Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence produced at hearing, the following relevant facts are found: At all times pertinent to this proceeding, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about May 8, 1980, Respondent entered into a lease agreement with Cole National Corporation to lease 154 square feet of space as an optometric office in the location of the retail store of Sears, Roebuck and Co. at 1420 Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that location approximately two days per week until on or about October 1, 1982. Respondent's optometric office was located in a Sears, Roebuck retail store next door to the "Sears Optical Department," in which eyeglasses and contact lenses and other optical merchandise could be purchased. Respondent's office was identified by a large sign overhead reading "Optometrist," in the same print as the sign above the Sears Optical Department. In addition, a small plaque on the door leading into Respondent's examination room read "Dr. L. A. Schwartz, Optometrist." During the time he practiced at the 1420 Northwest 23rd Boulevard location of Sears, appointments could be made with Respondent by calling the Sears Optical Department telephone number. The phone was answered "Sears Contact and Lenses Center" by employees of Cole National Corporation, which controlled and owned the Sears Optical Department. The Cole employees were not paid for this service by Respondent. Respondent had no telephone listing in either the yellow or white pages of the Gainesville, Florida, telephone directory between May, 1980, and July 12, 1982, the date of the Administrative Complaint. The Cole National Corporation employees maintained Respondent's scheduling book and made tentative appointments for his prospective patients, although Respondent customarily would call the patient back to confirm the date and time of the appointment prior to the time of the scheduled visit. Respondent's hours of service and fee information were also given to prospective optometric patients by Cole National personnel. Respondent accepted the Sears, Roebuck and Co. credit card as payment for optometric services. Sears then billed the patients directly and Respondent received monies billed to the patients in full through Sears on a monthly basis, regardless of whether the patient paid the bill fully monthly or carried the debt over to succeeding months. Respondent, pursuant to his lease with Cole National Corporation, was precluded from selling optometric supplies to his patients. Rather, Respondent would in all cases issue prescriptions for optometric goods and supplies, such as glasses and contact lenses, which in most cases were placed on a prescription blank bearing his name. At times, however, when Respondent did not have prescription forms available bearing his own name, he would use such a form from the Sears Optical Department, crossing out all references to Sears and inserting his name and address in place of that of Sears Optical Department. On or about February 22, 1982, the Sears Optical Department mailed letters to various consumers in the Gainesville area. These letters, in part, advised that Respondent, an independent doctor of optometry, was available for eye examinations in his private office in the Sears building and that he could be reached for appointments at a telephone number which was listed in the telephone directory for Sears Optical Department. The evidence in this cause establishes that Respondent's office location at all times material hereto was maintained separately from both Sears, Roebuck and Co. and the Sears Optical Department. In addition, the record in this cause fails to in any way establish that Respondent ever held himself out as an employee or representative of either Sears, Roebuck and Co. or the Sears Optical Department. In fact, the record clearly establishes that both Respondent and employees of the Sears Optical Department always indicated to the consuming public that Respondent was an independent optometric practitioner.
Findings Of Fact Respondent, Santiago F. Suarez (Suarez), was at all times material hereto licensed as a physician in the State of Florida, and held license number ME 0030132. Suarez is a family practitioner, and has no specialized training relating to the human eye. He has never performed a refraction or prescribed eyeglasses during his medical career, nor has he had any training or experience in prescribing and fitting contact lenses.1 Commencing in the latter part of 1983 and continuing through the early part of 1984, Suarez acted as the supervising physician for Reynaldo Avello (Avello) when he performed refractions or fit contact lenses on clients of the Optical Medical Center; a business owned by Avello. During this time period, Avello routinely refracted the vision of his clients; measured the eyes of clients who desired contact lenses; prescribed eyeglasses and contact lenses; and prepared, dispensed or fit eyeglasses and contact lenses for his clients as well as clients of optometrists and ophthalmologists. Avello is not, and never has been, a licensed optician or optometrist, and he has no formal education or training beyond high school. Consequently, his activities were proscribed by law unless they were appropriately delegated and supervised by a medical doctor.2 Chapter 463 and 484, Part I, Florida Statutes. In this case Avello, not Suarez, prescribed eyeglasses and contact lenses. Avello conducted the eye examination, but limited his practice to refracting the eye and, when appropriate, to measuring the eye for contact lenses. Although Avello was ostensibly practicing under Suarez' supervision, Suarez was not competent to perform a refraction, or to prescribe and fit eyeglasses and contact lenses. In fact, Suarez took no active part when client's eyes were refracted, but deferred to Avello's "expertise." Suarez limited his involvement to securing a brief medical history from the client, and being available in case an emergency arose.3 Suarez' reliance on Avello's "expertise," without inquiring as to his training and experience, was a serious error in judgment. The only training Avello had in refracting the human eye occurred while he was employed part-time by the Union Latina clinic in Hialeah, immediately before he opened the Optical Medical Center. During his employment at the clinic, Avello was shown how to do a refraction by a board qualified ophthalmologist, but he never performed any refractions under that ophthalmologist's supervision. In March 1980, Avello opened the Optical Medical Center. With the exception of the period during which Suarez supervised Avello, the center has always had in its employ a board qualified or certified ophthalmologist. During those times, all eye examinations were performed by the ophthalmologist, and Avello did no refracting. While Avello considers himself qualified to do refracting, the proof regarding his training and experience renders his opinion unpersuasive. At no time was he shown to have worked under the supervision of a qualified practitioner, and no qualified practitioner was shown to be familiar with the quality of his work. Further, Avello was not shown to have had any qualified training or experience in measuring the human eye; prescribing eye glasses and contact lenses; or preparing, dispensing, and fitting eyeglasses and contact lenses. Accordingly, the proof established that Suarez accepted and performed professional responsibilities which he knew he was not competent to perform, that he assisted an unlicensed person to practice medicine contrary to law, and that he delegated professional responsibilities to a person he should have known was not qualified to perform them. The proof further established that the existent community standard required that a complete eye examination be performed before eyeglasses or contact lenses could be prescribed, and that such standard was breached. Suarez' failings could have resulted in profound adverse consequences to those patrons who were ostensibly refracted and fitted under his supervision. Improperly fit eyeglasses can result in blurred vision and nausea. More importantly, improperly fit contact lenses can result in permanent visual damage to the eye. In mitigation, Suarez avers that he agreed to supervise Avello out of a sense of personal obligation, not profit; that his employment was to be for the limited time it took Avello to secure the services of another physician; and, that when he undertook to supervise Avello he believed such activity to be legal. Suarez also offered for consideration in mitigation the fact that he cooperated in the investigation of the Optical Medical Center, and the fact that he had never previously been disciplined. Suarez' plea in mitigation is largely unpersuasive. While he may have undertaken Avello's supervision out of a sense of personal obligation, it was not without the expectation of compensation. Suarez and Avello had agreed, that if their association proved profitable, he would be compensated for his services. Notably, while Suarez' desire to fulfill a personal obligation is admirable, its priority is far below that owed to those to whom he professed to render a professional service. In this case, Suarez' supervision permitted an unqualified person to render professional services that he, as a medical doctor, was not qualified to perform, and therefore not qualified to supervise. No physician could reasonably believe such conduct was appropriate.4 Suarez' assertion that his association with Avello was to be of limited duration is not only irrelevant, but contrary to the proof. Suarez supervised Avello for 1 1/2 years, and there was no showing that Avello or Suarez made any effort during that period to hasten his replacement. Notably, during his association with Avello's business, the front of the store proclaimed in bold guilding "Optical Medical Center, Santiago F. Suarez, M.D." Under the circumstances, the proof does not suggest that their association was to be casual or of short duration.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The medical license of Respondent, Santiago F. Suarez, be suspended for a period of one (1) year, and that during the period of such suspension Respondent be required to complete such courses as the Board of Medicine may require to demonstrate an adequate comprehension of professional ethics, scope of practice for a family practitioner and delegation of professional responsibility; and An administrative fine in the sum of $2,000.00 be ~ assessed against Respondent, Santiago F. Suarez. DONE and ORDERED this 15th day of September, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1987.
Findings Of Fact Respondent Curtis E. Webb was a licensed apprentice optician from June 1, 1981, until he obtained a state license, number 2133, on October 15, 1982, to practice opticianry on his own. In order to obtain the license he now holds, respondent was obliged to pass written and practical examinations, and complete a three-year apprenticeship. The Board of Opticianry "gave Mr. Webb credit for . . . employment prior to his registering as an apprentice, which would make him complete his apprenticeship 3-82." Petitioner's Exhibit No. 1. Along with respondent, Martin Marini, the licensed optician to whom respondent was apprenticed in the spring of 1982, worked as an employee of Optical World, Inc. in Pensacola, Florida. In May of 1982, the relationship between Mr. Marini and Theodore F. Frederickson, the principal in Optical World, Inc., deteriorated, and Mr. Marini stopped coming to work. Respondent Webb continued to show up for work, however, and, when he had a question, contacted Billy H. Hammett, a licensed optician and the proprietor of Hammett Eyeglasses, Inc., a competitor located two blocks away. Mr. Hammett reported to petitioner that Optical World, Inc., was selling eyeglasses in Mr. Marini's absence. On the morning of May 18, 1982, respondent was at Optical World, Inc., practicing opticianry without supervision when petitioner's investigator, John W. Gahn, stopped in and identified himself. During the 15 minutes he waited to talk to Mr. Webb, the investigator saw him measure one person for glasses; and fit eyeglasses on another person, to whom he gave the glasses in exchange for money. Respondent admitted that Mr. Marini had not been to work for over a week and predicted, "I'm going to be the loser in this whole mess." He did not know when or if Mr. Marini would return or how to reach him. Later the day of the interview with Mr. Gahn, respondent quit work at Optical World, Inc.
Recommendation Upon consideration of all the circumstances, it is RECOMMENDED: That petitioner, reprimand respondent. DONE AND ENTERED this 9th day of December, 1983, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Charles M. Mims, Esquire Suite 255, 24 W. Government Street Pensacola, Florida 32501 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Varn, Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF OPTICIANRY DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, CASE NOS. 0024314 (DPR) 82-2814 (DOAH) vs. LICENSE N0S. DO 0000781 OA 0000781 CURTIS E. WEBB, Respondent. /
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on his national origin (Hispanic), by limiting, segregating, or classifying employees in a discriminatory fashion, or by retaliating against Petitioner for his opposition to unlawful employment practices.
Findings Of Fact Respondent is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Respondent is a family owned company based in Winter Park that installs residential and commercial insulation and acoustical ceilings and tiles. The company is divided into two divisions. The Insulation Division is headed by William Aldrich. The Acoustic/Ceiling Division is headed by Dale Aldrich, Jr., who was Petitioner's ultimate supervisor. Subsequent references to "Mr. Aldrich" are to Dale Aldrich, Jr. Petitioner, a Hispanic male originally from the U.S. Virgin Islands, was hired by Respondent in February 2006 to work in the Acoustic/Ceiling Division. He was hired as a tile installer, the entry-level position in the Acoustic/Ceiling Division. A tile installer drops ceiling tiles into the gridwork installed by a ceiling mechanic. With experience, a tile installer may work his way up to ceiling mechanic. "Ceiling mechanic" is not a licensed position, and there is no formal progression through which an employee works his way up to this more skilled, higher paid position. Advancement depends on management's recognition that an employee's skills have advanced to the point at which he can be entrusted with the mechanic's duties. Three to four years' experience is generally required to advance from tile installer to ceiling mechanic. By all accounts, including those of the ceiling mechanics who supervised him at job sites and that of Mr. Aldrich, Petitioner was more than competent as to his actual job skills. During the approximately thirteen months he worked for Respondent, Petitioner received four pay raises. He was making $14.00 per hour at the time of his termination in August 2007. The evidence produced at the hearing demonstrated that Petitioner had problems controlling his temper on the job. He was generally negative and quick to take offense at perceived slights, especially when he inferred they were due to his national origin. During his employment with Respondent, Petitioner was involved in at least three altercations with fellow employees and/or general contractors for whom Respondent worked as a subcontractor. The earliest incident occurred in October 2006. Petitioner was working on a job site at which Respondent was a subcontractor for Harkins Development Corporation. Petitioner testified that a Harkins supervisor named Harley was "commanding" him to perform tasks on the job site. Petitioner was affronted, because he was not Harley's employee and because Harley, who was white, did not appear to be giving commands to the white employees of Respondent. After lunch, Harley feigned that he was about to throw a soft drink at Petitioner. In fact, the Wendy's cup in Harley's hand was empty, though a drop or two of condensation from the outside of the cup may have landed on Petitioner. In Petitioner's version of the story, Petitioner then stood up and asked Harley if he would enjoy being on the receiving end of such treatment. Petitioner then phoned Mr. Aldrich and asked to be sent to a different job site. Mr. Aldrich refused, and instead scolded Petitioner. Petitioner believed that Mr. Aldrich was retaliating for his complaint. Petitioner walked off the job site for the rest of the day, and worked at a different site the next day. Petitioner entered into evidence the written statement of his co-worker, Eddy Abud. Mr. Abud is Hispanic, with a national origin in the Dominican Republic. Mr. Abud witnessed the confrontation between Petitioner and Harley. Mr. Abud stated that Harley shook his cup and a "couple drops" of water splashed on Petitioner, who "went ballistic." Petitioner used obscenities against Harley and invited him to fight. Harley threw Petitioner off the job, an action with which Mr. Abud agreed. Petitioner entered into evidence the written statement of his co-worker, Robert "Pappy" Amey. Mr. Amey is white, and wrote that Petitioner "acted like a man all the time" except for the incident with Harley. Mr. Amey's statement reads as follows, in relevant part: Harley had a big drink cup and he turned around and flipped it, playing, nothing came out. Justo lit up [and] called him a mother fucker a dozen times. He said if I find you on the street, I'll kill you. I leaned to him and I said, "Justo, shut up." He did not, he cussed Harley out the door. It was Harley's job. This was unprofessional behavior by Justo. It was just horseplay and it was empty. No reason to act like that. Despite his overall respect for Petitioner, Mr. Amey stated that Petitioner should have been fired for his actions. Mr. Aldrich testified that Harley called him and told him that Petitioner had threatened him. Petitioner told Harley that he would not do anything on the job, but would "kick his ass" if he saw him away from the job. Mr. Aldrich stated that Harkins was one of Respondent's largest, longest-standing accounts, and that he knew Harley as a "stand up guy" who would have no reason to lie about such an incident. The second incident occurred later in the same month, on October 31, 2006. Petitioner was working for Respondent on a project at the University of Central Florida. A ceiling mechanic named Adam Sorkness was in charge of the project. Petitioner testified that Mr. Sorkness had already angered him in September 2006 by making racial jokes about black employees, and that Mr. Aldrich had separated Petitioner from Mr. Sorkness on subsequent jobs up to October 31, 2006. At first, there were no problems on the University of Central Florida job. Petitioner accepted his assignment from Mr. Sorkness. On this day, every man on the job was installing ceiling tile, which involved wearing stilts. According to Petitioner, two white employees arrived later in the morning and decided to work together, leaving Petitioner to work with Isaiah Fields, a black employee whom Petitioner alleged was the butt of Mr. Sorkness' earlier racial jokes. Petitioner became agitated because it appeared the two white employees were doing no work. Mr. Fields testified that he and Petitioner were working around a corner from Mr. Sorkness. They heard loud laughter from around the corner. Mr. Fields said that the laughter was not directed at him or Petitioner, but that it appeared to anger Petitioner, who said, "Wait a minute," and headed around the corner on his stilts. Mr. Fields stayed put and thus did not see the subsequent altercation. Petitioner approached Mr. Sorkness, who was also on stilts. Petitioner complained about the job assignments. Mr. Sorkness replied that everyone was doing the same job and that Petitioner could leave if he didn't like it. Petitioner became more incensed, calling Mr. Sorkness a "sorry white faggot." Petitioner took off his stilts, then confronted Mr. Sorkness at very close range. Mr. Sorkness pushed Petitioner away. Petitioner then charged Mr. Sorkness and they engaged in a brief fight. Ben Davis, a white ceiling mechanic who witnessed the altercation, called it a "scuffle."3 Mr. Aldrich investigated the matter and determined that Petitioner was the instigator of the fight. He suspended Petitioner for three days, and gave Mr. Sorkness a verbal warning. Mr. Aldrich issued a "written warning" to Petitioner cautioning him that he was subject to termination. Mr. Aldrich wrote the following comments: "Justo has been given 3 days off without pay. Normally an employee would be fired for this action. Justo has NO MORE chances. Next offense will result in immediate termination of employment with Energy Savings Systems." The document was signed by Mr. Aldrich and Petitioner.4 Petitioner claimed that Mr. Aldrich cut his hours in retaliation for the UCF incident, and it took several months for his hours to come back up to 40 per week. The time sheets submitted by Petitioner showed fluctuations in his work hours before and after the incident, which is consistent with Mr. Aldrich's testimony that he only cuts hours when work is slow for the company. The evidence demonstrated that Petitioner's hours were reduced at times because he would refuse to take certain jobs, either because of their location or because Petitioner did not want to work with certain people, such as Mr. Sorkness. The third and final incident occurred on August 20, 2007. Petitioner was working on a job for which Respondent was a subcontractor to Alexander-Whitt Enterprises, a general contractor. Alexander-Whitt's superintendent on the job was Dan Alexander. Mr. Alexander asked Petitioner to clean up. Petitioner resented either the order itself or Mr. Alexander's method of delivering it, in light of a brief altercation between the two men on the job site three days earlier. Petitioner threatened to slap Mr. Alexander. Mr. Aldrich testified that he received several calls from Mr. Alexander complaining about Petitioner over the course of this job. Petitioner had an "attitude" about Mr. Alexander's instructing him on the job. Mr. Aldrich apologized. After Petitioner's threat, Mr. Alexander called yet again and told Mr. Aldrich that he wanted Petitioner off the job. After this call, Mr. Aldrich fired Petitioner. Aside from his own suspicions and resentments, Petitioner offered no evidence that his termination had anything to do with his national origin or was retaliation for his complaints about the company's discriminatory practices. In fact, Petitioner never made a formal complaint while he was employed by Respondent. His only "complaints" were to certain co-workers that he was being discriminated against because he was Hispanic. Andy Weatherby, a ceiling mechanic who at times was Petitioner's field superintendent, recalled Petitioner telling him that he felt disadvantaged on the job for being Hispanic, but that Petitioner described no specific incidents of discrimination. Julio Oliva, a junior ceiling mechanic with Respondent, is of Puerto Rican descent. Mr. Oliva testified that he saw no discrimination at the company. He worked often with Petitioner, whom he described as having a negative attitude. Mr. Oliva testified that it was difficult to merely pass the time in conversation with Petitioner, because Petitioner always had something negative to say. Edgar Mullenhoff, also Puerto Rican, has worked for Respondent since 1982 and is the field superintendent for the insulation side of the company. Mr. Mullenhoff described the company as "like a family" and stated that he never felt a victim of discrimination. Mr. Abud's written statement attests that he has had no problems working for Respondent, and that "we have great bosses." Petitioner noted what he termed a discriminatory pattern in the ethnic diversity of the Insulation Division versus the Acoustic/Ceiling Division. While conceding that most of Respondent's employees are Hispanic, Petitioner notes that the great majority of the Hispanics work in the lower paying, less skilled Insulation Division. Petitioner further argued that those few Hispanics hired in the Acoustic/Ceiling Division are given no opportunity to advance to the position of ceiling mechanic. William Aldrich, the head of the Insulation Division, testified that there is a much higher turnover in insulation, and that for the last four years or so the only applicants for the positions have been Hispanic. He credibly testified that he hires anyone who appears capable of doing the job. As to Petitioner's lack of advancement, it must be noted that he worked for Respondent for just a little over one year. Mr. Oliva testified that he has worked for Respondent for five and one-half years. He spent the first two years performing menial tasks and learning on the job. Mr. Oliva stated that Respondent's ceiling mechanics were helpful to him in learning the trade, and he felt no barriers due to his national origin. Mr. Sorkness testified that it took him between four and five years to become a mechanic. Mr. Davis testified that it took him between three and four years to work his way up to ceiling mechanic. The greater weight of the evidence establishes that Petitioner was terminated from his position with Respondent due to misconduct on the job. The greater weight of the evidence establishes that Respondent has not discriminated against Petitioner or any other employee based on national origin.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Energy Savings Systems of Central Florida, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 24th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of February, 2009.
The Issue The issue is whether Respondent's opticianry license should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Max A. Vinson is currently a licensed optician, holding license No. DO 601. On December 24, 1986, the Board of Opticianry entered a Final Order in DPR Case No. 0060708 and therein assessed a fine of $500.00 against Vinson. The fine was to have been paid within thirty days of the Final Order. Vinson never paid the fine. On October 17, 1989, the Board of Opticianry again entered a Final Order in Case No. 0106315. This Final Order was based on the failure to pay the fine from the first action. Another fine of $1,000.00 was assessed and Vinson's license was suspended until the fines were paid. Vinson never paid this fine. Vinson is charged with violating Section 484.014(1)(i), Florida Statutes, based on his failure to obey these two lawful orders of the Board of Opticianry.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Opticianry enter a Final Order and therein revoke license No. DO 601 issued to Max A. Vinson. Vinson may not reapply for a license until all fines have been paid. DONE and ENTERED this 9th day of April, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1991. COPIES FURNISHED: E. Renee Alsobrook, Senior Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Max A. Vinson 12512 Caron Drive Jacksonville, FL 32258 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 LouElla Cook Executive Director Board of Opticianry 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent subjected Petitioner to an unlawful employment practice on the basis of her race in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact The following Findings of Fact are based on exhibits admitted into evidence, testimony offered by witnesses, and admitted facts set forth in the Prehearing Stipulation. Background Ms. Logan is an African-American female and a member of a protected class. At all times material to this matter, she was employed as an esthetician at Brow Art 23. Ms. Logan was an employee of Brow Art 23 as that term is defined by the FCRA. Brow Art 23 is a skin care salon that specializes in eyebrow threading. The Brow Art 23 corporate offices are located in Highland Park, Illinois. However, it has multiple locations throughout the United States, including Florida. Ms. Logan worked at Brow Art 23 in the Cordova Mall located in Pensacola, Florida. At all times material to this matter, Brow Art 23 employed more than 15 full-time employees. Ms. Logan filed a complaint with the Commission alleging Brow Art 23, through Sara Mark, created a hostile work environment and had racial bias against African-Americans. The Commission issued a “No Cause” determination and Ms. Logan filed a Petition for Relief, which is the matter before the undersigned. Ms. Logan is a licensed esthetician in the State of Florida. Her license allows her to perform hair removal techniques, such as threading, waxing, and sugaring. Ms. Logan’s license also permits her to perform eyelash extensions. Ms. Logan sought employment with Brow Art 23. She was interviewed and began work the next day. Other than in the instant matter, Ms. Logan had not been disciplined during her employment with Brow Art 23. Ms. Mark’s Actions/Hostile Work Environment Between December 2015 and January 2016, Sara Mark was hired to work in the Cordova Mall store. Ms. Mark is believed to be of Egyptian descent.3/ Asha Logan and Sara Mark initially were friendly and worked well together. However, at some point in 2016 their relationship changed. Ms. Logan testified that Ms. Mark engaged in hostile behavior toward her in various ways. Ms. Logan testified that Ms. Mark would remove her tips from the cash register without permission. Ms. Mark told customers not to patronize other threaders but, when confronted, Ms. Mark would deny making the statements. However, Ms. Mark did not single out Ms. Logan. Ms. Logan testified that Ms. Mark would follow her while she was working inside the store and stand close to her when she was servicing customers. Ms. Mark would also follow Ms. Logan outside the store in the mall corridor while Ms. Logan was attempting to solicit customers. Brow Art 23 employees, Dominique Welch and Mariella Ablaza, witnessed the behavior. They testified that Ms. Mark appeared to be attempting to intimidate Ms. Logan when she followed her. Ms. Mark also read Ms. Logan’s private emails. All employees had access to a single company computer at Brow Art 23. While emails were sent from the company to communicate with employees as a group, Ms. Mark would repeatedly read Ms. Logan’s private emails that were addressed only to her. Ms. Mark’s actions went beyond non-physical intimidation. It also involved physical aggression. In an incident, which is a primary issue here, Ms. Mark walked past Ms. Logan and kicked her foot. Both Ms. Logan and Ms. Welch testified that it was an intentional act because Ms. Mark had enough room within the designated area to avoid contact when she kicked Ms. Logan. Moreover, she did not apologize to Ms. Logan for kicking her foot. Ms. Logan testified that she believed Ms. Mark’s behavior was motivated by racial bias against African-Americans because Ms. Mark made comments about African-American customers being dirty, smelling badly, and not tipping. In addition to the comments about African-American customers, Ms. Mark used offensive language which demonstrated her racial animus. While working with Ms. Logan and Ms. Welch, Ms. Mark used the racial epithet “nigger.” Ms. Logan and Ms. Welch asked Ms. Mark not to use the word because they found it offensive. Despite the requests, Ms. Mark continued to repeat it and said, “I don’t understand why I can’t call you a ‘nigger.’” In a separate incident, Ms. Logan, Ms. Welch, Ms. Ablaza, and Ms. Mark were working together. The group began discussing where Ms. Mark was originally from and someone referenced Ms. Mark as being from Africa. Ms. Mark replied, “No, I’m not. I'm not a 'nigger.'" Ms. Logan informed her assistant manager, Rusbina Malak, of the incidents and concerns she had with Ms. Mark. After receiving no response, Ms. Logan then reported her concerns to Ms. Marcano. Up to this point, Ms. Logan had not communicated her concerns regarding discrimination. Ms. Marcano testified that she had no independent recollection of Ms. Logan contacting her about complaints of harassment, assault, or discrimination and had discarded any notes that she had in a notebook of conversations with employees during that time. Ms. Marcano received information from Ms. Malak that she characterized as two employees “not getting along.” Ms. Marcano then instructed Ms. Logan to text her complaint to the group and scheduled a conference call on Whatsapp. Whatsapp is an instant messaging application that Ms. Marcano and Ms. Malak used to communicate with the employees at the Cordova Mall store. Whatsapp is an open forum where each user can view the messages and comments of the other users in the group text. The use of Whatsapp was not authorized by Brow Art 23’s corporate office. Ms. Logan followed the instructions of her managers and posted her complaint on Whatsapp. During the conference call, there was a group discussion between all the employees at the Cordova Mall location, Ms. Marcano, and an unnamed individual from human resources. According to Ms. Marcano, all the issues were resolved during the conference call. To the contrary, Ms. Logan and Ms. Welch disagreed and testified that management essentially disregarded their complaints. The Eye Brow Art 23 employees, including the store manager and the regional manager, testified that a manager had never been to the Cordova Mall location once during the period that Ms. Mark was hired and the incident of August 17, 2016.4/ Policy and Procedure Brow Art 23 provided employees with an employee handbook, which directs employees to make complaints directly to their team leader and manager. Brow Art 23 also has an equal employment section of their employee handbook that specifically directs employees to address violations of the equal employment policy with the team leader. The team leader would then forward the complaint to the manager or corporate office. Under the policy, complaints are to be promptly investigated with due regard for the privacy and respect of all. In addition to the equal employment policy, Brow Art 23 has a policy prohibiting harassment, including creating a hostile work environment. The circumstances, which may constitute harassment, include language, epithets, and unwelcome touching. Ms. Malak testified that she received several complaints from Ms. Logan and that she “saw that [Ms. Logan] had a lot of problems [with Ms. Mark].” Ms. Malak advised Ms. Logan to contact her supervisor, Ms. Marcano, because she had no authority to handle those types of complaints. Ms. Logan attempted to send an email to Ms. Sadek on May 19, 2016, regarding her complaints of discrimination and harassment. The email was addressed to “Vyolit@browart23.com.” Ms. Sadek denied that she received the email and credibly testified that her email is vyolit.sadek@browart23.com. The undersigned finds that there was insufficient evidence offered to demonstrate that Ms. Sadek received Ms. Logan’s email. Ms. Logan also sent electronic messages to management with complaints regarding her problems with Ms. Mark. On June 2, 2016, Ms. Logan sent a text message to Ms. Malak and complained that “I have reported to you several weeks ago via phone that I’m having serious issue with worker Sara. I have told you that she has kick [sic] me in the back store out of dislike and you said you’d get with Krishnara and nothing has been done about being kicked yet.” On June 27, 2016, Ms. Logan sent a text message to Ms. Malak and complained that “I have sent you information one [sic] how nasty the store is left everyday and how I an [sic] harassed everyday. Can you give me an idea of how long before this issue will be resolved.” There is a date stamp below the June 27, 2016, text message indicating that it was read on the same date. Ms. Malak confirmed that she received the message. Instead of resolving the issue, Ms. Malak directed Ms. Logan to “put the message on the group message so everybody can read and everybody can see and they can reply.” Ms. Logan received no resolution to her complaints. On July 26, 2016, Petitioner sent another email, which was addressed to Mary Fernandez, a human resources staff member of Brow Art 23, and copied Ms. Malak and Ms. Marcano. The email subject line included “discriminative treatment by Worker Sarah Marks.” This was the first time that Ms. Logan expressed her concerns about Ms. Mark’s behavior being racially motivated. There was insufficient evidence offered to demonstrate that the email address for Ms. Fernandez was correct or that Ms. Fernandez received the email. However, the email address for Ms. Malak and Ms. Marcano were correct and both members of management affirmed that they received the email. Ms. Logan properly followed the written policy contained in the employee manual. She reported her complaints of harassment to her store manager, Ms. Malak, and to the regional manager, Ms. Marcano. She reported her complaints that she believed the harassment was racially motivated. There was no corrective action taken to address Ms. Mark’s behavior. Although there was testimony that Ms. Mark engaged in similar acts with other employees, she consistently engaged in harassing behavior with Ms. Logan. Moreover, although there were other employees of different racial backgrounds (i.e., Hispanic, Asian, etc.), Ms. Logan is the only employee to whom Ms. Mark directed a racial epithet. Incident Leading to Ms. Logan’s Suspension on August 17, 2016 On August 17, 2016, Ms. Logan, Ms. Ablaza,5/ and Ms. Mark were together at the store. There were three chairs in the sitting area, including two store-owned chairs and a chair owned by Ms. Mark. The chair Ms. Logan used was owned by the store for employee use. It was well-known that Ms. Mark did not permit other employees to use her chair. The three employees were sitting in the employee break room area waiting for customers. The employees would sit in a particular position based on rotation to provide services to customers. Ms. Logan was sitting in the first chair as she would service the next customer. Ms. Logan was sitting in a store-owned chair and Ms. Mark was sitting in her personal chair. Ms. Logan then left her chair to service a client. However, she discovered that she did not have a customer. When Ms. Logan returned, Ms. Mark was sitting in the first chair (previously occupied by Ms. Logan). What happens next is in dispute. The evidence demonstrates that Ms. Logan placed her hand on the back of the chair, Ms. Mark began to stand up from the chair, and Ms. Logan moved the chair so she could sit in it. Ms. Mark did not testify at the hearing. However, her description of the incident in a text message to Ms. Malak was that Ms. Logan pushed her from the chair. Ms. Ablaza, the only neutral witness to the incident, testified about what she observed. Ms. Ablaza recalled that Ms. Logan asked Ms. Mark for her chair but Ms. Mark ignored her. Ms. Logan asked Ms. Mark for the chair a second time and explained that she needed to sit due to back pain. Again, Ms. Mark did not respond to Ms. Logan’s request. Ms. Logan was holding the chair when Ms. Mark began to stand. Ms. Ablaza saw Ms. Mark on the floor using her hands to support herself. Ms. Ablaza had a clear, unobstructed view of the incident. Ms. Ablaza did not see Ms. Logan pull the chair from underneath Ms. Mark, and she did not see Ms. Logan push Ms. Mark. Ms. Ablaza shared her description of the incident with Ms. Malak before Ms. Mark was instructed to call the police. Ms. Ablaza also sent a description of the incident to Ms. Marcano by text message within the two days following the incident. Ms. Ablaza is found to be credible and corroborates Ms. Logan’s description that she did not push Ms. Mark, she did not pull the chair from underneath Ms. Mark, or otherwise cause Ms. Mark to fall from the chair. Ms. Malak directed Ms. Mark to call the police and Ms. Mark followed Ms. Malak’s instruction. The police arrived and spoke to Ms. Ablaza and Ms. Mark. Ms. Logan was asked to leave the store on that day, but she was not arrested. Ms. Malak notified Ms. Logan that she was suspended for an indefinite period of time because Ms. Mark reported that Ms. Logan hurt her. The action taken by Ms. Malak was communicated to human resources and Ms. Marcano and affirmed by corporate management and human resources. Brow Art 23 corporate representatives attempted to schedule a conference call with Ms. Logan to discuss her employment status. However, Brow Art 23 made no further contact after Ms. Logan requested that her counsel be present during any discussions. Ms. Logan did not return to work at Brow Art 23 and, thus, was effectively terminated on August 17, 2016. Retaliation Petitioner alleged in her complaint of discrimination that Respondent retaliated against her after she complained about Ms. Mark. Disability Discrimination Petitioner did not present any evidence to demonstrate she had any condition that proves she suffers from a disability or that an adverse action was taken due to her alleged disability. Age Discrimination Petitioner did not present any evidence to demonstrate she was discriminated against on the basis of age. Ms. Logan did not present any evidence to demonstrate the age of any alleged comparator. Past Wages As a condition of employment, Ms. Logan signed a non- compete agreement, which required that she not disclose any information or techniques learned while employed with Brow Art 23. The non-compete agreement also barred Ms. Logan from working with another competitive business within a 25-mile radius for up to 18 months (until after February 17, 2018). Brow Art 23 also had stores in neighboring cities to Pensacola, which in effect extended the 25-mile radius. The parties stipulated that while employed at Brow Art 23, Ms. Logan’s pay rate was $20.00 per hour. She worked 40 hours per week and made approximately $150.00 per week in tips. Thus, Petitioner earned $950 per week ($20.00 x 40 hours = $800 + $150 (tips) = $950 per week). Ms. Logan applied for and received unemployment in the amount of $2,614.00. Ms. Logan introduced re-employment letters for 11 weeks, but was paid a total of 12 weeks, bringing the total paid out closer to $3,000.00. Ms. Logan worked for two weeks temporarily as a server in March 2017 and earned approximately $200.00. Ms. Logan could not remain employed in the position due to her medical limitations. From October 2017, through November 2017, Ms. Logan also worked at Blink part-time as a full-service technician performing epilation techniques, such a sugaring, waxing, and eyebrow design. She initially earned a wage rate of $15.00 per hour. At some point her hours were decreased, and her pay was ultimately reduced to $10.00 per hour. Ms. Logan was paid a total of $1,350.00 while employed at Blink. Ms. Logan also worked at a hotel for an undetermined time period in November and December 2017, earning approximately $1,800.00. Based on the evidence, Ms. Logan experienced a loss in pay of $34,690. Ms. Logan has incurred costs and attorneys’ fees related to this final hearing in amounts that are currently undetermined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order: Finding that Respondent constructively discharged Asha J. Logan by suspending her indefinitely and subjecting her to a hostile work environment based on Petitioner’s race; Ordering Respondent to pay Petitioner $34,690.00 in back pay through the final date of the hearing, February 2, 2018, with interest accruing on the total amount at the applicable statutory rate from the date of the Commission's final order; Ordering Brow Art 23 to make arrangements to reinstate Petitioner to an equivalent position with Brow Art 23; Prohibiting any future acts of discrimination by Brow Art 23; and Award Petitioner attorneys’ fees and costs. Jurisdiction is reserved for a determination of the specific amount of attorneys’ fees and cost to be awarded. DONE AND ENTERED this 23rd day of May, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 2018.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner is a 56-year-old female. Petitioner has over 26 years of retail sales experience. Petitioner had both outside sales and store management experience, but most of her experience was as a retail floor salesperson. Petitioner worked as a salesperson at GM Appliance, a retail appliance business currently owned and operated by Respondent. She had worked for GM Appliance for over 21 years. Petitioner was a good and capable salesperson. She had never been formally reprimanded in her 21 years with GM Appliance. According to Respondent's owner and manager Todd Williams, there were no problems at all with Petitioner's performance. She was qualified as a salesperson. In 2004, Williams Corporation, a single shareholder entity owned by Mr. Williams, purchased GM Appliance from its previous owner, Curtis Murphy. Mr. Murphy was retiring after owning GM Appliance for many years. Mr. Williams had worked with Mr. Murphy as a wholesaler and was relocating to the Panama City area from Atlanta. At the time of the GM Appliance purchase, Mr. Williams was approximately 40 years old. As would be expected when taking over a business, Mr. Williams made some changes at GM Appliance. He created a new outside sales position. He created and hired a new sales manager. He opened two offices outside of Panama City. Mr. Williams made all the business decisions at GM Appliance. As he was the sole shareholder and owner, Mr. Williams had the sole authority to hire and fire employees. Under Mr. Williams, GM Appliance did not have any formal written employment policies. Respondent has no sexual harassment or anti-discrimination policies and no process on how to handle employment complaints related to age or sex. GM Appliance has no written employee evaluations or job descriptions. If someone had a complaint, he or she needed to "take it to the EEOC," according to Mr. Williams. As a result of Mr. Williams' hiring and firing decisions, the GM Appliance workforce became decidedly younger in Panama City, especially in the sales positions. Since purchasing GM Appliance through 2010, Mr. Williams hired Matt Davis (born 1970) as a sales manager; Ashley Williams (born 1976) in an outside sales position; Kris Westgate (born 1979) as inside sales and delivery; and Amy Farris (born 1982) as inside sales and administrative. In 2010, two sales persons also remained on the staff of GM Appliance from the former owner: Bobby Tew (aged 63) and Petitioner (aged 54). Both primarily worked inside sales. Mr. Williams' hiring decisions made the culture at GM Appliance more "youth" oriented. There was much more juvenile and sexual talk. Mr. Williams was overheard saying that Petitioner wore old women clothes. Some members of GM Appliance's younger workforce often called Petitioner "Mama" or "Old Mama" to her face and behind her back. As a result of the worldwide economic slowdown, the business environment deteriorated for GM Appliance in 2008. To save money, GM Appliance began to cut back on its operations and expenses. In late 2010, unable to stem the tide of losses, Mr. Williams decided he needed to cut additional staff from the sales department in Panama City. Of the six salespeople working in Panama City, he laid off the two oldest: Mr. Tew and Petitioner. The four younger sales persons kept their jobs, but one, Kris Westgate, was reassigned to the warehouse instead of laid off. Also, the two highest paid salespersons, Ashley Williams, Todd Williams' brother, and Matt Davis, remained employed with GM Appliance. Ashley Williams and Davis annually made $45,000 and $80,000, respectfully. Petitioner, at the final hearing, identified the three younger employees retained following her termination as evidence of discriminatory intent: Margaret Walden, Amy Farris, and Matt Davis. Matt Davis, aged 46, was the sales manager and Petitioner's immediate supervisor. Petitioner reported directly to Matt Davis. Amy Farris, aged 30, was originally hired as a secretary to the outside salesman. Although she would sometimes come on the sales floor, her job was to provide support for outside sales. During the course of her employment, her duties expanded to include purchasing agent and SPIFF (manufacturer's incentive program) administrator. Respondent employed outside salespersons and other salespersons (retail sales associates) such as Petitioner, who worked the showroom floor. Outside salespersons reported directly to Respondent's president, Mr. Williams. Margaret Walden, aged 45, was an outside salesperson in Respondent's office in Destin, Florida, and was responsible for developing and maintaining relationships outside the office with client contractors in Destin and South Walton County. A showroom was not maintained at the Destin office. All three identified co-workers held positions with different duties and responsibilities from the position held by Petitioner. Petitioner was not replaced, and no younger (or older) sales associate was retained in a similar position. In July 2011, Respondent hired 51-year-old Steve Williams as a sales associate. This hire was made after the Charge of Discrimination was filed by Petitioner. Steve Williams, a former Sears appliance salesman and manager, solicited a job with Respondent as Respondent had not advertised an available position. After being told repeatedly that Respondent was not hiring sales associates, he offered to accept compensation on a commissioned sales basis. Prior to terminating Petitioner, Respondent terminated six employees, ages 25 (outside sales), 27 (purchasing agent), 52 (warehouse/delivery), 41 (warehouse manager), 59 (accounting manager), and 45 (outside sales) from a period beginning on May 8, 2008, through July 31, 2009. Prior to discharge, Petitioner and the only other associate salesperson on the retail showroom floor, Mr. Tew, had their hours reduced to four days a week. In addition and during Petitioner's tenure, Respondent made changes in the corporation's 401-K plan, health insurance, paid leave, and overtime compensation all changes designed to save money. Mr. Tew was terminated on the same day as Petitioner, September 7, 2010. Janice Heinze (aged 66), Jeff Reeder (aged 54), and Angus Thomas (aged 70), all employees at the Panama City location and all older than Petitioner, were retained by the company. Respondent hired his father (a 1099 contractor), aged 68, to assume outside sales duties at the location in Foley, Alabama, and Cindy Powell, aged 54, was hired to answer the telephone there. Kelly Hill, aged 45, was hired to replace Ms. Walden upon her subsequent resignation and relocation. Petitioner and Mr. Tew were laid off with the intent to rehire. There were no performance or other identified issues with their employment. Mr. Williams stated that he wanted to bring them back to work. Petitioner had better objective sales qualifications than the younger salespeople that were retained. According to the latest records that GM Appliance had, Petitioner was the highest profit margin generating salesperson in Panama City. Mr. Tew had the second highest profit margin. Petitioner and Mr. Tew also had more sales experience and seniority than any of the younger retained workers. Petitioner earned approximately $40,000 in total over the past three years of her employment and has been unemployed since she was laid off in 2010.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent did not commit the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 25th day of June, 2012, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 June, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Daniel Harmon, Esquire Daniel Harmon, P.A. 23 East 8th Street Panama City, Florida 32401 Robert Christopher Jackson, Esquire Harrison Sale McCloy 304 Magnolia Avenue Post Office Box 1579 Panama City, Florida 32402-1579 Lawrence F. Kranert, Jr., General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
