The Issue Whether or not Petitioner (complainant) is entitled to recover $10,134.72 or any part thereof against Respondents dealer and surety company.
Findings Of Fact This cause is governed by the four corners of the November 2, 1993 complaint. It involves only two loads out of twenty loads of potatoes. Petitioners are growers of potatoes and qualify as "producers" under Section 604.15(5) F.S. Respondent A.F. Business Brokerage is a broker-shipper of potatoes and qualifies as a "dealer" under Section 604.15(1) F.S. A.F. Business Brokerage, Inc. is a corporation engaged in the business of brokering (purchasing and re-selling) potatoes and operates under one or more of the following names: A.F. Business Brokerage, Inc., Washburn Corp., and/or Ben Albert Farms. The contract at issue herein listed the name of the broker as "Albert Farms d/b/a Washburn Corporation." Payments made by the Respondent broker to Petitioner for potatoes received under the terms of the contract were in the form of checks drawn on the account of A.F. Business Brokerage, Inc. For purposes of this litigation, "Albert Farms d/b/a Washburn Corporation," and "A.F. Business Brokerage, Inc." will be considered as describing the same party. Although Titan Indemnity Company received notice of the filing of Petitioner's Complaint and failed to request a formal hearing pursuant to Section 120.57(1) F.S., no evidence or admission was presented at formal hearing which would permit a finding that Titan Indemnity Company was surety for Respondent A.F. Business Brokerage at all times material. That is not to say that Titan Indemnity is found not to be the surety for Respondent A.F. Business Brokerage. The foregoing finding only means that this case in the administrative forum cannot resolve the issue of indemnity as between Respondents because insufficient evidence on that issue has been presented, and it may be necessary for that issue to be litigated in Circuit Court pursuant to the surety contract/bond, if any. On or about December 28, 1992, Petitioner and Respondent broker confirmed in writing the terms of a telephoned agreement, whereby Petitioner agreed to sell and the broker agreed to purchase twenty truckloads of potatoes. The agreement/contract, prepared by Respondent broker was titled "Standard Confirmation of Sale". It specified in pertinent parts: "Unless the seller or buyer makes immediate objection upon receipt of his copy of this Standard Confirmation of Sale, showing that contract was made contrary to authority given the Broker, he shall be conclusively presumed to agree that the terms of sale as set forth herein are fully and correctly stated. Sale made (F.O.B. or Delivered): F.O.B. Special Agreement, if any: Potatoes shipped are for potato chipping and must cook on arrival to be subject to this agreement. This confirmation is issued and accepted in agreement with, and subject to the rules and regulations and definitions of terms as recognized and approved by the U.S. Secretary of Agriculture under the Perishable Agriculture Commodities Act. *4 Truckloads chipping potatoes, April $7.75 FOB 16 Truckloads chipping potatoes, May, June $7.00 FOB *Loads not shipped by seller in April apply to May, June portions of agreement." (Petitioner's Exhibit 1) Under Section 672.319 F.S., The Uniform Commercial Code, the abbreviation "F.O.B." means "free on board" and is interpreted differently, dependent upon what words follow the abbreviation. Regardless of what words follow the abbreviation, the term "F.O.B." places shipping responsibility and shipping costs upon a "seller" as opposed to the one accepting delivery, the ultimate buyer. Testimony and arguments by the parties at formal hearing and in their respective proposals suggest that if "F.O.B." had been used by itself, in place of the word "delivered," and without more, the contract would have signified that sale herein occurred at the time of pickup in the field by the broker/shipper, and that title to the produce would have transferred from the producer to the broker/shipper at that point in time as opposed to title transferring at the time the broker/shipper delivered the produce to its ultimate destination. However, here, the Respondent broker elected the term "F.O.B." and rejected the term "Delivered," and also added the requirement that the potatoes cook to chips at their destination. Petitioner made potatoes available for pick up by the broker at Petitioner's fields beginning in May, 1993 in accord with the contract and the price specified therein. Without incident, the broker picked up and accepted the first eighteen loads of potatoes which it had agreed to purchase. All arrangements for shipment of the potatoes at issue were controlled and paid for by the Respondent broker. These arrangements made and controlled by the Respondent broker included the method of transportation, the exact date when the potatoes would be picked-up from Petitioner's fields, the place to which the potatoes ultimately would be transported, and the time during which the potatoes would remain "in transit". This unilateral control by the broker suggests that the parties were treating the potatoes as if title thereto had passed to Respondent broker when it picked them up in Petitioner's field and clearly shows that the broker had control over what condition the potatoes were in when they reached the retailer at their ultimate destination. As of the time Petitioner began to honor the contract by making potatoes available for pick up by the broker, Petitioner could have sold potatoes on the "open market" for $25.00 per hundred-weight instead of the $7.00 per hundred-weight called for under the terms of the contract. Nonetheless, Petitioner honored its contract with Respondent broker by making potatoes available to the Respondent broker and by reserving a sufficient amount of Petitioner's crop so as to fulfill the entire contract with Respondent broker. As of the time the Respondent broker made arrangements for pick up of the last two loads of potatoes, potatoes on the open market were selling for $1.75 per hundred-weight, meaning that the broker was paying Petitioner more for potatoes under the terms of their contract than the broker would have had to pay to purchase similar potatoes on the "open market". Respondent broker contacted Petitioner immediately prior to June 17, 1993 and asked that Petitioner cancel the contract between them because of the reduced price potatoes were yielding on the open market. Petitioner rejected the proposal. This strongly suggests that the Respondent broker felt bound by the contract to pay Petitioner at the rate agreed under the contract regardless of what rate the broker sold the potatoes for upon delivery and also suggests that the parties were treating the potatoes as if title to the potatoes passed to the Respondent broker when the broker picked up the potatoes in Petitioner's field. The date selected by the Respondent broker for pick up of the last two loads of potatoes was unusual. The broker picked up the last two loads of potatoes on Thursday, June 17, 1993. However, the Respondent broker's standard practice was not to pick up potatoes in St. Johns County, Florida on Thursdays because of the increased risk that potatoes loaded in the fields on Thursdays would reach the ultimate retail destination assigned by this particular broker at a time when processing plants in that locale would be closed for the weekend, thereby increasing the time the loaded potatoes would remain enclosed in the transport truck and accordingly increasing the risk of spoilage. The method of transport selected by the Respondent broker for the potatoes loaded June 17, 1993 was also unusual and destined to increase the risk of spoilage. On that occasion, the broker sent "pigs" a/k/a "piggy-back rail cars" rather than conventional trucks or refrigerated trucks. On June 17, 1993, Petitioner also loaded two trucks for H.C. Schmieding Produce, a broker not involved in this litigation. Petitioner's potatoes loaded upon Schmieding's trucks and the potatoes loaded on Respondent broker's trucks came from the same fields and "lot" of potatoes. One of Schmieding's trucks was loaded before Respondent broker's trucks, and one of Schmieding's trucks was loaded after Respondent broker's trucks. The potatoes purchased and loaded by Schmieding on June 17, 1993 were received in good condition in Illinois and Tennessee, respectively, and Petitioner received full payment for them. Respondent broker's loads were ultimately refused in Massachusetts. June 21-23, 1993 were all weekdays, and presumably "work days." The best date that can be reconstructed for the date that the potatoes in question were dumped by the Respondent broker is June 22 or 23, 1993, so their "arrival" in Massachusetts must have preceded dumping. By undated letter postmarked June 28, 1994, the Respondent broker notified Petitioner of the rejection of the two loads of potatoes picked up by the Respondent broker from Petitioner on June 17, 1993. The letter also informed Petitioner of the broker's intent to assess charges for inspection and dumping of the potatoes and of the broker's intention not to pay Petitioner for the potatoes. This letter was the first notice received by Petitioner advising of the rejection of the two loads of potatoes in question, 1/ and contained a copy of a U. S. Department of Agriculture Inspection Report dated June 22, 1993 showing 60-100 percent soft rot. 2/ Petitioner's principal had left his home and place of business on June 24, 1993, a date clearly 24 to 48 hours after dumping had already occurred and probably much longer after arrival of the potatoes in Massachusetts. Petitioner did not learn of the Respondent broker's June 28, 1993 letter or the Inspection until July 4, 1993. By July 4, 1993 Petitioner had terminated all harvest operations and was not able to tender two replacement loads of potatoes to the broker. As of the time that Petitioner received the June 28, 1994 notice that the two loads in question were being rejected, the Respondent broker had already disposed of the potatoes. Consequently, Petitioner had no opportunity to avail itself of any alternative or other option regarding disposition of the potatoes. Prompt notification of the broker's rejection of the two loads of potatoes might have allowed Petitioner to negate its losses by marketing the potatoes at a reduced price to other processing plants in Massachusetts or to tender two replacement loads of potatoes to the Respondent broker. After all deductions and calculations, the rejected two loads of potatoes resulted in damages of $10,135.47 to Petitioner producer.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Department of Agriculture enter a final order that: Awards Petitioners $10,134.42 and binds A.F. Business Brokerage Inc. d/b/a Albert Farms d/b/a Washburn Corporation to pay the full amount to Petitioner. Sets out any administrative recourse Petitioner or Respondent broker may have against Titan Indeminity Co. RECOMMENDED this 19th day of July, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 July, 1994.
The Issue Whether Respondent American Aluminum Accessories, Inc. (Respondent or American Aluminum), violated the Florida Civil Rights Act of 1992, sections 760.01–760.11 and 509.092, Florida Statutes,1/ by discriminating against and discharging Petitioner Johnny D. Ellis, Jr. (Petitioner), based upon Petitioner’s race and age, or in retaliation for his participation in protected activity.
Findings Of Fact American Aluminum is a company engaged in the business of building and selling toolboxes. Petitioner is an African-American male who was employed at American Aluminum from 2002 until his discharge in March 2014. Petitioner was over the age of 40 at the time of his discharge. From the time of his hire in 2002, until August 2013, Petitioner’s job responsibilities consisted of assembling aluminum boxes. In September of 2013, Petitioner’s supervisor, Michael Flowers, who is also African-American, promoted Petitioner to Shipping Supervisor. Michael Flowers hoped that as a supervisor, Petitioner would take more responsibility in his work, take better care of American Aluminum’s products, and inspire his subordinates. Michael Flowers’ brother, Duane Flowers, recommended Petitioner for this promotion. Duane Flowers is African- American. Petitioner was American Aluminum’s only Shipping Supervisor. Petitioner’s responsibilities as a Shipping Supervisor included placing labels on the boxes, ensuring that the right boxes were placed on the right pallets, correctly assembling orders, and ensuring that orders were loaded into shipping trucks without damage. On the day of Petitioner’s promotion, Michael Flowers explained the new job responsibilities to Petitioner. He informed Petitioner that as a supervisor, he needed to stay at American Aluminum’s facility until orders are shipped. He also told Petitioner that if Petitioner needed a ride home, someone at American Aluminum would find him a ride. Petitioner acknowledged the responsibilities, told Michael Flowers that he accepted the demands of the position, and indicated that he understood. On February 25, 2014, prior to a 3:00 p.m. meeting, Michael Flowers gave Petitioner instructions on completing an order of boxes. The boxes had already been built, but still needed to be labeled, placed in shipping containers, and loaded onto a pallet. Specifically, Michael Flowers gave Petitioner a direct order to make sure that the order on which they were working was completed and loaded onto the truck, because the order needed to be shipped that day. Michael Flowers had already assigned Joseph Weaver the task of operating a forklift to physically load the order into the truck, but he apparently did not share this information with Petitioner. After Michael Flowers left to attend his 3:00 p.m. meeting, Petitioner left American Aluminum’s facility before the truck was loaded. The reason Petitioner left was because his ride home was leaving. He also decided to leave because he was not authorized to operate a forklift and therefore believed that he would not be able to complete the assigned task of loading the truck. So, Petitioner took the ride home without assuring that the order was complete and loaded on the truck. When Michael Flowers returned to the production floor, Petitioner was nowhere to be found. Instead, he saw American Aluminum’s Human Resources manager, a female, in the process of trying to label boxes and place them into shipping containers in an effort to complete the unfinished order. Michael Flowers asked the human resources manager to return to the office, and then began working to complete the order. With assistance from two other employees, including Joseph Weaver, Michael Flowers was able to complete the order on time. Completion of the order was important because, if the order had not shipped, American Aluminum would have jeopardized the customer relationship involved in the order. American Aluminum depends on customer commitment. It pre-plans shipping arrangements and notifies customers of those arrangements. In addition to impacting customer relations, American Aluminum can incur financial penalties if it fails to timely ship an order. After Michael Flowers completed the order, he called Petitioner and asked for an explanation as to why Petitioner had left prior to the order’s completion. Petitioner explained that his ride was leaving and that he needed to leave. Petitioner did not offer any other explanation for why he left the facility before completing the order, and insisted that the situation was not his fault. As a result of Petitioner’s conduct, Michael Flowers suspended Petitioner for three days, and told Petitioner that, considering the severity of the infraction of leaving his post without completing the order, his future employment with American Aluminum was at stake. Michael Flowers subsequently spoke to American Aluminum’s President, Jennifer Arnold, about the situation, and Ms. Arnold agreed with the discipline imposed upon Petitioner. After serving his suspension, Petitioner met with Michael Flowers in his office. Michael Flowers just wanted to counsel Petitioner about the events on February 25, 2014, and explain why it is unacceptable to leave work before completing assigned tasks. Instead of responding positively and taking responsibility for his actions, Petitioner demanded his paycheck and attempted to turn the counseling session into an argument. Michael Flowers considered Petitioner’s reaction insubordination, and terminated Petitioner’s employment. Subsequent to terminating Petitioner’s employment, Michael Flowers spoke to Ms. Arnold, and explained that he terminated Petitioner for his insubordination in failing to follow a direct order, failure to accept responsibility for his actions, and failure to rationally speak with Michael Flowers about why he had abandoned his job. Ms. Arnold agreed with Petitioner’s termination. Petitioner testified that the only individuals at American Aluminum who discriminated against him on the basis of his race were Michael Flowers and Duane Flowers, both of whom are African-American. Petitioner’s rational for his belief that Michael Flowers and Duane Flowers discriminated against him on the basis of race is because they prefer to have romantic relationships with Caucasian women; because Michael Flowers does not like Petitioner sharing his general workplace opinions; and because Michael Flowers wanted to replace Petitioner with Duane Flowers, because Duane Flowers is Michael Flowers’ brother. Petitioner also stated that Michael Flowers discriminatorily terminated another African-American employee and hired a Caucasian individual. Despite his allegations that he was discriminated against because of his race, at the final hearing, Petitioner admitted that he has no evidence to support his claim of race discrimination. And, the evidence does not otherwise support a finding that American Aluminum discriminated against Petitioner because of his race. As to his claim that American Aluminum discriminated against him because of his age, Petitioner alleges that, subsequent to his termination, he had a telephone conversation with Ms. Arnold, during which Ms. Arnold allegedly stated that “they” had a meeting to discuss Petitioner’s age. Ms. Arnold testified that she never had a discussion with Petitioner regarding his age. Ms. Arnold’s testimony is credited. Moreover, during the final hearing, Petitioner admitted that no one ever told him that he was “too old,” and no one ever told him that there were issues with his age. And, while Petitioner stated that he believes that Michael Flowers wanted to replace him with Duane Flowers because Michael Flowers did not believe Petitioner could perform his job functions any more, other than his subjective belief, there is no evidence to support Petitioner’s claim that American Aluminum discriminated against him because of his age. As to Petitioner’s claim that American Aluminum retaliated against him, Petitioner’s testimony did not explain a basis for retaliation. While Petitioner indicated that he had expressed his opinions to Mike Flowers about the general workplace at American Aluminum, and that Mike Flowers did not like him sharing those opinions, there is no indication that those opinions were in opposition to an unlawful employment practice. There was also no evidence that Petitioner ever participated in any activity opposing an alleged unlawful employment practice at American Aluminum prior to his termination. While Petitioner testified that he believed that when Michael Flowers asked him to load the truck, Michael Flowers was actually telling Petitioner to operate a forklift himself, that misunderstanding on the part of Petitioner does not suggest retaliation. In fact, Michael Flowers never instructed Petitioner to operate a forklift. Furthermore, Petitioner admitted in his testimony that he has no evidence that he engaged in protected activity, or that American Aluminum took adverse action against Petitioner because of his participation in protected activity. In sum, Petitioner failed to substantiate his claim of discrimination based upon his race or age, and Petitioner did not show a basis for his claim that American Aluminum illegally retaliated against him.
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 Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 14th day of July, 2015, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida32399-3060 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 2015.
The Issue The issues in this case are whether Respondent violated Section 550.2415(1)(a), Florida Statutes (1996)1 by allowing a greyhound with a drug, medication, stimulant, depressant, hypnotic, narcotic, or local anesthetic, in its system to enter and complete a race and, if so, what, if any, disciplinary action should be taken against Respondent's pari-mutuel wagering occupational and business licenses.
Findings Of Fact Petitioner is the state agency responsible for regulating the pari-mutuel industry in the state, including the regulation and discipline of licensees such as Respondent. Respondent holds an Unrestricted "U1 " Professional individual pari-mutuel wagering occupational license, number 0526562-1081, and a business occupational pari-mutuel wagering license, number 1364008-1080, for Ron Runge Kennel. Respondent is the trainer of record for Prunella Scales ("Prunella"), a greyhound. On February 22, 1997, the Respondent entered Prunella in the thirteenth race at Sanford-Orlando Kennel Club (the "race") and allowed Prunella to complete the race. Prior to the start of the race, urine sample number 267912 was taken from Prunella. The urine analysis conducted by the Bureau of Laboratory Services revealed the presence of ecgonine methyl ester in sample number 267912. Ecgonine methyl ester is a metabolite of cocaine. Cocaine is a topical anesthetic and a class 1 drug. Respondent violated Section 550.2415(1)(a) by entering Prunella in the race with an impermissible drug in its system and allowing Prunella to complete the race in such a condition. As the trainer of record, Respondent is responsible for of the condition of a greyhound that he or she enters in a race. Respondent has an extensive disciplinary history. In August 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug and redistributed the purse money. In September 1994, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, Petitioner redistributed the purse money. In November 1994, Petitioner fined Respondent $25.00 for racing a greyhound on an impermissible drug. Respondent's pari-mutuel occupational license was suspended until he paid the fine. In September 1995, Petitioner fined Respondent a total of $50.00 for racing two greyhounds on an impermissible drug. In one instance, the purse money was redistributed. In January 1996, Petitioner fined Respondent $100.00 for racing a greyhound on an impermissible drug and suspended Respondent's pari-mutuel occupational license until Respondent paid the fine. In March 1996, Petitioner fined Respondent $50.00 for racing a greyhound on procaine, an impermissible substance. In March 1997, Petitioner summarily suspended Respondent's licenses and denied Respondent all access to pari-mutuel grounds during the period of suspension. In addition to the foregoing drug violations, Respondent was found guilty of improperly using rabbits in the training of racing greyhounds in November 1991. He was fined $250.00 for that violation. On March 11, 1995, Respondent was fined $50.00 for presenting the wrong greyhound at the weigh-in, and on July 30, 1996, he was fined $50.00 for failure to present the proper greyhound at the weigh-in. Prior disciplinary action has been ineffective in rehabilitating Respondent. Respondent persists in the prohibited practice of racing animals on impermissible substances. License suspension and fines have no deterrent effect on Respondent. Respondent is not a viable candidate for rehabilitation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order and therein find Respondent guilty of violating Section 550.2415(1)(a) by racing an animal with an impermissible drug in its system and revoke Respondent's licenses. DONE AND ENTERED this 9th day of January, 1998, in Tallahassee, Leon County, Florida. Hearings Hearings DANIEL MANRY Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 9th day of January, 1998.
Findings Of Fact The Petitioner, Thomas J. Chastain, is an agricultural producer and packer in Arcadia, Florida. The Respondent, C. J. Prettyman, Jr., Inc., is a agricultural broker doing business in Exmore, Virginia. Pursuant to an oral agreement, the Respondent has acted as a broker for agricultural products shipped to him by the Petitioner. (Testimony of C. J. Prettyman, Jr.). The complaint filed against the Respondent alleged a failure to properly package and account for five shipments of cucumbers and/or peppers shipped to the Respondent between November 7, 1978 and December 15, 1978. The first disputed shipment occurred November 7, 1978, and involved the sale of 750 cartons of cucumbers in the amount of $1,250.00 on invoice number 2775. (Respondent Exhibit 1A). These cucumbers were subsequently sold to Whamco, Inc., and shipped to Minneapolis, Minnesota. (Respondent Exhibit 1B). On November 11, 1978, the cucumbers were inspected by the United States Department of Agriculture in Minneapolis and found to require repacking due to decay which caused a $560.55 deduction from the amount paid Respondent by Whamco and a corresponding deduction in the amount due the Petitioner. (Respondent Exhibit 1C). The amount due the Petitioner from the sale of the cucumbers on invoice number 2775 is $689.45. On November 15, 1978, 205 assorted cucumbers were sold by the Petitioner to Wick and Brothers, Inc., a wholesale fruit and produce merchant. (Respondent Exhibit 4). Included in the shipment of cucumbers to Wick were cucumbers belonging to other growers. Wick paid the Petitioner for 300 boxes of cucumbers on November 30, 1978. (Respondent Exhibit 3). The Petitioner, therefore, received payment for 95 boxes of cucumbers owned by another grower for whom the Respondent acted as broker. In order to recoup the monies due the other grower, the Respondent deducted $308.75 from the amount due the Petitioner. (Testimony of Respondent). Similarly, Wick purchased 450 boxes of "super cukes" from Petitioner on November 20, 1978. (Respondent Exhibit 6). Wick, however, paid the Petitioner for 700 boxes of cucumbers on December 7, 1978. (Respondent Exhibit 5). Petitioner was thus paid for 250 boxes of cucumbers which were the property of Respondent or another grower. Again to recoup the monies due another grower, the Respondent deducted $562.50 from the amount due the Petitioner. (Testimony of Respondent). Respondent invoiced 600 packages of large peppers on December 15, 1979, at a price per unit of $8.00. (Respondent Exhibit 2B). On the same day, the Petitioner sent the Respondent a statement invoicing 600 large peppers at $9.00. (Respondent Exhibit 2). The 600 peppers were sold by the Respondent to Weiss Market for $8.00. (Testimony of Respondent). The $8.00 sale price was based on the prevailing market rate. (Testimony of Respondent). Invoice number 2911 was not disputed by the parties at the final hearing.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the Department enter an Order finding that the Petitioner is due the amount of $982.09 from the sale of these agricultural products by the Respondent. DONE and ORDERED this 13th day of March, 1980, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Earl Peterson, Chief Bureau of License and Bond Division of Marketing Room 418, Mayo Building Tallahassee, Florida 32301 Mr. Thomas J. Chastain Star Route "A", Box 110 Punta Gorda, Florida 33950 C. J. Prettyman, III Vice President C. J. Prettyman, Jr., Inc. Broad Street Exmore, Virginia 23350 The Travelers Indemnity Company One Tower Square Hartford, Connecticut
The Issue The issue in this case is whether Petitioner was wrongly terminated from employment by Respondent, and, if so, whether monetary damages are warranted.
Findings Of Fact Petitioner, Henry Woodie, is a 66-year-old African- American man. He has a bachelor's degree in math and education, a bachelor's degree in accounting, and a master's degree in business administration. Petitioner first became employed by Respondent in August 2004, as a DCC at Ranier House, a group home owned and operated by Respondent, Independent Group Home Living (IGHL). In February 2007, Petitioner was promoted to the position of overnight (or nighttime) ARM for Ranier House. This promotion occurred after Petitioner filed a lawsuit against Respondent for discrimination. A fellow employee (Sarah McElvain, a white female) had been promoted to ARM for Ranier House some months earlier. Petitioner felt slighted because he had not been granted an interview, although he had more formal education than McElvain. However, McElvain had considerably more experience in the healthcare industry than Petitioner at that time. Nonetheless, Respondent created a position for Petitioner equal in status to the position McElvain obtained. In February 2007, Petitioner was made the overnight ARM; he and McElvain were then co-managers of the Ranier House as McElvain took the day shift. Neither had supervisory status over the other. Each was responsible for assisting developmentally- disabled adults at Ranier House by providing hands-on assistance with daily living activities. Petitioner worked from approximately midnight until 8:00 a.m. as the nighttime ARM. McElvain's hours were generally 9:00 a.m. until 5:00 p.m. The two managers' paths did not cross very frequently, although McElvain would come in early on many occasions to have her morning coffee and chat with the DCC workers. She may or may not have contact with Petitioner during those visits. In mid-July 2007, Petitioner noticed that there was a shortage of available food products at Ranier House. Inasmuch as Petitioner was responsible for preparing bag lunches for the customers (residents of the house), he purchased some lunch meats and other products from his personal account on July 30, 2007, at 2:39 p.m., i.e., outside his normal work hours. It was understood that any such purchases would be reimbursed. Petitioner contends the food shortage existed because McElvain was overspending the funds budgeted for food, thus resulting in shortages. However, McElvain made food purchases using a WalMart debit card provided by Respondent. The card was replenished with funds each month by Respondent's corporate offices in New York. If the card was not timely replenished, McElvain could not make food purchases. This is the more reasonable and likely explanation of why shortages sometimes occurred. Any time a food shortage occurred, one of the ARMs could make a purchase with their own money (if they were able) and then obtain reimbursement from the corporate office. At 10:41 p.m. on July 30, 2007, some nine hours after Petitioner had made a food purchase using his own money, McElvain made a very large purchase ($711.11) of food and other items using the corporate WalMart card. McElvain was also shopping outside her normal work hours. McElvain brought the groceries to Ranier House at around 11:30 p.m., i.e., just prior to Petitioner coming on duty for his regular night shift. McElvain and DCC LaShonda Hemley sorted the purchase by item type. They then distributed the items to the rooms or areas where those items would ultimately be put away for storage. For example, cleaning products were left near the storage closet; food was left near the refrigerator or pantry; household goods were left in the kitchen, etc. After the food items had been distributed, McElvain saw Petitioner in passing and told him the goods needed to be put away. She then left the Ranier House. Petitioner does not specifically remember being told to put away the groceries. He does remember being told that the groceries were being distributed around the house so they could be put away, but assumed that someone else would do that job.2 McElvain and Hemley did not put the groceries away because of several stated reasons: McElvain had been working and going to classes all day and she was tired; the night shift was coming on duty and would be paid to put the groceries away, whereas McElvain and Hemley would have to be paid overtime to do that job; and McElvain made a presumption that Petitioner would follow through on her statement that "the food needs to be put away." Neither Petitioner, nor his DCC staff put away the food and supplies. As a result, dangerous chemicals were left sitting in the hallway all night long. Perishable foods were left in the garage (right next to the refrigerator) all night long and spoiled. Petitioner did not put away the food because of two stated reasons: Usually the person who buys the groceries puts them away; further, he had previously suffered a stroke and did not feel fully recovered. As for his medical condition, his physician had released Petitioner to work as of July 9, 2007 (several weeks prior to the incident in question), but Petitioner did not personally believe he was fully able to perform his duties. He did not make a request to his employer for a lighter work load or relief from his duties, however. Further, the final hearing was the first time Petitioner raised his health concerns as a reason why he did not put the groceries away. That testimony is not credible and flies in the face of the fact that Petitioner said he put away the groceries that he had purchased. Petitioner does not remember McElvain asking or telling him to put away the groceries. He says he would have, had he been asked. This statement is not credible since the groceries were in full view throughout Petitioner's shift, but he did not put them away. At some point during the night of July 30 or 31, 2007, Petitioner opened some of the bags containing perishable foods and used some of them to make sandwiches for the customers. He did not put the opened packages or any of the other bags of groceries into the refrigerator at that time. Petitioner does not accurately remember, but believes the lunch meats he used may have come from food he had bought (and put away) earlier in the day. Besides the perishable foods, there were also some bleach and cleaning supplies left unattended. These items were placed on the floor in a hallway immediately adjacent to a locked storage closet where they are to be stored. The closet was locked and the keys were located in the office at Ranier House. Petitioner maintained at final hearing that he did not see the items even though they were right next to customer rooms (which are supposed to be checked every 15 minutes throughout the night). It is hard to reconcile Petitioner's statement with the pictures of the bleach introduced into evidence at final hearing. The location of the bleach is patently obvious to even the most casual observer. Further, a letter written by Petitioner to an unknown recipient clearly states, "When I came to work at Mid-night [sic], I noticed about 50 bags of groceries spread out on the floors of different rooms." This letter, which Petitioner admits writing, contradicts his contention that he did not see the goods. One of the concerns about the bleach was that one customer was prone to getting up at night and finding something to drink. He would apparently drink anything, including bleach. Knowing that, it is unconscionable that Petitioner would allow the bleach to sit in close proximity to the customer bedrooms over an entire eight-hour shift. On July 31, 2007, McElvain came to work around 8:30 a.m. When she passed Petitioner on her way in, he said something akin to "I'm out of here" and left. McElvain then spotted the spoiled food and other items which had not been put away. She became extremely angry about that negligence. McElvain sorted through the food products and identified $167.27 worth of groceries that were no longer edible. She took pictures of the bags of groceries that were placed in different areas around the house. Then she called her supervisor, Joyce Herman, to lodge a complaint. McElvain told Herman that she (McElvain) had instructed Petitioner to put away the food items or, at least, had told Petitioner that the items needed to be put away. Herman contacted Petitioner at his home, inquiring as to why he had not put the groceries away. He said that he had not been told to do so. Herman says that the job descriptions for ARMs would suggest that someone needed to put the groceries away; if one ARM didn't, the other should. She places the primary blame in this case on Petitioner because the groceries were left out for his entire shift. Herman instructed Petitioner not to contact McElvain, but he did so anyway. Petitioner left a message on McElvain's home phone and then one on her cell phone. The messages were not preserved and could not be played at final hearing. However, a transcript of the home phone message, which both parties indicated was an accurate reflection of what was said, reads as follows: "Yes, Sarah, this is [Petitioner]. I was wondering why you told Joyce [Herman] that lie that you told me to put the groceries away and I didn't. Number one, you don't tell me what to do and number two, you could have put the groceries away yourself. Give me a call." McElvain says part of the message was stated in a "nasty tone," but Petitioner disagrees. McElvain contacted Herman and forwarded Petitioner's voicemail message so Herman could listen to it. Both McElvain and Herman describe the tone in Petitioner's voice as angry and confrontational. The voicemail was alternatively described by Respondent as "threatening," "confrontational" or "upsetting." Petitioner admits that he was angry when he made the call and might not have made the call had he not been angry. Petitioner and McElvain did not appear to have had a smooth or cordial working relationship, although they were peers. Upon hearing the voicemail and considering the facts as to what had occurred, Herman and her subordinate, Doris Diaz, made the decision to terminate Petitioner's employment. The basis of the termination was violation of the IGHL Code of Conduct, specifically the following language: "[D]ecisions on disciplinary action to be taken will be up to and including discharge. The following are examples of unacceptable behavior. . . . Confrontation with customers or co-workers." Petitioner acknowledged receipt and understanding of the Code of Conduct. Petitioner requested of Respondent a letter setting out the reason for his discharge. He was told that IGHL policy did not allow for a written statement; however, a letter was thereafter sent to him stating the basis for Respondent's action. The letter is unequivocal that the employer's reliance on confrontation with a co-worker was the basis for terminating Petitioner's employment. Petitioner presented no competent substantial evidence to support his claim of race, gender, or age discrimination as the basis for his termination from employment. Petitioner was promoted from DCC worker to nighttime ARM by IGHL. His promotion included a substantial salary increase, but not much change in his duties or responsibilities. He was, by his own admission, probably overpaid for the job he was performing. He claims that his termination from employment was for the purpose of eliminating this particular position. There is no evidence to support that contention.3 Petitioner claims retaliation may have occurred because of the fact that he pointed out McElvain's failure to stay within her prescribed food budget. There is no evidence that McElvain strayed from her budget. Rather, the evidence shows a failure on the part of IGHL's corporate offices to stay current when replenishing the WalMart card used for making purchases. The 90-day evaluation for Petitioner after his promotion to ARM is acceptable, but is considerably less laudatory in nature than McElvain's evaluation. It is clear Petitioner did have some minor issues relating to other employees, but that is often the case when someone is promoted from within an organization. If Petitioner is claiming retaliation based on his previous claim of discrimination against his employer, that claim is not supported by the evidence. As a matter of fact, Petitioner was promoted, not fired, as a result of the prior claim he filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations finding Respondent not guilty of an unlawful employment practice and dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 29th day of September, 2008, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 September, 2008.
The Issue The issue is whether the Petitioner was discharged for a pretextual reason.
Findings Of Fact David Law is a black male American. Respondent Deep South Products, Inc. is a Florida Corporation doing business in Orlando, Florida. Deep South Products, Inc. employs more than 15 persons and engages in an industry affecting commerce, i.e., manufacturer of food products. Respondent at all times pertinent to this action was the employer of the Petitioner within the contemplation of the Florida Human Rights Act of 1977, as amended, Chapter 23, Part IX, Florida Statutes 1981. Petitioner David Law was hired by Deep South Products, Inc. in June 1980, and was employed as a general laborer in the Chek Beverage Plant and was receiving $5.40 per hour at the time of his discharge on October 29, 1981. Petitioner received an employee handbook when he was employed by Respondent. Petitioner was considered a capable employee with good potential. On July 15, 1980, Petitioner was reprimanded about throwing full glass bottles into the dumpster and sitting down on the bottle rack. See Respondent's Exhibit 22. On September 17, 1980, Petitioner was counseled about his job performance and a lack of interest in doing a satisfactory job. See Respondent's Exhibit 22. On November 20, 1980, the Petitioner was reprimanded for not taking his lunch break when the relief person came around to give him his lunch break and not when he felt it was time. See Respondent's Exhibit 22. On December 16, 1980, Production Manager, Mr. Jerome Thomas rated the Petitioner's attitude as "indifferent" and stated "David has the ability to do his work well but at the present time shows little concern and this is what he needs to work on." See Petitioner's Exhibit 2 and Respondent's Exhibit 12. On January 30, 1981, the Petitioner was reprimanded about punching in and out for lunch or any other time when he was leaving the Plant. See Respondent's Exhibit 22. On April 15, 1981, the Petitioner was reprimanded for a time card violation. See Respondent's Exhibit 22. On May 5, 1981, the Petitioner was reprimanded in regard to the Company's policy about uniforms. See Respondent's Exhibit 22. In July 1981, during the Petitioner's regular annual counseling, he was told by Jerome Thomas that his attitude was "poor" and he "has the ability to run most everything on the line but the only drawback is his attitude, which I hope will change soon." See Petitioner's Exhibit 3 and Respondent's Exhibit 11. On August 13, 1981, the Petitioner was issued a written Employee Action because of his attitude and insubordination toward Company policies. See Respondent's Exhibit 15. On October 29, 1981, the Petitioner started work at approximately 6:00 A.M. with a crew of five (5) other employees, two (2) black and three (3) white. These employees were supervised by Production Supervisor, Mr. Steve Pocius, who had instructed them to clean the exterior of the stainless steel sugar holding tank. At approximately 8:00 A.M. the Petitioner and the other employees received their first 15 minute rest period. Around 9:45 A.M. Mr. Pocius accompanied by Supervisor Frank Beil, proceeded to the sugar tank to inform the employees involved that they were to relieve the can line employees so the latter employees could take their break. Messrs. Pocius and Beil checked the cleaning of the tank, during which time Mr. Pocius realized two employees were missing, the Petitioner and Ricky Street. He asked the other employees if they knew where the two employees were and they said they did not know where they were. Mr. Pocius and Mr. Beil searched for the two employees by walking through the production area and then one warehouse and another warehouse, then outside to the pallet yard and came back through another warehouse ending up in the cafeteria and still not finding either the Petitioner or Mr. Street. Then, Messrs. Pocius and Beil went upstairs to the locker room and the bathroom and they found the Petitioner sitting on a bench with a newspaper in front of him. Mr. Pocius asked the Petitioner if he was using the restroom or was he on break. The Petitioner said "no". Employee Claude Hickey, a black, who was on break was also in the locker room. Mr. Pocius then asked the Petitioner to go to Mr. Thomas' office. Mr. Pocius advised Mr. Thomas that the Petitioner had left his work area without permission and that he and Mr. Beil had looked for the Petitioner for at least 15 minutes throughout the plant and outside and finally found him reading the newspaper up in the locker room. Mr. Pocius also told Mr. Thomas that Mr. Street was not in his work area. Mr. Pocius advised Mr. Thomas that he had asked the Petitioner if he was using the restroom or was on break, and the Petitioner said "no". Mr. Thomas advised Mr. Pocius that because of the Petitioner's past record and the seriousness of the offense that Mr. Pocius was to write up the Petitioner's termination. Mr. Thomas went to look for Mr. Street and found him relieving a production line forklift driver while the driver was changing his battery. Mr. Pocius went into the office where Mr. Beil and the Petitioner were present. Mr. Pocius looked at the Petitioner's file and wrote up the Petitioner's termination. See Respondent's Exhibit 16. When they were in the office the Petitioner said he was in the locker room asking an individual if he could borrow some money. The Respondent's Employee Handbook on page thirteen stated, "All employees are expected to cooperate with and comply with directives issued by the supervisors or supervisor, if at all possible. Willful failure to comply will be cause for termination." In October 1981, the Company did not have a written formalized disciplinary policy. An employee was not entitled to a certain number of warnings or written employee actions before being terminated. Instead, the extent of the penalty depended on the severity of the offense and in the case of less serious offenses, the frequency of their occurrence and the employee's overall record. A formalized disciplinary policy was implemented in September 1982, at all the Company's manufacturing plants which had certain categories of offenses with certain prescribed penalties for each offense. This policy did not exist when the Petitioner was discharged. The Respondent's records show that during the period of May 1980 through October 29, 1981, there were fourteen (14) involuntary discharges in addition to the Petitioner's. Thirteen (13) were white and one (1) was black. The Respondent's records show that during the period of 1979 to 1984, there was a total of sixty-eight (68) involuntary terminations at its Plant. Fifty-nine (59) were white, and only nine (9), or 13.2%, were black. Respondent's records show both white and black employees (e.g., Ingram, Respondent's Exhibit 19) were disciplined and were not terminated for leaving their assigned work area prior to September 1982. Bobby Jolly, white, who left his assigned work area on July 12, 1983, was not terminated but rather disciplined in accordance with the Company's formalized policy after September 2, 1982, as it did not constitute his third employee action within a twelve (12) month period. Respondent's records show Terry Scoggins, white, was terminated on July 20, 1981, and prior to his termination he only had two employee action forms. See Respondent's Exhbits 23 and 24. It gas not demonstrated that the Petitioner was subjected to different treatment for misconduct under the same factual circumstances and work rules. The stated cause for Petitioner's discharge of "uncooperativeness" summarizes a history of minor to severe infractions over a significant period notwithstanding continued counseling and other disciplinary measures. A factor in the Petitioner's discharge was Petitioner's frequent assertions that he was being discriminated against when he was counseled for misconduct. There is no evidence that Petitioner was discriminated against on the basis of race.
Recommendation Having found that the Petitioner failed to show that the actions of the Respondent were discriminatory, it is recommended that the complaint be dismissed. DONE AND ORDERED this 8th day of January, 1985, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1985. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Post Office Box B Orlando, Florida 32802 Kenneth G. Mall, Esquire Deep South Products, Inc. Post Office Box B Jacksonville, Florida 32203 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
The Issue Issues for consideration in this case were those promoted through an administrative complaint brought by the Petitioner against the Respondent. Under the authority of Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, the Petitioner seeks to impose an administrative fine against the Respondent for the use or application of certain restricted use pesticides without the benefit of an applicator's license.
Findings Of Fact Chapter 487, Florida Statutes, and Chapter 5E, Florida Administrative Code, empower the State of Florida, Department of Agriculture and Consumer Services (Petitioner) to regulate a category of pesticide known as "restricted- use pesticide." More particularly, as it is related to this dispute, the statute requires that those persons purchasing or using a restricted-use pesticide must be licensed by the Petitioner. The license is known as an applicator's license. Bobby Yon (Respondent) had held an applicator's license through October 31, 1983. On that date the applicator's license expired. Yon did not renew the license within sixty days of the expiration date. Consequently, it was incumbent upon Respondent to obtain a new applicator's license, in contrast to renewing the license as described in this paragraph before purchasing or using restricted-use pesticides in the future. Having failed to renew the license which expired on October 31, 1983, on that date or within the grace period which lasted for sixty days beyond that date, Respondent, without the benefit of a license, made the aerial application of a restricted-use pesticide known as "Nudrin 1.8," EPA Reg. No. 201-347. This application was made by Respondent in his capacity as an agricultural pilot. The application dates were April 25, May 6 and June 2, 1985, on an acreage of gladiolus at a business known as Scott's Gladiolus. On April 25, 1955, Respondent made aerial application of Nudrin to watermelons belonging to Steve Basford. The Nudrin which Respondent applied in the instances mentioned before was obtained by the Respondent from Altha Farmers Coop. That Nudrin was delivered to the airstrip where Respondent has his business and from there loaded on his plane. In a statement prepared by the Respondent upon a form provided by Petitioner through its employee Hal A. Davis, Respondent gave written acknowledgment of his use of Nudrin in the instances spoken to in the course of this recommended order. A copy of that affidavit may be found as Petitioner's composite Exhibit 1 admitted into evidence. In the statement he describes the acreage which was sprayed in the four instances mentioned and indicates that his son mixed and loaded the treatment into the plane while wearing rubber boots. It is further indicated that no other safety equipment was utilized. The Nudrin applications at issue are described as being made at the rate of two to four and a half gallons per acre total solution, depending on other things that may have been in the mixture. Respondent described how the Nudrin containers were rinsed in mixing tanks and later burned on site. Respondent points out the records of these applications were photographed by Davis; however, these records or copies of the records were not produced at the final hearing. Finally, in describing the experience with the substance Nudrin, Respondent states in his affidavit that he is aware that a restricted-use pesticide license was necessary to legally apply the restricted-use pesticide Nudrin. On June 30, 1984, without the benefit of an applicator's license, Respondent aerially applied the restricted-use pesticide known as "Red Panther 8 lb Toxaphene," EPA Reg. No. 42761-9. This was applied to a pea crop on the property of James Edenfield. One gallon of Toxaphene was mixed into twenty or twenty-five gallons of water. This substance was delivered to Respondent by the Farmers Coop, in a five gallon can. The balance of this substance is still at the airstrip location at his property and is seen by the Respondent as being part of the Coops inventory. In the affidavit made by the Respondent, he acknowledges that the documents related to this application were made available to Davis and were photographed by Davis. Nonetheless, as with the situation pertaining to Nudrin, copies of the documentation were not presented at hearing. Respondent acknowledges in the affidavit that he was aware at the time that he treated the land with the Toxaphene that a restricted-use pesticide license was needed to make that application. The Toxaphene which was applied to the Edenfield acreage had been purchased by Edenfield from the Farmers Coop. The affidavit that has been alluded to in the course of this recommended order had been prepared by Respondent upon the occasion of an inspection of his business premises in Altha, Florida, conducted by Hal A. Davis on June 5, 1985. As a part of the affidavit, Petitioner's composite Exhibit 1, Respondent makes mention of liability insurance held with Air South Insurance of Dothan, Alabama. On the other hand, Respondent acknowledges that although Florida law requires proof of liability insurance for the use of the subject chemicals or the posting of a bond, his insurance policy did not provide chemical liability. This requirement in law pertains to a necessary prerequisite to obtaining a license for purchase and use of restricted-use pesticides in Florida, as contemplated by Chapter 487, Florida Statutes. In addition to not having the necessary insurance coverage, Respondent had failed to post bond with the Department. Therefore, he could not have been licensed on the date of the inspection. By Respondent's remarks in the course of the final hearing, it is evident that Respondent recognized the necessity of being appropriately licensed before applying the restricted- use pesticides mentioned in this factual rendition, and that he was unable to obtain the necessary license, given the fact that he was without requisite liability insurance and had failed to post a bond in lieu of that insurance. His protestation that he had not renewed his license to apply restricted-use pesticides beyond the expiration date of October 31, 1983, based upon some misunderstanding with officials within the petitioning agency concerning forms for obtaining his new license is without credence. The more likely explanation is the fact that the Respondent, as he alluded to in his testimony, did not feel that he could afford the insurance coverage or bond amount and simply did not renew his license. In any event, it was incumbent upon the Respondent to seek and obtain timely renewal of his existing applicator's license or in the failure to do that, to obtain a new license as an applicator before setting out to apply restricted-use pesticides. Respondent failed to do this and during the hiatus between licenses which existed between October 31, 1983, and June 19, 1985, when he obtained a new applicator's license, Respondent applied restricted-use pesticides without the benefit of a license. In his testimony Respondent makes some reference to a license which he held in the period at question which pertains to dealers who sell restricted-use pesticides, this license being number 002027. This license did not allow him to purchase or use restricted-use pesticides. It only would allow selling to others who had the necessary license or authorization to purchase or use restricted-use pesticides, which, unlike the others, Respondent did not have.
