The Issue Whether Respondent, Suncoast Architecture and Engineering, LLC. (Suncoast), retaliated against Petitioner, Kenan Tuzlak, after Petitioner filed a discrimination complaint against Suncoast and, if so, what relief should be granted to Mr. Tuzlak.
Findings Of Fact At all times material to this case, Suncoast was an architectural and engineering company located in Clearwater, Florida. Mr. Burnett is the president and sole owner of Suncoast. Suncoast was an "employer" pursuant to the definition of the term set forth within the applicable Pinellas County Code provision. In November 2011, Mr. Tuzlak was first employed by Suncoast as a draftsman. He was promoted to designer, receiving an increase in pay and bonuses. His initial title at Suncoast was "Senior Engineering Technician." On Monday, June 11, 2012, Mr. Tuzlak was terminated from his employment at Suncoast. On November 5, 2012, Mr. Tuzlak filed a charge of employment discrimination (Charge 1) pursuant to Pinellas County Code section 70–76. Mr. Tuzlak alleged he was discriminated against based on his religion and retaliation. On Friday, December 21, 2012, William Hurter, counsel to Suncoast, mailed a letter directly to Mr. Tuzlak. Mr. Tuzlak received the letter the next day. That letter, in pertinent part stated: By way of introduction, this firm represents the interests of Suncoast Architecture & Engineering LLC ("Suncoast"). We are in receipt of your claim and have already been in contact with the Pinellas County Office of Human Rights. To begin, we would like to reiterate Suncoast's position: your termination from employment had nothing to do with any sort of discrimination whatsoever, and was based solely on legitimate business necessities. Our client also stated your claim is filled with falsehoods and misrepresentations. As a result, Suncoast is demanding that you withdraw your discrimination claim within 7 days of the date of this letter. If you do not withdraw your claim, we will represent Suncoast throughout the discrimination proceedings and we will also be filing a lawsuit against you for trade slander, in addition to any other legal causes of action which Suncoast may be able to pursue against you for your meritless discrimination claim. We would also ask that any further communications you may seek to have with Suncoast come strictly through this office. We will ensure that any statements or other information from you is forwarded to the appropriate representative of Suncoast. Overall, we are sympathetic to your situation and understand the hardships associated with losing one's job. However, in today's economy many individuals and business [sic] are struggling and it is inappropriate and against the law to file a discrimination claim in retaliation to a lawful and necessary termination of employment. With that in mind, we hope you will accept our offer to withdraw your claim against Suncoast in exchange for Suncoast agreeing not to pursue its legal rights against you. Mr. Tuzlak felt threatened and scared by the letter. Mr. Tuzlak believed the intent "of this document [letter] was to scare me off and stop me from enforcing my legal rights." Mr. Tuzlak understood the letter was a demand for him to withdraw the prior discrimination case (Charge 1) against Suncoast, or Mr. Tuzlak would be sued for, among other things, "trade slander."1/ The letter accused Mr. Tuzlak of filing Charge 1 with "falsehoods and misrepresentations." Mr. Tuzlak feared he would incur financial loses. His testimony is found to be credible. On January 22, 2013, Mr. Tuzlak filed the retaliation charge (Charge 2) pursuant to Pinellas County Code section 70-54. At the time Charge 2 was filed, the allegations in Charge 1 had not been resolved.2/ After Charge 2 was filed, but before this hearing was held, Mr. Tuzlak moved to Alberta, Canada, where he is currently working as a design engineer. Mr. Burnett makes all the decisions regarding Suncoast. Mr. Burnett directed Mr. Hurter to write the letter to Mr. Tuzlak. Mr. Burnett wanted Mr. Tuzlak to stop pursuing the original discrimination charge. Mr. Burnett "intended to gain an end to this proceeding [Charge 1] without causing any more damage to anyone." Mr. Burnett's stated desire to "inform him [Mr. Tuzlak] that there are adverse consequences that can happen to you if this happens" is self-serving. Mr. Burnett does not have any recollection of any statements Mr. Tuzlak made outside of the allegations found in Charges 1 and 2. Mr. Burnett did not receive any direct feedback from the community about any statements Mr. Tuzlak may have made. Suncoast's employees were told of the allegations in the Charges, but that information did not come from Mr. Tuzlak. Mr. Burnett conceded he had no way to know if Suncoast sustained any loss or damage as a result of either Charge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Suncoast Architecture & Engineering, LLC, violated section 70-54(l), Pinellas County Code; and Ordering Suncoast to pay Mr. Tuzlak reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 3rd day of January, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2014.
The Issue Whether Respondent, Unity Groves Corporation (Unity Groves), owes Petitioner, Maria Rodriguez, $1,321.00 for peppers purchased from Petitioner in March 2013.
Findings Of Fact The Parties Petitioner owns property in the Miami, Florida, area on which she grows a variety of peppers which she sells to agricultural retailers. Unity Groves is a family-owned and operated agricultural dealer which purchases produce from growers and growing facilities and resells to vendors across the country. During March and May 2013, Petitioner sold peppers on 14 separate dates to Unity Groves. Unity Groves then resold the peppers to retail vendors. During the brief course of dealings between parties, Petitioner would either contact Unity Groves and indicate the type and quantity of peppers she had available to determine whether Unity Groves needed to fill an order for a vendor or she would be contacted by an employee of Unity Groves to determine whether Petitioner had peppers available. The price for Petitioner's peppers would be negotiated prior to, or at the time of, delivery of the peppers to Unity Groves. Petitioner primarily negotiated with the receiver for Unity Groves, Emilio (last name unknown), or another employee, Pete (last name unknown). On ten occasions, Petitioner received a receipt prepared by Unity Groves at the time of delivery indicating the quantity of half or full bushels of the particular types of peppers and the agreed upon rate per half or full bushel that she would be paid. As demonstrated by the receipts and "Grower Payout" sheets submitted into evidence by both parties, the course of dealings between the parties supports Petitioner's testimony that in all but two instances, she in fact received payment in the amount indicated as the purchase price on the delivery receipts received from Unity Groves. Unity Groves' contention that the price indicated on the receipts was merely a desired "target price" is rejected because it is contrary to the greater weight of the evidence. On the four occasions for which Petitioner received a receipt with no indication of price, Petitioner was paid in accordance with her agreement with a Unity Groves' employee, Pete, which was reached in a telephone conversation prior to her delivery of the peppers to Unity Groves. Petitioner did not submit formal invoices to Unity Groves because the receipts provided by Unity Groves at the time of delivery accurately reflected the quantities of peppers sold by type and price, and she received the indicated price for all transactions except for the two instances which are the subject of this dispute. Petitioner was never informed that her products supplied to Unity Groves were deteriorating or that the quantity delivered was rejected because it was more than requested or needed. The Grower Payout sheets reflect that Petitioner received one duplicate payment in the amount of $130.00 for peppers delivered to Unity Groves on March 13, 2013. The Dispute Giving Rise to This Proceeding In March 2013, Petitioner received a telephone call from a Unity Groves' employee, Dennis (last name unknown), who requested a pallet of Hungarian Wax peppers and a pallet of Anaheim peppers. A pallet for Unity Groves is approximately 120 half bushel boxes of peppers. Petitioner advised Dennis that she did not think she could fill such a large order and that her workers could not yet pick those peppers. Petitioner told Dennis she would call him back and let him know how much she had available after picking. After the peppers were picked, Petitioner contacted Emilio and advised that she could deliver 78 half bushels of Hungarian Wax peppers and 84 half bushels of Anaheim peppers. Emilio confirmed with Dennis that, although Petitioner could not supply a pallet of each, Unity Groves still wanted those peppers. Petitioner delivered them to Unity Groves on March 22, 2013. Petitioner received receipt 4055 indicating delivery of the peppers and an agreed upon price of $10.00 per half bushel for the Hungarian Wax peppers and $12.00 per half bushel for the Anaheim peppers for a total price of $1,788.00. On March 25, 2013, Petitioner delivered the following to Unity Groves: 13 half bushels of Finger Hot peppers at $8.00 per half bushel; 20 bushels of Long Hot at $14.00 per bushel; 5 half bushels of Banana peppers at $12.00 per half bushel; 10 half bushels of Anahie peppers at $12 per half bushel. Petitioner received receipt 4067 from Unity Groves, and the total price based upon the prices indicated on the receipt for this delivery was $564.00. When Petitioner went to Unity Groves on April 14, 2013, to pick up her check in payment for the March 22 and 25 deliveries, she was given check 11439 in the amount of $1,031.00. She was also provided a "Grower Payout" sheet number 3807 indicating the breakdown by pepper, quantity, and price paid by Unity Groves for receipt numbers 4055 and 4067. Respondent immediately noticed that the prices paid for the large delivery of Hungarian Wax and Anaheim peppers was significantly lower than the agreed upon price as reflected on receipt 4055. Unity Groves also paid less for four out of five types of peppers on receipt 4067 for the March 25 delivery. The total difference between the total based upon the agreed upon receipt prices and the amount actually paid by Unity Groves was $1,321.00. When Petitioner realized the magnitude of the discrepancy, she and her daughter, Susana Rodriguez, went to discuss the issue with Carricarte. She inquired why she was paid $3.00 per unit versus $10.00 for the Hungarian Wax peppers and $4.00 per unit versus $12.00 for the Anaheim peppers (the prices reflected on receipt 4055). Carricarte told Petitioner that she was paid the price he received from his customer. He did not believe that Dennis purchased such a large quantity of peppers and wanted to verify this with him. Emilio confirmed in the presence of Petitioner and her daughter that Unity Groves, through Dennis, had requested two pallets of peppers from Petitioner. Dennis was out of the country and Carricarte told Petitioner he would call her after speaking with Dennis upon his return. Dennis was terminated by Unity Groves upon his return. Petitioner met with Carricarte two additional times. Each time she had one of her daughters present and, at the third meeting, she brought a representative from the Department. During these meetings, Carricarte disputed that Unity Groves would order such an unusually large quantity of peppers and that the price reflected on the receipt was not an agreed upon price but rather the "target price" Unity Groves hoped to be able to secure for the grower. Unity Groves never notified Petitioner that any of the peppers received on March 22 and 25, 2013, were defective or non- conforming, nor did it seek to revoke acceptance of the peppers or return the peppers to Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Agriculture and Consumer Services enter a final order (1) finding that Unity Groves is indebted to Petitioner in the amount of $1,191.00 for the balance due for the peppers it purchased from Petitioner on March 22 and 25, 2013 ($1,321.00, minus $130.00 for the duplicate payment for the March 13 delivery); (2) directing Unity Groves to make payment to Petitioner in the amount of $1,241.00 ($1,191.00, plus $50.00 for reimbursement of the filing fee Petitioner paid) within 15 days following the issuance of the order; and (3) announcing that, if Unity Groves fails to make timely payment in full, the Department will seek recovery from FCCI, Unity Groves' surety. DONE AND ENTERED this 10th day of October, 2013, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2013.
The Issue The issue presented is whether Respondent committed an unfair employment practice by terminating Petitioner's employment based upon Petitioner's race, age, sex, ethnicity, disability, or national origin, and, if so, what relief should be afforded to Petitioner.
Findings Of Fact Petitioner Rossy Gamarra-Barco, a female of Peruvian national origin whose primary language is Spanish, began her employment with Respondent Sears, Roebuck and Company in November 1992. She was 52 years of age when she was hired to work in the Sears store located in Westland Mall in Hialeah. Sears is a large retailer. Its stores sell a full assortment of appliances, electronics, home improvement products, apparel, jewelry, and furniture. Over 50 percent of the employees at the Sears Hialeah store are female, and over 80 percent are Hispanic. Sears actively recruits retirees to work in its retail stores, and several employees at the Hialeah store are over the age of 60. One female employee is in her 80s. Sears' fair employment policies prohibit harassment and discrimination against any applicant for employment, associate, vendor, contractor or customer on the basis of race, color, religion, gender, national origin, age, disability, veteran status, pregnancy, citizenship, sexual orientation, marital status, ethnicity, or any other reason prohibited by law. The policies also prohibit retaliation against an individual for complaining about harassing or discriminatory conduct or participating in an investigation of such complaints. Sears informs its employees of its fair employment policies in a variety of ways. Sears posts a poster written in English and Spanish in the employee lunchroom. The poster features a toll-free number for reporting harassment or discrimination issues. The poster also contains a pocket in which are detailed, corresponding pamphlets entitled "Harassment and Discrimination in the Workplace." The pamphlet is written in English and Spanish and advises employees who believe they are being harassed or discriminated against to report the behavior to their immediate supervisor or a manager, and that if they fail to receive a satisfactory response, to report the behavior to that person's supervisor or manager or to the human resources department. The pamphlet further advises that if the employee is not comfortable complaining to any of those persons or does not receive a satisfactory response, to call the toll- free number. Petitioner used the employee lunchroom frequently and was aware of the poster. A similar poster was posted in the human resources department which Petitioner also frequented. The posters existed throughout the twelve years Petitioner was employed at the Sears Hialeah store. Sears' employees are also provided with an employee handbook which sets forth the Sears workplace policies, including Sears' policy prohibiting harassment and discrimination in the workplace and the Sears policy prohibiting workplace violence. Petitioner received the handbook when she was hired. She was familiar with the policies contained in the handbook and with the procedures for reporting harassment or discrimination in the workplace. Although Petitioner testified inconsistently that she complained 3 or 4 times about the behavior of a co-worker Perfecto Blanco either to her supervisor or to his without any resolution, Petitioner admits she never complained to anyone higher up in management at the Hialeah store because she did not like to complain. Further, she admits she never complained about any type of harassment or discrimination to the human resources department and never used the toll-free number to complain. Sears also has a Workplace Violence policy with a goal of establishing and maintaining a totally-safe workplace. The anti-violence policy prohibits, inter alia, starting or participating in a physical or verbal fight, punching, and slapping. The policy provides that an employee violating the policy will be disciplined up to and including termination without prior warning. During the course of her employment with Sears, Petitioner had medical conditions which required accommodation by Sears. Sears did accommodate her by providing her with a sit-down job and a wheelchair to get around the store. Sears also accommodated Petitioner's work schedule so she could take time off for doctors' appointments and physical therapy. Sears calls its employees "associates." On March 5, 2004, Petitioner was working at her sit- down job as a loss prevention associate. She sat on a stool provided by Sears and was responsible for checking merchandise at the door, after customers had retrieved their merchandise from the merchandise pick-up area. On that date Petitioner and Perfecto Blanco, a Hispanic male employed by Sears as a package pick-up associate, became engaged in a confrontation seemingly over who handed the customer the receipt. Blanco yelled at Petitioner not to criticize him in front of a customer. Petitioner walked out of the store, with Blanco following her. She then walked back inside, and he followed her still yelling at her. She turned and slapped his face. He grabbed her wrists and held them to keep her from slapping him again. Guillermo Almaguer, another associate, separated them. Later that day Blanco reported the incident to Maritza Perez, another loss prevention associate, who reported it to Zenaida Perdomo-Leyva in the human resources department. Perdomo-Leyva instructed Perez to interview Petitioner, Blanco, and any witnesses and to obtain their statements. On that same date, Perez interviewed Petitioner who admitted that she had slapped Blanco on the right side of his face for "disrespecting" her. Blanco told Perez the same story, admitting that he yelled at Petitioner. When Petitioner wrote her statement, she changed her story, omitting the part where she struck Blanco, but asserting that "he got me out of control." Blanco's written statement given to Perez was consistent with his oral statement. Perez forwarded the statements she took to Zenaida Perdomo-Leyva in the human resources department. On March 8, 2004, Perdomo-Leyva interviewed Perez, Petitioner, Blanco, and witness Almaguer. She also obtained a written statement from each of them. By the time statements were taken by the human resources department, Petitioner had further refined her story. This time she stated that she "wanted to cover his mouth and he confused it with a slap." However, witness Almaguer's statement confirmed that Petitioner hit Blanco in the face. By the time of the final hearing, Petitioner's version of the incident was that she merely raised her hand to signal Blanco to be quiet. In accordance with Sears' standard procedures, Perdomo-Leyva translated the statements that were written in Spanish into English and forwarded her investigative file to Sears' Associates Service Center in Atlanta for review by the consultant there who would make disciplinary recommendations to the Hialeah store's general manager Michael James. James, who was in his mid-50s at the time, also reviewed the investigative file and, after consulting with the consultant at the Associates Service Center, made the final decision regarding the disciplinary action to be taken against Petitioner and against Blanco. Based upon the information obtained in the investigation, James determined that Petitioner had violated Sears' workplace violence policy by slapping Blanco in the face. Because Sears has a "zero tolerance" policy regarding physical violence, James concluded that Petitioner's employment with Sears must be terminated. He also determined from the investigative file that Blanco was acting in self-defense when he grabbed Petitioner's hands but had violated the policy by yelling at Petitioner. He concluded that Blanco should receive a final written warning for the verbal altercation with Petitioner. James' decisions as to the different disciplinary actions to be taken against Petitioner and Blanco were consistent with prior and subsequent decisions. Prior to Petitioner, he had terminated a Hispanic male associate for shoving another associate into a wall and had given the other associate a warning. Subsequent to Petitioner, he has fired a manager for hitting an employee but did not fire the employee. Similarly, he has never terminated an employee for yelling at another employee or for engaging in verbal abuse. On March 12, 2004, Petitioner was terminated from Sears for violating Sears' anti-violence policy. Blanco was given a final written warning. At the time James terminated Petitioner's employment, he was not aware that she was from Peru. Further, he was not familiar with the word "indio." Similarly, Perdomo-Leyva who conducted the investigation on behalf of Sears and who translated the statements she obtained from Spanish to English did not know Petitioner was Peruvian rather than Cuban like Perdomo-Leyva. At the time James terminated Petitioner's employment, he was not aware that she had Parkinson's disease or rheumatoid arthritis. Prior to her termination, Petitioner never complained to anyone that she was being harassed or discriminated against due to her sex or any disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the Petition for Relief filed in this cause. DONE AND ENTERED this 21st day of July, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 21st day of July, 2006. COPIES FURNISHED: Rima C. Bardawil, Esquire Law Office of Rima C. Bardawil, P.A. 18520 Northwest 67th Avenue, No. 207 Miami, Florida 33015 Julie R. Waas, Esquire Scott S. Allen, Esquire Jackson, Lewis, LLP Two South Biscayne Boulevard, Suite 3500 Miami, Florida 33131 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
The Issue The threshold issue in this case is whether Petitioner's claim is time-barred for failure to timely file an initial charge of discrimination with the Florida Commission on Human Relations. If Petitioner's claim were timely, then the question would be whether Respondent unlawfully discriminated against Petitioner on the basis of her age in violation of the Florida Civil Rights Act.
Findings Of Fact From April 4, 1998 until May 22, 2003, Petitioner Carol Manzaro ("Manzaro") worked for Respondent Department of Children and Family Services ("DCF") as an Inspector Specialist I (essentially, an investigator) in the Office of the Inspector General ("OIG"). Manzaro's duty station was at a satellite office located in Riviera Beach, Florida. Her supervisor was Richard Scholtz, who was based in the OIG's Fort Lauderdale field office. In October 2002, Sheryl Steckler became DCF's Inspector General. Shortly after assuming this position, Ms. Steckler hired Tom Busch as Chief of Investigations. Mr. Busch was responsible for, among other things, overseeing the OIG's field office in Fort Lauderdale and the satellite office in Riviera Beach. Ms. Steckler and Mr. Busch worked at offices in Tallahassee. In late December 2002, Mr. Busch called Manzaro and reprimanded her for sending an e-mail that Ms. Steckler felt was inappropriate. Manzaro believes that the reprimand was unwarranted and demonstrates that she was being singled out (or set up), but the evidence regarding this particular incident is much too sketchy for the undersigned to make such a finding. In January 2003, Manzaro and Louis Consagra, another inspector who worked in the Riviera Beach satellite office, were directed to attend a meeting in Fort Lauderdale, which they did. After they arrived, their immediate supervisor Mr. Scholz, recently back from a trip to Tallahassee, told the two that Mr. Busch had said to him, "Sometimes when you get older, you miss a step." Mr. Scholz further related that Mr. Busch had announced that "changes w[ould] be made." Mr. Scholz warned them that "they are looking to fire people," and that he (Scholz) would fire people to protect himself if need be. The three (Manzaro, Consagra, and Scholz) then met with Mr. Busch, who had traveled to Fort Lauderdale to see them. Mr. Busch informed them that he had just fired an inspector who worked in Fort Lauderdale, and that Ms. Steckler planned to close the Riviera Beach satellite office by June or July of 2003, at which time Manzaro and Mr. Consagra would be reassigned to the Fort Lauderdale field office. Manzaro, who was then 55 years old, decided at that moment it was time to start looking for a new job. Immediately upon returning to Riviera Beach, she began making phone calls to that end. Manzaro claims that for some weeks thereafter she received "haranguing" phone calls from Mr. Busch, who deprecated her abilities and was rude and patronizing. The undersigned credits Manzaro's testimony in this regard (which was not rebutted), but deems it insufficient to support an inference that Mr. Busch was critical of Manzaro because she was over the age of 40.1 Mr. Busch's telephone calls caused Manzaro to see (in her words) the "handwriting on the wall"; by this time, she "knew" her employment would be terminated. In March 2003, Manzaro's co-worker, Mr. Consagra, was fired. Around this time——it is not clear when——Manzaro was given a below-average performance evaluation.2 Not long after that, by letter dated April 18, 2003, Manzaro was notified of her appointment to the job of Economic Self Sufficiency Specialist I with DCF's District Nine, a position which Manzaro had sought.3 By accepting this appointment, she could continue working for DCF in Palm Beach County, albeit at a lower salary than she was earning as an inspector for the OIG. She decided to take the job. Manzaro resigned her position with the OIG via a Memorandum to Ms. Steckler dated April 18, 2003. In pertinent part, Manzaro wrote: I would first like to thank you for the opportunity to serve the Department and Office of Inspector General and for the opportunity to find other employment within the Department. At this time, familial and financial responsibilities preclude my traveling to the proposed new duty location in Ft. Lauderdale. As you will see from the attached letter, I have accepted a position with Economic Self Sufficiency effective May 23, 2003. With your permission, I would like to complete writing the three cases I presently have open and commence annual leave on May 5 through May 22, 2003. On or about May 27, 2003, Manzaro started working at her new job for DCF. On July 12, 2003, Manzaro received some paperwork that had been sent to her accidentally, which revealed that her replacement in the OIG was younger than she, and also was being paid more than she had earned as an investigator. Manzaro claims that it was then she discovered that she had been the victim of age discrimination, absent which she would not have been "involuntarily demoted" to the position of Economic Self Sufficiency Specialist I. Ultimate Factual Determinations Manzaro's theory is that she was forced to resign her position in the OIG by the threat of termination, which caused her to seek and ultimately accept other, less remunerative employment with DCF. Manzaro describes the net effect of her job-switch as an "involuntary demotion" and charges that DCF "demoted" her because she was over the age of 40. Manzaro testified unequivocally, and the undersigned has found, that during a meeting in Fort Lauderdale in January 2003 (the one where Mr. Busch had informed Manzaro and her colleagues that the Riviera Beach satellite office would be closed), Manzaro had made up her mind to look for another job. This means that the untoward pressure allegedly used by DCF to force Manzaro's resignation had achieved its purpose by January 31, 2003, at the latest.4 Therefore, if the alleged discrimination against Manzaro were a discrete act——which is, at least implicitly, how Manzaro views the matter——then the discrete act apparently occurred on or before January 31, 2003.5 Assuming, for argument's sake, that DCF did in fact force Manzaro to decide, in January 2003, to resign her position as an inspector, then the pressure that DCF exerted on Manzaro consisted of: (a) a verbal reprimand regarding an e-mail; (b) Mr. Busch's comment (reported via Mr. Scholz) that age sometimes causes one to "miss a step"; (c) Mr. Scholz's warning that people would be fired; (d) the firing of a Fort Lauderdale-based inspector; and (e) the announcement that the Riviera Beach satellite office would be closed. Assuming for argument's sake that the foregoing circumstances amounted to discriminatory coercion, the undersigned determines that Manzaro should have known, when she succumbed to the threat of termination and involuntarily decided to resign, that she might possibly be a victim of age discrimination.6 The undersigned comes to this conclusion primarily because Mr. Busch's comment about older people sometimes missing a step is the strongest (if not the only) hint of age discrimination in this record.7 The significance of the previous finding is that, if the discrimination consisted of the discrete act of demotion (as Manzaro urges), then the 365-day period within which a charge of discrimination must be filed with the FCHR began to run on Manzaro's claim no later than January 31, 2003, by which time she was on notice of the allegedly discriminatory act.8 Because Manzaro's charge of discrimination was not filed with the FCHR until June 10, 2004, it is clear that, as a claim involving a discrete act of discrimination, Manzaro's charge was untimely. Putting aside the question whether Manzaro's case is time-barred, it is further determined that, in any event, Manzaro did not suffer an "adverse employment action." The undersigned is not persuaded that Manzaro was forced to take another job, as she now contends. Rather, the greater weight of the evidence establishes that Manzaro elected voluntarily to seek other employment after learning that her duty station was being moved to Fort Lauderdale and developing concerns about her job security in light of new management's efforts to weed out employees it viewed as under-performers. Ultimately, it is determined that DCF did not discriminate unlawfully against Manzaro on the basis of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Manzaro's Petition for Relief as time-barred, or alternatively finding DCF not liable for age discrimination. DONE AND ENTERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 2005.
The Issue The issue is whether Petitioner was subjected to a hostile work environment in violation of Subsection 760.10(1), Florida Statutes (2005).1
Findings Of Fact Petitioner is a female who was employed by Gulf Breeze as a sales representative from 2003 until her employment was terminated on February 9, 2006. Petitioner was 63 years old when she was hired to work as a sales representative with Gulf Breeze. Petitioner was an experienced and successful sales representative. In 2004, Petitioner received a "million dollar ring" in recognition of her outstanding sales record with Gulf Breeze. Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10), Florida Statutes. Gulf Breeze is a licensed real estate broker that is in the business of selling real estate interests in timeshare resorts. Gulf Breeze conducts this business at an off-site office located at 4300 Duhme Road, Madeira Beach, Florida. The Berkeley Group, Inc., is the parent company of Gulf Breeze and its headquarters is located in Ft. Lauderdale, Florida. Respondent is an "employer" within the meaning of Subsection 760.02(7), Florida Statutes. The Berkley Group purchased Bay and Beach Resort located in Indian Shores as the start-up property for its timeshare sales operation in 2003. That location was eventually replaced by the stand-alone sales center in the Madeira Beach location. In 2003, when Petitioner was initially employed by Gulf Breeze, she was hired by Dennis Bill, the project manager or director of sales for Gulf Breeze. Prior to being employed by Gulf Breeze, Petitioner had worked with Mr. Bill for 15 or 20 years in the timeshare sales business. At Gulf Breeze, the job of the project manager is: to oversee and supervise the sales operation and its staff; to ensure that the sales staff members are trained and are successfully performing their jobs; and (3) to motivate the sales force. From August or September 2005 through February 2006, Dale Wagner was project manager for Gulf Breeze. As project manager, Mr. Wagner supervised the eight to ten sales representatives in the Gulf Breeze office. Of that number, two-thirds were over 40 years old. During the time Mr. Wagner was project manager, there were noticeable changes in the work environment at the Gulf Breeze office. Those changes included: (1) the excessive use of profanity in the office; (2) the presence and/or consumption of alcoholic drinks in the office or during the workday; (3) the presence of marijuana in the office; and (4) the berating of employees by derogatory name-calling. While he was project manager, Mr. Wagner and a sales manager, Michael Wiseman, used profanity repeatedly and almost everyday in the Gulf Breeze office, including during sales or staff meetings. Mr. Wagner and Mr. Wiseman used the terms "goddamn" and "f**k," respectively, as part of their general vocabulary. Petitioner sometimes observed that during the workday, it appeared that Mr. Wagner, while project manager, had been consuming some type of alcoholic drink(s). Petitioner and another sales representative sometimes smelled alcohol on Mr. Wagner's breath when he came to the table to work with them on transactions. Mr. Wagner acknowledged that he occasionally had a drink or two at lunch, but denied that he ever consumed alcohol in the office. Petitioner had reason to believe that marijuana was being brought to the Gulf Breeze office by one or more employees and being given or sold to some other employees. Petitioner was very concerned and disturbed by the unprofessional environment at the Gulf Breeze office. Petitioner was especially concerned about Mr. Wagner and Mr. Wiseman using profanity in the office and about her perception that alcohol and/or drugs (marijuana) were being brought into the office by employees. Petitioner reported her concerns to Pam Montanez, the human resources representative at the Gulf Breeze office, at least four times, but did not submit any written complaints to the local or corporate office. Petitioner did not specify when she reported her complaints to Ms. Montanez. There is no evidence that Ms. Montanez took action to alleviate the conduct that Petitioner reported to her. Consequently, the behaviors and other activities continued to occur in the Gulf Breeze office. Three female sales representations at Gulf Breeze during the time Mr. Wagner was project manager, including Petitioner, viewed his conduct toward women as demeaning. According to Petitioner, when Mr. Wager became project manager, there was "hell to pay every time we went to work." While he was project manager, Mr. Wagner called Petitioner derogatory names and made inappropriate comments to her in the Gulf Breeze office. For example, Mr. Wagner told Petitioner, "Go take your [hormone] medicine and sit down."2 He also told Petitioner that she was too old to be working and needed to retire. Sometimes when Mr. Wagner walked by Petitioner, he called her an "old hag," "whore," and "slut." When Mr. Wagner made these comments to Petitioner and called her names, other employees were present and heard him. Once when Mr. Wagner and several other male employees were in an office with the door cracked, Michael Booth, a salesman for Gulf Breeze, overheard them discussing how they could get rid of that "old hag" or "old bitch" or "old woman." Mr. Booth believed that the men in the office were referring to Petitioner. When this conversation took place, Mr. Wagner was not the project manager and had no supervisory responsibility for Petitioner. Also, there is no indication that Petitioner heard this conversation. Prior to being employed by Gulf Breeze, Petitioner had previously worked with Mr. Wagner and had not experienced any problems with him. However, during the time he was project manager, Mr. Wagner's behavior toward Petitioner changed. Although Petitioner did not know the reason for that change, she testified that the negative changes in Mr. Wagner's behavior at work were caused by his alcohol consumption, not to her membership in a protected class. Mr. Wagner disputes Petitioner's statement that his conduct at work was affected by his consumption of alcohol. Inez Verhagen, a sales representative, described Mr. Wagner's management style as "management by intimidation." This description is based on the manner in which Mr. Wagner regularly communicated with Ms. Verhagen. While project manager, Mr. Wagner yelled at Ms. Verhagen everyday and, sometimes, did so in the presence of clients. On one occasion, Mr. Wagner once came to the table where Ms. Verhagen was meeting with two clients and began yelling and screaming at her and then walked away. Given the lapse in time, Ms. Verhagen could not recall the reason Mr. Wagner was yelling at her. After Mr. Wagner left the table, one of the clients at the table, Beverly, asked Ms. Verhagen, "Does he always treat you this way?" Ms. Verhagen answered, "Yes, ma'am, he does." The client then asked Ms. Verhagen, "How do you stand this?" "You need to get out of here before you have a bleeding ulcer." While employed at Gulf Breeze, Ms. Verhagen complained to Ms. Montanez about Mr. Wagner's repeated verbal abuse toward her. Ms. Montanez never followed up with Ms. Verhagen, and it appears that nothing was ever done to address the complaints. Moreover, throughout Ms. Verhagen's employment, Mr. Wagner's conduct did not change. During the time Mr. Wagner was project manager, Ms. Verhagen never heard him yell at any of the male sales representatives. Thus, she believed that male employees at Gulf Breeze were excluded from and not subjected to Mr. Wagner's intimidating management style. As a result of Mr. Wagner's behavior toward her, Ms. Verhagen voluntarily left her job at Gulf Breeze. Michelle Ferrara was a sales representative at Gulf Breeze in the Fall of 2005, when Mr. Wagner became project manager. According to Ms. Ferrara, after Mr. Wagner assumed that position, the work environment at Gulf Breeze was not "pleasant" and "a lot of constant degrading comments" were made in the workplace. Ms. Ferrara also believed that Mr. Wagner sometime treated her unfairly and did not implement policies consistently. At Gulf Breeze, new sales representatives sometimes worked with managers on sales presentations. When these presentations resulted in a sale, the practice at Gulf Breeze was for the commission to be shared between the manager and the new sales representative. Ms. Ferrara participated in such a presentation, but was told by Mr. Wagner, then project manager, that she would not receive any part of the commission because the male manager with whom she had worked believed that she [Ms. Ferrara] did not deserve it. While he was project manager, Mr. Wagner yelled at, embarrassed, and berated Ms. Ferrara many times. In one instance, Mr. Wagner called Ms. Ferrara into his office. At the time, there were two male employees sitting in Mr. Wagner's office. Ms. Ferrara did not testify as to the substance of Mr. Wagner's comments to her. Nonetheless, Ms. Ferrara recalled clearly that Mr. Wagner "just tore into [her]" and "embarrassed and berated" her in the presence of the two male employees. A new employee at Gulf Breeze approached Ms. Ferrara and asked if Gulf Breeze provided formal training. Ms. Ferrera believed that formal training involved structure and training in a classroom setting at designated and extended time frames (i.e., most of the day). Since no such training was provided at Gulf Breeze, Ms. Ferrara told the new employee that there was no formal training and that new employees simply learned on the job. Apparently, Mr. Wagner overheard and disagreed with Ms. Ferrara's response to the new employee. To express his disagreement with Ms. Ferrara's response, Mr. Wagner "grabbed" Ms. Ferrara and "just started screaming" at her. In another incident, Ms. Ferrara arrived at work about 8:13 a.m., but did not immediately go into the Gulf Breeze office. Instead, she stayed in her car "to do something." (Employees were required to be in the office by 8:15 a.m.). It is unknown how long Mr. Ferrara stayed in her car, but when she got out of her car and went into the Gulf Breeze office, a male employee entered the building just before she did. As the male employee signed in, Ms. Ferrara was a few feet behind him, waiting to sign in for work. Mr. Wagner approached Ms. Ferrara and asked her, "What [were] you doing?" Mr. Wagner then told Ms. Ferrara, "You shouldn't be in your car. You're supposed to be in here." Although Ms. Ferrara and the male employee came into the office about the same time, Mr. Wagner said nothing to the male employee. Ms. Ferrara believed it was inappropriate for Mr. Wagner to make the foregoing comments to her because there were customers in the immediate vicinity. She also believed that it was unfair to make any statements to her and not to the male employee since they both came into the office about the same time. Mr. Wagner, while project manager, would comment that "she [Ms. Ferrara] is in la-la land." Ms. Ferrara never reported any of the foregoing incidents to Ms. Montanez or to anyone in corporate headquarters. However, as a result of Mr. Wagner's conduct, Ms. Ferrara voluntarily left her job at Gulf Breeze. Mr. Wagner also made offensive comments to Mr. Booth, who was employed as a sales representative at Gulf Breeze from about March 2005 through January 2006. Initially, Mr. Bill was the project manager and Mr. Booth's supervisor. In August or September 2005 until January 2006, Mr. Wagner replaced Mr. Bill as project manager and was Mr. Booth's supervisor. Throughout Mr. Booth's employment at Gulf Breeze, including the period when Mr. Wagner was project manager, Mr. Wagner made inappropriate comments to Mr. Booth. For example, Mr. Wagner would make comments about Mr. Booth's sexuality and would refer to him (Booth) as a "fag" or "queer." Mr. Wagner would call Mr. Booth those names when he walked past him (Booth) in the office. Mr. Wagner also made comments such as "I'm not picking on you because you're a fag" and "I don't have anything against homos."3 Mr. Booth made several complaints to Ms. Montanez, some of which concerned Mr. Wagner's inappropriate conduct toward him (Mr. Booth) and toward Petitioner. In response to at least one of Mr. Booth's complaints about Mr. Wagner, Ms. Montanez told him that she would call someone in Ft. Lauderdale (the corporate office), that "we're going to handle it," and that she would then get back with him. Later, Mr. Montanez reported to Mr. Booth that she had contacted the corporate office and was told that the local office should handle the matter and "to keep the corporate office out of it." Mr. Wagner testified that the sale of timeshare interests is a difficult and stressful job. Sales representatives in the business must convince prospective customers to purchase a product that they do not need (i.e., luxury item). Gulf Breeze incurs an upfront expense before a prospective customer walks in the door. Thus, the pressure on the sales representatives is increased by the fact that only one out of eight to one out 12 sales presentations result in a sale. The project manager must ensure that sales representatives are trained, motivated, and performing their jobs. Mr. Wagner does not deny that, as project manager, he sometimes yelled at sales representatives. According to Mr. Wagner, he "raise[d] his voice" when talking to employees to get them motivated and to "try to get them in the right direction." According to Mr. Wagner, every sales representative at Gulf Breeze receives training in the proper methods for conducting sales. Gulf Breeze expects its sales representatives to be courteous to the customers and to refrain from twisting the customers' arms in order to make a sale. Florida law allows a purchaser of a timeshare interest ten days to rescind the purchase. Sales representatives at Gulf Breeze are told that they are not to "pitch rescission" when making a sales presentation. The term "pitch rescission" refers to a technique in which the sales representative induces the customer to purchase a timeshare interest by using the cancellation as a sales tool. The project manager is authorized to impose disciplinary action against a sales representative who violates the prohibition against "pitching rescission," or any other company procedure. Gulf Breeze has no disciplinary guidelines and the project manager has the discretion to impose whatever disciplinary action he believes is appropriate. On or about February 8, 2006, Mr. Wiseman told Mr. Wagner that he had observed Petitioner pitching rescission to a customer in order to induce a purchase. At the time, Petitioner's cancellation rate for purchases was 80 percent, while the average cancellation rate for other sales representatives was between 18 percent and 22 percent. In light of the foregoing, Mr. Wagner decided to meet with Petitioner. When Petitioner arrived at work on the morning of February 9, 2006, Mr. Wagner told her to come into his office to meet with him and two sales managers, Larry VonStein and Mr. Wiseman. Mr. Wagner did not tell Petitioner the reason he wanted to meet with her. Moreover, there is no evidence that Petitioner knew the reason Mr. Wagner wanted her to come into his office. Mr. Wagner wanted the two sales managers in the meeting with Petitioner so that they were "aware of what was happening" and to ensure that "everyone was on the same page." Petitioner told Mr. Wagner that she did not want to meet alone with three men. Mr. Wagner then ordered Petitioner to go downstairs and sit in her car until Ms. Montanez got to the office. He indicated that when Ms. Montanez arrived, they would go to her office and talk. It is unclear why Mr. Wagner required Petitioner to wait in her car, rather than in the Gulf Breeze office. Petitioner did not leave the building and go to her car as Mr. Wagner had ordered. Petitioner got a chair and sat in the back of the room where a regular sales meeting was being held and told Mr. Wagner that she was not leaving. At some point, Petitioner apparently became upset and/or agitated, and according to Mr. Wagner, "threw a fit" and was screaming and disrupting the sales meeting. This episode lasted for about ten minutes. After Petitioner refused to leave, the situation escalated when Mr. Wagner threatened to call the police, presumably to have Petitioner removed from the Gulf Breeze office. Petitioner responded by telling Mr. Wagner that he could call the police, but she was not leaving. Mr. Wagner contacted Ms. Montanez on her cell phone and asked her to come in early to help him deal with Petitioner. Before the call was completed, Petitioner also spoke with Ms. Montanez. After talking with Ms. Montanez, the situation apparently calmed down, and Petitioner went downstairs and waited for Ms. Montanez to arrive at the office. After Ms. Montanez arrived at the Gulf Breeze office, she and Petitioner went upstairs to Ms. Montanez' office, where they were later joined by Mr. Wagner. The issue that Mr. Wagner had initially planned to discuss with Petitioner, the charge that she had "pitched rescission during a presentation," was never addressed. Instead, during the meeting, Mr. Wagner terminated Petitioner's employment for insubordination.4 Mr. Wagner initially intended to talk to Petitioner about the charge that she had pitched rescission, but did not plan to terminate her for issues related to that charge. Gulf Breeze has an anti-discrimination policy which expressly prohibits discrimination based on race, color, religion, sex, age, handicap, national origin, marital status or veteran status. The anti-discrimination policy is included in the employee manual which is disseminated to employees who must acknowledge, in writing, receipt of the policy. Gulf Breeze also provides a separate statement to its employees notifying them, again, of the company's anti-discrimination policy and reporting procedures. Gulf Breeze's anti-discrimination policy provides that an employee should report any problems or allegations of discrimination and harassment to the employee's direct supervisor, the on-site human resource representative, or the corporate human resource director. The employee may also notify the company of alleged discrimination by anonymously completing a form provided in or on the back of the Employee Handbook. Petitioner received the Employee Handbook and the company's workplace harassment policy and signed a document acknowledging receipt of the Employee Handbook and Gulf Breeze's anti-discrimination policy. Vickie Dockery-Ruiz is the corporate human resource director, has held that position since 1999, and works out of the corporate office in Ft. Lauderdale, Florida. To facilitate employee communication and resolution of disputes, each resort has its own on-site human resources representative (human resources manager). At all times relevant to this proceeding, Ms. Montanez was the human resources manager for Gulf Breeze. Prior thereto, Ms. Montanez served in that same position at the Bay and Beach location. Petitioner was familiar with the Gulf Breeze anti-discrimination policy and knew how to file a charge of discrimination and/or harassment. In fact, Petitioner had filed a written complaint on or about September 19, 2005, against a co-worker, Joel Zackheim. Petitioner sent the complaint to Ms. Dockery-Ruiz at the corporate office and to Ms. Montanez at the Gulf Breeze office. The complaint arose out of an incident which occurred during a staff or sales meeting during which Mr. Zackheim intentionally pulled a chair from under Petitioner, resulting in her falling on the floor. In her written complaint, Petitioner recounted the incident and noted that Mr. Zackheim had pulled a chair over her leg and in a very loud voice, called her a "damn bitch." Petitioner reported that as a result of Mr. Zackheim's actions, she sustained an injury to her leg which was diagnosed as a contusion and required medical care.5 Petitioner's September 19, 2005, complaint was promptly investigated, and Ms. Montanez issued a written response on or about September 29, 2005. The response noted that Petitioner's diagnosis had been confirmed as had Mr. Zackheim's actions. As a result of his actions, Mr. Zackheim was put on unpaid leave from October 2, 2005, through October 9, 2003, and warned that another incident such as this could be grounds for termination. Mr. Zackheim was also advised to be respectful to fellow employees and to maintain a positive attitude in the working environment. Petitioner's September 19, 2005, complaint did not include any allegations of harassment or other wrong doing by Mr. Wagner. On or about February 9, 2006, after she was terminated, Petitioner called Ms. Dockery-Ruiz and reported actions which she believed to constitute sexual harassment that had occurred while she (Petitioner) was employed at Gulf Breeze. Ms. Dockery-Ruiz requested that Petitioner write a letter detailing her specific allegations. Petitioner complied with that request and made allegations of sexual harassment. Although Petitioner had been terminated, the president of the company investigated the allegations of sexual harassment at Gulf Breeze. The investigation concluded that there was no sexual harassment. Except for one incident that involved a Gulf Breeze employee, Mr. Zackheim, Ms. Dockery-Ruiz was never notified of any of the alleged activities Petitioner discussed after [Petitioner's] termination. Soon after Mr. Wagner terminated Petitioner's employment with Gulf Breeze, his employment with the company also ended.6 Mr. Wagner was re-employed by the parent company and is at working at a resort in Orlando, Florida.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of January, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2009.
Findings Of Fact C&D Fruit ordered 100 boxes of squash from Sun Coast Farms to be delivered to a customer in Texas. The agreed price for the squash was $15.35 per box. Upon arrival of the squash in Texas, the customer reported to C&D that the squash did not meet Grade No. l as ordered. C&D contacted George Mason, Complainant's contact on this transaction, and an inspection was ordered. The inspection report from Texas was passed to O'Brian who in turn read the inspection report to Mason via long distance telephone. Mason agreed to have the buyer get what he could for the squash. Upon completion of the transaction, C&D submitted its check to Complainant in the amount of $644. No reference is made that $644 was received by Sun Coast in its Complaint. The inspection certificate (Ex. 2) shows 150 crates of crookneck squash was inspected in wirebound crates "with no distinguishing marks." Complainant contends that it marks all of its boxes with a circle drawn on each end of the box with a "l" inside the circle to indicate Grade No. l. It is doubtful that an agriculture inspector would recognize a "l" in a circle as a grower's distinguishing mark. Many growers who mark all of their boxes do so with a stamp containing their name or the name of their co-op with their co-op number.
Findings Of Fact Respondents are developers of land registered with Petitioner pursuant to Chapter 498, Florida Statutes, and were so registered at all times here relevant. In 1979 Respondent Suncoast Highland Corporation, (Suncoast) developer of Shadow Run Subdivision, received numerous complaints from the Shadow Run Homeowners Association (Homeowners) regarding lack of recreation facilities promised by the developer. This led to the execution of an AGREEMENT between Suncoast and Homeowners in which the developer agreed to install certain recreational facilities. This AGREEMENT was not carried out by Suncoast and, after intervention by the Division of Florida Land Sales (Division) a CONSENT ORDER was entered on 22 April 1981. In this CONSENT ORDER Suncoast irrevocably committed itself to complete the promised recreation facilities; agreed to file monthly progress reports with the Division; and, in the event of default by Suncoast, authorized the Division to impose a civil penalty in the amount of $10,000. Suncoast did not complete the recreational facilities as promised. On 12 March 1982 an MENDED CONSENT ORDER was entered into between the Division on the one hand and Suncoast, Timber Oaks, Inc. and Kingsland, Inc. on the other, in which it was determined Suncoast had failed to construct the prescribed recreational facilities and Kingsland, Inc. had failed to provide recorded warranty deeds and title insurance policies to purchasers in their registered subdivisions. In this Amended Consent Order Suncoast reaffirmed its commitment to complete the recreational facilities promised to Homeowners no later than June 15, 1982; Timber Oaks, Inc. guaranteed the completion of recreational facilities by Suncoast; and all Respondents agreed to establish and fund on or before March 31, 1982, an Escrow Account under the supervision of the Division in the amount of $95,000 to pay for the completion of the recreational facilities, to pay the costs associated with recording deeds and title insurance, and to pay delinquent real estate taxes. The Amended Consent Order further provided that in the event of default by the developers the Division will immediately be entitled to impose a civil penalty in the amount of $10,000. Respondents have failed to fund the Escrow Account or otherwise comply with the provisions of the Amended Consent Order.
The Issue The issue in this case is whether an employment relationship existed between Petitioner and Respondent, which would permit Petitioner to seek an administrative remedy for alleged unlawful discrimination in violation of the Florida Civil Rights Act.
Findings Of Fact Respondent L.S.P. Officials, Inc. ("LSPO"), is a Florida profit corporation, formed in October 2013 by Freddie Williams, who has been the company's president at all times. Since 2013, Mr. Williams has been the Supervisor of Basketball Officials ("Supervisor") for the Sun Conference, an athletic conference of small colleges in the National Association of Intercollegiate Athletics ("NAIA"). As Supervisor, Mr. Williams assigns referees and umpires, whom he also recruits, to officiate at Sun Conference basketball games. Officials work the games in three-man crews, and each man is paid a flat, per-game fee for his performance. Compensation for the officials comes from the conference, which collects money for this purpose from the member schools, and is paid to the officials through LSPO. After becoming Supervisor, Mr. Williams incorporated LSPO, at the behest of the Sun Conference, to serve as the clearinghouse for distributing officials' fees. LSPO conducts no other business and, according to Mr. Williams, has never had any employees——a matter presently in dispute. Petitioner Joseph Quinn ("Quinn") is a full-time employee of the U.S. Department of Homeland Security in south Florida. His avocation is officiating basketball games, which he has done on the side since at least 2003. During this time, Quinn has officiated at the high school level and for small college programs. He worked Sun Conference games from the 2008-09 season through the 2013-14 season (the latter being Mr. Williams's first season as Supervisor). On August 24, 2013, before the beginning of the 2013-14 season, Quinn signed the following agreement (the "Officials Contract"): Quinn must establish the existence of an employment relationship because FCHR does not have jurisdiction to hear claims involving alleged discrimination against independent contractors. Not surprisingly, therefore, Quinn's current litigating position is that he was not an independent contractor, but an employee of LSPO——which, awkwardly for Quinn's theory, had not yet come into being as of August 24, 2013. The Officials Contract is obviously a major stumbling block for Quinn inasmuch as it clearly describes him as an independent contractor and conspicuously makes no mention of LSPO. Mr. Williams, moreover, is identified in the Officials Contract as "Supervisor of Basketball Officials," his Sun Conference title, and——for all that appears in the agreement——he seems to have been acting as an agent of the Sun Conference and not in his personal capacity or as an officer of LSPO. Based solely on the Officials Contract, the most reasonable and natural conclusion is that Quinn agreed to provide basketball officiating services for one season to the Sun Conference as an independent contractor. Other facts bear out this conclusion. The 2013-14 basketball season began in October or November of 2013 and lasted until March 2014. During that season, Quinn was assigned five games in the Sun Conference, and he officiated each of them, declining none. (As is customary in this line of work, a sports official for the Sun Conference may "turn back" an assignment for any reason, but doing so is frowned upon.) For each game, regardless of the amount of time involved, Quinn received a fee of $175.00, which, as mentioned, was paid by the colleges in the conference, through LSPO. LSPO did not charge any fee to the officials for its role as middleman. Nor did LSPO (or the Sun Conference) withhold federal income, Social Security, or Medicare taxes from the officials' fees. As an official, Quinn was responsible for purchasing his own uniforms, which needed to comply with the National Collegiate Athletic Association ("NCAA") and NAIA rules, as applicable. At a preseason meeting, Mr. Williams gave the officials a whistle bearing the Sun Conference logo, which they could use for games if they wanted, and a conference polo shirt, which could be worn off court. Quinn received no reimbursement for travel expenses, including food and lodging, incurred while working as a Sun Conference official——just the flat fee of $175.00 per game. During the course of a basketball game, the three officials on the court had the exclusive authority to call fouls, stop and resume play, and otherwise control the conduct of the contest. Officiating is a specialized skill that requires not only thorough knowledge of the game and its rules, but also an ability to exercise good judgment on the fly. Neither Mr. Williams nor anyone else exerted control over Quinn's on-court performance, either in regard to the means he should employ or the results to be obtained. As Supervisor, Mr. Williams gave Quinn and the other Sun Conference officials a high degree of autonomy. He instructed them to arrive at the game site 60 minutes before a contest and to dress professionally on the job when not in uniform. In addition, at the preseason meeting mentioned previously, Mr. Williams reviewed NCAA rules, noted points of emphasis from the conference's standpoint, provided some guidance regarding the mechanics of officiating, and highlighted differences between NCAA and NAIA rules. Otherwise, however, he left the officials largely to themselves. Quinn was not precluded by his relationship with the Sun Conference from officiating in other leagues. Quinn did not receive an IRS Form W-2 from LSPO or the Sun Conference. Following the 2013-14 season, Mr. Williams, as Supervisor, elected not to renew Quinn's contract as a conference official. Mr. Williams informed Quinn of this decision in the following letter: Notably, nothing in the foregoing letter suggests that Mr. Williams acted in any capacity other than Supervisor, e.g., as president of LSPO, nor does the letter support the notion that LSPO (which is not mentioned) terminated Quinn's employment. Ultimate Factual Determinations It is determined that Quinn was not an employee of LSPO. Rather, Quinn was an independent contractor of the Sun Conference, and, in that capacity, he officiated five basketball games during the 2013-14 season, receiving a fee of $175.00 per game for his services as a sports official.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing this action for lack of jurisdiction on the ground that Quinn was not an employee of LSPO. DONE AND ENTERED this 21st day of June, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2017.
Findings Of Fact Suncoast Highland Corp. (Suncoast), is the developer and registrant of Shadow Run Subdivision in Hillsborough County. Prior to 1970, Suncoast was known as Suncoast Peach Corporation. C. Thomas Petersen, Peter Lenhardt, and two other individuals formed Suncoast Peach Corporation in 1964. In 1974 Suncoast registered Unit 1 of Shadow Run with the Division of Land Sales (Division). At that time Suncoast's principals were C. Thomas Petersen, President and Director, and Peter M. Lenhardt, Vice President, Director, and in charge of marketing. As a charter stockholder and owner of 166,000 shares (26-2/3 percent of ownership), Lenhardt filed an affidavit stating he devoted 100 percent of his time five days per week to Suncoast's business affairs. Lenhardt was (and presumably still is) a registered real estate broker and was in charge of sales in Shadow Run. In 1977 Suncoast registered Unit 2 (consolidated with Unit 1) with the Division. At this time Petersen and Lenhardt alleged each owned 13.5 percent of Suncoast and Lenhardt again filed an affidavit stating he devoted 100 percent of his time to Suncoast's business affairs and was in charge of sales in Shadow Run. In the Annual Report filed November 13, 1978, Lenhardt executed an affidavit representing himself to be Suncoast's principal officer in connection with this filing. This report included financial and inventory data for Shadow Run, Units 1 and 2, as well as 16 other registered subdivisions. At this time Petitioner and Lenhardt represented they each owned 38 percent of Suncoast (Exhibit 1E). On January 30, 1979, Lenhardt filed, under oath, renewal applications for Shadow Run, Units 1 and 2. This application (Exhibit 1F) showed out of 277 lots registered in Unit 1, 227 had been deeded and 50 remained to be sold. In Unit 2 out of 89 registered lots, 76 had been deeded and only 13 remained unsold. In August 1978 the Division began receiving complaints from Shadow Run homeowners concerning assessments, placing of utilities, and lack of promised recreational facilities. After meeting with the homeowners association and representatives of Suncoast, the Division issued a Notice to Show Cause against Suncoast. For several months thereafter representatives of the Division, Suncoast, and the homeowners association attempted to resolve the complaints. On April 19, 1979, C. Thomas Petersen, President, and Thomas Coates, Secretary, of Suncoast executed a stipulation in which, inter alia, further sales would remain suspended pending submission of all promotional and advertising materials to the Division, Suncoast would enter into an agreement concerning recreational facilities to be furnished by Suncoast, and Suncoast would pay a $7,500 civil penalty to the Division (Exhibit 1G). On December 10, 1979, Suncoast executed an agreement (Exhibit 1H) whereby it agreed, among other things, to install a concrete boat ramp no longer than 20 feet extending not more than two feet into Lake Grady on Lot 14, Block 1, Shadow Run, Unit 1, and convey legal title of the boat ramp area to the association; and, in conjunction with the boat ramp, provide a parking area 96 feet wide abutting on Shadow Run Boulevard at Lot 14, Unit 1, Shadow Run Subdivision, running from Shadow Run Boulevard to the water. This agreement was not recorded. No evidence was submitted when, or if, Lenhardt disposed of his ownership interest in Suncoast and Timber Oaks and terminated his management role in those companies. Lenhardt was listed as Secretary/Treasurer of Suncoast in the annual corporate report for 1980. His name on the 1981 annual corporate report for Suncoast was lined out and Linda Burr's name was added as Secretary. Lenhardt's name does not appear on subsequent reports. Timber Oaks, Inc., was incorporated February 11, 1980, with C. Thomas Petersen as President, Peter M. Lenhardt as Vice President, and Linda Burr as Secretary (Exhibit 3). On the 1981 annual corporate report Lenhardt's name was lined out and Linda Burr's name was added as Secretary. Coppice-Boden, Inc., was incorporated August 28, 1980, with Peter Lenhardt as President, Helen K. Lenhardt as Vice President, and Delores Hamm as Secretary. Hamm's name was deleted from the 1982 annual corporate report and both Lenhardts continued to be listed through the 1984 annual corporate report. No evidence was submitted showing transfer of the property which included Lot 14, Unit 1, Shadow Run Subdivision 1, from Suncoast to Timber Oaks, Inc.; however, by warranty deed dated October 29, 1982, Timber Oaks, Inc., conveyed property which specifically included Lot 14, Unit 1, Shadow Run Subdivision 1, to Coppice-Boden Corp., for a stated consideration of $340,000 (Exhibit 5). On November 11, 1982, Coppice-Boden, Inc., mortgaged the property which included Lot 14, Block 1, Unit 1, Shadow Run Subdivision, to G. G. Moore to secure a note in the amount of $72,031.63. The Special Warranty Deed dated February 29, 1980 (Exhibit 8) whereby Community Banks of Pinellas conveyed certain property to Timber Oaks, Inc., excluded Lots 1 through 22, inclusive, of Block 1, of Shadow Run, Unit 1.
