The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue The issues are whether Respondent subjected Petitioner to unlawful employment practices by discriminating against her based on her age, sex, and/or disability contrary to Section 760.10(1), Florida Statutes (2003), and by retaliating against her contrary to Section 760.07, Florida Statutes (2003).
Findings Of Fact On or about February 17, 1992, Petitioner began working for Respondent in the College of Pharmacy and Pharmaceutical Sciences as an Other Personnel Services (OPS) Secretary. On or about January 11, 1993, Petitioner became a Program Assistant in the University and Support Personnel System. In late 1999 or early 2000, Petitioner began working as an Administrative Assistant for Dr. Folakemi Odedina, a Professor and Director of the Economic, Social, and Administrative Pharmacy Division (ESAP). Initially, Petitioner enjoyed working for Dr. Odedina in an office located in the Frederick S. Humphries Science and Research Center (Science and Research Center). However, in time Petitioner's professional relationship with Dr. Odedina began to deteriorate, along with the expanding responsibilities of the job.1 In January 2001, Petitioner fell while she was carrying some documents from one of Respondent's buildings to another. The fall injured Petitioner's ankle, hip, and lower back. Petitioner was pregnant at the time of her fall in January 2001. She filed a workers' compensation claim as a result of the accident and subsequently returned to work with medical limitations as to activities involving lifting and walking. In a memorandum dated May 16, 2001, Petitioner advised Dr. Odedina and the ESAP faculty that she soon would be going on three to four months of parental leave. She also advised them that she had removed her personal belongings and other items belonging to other departments that had been on loan to her. In June 2001, Petitioner fell again while she was at work. She was in her ninth month of pregnancy at the time of the second accident. She decided not to return to work until after the birth of her baby. In a memorandum dated June 14, 2001, Dr. Odedina acknowledged that Petitioner would be out on sick leave, followed by parental leave until October 2001. Dr. Odedina wanted Petitioner to turn in her office keys and provide information about the office voicemail password so that the office would continue to function efficiently during Petitioner's absence. Apparently, Petitioner had not removed her personal belongings from her office as stated in her May 16, 2001, memorandum. On June 14, 2001, Petitioner and Melvin Jones, an investigator for Respondent's Police Department went to the office after 5:00 p.m. to remove Petitioner's personal belongings. During the moving process, Mr. Jones took a typewriter and a chair, both of which were university property on loan to Petitioner from another university office, to the library on the fourth floor of the Science Research Center. Petitioner intended to leave the chair and the typewriter there until someone could return them to the office in the department to which they were officially assigned. Additionally, in packing her personal items, Petitioner or Mr. Jones inadvertently packed and removed a black office telephone from the premises. On June 15, 2001, Dr. Odedina noticed that the typewriter and telephone were missing from Petitioner's office. After making an unsuccessful effort to contact Petitioner, Dr. Odedina reported to Respondent's Police Department that the typewriter and telephone were missing from Petitioner's office. Respondent's Police Department immediately initiated an investigation of unauthorized removal of state property with Petitioner as the suspect. On June 15, 2001, Petitioner realized that she had mistakenly packed the black telephone with her personal belongings. She returned it to Respondent that same day. Thereafter, Respondent's Police Department closed its investigation after verifying that Petitioner never removed the typewriter from the Science Research Center and that she returned the telephone on June 15, 2001. On June 25, 2001, Petitioner delivered her baby. Subsequently, Petitioner received medical treatment for physical problems that were the result of her on-the-job falls. Between parental leave and workers' compensation leave, Petitioner was out of work for approximately eighteen months. During Petitioner's absence from work, Dr. Odedina hired an OPS employee to temporarily fill Petitioner's position. At some point in time, Petitioner contacted FCHR to make an inquiry concerning discrimination. In a letter dated August 28, 2002, relative to FCHR Case No. 2202827, FCHR advised Petitioner as follows: "Based on the information you provided, we are unable to pursue this matter further." FCHR then cited Section 760.11(1), Florida Statutes (2002), for the proposition that a complaint must be filed within 365 days of the alleged discriminatory act. From 1994 to 2004, and at all times relevant here, Dr. Henry Lewis was the Dean of the College of Pharmacy and Pharmaceutical Sciences. From January 2002 through July 2002, Dr. Lewis also served as Respondent's interim president. Since 2004, Dr. Robert Thomas has served as Dean of the College of Pharmacy and Pharmaceutical Sciences. At all times relevant here, Dr. Thomas served as Associate Dean of the College of Pharmacy and Pharmaceutical Sciences. In a letter dated October 9, 2002, Dr. Lewis advised Petitioner that he had received documentation from Ruth Beck, Petitioner's Rehabilitation Consultant, regarding accommodations for Petitioner's return to work with medical restrictions. Dr. Lewis requested that Petitioner meet with Respondent's Equal Opportunity Programs Office to determine what accommodation are to be provided upon Petitioner's return to work. The recommended accommodations included an ergonomic chair and a desk equipped with a keyboard tray and mouse extension. It was also suggested that Respondent provide Petitioner with a flat screen monitor and a utility cart because Petitioner's permanent office in the Science and Research Center was small and too cramped to accommodate Petitioner's physical limitations. Petitioner needed a more spacious work area, with adequate storage space in close proximity, than was available in her office at the Science and Research Center. Even with the new furniture and equipment, Petitioner's needs could not be met in her old office. Accordingly, it was mutually agreed that, upon her return to work, Respondent would assign Petitioner to work temporarily in the Division of Pharmacy Practice, under the supervision of Dr. Otis Kirksey. Dr. Kirksey's office was located off-campus at 565 East Tennessee Street, Tallahassee, Florida, in a building with a ramp and without stairs that Petitioner would have to climb. Petitioner's assignment to work in Dr. Kirksey's office was temporary. Dr. Odedina and the ESAP faculty and staff planned to move to the new Dyson Pharmacy Building as soon as it was completed. The new facility would have sufficient space, furniture, and equipment to accommodate Petitioner's needs in her position as Administrative Assistant to Dr. Odedina. In November 2002, Petitioner learned that her doctor would not sign a form stating that Petitioner had a permanent disability. Instead, he agreed that she needed a disabled parking permit for a temporary period, for three months through February 5, 2003. On December 2, 2002, Petitioner began to work for Dr. Kirksey as an Administrative Assistant/Receptionist. She agreed to begin working in that capacity even though all the accommodations she needed were not immediately available. Petitioner was eager to return to work. By February 18, 2003, Respondent had provided Petitioner with all necessary accommodations. She had the ergonomic chair and a desk equipped with a keyboard tray and mouse extension. Given her more specious work area, a flat screen monitor and/or utility cart was not required to accommodate her physical limitations. Petitioner did not want to return to work for Dr. Odedina under any circumstances. She was aware that Dr. Kirksey was going to hire a new employee for a Program Assistant position. However, Petitioner never applied for the new Program Assistant position because she believed that Dr. Kirksey had already made up his mind to hire another person for the job. There is no evidence that Dr. Kirksey ever intended to deprive Petitioner of the opportunity to apply for the Program Assistant position or that he would not have considered her application if she had filed one. On October 6, 2003, Petitioner had a meeting with Dr. Lewis about her work assignment. During the meeting, Petitioner and Dr. Lewis discussed another position that was available. The position involved keeping track of student volunteer hours. After the meeting, Petitioner mistakenly believed that Dr. Lewis had offered her the new position, which would not have been under Dr. Odedina's supervision. During the October 6, 2003, meeting, Dr. Lewis asked Petitioner how things were going in her private life, i.e. whether she had anyone special in her life. Petitioner replied that she did not have such a relationship and that with all the drama she was experiencing in her personal life, she did not need to be involved with anyone. There is no indication that Petitioner was offended by Dr. Lewis's personal expressions of concern for Petitioner's well being. On October 8, 2003, Petitioner met with Drs. Lewis and Thomas. During the meeting, Petitioner adamantly refused to return to work for Dr. Odedina. Petitioner made the following statement: "I do not want to see FAMU facing a wrongful death lawsuit for an employee killing a supervisor." Drs. Lewis and Thomas were concerned about the statement, which they understood to be a threat against Dr. Odedina. However, they believed they would be able to handle any problem that might arise when Dr. Odedina joined the prescheduled meeting. Petitioner was agitated during the meeting with Dr. Lewis and Dr. Thomas. She became more agitated when Dr. Odedina joined the meeting. Dr. Odedina went to the meeting expecting to discuss Petitioner's office space and accommodations when she moved into the Dyson Pharmacy Building with the rest of the ESAP faculty and staff. She was not aware that Petitioner had made a threatening comment. Initially, Dr. Odedina was obviously pleased that Petitioner would be returning to work for her. However, as the October 8, 2003, meeting proceeded, Dr. Odedina felt that Petitioner's demeanor was hostile. Dr. Odedina got the impression that Petitioner was resisting the idea of returning to work for Dr. Odedina. At that point, Dr. Odedina insisted that Petitioner return to work for ESAP or, if Petitioner continued to work for Dr. Kirksey, his office should be responsible for paying Petitioner's salary. At one point during the October 8, 2003, meeting Petitioner complained that she suffered from migraine headaches and depression. She showed Drs. Lewis, Thomas, and Odedina prescriptions for Imatrex and Prozac. Before Petitioner left the meeting on October 8 2003, Dr. Lewis told Petitioner that she should write a letter stating that she refused to return to work in the ESAP office under Dr. Odedina's supervision. Petitioner subsequently wrote a letter, describing it as a "notice of transfer," but clearly indicating that she chose not to return to work for Dr. Odedina. After Petitioner and Dr. Odedina left the October 8, 2003, meeting, Drs. Lewis and Thomas discussed Petitioner's threatening statement against Dr. Odedina. They decided to report it as a serious threat of bodily harm to Respondent's Director of Personnel, Vice President for Academic Affairs, and Provost, first by telephone, and later in writing. Dr. Lewis also contacted Dr. Odedina by telephone, advising her of the threat and directing her not to report to work on October 9, 2003. Finally, Dr. Lewis informed Respondent's Police Department about the threatening statement. Respondent's Provost, Larry Robinson, drafted a letter dated October 9, 2003. According to the letter, Petitioner was on administrative leave with pay, effective upon receipt of the notice. The letter advised Petitioner of a pending investigation of an employment matter and directed her to return all university-owned property. The letter advised Petitioner to refrain from reporting to work or visiting the campus, until further notice. The only exception was that Petitioner could continue to transport one of her sons to Respondent's Developmental Research School. On October 10, 2003, Respondent's Police Department initiated a formal investigation about Petitioner's threatening statement based on the written statements of Drs. Lewis and Thomas. On that date, Respondent's investigator, James Rose, filled out an incident report, indicating that he had interviewed Dr. Odedina and that Respondent's Director of Personnel had requested him to deliver the October 9, 2003, letter to Petitioner. Officer Rose was not able to deliver the October 9, 2003, letter to Petitioner until October 11, 2003. After Officer Rose gave Petitioner the letter placing her on administrative leave with pay, Petitioner stated that she only made the comment about Dr. Odedina because the department was about to transfer her back to Dr. Odedina's office. Petitioner told Officer Rose that she never intended to harm Dr. Odedina. On October 13, 2003, Petitioner returned her office key to Respondent. She left the key at Respondent's Police Department's communications office. On October 14, 2003, Petitioner filed her first Employment Charge of Discrimination with FCHR. In that initial complaint, identified hereinafter as DOAH Case No. 04-2003, Petitioner alleged as follows: (a) Respondent discriminated against Petitioner based on her disability by failing to accommodate her back impairment; (b) Respondent discriminated against Petitioner based on her age because Respondent did not give Petitioner an opportunity to apply for a position ultimately given to a younger, less senior employee; and (c) Respondent placed Petitioner on administrative leave with pay. In a letter dated October 31, 2003, Respondent advised Petitioner that Respondent intended to terminate her employment for threatening and/or abusive language and conduct unbecoming to a public employee. In an undated letter, Petitioner requested a conference in order to make an oral or written statement to refute or explain the charges against her. On or about November 3, 2003, Petitioner requested information about the return of her personal property located in Dr. Kirksey's office. Officer Rose approved Petitioner's request to retrieve her property. Sometime after November 3, 2003, Officer Rose concluded that Petitioner had made a threatening statement. However, Officer Rose found no indication that Petitioner intended to carry out the threat against Dr. Odedina. Accordingly, Respondent's Police Department suspended its investigation. In a letter dated November 17, 2003, Respondent advised Petitioner that it had scheduled a predetermination conference on November 24, 2003. By letter dated December 8, 2003, Petitioner informed Respondent that she received the November 17, 2003, letter on December 5, 2003. She asserted that she did not receive timely notice of the predetermination conference. In a letter dated December 11, 2003, Respondent advised Petitioner that it was proceeding with the employment action. According to the letter, Petitioner's dismissal from employment would be effective on December 19, 2003. However, Petitioner had an opportunity to request arbitration. On December 19, 2003, Petitioner reminded Respondent that she did not receive timely notification of the predetermination conference. She requested Respondent to schedule another conference. In a letter dated January 9, 2004, Respondent advised Petitioner that it had scheduled a predetermination conference for January 13, 2004. However, a subsequent letter dated January 13, 2004, rescheduled the conference for February 18, 2004. In a letter dated March 3, 2004, Respondent advised Petitioner that her dismissal from employment was effective March 11, 2004. On February 2, 2005, Petitioner filed a Consented Motion for Abatement or Alternatively, Notice of Voluntary Dismissal without Prejudice in DOAH Case No. 04-2003. On February 8, 2005, Administrative Law Judge Diane Cleavinger entered an Order Closing File in DOAH Case No. 04-2003. Judge Cleavinger's order is silent as to any prejudice that might have resulted from closure of the file in DOAH Case No. 04-2003. However, the parties agreed during the hearing in the instant case that FCHR never entered a final order in the prior case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S 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 30th day of December, 2005.
Findings Of Fact Respondent at times relevant to the inquiry employed 15 or more employees in each working day in each of 20 or more calendar weeks in the year. Petitioner worked for the Respondent from May 7, 1984 through December 19, 1991. Petitioner had tendered his resignation on December 6, 1991 from his position as Engineering Technician IV. His intention was that his resignation become effective December 20, 1991. On December 6, 1991, Jerry G. Smith, District Land Surveyor for District II, State of Florida, Department of Transportation, accepted Petitioner's resignation effective December 20, 1991. This action by Mr. Smith was by virtue of his responsibility for the Mapping and Surveying Section of which Petitioner was a part. Respondent did not solicit Petitioner's resignation. In the chain of command Mr. Smith was 2 or 3 times removed from Petitioner. Respondent's Exhibit No. 1 describes the duties of Engineering Technician IV incumbent upon Petitioner until November 12, 1991. Those duties were as follows: Plots and inks the final right of way and assists other Department Personnel in the preparation of maps. These maps must meet D.O.T. and Federal Highway Administration Standards. Works with the Document Preparation Section in locating property lines and determining what information is needed on maps in order to prepare legal descriptions. Assists in the verification of final right of way requirements with Road Design Personnel. Assists in the review of right of way maps prepared by Consultants. Assists in making the computations that are needed for map and deed preparation. Provides other Department Personnel and the General Public with right of way information as required. Performs related work as required. Percentages of time will vary due to work load. Respondent's Exhibit No. 2 describes the job description for Engineering Technician IV related to the Petitioner from the period November 12, 1991 through December 19, 1991. Those duties were as follows: 30 percent Prepares very complicated legal descriptions of real property to be acquired by the Department of Transportation. These are written by hand and also by using "Legal Holiday", Computer Software. 30 percent Plots Title Search (Abstract) on Right of Way Maps and determines owners and encumbrances. 15 percent Reviews legal descriptions of real property and related documents prepared by other employees or/and Consultants. 15 percent Compute areas of parcels needed for right of way. Also, computes areas, distances, and bearings on property remainders. 5 percent Determines the types of instruments of conveyance to be prepared. 5 percent Performs related work as required. Percentages of time will vary, due to work load. Some unspecified person within the architectural and engineering firm, Reynolds, Smith and Hills, Inc. made contact with Petitioner concerning the possibility that he might serve as an office engineer in the firm's Lake City, Florida office. This contact was made in October, 1991. On December 3, 1991, Ed Griffin and Eric Rosenstein called Petitioner about the availability of the office engineer position. They wanted Petitioner to come to their Longwood, Florida office and interview about the position. On December 6, 1991, Petitioner went to the firm's Longwood office and was interviewed by Eric Rosenstein and Ed Griffin. They took a photocopy of his social security card and his resume to support his application for employment. Petitioner testified that Mr. Griffin and Mr. Rosenstein during the December 6, 1991 interview specifically stated that they wanted to hire him. These hearsay comments attributable to Mr. Griffin and Mr. Rosenstein were not otherwise proven. Therefore, it has not been established that Petitioner was offered a job with the Reynolds firm on December 6, 1991. Based upon the interview with Griffin and Rosenstein, Petitioner called Jerry Smith's office on December 6, 1991, and spoke to Carol Streer, secretary to Jerry Smith. He told her to prepare a letter of resignation for Petitioner and he told her to tell Jerry Smith that Petitioner would be leaving his position with Respondent in two weeks and wanted to give the Respondent two weeks' notice. This led to the resignation and acceptance of that resignation that has been addressed above. On November 1, 1991, the Reynolds firm had entered into an agreement with Respondent to serve as a consultant for purposes of construction engineering and inspection. This was in association with the resurfacing with bridge widening of Interstate 75. It is inferred that Petitioner had been interviewed by the Reynolds firm to serve as an office engineer to the Reynolds firm on the resurfacing project. In accordance with the agreement between the Reynolds firm and Respondent, related to the Interstate 75 resurfacing project, a definition is given concerning minimum training and experience standards for consultant personnel. Specifically, the training and experience anticipated for an office engineer is described in that agreement to this effect: OFFICE ENGINEER - High school graduate plus three (3) years experience in responsible charge of a construction office. Should exercise independent judgment in planning work details and making technical decisions related to office engineering aspects of the project. Accepts general supervision and verbal instructions from the Resident Engineer. Serve as the Resident Compliance Officer in surveillance of the Contractor's compliance with contract requirements. Within the agreement under Section 2.0 entitled: SCOPE, it states: . . . The Consultant shall provide technical and administrative personnel meeting the requirements set forth Section 9.0 of this Scope of Services in appropriate numbers at the proper times to ensure that the responsibilities under this Agree- ment are effectively carried out. All services shall be performed in accordance with the estab- lished standard procedures and practices of The Department. . . . Section 9.0C. entitled Staffing, within the agreement, states: . . . no personnel shall be assigned to this project by the Consultant until the qualifications of each person proposed have been reviewed and approved in writing by the Program Manager. The Consultant's personnel approval requests shall be submitted at least two weeks prior to the date an individual is to report to work. The Program Manager, according to the agreement, is: "the District employee designated to be in responsible charge and direct control of the projects covered by this agreement." On December 9, 1991, in accordance with the agreement, the Reynolds firm submitted Petitioner's name as proposed office engineer on the Interstate 75 project. This submission was made through a form seeking approval from the program manager. In support of the request to have the program manager approve the Petitioner to serve as an office manager to the consultant, the Reynolds firm submitted a resume which Petitioner had provided that firm. The resume which Petitioner gave to the Reynolds firm and the firm in turn gave to the Respondent's program manager stated as follows: R E S U M E Richard C. Bishop HOME 1605 N. E. 7th Terrace Gainesville, Florida 32609 Telephone (904) 373-6510 538-5225 OFFICE Surveying & Mapping Dept. Post Office Box 1089 Lake City, FL 32056-1089 Telephone (904) 752-3300 EXT. 3662 PERSONAL: Male, Caucasian, U. S. Citizen, Good Health, 5' 10", 195 lbs. EDUCATION: Univ. of Florida Business Administration San Jose City College Associates Degree, Electronic Engineering Univ. of North Florida Communications and Electronics US Air Force EXPERIENCE: Atlantic Ballistic Missile Range with Radio Corporation of America as Electronic-Equipment-Man working with HF and VHF Receivers and Transmitters, a 200+ station North Electric all system, Emergency Networks (radio and telephone), Radar Boresight Cameras, Optical Trackers, Control Room Plotting Boards and Captain of Disaster Control Team. West Virginia Department of Highways: Completed Engineer-In-Training program covering all phases of Construction Maintenance, Soil Mechanics and Testing including Marshall Stability Tests, Los Angeles Abrasion Tests as well as standard sieve analysis, flow plasticity, density, specific gravity, extractions, gradations and concrete and asphalt mix designs. Set up and managed a Complaint Department while continuing duties as an Area Maintenance Assistant over several counties. Certified Portland Cement Concrete Technician with sampling and testing experience in both field and laboratory testing methods. Licensed Nuclear Densitometer Operator with considerable experience using the Troxler Nuclear Densitometer measuring densities on fills, sub- grades and asphaltic concrete bases and overlays. Management and/or supervision in several privately owned asphalt paving and construction companies. Construction Inspection School for 10 weeks at St. Petersburg Junior College. Construction inspection on I-75, Alligator Alley and Toll Plaza, Marco Island Road and other projects in the Naples area, then SR 21, Orange Park to Middleburg, SR 121 at Raiford, Rocky Creek Bridge, 53rd Ave and Waldo Road intersection and others in the North Florida area. Presently working in Right of Way Engineering ordering, receiving and plotting title searches on maps and producing corresponding accurate maps and all the necessary legal documents required for the actual acquisition of real property with a right of way. In December, 1991, the program manager for Respondent on the Interstate 75 resurfacing with bridge widening project was Thomas E. Brenner. Mr. Brenner has never been acquainted with the Petitioner other than responding to the Reynolds firm's request to have the Petitioner approved to be the office engineer on the project. No proof was shown that Mr. Brenner has ever made derogatory statements about the Petitioner. Mr. Brenner in carrying out his function as program manager wrote to the Reynolds firm on December 11, 1991, disapproving the request to have the Petitioner approved as the office engineer for the consultant. In disapproving that request he made the following remarks: "Needs some EEO [sic] experience and three (3) years in responsible charge of a construction office." The experience which Petitioner had prior to December 9, 1991, when the Reynolds firm requested that he be approved as office engineer did not meet the training and experience standards within the agreement which were incumbent upon a person serving as an office engineer for the consultant. Thus, the reason for disapproving the request to have Petitioner serve as office engineer is borne out. The record is not clear concerning what is meant by the need for EEOC experience and what experience the Petitioner may have had with the EEOC process. However, it was not shown that Mr. Brenner placed the requirement for EEOC experience as a means to discriminate against the Petitioner in the firm's attempt to have him approved as office engineer. Following the disapproval of the request to have Petitioner approved as the office engineer for the consultant, Mr. Rosenstein called the Petitioner around December 17, 1991. He told the Petitioner that the Reynolds firm was having a problem getting the Petitioner approved to do work with the Respondent. This refers to the work on the Interstate 75 project as office engineer. Specifically, Mr. Rosenstein told the Petitioner that the difficulty had to do with not enough EEOC experience. Petitioner explained in response that he did not consider that this was a significant problem. Two or three days after December 17, 1991, Mr. Rosenstein called the Petitioner again and told him that the problem about EEOC had settled down and that the Respondent was opposing recognition of approval of the Petitioner for work as an office engineer based upon the Petitioner's lack of experience in the computer field related to LOTUS 1-2-3. Petitioner acknowledged that he did not have experience with that form of computer. The record does not bear out how those requirements with LOTUS 1-2-3 coincided with Mr. Brenner's reasons for disapproving the request to have Petitioner serve as office engineer to the consultant, if at all. Some time in January, 1992, Petitioner went to the Reynolds' Longwood, Florida office to give Ed Griffin further information in support of his application for employment. At that time Petitioner learned that the Reynolds firm did not intend to follow up their discussions held with Petitioner concerning his employment and that he would not be hired by the Reynolds firm. In addition to failing to prove that Mr. Brenner had made derogatory statements about him which might have interfered with Petitioner's opportunity to gain employment with the Reynolds firm, Petitioner failed to prove that any of Respondent's employees or managers had made derogatory statements which interfered with his opportunity to gain employment with the Reynolds' firm. The only suggestion that anyone working for the Respondent had made derogatory remarks about the Petitioner were promoted by the Petitioner himself. He told others who worked for Respondent that Jerry Smith wanted to get rid of or fire Petitioner and that Jerry Smith had said that Petitioner would never work a day for the Reynolds firm. Jerry Smith had not made these remarks. Jerry Smith had no contact with the Reynolds firm concerning the Petitioner. Moreover, Jerry Smith has had limited contact with Mr. Brenner and none of it was designed to influence Mr. Brenner in his decision to disapprove the request by the Reynolds firm to have Petitioner serve as office engineer for the consultant. Mr. Smith works in the production side of the District II operation. Mr. Brenner worked in the construction side of the District II operation while he was employed there. Unrelated to the attempt by Petitioner to gain employment with the Reynolds firm, Jerry Smith has had involvement with the Petitioner concerning personnel matters. On several occasions discussions were held between the Petitioner and Smith in which Petitioner was attempting to gain a promotion. On those occasions Smith told the Petitioner that he did not think that the Petitioner was operating at a level that warranted discussing promotion. Smith held the opinion of the Petitioner that the Petitioner could not perform the job duties incumbent upon him in his position as Engineering Technician IV. In particular, Mr. Smith did not believe that Petitioner would finish a task assigned and always had to have someone else finish the work for the Petitioner. Mr. Smith tried to have the Petitioner focus on the perceived shortcomings, but this did not lead to a satisfactory result from the point of view which Mr. Smith felt. When the Petitioner left his employment with the Respondent Mr. Smith made a notation that he would not recommend rehiring the Petitioner at some future date. There is no indication that Mr. Smith or anyone in a supervisory position with the Respondent ever took disciplinary action against the Petitioner for matters related to the Petitioner's performance as Engineering Technician IV. Robert Stewart who is a project manager for Respondent, a friend of Jerry Smith, was not involved in making the decision on December 9, 1991, to disapprove the request to have Petitioner serve as office engineer for the consultant. As stated before Robert Stewart had no contact with the Reynolds firm concerning the Petitioner and the Petitioner's possible employment with the Reynolds firm. The job description and resume information do not support the Petitioner in his claim that his experience gained while employed by the Respondent equates to the necessary experience to perform the duties as office engineer for the consultant in the Interstate 75 project. Nor does the record indicate that Mr. Brenner was aware of any experience outside the position description and resume when disapproving the request to have Petitioner serve as office engineer. Finally, the numerous requests which Petitioner made to gain additional training while employed by Respondent, which requests were not granted, were not matters which Petitioner has shown that he was entitled to be granted. Moreover, those requests have not been shown to be matters which coincide with the requirements for the position of office engineer to the consultant in the Interstate 75 project. On September 2, 1994, in the prehearing conference held by telephone, Petitioner indicated to Hearing Officer Davis that he accepted the "no charge" determination of the Florida Commission on Human Relations as to the untimeliness of his age discrimination allegation and waived his right to proceed on that claim. Petitioner's position by the Petitioner was memorialized in the order by Ms. Davis entered September 15, 1994. At the hearing held on October 20, 1994, Petitioner proceeded on the basis that the age discrimination claim was no longer viable.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which dismisses the petition for relief based upon a claim of an unlawful employment practice by the Respondent as defined in Section 760.10(7), Florida Statutes. DONE and ENTERED this 22nd day of December, 1994, in Tallahassee, Florida. CHARLES C. ADAMS 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 22nd day of December, 1994. APPENDIX The following discussion is given concerning the proposed facts found in Respondent's proposed recommended order: Paragraphs 1 through 4 are subordinate to facts. Paragraphs 5 through 7 are not necessary to the resolution of the dispute. Paragraphs 8 through 20 are subordinate to facts found. Paragraphs 21 and 22 are not necessary to the resolution of the dispute. COPIES FURNISHED: Richard C. Bishop 1606 Northeast Seventh Terrace Gainesville, FL 32609 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S.-58 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Respondent is a registered specialty contractor having been issued license number RX0032228, which he holds in the name of Larry T. Huston, Huston Awning Co. On May 29, 1980, Frank Cornelius, on behalf of Hurst Awning Aluminum Company, Inc., went to the mobile home of Mr. and Mrs. Fred Olzak located in Broward County, Florida, where he met with Mrs. Olzak. By the conclusion of that meeting, Cornelius and Mrs. Olzak had entered into two separate contracts whereby Hurst was to construct a screened enclosure at her mobile home. Both contracts were fully executed and were for the same work, although they varied in price by almost $2,000. No credible explanation was offered as to why Mrs. Olzak entered into two separate contracts. Approximately a month later, three men arrived at the Olzaks' mobile home with materials bearing the Hurst logo in a truck bearing the Hurst name. They returned a day or two later and started the construction work contracted for by Mrs. Olzak. At the beginning of July 1980, when the work was almost completed, an inspector for the Broward County Building Department came to the job site and stopped the work for the reason that no permit had been obtained from Broward County. Shortly thereafter, Respondent telephoned Mrs. Olzak and explained that he had been requested by Frank Cornelius at Hurst to do the necessary engineering work for them. He requested permission to come to the Olzaks' mobile home to take the measurements necessary to prepare engineered sealed plans for the job. That evening, Respondent visited the Olzak job site and took the measurements necessary to prepare the plans in order to comply with Broward County requirements. While there, he only spoke with Mr. Olzak. He told Olzak that he had his own company, Huston Awning Company, and that he was working with Hurst so that a building permit could be obtained. He advised Olzak where he could be reached at Huston Awning Company in Broward County. Respondent filed a building permit application with the Broward County Building and Zoning Enforcement Division for the Olzak job. He made application in the name of his company, Huston Awning Company, and signed the application as the contractor. A building permit was issued. After issuance of the permit, two men came to the Olzaks' mobile home in a truck bearing no company name. They came to continue or complete the Olzak construction. Mrs. Olzak decided she did not like them and issued instructions that they would not be permitted to work on the project. No evidence was presented as to whether those men were employed by Hurst or by Huston. Thereafter, Mrs. Olzak refused to allow any further work to be done in completion of the contract. No final inspection has ever been made, since Mrs. Olzak has also denied access to the project to the inspector from Broward County. At no time has Respondent qualified Hurst Awning Aluminum Company, Inc., although no competent evidence was introduced to show that Respondent was employed by Hurst or had an interest in Hurst which might enable him to qualify that company. At the formal hearing, Mr. Olzak admitted Respondent told him he was with Huston Awning Company in Broward County, and Mrs. Olzak admitted Respondent told her he purchases all of the awnings he uses in his business from Hurst Awning Company.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him. DONE and RECOMMENDED this 3rd day of August, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1983 COPIES FURNISHED: Michael J. Cohen, Esquire Kristin Building, Suite 101 2715 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Justin E. Beals, Esquire Forte Plaza, Suite 808 1401 Brickell Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 James K. Linnan, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202
The Issue The issue is whether respondent's license as a certified building contractor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Leroy A. Decker, Jr., held certified building contractor license number CB CO40724 issued by petitioner, Department of Professional Regulation, Construction Industry Licensing Board (Board). When the events herein occurred, respondent was doing business as Aladdin Homes, Inc. (Aladdin) located at 921 S.EA. 15th Avenue, Cape Coral, Florida, and was its registered qualifying agent. In 1987 respondent, acting as qualifying agent for Aladdin, began a business relationship with Designers Showcase of Cape Coral, Inc. (DSCC), a firm specializing in the sale and installation of furniture, carpeting and draperies. Under that relationship, DSCC acted as a subcontractor and installed various floor coverings in new homes constructed by respondent. Under a typical contract for the construction of a new home, the builder agrees to include within the sales price an allowance for floor coverings such as carpet. If a home buyer decides to purchase floor coverings that exceed the allowance, the buyer is responsible for any overage. Under this arrangement, the contractor normally pays the supplier for the amount of allowance prescribed in the contract while the buyer pays the supplier for any overage. From the outset of respondent's relationship with DSCC until it ended, the specifications in respondent's contracts, with certain exceptions, generally called for a floor covering allowance in the range of $1,500. Beginning in March 1988 several of respondent's new home customers became dissatisfied with the quality of floor furnishings provided by DSCC. Because of this, some buyers refused to pay respondent for the value of the floor furnishings provided by that subcontractor. This In turn engendered a dispute between respondent and DSCC and culminated in respondent, with a few exceptions, refusing to pay any moneys owed to DSCC after March 1988. In early 1988 respondent entered into a contract with one Joseph Cernlglia to construct a new home for Cerniglia in Cape Coral, Florida. Pursuant to the contract specifications, respondent gave Cerniglia a $1,500 allowance for floor coverings. Cerniglia opted to use DSCC as the carpet vendor and was well satisfied with the quality of DSCC's workmanship and materials. After the carpet was installed, respondent requested that Cerniglia sign an affidavit (letter of acceptance) so that respondent could receive his final draw from the bank. However, respondent did not advise Cerniglia that DSCC had not yet been paid for its services. Shortly thereafter, respondent signed an affidavit swearing that all suppliers on the Cerniglia project had been paid. Cerniglia later discovered that a $1,500 lien had been filed against his property by DSCC on June 30, 1988. The lien still remains outstanding. In early 1988 respondent entered into a contract to construct a new home for Buddy H. Dennis in Cape Coral, Florida. The contract specifications called for a $2,500 allowance for floor coverings. Before DSCC would install the floor coverings, it demanded payment from respondent for what it believed was the normal $1,500 builder's allowance. After this amount was paid, DSCC furnished, pursuant to the owner's request, $2,500 worth of labor and materials. DSCC attempted to collect the other $1,000 from Dennis but learned that the contract allowance was $2,500 rather than $1,500. Although DSCC invoiced respondent for the additional $1,000, and made numerous oral and written requests for payment to respondent, the remaining $1,000 was never paid. On September 12, 1988, a lien was placed on the property by DSCC. Prior to the lien being recorded, respondent executed a final affidavit and release of lien on August 22, 1988 in which he swore that all subcontractors had been paid. Dennis eventually paid the $1,000 himself in order to obtain clear title to his property. In addition to the Dennis and Cerniglia properties, respondent still owes DSCC $11,654.14 (without interest) for goods and services rendered on other projects. These bills were incurred for goods and services provided after March 1988, when the dispute between respondent and DSCC arose. Whether respondent executed affidavits in connection with those debts is not of record. Because of those and the two above debts, DSCC filed with the Board a complaint against respondent. Respondent justified his actions on the ground he was advised to do so by his attorney and not pay DSCC any money while his complaints regarding poor quality and workmanship were unresolved. As to the Cerniglia property, respondent contends that, just prior to completing the home, he determined that it was necessary to add (a) a stem wall and (b) extra fill dirt to raise the septic tank drainfield. According to respondent, these two items cost around $1,500. Because the dispute with DSCC was then ongoing, respondent did not pay DSCC the $1,500 owed as an allowance and instead, based upon his attorney's advice, decided to use that amount as leverage in his dispute with DSCC. However, respondent did not advise Cerniglia that $1,500 was added to the contract price and that it was Cerniglia's responsibility to pay DSCC for the builder's allowance still owed. Moreover, Cerniglia denied that the additions were ever satisfactorily completed or that their value equated to $1,500. As to the Dennis property, respondent contended, without corroboration, that the real estate office which sold the home increased the builder's allowance on the specifications from $1,500 to $2,500 without advising him. Even if this was true, respondent refused to pay the additional $1,000 after he learned of his increased allowance responsibility under the specifications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsections 489.129(1)(1) and (m), Florida Statutes (1987) and that he be fined $3,000, to be paid within thirty days after the Board enters its final order. DONE and ENTERED this 20th day of August, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 90-1710 Petitioner: 1-3. Partially adopted in finding of fact 1. Partially adopted in findings of fact 2 and 3. Partially adopted in finding of fact 6. Partially adopted in finding of fact 5. Note - Where a proposed finding has been partially used, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Robert B. Jurand, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Mr. Leroy A. Decker, Jr. 618 S.W. 57th Street Cape Coral, FL 33914 Kenneth E. Easley, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Fred Seely Executive Director Post Office Box 2 Jacksonville, FL 32202
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation is the state agency responsible for investigating and prosecuting complaints involving violations of the requirements of Chapter 489, Part I, Florida Statutes. Sections 489.131(7)(e) and 455.225, Florida Statutes. Pursuant to Section 489.129(1), the Construction Industry Licensing Board ("Board") is the entity responsible for imposing discipline for any of the violations set out in that section. At all times material to this case, Mr. Vega was a certified general contractor operating under a license issued by the Construction Industry Licensing Board, numbered CG C046448. Mr. Vega has been a licensed general contractor in Florida since 1989, and since 1994, he has been the licensed qualifying agent for Group Construction South Florida, Inc. The residence of David M. Hudson, located at 19801 Southwest 84th Avenue, Miami, Dade County, Florida, was severely damaged in August, 1992, by Hurricane Andrew. In a letter dated October 13, 1992, Mr. Hudson, who holds a doctorate in biology and is the laboratory manager for the University of Miami Chemistry Department, proposed to Mr. Vega that he prepare plans for reconstructing the Hudson residence. On December 23, 1992, Mr. Hudson and Mr. Vega executed a contract for construction work to be performed on the Hudson residence. The parties contemplated that Mr. Vega would complete the work in accordance with the drawings and original blueprints prepared by Jose A. Sanchez, a structural engineer, at Mr. Vega's direction and based on preliminary plans approved by Mr. Hudson. Specifically, Mr. Hudson understood that the major elements of construction included in the December 23 contract were elevation of the house from one story to two stories, construction of a new living area on the second floor, and construction of a basement on the first floor to serve as a "bare bones storage area." The contract price specified in the December 23 contract was $146,338.33, with ten percent due upon acceptance of the proposal, ten percent due at completion of each of eight items of construction specified in the contract, and ten percent due upon completion of the project. The eight items of construction specified in the contract were "demolition work, rising work, tie beams, roof, doors & windows, plaster & tile, pool & fence, finish work and paint." On February 1, 1993, Metropolitan Dade County Building and Zoning Information Department issued Permit Number 93119957 to Mr. Vega for the Hudson project. The building permit was based on the original plans for the project submitted by Mr. Vega on January 19, 1993, together with some items that were added to the plans at the county's request. Mr. Vega began work on the project on February 1, 1993, the day the permit was issued. Mr. Vega hired Ruben Armas to act as foreman for the project, and his duties included hiring and supervising day laborers and procuring materials needed for construction. At the time, Mr. Armas was not licensed, registered, or certified by either Dade County or the State of Florida. Mr. Vega had an arrangement with Mr. Armas whereby he paid Mr. Armas periodic advances on a lump sum payment that Mr. Armas was to receive when the Hudson project was complete. Mr. Vega did not deduct FICA or withholding tax from the payments made to Mr. Armas under this arrangement. Mr. Vega dealt directly with Mr. and/or Mrs. Hudson regarding the project, although they would occasionally leave messages for him with Mr. Armas. Mr. Vega directly supervised Mr. Armas and gave him instructions on the work that was to be performed and the way it was to be done. Mr. Vega was routinely at the job site at least two or three times a day to inspect the work that had been done. Mr. Vega was present at the site during the entire time that cement was poured for footings or other structural elements. Mr. Vega arranged for various subcontractors to work on the project, including electricians, plumbers, air conditioning workers, roofers, carpenters, and drywall hangers. On April 14, 1993, a Department investigator conducted an inspection of the Hudson project during a "hurricane task force sweep." When she and the other members of the task force arrived on the job site, she observed Mr. Armas and two other men "inside working," but she did not observe them working or see the type of work they were doing. Mr. Armas walked out to meet the inspector and gave her a card that contained his name and phone numbers and the words "General construction & roof repair." Mr. Armas told the Department investigator that, when she arrived, he was "working on the footing for the elevation of the house." On April 21, 1993, Mr. Vega signed a Cease and Desist Agreement in which he acknowledged that the Department was investigating allegations that he had "engaged in the practice of aiding and abetting unlicensed contractor Ruben Armas." By signing the agreement, Mr. Vega agreed to cease "engaging in this activity," but he did not admit that the Department's allegations were true. The Department investigator was at the Hudson job site on April 14, 1993, for thirty minutes to an hour, during which time Mr. Vega did not appear at the site. This was the only time she was at the job site while work was being done. As the work progressed on the project, everything appeared to be going well, and Mr. Vega felt that he enjoyed a very good working relationship with Mr. and Mrs. Hudson. Mr. Hudson paid Mr. Vega a total of $116,400.00, or eighty percent, of the original contract price of $146,338.33, in ten percent increments as provided in the contract. By check dated December 23, 1992, Mr. Hudson paid the down payment of $14,633.38. By check dated February 5, 1993, Mr. Hudson paid $14,600.00 upon completion of the demolition work. By check dated March 5, 1993, Mr. Hudson paid $14,633.00 upon completion of raising the structure to two stories. By check dated March 24, 1993, Mr. Hudson paid $14,633.00 upon completion of the tie beams. By check dated April 19, 1997, Mr. Hudson paid $14,633.00 upon completion of the roof. By check dated May 13, 1993, Mr. Hudson paid $14,633.00 which should have been paid upon completion of the doors and windows but which he paid even though the installation of the doors and windows was not complete. By check dated June 23,1993, Mr. Hudson paid $12,000.00 of the $14,633.00 draw because, in his opinion, the project was not being completed on schedule. Finally, by check dated July 2, 1993, Mr. Hudson paid $17,000.00 to bring the payments up to the amount consistent with the contract schedule for completion of the pool and fence. In a letter to Mr. Vega dated June 7, 1993, Mr. Hudson stated that he wanted to make "a major change" in the plans. Specifically, Mr. Hudson wanted to eliminate the swimming pool, which he estimated would save $20,000.00 of the $146,633.00 contract price, and use the money saved "to completely finish the downstairs to be a nice guest area," to "install the better quality carpet we want, complete wooden fence, air conditioning in 1st floor, plumbing ~ electric in 1st floor, [and] indoor wooden shutters for all windows." Mr. Hudson went on to state that he wanted certain enumerated appliances, which would cost $4,108.00, and new furniture, which he estimated would cost $6,000.00, for a total of $10,108.00. According to Mr. Hudson's proposal, Mr. Vega should be able to "finish off the 1st floor the way we want it, install the nice carpet and tile, and do all the other jobs previously listed (fence, plumbing, etc., for 1st floor) for about $10,000.00." The basement area which Mr. Hudson wanted to finish as a "nice" living area consisted of approximately 2,000 square feet and had originally been designed as a storage area, with concrete floor and walls. Mr. Vega and Mr. Hudson discussed the proposal and the costs of the changes, but they did not reach an agreement on the cost of the additional work. 3/ Mr. Hudson asked Mr. Vega to leave the job site and cease work on the project on or about July 3, 1993, and Mr. Vega did not perform any work on the Hudson residence after this time. Mr. Hudson terminated Mr. Vega from the project solely because of the dispute with Mr. Vega over the cost of the changes he had requested in his June 7 letter. Mr. Hudson did not complain to Mr. Vega about the quality of the work that had been completed, and, although he thought that the project was getting behind schedule, Mr. Hudson issued a check dated July 2, 1993, which brought the total payments to eighty percent of the original contract price. When Mr. Vega stopped work on the project, the structure contained deviations from the original plans. 4/ Some of the deviations were items shown in the original blueprints which had not been incorporated into the structure; some were items that were not shown in the original blueprints but were incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson; some were deviations in the size of openings to accommodate doors and in the location and size of windows; most were minor deviations in the placement of electrical switches and receptacles or other similar deviations. The construction was, however, generally consistent with the original plans. 5/ There were three items that were significant deviations from the original plans. The most serious deviation concerned the changes made in the dimensions of the structural slab that formed the floor of the second floor balcony off the family room, kitchen, and dining room and the roof of the first floor terrace. The original plans included a second floor balcony with a width of six feet. The Hudsons asked Mr. Vega to increase the width of the balcony, and Mr. Vega called Mr. Sanchez, the structural engineer who had prepared the original plans, and asked if the width of the slab could be increased. Mr. Sanchez approved an extension from the original six feet to eight feet, eight inches, and he advised Mr. Vega of the additional reinforcement that would be needed to accommodate the increased width. On the basis of Mr. Sanchez's approval, Mr. Vega incorporated the additional reinforcement specified by Mr. Sanchez and poured the slab to the requested width of eight feet, eight inches. Even though Mr. Vega consulted a structural engineer, he did not submit revised blueprints to the building department and obtain approval for the structural change before doing the alteration. He was aware that the building code required approval before such a change could be incorporated into a structure and that his actions violated the code. 6/ The second significant deviation from the original plans was Mr. Vega's failure to construct the fireplace shown in the original plans. According to the plans, a fireplace was to be constructed in the living room, on the second floor. Although the roof was completed and the drywall installed, no accommodation had been made for the fireplace in either the wall or the roof. Mr. Vega intended to construct the fireplace and would have done so had he not been told to cease work on the project. The third significant deviation from the original plans concerns the windows installed in the structure. No window permits or product approvals were contained in the permit file for the Hudson project. In addition, some of the windows were not the size specified in the original plans, some were too deep, and some were placed lower than the thirty inch sill height specified in the original plans. Many of the items identified as "deviations" were actually items not shown on the original plans but incorporated into the structure at the request of, or with the approval of, Mr. and/or Mrs. Hudson. Neither the requests for the additional items nor the costs of the items were reduced to writing by Mr. Hudson or Mr. Vega. At the time Mr. Hudson directed him to cease work on the project, Mr. Vega had contracts with subcontractors to provide the labor and materials specified in the original contract. He was prepared to complete the project in accordance with the original plans and for the original contract amount, with adjustments for the extras that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. He was also prepared to correct all deficiencies and code violations in the structure. After he was terminated from the project, Mr. Vega continued to negotiate with Mr. Hudson's attorney to arrive at an agreement for completion of the project that would be satisfactory to Mr. Hudson. In a proposal submitted to Mr. Hudson's attorney in the fall of 1993, Mr. Vega offered to complete the project in seven weeks in accordance with the original plans, as modified to incorporate the changes and upgrades Mr. Hudson had requested in the June 7 letter and the changes and upgrades that had already been incorporated into the project at the request of, or with the approval of, Mr. and/or Mrs. Hudson. The total price for completion proposed by Mr. Vega was $56,750.00, which included the cost of the upgrades and extras and the $29,572.00 balance owing under the original contract. Mr. Hudson did not accept this proposal. Instead, he eventually hired a contractor named Robert Krieff, who did some work on the project. In February, 1994, Mr. Hudson took over the building permit himself and hired various subcontractors to work on the project. According to Mr. Hudson, in addition to the $116,400.00 he paid Mr. Vega, he has paid approximately $50,000.00 for work done after he terminated Mr. Vega, and he anticipates spending another $35,000.00 before a Certificate of Occupancy is issued. Mr. Hudson paid off a lien on his property for work done pursuant to his contract with Mr. Vega. A Claim of Lien in the amount of $4,712.00 was filed by Luis A. Roman on October 5, 1993, for drywall hung and finished at the Hudson residence under an arrangement with Mr. Vega. Summary of the evidence. The evidence presented by the Department is sufficient to establish that Mr. Vega willfully violated the building code with respect to the alteration of the width of the second floor balcony. Mr. Vega admitted that he knew he was violating the building code when he extended the width of the second floor balcony beyond the width specified in the original blueprints before submitting revised engineering plans to the county and receiving approval to make the alteration. This violation is one of procedure only, however, and there was no competent evidence presented to establish that Mr. Vega failed to include adequate reinforcement to compensate for the additional width prior to pouring the slab or that there were structural problems with the slab. 7/ The evidence presented by the Department is sufficient to establish that Mr. Vega violated the building code because the work completed by Mr. Vega on the Hudson project contained deviations from the original approved plans. 8/ On the other hand, the evidence presented by the Department is sufficient to establish that this violation is a minor one. The Department's experts testified that the construction done on the Hudson residence by Mr. Vega was generally consistent with the approved plans and that it was commonplace for contractors in Dade County to deviate from the approved plans and later submit revised plans for approval. The evidence presented by the Department is sufficient to establish that Mr. Vega did not file product approvals or obtain window permits prior to windows being installed in the Hudson project. The evidence presented by the Department is not sufficient, however, to establish that these omissions on Mr. Vega's part constituted a violation of section 204.2 of the South Florida Building Code, as alleged in the Administrative Complaint. Although there was some testimony that the building code requires that product approvals be filed and window permits obtained before windows are installed, the applicable code and section were not identified by the Department's witnesses or otherwise made a part of the record. Thus, there is no evidence of the precise obligations imposed on Mr. Vega by the code that was applicable at the time of the Hudson project. As a result, it is not possible to determine whether Mr. Vega fulfilled his obligations under the code. The evidence presented by the Department is not sufficient to establish that Mr. Vega assisted Mr. Armas in engaging in the unregistered or uncertified practice of contracting. There is no evidence in the record that Mr. Armas performed any work on the Hudson project that could be performed only by a licensed contractor. 9/ Notwithstanding the opinions stated by the Department's experts, the evidence presented by the Department is not sufficient to establish that Mr. Vega is guilty of incompetence or misconduct in the practice of contracting as a result of the work done on the Hudson project. The evidence presented by the Department is sufficient to establish that Mr. Hudson suffered financial loss in the amount of $4,712.00, which is the amount Mr. Hudson paid to clear the lien placed on his property by Luis A. Roman. Although this loss is attributable to Mr. Vega's failure to pay Mr. Roman for hanging and finishing drywall in the Hudson residence, the evidence presented by the Department is not sufficient to establish that Mr. Hudson suffered financial loss as a result of the violation with which Mr. Vega was charged and of which he was proven guilty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order dismissing Counts I and III of its Administrative Complaint, finding that Gonzalo Vega is guilty of violating section 489.129(1)(d), Florida Statutes (1993), and imposing an administrative fine in the amount of $1,000.00. DONE AND ENTERED this 3rd day of July, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1997.
Findings Of Fact The Parties. The Petitioner, June M. Smith, is a female. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration. The Department's Division of Facilities Management. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division: K. Wayne Smith was the Chief of the Bureau. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members. The Department's Decision to Employ Ms. Smith. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms. Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary. Ms. Smith's First Supervisor. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys." The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct. The evidence failed to prove that Mr. Medlock touched employees in a sexual way. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way. Ms. Smith's Second Supervisor. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt: Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller; Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition; Ms. Smith believed that Mr. Miller had trouble relating to people. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following: Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol; Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith; Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management; Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew leader instead of other crew members who had been with the Division much longer than Ms. Smith. Safety Meetings. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew. Troy Sullivan's Employment by the Department In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department. Mr. Sullivan was assigned to Ms. Smith's crew. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable. Ms. Smith also complained to Mr. LeDew about the decision not to promote her. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay. Bricks in Your Pants. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller. Jack Smith reported his comment to Mr. LeDew. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded. I. Ms. Smith's Third Supervisor. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner." The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted. The door to the restroom used by Ms. Smith and a few male employees had been kicked in. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex. The Incinerator Incident. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's complaint, or the lack of effort to follow up on the problem, was related to her sex. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident. When asked if there were any other problems she was having, she replied "no". Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines. Raymond Hines' Inappropriate Comment to Ms. Smith. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority. Ms. Smith and Mr. Earnest worked with Mr. Hines. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies." When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive. Mr. Ojala. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex. Ms. Smith's Final Supervisor. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision. Ms. Smith's Next to the Last Day of Reporting to Work. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr. Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence. Ms. Smith's Last Day of Employment with the Department. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence. Sexual Harassment Policy/Training. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5. The Department's rules on sexual harassment were provided to all new employees of the Department. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6. A copy of the Department's employee handbook was provided to all new Department employees. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex. The Use of Vulgar Language. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following: The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section. Violation of this requirement will result in disciplinary action being taken against the offender. The normal progression, depending on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed. See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker. The General Treatment of Ms. Smith. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex. Miscellaneous Complaints. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other. Ms. Smith's Subsequent Employment. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left. Ms. Smith's Complaint. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.
