Dan Keller, an employee of the Department, visited Adam's Street Muffler. Mr. Keller examined forms titled "Repair Orders" in the files of Adam's Street Muffler. The forms discovered by Mr. Keller were determined not to be in compliance with Sections 559.905 and 559.911, Florida Statutes. Petitioner's Exhibits 1-5. The forms copied by Mr. Keller on December 1, 1996, were used as repair estimates and invoices for services performed. The evidence failed to prove when the vehicles at issue were brought to Adam's Street Muffler, that they were not brought to Adam's Street Muffler by person other than the owner, or that Adam's Street Muffler did not notify the customer pursuant to Section 559.909(1), Florida Statutes. None of the owners of the vehicles to which Petitioner's Exhibits 1-5 relate have filed a complaint with the Department concerning work performed by Adam's Street Muffler. The repairs evidence by Petitioner's Exhibits 1-5 were for repair work costing in excess of $50.00. The forms taken from Adam's Street Muffler on July 24, 1995, July 1, 1996, and December 1, 1996 are incorporated into this Recommended Order by reference. On or about January 10, 1997, the Department entered an Administrative Complaint against Adam's Street Muffler and Mr. Tanner. The Administrative Complaint contains two counts against Respondents: one for alleged violations of Section 559.905, Florida Statutes, and one for alleged violations of Section 559.911, Florida Statutes. Both counts relate the forms obtained by the Department in December of 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Agriculture and Consumer Services finding that Adam's Street Muffler Shop and Service Center, Inc., a Florida Corporation, and Tim Tanner, individually and as Director of Adam's Street Muffler Shop and Service Center, Inc., violated Section 559.911, Florida Statutes, as alleged in the Administrative Complaint entered January 10, 1997. IT IF FUTHER RECOMMENDED that Respondents be required to pay an administrative fine of $1,000.00 within thirty days of the date that the Final Order becomes final and the motor vehicle repair shop registration, MV-15484, issued to Respondents be suspended for a period of two weeks. DONE AND ENTERED this 27th day of June, 1997, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997. COPIES FURNISHED: Lawrence J. Davis, Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 J. Joseph Hughes, Esquire 1017-A Thomasville Road Tallahassee, Florida 32303-6221 Honorable Bob Crawford Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810 Brenda Hyatt, Chief Department of Agriculture and Consumer Services Bureau of Licensing and Bond 508 Mayo Building Tallahassee, Florida 32399-0800
The Issue As to Case No. 96-5539, whether the Respondent, Dynotech Automotive, Inc., committed the violations alleged in the administrative complaint dated October 22, 1996; and, if so, what penalty should be imposed. As to Case No. 96-5463, whether Supertech Automotive, Inc. (the alleged successor to Dynotech) is entitled to registration as a motor vehicle repair shop under the provisions of Section 559.904, Florida Statutes.
Findings Of Fact At all times material to the allegations in this matter, Respondent Dynotech was a motor vehicle repair shop registered under the provisions of Section 559.904, Florida Statutes, located at 2240 North Military Trail, West Palm Beach, Florida. At all times material to the allegations of this matter, Respondent Supertech was an applicant for registration as a motor vehicle repair shop charged with doing business without being appropriately registered, which was also located at 2240 North Military Trail, West Palm Beach, Florida. The Petitioner is the state agency charged with the responsibility of regulating and disciplining motor vehicle repair shops under Florida law. At all times material to the allegations in this matter, Theodore (Ted or Teddy) Russo was the president and manager of Dynotech. Mr. Russo’s home address is listed as 1604 Hollyhock Drive, Wellington, Florida. Prior to June 18, 1996, the Department commenced an investigation of Dynotech based upon suspected acts in violation of Chapter 559, Florida Statutes. In furtherance of the investigation the Department sent investigators with three vehicles to West Palm Beach for use in the operation. One vehicle driven by Investigator Tony Golino went to the Dynotech premises on June 18, 1996. After giving Mr. Russo a story about having just inherited the vehicle and being on the way back to New York, Investigator Golino requested an oil change and Dynotech’s free air conditioner inspection. Immediately prior to taking the vehicle to Dynotech, Investigator Golino’s vehicle had been thoroughly evaluated by a certified mechanic for any repair which might be needed to the air conditioning system. The vehicle, a 1989 Buick, checked out with no problems. On June 19, 1996, when Investigator Golino returned to Dynotech to pick up the vehicle, he was charged $358.94 for the requested oil change, the free air conditioner inspection, and for an evac and recharge together with an “acculmater.” Of the foregoing work, only a charge of $14.95 was required for this vehicle (the oil change cost). Investigator Golino had been verbally advised that if the evac and recharge were necessary the cost for same would be approximately $105.00 or $110.00. No estimate was given to him for the “acculmater” which was charged. Investigator Golino had not been given any written estimate for the work which was to be performed on the Buick. When the Buick was returned for inspection by the Department, Mr. Bullard found that the oil had been changed and that a new accumulater had been installed. Donald Bullard is a certified mechanic with 30 years of experience. An evac and recharge of the air conditioning system is appropriate if the system is not performing within acceptable standards. The evac and recharge is the process of cleaning the freon in order to allow it to do its work more efficiently. The freon is removed from the vehicle (evac), run through a machine for cleaning, then returned to the vehicle (recharge). This process takes less than an hour. An accumulator is a device which takes moisture out of the vehicle. The Buick driven by Investigator Golino did not need a new accumulator. On June 20, 1996, Jack Hill, another investigator with the Department, took a Plymouth van to Dynotech for an oil change and free air conditioner inspection. This vehicle had also been inspected beforehand and had been fully repaired so that it was in proper working order prior to being driven to Dynotech. Dynotech billed Investigator Hill $95.45 for the work performed on the van and alleged that it had added freon to the air conditioning system. No cost should have been billed for the van as a coupon for a free oil change was used. Additionally, the van did not require an evac and recharge nor freon. A third vehicle, a Ford Tempo, was taken to Dynotech by the Department’s investigator Fred Barnsdale on June 19, 1996. Like the others, prior to being driven to Dynotech the Tempo was inspected and evaluated by Mr. Bullard. The air conditioning system worked properly and did not require an evac and recharge. With regard to the Tempo, Dynotech billed for an evac and recharge which were unnecessary. Glen Eakin, Louis Vincent Zauss, and Michael David Baranowsky are certified mechanics formerly employed by Dynotech. All were hired and supervised by Mr. Russo. During their employment with Dynotech, each was instructed by Mr. Russo to perform work which was unnecessary. In some instances customers were billed for work which was not performed. In some instances customers who were to receive free services were advised work had been performed which was not done. Dynotech paid mechanics a flat hourly rate based upon service work performed. Mechanics did not receive compensation for parts sold in connection with repairs. Dynotech billing was reviewed and approved by Mr. Russo. Mr. Russo was aware of the work performed or not performed by Dynotech’s mechanics. Johnni Angel began working at Dynotech to help Mr. Russo out. Ms. Angel came on board as the receptionist/secretary for the company. She resides with Mr. Russo and decided to incorporate Supertech one day after Dynotech was suspended from doing business by the Department. Ms. Angel intended to operate Supertech from the same business location and retained Mr. Russo to continue the management of the premises. All of the mechanics formerly employed by Dynotech now worked for Supertech and continued to answer to Mr. Russo regarding the day-to-day activities of the business. Ms. Angel is the sole owner of Supertech, she obtained a new tax identification number for the business, and opened new bank accounts. All other aspects of the business operation remained as it had when under the Dynotech name. Ms. Angel filed an application for registration as a motor vehicle repair shop with the Department on November 7, 1996. Estimates and invoices from Supertech established that the company had been operating without being registered as required by law. The invoice forms used by Supertech did not contain a statement indicating what, if anything, was guaranteed in connection with the repair work. Such forms also did not contain the time and mileage period for which the guarantee was effective. Supertech’s written motor vehicle repair estimate and disclosure statements did not contain the proposed work completion date; the customer’s intended method of payment; the name and telephone number of another person who may authorize repair work, if the customer desired to designate such person; a statement allowing the customer to indicate whether replaced parts should be saved for inspection or return; or a statement indicating the daily storage charge for the customer’s vehicle after the customer had been notified that the repair work had been completed. Supertech’s application for registration did not contain a State of Florida tax identification number.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter final orders confirming the suspension and revoking the registration for Dynotech, imposing an administrative fine in the amount of $3,000.00, and denying Supertech’s application for registration as a motor vehicle repair shop. DONE AND ENTERED this 2nd day of June, 1997, in Tallahassee, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1997. COPIES FURNISHED: Lawrence J. Davis Senior Attorney Department of Agriculture and Consumer Services Room 515, Mayo Building Tallahassee, Florida 32399-0800 James R. Merola, Esquire JAMES R. MEROLA, P.A. 11380 Prosperity Farms Road, Suite 204 Palm Beach Gardens, Florida 33410 Brenda Hyatt, Chief Department of Agriculture and Consumer Services 508 Mayo building Tallahassee, Florida 32399-0800 Richard Tritschler, General Counsel Department of Agriculture and Consumer Services The Capitol, PL-10 Tallahassee, Florida 32399-0810
The Issue Whether Petitioner, a member of a protected class, was demoted from her position as an Assistant Business Manager with the Respondent on February 22, 1988 on the basis of her sex (female), in violation of Section 760.10(1)(a), Florida Statutes (1989) Whether Petitioner, a member of a protected class, was discharged from her position as automobile salesperson with the Respondent on March 23, 1988 on the basis of her sex (female), in violation of Section 760.10 (1)(a), Florida Statutes (1989).
Findings Of Fact 12(a). Interpersonal relations and attitude training were not part of the skills training provided by Respondent to employees in the Assistant Business Manager's position. Personnel were expected to have developed such skills prior to their promotion to that position. 12(b). Petitioner brought the attitude and interpersonal skills which she had developed in sales with her to the new position. 12(c). In her position in sales, Petitioner was aggressive, outspoken, and forthright in dealing with her peers and with management. In spite of unfair, rude or obnoxious behavior toward her by other sales persons or her T.O., Petitioner took steps to insure that she met or exceeded her sales quota each month prior to her promotion. 12(d). These attributes, which were beneficial for her in an aggressive and competitive sales environment, were counterproductive in the Assistant Business Manager's position. Team work, with sales personnel and management, and a reassuring and persuasive personality were essential for success. Instead, Petitioner was in constant conflict with management and sales personnel over the closing of "deals." 13(a). Mike Pinto, the Business Manager, spent the same or greater time providing on the job training with Petitioner as with other similarly situated male employees. 13(b). When the Business Manager was not available for consultation with Petitioner, in January, 1988, due to a tent sale, other Assistant Business Managers, knowledgeable in the position, were available to answer Petitioner's questions. 13(c). Petitioner testified that her peers refused to allow her to sit in and observe their transactions with a client, as she requested. Standing alone, this conduct is insufficient to demonstrate disparate treatment in the training as an Assistant Business Manager. * * * The work environment between peers in sales at the Respondent's dealership was uncivil, rude, manipulative, hostile and highly competitive. It was common practice for sales personnel to harass and demean each other in an effort to be the "outstanding salesperson" for the month. Although sales personnel were ostensibly assigned to "teams", each salesperson was in direct competition with their team member. In order to retain their position at Respondent's dealership, a person in sales was expected to sell a minimum of ten units per month or their job was in jeopardy. Prior sales performance had minimum impact in retaining their position with the company. When a new customer came on to Respondent's lot, each salesperson had to be alert and position themselves so that they could be the first person to approach the customer. If that customer did purchase a vehicle, then the salesperson who "worked the deal" would be entitled to the commission. Therefore, aggressive sales people would devise various methods whereby they could be the first on the scene to approach a customer. It was common practice for male salespersons to lure female sales associates away from the lot during busy times. This was done by having them go out for sandwiches at lunch or to pick up their dry cleaning or do other errands. Male salespersons were not expected to run such errands during their working hours. During the period June 17, 1987 through January 10, 1988, when she was promoted, Petitioner steadfastly refused to participate in the subterfuge and no adverse employment decision was made against her. Therefore, the unfair labor practices employed by one salesperson against another at Respondent's dealership cannot be said to be gender based. The work environment fostered by management at Respondent's dealership toward its employees in sales and the Business Managers positions was uncivil, hostile, manipulative, arbitrary, capricious, secretive and unprofessional. However, from the evidence adduced at hearing, such conduct was not gender based. Due to the hostile work environment fostered by management, there was massive turnover in the sales and the Assistant Business Managers positions by both male and female employees. Terminations, both voluntary and involuntary, promotions, demotions, and latteral transfers took place at an astonishing pace. The evidence was insufficient to show that it was gender based. There was insufficient evidence to support a finding of hostile work environment based on gender. There was insufficient evidence to support a finding of sexual harassment directed to Petitioner. SUPPLEMENTAL CONCLUSIONS OF LAW In the instant case, the essential questions are whether the Petitioner has demonstrated, by a preponderance of the evidence, that the true reason for her demotion and eventual firing was intentional sex discrimination, and/or whether Petitioner was subject to harassment based on her gender or whether Petitioner was subject to a hostile work environment fostered by Respondent towards female employees. Although the testimony showed that the work environment fostered by Respondent was hostile and sales and entry level management personnel were subjected to constant harassment and threats to maintain sales quotas of face demotion or dismissal, the evidence was insufficient to show that such conduct created a pervasive hostile work environment that was gender based. As the Eleventh Circuit Court of Appeal stated in Nix v. WLCY Radio, 738 F.2d 1183, reh.denied 747 F.2d 710 (11th Cir. 1984), as follows: Title VII is not a shield against harsh treatment in the work place [citation omitted] nor does the statute require the employer to have good cause for his decisions. The employer may fire an employee based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason [citations omitted]. While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employers stated legitimate reason . . . does not have to be a reason the judge or jurors would act on or approve. [citations omitted]. That is certainly the situation is this case. Respondent's reasons for demotions and firing of its employees both male and female, sales and management, certainly appears to have been arbitrary and capricious. However, the proof was insufficient to prove that its action was for a discriminatory reason. See also: St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993).
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be issued which DENIES the Petition for Relief. DONE AND ENTERED this 19th day of March, 1990, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 19th day of March, 1990. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Proposed Findings of Fact Submitted by Petitioner: Accepted: Paragraphs 2 (in substance), 12. Rejected as against the greater weight of the evidence or irrelevant : Paragraphs 1, 3-11. Proposed Findings of Fact Submitted by Respondent: Accepted: Paragraphs 1,2,3,4,5,6,7,8,9,10,11,12,13 (in substance), 14 (in substance), 15 (in substance), 16, 17,18,19,20,22,23,25 (in substance), 26-33 (in substance), 34, 35-36 (in substance), 37, 38, 43 (in substance), 44,45,46,47,48,49,50,51,52,53,54-57 (in substance), 58 (in substance), 59-69 (in substance), 70,71,72-84 (in substance), 85,93,116,117,122,138. Rejected as irrelevant, subsumed or repetitive: 21, 24, 39-42, 86-92, 94-115, 118-121 (irrelevant), 123-137, 139-162. COPIES FURNISHED: Jeff Sapper, Representative Dana Baird 14052 Lake Tilden Boulevard General Counsel Winter Garden, FL 32787 Florida Human Relations Commission Kathryn L. Moon 325 John Knox Road 6460 Yellowstone Street Building F, Suite 240 Orlando, FL 32807 Tallahassee, FL 32399-1925 Leo P. Rock, Jr., Esquire Gray, Harris and Robinson, P.A. Post Office Box 3068 Orlando, FL 32802 Margaret Jones, Clerk Florida Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925 ================================================================= AGENCY REMAND ================================================================= STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS KATHRYN MOON, Petitioner, EEOC CASE NO. 15D881979 FCHR CASE NO. 88-7405 JIMMY BRYAN TOYOTA, INC., DOAH CASE NO. 89-1895 Respondent. FCHR ORDER NO. 90-025 / ORDER REMANDING PETITION FOR RELIEF FROM AN UNLAWFUL EMPLOYMENT PRACTICE Panel of Commissioners The following three Commissioners participated in the disposition of this matter. Commissioner Learna G. Ramsey, Chairperson; Commissioner Elena Flom; and Commissioner Ralph P. Mangione. Appearances For Petitioner Kathryn Moon: No appearance. For Respondent Jimmy Bryan Toyota, Inc.: Leo P. Rock, Jr., Esquire, Gray, Harris and Robinson, Suite 1200 Southeast Bank, 201 East Pine Street, Orlando, Florida 32801. Preliminary Matters Kathryn Moon, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1989), alleging that Jimmy Bryan Toyota, Inc., Respondent herein, unlawfully discriminated against Petitioner on the basis of sex. In accordance with the Commission's rules the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of the investigation was submitted to the Executive Director. On February 22, 1989, the Executive Director issued his Determination finding reasonable cause to believe that an unlawful employment practice occurred. Petitioner then filed a Petition for Relief from an Unlawful Employment Practice on March 27, 1989. The petition was referred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.016(1). The formal proceeding was held on January 19, 1990. During the course of the formal hearing, Respondent objected to Petitioner's introduction of testimony relating to sexual harassment and a hostile work environment. The hearing officer reserved ruling on the motion and Respondent maintained an ongoing objection and motion to strike all testimony relating to sexual harassment and hostile working environment. The objection was raised regarding testimony of Petitioner's witnesses as well as Petitioner's testimony. The hearing officer's recommended order granted Respondent's motion to strike all testimony regarding sexual harassment, hostile work environment and disparate treatment. Findings of Fact The hearing officer's finding of fact relate mostly to Petitioner's performance evaluation. The findings of fact failed to include any findings regarding: (1) alleged disparate treatment of Petitioner in respect to training in her new position; (2) alleged hostile work environment towards female employees; and (3) an alleged atmosphere of sexual harassment towards Petitioner and others. The hearing officer's findings of fact are therefore incomplete. Conclusions of Law The hearing officer granted Respondent's motion to strike testimony regarding sexual harassment, hostile work environment and disparate treatment. He gave no legal support for granting such a motion. Based upon his findings of fact, the hearing officer concluded that Respondent articulated a valid, nondiscriminatory reason as the basis for its decision to demote Petitioner. The hearing officer also concluded that Petitioner failed to prove a causal connection between her qualification for the position and her discharge. The hearing Officer recommends that the petition be dismissed. Upon consideration, we find that the hearing officer's granting of Respondent's motion to strike certain testimony was contrary to the law and therefore erroneous. Under a McDonnell Douglas analysis, Petitioner has the burden of rebutting Respondent's articulation of a nondiscriminatory reason for its actions by proving that the proferred reason was not the true reason for Respondent's actions. This can be accomplished through indirect evidence that shows disparate treatment. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). In Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th Cir. 1988), the court reversed a lower court ruling that excluded several categories of evidence that tended to show a climate of racial and age bias at the employer's facility. The court held that such evidence was admissible and the cumulative effect of excluding the evidence was sufficiently prejudicial to justify reversal, even if each evidentiary ruling, in isolation, would not have justified reversal. The court reasoned that such background evidence may, in discrimination cases, be critical for an assessment of whether an employer was more likely than not to have acted from an unlawful motive. More recently, the principles enumerated in Estes were applied to a sex discrimination case in Hawkins v. Hennepin Technical Center 900 F.2d 153 (8th Cir. 1990), where the court reversed a lower court ruling that excluded several categories of evidence that tended to show a climate of sexual harassment. The court held that even though sexual harassment was not formally charged, a former employee should be permitted to introduce additional evidence as to specifics of such harassment to attempt to show an atmosphere of condoned sexual harassment in the work place, thereby increasing the likelihood of proving discrimination. The court reasoned that an employer's past discriminatory policy and practice may well illustrate that the employer's asserted reasons for disparate treatment are a pretext for intentional discrimination. Remand In consideration of the hearing officer granting Respondent's motion to strike testimony relating to sexual harassment, etc., and the absence of any factual findings regarding such testimony, we conclude that all testimony presented regarding sexual harassment, hostile work environment and disparate treatment should be considered by the hearing officer in recommending the final disposition of this case. Accordingly, the Petition for Relief from an Unlawful Employment practice is hereby REMANDED to the Division of Administrative Hearings for reconsideration consistent with this opinion. It is so ORDERED: Dated this 27th day of July 1990. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: BY: Commissioner Elena Flom; and Commissioner Ralph P. Mangione. Commissioner Learna G. Ramsey, Chairperson, dissenting. I would adopt the hearing officer's recommendation of dismissal. FILED this 27th day of July, 1990 in Tallahassee, Florida. Margaret A. Jones Clerk of the Commission ENDNOTE 1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1989), and all rule references are to Florida Administrative Code. COPIES FURNISHED: Kathryn Moon, Petitioner Leo P. Rock, Jr., Respondent Daniel M. Kilbride, DOAH Hearing Officer Patricia Buttaro, Student Intern =================================================================
The Issue The issue in the case is whether the Polk County Work Force Development Board (Respondent) discriminated against David J. Sedivi (Petitioner) on the basis of disability when the Respondent terminated the Petitioner's employment. The Petitioner asserts that the termination was based on a disability. The Respondent asserts that the position for which the Petitioner was employed was eliminated for budgetary reasons and due to concerns expressed by program auditors that the Petitioner's job function was statutorily prohibited.
Findings Of Fact The Respondent is a regional workforce board created pursuant to Section 445.007, Florida Statutes (2004). The Respondent contracts with, and monitors the performance of, vendors who provide various employment-related services to qualified persons. At all times material to this case, the Respondent was annually audited by KPMG, an accounting firm contracted with a State of Florida agency responsible for oversight of the regional workforce boards. One of the programs for which the Respondent was responsible was the "Citrus Cars" program. Citrus Cars provided economical used vehicles to persons for whom lack of transportation was an obstacle to employment. The used vehicles were obtained and rehabilitated by Citrus Cars, and then leased to qualified individuals who eventually own the vehicles. The Respondent owns the non-profit corporation, Citrus Cars of Polk County, Inc., responsible for operation of the Citrus Cars program. In January 2003, KPMG auditors advised the Respondent that its operation of the Citrus Cars program was contrary to a statutory prohibition against the provision by regional workforce boards of direct services to clients. KPMG specifically cited the issue in the 2003 audit report. The Respondent disagreed with the KPMG opinion related to operation of Citrus Cars, and attempted unsuccessfully to convince the auditors that the Respondent's operation of the program was permissible under the statute. The Respondent had an existing contract with a private vendor ("A.C.S.") involved with the Citrus Cars program, but KPMG auditors apparently believe that the Respondent's relationship with the program was contrary to the statute. Nonetheless, the Respondent continued to operate the Citrus Cars program during 2003. In May 2003, the Petitioner began employment with the Respondent as a customer service officer for the Citrus Cars program. Prior to accepting employment with the Respondent, the Petitioner was employed by A.C.S. At all times material to the case, the Petitioner suffered from health issues which resulted in significant absence from the workplace. A three-month probationary period was extended for an additional three months by memorandum dated August 1, 2003, and written by Tom Hornack, the Respondent's Assistant Director. A primary reason for the extension was that Mr. Hornack had assumed supervisory responsibilities for the Citrus Cars program shortly before the end of the probationary period and wanted additional time to evaluate the Petitioner's performance. Although the memorandum includes a very positive evaluation of the Petitioner's efforts, the memo states as follows: In all fairness to you and Polk Works, there has not been ample time for you to work unaided without the assistance of Cecelia and Mitch to allow you to be able to demonstrate sole control of the program overall. The Petitioner's health issues and absence from the workplace apparently continued to be of concern to the Respondent. By letter dated September 19, 2003, Mr. Hornack advised that "your frequent absences from July 15 to present have resulted in a programmatic hardships [sic]." The letter stated that "due to high rate of absenteeism and the demands of your position" the Respondent requested a statement from the Petitioner's physician "as to your fitness for continued employment as the Citrus Cars Customer Services Officer." The Respondent also requested that the Petitioner create a "corrective action plan" indicating the date upon which the Petitioner would return to work and the "action items that you will take to actualize the plan." Towards the end of September 2003, as the result of an infection, the Petitioner underwent amputation of a foot and portion of a leg. Thereafter, the Petitioner had a disability due to amputation of the leg and the resulting inability to walk without a prosthetic device. By letter dated October 29, 2003, Nancy Thompson, the Respondent's Executive Director, advised the Petitioner that his employment position was being eliminated. The letter indicated that the Respondent's decision was related to budgetary issues and operational costs, and stated that the responsibilities of the Petitioner's employment position would be absorbed by other staff. Ms. Thompson's testimony also indicated that the Petitioner's absence from the workplace was a factor in her decision, and was seemingly reflected in the letter's reference to other employees assuming the Petitioner's job duties. The Petitioner obtained legal representation and Ms. Thompson withdrew the proposed termination of the Petitioner's employment. By letter dated December 16, 2003, Ms. Thompson requested that the Petitioner obtain an assessment of work abilities from his physician, including a statement of any restrictions and an anticipated date of return to employment, clearly indicating that the Petitioner's return to work was possible. In January 2004, KPMG auditors again advised the Respondent that operation of Citrus Cars was contrary to the statutory prohibition against provision of direct client services by regional workforce boards, and again specifically cited the issue in the audit report. Additionally, the Respondent learned that its budget for the fiscal year beginning July 1, 2004, was reduced. By letter dated February 17, 2004, Ms. Thompson advised the Petitioner that although the information previously provided was sufficient to extend non-paid leave status for 90 days, "before I can consider your returning to work," the Petitioner was directed to provide a physician's statement identifying a "specific date" upon which the Petitioner could return to work and including a "detailed assessment" of the Petitioner's abilities and limitations as related to his position description. The letter stated that the information was required at least two weeks prior to the anticipated date of return. According to a work status form from the Petitioner's rehabilitation physician dated March 30, 2004, the Petitioner could return to regular duty on May 17, 2004. The only restriction noted on the form is the use of an assistive device for ambulation. By letter to Nancy Thompson dated April 9, 2004, the Petitioner's rehabilitation physician indicated that the Petitioner could "perform his activities at work in approximately 30-60 days time, once his physical therapy and prosthetic training is completed." By letter dated May 13, 2004, Nancy Thompson advised the Petitioner that operation of the Citrus Cars program had been "much modified," that the Respondent's role in the program was "purely finance and oversight" pursuant to the KPMG opinion, and that the responsibilities of the Citrus Cars Customer Service Officer position had been eliminated or absorbed by other staff. Ms. Thompson testified credibly that continued failure to heed the auditor's advice could have had negative repercussions on the board, and therefore total operational responsibility for the Citrus Cars program was transferred to A.C.S., and the in-house position of "Customer Service Officer" was eliminated. At the time of the hearing, the Respondent had a vacant and funded employment position. At the hearing, the Petitioner testified that he was uncertain as to the relief he was seeking, stating that "it ought to be something that's fair," but indicated that it was "difficult for me to think that I would even trust them if I went back to work because of all the things that have gone down and everything else."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by David J. Sedivi in this case. DONE AND ENTERED this 7th day of February, 2006, in Tallahassee, Leon County, Florida. S 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 7th day of February, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Craig A. McCarthy, Esquire 361 River Chase Drive Orlando, Florida 32807 Charles W. Sell, Esquire Shuffield Lowman Gateway Center 1000 Legion Place, Suite 1700 Orlando, Florida 32801 Stacy L. Wilde, Esquire Shuffield Lowman Gateway Center 1000 Legion Place, Suite 1700 Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
