The Issue Whether Petitioner was unlawfully terminated from her position with Respondent because of her race (Caucasian), in violation of the Florida Civil Rights Act of 1992 (hereinafter "FCRA"), Section 760.10(1)(a), Florida Statutes (2001).
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, the following relevant facts are determined: Respondent is a corporation, licensed to do business in Florida, that provides cleaning services to business clients; and is an employer, as that term is defined, under the FCRA. Petitioner began her employment with Respondent on January 1, 1997. Petitioner was hired as a restroom cleaner, and remained in that position until her termination from employment with Respondent on August 6, 1998. Throughout her employment with Respondent, Petitioner's supervisors were: Cecilia Haimes ("Haimes"), a Caucasian female; Danna Hewett ("Hewett"), a Caucasian Female; and Carlos Ramirez ("Ramirez"), an Hispanic male. Additionally, throughout her employment with Respondent, Petitioner was assigned to work at the Orange County Convention Center ("OCCC"). Hewett began her employment with Respondent as a restroom cleaner. Shortly thereafter, she was promoted by Ramirez to the position of lead restroom cleaner. Shortly after that, she was once again promoted by Ramirez, to the position of supervisor. As a supervisor, Hewett supervised Petitioner. Hewett became Petitioner's supervisor in or around August 1997. In her capacity as supervisor, Hewett was informed by other employees at OCCC that Petitioner was spreading rumors and gossiping about alleged affairs between certain employees and/or supervisors. Hewett and Ramirez discussed Petitioner's behavior, and they concluded that such behavior was extremely disruptive to the work environment. Specifically, such behavior by Petitioner affected employee morale and employees' respect for their supervisors. Based on these allegations, Ramirez contacted Ronald Jirik ("Jirik"), the Central Florida Regional Manager, to inform him of Petitioner's behavior. Upon meeting with Hewett and Ramirez, Jirik informed Ramirez to meet with Petitioner to try to get her to stop spreading such rumors. Ramirez met with Petitioner shortly thereafter. He attempted to resolve the problem and instructed her not to gossip or spread rumors. However, the problem persisted. Jirik contacted Ramirez to follow up on whether or not Ramirez was able to resolve the problem. Ramirez informed Jirik that he was unable to stop the rumors, and that he believed that Petitioner was continuing this improper behavior. Jirik then informed Ramirez that it would probably be best if Petitioner was transferred from the OCCC, and be given the option to transfer to another facility that was of equal distance from her home. Jirik is Caucasian. Jirik suggested that Petitioner be transferred to the Orlando Sentinel building due to the fact that, based on the information in Petitioner's personnel file, this location would have been of equal distance from her home. Additionally, such a transfer would not have changed any of the terms and conditions of Petitioner's employment, including but not limited to, pay, benefits, responsibilities, or shifts. Based on the foregoing, Ramirez met with Petitioner and she was offered a transfer to the Orlando Sentinel building location. However, Petitioner refused to accept the transfer. Thereafter, Petitioner's employment with Respondent was terminated on August 6, 1998. The evidence proved that Ramirez reprimanded Spanish- speaking and Caucasian employees in the same manner. Additionally, there was no credible evidence to show that Ramirez gave any form of favoritism to Spanish-speaking employees. Respondent's reason for terminating Petitioner was based on Respondent's perception that her conduct was disruptive to the work force. The allegation that Petitioner was terminated based on a discriminatory animus is unsubstantiated by the testimony and other evidence. There is no evidence that Respondent terminated Petitioner based on her race (Caucasian).
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 which DENIES the Petition for Relief. DONE AND ENTERED this 7th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 7th day of March, 2002. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Mary J. Hall 1821 Ernest Street Maitland, Florida 32794 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 27, 2005.
Findings Of Fact Petitioner is an African-American female who at all times material to this case was employed with Respondent as a production worker. Respondent, Hamilton Products, Inc., manufactures various animal related products such as horse tack and pet collars and is an employer within the meaning of the Florida Civil Rights Act. Allegations of Race Discrimination Petitioner's Employment Complaint of Discrimination alleged discrimination on the basis of race and retaliation and reads in pertinent part: I believe that I have been discriminated against based on race, Black, which has resulted in discipline, unfair terms and conditions, and denial of promotion. Since 2003, I have noticed disparate treatment between White and Black employees. One example of this is that Black employees are rarely if ever promoted to management positions. Another example of this is that a Black coworker of mine, Deloise, would often harass me and when I complained to my supervisor Mrs. Robinson, she took the matter to Mrs. Lake. Mrs. Lake merely asked the woman to not do that again. This harassment continued and I repeatedly complained about it so that finally, I was moved to a different location. A similarly situated White female, Elaine, experienced similar treatment from Deloise but when she complained Deloise was stopped from repeating the behavior almost immediately. I was very upset about this obvious disparity that I contacted Mrs. Benfel and explained to her what was transpiring. She asked me to gather together my complaints and those of others which I did and submitted it to her in a letter. Almost immediately after I began to receive retaliation for my complaint. I was disciplined, verbally harassed and moved away from the other employees. Martha Robinson is a supervisor employed by Respondent for over 16 years. She was Petitioner's direct supervisor for some of the time Petitioner worked for Respondent. Ms. Robinson is a white female. A coworker, Delores,1/ who sat near Petitioner would tap her foot on a wooden box while working. Petitioner found this annoying and complained to Ms. Robinson. Ms. Robinson asked Delores to stop tapping her foot and had fleece put on the box. However, Delores continued to tap her foot. After three or four employees complained about Delores' foot tapping, Ms. Robinson took the box away from Delores and put it in Ms. Lake's office. Karen Benfield is the office manager for Respondent, where she has been employed for 19 years. Petitioner went to Ms. Benfield's office to complain about working conditions. Ms. Benfield described the complaints made by Petitioner as vague and broad-based, consisting of general assertions that employees were unhappy at work. Petitioner's complaints to Ms. Benfield did not include any allegation of racial discrimination about her or anyone else. Ms. Benfield asked Petitioner for specifics, to put her complaints on paper and she would make sure management saw it. She did not ask Petitioner to solicit comments from other employees and told Petitioner she could only speak for herself. Petitioner collected written complaints from her co- workers and delivered them to Ms. Benfield. Petitioner received a Warning Notice dated October 26, 2004, for disruptive influence on the workforce. It read as follows: The purpose of this warning is to make sure that you understand the structure of Hamilton Products and the parameters of acceptable behavior at work. Lately, you have brought a number of suggestions and grievances to the management of Hamilton Products on behalf of yourself and others. There is no single employee representative to management at Hamilton Products. You do not and may not speak on behalf of other employees. Every employee at Hamilton Products, including yourself, enjoys the right to share ideas, suggestions or grievances with management. Such communication is encouraged as long as it is made properly. There is a clear chain of command at Hamilton Products, and you must follow that chain of command when communicating with management. You must speak to your immediate supervisor or place a suggestion in the box provided for suggestions at the north end of the nylon department. It is not acceptable to go around the chain of command to a higher supervisor, as this disrupts the operations of Hamilton Products. In the future, you must follow the chain of command or use the suggestion box, and speak only for yourself. Failure to follow the procedure outlined herein will result in further disciplinary actions up to and including discharge. After the hurricanes of 2004, Petitioner's entire department was reprimanded by the plant manager for missing work. This was upsetting to Petitioner because Ms. Robinson had told these employees not to call in. She felt that Ms. Robinson should not have let him "talk trash" to the employees. There is no evidence that Petitioner or anyone else was singled out in any way by the plant manager regarding this incident. Petitioner believes that white employees were given opportunities for promotion and resulting raises. However, no employees on the production floor were promoted during the time Petitioner worked for Respondent. There is no competent evidence in the record to support Petitioner's claim that white employees received promotions and black employees did not. At some point, Petitioner was moved when the production department was reorganized. Petitioner was placed in the center of the plant, facing the rest of her department. She had no one on either side of her which resulted in her not being able to talk to coworkers while working.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Complaint of Discrimination and Petition for Relief. DONE AND ENTERED this 9th day of February, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2007.
The Issue Whether the Petitioner, a member of a protected class, was terminated from his employment with the Respondent in the Hospitality Department at the Grand Floridian Hotel on or about March 18, 1993 on the basis of his national origin (Hispanic-Dominican Republic), in violation of Section 760.10(1)(a), Florida Statutes (Supp. 1992).
Findings Of Fact The Respondent is an employer under the Florida Civil Rights Act of 1992. The Petitioner was employed by the Respondent at its Grand Floridian Hotel as a valet/greeter/bellman in the Hospitality Department during the relevant period of time, including March of 1993. The Petitioner is of Hispanic origin from the Dominican Republic and is a member of a protected class. In approximately October of 1988, the Petitioner began his employment with the Respondent at the Contemporary Hotel as a valet/greeter. In April of 1989, the Petitioner received a written reprimand for not logging in a piece of luggage. The Petitioner did not grieve the April 1988 written reprimand. In May of 1989, the Petitioner transferred to the Respondent's Grand Floridian Hotel, where he was a valet/greeter/bellman. In February of 1990, the Petitioner received an oral reprimand for three separate incidents of improperly logging luggage. 9. The Petitioner could not recall if he grieved the February, 1990 oral reprimand. In August of 1990, the Petitioner again received an oral reprimand, this time for mixing up luggage while loading it into vehicles. The luggage had to be mailed to each rightful owner at the Respondent's expense and caused an inconvenience to the guests. The Petitioner could not recall if he grieved the August 1990 oral reprimand. In December of 1991, the Petitioner mishandled luggage by failing to tag all of a guest's bags. In May of 1992, the Respondent's management discussed with the Petitioner his failure to tag a piece of luggage. In July of 1992, the Petitioner received a verbal reprimand for failing to log in a guest's luggage. The Petitioner's verbal reprimand in July of 1992 was the result of a direct complaint by a guest, who was required to search for a piece of his own luggage in the Hotel's storage room. The Petitioner could not recall if he grieved the July 1992 verbal reprimand. In September of 1992, the Petitioner received a verbal reprimand for approaching a guest to discuss splitting a tip with a bellman, an impermissible practice. The Petitioner was not suspended for this incident. In December of 1992, the Petitioner received a written reprimand for failing to follow proper procedures regarding a guest's luggage on two separate occasions. The Petitioner did not grieve the December 1992 written reprimand. The Respondent decided not to consider the two incidents in December of the Petitioner's luggage-mishandling as separate incidents for progressive discipline purposes, even though such action was permissible under the collective bargaining agreement. The Respondent's decision not to consider the two December 1992 incidents separately for progressive discipline purposes was based upon the Petitioner's length of service and his good performance in other areas. The Petitioner had a good attitude, had good people skills, and had received good guest comments during the course of his employment. In December of 1992, the Petitioner understood that he was in the progressive discipline process. In January of 1993, the Respondent met with the Petitioner and offered to remove him from the responsibility of handling luggage by putting him in a non-tipped, dispatcher position. Also, in January of 1993, the Respondent and the Petitioner's union representative were working together to preserve the Petitioner's job. The Petitioner was reminded by his union representative about his previous reprimands and that one more incident would cause his termination. The Petitioner was told by his union representative that the purpose of moving him to a dispatcher position was to get him away from the luggage-handling area. The Petitioner was told that if he remained free of similar reprimands for one year, he could return to the tipped position of valet/greeter with no loss of seniority. After initially refusing the dispatcher position, the Petitioner accepted. The Petitioner was given the shift that he requested when he was transferred to the dispatcher position. In February of 1993 while on duty as a dispatcher, the Petitioner received a three-day suspension, without pay, for using poor judgment. He interrupted a valet while the valet was servicing a guest. The Petitioner did not grieve the February 1993 suspension. The Petitioner's action as a dispatcher of interrupting a valet was grounds for the valet to grieve such actions to the union. The suspension in February of 1993 for the Petitioner's poor judgment as a dispatcher was not the basis for his termination. The Petitioner requested a reclassification back to valet/greeter/bellman position. The Petitioner understood that one more incident of any kind would result in his immediate termination. The Petitioner requested the change from dispatcher back to valet/greeter/bellman for personal financial reasons; and his union representative also advised him that if one more incident of any kind occurred, he would be terminated. On March 16, 1993, the Petitioner mishandled luggage. The Petitioner did not properly log in a guest's luggage (a garment bag). 35. The Petitioner was terminated on March 18, 1993 for poor job performance. The progressive discipline which the Petitioner received was consistent with the union contract. The contract provides that an employee can be terminated for the next offense following a single written reprimand. The Petitioner had the opportunity to grieve all of the reprimands he received, and his union representative was aware of the actions taken in connection with the Petitioner's employment. The Petitioner grieved his termination, and that grievance was denied. The Petitioner failed to provide evidence of any similarly-situated employee who was not terminated for mishandling luggage on as many occasions as he had. The Petitioner failed to provide evidence regarding any discrimination against other Hispanic employees, other than his own belief, speculation or conjecture. The Petitioner understood that the Respondent's management was closely checking into everyone's performance. Management asked all of the employees at the Grand Floridian Hotel to help the Hotel earn a five-star rating. The Petitioner was never part of the Respondent's management and did not attend manager meetings. During the course of his employment, the Petitioner was chosen to train other employees because he knew the proper procedures for his valet/bellman/greeter position. The Petitioner knew the proper procedures for handling luggage received from guests. The Petitioner knew the proper procedures for logging in and handling bags. The Petitioner received copies of the Respondent's policies and procedures for a valet/bellman, including luggage handling. The Petitioner did not report many of the alleged discriminatory actions of his co-workers to management. The Petitioner conceded that on those occasions when he did make reports to management, these alleged actions stopped. The Petitioner received the overtime and schedules which he requested because of his seniority. The number of minorities employed at the Respondent's Orlando, Florida, work site has increased from 1993 to 1996. The number of minorities employed at the Respondent's Grand Floridian Hotel has either remained the same or increased from 1992 to 1995. In January of 1993, the number of minorities in the Grand Floridian Hotel's Hospitality Department was 14, of which 11 were Hispanic; and there were four Hispanics in the valet/greeter classification. In February of 1996, the number of minorities in the Grand Floridian Hotel's Hospitality Department (including valets, bellmen, greeters and dispatchers) was 16, of which 12 were Hispanic; and there were four Hispanics in the valet/greeter classification. The Petitioner failed to produce any evidence of an overall plan by the Respondent's management to eliminate minorities, including Hispanics, from employment at the company. The Respondent allows employees to review their employment records at any time upon request. The Petitioner presented only his own beliefs, speculation or conjecture as a basis for his claims of national origin discrimination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which denies the Petition for Relief. DONE AND ENTERED this 19th day of April, 1996, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE, 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 19th day of April, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 95-3990 The following constitute my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. The Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by the Respondent: Accepted in substance: paragraphs 1-20, 22-31, 33-39, 41-61. Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 21, 32, 40. COPIES FURNISHED: Mr. Jorge V. Jimenez 2716 FDC Grove Road Davenport, Florida 33837 Myrna L. Galligano, Esquire Garwood, McKenna & McKenna, P.A. 731 North Garland Avenue Orlando, Florida 32801 Dana C. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue presented is whether Respondent Community Education Partners, d/b/a Emerald Bay Academy, engaged in an unlawful employment practice as to Petitioner Adam Killick, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact On October 3, 2005, the Commission filed with the Division of Administrative Hearings Petitioner's Petition for Relief. On that same date, an Initial Order was entered by the assigned Administrative Law Judge requesting certain information for the scheduling of the final hearing in this cause. Due to the parties' failure to comply with that Order, venue rights were deemed waived. On October 14, 2005, a Notice of Hearing was entered scheduling this cause for final hearing on December 19, 2005. An Order of Pre-Hearing Instructions was entered that same day requiring the parties to disclose to each other no later than seven days before the final hearing the names of their witnesses and further requiring them to exchange copies of their exhibits by that same deadline. That Order further provided that failure to timely disclose could result in exclusion of that evidence at the final hearing. On December 12 Respondent filed its Motion for Continuance of the final hearing. On December 13 Respondent filed correspondence advising that Petitioner had agreed to the continuance, that Petitioner would be out of the country the entire month of January 2006, and that Petitioner and Respondent had agreed to certain dates for re-scheduling the final hearing. One of those dates was February 17, 2006. On December 14, 2005, an Order Granting Continuance and Re-Scheduling Hearing was entered, scheduling this cause for final hearing on February 17, 2006, validating any served subpoenas for the new date, and incorporating the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On January 26, 2006, Respondent filed its Agreed Motion for Leave to Present Testimony Telephonically, requesting that a witness who lives in New Mexico be allowed to testify telephonically at the final hearing on February 17, 2006. The Agreed Motion clearly set forth Petitioner's agreement to allow the telephonic testimony of that witness at the final hearing. On January 27, 2006, that Agreed Motion was granted, subject to Respondent making the necessary arrangements and subject to compliance with Florida Administrative Code Rule 28-106.213(5), which, inter alia, requires a notary public to be physically present with the witness to administer the oath. On February 3, 2006, Respondent filed its Notice of No Opposition advising that it did not oppose Petitioner's request for a continuance of the February 17, 2006, final hearing date. Petitioner's Motion for Continuance was filed on February 9, 2006. By Order Granting Continuance entered February 9, 2006, Petitioner's motion was granted, the final hearing scheduled for February 17, 2006, was cancelled, and the parties were afforded up to and including February 28, 2006, to advise the undersigned as to the status of this matter, as to the length of time required for the final hearing, and as to several mutually- agreeable dates for re-scheduling the final hearing. That Order further provided that failure to timely comply would result in the conclusion that this matter had been amicably resolved and the file of the Division of Administrative Hearings would be closed. Neither party filed any document or pleading on or before February 28, 2006. On March 3, 2006, Petitioner filed his first Request for Discovery and sent a letter to the Clerk of the Division requesting subpoenas and indicating that he would accommodate a hearing date convenient to the undersigned and to Respondent. The letter also advised that after he had received all materials, he needed time to prepare. The letter did not provide dates for re-scheduling the final hearing in compliance with the February 9, 2006, Order. Subpoenas were issued to Petitioner pursuant to his request in that letter. The Order Re-Scheduling Hearing entered March 6, 2006, recited the provisions of the prior Order giving a deadline for providing mutually-agreeable dates for re-scheduling the final hearing and the failure of the parties to comply with that Order. It also recited that despite the earlier Order providing for the automatic closure of the Division's file if the parties failed to timely provide dates, since Petitioner had filed documents subsequent to the deadline, it was assumed that the case had not been amicably resolved. The Order re-scheduled the final hearing in this matter to be held on March 24, 2006, validated any served subpoenas for the new date, and incorporated the provisions of the first Notice of Hearing and the Order of Pre-Hearing Instructions. On March 14, 2006, Petitioner filed a Motion to Compel Discovery and a Motion for Rehearing. The Motion for Rehearing is confusing: it asks for reconsideration of his discovery request (no ruling had previously been requested or made); it complains about the December 2005 hearing date having been continued; it withdraws Petitioner's prior agreement to allow a witness to testify by telephone (which agreement had been subsequently ordered); it specifically states that Petitioner is not requesting another continuance but then speaks of requiring time to prepare that would extend well beyond the scheduled final hearing date. On March 16, 2006, Respondent's Response to Petitioner's Motion to Compel Discovery and Motion for Rehearing was filed, opposing the granting of Petitioner's pending motions. Petitioner's motions were heard telephonically on March 20, 2006. The manual he wanted produced, which Respondent agreed to give him, was ordered produced, but the remainder of Petitioner's requests were denied. An Order on Pending Motions was entered that same day to memorialize the rulings announced during the telephonic hearing. The Order specifically provided that Petitioner's request for a postponement of the final hearing was denied, a ruling made and discussed during the telephonic hearing. On March 17, 2006, Respondent filed its witness list, together with a cover letter advising that Respondent had provided Petitioner with its witness and exhibits lists in December. Petitioner has not filed any witness list in accordance with the Order of Pre-hearing Instructions entered October 14, 2005. On March 22, 2006, Respondent filed a Motion to Quash Subpoenas, together with a request that a hearing be held on the Motion that same day. A telephonic hearing was conducted on March 22, 2006, and an Order Granting Respondent's Motion to Quash Subpoenas was entered. During the course of that telephonic hearing, Petitioner indicated that he might not come to the hearing. In response to that statement, the undersigned explained to Petitioner that it was up to him whether he attended the hearing, dismissed his petition for relief, or withdrew his request for a hearing. The undersigned explained to the parties that the hearing would go forward as scheduled, that Petitioner had the burden of proof in this proceeding, and that not appearing or presenting evidence would prevent him from meeting his burden of proof. After normal business hours on March 22, 2006, and therefore on March 23, 2006, Petitioner filed a Facsimile Letter to Judge Rigot. Although somewhat confusing, the Letter appears to re-argue points previously argued and memorialize Petitioner's understanding (and misunderstandings) of what transpired during the telephonic hearing on March 22, 2006. At 9:30 a.m., on March 24, 2006, Respondent's attorney and its witnesses were present for the scheduled final hearing. The undersigned waited for 35 minutes before opening the record and almost 10 minutes more before closing the record, with no appearance by Petitioner or anyone on his behalf.
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 to meet his burden of proof and dismissing his Petition for Relief. DONE AND ENTERED this 29th day of March, 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 29th day of March, 2006. 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 Adam Killick Post Office Box 18331 Panama City, Florida 32417 M. Brenk Johnson Winstead Sechrest & Minick, P.C. 1201 Elm Street, Suite 5400 Dallas, Texas 75270
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
Findings Of Fact The undersigned convened the final hearing at 9:40 a.m. on January 29, 2014, having allowed Petitioner additional time to appear. Respondent’s counsel made his appearance for the record. The undersigned informed Respondent’s counsel regarding Petitioner’s communication stating his intent not to appear. Respondent’s counsel was questioned about any acquaintance with the undersigned and confirmed that he never met nor communicated with the undersigned before the hearing on January 29, 2014.
Recommendation Based upon the fact that Petitioner failed to present any evidence in support of his Petition, it is RECOMMENDED that the Florida Commission on Human Relations enter an order dismissing this case. DONE AND ENTERED this 29th day of January, 2014, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2014. COPIES FURNISHED: Violet Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Torri Holmes 1700 North Monroe Street, Suite 11-263 Tallahassee, Florida 32303 Elwin R. Thrasher, III, Esquire The Thrasher Law Firm 908 North Gadsden Street Tallahassee, Florida 32303
The Issue Whether Respondent, The Meltdown on 30A (“The Meltdown”), discriminated against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott (collectively, the “Petitioners”), in violation of the Florida Human Rights Act; and, if so, what penalty should be imposed?
Findings Of Fact The Meltdown is a restaurant operated out of a 23-foot- long Airstream trailer. It does not have tables and chairs for customers to consume their meals; it is a “to go” establishment. The trailer can comfortably hold about five people when it is in operation. The Meltdown operates on Highway 30A (hence its name) and is generally parked near the beach in Seaside, a tourist area. The Meltdown serves between 500 and 700 sandwiches per day. The restaurant is one of five owned by Mr. Shirley and managed by Mr. Haile. In February 2016, The Meltdown switched its payroll functions from Oasis to ECB. The change resulted also in a new method of signing in, on-line, by which employees were able to be paid. D’Shante L. LeBeaux is an African-American woman. At final hearing, she claimed to have a disability, but did not raise that as a basis for the discrimination claim against The Meltdown. She began working for The Meltdown in June 2016. She voluntarily left her employment when her means of transportation, Latanya Scott, resigned around August 19, 2016. While working for The Meltdown, Ms. LeBeaux was never written up or disciplined for missing work or performing poorly. Ms. LeBeaux did not cite any instance of discriminatory actions or words by her employer. She claimed that the manner in which her schedule was handled, i.e., that she did not always work the same hours as Latanya Scott, constituted discrimination. The testimony was not persuasive. Latanya Scott is an African-American woman. She is married to Erin Scott, an African-American woman. Latanya Scott was hired on June 24, 2016. On August 10, 2016, she provided a letter to The Meltdown which stated her intent to resign as of August 19, 2016. As of that date, she voluntarily ceased working for The Meltdown. Her reason for resigning was, primarily, that Mr. Haile had not shown any compassion when Latanya Scott’s grandmother got sick (and ultimately passed away). While working at The Meltdown, Latanya Scott was written up for being belligerent to other employees. She was passed over when a manager, Carolyn Bramlett, left her position and a new manager was needed. No one was hired, however, to replace Ms. Bramlett; Mr. Haile simply took over the responsibilities himself. Erin Scott is an African-American woman and is the wife of Latanya Scott. She was hired at The Meltdown on May 29, 2016, and continues to work there. She cited to no discriminatory actions by The Meltdown, but suggested that other related couples may have been treated somewhat differently than were she and her wife. Her complaints were neither confirmed nor deemed discriminatory. Erin Scott continues to work in a supervisory capacity for The Meltdown and is considered a good employee. Each of the Petitioners stated that they never received an employee handbook until recently, i.e., during the pendency of this administrative hearing. They never saw, therefore, the nepotism policy set forth in the handbook. The owner and manager maintain that all employees are given the handbook when they “signed in” as an employee the first time. Based upon the facts of this case, whether or not the Petitioners were provided an employee handbook or knew about the nepotism policy is essentially irrelevant to their claims of discrimination. There were a number of family members working at The Meltdown when Mr. Haile first began managing. When ECB came in, a nepotism policy was enacted that prevented any further employment of family members. The family members who were already there were grandfathered in, i.e., they were not asked to resign. Mr. Haile does not remember Ms. LeBeaux raising the issue of a disability at the time of her hiring. She did begin asking for fewer hours, no more than 25 per week, at some point and Mr. Haile tried to accommodate her. He learned that she and Latanya Scott were riding together, which created a small problem, but he attempted to work around that issue as well. Mr. Shirley operates all of his restaurants without tolerating discrimination or harassment. His credible testimony was that the Petitioners seem to have a problem with how the restaurant was managed rather than having a complaint about discrimination. He genuinely appears to care about his employees and to wish to do the right thing vis-à-vis his employees. In short, there was no credible or persuasive evidence of discrimination against Petitioners by The Meltdown.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent, The Meltdown on 30A, did not discriminate against Petitioners, D’Shante L. LeBeaux, Erin M. Scott, and Latanya M. Scott, and their Petitions for Relief should be denied. DONE AND ENTERED this 1st day of September, 2017, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 1st day of September, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) D'Shante LaCheryl LeBeaux Apartment B 190 Patrick Drive Defuniak Springs, Florida 32433 (eServed) Timothy Tack, Esquire Miller Tack & Madson Suite 135 3550 Buschwood Park Drive Tampa, Florida 33618 (eServed) Erin M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Latanya M. Scott Post Office Box 962 Defuniak Springs, Florida 32433 Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
