The Issue Whether the subject assessment of taxes, interest and penalties should be upheld.
Findings Of Fact By "Notice of Assessment and Jeopardy Findings" dated July 31, 1989, Respondent assessed Petitioner with taxes, interest, and penalties in the total amount, as of the date of the notice, of $161,724.75. This assessment was made pursuant to Section 212.0505, Florida Statutes, following an incident on February 4, 1988. The parties stipulated that this assessment was properly issued, that notice thereof was properly given to Gary Wayne Chitty, and that the mathematical calculations contained therein are accurate and correct. The following findings are made as to Petitioner, Gary Wayne Chitty, pursuant to the stipulation of the parties. His full name is Gary Wayne Chitty. His social security number is 261-17-0682. His date of birth is April 27, 1953. His present residence is 6840 S.W. 12th Street, Miami, Florida. He has never declared himself a citizen of any country other than the United States. On, or before, February 1988, he knew Rafael Silvio Pena. On February 4, 1988, he held a valid multi-engine pilot's license which was issued to him by the Federal Aviation Authority. On, or about February 4, 1988, he and Rafael Silvio Pena boarded and flew an aircraft designated N6726L. He and Mr. Pena planned to fly a multi-engine aircraft (N6726L) from a point outside of the United States and to enter the airspace of the United States near Cedar Key, Florida and travel within the airspace of Florida to Marathon, Florida. He filed, or caused to be filed, a flight plan for said trip with Mr. Pena in advance of the trip. He loaded or caused to be loaded marijuana on the aircraft (N6726L) prior to its departure. On, or about, February 4, 1988, he and Mr. Pena flew said airplane (N6726L) from a point in the vicinity of Cedar Key, Florida, to Marathon, Florida. During said flight, the aircraft made no other landings. During the entire flight on February 4, 1988, he and Mr. Pena were the sole occupants of said aircraft. During said flight he was the pilot of N6726L. He flew this aircraft on February 4, 1988 with the full knowledge and/or consent of the airplane's owners and/or official lessees. When he took off from the aircraft's departure point on February 4, 1988, it was loaded with a large quantity of marijuana. When he took control of said aircraft and took off, he knew it was loaded with said marijuana. He discussed his plans to transport the marijuana with Mr. Pena. When he took control of the aircraft, the aircraft (N6726L) contained nineteen (19) bales of marijuana which weighted six hundred ninety-nine (699) pounds. He and Mr. Pena flew this airplane along a course towards Marathon, Florida in a manner which took it over or near Lake Okeechobee, Florida. At a point along his route, he and/or Mr. Pena caused the bales of marijuana to be jettisoned from the aircraft. The marijuana was jettisoned as part of a conscious plan or design. The marijuana that was jettisoned from N6726L during its flight on February 4, 1988, weighed a total of 699 pounds. He did not know that during this flight of February 4, 1988, his aircraft was being observed by law enforcement officers. As part of his original plan, he piloted this aircraft to Marathon, Florida, where he landed. AA. During this entire flight the aircraft performed adequately and experienced no mech- anical difficulties. BB. Upon his landing at Marathon, he and Mr. Pena were arrested. CC. He knew the estimated retail value of the marijuana on board his aircraft (N6726L) was $600 per pound.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered which upholds the subject Jeopardy Findings and Assessment. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of January, 1991. CLAUDE B. ARRINGTON 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 28th day of January, 1991. COPIES FURNISHED: James McAuley, Esquire Mark Aliff, Esquire Assistant Attorneys General Department of Revenue Tax Section, Capitol Building Tallahassee, Florida 32399-1050 Mel Black, Esquire 2937 S.W. 27th Avenue Miami, Florida 33133 J. Thomas Herndon Executive Director Department of Revenue 104 Carlton Building Tallahasseee, Florida 32399-0100 William D. Moore General Counsel 203 Carlton Building Tallahassee, Florida 32399-0100
The Issue The issue is whether the Division of Administrative Hearings has jurisdiction over an alleged unlawful employment practice which occurred on the premises of a federal enclave.
Findings Of Fact Respondent asserts that Petitioner's allegations arose during her employment at Eglin Air Force Base, Florida. Respondent also asserts that Petitioner never worked for it in Florida at a site other than Eglin Air Force Base. Petitioner's Charge of Discrimination and Petition for Relief do not refute these assertions. It is uncontested that Eglin Air Force Base, Florida, is a federal enclave. The land on which the base is located was ceded by the State of Florida to the United States on April 26, 1937. At that time, the federal government was given exclusive jurisdiction over the land. The cession deed was recorded on April 27, 1937, and states as follows in pertinent part: I Fred P. Cone, Governor of the State of Florida, in the name and by the authority of said State and pursuant to the statutes of said State in such cases made and provided, do hereby cede to the United States of America, exclusive jurisdiction over said lands so acquired. Secretary of State (Florida), Deeds, Book A, pages 349-352.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order determining that the Division of Administrative Hearings does not have jurisdiction over the issues raised in the instant Petition for Relief and dismissing said petition with prejudice. DONE AND ENTERED this 13th day of May, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of May, 1999. COPIES FURNISHED: Cynthia K. Faulconer 145 Wright Circle Niceville, Florida 32578 Edmund J. McKenna, Esquire Ford and Harrison, LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The threshold issue in this case is whether Petitioner knowingly and voluntarily waived all claims, including claims for employment discrimination, against Respondent, his former employer. If he did not, then the question is whether Respondent unlawfully discriminated against Petitioner on the basis of his alleged disability when it terminated his employment.
Findings Of Fact A. Background Facts Petitioner Waldemar Casanova ("Casanova") is a high school graduate who has completed four years of college level courses in the field of business administration. As of the final hearing, he had worked in the airline industry for more than 30 years. In 1987, Casanova began working for Respondent Worldwide Flight Services ("Worldwide"), a ground handling services organization that specializes in, among other things, providing customized cargo, ramp, passenger, and technical services to various passenger and cargo airlines. Casanova was stationed in New York City for about 12 years, providing services to Worldwide's client, American Airlines, at the John Kennedy and LaGuardia Airports. In 1999, Casanova transferred to Florida, where he continued to work in furtherance of a contract between Worldwide and American Airlines to provide passenger services at the Fort Lauderdale Airport. Casanova initially was assigned to work as a Ramp Supervisor, in which position he was responsible for overseeing passenger baggage services. Thereafter, in the spring of 2002, Casanova was assigned to work as a Cabin Services Supervisor, in which position he was responsible for overseeing the cleaning and servicing of aircraft.1 Facts Relating to Casanova's Hernia Surgery In June 2002, Casanova underwent hernia surgery. He took a leave of absence from work to recover. A couple of months later, Casanova's doctor certified that Casanova could return to "light" work duties on September 3, 2002. The doctor's certificate specified that, upon his return to work, Casanova should not lift more than 10 pounds. To accommodate this restriction, when Casanova returned to work in September 2002, Worldwide reassigned him, temporarily, to its administrative office, where Casanova was responsible for reviewing attendance records. Cancellation of the Contract Between American Airlines and Worldwide and the Consequences Thereof On Casanova's Employment with Worldwide. Effective September 15, 2002, American Airlines canceled its ramp-handling/cabin services contract with Worldwide at the Fort Lauderdale Airport. As a result, Worldwide laid off approximately 33 employees in September and October 2002, including Casanova and five or six other supervisors who, like Casanova, were employed in connection with the American Airlines contract. By letter dated September 18, 2002, Worldwide informed Casanova that he was being laid off. In that letter, Worldwide offered Casanova a lump sum severance payment equaling 13 weeks of pay at his base salary in exchange for, and subject to, Casanova's execution of a Severance Agreement and General Release ("Agreement"). The Agreement was enclosed with the September 18, 2002 letter. The release contained in the Agreement provided, in pertinent part: I agree . . . to release Worldwide . . . from any and all claims for relief of any kind, whether known to me or unknown, which in any way arise out of or relate to my employment or the termination of my employment at Worldwide Flight Services, concerning events occurring at any time up to the date of this Agreement, including, but not limited to, any and all claims of discrimination of any kind. This settlement and waiver includes all such claims, whether under any applicable federal law, including but not limited to the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Americans with Disabilities Act, Equal Pay Act and Employee Retirement Income Security Act, Older Worker Benefit Protection Act, or under any applicable state or local laws I further agree not to file a claim or suit of any kind against Worldwide Flight Services et al. . . . I further agree not to bring, continue, or maintain any legal proceedings of any nature whatsoever against Worldwide Flight Services et al. before any court, administrative agency, arbitrator or any other tribunal or forum by reason of any such claims, demands, liabilities and/or causes of action, arising out of, relating to or resulting from my employment or termination from employment . . . . In the September 18, 2002, letter, Worldwide also advised Casanova that the decision whether to accept the terms and conditions of the Agreement was completely voluntary, that he should consult with an attorney of his choice before signing the Agreement, and that he could take up to 45 days to consider the Agreement. In addition, Worldwide advised Casanova that, if he had any questions concerning his separation package, he could consult either with Alvin Brown, a human resources representative at Worldwide's corporate headquarters, or Barry Simpson, then General Manager at Worldwide's Fort Lauderdale station. Casanova signed and dated the Agreement on October 2, 2002.2 He then returned the instrument to Worldwide, where Barry Simpson executed the Agreement on the company's behalf, also on October 2. By the terms of the Agreement, Casanova was afforded a period of up to seven days after execution of the Agreement to revoke the acceptance of its terms. At no time during the seven-day revocation period did Casanova notify Worldwide that he wanted to revoke his acceptance of the Agreement. After the expiration of the seven-day revocation period, and in accordance with the terms of the Agreement, Casanova received a lump sum payment of $8,091.20 by check dated October 26, 2002, which sum constituted 13 weeks of severance at Casanova's base salary.3 Since his receipt of this payment, Casanova has neither tendered back nor attempted to tender back the severance payment to Worldwide. At hearing, Casanova admitted that he had understood fully the language and effect of the Agreement, including the release of all claims, and that he knowingly and voluntarily had accepted the terms of the Agreement as well as the benefits provided to him thereunder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing with prejudice Casanova's Petition for Relief because, for valuable consideration, Casanova knowingly and voluntarily released Worldwide of and from any claims arising out of his employment with Worldwide. Alternatively, the final order should declare that Worldwide is not liable to Casanova because (a) he is not a handicapped individual and (b) even if he were a handicapped individual, Worldwide has articulated a legitimate, non-discriminatory reason for Casanova's discharge, which Casanova failed to prove was a pretext for discrimination. DONE AND ENTERED this 4th day of February, 2005, in Tallahassee, Leon County, Florida. S 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 4th day of February, 2005.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent, Thomas A. Baggett has been licensed by the State of Florida as a pilot in Tampa Bay for fifteen (15) years and at all times pertinent to this proceeding was licensed by the State of Florida as a pilot. On February 5, 1984, at about 0620 hours, while Captain Baggett was piloting M/V Triton C outbound from the Gardinier Wharf in Hillsborough County, Florida, the M/V Triton C ran aground outside the prescribed limits of CUT D in Tampa Bay on the east side. The M/V Triton C is a Liberian bulk carrier with an approximate length and width of 576.7 feet and 81 feet, respectively, with a gross tonnage of 17,823 tons. At the time of grounding, the M/V Triton C had a forward draft of 29 feet, 11 inches and an aft draft of 30 feet and 1 inch. The M/V Triton C was experiencing no engine or navigational equipment problem before it ran aground. All aids to navigation, including ranges and buoys, were in place and working properly at the time of the grounding. The M/V Triton was travelling at a speed of 11.7 knots. Range lights, when properly aligned, provide a way for the pilot or anyone navigating a vessel to know the vessel is in the center of the channel. On the morning of February 5, 1985, shortly before the grounding of the M/V Triton C, Captain Baggett gave orders for the turn from CUT E into CUT D, or from a heading of 198 degrees to a heading of 213 degrees. Captain Baggett ordered the wheel 20 degrees to starboard and then eased to 10 degrees. Captain Baggett then ordered the quartermaster to midship the wheel and steady the vessel on 213 degrees. He gave no instructions to the quartermaster concerning the use of the range lights for navigating the center of the channel. At this point the confusion begins. Captain Baggett testified that the M/V Triton C steadied up on 213 degrees, an appropriate course for the transit of CUT D, while he was present and he observed the M/V Triton C as being on the ranges for about 2 minutes before going into the chart room. As he stepped back into the chart room, he glanced at the compass and observed that the vessel was on a heading of 213 degrees. Captain Baggett gave no further instructions or orders other than "hard to starboard" when he came out of the chart room 15-20 seconds later and noticed the bow swinging to port, the rudder indicator showing 20 degrees rudder and the ranges being already opened. Captain Baggett testified that upon giving the order "hard to starboard" the quartermaster pulled the wheel and went "hard to port" and the vessel almost immediately went aground. The mate and quartermaster tell a different story. The master was below and not present on the bridge at the time of grounding. The mate testified that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees, and that Captain Baggett remained in the chart room for 40 seconds to 1 minute and came out as the vessel went aground. The quartermaster testified that Captain Baggett went into the chart room immediately upon the vessel steadying up on 213 degrees, and did not stay to watch the course or range for 2 minutes. He further testified that Captain Baggett was in the chart room for 5-6 minutes; that he came out of the chart room as the vessel went aground; and, Captain Baggett gave no order of "hard to starboard". The quartermaster at the time of the grounding was Maheswaran Gnanasundran and the mate was Siburs Ioannas. As evidenced by the depositions, both were foreign; neither spoke English and each required an interpreter at the deposition. The master of the M/V Triton C on the day of grounding was Stamatios Stanou, a citizen of Greece, and required an interpreter for his deposition. Captain Baggett experienced a communication problem with quartermaster Gnanasundran in the beginning of the turn out of CUT E to CUT D, and earlier with another quartermaster at the beginning of the turn out of Hilisborough A CUT into Hillsborougn C CUT who was on duty just prior to quartermaster Gnanasundran. The M/V Triton C was at a heading of 206 degrees immediately after grounding and did not move significantly from that heading while grounded. Both the mate and the quartermaster testified that the M/V Triton C, after steadying up, stayed on the course heading of 213 degrees during the entire time and was on the same course heading when the vessel went aground. The mate testified that as the M/V Triton C began to run aground it began to list to the right, and its heading as it finally came to rest aground was 206 degrees. The master of the M/V Triton C testified that the wind was out of the northwest at 15 knots, with full tide, and the current being with M/V Triton C at about 2 knots. Captain John C. Hanson, an investigator for petitioner, testified that at the time of grounding, based on tidal information and weather reports, the wind was out of the northwest and there was an ebb tide running in a southerly direction which would tend to set the M/V Triton C in a southerly direction to the east of CUT D. Captain Hanson further testified that these conditions would have an effect on navigation. Captain Baggett testified that there was an ebb tide in a southwest direction and that it would tend to set to the southwest but at that point in time, it would have had very little effect on the M/V Triton C. Therefore, he did not make any allowances for the tide, wind, or a combination of them. Petitioner's Exhibit No. 3 shows the mean lower low water depth outside of the confines of the channel in the area of grounding to be 24 feet to 25 feet. Captain Hanson testified that the chart was current but that the depth of the water in a Particular area could be deeper, depending upon tides and winds. Captain Baggett testified that soundings taken on February 5, 1985, during the morning of grounding, put the depth of the water at the bow (point of grounding) and stern to be 25 feet and 37 feet, respectively and, that he visually observed, after daylight the stern of the vessel as being located in the ship channel of CUT D. The ship channel in CUT D has an approximate width of 400 feet with shoaling on both sides. Captain Hanson boarded the M/V Triton C 3 days after the grounding and testified that he plotted the position where the vessel went aground by taking "crossbearings of fixed structures, (no floating aids) and one radar range to one of the radar structures." Captain Hanson plotted the position of the M/V Triton C to be on the east side of CUT D, at a point 450 feet from the centerline of the CUT D approximately 1325 yards from a midpoint between buoys 1E and 2E. For an exact position see Petitioner's Exhibit No. 3. The crossbearings used to locate the exact position of the M/V Triton C are shown on the chart on the right side of Petitioner's Exhibit No. 3. The left side of Petitioner's Exhibit No. 3 is an enlargement of CUT D prepared by Captain Hanson showing the various courses the M/V Triton C could have taken from a point abeam of buoys 1E and 2E to the position of grounding based on the speed of the M/V Triton C at 11.7 knots. Petitioner's Exhibit No. 3 demonstrates that if the point of grounding was 450 feet from the centerline of the channel, as Captain Hanson testified, and, the M/V Triton C grounded on the heading of 206 degrees, then, at that heading, the stern of a vessel 576.7 feet long could not have reached the channel. Captain Hanson's testimony concerning his method of locating the position of the M/V Triton C, the crossbearing used and the calculations went unrebutted. With a vessel drafting 29 feet 11 inches forward and the point of grounding being 450 feet from the centerline of the channel, the depth of the water outside the confines of the channel along the heading taken by the M/V Triton C was deeper than 25 feet or the grounding would have occurred sooner and at a point closer to the east bank of CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the quartermaster that the M/V Triton C steadied up on 213 degrees after making the turn from CUT E to CUT D and steered that course for five to six minutes while Captain Baggett was in the chart room is incorrect as to how long Captain Baggett was in the chart room, because the vessel would have travelled beyond the point of grounding in 5 to 6 minutes. As Petitioner's Exhibit No. 3 demonstrates, the testimony of the mate that Captain Baggett went into the chart room while the compass was swinging through 210 degrees and before the vessel steadied up on 213 degrees and that the vessel went aground within 40 seconds to 1 minute while Captain Baggett was still in the chart room is incorrect as to how long Captain Baggett was in the chart room because the vessel could not have travelled to the point of grounding in 40 seconds to 1 minute from the time it made the turn out of CUT E into CUT D. As Petitioner's Exhibit No. 3 demonstrates, the testimony of Captain Baggett that the vessel steadied up on a heading of 213 degrees in the center of CUT D and that he viewed the ranges in line for 2 minutes before going to the chart room and that "almost immediately" upon coming out of the chart room 15 to 20 seconds later the vessel went aground was incorrect as to how long he stayed after the vessel steadied up before going into the chart room because in that time frame the turn, causing the vessel to go aground would have been so sharp the vessel would have gone aground at a heading significantly less than 206 degrees. The most believable evidence demonstrates that Captain Baggett was in the chart room 2-3 minutes prior to grounding. Captain Baggett went into the chart room to make his time and distance calculations because light was more readily available. Captain Baggett could have made the time and distance calculations without going into the chart room. While Captain Baggett was in the chart room, he was facing away from the chart room entrance and did not look at the rudder indicator, the ranges, or otherwise determine if his orders were being properly carried out. Captain Baggett's expertise as a pilot was available to the mate and quartermaster while he was in the chart room had either of them been aware of a problem and requested his assistance. But, his expertise as a pilot was not totally available to the vessel due to his position in the chart room. Where the crew is unfamiliar with the harbor and its lights and there is a language problem, courses are usually given on compass rather than instructions on the range lights.
The Issue Whether the demotion of the Petitioner by the Respondent from an Airplane Pilot I to an Engineering Technician II position was supported by competent substantial evidence and complied with the Florida Statutes and rules and regulations.
Findings Of Fact Petitioner John Clarkson was demoted by Respondent Department of Agriculture, Division of Forestry, after Petitioner failed to receive a satisfactory rating after having received ratings of "conditional" for a period of six months. The ratings were discussed and signed by the Petitioner. By certified letter, return receipt requested, dated April 15, 1976, the Petitioner was formally advised that the Commissioner of the Florida Department of Agriculture had approved his Division Director's recommendation that Respondent be demoted. Petitioner filed his appeal of the Respondent's action on May 6, 1976. On May 18, 1976, the Petitioner was notified by the Career Service Commission that his appeal had been accepted. Petitioner twice requested a continuation of the requested administrative hearing and subsequently filed a Motion for Default and Directed Verdict or Judgment on the pleadings. A response was filed and thereafter, the Motion was withdrawn by Petitioner. Petitioner is a 30-year State employee and has served more than twenty (20) years with the Department of Agriculture. He currently is employed by Respondent as an Engineering Technician II. The Petitioner admits that the demotion of Aircraft Pilot I to Engineering Technician II was procedurally correct and the essence of his argument against the demotion is that the Respondent concentrated on finding "little picky things" about the employee and used these to fortress his demotion. Petitioner contends: That matters in the Petitioner's personal record before 1975 should not be considered. That the major allegations of Respondent were related to his non- flying duties and that the demotion concerned his duties as an Airplane Pilot I. That the charges of tardiness, wasting time, inability to perform non-flying duties were, even if supported by competent and substantial evidence, immaterial to the issue. That Petitioner's actions in relation to a ferrying plane trip to California in 1975 did not endanger the life of colleagues or aircraft; that Petitioner was justified in his takeoff from an airport on a hot day and on his leaving the group on its return to Tallahassee on the said trip. That inaccuracies in reporting; fires, which was a major part of his duties, were not confined to Petitioner and that he considered it better to be "safe than sorry" than save a little money when reporting fires, and that further, he "called them as he saw them." That the supervisors and superiors failed to meet with Petitioner as required and were more intent on building up Petitioner's deficiencies than in trying to help him. Respondent contends: That Petitioner failed to follow instructions of his supervisors. Petitioner failed to adequately perform duties as fire control spotter pilot, which resulted in crews being dispatched unnecessarily. That Petitioner's ratings, letters of reprimand, memorandums, throughout his career showed he failed to follow instructions in performing his job adequately. The Hearing Officer further finds: Petitioner presented evidence and testimony relative to his employment prior to 1975. Contrary to the contentions of the Petitioner, the position of Airplane Pilot I includes not only flying duties and responsibilities of the fire patrol, it includes much paper work such as drawing and tracing and revising plans, revising maps, making maps, handling orders, disseminating fire weather forecasts to field offices, and the coordination of related incoming reports. Work with others is an integral part of the employment. An examination of the voluminous records submitted and entered into evidence at the hearing show that the Petitioner has had an employment history of conflict with his employer for a number of years and the same type of criticism continued from year to year up to the date of Petitioner's demotion. The Respondent presented evidence to show that Petitioner had been sent memorandums calling his attention to numerous complaints about the quality of his work and relationship with other people including many other employees of Respondent. Evidence was submitted to show Petitioner's repeated failure to follow instructions of his superiors. Evidence was submitted showing that during the years of Petitioner's employment there were some "conditional" ratings; some ratings below satisfactory; one previous demotion; memorandums citing Petitioner for failure to perform duties adequately; complaints from passengers, which ultimately resulted in the revision of Petitioner's duties so that he did not carry passengers. Taken as a whole, the various memorandums concerning Petitioner show that contrary to the contention of Petitioner, the supervisors and superiors endeavored to work with Petitioner and were consistently trying to fit him into the work organization so that he could work within his capacities. Other employees were moved within the Division to fill in where the Petitioner was deficient. The charges of tardiness, wasting time, poor work product, go directly to the employment of the Petitioner and no competent evidence was submitted to show that these charges were inaccurate. It was not conclusively shown that Petitioner actually endangered the lives of colleagues or aircraft on a September, 1975 flight to California from Florida during his ferrying duties, however Petitioner failed to follow prior instructions and caused confusion among the other members of the group on that trip. On one occasion he left the group without permission of the designated leader and the group was forced to change its plans and land at a different location. Petitioner failed to follow instructions, left the group and teak off and had to be called back. On the return trip to Tallahassee he left the group and returned to Tallahassee before the others contrary to flight plans that the group remain together. A hot day and eagerness to return home from a trip is insufficient reason to disobey instructions of supervisors. The fire logs show that Petitioner made relatively more errors in reporting fires than the other reporters and evidence was shown that errors wasted money and caused loss of needed services elsewhere. The report of fires was a central part of Petitioner's employment duties. Petitioner is an experienced and evidentally, good pilot, but the evidence shows he fails to follow closely the instructions of his supervisors in relation to his duties and is deficient in his non-flying work. He fails to work well with other employees.
Recommendation Affirm the action of the Agency in demoting Petitioner. DONE and ENTERED this 13th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Walter Kelly, Esquire Mrs. Dorothy Roberts Department of Legal Affairs Appeals Coordinator The Capitol Building Department of Administration Tallahassee, Florida 32304 Room 530 Carlton Building Tallahassee, Florida 32304 Clinton H. Coulter, Jr., Esquire DUVALL & COULTER Mr. Jerry Gullo 118 S. Gadsden Street Department of Agriculture Tallahassee, Florida 32301 Mayo Building Tallahassee, Florida 32304
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue is whether Respondent, Continental Airlines, Inc. ("Continental"), committed an unlawful employment practice contrary to section 760.10, Florida Statutes (2009),1/ by discriminating against Petitioner based on his race or national origin in discharging Petitioner from his employment.
Findings Of Fact Continental is an employer as that term is defined in subsection 760.02(7). Continental is a passenger service airline. Petitioner, a black Hispanic male, was employed as a flight attendant by Continental from November 10, 2005, until March 7, 2009, when Continental terminated his employment. At the time of his termination, Petitioner was based at Continental's hub in Newark, New Jersey. As a flight attendant, Petitioner was a union member of the International Association of Machinists ("IAM"). At the time he was hired, Petitioner received a copy of Continental's "InFlight Policies & Procedures Manual" (the "Manual"), which sets forth the rules of conduct for flight attendants. On January 29, 2009, Petitioner was working the first class section of Continental Flight 1085 from Fort Myers, Florida to Cleveland Ohio (the "Flight"). Petitioner testified that he takes medication for high blood pressure, and that the medication sometimes has the side effect of causing dizziness. Petitioner testified that he felt fine before the Flight. While on the Flight, Petitioner became dizzy. In an effort to relieve his dizziness, Petitioner sat down in the last row of unoccupied passenger seats. At all times relevant to this proceeding, Cheryl Downs was a management employee with ExpressJet ("XJT"), a regional partner of Continental. Ms. Downs was also a former employee of Continental. On February 6, 2009, Ms. Downs sent an email to a manager of Continental regarding things she witnessed as a passenger on the Flight. The email stated, in relevant part: I am not sure what is allowable from flight attendants and what isn’t but I have never seen anything like this in my 15 years with Continental/XJT. First of all they were never rude to anyone. We were seated in coach, the flight probably had 40 empty seats. I was still able to look up the crew members names in FOMS3/ for this flight, and I pulled the pictures to verify who was who so I could give you a few more details. Flight Attendant Joel Fontanez worked the 8 first class seats for the service, and flight Attendant Craig Cummings and Tiffany Broussard worked the back beverage service only. When the beverage service was finished which [was] a relatively short time period since the flight was not full, F/A [C]ummings sat in the last row (I believe it was 25D) and was crocheting. F/A Fontanez came back to the rear with a blanket and physically laid down across 25 ABC and covered with the blanket. [H]e appeared to be sleeping. At that point F/A Broussard disappeared, so I am assuming she went up to the first class cabin. I never saw her again. A second beverage service was not done and trash was not picked up until shortly before landing, when the initial approach indication was given, they rose up from the back and came out with the trash bags. I feel very bad complaining about fellow employees but really couldn't believe it was happening. Several other passengers that were going back to the bathroom were making comments about the crew. . . . Based on Ms. Downs' email, Continental began an investigation into the flight attendants' activities on the Flight. On February 11, 2009, Petitioner met with Continental in-flight group supervisor Leah Yi Opinion, his direct supervisor, to discuss Ms. Downs' allegations regarding Petitioner's actions on the Flight. Ms. Opinion provided Petitioner with a copy of Ms. Downs' email and asked whether he could explain why Ms. Downs would report that he appeared to be sleeping on the Flight. Petitioner could not provide an explanation. Ms. Opinion told Petitioner that he would be required to provide a written statement explaining his actions on the Flight. On February 12, 2009, Petitioner submitted a letter to Ms. Opinion. The letter addresses Ms. Downs' allegations regarding the number of times the flight attendants served beverages, which was not a major issue in Petitioner's ultimate discipline. As to the allegations regarding Petitioner's sleeping during the Flight, Petitioner wrote: Shortly after the second beverage was completed I was walking towards the back of the main cabin to do my compliance check and proceed to pick up any services items. I proceed at that time to take my jumpseat. I [cannot] understand why Ms. Downs interpreted that as what she did. I have never sat in a passenger seat and I understand Continental's policy when it comes to that. I only sat down at my jumpseat to gain my composure because of my high blood pressure and at that time I felt that my high blood pressure was high. This has happened to me before where my high blood pressure goes up. As a matter of fact I was on a trip a few months ago and I was forced to visit the clinic in Houston and they have on record that my blood pressure soared and was referred to my own doctor and was even asked to not continue my trip because of the their [sic] findings. I told her that I would continue my trip and follow up with my doctor upon arrival in Newark. I have never called in sick because of my work ethic and have always tried to take care of my medical issues and situations outside of Continental Airlines. As you can see, I have always wanted to come to work and not let a sick call blemish my record. I continue to take high blood pressure medication. The dosage and the strength [have] been continually elevated by my doctor.... Continental denied any prior knowledge that Petitioner was taking blood pressure medications that could affect his job performance. The only evidence produced by Petitioner to contradict Continental's denial was a document showing that he visited the Continental clinic at the Houston hub on August 3, 2008, and that his blood pressure was 170/120. There were no records indicating that Petitioner followed up with his employer as to his subsequent medical history. The failure to inform Continental that he was taking medications that impaired his ability to work was itself a violation of Continental policy. The Manual provides that, in the event of an emergency or illness, the flight attendant should notify the captain, who will call ahead to the arrival city and receive instructions from a supervisor. The supervisor may allow the crew to place the ill flight attendant in a passenger seat. Petitioner informed no one on the Flight that he was not feeling well before he removed himself to the rear of the plane. On March 2, 2009, Continental received a written statement from Mr. Cummings, the flight attendant whom Ms. Downs stated was crocheting on the Flight and who was undergoing his own disciplinary investigation. In his statement, Mr. Cummings admitted that he had been crocheting while seated in a passenger seat. Mr. Cummings also stated that during the Flight he had seen Petitioner lying across a row of passenger seats with a blanket over him. Continental provided Mr. Cummings' written statement to Petitioner. On March 4, 2009, Continental convened an investigatory meeting regarding Petitioner's actions on the Flight. In attendance were Petitioner; Harrison Owen, Petitioner's IAM representative; Ms. Opinion; and Kevin Cumiskey, Continental's base manager of in-flight services for the Newark hub. At the March 4 meeting, Petitioner admitted for the first time that he had been sitting in a passenger seat on the Flight, not in his jumpseat as he had earlier claimed. Petitioner claimed that he had laid his head down in the seat for 10 to 15 minutes because of the dizziness, but that he had always kept his feet on the floor. He closed his eyes but did not go to sleep. Petitioner continued to deny that he had covered himself with a blanket. Petitioner was instructed to provide a second written statement to reflect his revised version of events. Later on March 4, 2009, Petitioner submitted a handwritten statement consistent with his oral statements in the investigatory meeting. In the statement, Petitioner expressed regret that he was not truthful in his initial statements about whether he had occupied a passenger seat on the Flight. At the March 4, 2009, meeting, Petitioner acknowledged that he was familiar with the Manual at the time of the Flight. Among the in-flight rules of conduct is the following: "If a flight attendant, while on duty, gives the appearance of sleeping or goes to sleep, he/she will be subject to immediate termination." By letter dated March 7, 2009, Ms. Opinion, as Petitioner's supervisor, informed Petitioner that his employment was terminated because: (a) he had violated the Continental rule prohibiting a flight attendant from sleeping or giving the appearance of sleeping on a flight while on duty; (b) he had violated the Continental rule providing that any flight attendant who is taking any medication, prescribed or unprescribed, that may affect his ability to perform his job must notify his supervisor in writing; and (c) he had not been truthful during Continental's investigation of the allegations against him when he denied having occupied a passenger seat on the Flight and when, even after admitting his untruthfulness about the seat, he continued to deny that he had been lying down covered with a blanket, despite the credible statements of Ms. Downs and Mr. Cummings. In March 2009, Petitioner filed a first level grievance, in accordance with the contract between Continental and the IAM, to contest his discharge. As part of his grievance, Petitioner claimed that Continental had treated Mr. Cummings, who is Caucasian, more favorably than it had treated Petitioner because Mr. Cummings had violated Continental's rules by sitting in a passenger seat and crocheting but had only received a termination warning4/ rather than an outright termination. On June 9, 2009, Continental denied Petitioner's first level grievance and upheld his termination. Continental specifically rejected Petitioner's contention that Mr. Cummings and Petitioner were similarly situated and treated differently. Continental found that, unlike Petitioner, Mr. Cummings was "forthright and upfront during the investigation" and "did not take himself out of customer view and maintained view of the cabin at all times" during the Flight. As noted above, the Manual provides for immediate termination of a flight attendant who sleeps or gives the appearance of sleeping while on duty. The Manual does not call for immediate termination of a flight attendant who crochets or otherwise sits down on the job but remains in a position to view the cabin and respond to passenger needs. At the hearing, Petitioner conceded that Ms. Opinion was not Mr. Cummings' supervisor and played no role in Continental's decision to discipline Mr. Cummings short of termination. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Continental for his termination. Petitioner offered no credible evidence that Continental's stated reasons for his termination were a pretext for race discrimination or national origin discrimination. Petitioner offered no credible evidence that Continental discriminated against him because of his race or national origin in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Continental Airlines, Inc., did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 18th day of August, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2011.
The Issue The issue presented for decision herein is whether or not the Petitioner timely filed his charge of unlawful employment discrimination with the Florida Commission on Human Relations. 1/
Findings Of Fact Based upon the evidence adduced at the hearing herein, including Petitioner's testimony, the following relevant facts are found. Petitioner, Richard L. Schmitt, was initially employed by the Respondent, City of Ft. Lauderdale Police Department, as a police officer on January 7, 1980. Petitioner's employment relationship was terminated on February 11, 1983. On February 6, 1984, Petitioner filed the instant charge of employment discrimination with the Florida Commission on Human Relations. Petitioner acknowledges that he was aided and assisted by counsel in filing unlawful discrimination charges since his separation from employment with Respondent, City of Ft. Lauderdale.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing the charge filed herein by Petitioner. RECOMMENDED this 21st day of February, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 21st day of February, 1985.
