The Issue Whether the Florida Department of Health’s (“Respondent” or “Department”) determination that Tallahassee Corporate Center, LLC (“Petitioner” or “TCC”) submitted a nonresponsive reply to the Department’s Invitation to Negotiate (“ITN”) No. 640:0040 is contrary to the Department’s governing statutes, rules, policies, or the solicitation specifications; and, if so, whether the decision was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The ITN The Department is a state agency that seeks space for administrative offices, a call-center facility, and claimant hearings. The Department currently leases office space from TCC, which lease expires on October 31, 2019. On July 19, 2017, the Department issued the ITN seeking vendors that could provide 135,815 square feet of office space for lease. The Department issued one addendum to the ITN on September 1, 2017, deleting a requirement that the space be contiguous within a single building. There were no challenges to the terms, conditions, or specifications contained in either the ITN or the amendment thereto.4/ Both TCC and TRV are potential lessors which submitted replies to the ITN. The ITN includes a provision expressly reserving the Department’s “right to negotiate with all responsive and responsible Proposers, serially or concurrently, to determine the best-suited solution.” (emphasis added). The term “Proposer” is defined in the ITN to mean “the individual submitting a Reply to this [ITN], such person being the owner of the proposed facility or an individual duly authorized to bind the owner of the facility.” This reservation of rights placed interested lessors on notice that only responsive proposers could be invited to negotiations. The Department seeks to lease space in either an existing building or a building to be constructed in the future. In the Introduction, the ITN describes the proposals requested as follows: The [Department] is seeking detailed and competitive replies to provide built-out office facilities and related infrastructure for occupancy by the [Department]. As relates to any space that is required to be built-out pursuant to this [ITN], see Attachment “A” which includes the [Department] Specifications detailing the build-out requirements. The proposed facility may be within an existing building or a non-existing building designed as a Build-to-Suit to meet the [Department] Specifications. The specifications in Attachment A provide the basic requirements for the potential leased space, including the required type, number, and square feet of each space (i.e., office, workstation, conference room, storage), as well as the voice and data requirements for each space. The ITN provides that Attachment A “is an integral part of this ITN.” Section III.A. of the ITN details the requirements for responsive replies, including documentation demonstrating control of the property, a floor plan to scale, and return of each ITN page with the proposer’s initials. In addition, for Build-to- Suit proposals, responsive replies must include the proposed site plan, and may include building renderings.5/ Section IV. provides the Lease Terms and Conditions, and requires replies to indicate whether the proposer will meet each term and condition by marking either a “Yes” or “No” option with an “X.” Section IV.B. provides that the space must be made available for occupancy on September 1, 2019. This section emphasizes the importance of timely occupancy, requiring submission from the Lessor to the Tenant Broker of items to assure same, such as the sample construction project schedule, documentation of construction inspections, a performance bond, and proposed and final floor plans. Section IV.B. is not limited in applicability to Build-to-Suit leases. In fact, Section IV.B. provides that, for build-to-suit leases, the lessor must also provide architectural design and construction plans to the Department of Management Services for prior approval. Section IV.G. is titled “Space Availability – Turn-Key Build Out,” and requires as follows: The State requires a “turn-key” build-out by the Lessor. Therefore, Proposer shall assume all cost risks associated with delivery in accordance with the required space program specifications detailed in Attachment A. Proposer agrees to provide a “turn-key” build-out in accordance with the space program specifications detailed in Attachment “A” following the [Department]’s approval of an architectural layout provided by the Proposer: YES or NO “Turn-key” is a term of art in the commercial leasing industry meaning to deliver a space to the lessee which can be occupied immediately. The turn-key requirement is applicable to both build-out of an existing facility and build-to-suit new construction. By the terms of the ITN, the requirement for a turn- key build-out applies to all proposers, and is not restricted to proposers offering a build-to-suit option. TCC’s Reply TCC submitted a proposal for an existing building, the very building in which the Department currently leases space for the functions described in the ITN. Item IV.G In its reply, TCC responded “NO” to the statement “Proposer agrees to provide a ‘turn-key’ build-out in accordance with the space program specifications detailed in this Attachment A following the [Department]’s approval of an architectural layout provided by the Proposer.” In the space between Items IV.G. and IV.H., TCC added the following typewritten language: 10 Year Term – TI Allowance capped at $7 psf ($3.50 psf beginning year 1/$3.50 psf after year 5) 15 Year Term – TI Allowance capped at $10 psf ($5 psf beginning year 1/ $5 psf after yr. 5). In an apparent effort to explain the interlineated text in its reply, TCC also submitted an “Additional Response” sheet with its ITN reply, which reads as follows: ITN:640:0400 Additional Response Attachment A/[Department] Specification As the current Landlord for the [Department], our response proposes a “Stay In Place” option. Under this option, we propose a Tenant Improvement Allowance in order for the [Department] to address any Tenant Improvements necessary. With [Department] currently occupying the space, it would be impossible to ask them to move out of its existing office space in order to meet the requested [Department] Specifications in Attachment A. A “stay-in-place” offer is also a term of art in the commercial leasing industry which references negotiations between an existing lessee and lessor for a new lease of the space currently occupied by the lessee. The terms of the ITN are clear: the Department is seeking to negotiate with all proposers which agree to meet its space program specifications. TCC’s representative, Todd Hakimi, testified (both in his deposition and at final hearing), that TCC’s reply offered a stay-in-place option, rather than a turn-key or build-to-suit lease. Mr. Hakimi further testified that he formulated the response to the ITN on his understanding that the space currently leased to the Department by TCC was satisfactory to the Department, thus no buildout of the space was necessary to comply with the ITN. Mr. Hakimi’s testimony is belied by TCC’s supplemental response explaining that it would be impossible to ask the Department to “move out of its existing office space to meet the requested Agency Specifications in Attachment A.” In the supplemental response, TCC admits that the Department is seeking space which meets specifications not met by the existing office space. TCC’s reply was nonresponsive. By responding “No” to Item IV.G., TCC indicated it would not comply with the Department’s space program specifications in Attachment A, which is an integral and material component of the ITN. Tenant Improvement Allowance Instead, TCC’s reply offered a Tenant Improvement Allowance (“TIA”), shifting the burden to the Department to meet its space program requirements, rather than providing a “turn- key” space on September 1, 2019. Moreover, TCC’s reply “capped” the TIA at a per- square-foot amount, essentially limiting the amount TCC would pay toward the space program requirements set forth in Attachment A. In doing so, TCC refused to “assume all cost risk associated with delivery in accordance with the space program specifications” as required by Item IV.G.6/ If accepted, Petitioner’s response would give TCC a competitive advantage over other responders who agreed to “assume all cost risk associated with delivery in accordance with the space program requirements.” Broker Commission Item IV.J., another mandatory lease condition, requires lessors to agree to execute a Commission Agreement, which was attached to the ITN as Attachment G, another integral and material component of the ITN: Proposer acknowledges review of the Commission Agreement (Attachment G). Proposer agrees to execute and be bound by the Agreement should the Proposed Space be selected by the [Department]. YES or NO The Commission Agreement includes a schedule for the commission rate based on the total aggregate gross base rent that could be paid ranging from 3.50 percent on the first $500,000 of base rent to 2.50 percent on the base amount of $8.5 million and over. TCC checked “YES” in response to Item IV.J., but contradicted that reply by adding “Agree to 2% commission.” Mr. Hakimi testified that he offered a two-percent commission because he viewed his reply to the ITN as a renewal of the current lease, and it is customary to give a lower broker commission for renewal than for a new lease. The Department was not seeking a renewal lease. The ITN sought proposals to meet the agency space program specifications either within an existing building or at a build- to-suit location. TCC refused to be bound by this material term of the ITN, thus TCC’s reply was nonresponsive. If accepted by Respondent, TCC’s lower broker commission rate would have given TCC a competitive advantage over other proposers. Control of Property The ITN also provided that to be responsive, each lessor was required to submit documentation demonstrating the lessor’s control of the property proposed for the leased space: Replies must completely and accurately respond to all requested information, including the following: (A) Control of Property (Applicable for Replies for Existing and/or Non-Existing Buildings). For a Reply to be responsive, it must be submitted by one of the entities listed below, and the proposal must include supporting documentation proving control of the property proposed. * * * The owner of record of the facility(s) and parking area(s) – Submit a copy of the deed(s) evidencing clear title to the property proposed. * * * The authorized agent, broker or legal representative of the owner(s) – Submit a copy of the Special Power of Attorney authorizing submission of the proposal. The Special Power of Attorney form was attached to the ITN as Attachment H, another integral part of the ITN. Section K of the ITN clearly states, “Attachment H . . . is required if submitting on behalf of owners.” Attachment D to the ITN was a Disclosure Statement which solicited from proposers information about the ownership of the property, including the name of the titleholder, as well as the titleholder’s social security number or federal employer identification number, as applicable. TCC’s reply contained a blank Attachment D. TCC’s reply included a deed identifying DRA CRT Tallahassee Center, LLC (“DRA CRT”), as the owner of the property offered for lease. TCC’s reply was executed by TCC President, Lyda Hakimi. TCC did not execute Attachment K or include an executed power of attorney to demonstrate that TCC has control of the property on behalf of DRA CRT. TCC owns DRA CRT, but the two are different legal entities. In order to demonstrate control of the property owned by DRA CRT, TCC was required to execute Attachment K or otherwise provide a power of attorney to demonstrate authority to bind the owner to TCC’s proposal. TCC’s reply did not demonstrate control of the property as required by the ITN. TCC’s reply was not responsive on this issue. Waivable Minor Irregularity TCC contends that its failure to include an executed power of attorney was a minor irregularity which should have been waived by the Department. TCC’s argument is twofold. First, TCC maintains that the Department had actual knowledge that TCC was DRA CRT’s agent because the Department was currently leasing the property from TCC. Second, TCC maintains that proposals by other responders failed to establish control of the property, but were nevertheless deemed responsive by the Department.7/ TCC’s first argument is not persuasive. As discussed in the Conclusions of Law, the undersigned’s role is not to make independent findings based on the evidence of record, but to determine whether the Department’s failure to waive the minor irregularity was arbitrary, capricious, or clearly erroneous. In support of its argument that the Department acted arbitrarily in its determination that TCC was nonresponsive on the issue of control of the property, TCC introduced, over strenuous objection, the ITN response from TRV and two separate responses from OAG Investment 3, LLC (“OAG”). TRV’s reply reveals TRV is the owner of the property. TRV’s proposal is executed by John McNeill as “Advisor” to TRV, and includes an executed Attachment H, Special Power of Attorney, from John Abernathy granting power of attorney to Mr. McNeill to act on his behalf regarding the ITN. TCC complains that TRV’s proposal does not demonstrate the relationship between TRV and Mr. Abernathy or establish Mr. Abernathy’s authority to grant a power of attorney on behalf of TRV. Thus, TCC argues, TRV’s reply suffers from the same defect as its own--failure to demonstrate control of the property--so the Department acted arbitrarily in failing to waive that nonconformity for TCC. Petitioner’s argument is not well-taken because the facts are distinguishable. First, as to TRV’s response, TRV is both the owner of the property and the proposer for the ITN. In contrast, TCC is the proposer, but not the owner of the property. Second, TRV’s reply documents, on Attachment D, establishes Mr. Abernathy’s authority “to conduct business as a representative of” TRV. TRV’s reply included the required deed evidencing ownership, as well as a completed Attachment D Disclosure, and Attachment H Special Power of Attorney. By contrast, in TCC’s reply, it neglected to complete either Attachment D or Attachment H. TCC made no effort to document the proposer’s authority to bind the property owner to the terms of the ITN. The facts relating to TRV’s reply are not sufficiently similar to TCC’s for the undersigned to conclude that the Department acted arbitrarily in failing to waive TCC’s nonconformity relating to control of the property. The same applies to the proposals from OAG. OAG’s reply for property on Barcelona Lane shows ownership of the property by the Townsend Mary D. Trust (“Trust”) and a purchase and sale agreement between the Trust and OAG executed by Mary Townsend on behalf of the Trust. TCC first complains that the Trust holds the property by a Quit Claim Deed, which “does not prove title or control.” Second TCC alleges that the reply does not establish Mary Townsend’s authority to execute the purchase and sale agreement on behalf of the Trust. As to OAG’s reply for the Mahan Drive property, TCC complains that the warranty deed identifies ownership of only a 30-percent interest in the property, and the purchase and sale agreement to OAG is from six named individuals, one of whom is noted as a trustee of an unidentified trust, and only three of whom have an ownership interest in the property based on the deed submitted. It is beyond the undersigned’s authority to determine whether OAG’s replies establish control of the property per the ITN specifications. The only purpose for which the TRV and OAG replies were admitted was to rebut the Department’s assertion that TCC’s reply was nonresponsive on the issue of control of the property. The factual differences between TCC’s documentation of ownership and control and those of the OAG proposals, do not support a finding that the Department acted arbitrarily in failing to waive the nonconformity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing Tallahassee Corporate Center, LLC’s Petition. DONE AND ENTERED this 31st day of May, 2018, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 31st day of May, 2018.
The Issue Whether Respondent's Amended Petition for Administrative Hearing should be dismissed and whether the Board of Trustees of Florida A and M University should issue a final order dismissing Respondent from employment?
Findings Of Fact By letter dated November 10, 2011, Petitioner, the Florida Agricultural and Mechanical University (the University) notified Respondent, Laurence Tromly, that his employment with the University was terminated effective immediately. Respondent filed a Petition for an administrative hearing through his attorney to contest the dismissal. The University transmitted the case to the Division of Administrative Hearings (Division) on or about January 17, 2012, for the purpose of conducting a formal administrative hearing. A Notice of Hearing and Order of Pre-Hearing Instructions were issued on January 26, 2012, setting the case for hearing on April 10 through 13, 2012. The Order of Pre-Hearing Instructions required the parties to meet no later than ten days prior to the date of the hearing to discuss the possibility of settlement and many pre-hearing matters, and to file a pre-hearing stipulation a week prior to the hearing or, if for any reason the pre-hearing stipulation could not be executed by all parties, to file separate proposed pre-hearing statements no later than five days before the final hearing. On March 12, 2012, counsel for Respondent filed a Motion to Withdraw as Counsel. In the Motion, Respondent's attorney stated that she had made repeated attempts to contact her client by certified mail, numerous phone messages, e-mail correspondence, and regular U.S. mail. Despite these attempts to communicate with her client, she was unable to do so. Pursuant to Florida Administrative Code Rules 28-106.103 and 106.204, the undersigned waited the requisite number of days to rule on the motion, giving Respondent ample opportunity to file an objection or any clarification as to why the motion should not be granted. On March 27, 2012, the undersigned entered an Order granting Motion to Withdraw as Counsel, mailing a copy to Respondent at the last known address for Respondent as reflected in his former counsel's motion. On April 4, 2012, the University filed a Unilateral Pre- hearing Stipulation and Motion to Dismiss. Counsel for the University stated in the unilateral statement that she sent correspondence via e-mail and U.S. Certified Mail to Petitioner enclosing a copy of the Pre-Hearing Instructions as asserted that the parties are expected to discuss the possibility of settlement and any pre-hearing stipulations. Counsel for the University also requested Respondent to contact their office for a mutually convenient time to meet to comply with the Order of Pre-Hearing Instructions. At the time of filing the Unilateral Pre-hearing Statement and Motion to Dismiss, counsel for the University had not received any response from Respondent. On the morning of the scheduled hearing, the undersigned attempted to convene the hearing as scheduled. However, the court reporter had not arrived yet. Shortly after 9:30 a.m., the undersigned's assistant entered the hearing room to inform that Respondent had called and told her that he was on the interstate and that his car was broken down. This was the first communication this office received from Respondent. The undersigned informed counsel for the University, who were present in the hearing room and prepared for hearing, that the hearing would convene at 10:30 a.m., and that Respondent would be connected to the room by speakerphone. The undersigned then left the hearing room, to return at 10:30. Immediately after leaving the hearing room, the undersigned instructed her assistant to call Respondent at the phone number provided to her by Respondent. Upon calling the number at approximately 9:45 a.m., she reached Respondent's voice mail and left a message for Respondent to call her. Not having received a return call from Respondent, the undersigned's assistant again called Respondent at approximately 10:25 a.m. and left another voice mail message to call her immediately. The hearing commenced at 10:30 a.m. Counsel for the University renewed the Motion to Dismiss.1/ Counsel for the University also stated that Respondent did call her the week prior to hearing, apparently in response to her correspondence to him, and that she (the attorney for the University) stressed to Respondent the importance of complying with the Order of Pre- Hearing Instructions and of his appearance at the hearing. No request for a continuance of the hearing was ever made by Respondent. Due to Respondent's repeated actions of avoidance and delay, including avoiding all communications with his attorney, failure to respond timely to the University's attorney, failure to make any attempt to comply with the Order of Pre-Hearing Instructions, failure to contact the undersigned's office prior to the date of the hearing regarding any request for a continuance, and failure to appear at the final hearing, the Motion to Dismiss was granted and the hearing adjourned. Shortly after the hearing was adjourned, Respondent called the undersigned's assistant at approximately 10:50 a.m. He was informed that the hearing had adjourned and that the undersigned would enter an order.
Recommendation Based upon the foregoing Findings of Fact and the Conclusions of Law, it is RECOMMENDED: That Florida A and M University Board of Trustees enter a final order dismissing Petitioner's Petition for Administrative Hearing and Dismissing Petitioner from employment. DONE AND ENTERED this 12th day of April, 2012, in Tallahassee, Leon County, Florida. S 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 12th day of April, 2012.
The Issue Whether the Petitioner, Gina M. Hunton, filed her request for a formal administrative hearing within the time required by Rule 22T-9.008(1), Florida Administrative Code.
Findings Of Fact Pleadings. The Petitioner, Gina M. Hunton, filed a Charge of Discrimination against Southern Bell Telephone and Telegraph Company (hereinafter referred to as "Southern Bell"), with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"), alleging that Southern Bell had discriminated against her on the basis of sex. On October 11, 1991, the Commission entered a Notice of Determination: No Cause, concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. On January 27, 1992, the Commission entered a Notice of Redetermination: No Cause, (hereinafter referred to as the "Notice") again concluding that there was no reasonable cause to believe that Southern Bell had committed an unlawful employment practice against Ms. Hunton. In the Notice Ms. Hunton was informed of the following: The parties are hereby advised that the Complainant may request that a formal, post- investigative proceeding be conducted. Any Request for Hearing/Petition for Relief must be filed within 30 days of the date of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code. . . . On June 15, 1992, Southern Bell filed a Motion to Dismiss Ms. Hunton's Petition because it had not been timely filed. No response to the motion was filed by Ms. Hunton on or before June 29, 1992. On July 1, 1992, an Order Granting Motion to Dismiss, Cancelling Final Hearing and Establishing Deadlines was entered by the undersigned. The deadlines established in the Order were July 13, 1992, for the filing of proposed recommended orders and August 3, 1992, for the entry of a recommended order of dismissal in this case. On July 20, 1992, more than two months after the motion to dismiss was filed, and after Southern Bell had filed a proposed recommended order, Ms. Hunton filed a Response to Motion to Dismiss. On July 29, 1992, an Order to Show Cause was entered by the undersigned. In the Order to Show Cause, Southern Bell was given an opportunity to show cause why the motion to dismiss should not be denied in light of Ms. Hunton's explanation of why she had not filed her request for a formal administrative hearing timely. On August 10, 1992, Southern Bell filed a Renewed Motion to Dismiss and Response to Order to Show Cause. Southern Bell argued in the response that the doctrine of equitable tolling should not be applied in this case. No response to the renewed motion to dismiss was filed by Ms. Hunton. On August 17, 1992, a Second Order of Dismissal was entered. In the Second Order the parties were informed that the undersigned intended to grant the renewed motion to dismiss and recommend dismissal of this matter. On September 1, 1992, Ms. Hunton filed a Supplement to Response to Motion to Dismiss. For the first time Ms. Hunton alleged certain facts and gave a further explanation for why she had not timely filed her request for formal hearing in this matter. On September 8, 1992, Southern Bell filed Southern Bell's Reply to the Petitioner's Supplement to Response to Motion to Dismiss. Ms. Hunton's Failure to Timely File Her Petition. Thirty days from the date of the Notice, January 27, 1992, was Wednesday, February 26, 1992. Although Ms. Hunton was referred by the Commission in the Notice to the appropriate rule governing the time for filing a petition for relief, she was not specifically told that to "file" a petition meant that it had to be received by the Commission. Based upon Ms. Hunton's first response to Southern Bell's motion to dismiss, Ms. Hunton believed that she was only required to "serve" or mail her request for hearing within 30 days of the date of the Notice. According to her first response, Ms. Hunton also believed that "30 days" meant "one month". Ms. Hunton further believed that "one month" meant that she had until the same date (the 27th) of the next month (February) that the Notice was dated to mail her petition for relief. Based upon these conclusions, Ms. Hunton assumed that she had until February 27, 1992 to mail her petition for relief: I received a NOTICE OF REDETERMINATION: NO CAUSE on January 30, 1992 which was dated January 27, 1992 and postmarked (mailed) January 28, 1992 (Attachment A). The Notice of Redetermination states 'any request for Hearing/Petition for relief must be filed within 30 days of the date of Notice', my interpretation being one month from January 27, 1992, specifically February 27, 1992. [Emphasis added]. Even though it may have been reasonable for Ms. Hunton to assume that "filed" meant to "mail" her request for hearing, her interpretation of the time within which she was required to "mail" her response was not reasonable. The Notice informed Ms. Hunton that she had "30 days" to act. Even an unrepresented party should understand that "30 days" means just that. By counting 30 days from January 27, 1992, on a calendar, Ms. Hunton should have realized that she had to act no later than February 26, 1992. It was unreasonable for Ms. Hunton to interpret the terms "30 days" to mean a month, and that a month from January 27, 1992, meant February 27, 1992. On Thursday, February 27, 1992, Ms. Hunton spoke to Mr. Hardin King, an employee of the Commission (incorrectly identified as an employee of the Federal Commission on Human Relations by Ms. Hunton). Ms. Hunton telephoned the Commission in an effort to get an extension of time to file her request for hearing. At the time of this conversation, Ms. Hunton had already determined that she was required to mail her request no later than February 27, 1992. Although Mr. King reinforced this conclusion by failing to properly inform Ms. Hunton that her request for hearing was required to be received (filed) no later than February 26, 1992, the fact is that Ms. Hunton had already unreasonably concluded that she was not required to mail her request for hearing until February 27, 1992, and she had already failed to at least mail her request for hearing on February 26, 1992. Therefore, Ms. Hunton's error in this matter was not made in reliance on anything that Mr. King told her. The error had already occurred before her conversation with Mr. King. After speaking to Mr. King on February 27, 1992, Ms. Hunton mailed a Petition for Relief (hereinafter referred to as the "Petition"), to the Commission. A copy of the Petition was also mailed to Southern Bell. The Petition was not received (filed) by the Commission until Monday, March 2, 1992. The Petition was not filed by Ms. Hunton within 30 days of the date of the Notice. It was filed 35 days after the date of the Notice. Giving Ms. Hunton the benefit of the doubt concerning her lack of understanding as to the meaning of the term "filed" and assuming that Ms. Hunton was reasonable in concluding that "filed" meant to mail, Ms. Hunton still did not mail her request for hearing within 30 days of the date of the Notice. Therefore, even accepting Ms. Hunton's explanation of how she interpreted the term "file", Ms. Hunton's Petition was not timely filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief of Gina M. Hunton, as untimely filed. DONE and ENTERED this 29th day of October, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 29th day of October, 1992. COPIES FURNISHED: Gina M. Hunton 4929 Fauna Drive Melbourne, Florida 32934 E. Barlow Keener, Esquire Francis B. Semmes, Esquire Southern Bell Telephone and Telegraph Company Suite 4300 675 West Peachtree Street, N.E. Atlanta, Georgia 30375 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, Florida 32303-4113
Findings Of Fact The Department, a state agency, initiated both of the underlying proceedings when the Notices of Violation were issued for each trailer as an unpermitted sign. The Notice of Violation for Case No. 90-2427T was issued on April 2, 1990. The Notice of Violation for Case No. 90-4982T was issued on June 20, 1990. Petitioners, Mathews, is a Florida corporation, which has its principal office in this state. At the time both actions were initiated by the Department, the corporation had less than 25 full-time employees and a net worth of less than $2 million dollars. Case No. 90-2427T A Final Order was entered in Case No. 90-2427T on January 9, 1991. Mathews was found to have fully complied with the Notice of Violation properly issued by the Department on April 2, 1990, because he had removed the trailer within the period of ten working days, as set forth in the notice. The time for seeking judicial review of that order has expired and the order has become final agency action as a matter of law. The underlying Notice of Violation directed to Mathews was based upon a determination made by the Department's outdoor advertising administrator with District 7. The administrator had observed the trailer at its stationary location on a regular basis during a sixty-day period. He decided that the printed message on the trailer's side advertising contractor's exams was an unpermitted sign, in violation of Section 479.07(1), Florida Statutes. Once the Department made the determination that the trailer embodied all of the characteristics necessary to classify it as a sign under Chapter 479, Florida Statutes, and was located in an area requiring a sign permit, the agency was required by law to issue the notice, and to inform the sign owner of its right to request a hearing. Upon receipt of the Notice of Violation, Mathews timely requested a hearing. During the hearing, Mathews proved it did not specifically intend to advertise the school's services when the trailer was placed at the I-4 and Buffalo Avenue location. If the Notice of Violation involved a violation that required specific intent, the proof offered would have been determinative and Mathews would be the prevailing party for purposes of this hearing. In this case, however, the issue was whether the trailer was a "sign", as the word is defined in Section 479.01(14), Florida Statutes, and whether it was a "public and a private nuisance" that had to be removed, pursuant to Section 479.105(1), Florida Statutes. The Recommended Order and Final Order reflect that the trailer was a "sign" and a "public and a private nuisance." As a result, the Department's issuance of the Notice of Violation was proper and the agency action requiring Mathews to remove the "sign" from that location was appropriate. The owner could not seek just compensation for the "sign" removal, nor could the corporation require the Department to put the "sign" back at the location after the formal hearing. The underlying Notice of Violation was based upon the outdoor advertising administrator's correct analysis that the trailer was a "sign" as defined by Chapter 479, Florida Statutes, and his personal observation that it remained at the same location for a sixty-day period. At the time the notice was issued, the Department had reason to believe the trailer was an illegal "sign" that did not have the proper permit. II. Case No. 90-4982T The Notice of Violation issued by the Department on June 20, 1990, in Case No. 90-4982T was withdrawn on November 16, 1990. Mathews was notified of the Department's intention to file the Notice of Voluntary Withdrawal with the Division of Administrative Hearings shortly before the final hearing scheduled for November 14, 1990. The reason given by the Department for the withdrawal was that the Department did not have jurisdiction over the trailer as a "sign" because it was located within the corporate limits of the City of Tampa. The Department knew or reasonably should have known that the trailer was outside of its territorial jurisdiction under Section 479.105(1), Florida Statutes. Because the Department is the agency responsible for the classification of roads within Florida, there was no reasonable basis in fact for the issuance of the Notice of Violation at the time it was posted on the trailer. The proceeding on the alleged sign violation was not substantially justified from its inception. The affidavit for attorney's fees and testimony at hearing reveals that Mathews paid $1,207.50 in fees to defend against unreasonable governmental action in Case No. 90-4982T. The rate of $175.00 per hour was a reasonable and necessary fee in both proceedings based upon the reasons presented by Carl Mathews, the corporate president and secretary. The Department's counter affidavit as to the unreasonableness of the hourly fee rate did not effectively refute the testimony of Carl Mathews that the hourly rate and total fee amounts in each case was reasonable and necessary.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner has been discriminated against by being denied adequate training and being dismissed from her employment for reasons of her race (African-American).
Findings Of Fact The Florida Gulf Coast University (Gulf Coast) operated in Tallahassee, Florida at times pertinent hereto, for the purpose of improving teaching and learning in the area of environmental education in the public schools as well as community colleges and universities. Dr. Kathleen Shea Abrams served as the Director of the Office of Environmental Education (OEE) from October 1990 until the office closed in July of 2000. She was responsible for making OEE employment decisions in conformance with Gulf Coast's hiring approval procedures. Dr. Abrams, as Director, was responsible for organizing a hiring committee and interviewing candidates for the vacant office assistant position. With approval from Gulf Coast and the hiring committee Dr. Abrams selected Synthia Dianne Mallard, the Petitioner, for the position on August 14, 1996. Pursuant to the position description for the office assistant position, Ms. Mallard would be required to prepare routine correspondence, reports, requisitions, invoices, travel documents, etcetera, as well as answer the telephone and provide information for routine questions and make referrals as appropriate. She was required to screen calls and perform other assigned duties and was required to possess the knowledge, skills and ability to produce grammatically correct, oral and written work products. Following her employment, Ms. Mallard was provided with information regarding OEE telephone procedures. The written procedural guidelines expressly set forth the information to be obtained when taking a message. Dr. Abrams requested Tara Johnson, an African-American student clerical assistant who was working for the OEE, to provide training to Ms. Mallard. Training was based upon the office procedural manual which outlined requirements for completing university forms, described the mail pick-up and delivery process, discussed operation of the office telephone systems and other relevant matters. Dr. Abrams also met with Ms. Mallard several times a week for five to ten minutes or more to communicate work requests and provide brief written instructions and information to her. During these meetings Dr. Abrams recommended several times that Ms. Mallard review portions of the procedural manual and refer to it as she carried out her work. At the time that Ms. Mallard joined the OEE, a set of computer-generated address labels were available to be affixed to envelopes for daily courier pick-up and delivery to Gulf Coast. As the supply ran low, Dr. Abrams requested that Ms. Mallard print new ones. Since Ms. Mallard explained that she did not know how to print labels, Dr. Abrams allowed her to write labels by hand. The handwritten labels printed by Ms. Mallard, however, did not follow the same format as the computer-printed ones and improperly included the office's return address. As a result an envelope was returned to the office by courier who misread the return address as the primary address. Dr. Abrams instructed Ms. Mallard to omit the return address thereafter and wrote a sample label for Ms. Mallard to follow. Despite these efforts, Dr. Abrams was forced to speak to Ms. Mallard on several additional occasions about this subject as she continued to improperly address the mail. In preparing correspondence, Dr. Abrams would write out letters long-hand and deliver these to Ms. Mallard for typing. Through this process, Dr. Abrams discovered that Ms. Mallard was unfamiliar with the proper format for business letters or memoranda. After returning several drafts of letters because of errors in spacing, margins, and capitalization, Dr. Abrams advised Ms. Mallard to refer to examples of business letters from existing files and use them as models. Ms. Mallard required additional instruction on how to use the office typewriter. Dr. Abrams stated to Ms. Mallard at one point that she appeared to have over-estimated her clerical skills and computer training. She asked Ms. Mallard to establish a weekly goal of mastering one new skill a week. In order to achieve this goal, Ms. Mallard received computer instructions from Tara Johnson and other staff members including Dr. Robert Raze. Ms. Mallard cautioned Dr. Abrams, however, that the expectation "to master" the skills might be too high. As part of her duties, Ms. Mallard was asked to inventory and organize an office supply cabinet consisting of four shelves of supplies. Although Dr. Abrams estimated that the task should take a maximum of three to four hours to complete, Ms. Mallard did not finish the job until several weeks later. After several weeks, Dr. Abrams arrived at the conclusion that Ms. Mallard lacked important secretarial skills and would be unable to consistently produce a quality work product. Determining that Ms. Mallard would be unable to elevate her skills to an acceptable level, Dr. Abrams requested Ms. Mallard's termination as an employee by correspondence dated December 2, 1996. In addition to the performance deficiencies that Dr. Abrams observed personally, she also received complaints concerning the Petitioner's performance from other employees. Dr. Raze was hired by Dr. Abrams in 1991, and served as a "Coordinator," a senior professional position at the OEE. Dr. Raze experienced difficulty in receiving complete and accurate telephone messages from the Petitioner. Dr. Raze advised Dr. Abrams that Ms. Mallard had failed to obtain basic information such as the complete correct name of the individual calling, the entity which the individual represented, the purpose of the call and the return phone number on certain messages. Shannon Guillemette, another employee, reported an incident where she missed an important return telephone call because of Ms. Mallard's failure to answer incoming office telephone calls in accordance with her job description. Ms. Guillemette advised that similar incidents occurred in the past as well. These complaints were received by Dr. Abrams in the ordinary course of business as the Director of the office. The Petitioner prepared correspondence dated December 11, 1996, to Steven Belcher, Director of Human Resources at Gulf Coast in response to the letter from Dr. Abrams requesting her termination. The Petitioner's, correspondence in response to the termination letter itself contained numerous errors in grammar, spelling and punctuation, which were consistent with the deficiencies earlier identified by Dr. Abrams in the Petitioner's job performance. In December of 1996, the Petitioner was terminated from her employment position. The Respondent, through its witnesses and exhibits, has established that legitimate business reasons existed for that termination. The proven reason for Ms. Mallard's termination from employment was "poor job performance." When Ms. Mallard was terminated from the OEE, the office employed a total of nine individuals. Five of those individuals were African-American and four were non-minority. The Petitioner, Ms. Mallard, is an African-American and so is Dr. Raze. Dr. Abrams is a non-minority and is responsible for the decision to both offer employment and to hire Ms. Mallard as well as the decision to terminate her. Dr. Raze observed no instances of racial discrimination in the operation of the OEE from the time he was first hired in September 1991 through the closing of the office in July of 2000. The Petitioner failed to introduce any testimony or evidence corroborating her charge of racial discrimination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations determining that the Petition for Relief filed by Synthia Dianne Mallard be denied and that this cause be dismissed. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 2nd day of February, 2001. COPIES FURNISHED: Synthia Dianne Mallard 1205 West 6th Street, Apartment 2 Jacksonville, Florida 32209 Robert C. Shearman, Esquire Henderson, Franklin, Starnes & Holt Post office Box 280 Fort Myers, Florida 33902 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Azizi Coleman, Acting Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as an educational support employee.
Findings Of Fact Petitioner employed Respondent as a food service worker at Lehigh Acres Middle School in Lee County, Florida (the school), from October 22, 1998, until August 2, 2004, when Petitioner suspended Respondent with pay and benefits. A food service worker is an educational support employee defined in Subsection 1012.40(1)(a), Florida Statutes (2004). Petitioner proposes to terminate Respondent's employment on the basis of facts alleged in the Petition for Termination dated August 11, 2004 (the petition). In relevant part, the petition alleges that during the 2003-2004 school year Respondent was guilty of excessive absences that affected Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015 of the collective bargaining agreement between Petitioner and the Support Personnel Association of Lee County (SPALC agreement). During the 2003-2004 school year, Respondent's work day began at 8:30 a.m. and ended at 3:00 p.m. Each day included two paid 15-minute breaks and one unpaid 30-minute lunch break. Respondent's immediate supervisor adopted a policy identified in the record as a "ready-to-work" policy. The policy required food service workers, including Respondent, to put on their hair nets and aprons and wash their hands before beginning work. After a worker was ready to work, the worker then entered in a daily log sheet the time that the worker began work each day. The policy also required each worker to record in the daily log the time the worker left work and any period that the worker left and returned to work in the same day. The supervisor incorporated the "ready-to-work" policy in a revised employee handbook. The revised handbook was distributed to food service workers on September 26, 2003. On December 10, 2003, Respondent signed a form acknowledging that she had read the revised handbook. On 47 days from August 14, 2003, through May 20, 2004, Respondent was late to work, left work early, left for part of the same day, or was absent the entire day. Respondent was late to work on 20 days, left work early on 13 days, was absent 13 days, and left for part of one day for two hours and ten minutes. Petitioner deems all 47 instances to be "absences" within the meaning of Section 9.015 of the SPALC agreement. Assuming arguendo that all 47 instances are absences, the preponderance of evidence does not show that the absences were unauthorized. The supervisor testified at the hearing. The supervisor did not have authority to approve or disapprove absences. Rather, the head of the department or the school principal authorized requests for absences. Neither the head of the department nor the principal testified at the hearing. The supervisor did not know whether Respondent's absences were unauthorized. The supervisor merely reported the 47 absences to the "front office" and later determined they were unauthorized and excessive. Petitioner did not submit personnel records that may have documented which absences, if any, were unauthorized. Counsel for Petitioner argued during the hearing that even authorized absences can adversely affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. However, counsel did not cite any legal authority in his PRO to support the argument. Assuming arguendo that all 47 absences were unauthorized, Subsection 9.016(a) of the SPALC agreement imposed an affirmative duty on Petitioner to inform Respondent, immediately upon her arrival to work following each absence, that Petitioner considered the absence to be unauthorized. The purpose of the requirement is to afford an employee such as Respondent with notice and an opportunity to show extenuating circumstances. If an employee demonstrates extenuating circumstances, the agreement requires Petitioner to change the absence to an authorized absence. It is undisputed that Respondent had several physical conditions, including skin cancer and a miscarriage, that affected her attendance during the 2003-2004 school year. The preponderance of evidence shows that Respondent was absent from work due to medical conditions. During the hearing, Petitioner stipulated that it was withdrawing several dates as a basis for its proposed termination of employment. The withdrawn dates include all 13 days on which Respondent was absent for an entire day; the day that Respondent left and returned to work for part of the day; and ten days that Respondent left work early on August 25 and September 10, 2003, and between October 20, 2003, and March 26, 2004. The stipulation reduced the contested absences on which Petitioner based the proposed termination to 20 days when Respondent was late to work and three days when Respondent left work early. As previously found, Petitioner failed to submit testimony or documentation that the contested absences were unauthorized or that Petitioner informed Respondent upon her arrival to work that Petitioner had determined the immediately preceding absence to be unauthorized. Assuming arguendo that the contested absences were unauthorized and that Petitioner provided timely notice to Respondent, the contested absences present other evidential concerns for the trier of fact. On 12 of the 20 days that Respondent was late to work, Respondent was no more than five minutes late. Being late five minutes or less did not affect Respondent's ability to carry out the essential functions of her position within the meaning of Section 9.015. Another food service worker testified for Petitioner that being late five minutes or less did not affect any employee's ability to do his or her job. For the remaining eight late arrivals, Respondent was 15 minutes late on two days, 30 minutes late on two days, and was late the remaining four days between seven and 12 minutes. The preponderance of evidence did not show that Respondent failed to telephone her supervisor when Respondent was going to be late 15 or more minutes. During most of the remaining four days, Respondent was at the school getting ready for work or otherwise within view of her supervisor. The co-worker called as a witness by Petitioner, testified that Respondent's tardiness in excess of five minutes did not adversely affect the witness' job responsibilities, but did adversely affect the supervisor or other workers. However, the witness erroneously thought that Respondent's work day in the 2003-2004 school year began at 8:00 a.m. It is undisputed that Respondent's shift began at 8:30 a.m. The witness never really knew Respondent's actual start time. When Respondent was late to work, Respondent made up the time by working into her lunch or break periods. This was a custom that similarly situated workers practiced regularly. The assistant principal for the school did not testify. However, documents in the record indicate that the assistant principal met with Respondent on October 20, 2003. At that time, Respondent had been late to work approximately 15 times, absent approximately two times, and had left work early approximately two times. The documents indicate the assistant principal "talked with [Respondent] . . . about being on time to work." The supervisor who testified at the hearing was not present at the meeting. Following the meeting with the assistant principal, Respondent's attendance improved. The supervisor did not formally discuss Respondent's attendance with her again until the supervisor completed a performance evaluation for Respondent in March 2004. The performance evaluation, in pertinent part, authorized the supervisor to score prescribed categories of Respondent's job performance as "Effective level of performance observed," "Inconsistently practiced," or "Unacceptable level of performance observed." The supervisor did not score any of Respondent's targeted areas as "Unacceptable level of performance observed." She scored five areas as "Inconsistently practiced," including categories labeled "Is punctual in attendance," "Follows written and oral work schedule," and "Exhibits dependability." On April 22, 2004, the school principal signed a form recommending Respondent for reemployment for the 2004-2005 school year. On April 29, 2004, Respondent counter-signed the form recommending reemployment. On the date of the proposed reemployment, Respondent had been absent from work 43 days, including 19 of the 20 contested late arrivals and one of the three contested days when Respondent left work early. On May 20, 2004, Respondent left work three hours early. On May 21, 2004, the supervisor issued a written reprimand to Respondent for being late to work, leaving work early, or being absent from work approximately 47 times between August 14, 2003, and May 20, 2004. The written reprimand did not provide a clear point of entry for Respondent to contest the factual basis for the reprimand in an administrative hearing. The reprimand merely informed Respondent that Respondent was entitled to prepare a response to the reprimand. Respondent and her union representative did not challenge the factual basis of the written reprimand in a grievance procedure authorized in Article 5 of the SPALC agreement. However, Section 5.102 prohibits the grievance procedure from being construed to deny any rights that are otherwise guaranteed to Respondent by law. On May 24, 2004, the first work day following Respondent's receipt of the written reprimand, Respondent began work five minutes late at 8:35 a.m. Neither the supervisor nor any other representative for Petitioner spoke with Respondent to inform her that Petitioner had determined the late arrival to be an unauthorized absence. On May 27, 2004, the supervisor recommended that Petitioner terminate Respondent's employment. This proceeding ensued.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order dismissing the petition, reinstating the employment of Respondent, and awarding Respondent full back pay and benefits. DONE AND ORDERED this 1st day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2005. COPIES FURNISHED: Robert J. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Post Office Box 2089 Fort Myers, Florida 33902-2089 J. Paul Carland, II, Esquire Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Dr. James W. Browder, III, Superintendent Lee County School Board 2055 Central Avenue Fort Myers, Florida 33901-3916 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John Winn, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that Petitioner be promoted to the rank of associate professor, said promotion to be retroactively effective with the beginning of the 1976-77 academic year. Respectfully submitted and entered this 27th day of January, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1977. COPIES FURNISHED: Charles N. Millican, President Florida Technological University Box 25000 Orlando, Florida 32816 Edwin C. Shirkey, Ph.D Assistant Professor of Psychology Department of Psychology Box 25000 Orlando, Florida 32816 Dr. Phillip M. Tell Florida Technological University Box 25000 Orlando, Florida 32816 F. Hartselle Baker, Esquire Hillcrest Plaza, Suite 202 1516 East Hillcrest Orlando, Florida 32803
