Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, First Federal Savings and Loan Association of Putnam County (petitioner or First Federal), owns and operates a full service savings and loan institution in the Palatka, Florida area. As a part of its regular business operations, petitioner utilizes the services of Florida Informanagement Services, Inc. (FIS), a data processing servicing firm which provides bookkeeping and data processing services. In performing these services, FIS collects financial data from computer terminals located at petitioner's offices and returns processed data in the form of financial statements, payrolls, tax reports, accounts receivable and payable statements, and related information to petitioner. Respondent, Department of Revenue (DOR), is the state agency charged with the responsibility of enforcing the Florida Revenue Act of 1949, as amended. Among other things, DOR performs audits on taxpayers to insure that all taxes due have been correctly paid. To this end, a routine audit was performed on petitioner covering the audit period from June 1, 1985, through December 31, 1989. After the results of the audit were obtained, and an initial assessment made, on September 13, 1991, DOR issued a notice of decision wherein it proposed to assess petitioner $43,204.91 in unpaid taxes. After a petition for reconsideration was filed, DOR issued its notice of reconsideration reducing the assessment to $37,805.92. The parties later reached an agreement as to all issues except an assessment of $11,476.12 for unpaid sales taxes plus applicable interest and penalties. The taxes relate to a charge on the monthly statement issued to First Federal by FIS and which is identified as "total data communications". The assessment concluded that the data communi-cations charge is a taxable sale of a private communication service or a telecommunication service within the meaning of Subsections 203.012(4)(a) and 203.012(5)(a), Florida Statutes (1989). Contending that the assessment should be withdrawn, petitioner initiated this proceeding. The Services Provided by FIS Established in 1968 by a group of savings and loan institutions, FIS is a data processing service bureau headquartered in Orlando, Florida, and which contracts with approximately one hundred clients, all savings and loan institutions, to provide comprehensive data processing and accounting-type services. Its sole purpose is to provide its clients with state of the art data processing services at an economical shared cost. The services being rendered here are commonly provided to banking institutions throughout the state by FIS and a number of similar data processing companies. FIS utilizes a network of long distance telephone lines leased from various telephone companies located throughout the state to collect financial transaction data from each of its member clients, including petitioner. Keyboards are utilized by bank employees at each office to input financial transaction information (e. g., a deposit to or withdrawal from a checking account) to a "data line" or communication channel, which is a multi-link long distance communication pathway leased by FIS from a telephone company. This information is collected by a front end processor and transmitted through the data line to the computer system (mainframe) located at FIS headquarters in Orlando. The computer acknowledges receipt of the transaction, records and processes the transaction, and sends a response back through the data line to the sending terminal. This process is repeated hundreds of times each day for every terminal located at each bank office. At the end of each business day, FIS processes all of the transaction data collected during the day into comprehensive reports which summarize such activities as loan and account balances, bank department activities, automatic teller transactions, and similar information. These reports are then delivered to the banks by courier the next morning. It is noted that during the first two years of the audit period, First Federal had a single data line with twenty-six terminals. In 1987, a second data line was added due to an increase in terminals. Today, First Federal has four offices with a total of forty-eight terminals on two data lines. FIS and its clients have entered into an information processing agreement which governs the provision of services and their price. This contractual relationship between FIS and First Federal began in 1974. Copies of the 1982, 1985 and 1987 agreements have been received in evidence as respondent's exhibits 6 and 7 and petitioner's exhibit 4, respectively. Paragraph 4.(c) of the first two agreements provides that "(t)elecommunications for on-line services will be provided by FIS as part of this agreement" while the 1985 agreement also provides that "(p)rice increases charged to FIS by telecommunications senders will be passed on to the institution". The copy of the 1987 agreement introduced into evidence is incomplete but the testimony suggests that except for the word "telecommunications" found in paragraph 4.(c) of the earlier agreements, the same provisions appear in the more recent agreements. The Data Communications Charge FIS issues on a monthly basis an itemized statement for its services. Among the charges on the statement is one labeled "total data communications", which is based upon the total number and types of computer terminals which can access the FIS computer. The charge is not based on the actual cost of establishing and maintaining the communication pathway but rather is assessed equally upon all FIS clients as an identical monthly flat fee per terminal charge of $86. The same flat fee per terminal charge is assessed regardless of the number of computer terminals utilized by an institution, the number of transactions per terminal, the amount of telephone time consumed, or the geographic distance between the FIS mainframe computer and the customer's location. Thus, the same fee per terminal would be assessed on a bank in Orlando a few blocks from the mainframe computer as one located in Pensacola or the Florida Keys. The data communications charge represents a number of cost elements including the establishment and maintenance of the FIS mainframe computer system, research and development, technical support, company overhead, and the cost of the leased telephone lines. However, the per terminal charge of $86 is neither a direct nor indirect pass-through by FIS of the actual cost of establishing and maintaining the communications link with any individual customer. Is the Transaction Taxable? DOR acknowledges that the various data processing services that First Federal purchases from FIS, which is acting as a "service bureau" under Rule 12A-1.032(6), Florida Administrative Code, are "professional services" and are exempt from taxation under Subsection 212.08(7)(v)1., Florida Statutes. It also admits that as of the date of hearing, it had no "firm" policy on the issue presented herein and was still in the process of developing one. Even so, DOR contends that the services identified as "total data communications", which include the communication network through which FIS collects the raw financial data from its clients for processing, are taxable since these services constitute a private communication service as that term is defined in Subsection 203.012(4)(a), Florida Statutes (1989). There, the term is defined as a communication service that entitles a subscriber "to exclusive or priority use of a communication channel." DOR first relies upon the fact that during the audit period FIS and First Federal had entered into agreements for FIS to provide First Federal with "telecommunications" for its "on line" services. DOR construes this language in a literal sense to mean that FIS is "selling" a telecommunication service. In addition, the agreements allow FIS to increase the data communication charges based upon potential increased telephone costs to FIS. Again, DOR interprets this language as further evidence that FIS is merely reselling a telephone service to its clients. DOR also points out that First Federal has a reasonable certainty of getting its communication through on the communication channel and that no other communication can take place on the line while First Federal is transmitting or receiving a message. It considers irrelevant the fact that First Federal may not have priority or exclusive rights over any other FIS client having access to the FIS data collection system. Thus, DOR concludes that First Federal has "exclusive or priority use" of a communication channel within the meaning of the law. It further concludes that FIS is engaged in the sale of a private communication service (via the leased telephone lines) which gives First Federal access to FIS's computer. The evidence shows that the computer terminals located at petitioner's offices are commonly referred to as "dumb" terminals whose sole function is data input, that is, to transmit data from the institution to the computer mainframe. They cannot be utilized to access the FIS mainframe to perform any type of individualized date processing or other analysis. Further, they cannot communicate with each other using the data lines nor can they communicate with any other financial institution or other computer system. In addition, the lines cannot be used for regular voice communication, and when the institution is closed, the lines cannot be used for any other purpose. Over ninety percent of FIS member institutions share portions of one or more data lines with other FIS clients. Although during the audit period First Federal did not share its two lines with another institution, if one should open an office in the Palatka area and utilize FIS's services, its terminals would be placed on the unused portion of First Federal's lines, assuming such unused capacity is then available. In addition, all of the data collection and processing services are controlled directly by FIS. Thus, no FIS client has any priority in transmitting transaction information or obtaining data processing services over any other FIS customer, regardless of size or geographic location. Rather, the data is collected by FIS according to a pre- determined polling system controlled by a communication processor. Since a single data line can collect information from as many as thirty individual computer terminals, the polling system must "poll" each of those thirty terminals in numeric sequence to determine if the terminal has any data to transmit. Once the polling system has "polled" a particular terminal, the terminal is unable to transmit data until all other terminals have been polled. Further, while a message is being transmitted to or received from the computer mainframe, no other transmissions can take place on the data line, and there is no provision in the system to interrupt a transmission. Processed data is then returned to the institution according to the same numeric cycle. Therefore, no institution has "use" of a data line other than that which is directed by FIS, and the fact that a client can be reasonably assured that FIS will collect its data transmissions in a timely manner does not equate to a "priority use" of the communication pathway. The overall cost of the telephone line "network" represents a substantial portion of the total data communication charges assessed to each customer. However, the terminal charge made to each FIS customer is not truly representative of the cost to FIS of obtaining and providing the actual communications link between FIS and an individual bank. As noted earlier, and by way of example, the cost of establishing and maintaining a telephone link between FIS and a small bank in the Florida Keys or the Panhandle would substantially exceed the data communications charge assessed to those institutions. FIS receives telephone bills from every local and regional telephone company from which it leases telephone lines. During the audit period, it was not uncommon for FIS to receive between seven hundred and one thousand telephone bills per month for services to approximately eighty-four full service data processing clients. These bills included both sales and gross receipts taxes and were paid by FIS on a monthly basis. The FIS accounting department does not analyze the individual charges on the various statements to determine the monthly cost of a data line to an individual customer, nor are the charges made to FIS by the various telephone companies for each FIS client rebilled to any particular institution, either directly or indirectly. Rather, FIS absorbs the cost of the entire telephone network as a part of its normal business expense. The earlier information processing agreements refer to "telecommunication services" being provided under the agreement. However, the agreements also refer to the existence of one or more third party providers (i.e., regulated telephone companies) of the actual telephone service, and FIS makes no charge for "telephone service". While the agreements allow FIS to increase the data communications charges based upon the potential increased telephone costs to FIS, the charges assessed to FIS customers are unrelated to the actual cost of providing the service between any particular institution and the computer. Indeed, the provision simply allows FIS, when deemed to be necessary, to increase the terminal fee based upon an increase in one of its many cost components. Even if this right is exercised, any increase in that charge would be equally assessed on all clients throughout the state, regardless of their size or location. However, it should be noted that FIS has experienced a substantial increase in costs in providing the telephone service in recent years, but has not raised the data communication charge to any client since 1986. FIS has never charged First Federal for "telephone service". It is irrelevant to the institution how FIS establishes or designates its charges. If the data communication charge was deleted and the costs of the other tax exempt charges increased accordingly, First Federal would still continue to utilize FIS's services. During the audit period, FIS was not registered with DOR as a provider of private communication services. Indeed, its only business is providing data processing and accounting-type services. If it was reselling private communication services, as DOR suggests, it would have to register with DOR and pay a 1.5 percent gross receipts tax on the actual cost of operating the system. DOR recently concluded an eighteen month audit of FIS for the period 1985-1989 and determined that FIS was not liable for gross receipts tax on the sale of any alleged telecommunications services. Finally, testimony by an expert who served as DOR executive director during most of the audit period established that when the law was amended effective July 1, 1984, to impose both sales and gross receipts taxes on the sale of private communication services, DOR interpreted the amendments to apply to those providers who were selling communication services which escaped taxation by bypassing the existing telephone companies or other regulated utilities. This included those who provided communications by microwaves, satellites, privately owned telephone lines and "smart buildings", which utilize a combination of both public and private communication systems. The expert further established that if the issue had been raised during his tenure, DOR would not have construed the activity here to be a taxable sale of a private communications service since neither FIS nor its clients were operating outside the existing telephone company pathways thereby escaping the sales and gross receipts taxes. In summary, the evidence supports a finding that First Federal does not have exclusive or priority use of the data lines and accordingly the challenged service cannot be considered a private communication service. In addition, because FIS could not function as a data processing company without the data collection system, which is an integral part of its comprehensive data processing services, the collection of raw financial data must be construed as a tax exempt service. Therefore, the assessment against First Federal should be withdrawn.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order withdrawing (rescinding) the assessment against petitioner. DONE AND ENTERED this 5th day of April, 1993, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 5th day of April, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-2763 Petitioner: Partially accepted in finding of fact 1. Partially accepted in findings of fact 2 and 3. Partially accepted in findings of fact 4 and 6. 4-8. Partially accepted in finding of fact 5. 9. Partially accepted in finding of fact 7. 10-12. Partially accepted in finding of fact 9. Rejected as being unnecessary. Partially accepted in finding of fact 10. 15-16. Partially accepted in findings of fact 7 and 10. 17-18. Partially accepted in finding of fact 8. 19-20. Partially accepted in finding of fact 13. 21-23. Partially accepted in finding of fact 14. 24. Partially accepted in finding of fact 16. 25-27. Partially accepted in finding of fact 15. 28. Partially accepted in findings of fact 11 and 12. 29-30. Partially accepted in finding of fact 11. 31-35. Partially accepted in finding of fact 12. 36. Partially accepted in finding of fact 5. 37-39. Partially accepted in finding of fact 18. Rejected as being unnecessary. Partially accepted in finding of fact 17. Partially accepted in findings of fact 3 and 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3-4. Partially accepted in finding of fact 3. 5. Partially accepted in finding of fact 6. 6. Partially accepted in finding of fact 10. 7. Partially accepted in finding of fact 5. 8. Partially accepted in finding of fact 10. 9. Rejected as being contrary to more credible and persuasive evidence. 10-13. Partially accepted in finding of fact 12. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Mr. Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, Esquire General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Patrick J. Phelan, Jr., Esquire P. O. Box 669 Tallahassee, FL 32302 Lealand L. McCharen, Esquire Department of Legal Affairs The Capitol-Tax Section Tallahassee, FL 32399-1050
The Issue The issue in this case is whether Respondent, a noninstructional employee of Petitioner's, should be fired for theft.
Findings Of Fact At all times material to this case, Respondent Osmel Gonzalez-Escalona ("Gonzalez") was a custodian in the Palm Beach County School District ("District"), assigned to work at Berkshire Elementary School ("Berkshire"). Petitioner Palm Beach County School Board ("School Board") operates the schools within the District and has authority over all District personnel, including Gonzalez. As a noninstructional employee of the District, Gonzalez was subject to the collective bargaining agreement entered into between the School Board and the Service Employment International Union, Florida Public Services Union ("SEIU"). Elsa Ramon was a teacher at Berkshire during the 2007- 08 school year. Gonzalez cleaned her classroom as part of his regular duties. Some time in May 2008, Mrs. Ramon realized that she had not seen her cellular phone since using it on May 6 to call her husband. She recalled having placed a call to her husband that morning and leaving the phone on a table in her classroom. Because Mrs. Ramon did not use her phone frequently, she initially thought she had simply lost or misplaced it. When the phone did not turn up after a diligent search, Mrs. Ramon and her husband obtained a replacement phone from their carrier, T-Mobile. Mrs. Ramon's existing number was assigned to the replacement cell phone. Mrs. Ramon immediately began receiving calls on the new phone for a woman whose name she did not recognize. The frequency of these calls caused Mrs. Ramon to suspect that someone was using her old phone. She and her husband went to the T-Mobile store to report their concern about this possibility. They learned that a huge bill of approximately $3,300 had been run up on Mrs. Ramon's account, the result of numerous phone calls, including many international calls to persons in Cuba. T-Mobile promptly deactivated the phone number; it had been used without Mrs. Ramon's permission for about two weeks. Although Mrs. Ramon had not placed the many, expensive phone calls that produced the charges totaling several thousand dollars, T-Mobile nevertheless demanded that she pay the bill, pursuant to the contract between them. After some negotiation, T-Mobile reduced the charges to about $2,600, which Mrs. Ramon paid. Meantime, on June 2, 2008, Mrs. Ramon reported the theft of her cell phone to the School Police Department, because she believed that the phone had been taken from her classroom. After an investigation that lasted several months, the school police identified Gonzalez as the culprit. On October 3, 2008, Gonzalez was arrested on a charge of grand theft. On January 23, 2009, Gonzalez pleaded guilty, in the Circuit Court in and for Palm Beach County, to grand theft, a third-degree felony. He was sentenced to 12 months' probation and ordered to make restitution to Mrs. Ramon. As of the final hearing in this case, Gonzalez had reimbursed Mrs. Ramon for the loss she had incurred as a result of his unlawful use of her cell phone. At the hearing, Gonzalez admitted using Mrs. Ramon's phone, without her permission, to call friends and family in Cuba and other places. He denied having stolen the phone, however, claiming that he had found it in a store. The undersigned rejects this claim, which is not really exculpatory in any event, as being too implausible to believe. The simplest and best explanation for Gonzalez's having come into unauthorized possession of the cell phone of a teacher whose classroom he regularly entered for work related reasons, which phone was last seen and used by its rightful owner in said classroom, is that Gonzalez himself took the phone from the classroom. This, the undersigned finds, is almost certainly what occurred. Assuming Gonzalez's testimony about finding the phone were credible, however, which it was not, the undisputed fact remains that Gonzalez stole lots of expensive airtime, running up a bill of more than three thousand dollars in just two weeks by making numerous international phone calls, among others, for which Mrs. Ramon was liable. Thus, even in Gonzalez's telling, he committed a crime (to which he pleaded guilty), albeit one whose victim was a stranger rather than a co-worker. Ultimate Factual Determinations Gonzalez stole property from a teacher in whose classroom he worked as a custodian. As a result of this criminal behavior, he was arrested and accused of committing felony grand theft, a charge to which he eventually pleaded guilty. Having admitted to the commission of a felony that victimized an employee of the District, Gonzalez has given the School Board just cause to terminate his employment. Therefore, it is determined that the School Board has sustained its burden of proving, by clear and convincing evidence, the allegations forming the basis for dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a final order dismissing Gonzalez from his position as a custodian in the Palm Beach County School District. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 3rd day of December, 2009.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race or sex.
Findings Of Fact Petitioner is Valerie Miller-Moskowitz. She was employed by Respondent from August 4, 1987 until termination of her employment on September 9, 1987. Respondent is the Tom James Company, an interstate mail order clothing business based in Brentwood, Tennessee with an area sales office in Tampa, Florida. Respondent sells garments through its salespersons as opposed to operation of a retail store. These salespersons, including the office manager, are generally in the office only in the late afternoon in order to make telephonecalls and arrange appointments with customers for the following day. The manager of Respondent's Tampa office, with authority to fire, hire and impose disciplinary actions upon employees at all times pertinent to these proceedings, was Mark Dunphy. Through a process of interviews, Petitioner became a finalist for Respondent's vacant position of "operations manager" in the Tampa office. In the final interview, Petitioner went to Dunphy's home where he and his wife observed Petitioner's operation of a personal computer. Skill in the usage of the personal computer was important to Dunphy since he expected the new operations manager to prepare letters for mass mailing to potential customers through the use of a software program on the computer. The letters, extolling the company's products, would be mailed to potential customers after preparation by the operations manager. Following completion of all interviews, including a psychological evaluation of Petitioner conducted over the telephone with Petitioner by an individual hired by Respondent for that purpose, Dunphy formally hired Petitioner. This occurred sometime around the first of August of 1987. Petitioner's duties as operations manager consisted of being a "jack of all trades" with responsibility for typing, telephone answering and meeting with customers in the absence of salespersons in the office. She was also expected to operate the computer, now moved to the office from Dunphy's home, and to prepare mass mailings. Petitioner initially reported for work on August 4, 1987. At the conclusion of Petitioner's first day on the job, Dunphy went by Petitioner's home at her request. Petitioner was upset as the result of a telephone call from her husband and talked with Dunphy regarding her martial problems. After some discussion, Dunphy, who was growing hungry, asked Petitioner to have a drink and dinner at a local Mexican restaurant. Petitioner consented. The two went to the restaurant, had dinner and continued to discuss their personal backgrounds and experiences. Petitioner, who is black, related her disappointment with her present separation from her husband, who is white. Dunphy is also white. At the conclusion of the dinner, both left for their respective homes in their separate automobiles. As her employment progressed in the following days, Petitioner experienced some difficulty operating the personal computer at the office and called Dunphy's wife on several occasions for guidance in the effective use of the machine. While she managed accounting matters in the office quite well, Petitioner was unable at any time during her brief employment to produce mass mailing letters in a quantity sufficient to meet Dunphy's expectations. Although he was becoming aware that Petitioner's computer skills were not as proficient as he desired, Dunphy continued an amicable relationship with Petitioner. On August 6, 1987, he again invited Petitioner to go out for drinks, but she refused. There were subsequent invitations from Dunphy during thenext week to go out for drinks, to go jogging, and to go dancing. Petitioner declined all these invitations from Dunphy. Approximately two weeks after beginning her employment, Petitioner went to Jacksonville, Florida, for a job related training session sponsored by Respondent. Upon conclusion of the training session on or about August 14, 1987, she and Dunphy agreed in the course of a telephone conversation that Dunphy would meet her at the airport and give her a ride to her home. Dunphy complied and upon arriving at Petitioner's residence, Dunphy escorted her inside where he attempted to embrace and kiss her. Petitioner told him "you shouldn't do this to your wife." Dunphy did not attempt to press his affections further and left Petitioner's home. One day during the next week, in the course of conversation, Petitioner told Dunphy that the day, August 18, 1987, was her birthday. Dunphy proceeded to give her a birthday card in which he inscribed the following: Happy B. Day Val- you inspire me with your attitude toward life, and what life throws at us from time to time. Your[sic] tough in your determination to make a success of your self even in tough personal times. I know you will help me in achieveing[sic] my goals while we are associated together. I know I will be helpful to you in achieveing[sic] your dreams & goals. --This good for one marguerita. Mark In the ensuing days, Petitioner began to be late for work at various times, although Dunphy did not formally document this deterioration of Petitioner's attendance in any time records. Petitioner's car was burglarized during the week of August 24, 1987, and she took time from work to replace her driver's license, credit cards and other documents that were stolen from the vehicle. Dunphy became concerned about Petitioner's attendance at work and the two of them quarreled. Petitioner's husband contacted her in the early part of September, 1987. He was ready to conclude their separation and needed her to come to New York and assist in his move to Florida. Petitioner met with Dunphy on the morning of September 9, 1987, and informed him of her intention to take the following two work days (Thursday and Friday) off in order to go to New York to deal with family business matters. When Dunphy expressed reluctance to authorize the time off for Petitioner, she became angry and declared that she would be taking the time off anyway because her "family came first." Dunphy, already disappointed with Petitioner's failure to meet expectations regarding operation of the personal computer and preparation of mass mailing materials, also became angry and told Petitioner to leave since she was going anyway. Petitioner took Dunphy's response to mean that she was fired and left the business premises. Later in the day, Petitioner contacted an accountant in the company's home office for assistance in persuading Dunphy to reconsider and continue her employment. Those efforts were unsuccessful. After conclusion of her trip to New York, Petitioner wrote to Respondent's president at the company's home office on September 16, 1987, and complained of Dunphy's verbal abuse and unprofessional displays of anger. In the letter, she opined that Dunphy was a good salesman, but needed additional training in order to become a "people oriented supervisor." Notably, she made no specific reference to racial discrimination or sexual harassment in the letter, although she noted Dunphy's attempts "to pressure the Operations Manager into going out for drinks, when both parties are married."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 10th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 10th day of April, 1990. APPENDIX The following constitutes my ruling on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings Rejected, not supported by the weight of the evidence. Adopted in substance, though not verbatim. Rejected, a mere restatement of Petitioner's position. To the extent that this proposed finding seeks to establish that Petitioner rejected advances of Mark Dunphy, the proposed finding has been substantially adopted with regard to one occasion, but not verbatim. Adopted in substance. Rejected, argumentative as to legal conclusion regarding burden of proof rather than proposed finding of fact. 6 Rejected, not supported by the weight of the evidence. Rejected, relevancy, conclusion of law. Adopted in substance as to firing and date of same. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence, legal conclusion and argumentative. Rejected, not supported by weight of the evidence. Rejected, not supported by the weight of the evidence. Respondent's Proposed Findings 1.-3. Rejected, unnecessary. Modified to extent that Dunphy operated Respondent's Tampa office. Addressed in substance as to Respondent Tom James Company. 6.-10. Adopted in substance, but not verbatim. Petitioner's hiring found to have occurred on August 4, 1987, otherwise this proposed finding is adopted in substance. Adopted by reference. Not supported by weight of the evidence with regard to lack of capability of Petitioner, adopted in substance with regard to Dunphy's disappointment with her performance abilities. Adopted in substance. Petitioner's version that August 4, 1987, was her first day of work is adopted on the basis of the witness' credibility as opposed to Dunphy's testimony on this point. 16.-19. Adopted in substance. 20. Rejected, relevancy. 21.-23. Rejected, relevancy. 24. Adopted by reference. 26. Rejected, relevancy and cumulative. 27.-28. Adopted in substance. 29.-30. Rejected, relevancy. Rejected, cumulative. Rejected, cumulative. 33.-34. Rejected, unnecessary. Adopted in substance. Rejected as to Dunphy's version of these events on the basis of the comparative creditability of the witnesses on this particular point. Adopted in substance, though not verbatim. 38.-41. Adopted in substance, though not verbatim. 42.-44. Rejected, not supported by the weight of the evidence. 45.-48. Rejected, unnecessary. 49.-66. Rejected as argumentative of proposed findings postulated by Petitioner. COPIES FURNISHED: Donald A. Griffin Executi
Findings Of Fact On or about May 14, 1985, Petitioner filed a Complaint of Discrimination against Respondent alleging discrimination based on his handicap. Petitioner was employed as medical director and physician with Respondent from July, 1984 until November, 1984 when he was discharged. He was denied reinstatement in December, 1984 and April, 1985. It is unrebutted that the sole basis for Petitioner's discharge was the fact that he has had a laryngectomy. It is readily apparent that Petitioner has had a laryngectomy, but also that he is capable of communicating with others by means of a voice prosthesis which is not visible to the public. Petitioner indicates, and there is no evidence to the contrary, that he is capable of performing all duties of medical director and physician, and that he has worked at other clinics since his discharge. Notice of the hearing was sent to Respondent at its business address, but said notice was returned by the Post Office with the notation, "Moved Left No Address". It appears that Respondent has closed its clinic. Notice was then sent to Respondent's President, Dr. Rudolph Bono, and said notice has not been returned by the Post Office.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued finding that Respondent has unlawfully discriminated against Petitioner based upon his handicap. DONE AND ENTERED this 18th day of December, 1986 in Tallahassee, Florida. DONALD D. CONN 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 18th day of December, 1986. COPIES FURNISHED: Wayne M. Carroll, Esquire Post Office Box 496 Lake Butler, Florida 32054 Dr. Rudolph Bono Harborage Condominiums 1631 Gulf Boulevard Clearwater, Florida 33517 Miles A. Lance, Esquire Post Office Box 4748 Clearwater, Florida 33518 Ronald M. McElrath, Coordinator Office of Community Relation Post Office Box 4748 Clearwater, Florida 33518
Recommendation Based on the foregoing, it is RECOMMENDED that the Florida Division of Emergency Management issue a final order dismissing Berger's First Amended Formal Written Protest and Petition for Formal Administrative Hearing. DONE AND ENTERED this 10th day of June, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 2015. COPIES FURNISHED: Timothy Cerio, General Counsel Office of the Governor The Capitol, Suite 209 Tallahassee, Florida 32399-1001 (eServed) Mindy Dowling, Agency Clerk Florida Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 (eServed) Michael Terrence Kennett, Chief Legal Counsel Florida Division of Emergency Management 2555 Shumard Oak Boulevard Tallahassee, Florida 32399-2100 (eServed) Thornton Williams, Esquire Williams Law Group, P.A. Suite 1-B 800 North Calhoun Street Tallahassee, Florida 32303-8714 (eServed) David A. Yon, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301-1722 (eServed) Eduardo S. Lombard, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301-1515 (eServed) William Robert Vezina, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301-1515 (eServed) Brittany Adams Long, Esquire Radey Law Firm, P.A. Suite 200 301 South Bronough Street Tallahassee, Florida 32301-1722 (eServed) James A. McKee, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 (eServed) Benjamin J. Grossman, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 (eServed) Robert H. Hosay, Esquire Foley and Lardner, LLP 106 East College Avenue, Suite 900 Tallahassee, Florida 32301-7732 (eServed) Megan S. Reynolds, Esquire Vezina, Lawrence and Piscitelli, P.A. 413 East Park Avenue Tallahassee, Florida 32301-1515 (eServed) Harriet W. Williams, Esquire Williams Law Group, P.A. Post Office Box 10109 Tallahassee, Florida 32302-2109 (eServed) John A. Tucker, Esquire Foley and Lardner, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202-5017 (eServed)
Findings Of Fact Petitioner, a black (Afro-American) female, was employed from July 1987 to January 1993 as a clerk-typist in the Economic Services Division of the Department of Health and Rehabilitative Services (HRS) District II, located in Tallahassee, Florida. In that position, she performed primarily clerical tasks, including typing for seven persons and answering phones. HRS' District II headquarters for Economic Services oversees the operation of HRS field offices providing benefits for state and federal entitlement programs over a fourteen county area. Economic Services Program Administrator Donna McKenzie is in charge of HRS' District II Economic Services office. During 1992, the staff in the District Economic Services office under Ms. McKenzie's supervision consisted of twenty workers, some of whom were clerical staff. Emma Harrell, Ms. McKenzie's personal secretary was classified as a Secretary Specialist, also considered clerical staff. Four other female clerical staff, designated Clerk-Typists, were Betty Simmons, Sheila Bethea, Petitioner, and Janna Lewis-Harrell. Of these five, only Ms. Harrell is white (Caucasian). The other clerical staff are black (Afro-American). At all times material, Janna Lewis-Harrell was physically located in the Economic Services Division but was technically a part-time employee of another division. At all times material, Emma L. Harrell was the only clerical person responsible primarily to just one supervisor, Ms. McKenzie. Except for Emma Harrell, all the clericals were responsible to numerous "professionals" in the HRS chain of command. Emma Harrell was employed at a higher grade than all the other "clericals" except Betty Simmons, who was employed at a grade higher than Ms. Harrell. Sheila Bethea and Petitioner were employed at grades lower than Ms. Simmons. Normal working hours in the HRS Economic Services office were from 8:00 a.m. to 5:00 p.m., with a one hour lunch break, Monday through Friday. However, at least two HRS employees, one black clerical and one white clerical, were approved to work flex-time. In both situations, their flex-time requests were required to be in writing and were approved not by Ms. McKenzie, but by Ms. McKenzie's supervisors. From October 1991 through June 1992, Emma Harrell (a white clerical) was authorized to work on Mondays, Wednesdays and Fridays from 7:30 a.m. to 4:30 p.m. with a one hour lunch, and on Tuesdays and Thursdays from 7:30 a.m. to 4:00 p.m. with a half hour lunch. Ms. Harrell had applied for this as an open-ended arrangement on October 21, 1991, because it was the only way to adequately coordinate parental supervision with the activities of her then fifteen year old son. Apparently, Ms. Harrell minimally abused this first flex-time authorization, because she testified that at all times, she was the only person who had a set one hour lunch period from 12:00 noon to 1:00 p.m. Subsequently, when Ms. Harrell's son's circumstances changed, she applied June 5, 1992 for another change of schedule. On June 9, 1992, Ms. Harrell was authorized to work every day from 7:30 a.m. to 4:30 p.m. with a one hour lunch break. Ms. Harrell worked this schedule partly to accommodate Ms. McKenzie, who worked 7:30 a.m. to 4:30 p.m. On June 26, 1990, Betty Simmons (a black clerical) had applied retroactively for a differential schedule limited to the period of June 25 - August 31, 1990. This also was to accommodate child care considerations. The last paragraph of her request read, "If you see that this time change is for the betterment of the agency, I would like for my hours to remain the same after this period." On July 3, 1990, Donna McKenzie's supervisors approved Betty Simmons' request upon the following terms, "begin the workday at 8:00 a.m., observe a 30 minute lunch period and complete the workday at 4:30 p.m. This approval will be for June 25 through August 31, 1990, only." The approval either overlooked or denied Ms. Simmons' request to leave the change in place indefinitely. Janna Lewis-Harrell's (a black clerical's) work schedule was also adjusted at her request by her supervisors. Responsibility for answering the phone fell on the five clericals, including part-time worker Janna Lewis-Harrell. Under the monthly phone duty schedules, each clerical staff member was assigned primary duty to answer the phone one day a week, and was assigned backup duty another day of the week. Usually, a person's "primary" day immediately followed her "back up" day on the planned schedule. Staff with primary duty would be responsible for answering the phones on their designated day, while the back up staff would answer the phones when the primary staff member was unavailable for reasons including, but not limited to, chores such as photocopying, which took them away from their respective desks. This setup gave the impression that some people would have two busy phone days in a row, depending on respective work loads and the number of phone calls that came in on any given day. Office policy dictated that the phones be answered between 7:30 a.m. and 5:00 p.m. Although the prescribed schedule was posted weekly and in advance, the schedule was aspirational, not mandatory. Clericals were free to trade primary and backup duty days with another clerical without their supervisors' permission, and they did so on a frequent basis. The expectation was that each clerical requesting such a trade off would make up the time traded to her during the month by working the time-slot traded to her by the clerical who had covered for her. The need for phone coverage from 7:30 a.m. to 8:00 a.m. was not instrumental in either of Ms. Harrell's adjustments of hours. However, both by aspiration and in practice, Ms. Harrell usually answered the phones between 7:30 a.m. and 8:00 a.m., every day Monday through Friday. On the days Ms. Harrell was authorized to leave at 4:30 p.m., her backup was routinely required to handle the phones until 5:00 p.m. That meant that routinely Emma Harrell's backup, which backup rotated among the other four clericals, was required to answer phones for an extra hour or half hour at the end of Emma Harrell's primary days and no clerical staff member except Emma Harrell had to answer phones before 8:00 a.m. any day. Since the other clericals did not arrive until 8:00 a.m., they saw only that Emma Harrell left early, requiring them to provide her backup. They did not understand or believe that she was also arriving at work early. Sometimes, Mr. Jimmy J. Cozart and others also answered phones before 8:00 a.m. (See FOF 25). Mr. Cozart was an intermediate "professional" and a mid-level supervisor between clericals Petitioner, Sheila Bethea, Betty Simmons, and Division Administrator Donna McKenzie. By all accounts of all witnesses (white, black, professional, or clerical) the aspirational phone rotation system never functioned ideally. It was an ongoing source of disgruntlement to everyone in the office, but it was most especially vexing to the five clericals responsible for answering the phones. There was constant chatter and commentary by the clericals concerning the failure of certain people, most notably Emma Harrell, to cover the phone on their primary or backup days because they were away from their desks on other employment related tasks. Ms. Harrell's insistence on taking lunch at a set time and her abuse of taking one hour instead of thirty minutes Tuesdays and Thursdays from October 1991 to June 1992 probably aggravated matters (See FOF 8). In the months immediately prior to August 1992, some clerical staff, most notably Petitioner, complained orally to Mr. Cozart and to Ms. McKenzie that it was unfair for Ms. Harrell to leave early, requiring one of the other four clericals to answer the telephone from 4:30 p.m. to 5:00 p.m. and that Ms. Harrell was "not pulling her fair share." No one specifically complained to Mr. Cozart or Ms. McKenzie that on certain weeks Ms. Harrell had no phone duty, that Ms. Harrell disregarded or refused to answer phones on days when she had primary coverage, that Ms. Harrell refused to honor her promises to take another's phone duty when she and a coworker had traded phone coverage days, or that she was regularly abusing her lunch hour privileges. Oddly enough, events seem to have reached a fever pitch after Ms. Harrell reverted on June 9, 1992 to a uniform 4:30 p.m. departure time with a one hour lunch period. In July 1992, the black clericals, that is, all the clericals except Emma Harrell, requested a meeting to resolve phone coverage issues. Donna McKenzie met with each of the five clericals individually instead of in a group because, as Ms. McKenzie testified at formal hearing, "It seemed like they were all ganging up on Emma." Petitioner construed Ms. McKenzie's refusal to hold a group meeting of the clericals as racially based and racially biased. She sent Ms. McKenzie a July 28, 1992 letter expressing dismay that the black clericals' request for a group meeting had not been granted, in her opinion, in order to protect the white employee from meeting with black clericals in a group to discuss the phone coverage. On August 12, 1992, Ms. McKenzie did hold a group meeting of the entire office staff, white and black, clerical and professional, to go over the phone situation. Although Ms. Harrell was not singled out in a negative manner, the need for everyone to work as a team was stressed in a positive manner and a written memorandum of detailed phone duties was circulated to all personnel. During the meeting, Mr. Cozart made a comment to Petitioner when she tried to ask a question. Petitioner testified that she took Mr. Cozart's remark to be derogatory of herself personally, because it was not directed at Ms. Simmons (black) or Ms. Harrell (white), who also had asked questions. Petitioner was not satisfied with the interracial group meeting. She prepared a letter dated August 12, 1992. That letter, which is long and disjointed in its approach, stressed that everyone, including Emma Harrell, should leave at the same time, preferably 5:00 p.m., or that everyone should rotate the privilege of leaving early. The letter also peripherally alluded to Ms. Harrell's temper and bad attitude and asserted that the office was run on coloring. Petitioner clearly stated that until that situation was corrected, Petitioner refused to cover the phone for the white clerical, Emma Harrell. Although Petitioner, Ms. Simmons, and Ms. Bethea testified that the phone rotation system was racially biased and that their superiors "letting [Ms. Harrell] get away" with abuses of the rotation schedule was racially motivated, their testimony was not persuasive. Ms. McKenzie tried to respect Ms. Harrell's phone schedule, but sometimes chores had to be done away from Ms. Harrell's desk. The office diagram in evidence does not show that any of the three black clericals who testified had a desk situated so that she could tell at all times when Ms. Harrell was legitimately away from her desk and phone on necessary work-related chores. The unrefuted evidence showed that Ms. Harrell's phone abuses, if any, never increased anyone's hours of work; that no one ever worked more than forty hours a week; and that no one ever had to work later than her normal quitting time as a result of Ms. Harrell's alleged abuses. Petitioner apparently decided that Ms. Harrell was not answering telephones before 8:00 a.m. because a few times she called in between 7:30 and 8:00 a.m. and other people answered the phone. The credible evidence of Ms. Harrell, Ms. McKenzie, and Mr. Cozart is that anyone who was present before 8:00 a.m. answered the phones on a first come/first served basis (See FOF 16). Petitioner also testified that when she complained to Ms. McKenzie about being Ms. Harrell's primary backup just before the Cozart incident, Ms. McKenzie agreed to accommodate her request for a change (TR 99), and when she complained about Ms. McKenzie not calling a biracial meeting, Ms. McKenzie did so. Ms. McKenzie just did not call the meeting to Petitioner's exact specifications. This is accounted for by managerial "style" rather than racial bias (See FOF 23). It is therefore found that the phone rotation as a racially discriminatory factor was perceptual, not factual. On Friday, August 14, 1992, Emma Harrell was "primary" on the printed phone schedule and scheduled to leave at 4:30 p.m., as usual. Janna Lewis- Harrell was her "backup." For reasons not fully disclosed in the record, Janna Lewis-Harrell (black) was not expected to "cover" for Emma Harrell (white) from 4:30 to 5:00 p.m. that day, and Emma Harrell's offer to stay to "help out" was rejected by Mr. Cozart. Under the circumstances, Mr. Cozart's duty was to find alternative phone coverage for the period between 4:30 and 5:00 p.m. He did not want to do it himself because he was suffering back pain and wished to go to a pre- scheduled chiropractic appointment. First, Mr. Cozart tried to persuade Ms. Simmons and Ms. Lewis-Harrell to cover the phone, but was informed that both were going home early that day. Around 3:50 p.m., Mr. Cozart went to Sheila Bethea's office, where he spoke with Ms. Bethea and Petitioner, requesting that one of them answer the phone after Emma Harrell went home at 4:30 p.m. Ms. Bethea refused Mr. Cozart's request outright. Petitioner also refused Mr. Cozart's request outright. Rather than simply ordering one of them to cover the phones since their work day did not officially end until 5:00 p.m. anyway, Mr. Cozart started to explain their job descriptions, then stopped and started to exit Ms. Bethea's office. What happened next was the subject of a great deal of testimony. After consideration of all the evidence, it is here found that Mr. Cozart believed Petitioner was impeding his access to the doorway, and he struck the back of Petitioner's shoulder at least three times with a shoving motion sufficient to cause a sound and a mild stinging sensation to Petitioner's back, repeatedly saying "Let's go. Let's go. Let's go!" In doing so, his only intent was to get Petitioner to precede him out of the office doorway and go back to her own work station or at least to get Petitioner out of his way so that he could go back to his own work. Petitioner was never bruised, abraded, or incapacitated in any way by Mr. Cozart's forceful touching. She did, however, utter an angry verbal retort. Mr. Cozart's unrefuted testimony that he never saw Petitioner's August 12, 1992 letter before this incident, and that he would never have asked Petitioner to stay until 5:00 p.m. to answer phones on August 14 if he had known Petitioner previously had written that she henceforth refused to cover for or backup Emma Harrell, is accepted as credible. Mr. Cozart's testimony that he was anxious to get out of Ms. Bethea's office because he thought the conversation with Petitioner was going to evolve into some religious discussion with Petitioner which he did not want also is accepted as credible. In further analysis of the evidence, it is also found that the forceful shoving by Mr. Cozart was not racially or gender motivated and was not intended as a battery to do physical harm to Petitioner. It was, however, of greater impact than Mr. Cozart intended it to be or thought it was at the time, and it constituted a totally unacceptable touching of a subordinate by a supervisor. In making the foregoing findings, the undersigned has carefully considered the testimony of all four witnesses who offered any direct evidence concerning the actual incident: Petitioner, Cozart, Bethea, and Simmons. The credibility or lack thereof of the witnesses' respective versions of the event has been weighed. Specifically, the candor and demeanor of each witness has been assessed and the consistencies and inconsistencies of Petitioner's and Cozart's testimony have been compared with the testimony of Sheila Bethea, the only other eye witness, and the testimony of Betty Simmons, who overheard part of the immediate verbal aftermath of the incident. Petitioner's minor son, who reportedly heard what Mr. Cozart said while touching Petitioner and Petitioner's oral retort, did not testify. Petitioner returned to her desk after the altercation with Mr. Cozart in Sheila Bethea's office and immediately typed up her impressions of what had occurred in Ms. Bethea's office. She did not hand this item, dated August 14, 1992, to Mr. Cozart. Instead, she gave him a multi-page document she had prepared the previous day, August 13, 1992. Petitioner's August 13, 1992 missive is disjointed and verbose. It is filled with vague accusations that Cozart, McKenzie and others have harassed Petitioner and with Biblical quotations and prophetic statements of judgment, retribution, and doom against those who have allegedly harassed Petitioner and against the children of the alleged harassers. Emma Harrell's name is mentioned, and the word "prejudice" appears several times in this item but one would be hard-pressed to figure out it was a complaint about a racist phone situation or about Emma Harrell, specifically. Although persons of Petitioner's unique religious bent might see her August 13, 1992 letter as proclaiming peace and joy, most readers would not reach that interpretation of its contents. Indeed, it would not be stretching a point to see the August 13, 1992 letter as a hostile and threatening letter. Petitioner's testimony characterized this letter as "letting [Mr. Cozart] know that what goes around comes around." Mr. Cozart skipped his chiropractic appointment and answered the office phones himself until 5:00 p.m. on August 14, 1992. Two calls came in. The incident between Mr. Cozart and Petitioner was made known to Ms. McKenzie upon her arrival at 7:30 a.m. on Monday, August 17, 1992. At 8:30 a.m., Mr. Cozart also phoned in and told Ms. McKenzie what had happened. Shortly thereafter, Ms. McKenzie heard that the police were coming to see Petitioner. Ms. McKenzie then called Petitioner to see if the police had arrived. Ms. McKenzie then spoke with the District II Personnel Office, which instructed her to speak with Petitioner. Ms. McKenzie approached Petitioner and asked what had occurred the previous Friday. Petitioner stated only that her civil rights had been violated, and refused to discuss the particulars of the incident. Ms. McKenzie backed off from further "pushing" Petitioner to answer her either at Petitioner's desk or to speak privately with her in Ms. McKenzie's office because of Ms. McKenzie's past experience with Petitioner that Petitioner became easily "upset" and "had a tendency to file grievances," and due to Petitioner's current attitude. Acting pursuant to further instructions from the Personnel Office, Ms. McKenzie interviewed Ms. Bethea and Mr. Cozart separately on August 18, 1992. Ms. McKenzie's supervisors then instructed her to get written statements from each participant. Accordingly, Ms. McKenzie instructed Mr. Cozart, Ms. Bethea, and Petitioner to explain in writing what had happened. Petitioner and Mr. Cozart complied immediately. Petitioner's written statement was the one she had typed on August 14, 1992, immediately after the Cozart incident (See FOF 31). It did not mention Ms. Simmons as a potential witness, but did show Petitioner's son had heard, but not seen, the incident. Ms. Bethea did not provide a written statement until urged to do so in late November 1992 (See FOF 43). Ms. McKenzie did not press Ms. Bethea for a statement because, upon consultation with HRS District Program Manager Ralph D. Harmsen, Ms. McKenzie was instructed that, since the police were investigating the incident, Ms. McKenzie was not to pursue the matter at least until after the police finished. Some of Mr. Harmsen's reasoning on this matter seems to have been that since he knew Petitioner had previously filed internal agency grievances against supervisors and had not done so in this instance, she had made some sort of election to only pursue a criminal action. Petitioner was interviewed by a female police officer in the HRS offices on August 17, 1992 and a written report was filed that day. Petitioner and Sheila Bethea gave sworn affidavits to the police on August 20, 1992. None of these items named Ms. Simmons as a potential witness. Petitioner's affidavit stated her son had heard it all but saw nothing. Mr. Harmsen's initial directive to Ms. McKenzie had been to interview and get written statements from all witnesses. Ms. McKenzie admittedly did not interview either Betty Simmons or Petitioner's minor son, each of whom overheard some of the altercation, but there is no evidence Ms. McKenzie understood that either Ms. Simmons or Petitioner's son had any useful evidence, and she at least orally suggested to a police investigator at some point that Petitioner's son might be a witness. In late August 1992, Hurricane Andrew swept through South Florida. Because of the crisis, HRS actively sought volunteers from HRS offices statewide to go to Miami and assist with the problems caused by the hurricane. Petitioner and Ms. Bethea volunteered and left for south Florida on September 2, 1992. Ms. Bethea returned in two or three weeks. Petitioner stayed in south Florida until early October 1992. Concerned about the time Petitioner was spending in south Florida, Ms. McKenzie telephoned in late September 1992 to ask when Petitioner would be returning. During this conversation, Ms. McKenzie suggested to Petitioner that everyone, including the police, were anxious to conclude the criminal matter. Petitioner told Ms. McKenzie that she planned to drop the charges against Mr. Cozart. When Ms. McKenzie inquired further, Petitioner stated "I wanted to teach Mr. Cozart a lesson." Petitioner phoned the police to drop the charges the same day. However, the police "investigation," as such, had actually concluded on September 8, 1992, after interviews with, and/or statements from, Petitioner, Ms. Bethea, and Mr. Cozart. The police report stated that Donna McKenzie had stated that no other witness had seen the incident, as was, in fact, true. Petitioner's son and Ms. Simmons were not interviewed by the police. As of September 8, 1992, the authorities had concluded that criminal prosecution was not feasible since the case hinged on Mr. Cozart's intent and it was his word against Petitioner's. Petitioner returned to the HRS District II Office in early October 1992. She inquired repeatedly in the HRS Personnel Office concerning the status of HRS' investigation of the August 14, 1992 incident with Mr. Cozart. In response, HRS' Personnel Office instructed Ms. McKenzie to turn in all written witness statements. Since Ms. Bethea still had not provided her statement to HRS as instructed by Ms. McKenzie, Ms. McKenzie repeated her instruction to Ms. Bethea, who then turned in her written statement. Ms. McKenzie forwarded the three written statements of Petitioner, Cozart, and Bethea to the Personnel Office. Ms. McKenzie was informed that management would review the statements and make a decision. On December 10, 1992, Petitioner filed her original discrimination complaint with the Florida Human Relations Commission. Mr. Harmsen reviewed all the information he had, which included the three written eyewitness statements, none of which mentioned a racial issue; the police report; and Petitioner's hostile August 13, 1992 letter (See, FOF 32). He did not have a copy of Petitioner's July 28 or August 12, 1992 letters which more clearly related the phone situation to race. He did have Petitioner's August 14, 1992 statement (See, FOF 31) which also does not allude to any racial problem about the phones. There had been no previous written allegations concerning discrimination from any other blacks, and historically, Petitioner generally perceived everything she considered negative in the office as related to racial discrimination. Accordingly, Mr. Harmsen did not believe Petitioner's charges to be credible or believe the cause of the phone coverage discontent had a racial component or that the August 14, 1992 incident had been racially motivated. Petitioner has charged that Donna McKenzie intentionally misled Mr. Harmsen when she failed to focus his attention on the black clericals' oral complaints and give him Petitioner's earlier letters charging that the phone rotation system was racially motivated. However, based upon what Ms. McKenzie knew of the phone situation (See FOF 19 and 25), the lack of clarity on this point in all three witnesses' incident statements, and Petitioner's initial lack of cooperation (See FOF 35), this accusation was unproven. Mr. Harmsen felt he could discern no real way to determine who was right or wrong, or even what happened with regard to the incident on August 14, 1992. Although he had Ms. Bethea's statement, from his point of view, the situation presented a "swearing contest" between Petitioner and Mr. Cozart, with Ms. Bethea's statement not clearly supporting either side. Even the Tallahassee Police Department, which was better equipped and trained to ferret out the truth, had not reached a conclusion as to what really happened sufficient to prosecute Mr. Cozart for battery upon Petitioner. Mr. Harmsen, like the police, concluded that there was no way to decide whether Petitioner or Mr. Cozart was right or wrong in their descriptions of the August 14, 1992 incident. Nonetheless, he decided that Mr. Cozart should be disciplined for the incident to prevent any future such incidents. He instructed Donna McKenzie to "counsel" with Mr. Cozart as a means of discipline and to record the counseling in Mr. Cozart's personnel file. This method of discipline is one of the prescribed methods of discipline under the State's personnel rules. On or about December 18, 1992 Ms. McKenzie counselled with Mr. Cozart and filed a memorandum in his personnel file that stated, During your many years with this agency, you have demonstrated an ability to approach staff on all levels in an appropriate manner. It is expected this ability to effectively relate will continue. Harmsen, McKenzie, and Cozart perceived the foregoing as a disciplinary action against Cozart, however mildly worded. Nevertheless, Mr. Harmsen perceived that it had become impossible for Petitioner, Cozart, and McKenzie to work together harmoniously. Mr. Harmsen was authorized to reassign employees within 50 miles of their current work site. In deciding who to reassign, Mr. Harmsen had to consider the following factors: The person reassigned should have the same degree of responsibility in his or her new position and cannot lose salary as a consequence of the reassignment. Management should try to find the best fit between knowledge, skills and abilities of the person reassigned in his or hew new position. Management must avoid if possible the loss of valuable experience as a result of the reassignment. Management must consider the likelihood of finding a replacement of comparable experience, knowledge, skills and abilities of the person reassigned. In the instant situation, Mr. Cozart had thirty-three years experience and Ms. McKenzie twenty-seven years experience as professionals in the economic services area. No available position existed to which they could be reassigned without placing them in a position in which they would be grossly over qualified. Moreover, the likelihood of finding a suitable replacement for Mr. Cozart and/or Ms. McKenzie was slim, and failure to do so would seriously impede the productivity of the District II Economic Services Division. Reassigning Petitioner on the other hand, presented a different picture. There was an available clerical position at Florida State Hospital which fit nicely with her pay grade and her knowledge, skills and abilities. Furthermore, Petitioner's work site at Florida State Hospital was thirty to forty-five minutes closer to her home than the District II Economic Services office in Tallahassee. On January 5, 1993, Petitioner was reassigned to the personnel office at Florida State Hospital in Chattahoochee, Florida. Mr. Harmsen, who ultimately decided this action, did so because of the remaining personnel problems in the Economic Services office, not in any racial retribution against Petitioner. Petitioner claimed at formal hearing that her educational development was impeded by the transfer of job location sites because she was enrolled in a Lively Vocational Technical course in Tallahassee which began shortly after she got off work, but Petitioner did not protest to Mr. Harmsen concerning her reassignment for any reason at the time it was made. Between the date of Petitioner's reassignment and the date of formal hearing, Mr. Cozart retired and legislative budget cuts eliminated Petitioner's former position in the Economic Services office. The possibility this cut could occur existed at the time of Petitioner's reassignment and was known to Mr. Harmsen. There is every likelihood that, because of the cut, Petitioner would have been reassigned to a different, less desirable, location by a "bumping" procedure, had she remained in the Tallahassee office.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Petition for Relief and its underlying discrimination claim be dismissed. RECOMMENDED this 2nd day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 2nd day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-2252 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 1-6, 12-14 and 44. 4 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 18, 19, 21, 23, 25, 45 and 55. 5-6 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 3, 17 and 54. 7-9 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 4-6, 18-25, 36-38 and 45-48, especially 19 and 21. 10 Rejected as stated as not supported by the greater weight of the credible evidence. Covered in FOF 18-25, 36-38, and 45-48, especially FOF 19 and 21 and 45-48. 11-12 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. Covered in FOF 22-24. Accepted in part and rejected in part upon the greater weight of the credible competent evidence as covered in FOF 26-31, espcially 29-30. Rejected as stated because as stated, it is misleading and mere argument. Covered as proven in FOF 18, 19, 21, 23, 25-30, 36-38, and 43-48, especially 21, 25, and 45-48. Accepted that testimony conflicted on this issue but otherwise rejected as covered in FOF 8 and 25. Rejected as stated, because as stated it is misleading and not supported by the greater weight of the credible competent evidence. Covered in FOF 7-12 and 25. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 8-9, 15-16, and 25. Accepted as covered more accurately in FOF 35-39 and 43-48. 19-20 Accepted in part and rejected in part as covered more accurately in FOF 25, 34-39 and 43-48. Also, the footnote is rejected as not accurate as stated and as non-determinative. Mr. Harmsen had seen many hostile discrimination allegations and religious exhortations of Petitioner before, and this history, rather than Ms. Harrell's rank or her being placed in the phone rotation mix, influenced him. See FOF 4-6 on actual ranks. 21-22 Rejected as not supported by the greater weight of the credible competent evidence. See, FOF 19-25, and 35- 48. As to the last clause of the last sentence of PFOF 21, the record actually shows that Ms. Bethea "waffled" on this issue and Ms. McKenzie could not recall if she had told Sheila Bethea at any point that her statement was not needed, but same is still immaterial because both HRS and the police obtained a written statement from Ms. Bethea. The PFOF is rejected as mere argumentation and as not supported by the greater weight of the credible competent evidence. See FOF 35-39 and 42-48. The footnote is accepted at FOF 34. Rejected as mere argumentation and as covered in FOF 29-30, upon credibility. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See, FOF 48-50 and 56. Respondent's PFOF: 1-2 Accepted in FOF 2-5. Unnecessary, subordinate or cumulative material has not been utilized. 3-4 Accepted except that Janna Lewis-Harrell's employment has been more accurately conformed to the record evidence in FOF 5 and 12, work hour situations and who approved flex-time have been more accurately conformed to the record in FOF 7-11, Ms. Harrell's motives are in FOF 9 and 15. 5-6 Accepted in FOF 13-16. Unnecessary, subordinate or cumulative material and argumentation has not been utilized. 7 Accepted in FOF 18-25 and 43-48, especially 19 and 25; footnote covered in FOF 17. Unnecessary, subordinate or cumulative material has not been utilized. 8 Accepted in FOF 20, 25-26, 35-38 and 43-46. Unnecessary, subordinate or cumulative material and mere argumentation has not been utilized. Accepted in FOF 27. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in part and rejected in part after reconciling where possible and weighing the credible evidence in FOF 28-30. Accepted in FOF 33. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 34. Accepted in FOF 35. Accepted in FOF 36-39 and 43-48. Accepted in FOF 40. Accepted in FOF 41. Accepted in FOF 43, except for the last sentence, which is deemed out of chronology, or mere argumentation. Accepted as modified for acuracy in FOF 48. Unnecessary, subordinate or cumulative material has not been utilized. Rejected in favor of greater accuracy in 49-50. Argumentation has not been utilized. Accepted in FOF 56 except that introductory, unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 45-48. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 51. Accepted in FOF 52. Accepted in FOF 53. Accepted in FOF 54. Accepted in FOF 55. Accepted as modified in FOF 58 to more accurately reflect the record. COPIES FURNISHED: John R. Perry, Esquire DHRS District 2 Legal 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 Jack McLean, Esquire Legal Services for North Florida 2119 Delta Way Tallahassee, Florida 32303-4220 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it. Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991. J. STEPHEN MENTON 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134 Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16 and 18. Adopted in substance in Findings of Fact 16 and 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. Rejected as irrelevant and unnecessary. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25 and 26. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Daniel E. Jonas, Esquire Jonas & Jonas 300-71st Street Suite 630 P. O. Box 41-4242 Miami Beach, Florida 33141 David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza Charlotte, North Carolina 28280
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on October 19, 2015.
Findings Of Fact Respondent manufactures and supplies residential windows and doors. On June 15, 2015, Petitioner was hired by Respondent to work as a Technician 1. Petitioner’s responsibilities included working on the manufacturing assembly line for windows. Petitioner’s employment with Respondent was subject to a 90-day probationary period which would have ended on or about September 15, 2015. However, on or about August 18, 2015, Respondent terminated Petitioner’s employment, and Petitioner contends that Respondent’s decision to terminate his employment resulted from unlawful discriminatory animus. Respondent disagrees with Petitioner’s allegations and contends that legitimate business reasons motivated its decision to terminate Petitioner’s employment with the company. Background Events Prior to August 4, 2015 The Employment Charge of Discrimination alleges that Petitioner believes that he was the victim of unlawful discrimination while working for Respondent. Petitioner alleges what will generally be described as three categories of conduct in support of his charge of discrimination.1/ First, Petitioner alleges that a white coworker named Adam “made a statement saying black people are a waste of space,” and that Petitioner’s immediate supervisor, Eric Christman, who is also white, laughed in Petitioner’s presence after hearing the offensive statement. Second, Petitioner claims Mr. Christman created a racially charged work environment by routinely segregating employees to work in groups based on race. Third, Petitioner claims that when he complained to Respondent’s office of human resources about Mr. Christman’s behavior, Mr. Christman retaliated against him by terminating his employment with the company, and that the decision to terminate his employment was the result of illegal racial animus. Adam Petitioner and an employee named Adam (last name unknown) were hired at the same time and worked on the same team. Although Adam did not testify during the final hearing, the undisputed evidence is that Adam is an individual who identifies as white. At some point during July 2015, Petitioner, Adam, Mr. Christman, Yvonnte Hartsfield, and a few other workers, were on lunch break when Petitioner and Adam started conversing. During the course of the conversation, Adam stated that “blacks are a waste of space.” Both Petitioner and Ms. Hartsfield were offended by Adam’s statement. Petitioner testified that Mr. Christman laughed in response to Adam’s statement and took no action against Adam for making the offensive remark. Ms. Hartsfield corroborated Petitioner’s testimony and testified that she also witnessed Mr. Christman laughing in response to Adam’s offensive statement. Petitioner did not report the incident to Respondent’s office of human resources or to anyone else working in a managerial capacity at the facility. Segregated Work Environment There were approximately 12 individuals who worked on Petitioner’s team while he was employed by Respondent. Petitioner testified that there were times during his employment when production volume in his assigned work area had decreased which resulted in Mr. Christman temporarily reassigning workers to other work-groups throughout the plant. According to Petitioner, it was routinely the case that Mr. Christman reassigned the black and Hispanic workers to other work-groups, while allowing the white workers to remain in their original work assignments. This practice by Mr. Christman resulted in the minority workers having a more labor intense work day, while the white workers in Mr. Christman’s group were essentially idle due to the lack of work. Two of Petitioner’s coworkers testified that they too had observed how the work environment had been segregated in this manner. According to former PGT employee Chris Russo, who is white, “[i]t was like, there was a bunch of, like, racist redneck people there, and they had black people over there, and they’d always keep us separated.” Ms. Hartsfield testified that it appeared to her that Mr. Christman sent the two black workers (her and Petitioner) and the Mexican worker to other production lines while the Caucasians workers remained at their regular work stations. Personal Cell Phone Usage Respondent provides to all of its employees a “PGT Team Member Handbook” (handbook), which Petitioner received on his first day of employment. The handbook, with respect to personal cell phone usage, provides as follows: While at work, team members are expected to exercise the same discretion using personal cell phones as they would using PGT phones. Personal calls and texting during work hours, regardless of the phone used, can interfere with productivity and be distracting to others. Team members are expected to make personal calls during breaks or lunch and should communicate with friends and family members to ensure they are aware of the policy. Team members must inform their leader of the need to use a cell phone while working on the line and obtain permission (which will be granted/denied on a case-by- case basis). Failure to do so may result in disciplinary action. In addition, company- issued cell phones should be turned off or set to silent or vibrate mode during meetings and in other locations where incoming calls may disrupt normal workflow. During July 2015, Mr. Christman, on several occasions, observed Petitioner using his cell phone while on company time. Apparently, cell phone use by employees while working in the production area had become an issue; so sometime in July 2015, members of Respondent’s management team called a group meeting and reminded Petitioner, and other members of the window assembly team, of the company’s cell phone usage policy. Within a few days of the group meeting, Mr. Christman, on August 4, 2015, received on his cell phone a photo image of Petitioner using a cell phone while on the production line. Adam had taken the picture and sent it to Mr. Christman. Soon after receiving the picture of Petitioner on his phone, Mr. Christman met with Petitioner and issued him a “confirmation of conversation,” which is the second step, following a verbal warning, on Respondent’s progressive discipline scale. The confirmation of conversation provides in part that Petitioner is expected “to be in compliance with company policy, [that] [i]mmediate and sustained improvement is expected, [and] failure to correct the [behavior] may result in further disciplinary action up to and including termination of employment.” On August 5, 2015, the day after Petitioner received the confirmation of conversation, he contacted Respondent’s office of human resources and complained that Mr. Christman had treated him unfairly and was discriminating against him on the basis of race. In response to Petitioner’s concerns, a meeting was held on August 6, 2015, where Petitioner was able to meet with Mr. Christman; Ron Clarke, who was Mr. Christman’s supervisor; and Karla Lugo, a representative from human resources. Petitioner requested a transfer to another unit, but after it was explained to him by Mr. Clarke that he needed to stay in his current unit to better learn the job, Petitioner agreed to remain in his position which was supervised by Mr. Christman. Petitioner suggests that Mr. Christman was motivated by racial animus when he disciplined him for unauthorized cell phone usage. Petitioner admitted during the final hearing that on the day in question he was in violation of Respondent’s cell phone usage policy. Nevertheless, Petitioner contends that employees often use cell phones while working and, to his knowledge, are not disciplined, as he was, for their transgressions. Yvonnte Hartsfield has worked for Respondent for several years assembling doors and windows. Ms. Hartsfield testified that she often observed employees using their cell phones while assembling window frames. Ms. Hartsfield testimony is, however, imprecise regarding when her observations were made in relation to the meeting that management had with employees in July 2015 during which employees were told that they were expected to comply with the company’s cell phone usage policy. Petitioner offered no credible evidence that he was treated differently from other employees who, after being reminded of the company’s cell phone usage policy, continued to use their cell phones while working on the production line. Retaliation In Petitioner’s Employment Charge of Discrimination, he mentions several times that he complained to human resources about Mr. Christman’s alleged racist behavior and that Mr. Christman treated him worse after learning of his complaints. The credible testimony establishes that Petitioner did not complain to management about any issues of discrimination until August 5, 2015, which is the day after Petitioner received the confirmation of conversation resulting from his unauthorized cell phone usage. Petitioner offered no credible evidence of any retaliatory actions taken against him by Mr. Christman between August 5 and August 18, 2015, the date upon which Petitioner’s employment was terminated. Respondent’s Reason for Firing Petitioner On August 13, 2015, Petitioner, while operating machinery known as a frame welder, caused the machine to malfunction, which resulted in damage to a window frame and a three and one-half hour loss of use of the machine while repairs were performed. Corey Marks, who works for Respondent as a maintenance technician, testified that he serviced the frame welder in question on August 13, 2015, after Petitioner caused the machine to fail. Mr. Marks credibly testified that he performed a failure analysis on the machine and determined that the problem in question occurred as a result of Petitioner not operating the machine properly. When questioned by Respondent about what caused the frame welder to malfunction, Petitioner offered two theories, neither of which were confirmed by Respondent’s investigation as to the cause of the malfunction. First, Petitioner advised that the machine unexpectedly started on its own, and second that the machine has a “hair trigger” which resulted in Petitioner inadvertently starting the machine. Mr. Marks’ failure analysis did not substantiate either of Petitioner’s theories as to why the machine failed. Respondent, when considering that Petitioner, while on employment probation, had been disciplined for unauthorized cell phone usage and, through inattentiveness, had caused a substantial delay on productivity by damaging the frame welder, decided to terminate Petitioner’s employment. The decision to terminate Petitioner was made by Respondent’s department of human resources. No Evidence of Pretext Petitioner claims that other individuals had damaged Respondent’s machines and were not terminated as a result thereof. Respondent, on cross-examination, elicited the following testimony from Petitioner: Q: You said earlier that there were white employees who broke machines with no action taken. Do you recall that testimony? A: Yes. Q: Who were those employees? A: I was new at the time. So I don’t know. Q: Can you name a single one? A: Nope. Q: Can you name a single machine that you saw broken by a white employee against whom no action was taken? A: No. Hearing Transcript, pgs. 82-83. Mr. Russo, who is white, testified that a frame welder malfunctioned once while he was operating the machine and that he was not disciplined as a result of the incident. The scenario described by Mr. Russo is not comparable to Petitioner’s situation because Petitioner’s incident occurred as a result of operator error, as opposed to an equipment malfunction. Petitioner has failed to offer evidence which establishes that Respondent’s reason for terminating his employment is simply a pretext for unlawful discrimination.
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, PGT Industries, did not commit an unlawful employment practice as alleged by Petitioner, Alain Blaise, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 2nd day of March, 2017.
The Issue Whether the proposal Petitioner submitted in response to Respondent's Request for Proposal No. 00-DC-7295 was non- responsive.
Findings Of Fact Stipulated Facts On or about August 14, 2000, the Department issued RFP No. 00-DC-7295 for an Inmate Telephone System. Generally, RFP No. 00-DC-7295 requests proposers to submit proposals to provide local, intralata, interlata, and international telephone services for inmates in the Department's facilities identified in the RFP and coin- operated telephones at each site for staff and visitors. The proposer awarded the contract under RFP No. 00-DC-7295 (the Contractor) must provide and install all telephone instruments and all wiring. The Contractor must also provide system administrators and site technicians who will implement and manage pin numbers and calling lists for inmates, and must provide various specified reports and data to the Department All services, equipment, etc., addressed in RFP No. 00-DC-7295 must be provided to the Department at no cost. Instead, the Contractor must pay the Department a commission calculated as a percentage of gross revenues. Consequently, the contract to be awarded under RFP No. 00-DC-7295 is a revenue-generating contract for the Department. Sprint, T-NETIX, WorldCom at AT&T timely submitted proposals to the RFP. On November 6, 2000, the assigned Department Purchasing Staff member, Genanne Wilson, determined the AT&T and Sprint proposals to be non-responsive for failing1 to meet the mandatory requirements of the RFP. Sprint's proposal was also determined to contain a material deviation2 from the RFP. The determination that the Sprint proposal failed3 to meet the mandatory requirements of the RFP and contained a material deviation was based on Sprint's inclusion of the following underlined language on the Supplemental Proposal Sheets wherein the proposers were instructed to appropriately initial in understanding and agreement each paragraph of the RFP: Liquidated Damages With the express understanding the total liquidated damages are limited to $100,000.00 by the Limitation of Remedies in Section 7.32. Following the determination that the Sprint proposal failed4 to meet the mandatory requirements of the RFP and contained a material deviation, Sprint's proposal was not further evaluated by the Department. The T-NETIX5 and WorldCom proposals were individually evaluated by each member of an Evaluation Team pursuant to the criteria specified in the RFP. On Tuesday, December 5, 2000, the Department posted its intended award of the contract for RFP No. 00-DC-7295 to WorldCom. Sprint and T-NETIX each timely filed a protest to this intended award. Findings of Fact Based on the Evidence of the Record On or about October 13, 2000, the Department issued Addendum No. 1 to RFP No. 00-DC-7295 which reprinted the original RFP in its entirety and included 67 revisions. Section 4.3.6 of the RFP specifies that, "[t]he Department shall reject any and all proposals not meeting mandatory responsiveness requirements." Section 5.1 of the RFP, reads in pertinent part as follows: Tab 1 - Mandatory Responsiveness Requirements The following terms, conditions, or requirements must be met by the proposer to be responsive to this RFP. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet responsiveness requirements will not be evaluated. It is mandatory that the proposer supply one (1) original and ten (10) copies of both the Project and the Cost Proposals. Project and Cost Proposals shall be in separately sealed packages each clearly marked "Project Proposal - RFP-00-DC-7295" or "Cost Proposal - RFP-00-DC-7295" respectively. Inclusion of any commission rates or pricing data in the Project Proposal shall result in rejection of the entire proposal. It is mandatory the proposer return, under Tab 1, the Supplemental Proposal Sheets (Attachment 1) of this RFP document, appropriately initialed in understanding and agreement of each paragraph of the RFP and signed by the person with authority to properly bind the proposer. It is mandatory the proposer complete, sign and return, under Tab 1, the PUR Form 7033, State of Florida Request for Proposal/Contractual Services Acknowledgment which is the front cover of this RFP document. A copy of the document that includes both front and back sides is acceptable. (emphasis in original) Section 6.1 of the RFP further provides: 6.1 Review of Mandatory Responsiveness Requirements Proposals will be reviewed by Department staff to determine if they comply with the mandatory requirements listed in Section 5 of the RFP. This will be a yes/no review to determine if all requirements have been met. Failure to meet any of these mandatory requirements will render proposal non-responsive and result in rejection of the proposal. Further evaluation will not be performed. No points will be awarded for passing the mandatory requirements. (emphasis in original) RFP Section 7.30, entitled, "Liquidated Damages," addresses liquidated damages for various requirements and services to be provided by the successful proposer under the contract for an inmate telephone system. Section 7.30 does not contain a cap or limitation on liquidated damages. RFP Section 7.32, entitled "Limitation of Remedies," addresses the limitation of remedies for the performance or non-performance of machines and programming. There is no cap or limitation on liquidated damages established by RFP Section 7.32. Sprint altered the Supplemental Proposal Sheets by limiting liquidated damages under Section 7.30 to $100,000 based upon its understanding of the relationship between Sections 7.30 and 7.32 of the RFP. Specifically, Sprint read Sections 7.30 and 7.32 in para materia and concluded that total liquidated damages would be "limited to $100,000 by the limitation of remedies in Section 7.32." Mike Jewell, who at the time the RFP was issued, was Sprint's Vice President of Sprint Payphone Services, Inc., was responsible for "oversight over the responses that Sprint submitted and to make sure that they were in keeping with the corporation's business interests." Mr. Jewell testified that the purpose of inserting this language in the proposal was to, "point out to the Department of Corrections that our agreement to 7.30 had to be read in conjunction with the language in the agreement in [sic] 2.7.3.2." Mr. Jewell acknowledged that vendors had the opportunity to ask questions prior to the submittal of their proposals to the Department and that Sprint did not ask any questions regarding the relationship between Sections 7.30 and 7.32 of the RFP. A letter written by Paul Eide, Customer Care Manager for Sprint, and faxed to the Department on November 21, 2000, after the opening of the proposals, stated in pertinent part: In response to the RFP, we found the liquidated damages section to [sic] vague and confusing to the exact dollar amount of a penalty situation. Our intentions were to point out the ambiguity and merely cap the amount so the winning vendor was not liable for an infinite amount of money. Although Sprint requested permission from the Department to remove the $100,000 cap on liquidated damages after the opening of the proposals, the Department did not permit Sprint to do so. Genanne Wilson, a purchasing analyst in the Department's bureau of purchasing, was the person charged with reviewing the proposals for responsiveness. Ms. Wilson determined that Sprint did not meet the requirement of Section 5.1.2 and, therefore, failed to meet the mandatory responsiveness requirements of the RFP. That determination was confirmed by her bureau chief. As specified in Section 6.1 of the RFP, further evaluation was not performed on Sprint's proposal. The evidence submitted by Sprint is not sufficient to establish that Sprint's proposal was responsive. Rather, the evidence establishes that Sprint chose to alter or modify the Supplemental Proposal Sheets even though those who submitted proposals were advised in Sections 5.1 and 6.1 that failure to meet any of the mandatory responsiveness requirements would render a proposal non-responsive and result in rejection of the proposal and that further evaluation would not be performed. Sprint's failure to signify its understanding and agreement to Section 7.30 by initialing the supplemental proposal sheets without more resulted in a failure to meet the mandatory requirement in Section 5.1.2. Sprint's failure to meet the mandatory requirement constitutes a material deviation from the RFP. The Department's determination that Sprint's proposal was non-responsive was consistent with the clear, express language of the RFP which informed proposers of mandatory requirements and that proposals found to be non- responsive would not be further evaluated. Sprint's proposal was not responsive to the RFP because it failed to meet a mandatory requirement and it contained a material deviation. Both defects arise from Sprint's attempt to limit its exposure to liquidated damages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Corrections enter a final order dismissing the bid protest filed by Sprint. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 6th day of April, 2001.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: The Petitioner, Anna Torres, (hereinafter "Torres") worked for the Department of Transportation as a toll collector at the Golden Glades toll plaza and was a career service employee at all times pertinent to this case. At the time of the events giving rise to this case, Torres had been employed by the Department for about eight years. Torres was authorized to be on approved leave from October 24, 1989, through November 8, 1989. Torres used that period of leave to drive from South Florida to California to visit her parents. Torres was accompanied on the trip by her roommate. Torres was expected to return to work on November 9, 1990. Torres' father had been sick for several years and during her visit his condition took a sudden turn for the worse, as a result of which it was necessary for her father to be hospitalized. Torres was very concerned about her father's medical condition and felt a need to remain in California until it could be determined whether her father was going to recover from his worsened condition. To facilitate a longer stay in California, Torres' mother offered to pay Torres' airfare from California to Florida in the event Torres could not obtain additional leave, and the roommate offered to drive the car back. On November 7, 1989, Torres placed a telephone call from her parents' home in California to the Golden Glades toll plaza. She spoke with Mildred Burham, who was, and is, the assistant manager at the Golden Glades toll plaza and the supervisor of one of the shifts. Mildred Burham was not the supervisor of Torres' shift. The essence of what Torres told Mildred Burham is that, because of a family emergency, Torres needed to stay in California for another two weeks and wanted a two week extension of her vacation. Torres also asked Mildred Burham to convey the message to Vera Hulse. 1/ Vera Hulse was, and is, the manager of the Golden Glades toll plaza. At that time, Torres did not have sufficient annual or sick leave to cover an additional absence of two weeks. During the November 7, 1989, telephone conversation, Mildred Burham told Torres that she (Burham) would "check into" the request for additional leave and would convey Torres' message to Vera Hulse. Ms. Burham did not tell Torres that the two week extension of her vacation was approved. 2/ During the November 7, 1989, telephone call, Torres did not give Ms. Burham the telephone number at her parents' house in California. Instead, she told Ms. Burham that if they needed to get in touch with her, they could call Torres' son at her home in Florida and he could give them the California telephone number. When Ms. Burham told Vera Hulse about the telephone call from Torres, something apparently got lost in the translation. The message communicated to Ms. Hulse was to the general effect that Torres had called and said that because of a family problem Torres would not be back to Florida for another two weeks. Ms. Hulse was not advised that Torres was requesting leave; only that Torres would be two weeks late getting back due to a family problem. Torres was scheduled to work on the following days: November 9, 10, 11, 14, and 15, 1989. Torres did not report for work on any of those days, nor did she have any other communication with her employer after the telephone communication of November 7, 1990, until November 20, 1989, when Torres called again. Between November 9 and November 20, 1989, Ms. Burham and Ms. Hulse called Torres' home telephone number in an effort to contact her son and obtain the telephone number where Torres was staying in California. Those efforts were unsuccessful. On November 9, 10, 11, 14, and 15, 1989, Torres was placed on unauthorized leave without pay. On November IS, 1989, the Department sent Torres a letter advising her that because she had failed to report for work and had been on unauthorized leave without pay since November 10, 1989, she was deemed to have abandoned her position and to have resigned from the Career Service.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Administration enter a final order in this case concluding that the Petitioner, Anna Torres, did not abandon her position of employment with the Department and ordering that she be reinstated to her position as a toll collector with back pay. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 27th day of June, 1990. MICHAEL M. PARRISH, 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 27th day of June, 1990.
