Findings Of Fact The Communication Workers of America (CWA) is an employee organization and the St. Petersburg Junior College is a public employer. In June, 1976, CWA was attempting to organize various employees at SPJC. To facilitate getting their message to the employees and the group for which representation was sought, CWA inquired of SPJC about renting a classroom. Initially CWA was advised that no bar to renting the room was foreseen; however, the following day CWA was advised by SPJC that they would not rent the use of a classroom to CWA. Thereafter on June 14, 1976 CWA submitted a written request (Exhibit 3) to SPJC requesting rental of a room any weekday between July 19 and July 30. No written response to this request was made but upon oral inquiry CWA was advised that they would not be able to rent the room. In April, 1975 the President of SPJC issued a memorandum (Exhibit 6) to managerial employees advising that union activities were being conducted on the campus and that they should be on the lookout for various signs of union activities. Examples of what to look for were given. A union organizer at SPJC, Ms. Marcia Warden, was the principal complaining witness in these proceedings. She testified she was being followed by "supervisory" personnel each time she came on SPJC campus and was thereby prevented from having access to the employees. There were only two employees in the unit solicited by CWA that were excluded from union participation by reason of their managerial status. Another witness, an employee of SPJC, never saw either of these two employees in the vicinity of Ms. Warden the 10 or so times she observed Ms. Warden on the campus. At the beginning of the organization drive notices of union organizational meetings were removed from campus bulletin boards. However, after October the union was allowed to post on these bulletin boards notices of union meetings. This authorization was memorialized in a letter to Ms. Warden dated October 18, 1976 (Exhibit 9). Thereafter on October 31, 1976, Ms. Warden advised PERC that as a result of this change in SPJC's policy, no further amendments would be made to their unfair labor practice charge (Exhibit 7). Prior to the end of 1976 a settlement agreement was executed between SPJC and CWA (Exhibit 8). During the organization drive SPJC did not cooperate with the CWA to facilitate their task. A list of employees was not given to CWA until after a law suit was brought by CWA. A full list of employees was provided CWA 7 days prior to the election. Ms. Warden also testified that by refusing to rent the union a room SPJC removed CWA from access to the employees other than at the parking lot where she was being watched by supervisors. An employee of SPJC in the proposed unit testified that she received numerous notices in the mail at her home address and that Ms. Warden had visited her at her home on organizational business. SPJC's policy regarding renting classrooms to non-profit organizations is contained in Exhibit 5. Most such organizations that apply to lease meeting space from the college are successful in doing so. The only exceptions noted at the hearing were a karate group that had previously done some property damage, a gay liberation group, and the CWA. Meetings had been held between SPJC and a previous group attempting to represent the college employees called the Career Services Employment Council. No meetings were held with that organization subsequent to July, 1976 and no evidence was presented that the group was ever allowed to rent college space for Organizational meetings. No evidence was presented that union representatives were barred from SPJC campus, that reasonable diligence on the part of union organizers would have been unsuccessful in Obtaining the names and addresses of employees in the proposed unit, or that the employer actively interfered with CWA Communicating with its employees during non-working hours. On the other hand SPJC did not cooperate with CWA so as to facilitate the Organizational efforts of the CWA. CWA requested the use of a room at SPJC during working hours, i.e. from 1 to 4 P.M. and meetings held during those times could have interfered with the program of the college. However the union proposed these hours in order to have access to the largest shift of employees in the proposed bargaining unit who normally reported for duty at 2:50 P.M. Subsequent to 3:00 P.M. CWA proposed to meet with the shift that came off duty at 2:50 P.M. All proposed findings of fact submitted by Respondent are treated in the findings herein submitted or were considered immaterial to the issues to be resolved.
The Issue Two issues are presented for determination in this proceeding. The first is whether Respondent, Volusia County, was Petitioner Coleman’s employer. The second issue is whether Respondent otherwise violated the Florida Civil Rights Act of 1992 by unlawfully discriminating against Petitioner on the basis of his gender.
Findings Of Fact Based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding, the following findings of fact are made: Ocean Center Parking Garage is a parking facility owned and operated by Volusia County in Daytona Beach, Florida. Petitioner’s employer, AUE Staffing Solutions, and Respondent entered into a services contract for temporary employment and employment leasing services. Respondent has no ownership interest in, or control over, AUE Staffing Solutions. On or about July 19, 2012, AUE hired Petitioner. Upon his hiring, AUE provided Petitioner with a list of employment expectations entitled “Welcome to AUE Staffing Solutions – What is Expected of You as a AUE Staffing Solutions Employee.” Among the relevant employment expectations are numbers 4, 12, and 14 which provide: 4. Always arrive on time; contact AUE Staffing Solutions immediately if you cannot report to work or are arriving late. Always leave a message on our 24 [h]our answering servicing if you do not personally speak with a Staffing Coordinator. * * * 12. Misconduct includes: Failure to follow any of our company procedures, insubordination to supervisors or to office personnel, sleeping on the job, horse playing on the job, excessive tardiness and absenteeism, unauthorized use of internet activity, and the use of profanity and/or abusive language on any assignment or to any AUE Staffing Solutions personnel will be grounds for immediate termination. * * * 14. If you are a no call/no show, walk off, or do not complete an assignment, we will consider this a QUIT and you will be paid the minimum wage for all hours worked for that entire week – no exceptions will be made. (Emphasis in original.) On July 19, 2012, Petitioner acknowledged his acceptance of these employment expectations. Thereafter, on or about July 28, 2012, AUE assigned Petitioner to work as a temporary employee parking lot attendant at the Ocean Center Parking Garage to fulfill the terms of its contract with Respondent. Beginning in February 2013, Petitioner began experiencing absences and tardiness. Petitioner’s schedule and time cards for the period February 18, 2013, through June 28, 2013, reflect that Petitioner was late on the following dates: February 22 March 22 April 2, 7, 11, 14, 28 May 12, 21 June 4, 8, 15, 23 Petitioner’s schedule and time cards for the period February 18, 2013, through June 28, 2013, also reflect that Petitioner was a no show on the following dates: February 16 March 24 June 11 June 28 On February 16, 2013, and June 28, 2013, Petitioner was a no show and did not call in to report his absence (no show/no call). Petitioner testified that on June 28, 2013, his immediate supervisor, Rebecca Pearsall, called him at 11:48 a.m. and informed him that he was supposed to be at work. Petitioner disagreed with Ms. Pearsall that he was scheduled to work that day. The AUE work schedule for the week of June 24, 2013 clearly reflects that Petitioner, known as “Willie,” was scheduled to work on June 28, 2013 from 8:30am to 5pm. Ms. Pearsall testified that work schedules were always posted in a prominent place near the office the Thursday prior to the start of the following work week, and that copies were made available on a clipboard to employees who needed a copy. Petitioner acknowledged that copies were available and claims to have taken a copy but lost it when it “blew out the window” of his car. Petitioner asserted at hearing that the “lost” version of the schedule did not require him to work on June 28th. Petitioner worked the Saturday, (June 22nd), Sunday (June 23rd), and Tuesday (June 25th) preceding Friday, June 28, 2013, and so would have had notice, opportunity, and responsibility to review the work schedule to understand when he was to report to work that week. Ms. Pearsall’s testimony, as corroborated by the AUE work schedule and time card for June 28, 2013, is more credible than Petitioner’s assertion that he had a different schedule that “blew out the window” of his car. Ms. Pearsall testified that Petitioner had previously been counseled about the need to report timely and call in when he was not going to be able to report so that the garage could make other arrangements for coverage. During their telephone conversation of June 28, 2013, Ms. Pearsall explained to Petitioner that his services were no longer needed and that he was not to report to the Ocean Center Parking Garage due to his inability to show up to work on time and for not showing up for his shifts without calling. Pearsall terminated Petitioner’s employment with AUE Staffing Solutions immediately. Ms. Pearsall is also an AUE Staffing Solutions employee assigned to the Ocean Center Parking Garage. She has worked at Ocean Center Parking Garage for five years. During the course of Petitioner’s assignment to Ocean Center Parking Garage (February 2013 through June 28, 2013) the other AUE-assigned employee performing duties similar to Petitioner’s was also a male (Patrick). After Petitioner’s termination, Patrick continued working for AUE on assignment to the Ocean Center Parking Garage. As of the hearing, he was still employed by AUE in that capacity. Ms. Pearsall testified that Patrick has not had the same challenges with punctuality and attendance that Petitioner demonstrated. Ms. Pearsall testified that subsequent to Petitioner’s termination, AUE filled Petitioner’s position with other males. Ms. Pearsall testified that during her five years at the Ocean Center Parking Garage other AUE employees, both males and females, were terminated for similar attendance and tardiness issues as Petitioner. On September 26, 2013, Petitioner filed an Employment Complaint of Discrimination (Complaint) against Daytona Beach, Ocean Center Parking Garage, but did not otherwise identify either Volusia County or AUE Staffing Solutions as Petitioner’s employer. Petitioner’s Complaint alleged an unlawful employment practice against him based on his gender and provided in pertinent part: I am a male with parental responsibilities. I believe I was discharged because of my gender. I worked for Respondent as a Temp employee/Parking Lot Attendant beginning on July 28, 2012. On June 28, 2013, I was unable to report to work because I had to take care of my twins due to not being able to get a baby sitter. I was terminated. The reason given was excessive tardiness. Tammy King, Human Resources Manager for Volusia County, conducted a review and investigation into the circumstances of Petitioner’s Complaint. Ms. King responded to FCHR Investigator Jim Barnes by letter dated November 6, 2013, concluding that Petitioner had not been discriminated against on the basis of his gender or any other basis. In his Investigative Memorandum dated April 23, 2014, Investigator Barnes noted that: Complainant was offered multiple opportunities to provide a rebuttal but has not responded. During an introductory telephone call, Complainant provided no additional information relative to his complaint. A telephone message was left on voicemail requesting an interview but Complainant has not responded. Complainant filed this complaint of discrimination based on his gender. The findings of the investigation do not support the allegation. Complainant alleged that he had been terminated because of his gender, after being told he was terminated for excessive tardiness/absenteeism. Respondent related that Complainant was late for work 13 times and failed to report for work four times in 5 months. After repeated counseling and cautions, Complainant was terminated for tardiness and absenteeism. Complainant provided no evidence of discriminatory animus, and no documentary or testamentary evidence that he was discharged for anything other than the stated reason. Upon completion of its investigation, FCHR issued a “Determination: No Cause” finding “that no reasonable cause exists to believe that an unlawful employment practice occurred.” Petitioner testified that following the termination of his employment with AUE he found employment with Americano Resort as a porter and entertainer. Petitioner testified that he was terminated from his employment with Americano Resort after he was absent on a Monday, following a weekend trip to Georgia. Petitioner failed to report or call in his absence because he was tired and stayed home to take care of his twin infants. At hearing, Petitioner candidly admitted that he had no evidence to suggest that, had he been a female, he would have been treated any differently by AUE.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 27th day of June, 2014, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 27th day of June, 2014
The Issue Whether Petitioner was unlawfully discriminated against by Respondent, based on his disability, in violation of chapter 760, Florida Statutes, the Florida Civil Rights Act ("FCRA"); and, if so, what is the appropriate remedy?
Findings Of Fact From October 2 through December 7, 2017, Petitioner was employed by the City as a PES in its Transportation and Mobility Department ("TAM"). Nature of the Parking Enforcement Specialist Job The role of a PES is to ensure that members of the public follow the City's parking ordinances and regulations. Job duties include patrolling an assigned area in a vehicle or on foot, inspecting for parking violations, issuing summonses and tickets to violators, and assisting the public by answering questions. A PES must be able to work independently with little or no supervisory assistance and deal courteously and fairly with the public. The PES position is governed by the Collective Bargaining Agreement ("CBA") between the City and the Teamsters' Union. Under the CBA, assignment of work shifts is based on seniority. A PES may be assigned to work night and weekend shifts. Before being assigned a shift to work alone, a newly- hired PES participates in two phases of training. Phase one consists of familiarization with equipment, systems, parking ordinances and regulations, and typically lasts four to six weeks. Phase two is focused on hands-on training and a trainee is given more opportunity to operate the vehicles and equipment. One of the purposes of phase two is to ensure that the trainee is able to appropriately handle problems and stressful situations that may arise on the job, such as dealing with irate members of the public while immobilizing a vehicle. Each phase of training is conducted by a fellow PES who is temporarily designated as a training officer under the CBA. A PES serving in the temporary designation of training officer is not considered a supervisor. The City issues each PES certain take-home equipment, including a public safety police radio, keys, flashlight, and identification card, for use while on the job. A PES takes these items home when not on the job and is at all times responsible for his or her City-issued equipment. To perform the job, a PES is also required to use a License Plate Reader ("LPR") and related systems. A LPR scans license plates and indicates when a car should be issued a citation or boot. A PES is expected to drive a City vehicle and view the screens of the machine that alert when the camera scans a vehicle with outstanding citations. When a LPR alerts a PES of a vehicle with outstanding citations, the PES must carefully pull over and turn on the caution lights to advise oncoming traffic of the stopped City vehicle. Once safely pulled over, the PES may then check whether the vehicle has outstanding citations and issue tickets. The City's Policies and Work Rules Prior to commencing employment at the City, each newly- hired employee is provided with copies of the City's written policies. The City has a Policy Concerning Persons with a Disability and Procedures for Accommodation ("ADA Policy"). It prohibits discrimination against a qualified individual because of his or her disability and states that the City will provide reasonable accommodation when necessary. It also explains the procedures for requesting accommodation and that a request may be made by contacting the City's Office of Professional Standards ("OPS"). OPS handles requests for workplace accommodation and determines whether an accommodation will be provided. On September 27, 2017, Petitioner was given a copy of the City's ADA Policy and executed a form acknowledging receipt of same. At no time during his employment did Petitioner indicate that he was a qualified individual with a disability or that he needed an accommodation for a disability or handicap from the City. In fact, at final hearing, Petitioner admitted he did not believe he had a handicap or needed an accommodation to perform his role as a PES. The City has General Employees' Work Rules ("General Work Rules"), which define Major Rule violations. Leaving the City premises during work hours without a supervisor's permission is listed as a Major Rule violation for which any employee can be discharged immediately without warning. All newly-hired employees at the City receive training on the City's General Work Rules. Each Department is required to post the City's General Work Rules in work areas. TAM posts the City's General Work Rules document in the main security office, which is where PESs check out their parking enforcement equipment and pick up the keys to their vehicles. On September 27, 2017, Petitioner was given a copy of the City's General Work Rules and executed a form acknowledging its receipt. Petitioner's Employment with PES Effective October 2, 2017, Petitioner commenced employment at the City as a probationary PES. Parking Enforcement Supervisor Bryan Greene ("Mr. Greene") was involved in the process of interviewing and hiring Petitioner for the PES position. When Mr. Greene initially contacted Petitioner to set up an interview, he asked if Petitioner would need any accommodation. Petitioner stated that he did not need any accommodation. Petitioner never told Mr. Greene that he had a disability or needed an accommodation to perform the job. Mr. Greene was not aware that Petitioner self-identified as a disabled veteran on his job application with the City. For phase one of training, Petitioner was assigned to train on the day shift. For phase two, Petitioner was assigned to train on the night-shift with fellow PES and training officer, Stephanie Sanchez ("Ms. Sanchez"). Petitioner began his night-shift training with Ms. Sanchez in November 2017. Acting Parking Shift Coordinator Jose Vazquez ("Mr. Vazquez") was the immediate supervisor of Petitioner and Ms. Sanchez. Mr. Vazquez's immediate supervisor was Mr. Greene. In the day-to-day performance of his job, Petitioner could communicate with Mr. Vazquez by phone or e-mail. Petitioner never told Mr. Vazquez or his coworker trainers that he had a disability or needed any accommodation. From time to time, Mr. Vazquez would check in with Petitioner on his progress as a regular part of the training process. Petitioner never reported any problems with Ms. Sanchez to Mr. Vazquez or Mr. Greene. On December 6, 2017, Mr. Vazquez sent Petitioner a series of routine e-mails regarding the status of various equipment and training. In one of his e-mails, Mr. Vazquez asked Petitioner if he felt comfortable with enforcement operations and procedures and to let him know if there was anything he was uncertain about. Petitioner sent a response stating, in relevant part, "Thanks Jose, I am comfortable with enforcement. Would like a little more training with the LPR and the different computer programs used in the field." Petitioner did not request to review anything else as part of training. Events Leading to Petitioner's Termination On December 7, 2017, at 12:30 p.m., Mr. Vazquez forwarded Petitioner's e-mail to Ms. Sanchez in reference to training. He instructed her to go over the LPR process and how it works with Petitioner again and told her to "[l]et him drive and control everything so that he gets a feel of it" and "[h]ave him input manual tags too so that he is aware that the LPR will not read all tags." On December 7, 2017, at 5:00 p.m., Petitioner started his shift. Ms. Sanchez let Petitioner drive the City vehicle in the parking garage while she sat in the back. They stopped, parked behind another vehicle, and turned the caution lights on so that Ms. Sanchez could review the LPR process with Petitioner as he had requested. Ms. Sanchez encouraged Petitioner to review his notes on the LPR from the night before and asked him to replicate the process to check if a vehicle was eligible for immobilization. Petitioner became angry that rather than verbally reviewing the instructions over and over with him, Ms. Sanchez directed him to review his notes. Ms. Sanchez explained that she previously had repeated the verbal instruction and wanted to be sure that Petitioner could understand his own notes because he was nearing the end of his training and would soon be on his own with nothing to rely on but his notes. At that point, Petitioner burst out at Ms. Sanchez in a raised voice, "You're aggravating me, I can't stand working with you--you just want me to fail. I'm going home." Sanchez calmly explained that she was trying to help him and reiterated that they would have to go through the steps to learn the process. Petitioner did not listen. He immediately put the City vehicle into drive and sped off to the other side of the garage with Ms. Sanchez still in the vehicle. Petitioner then parked, got out of the vehicle, and went into the main security office with his belongings. Because of Petitioner's outburst and behavior, Ms. Sanchez did not feel that it was safe for her to approach him and waited in the vehicle. After approximately five minutes, Petitioner exited the main security office. He went towards the parking elevator and left. Petitioner left his City-issued take-home equipment, including police radio, keys to access the building, and identification, inside the main security office which was unsecured. Prior to leaving, Petitioner had only been at work for about one hour. Ms. Sanchez immediately contacted Mr. Vazquez. She notified him that Petitioner left work without permission and sent him an e-mail detailing the incident that occurred while training Petitioner on use of LPR systems. Mr. Vazquez advised Mr. Greene of the incident and forwarded him Ms. Sanchez's e-mail. At no time during his December 7, 2017, shift did Petitioner communicate to any supervisor that he was leaving work or not returning that night. Mr. Greene recommended through chain-of-command that Petitioner, as a probationary employee, be terminated from City employment. He felt that Petitioner would not be a good fit for the PES position because he left work without a supervisor's permission in violation of a Major Rule and left his City-issued take-home equipment unattended in an unsecured building. This raised serious safety concerns given the sensitive nature of the equipment, which included a police radio. Additionally, Petitioner's rude, disrespectful, and troubling behavior towards Ms. Sanchez raised concerns as to his ability to appropriately deal with coworkers and members of the public. The City determined that Petitioner voluntarily resigned when he left work without contacting a supervisor and left his City-issued take-home equipment unsecured in the security office. Accordingly, the City accepted Petitioner's voluntary resignation from employment, effective December 7, 2017. Petitioner's Argument Petitioner claims that he had no intention of resigning and that his separation from employment was a termination based upon his disability or handicap. Petitioner believes that his training by Ms. Sanchez should have conformed to his preference on how to learn (repeated verbal instructions without reference to notes or the guide book) and that he was justifiably upset with her. Petitioner explained that his interaction with Ms. Sanchez triggered intestinal distress, necessitating his need to go home and change clothing. He intended to return to work that night but claims he saw an e-mail from management that if Petitioner returned to work, he was to be told to go back home. Petitioner was not copied on that e-mail nor could he explain at final hearing how he saw that e-mail prior to the initiation of his administrative complaint. Petitioner's testimony on this point is not credible. Further, Petitioner admits he did not contact a supervisor prior to leaving his shift. Despite receiving and reviewing the General Work Rules, Petitioner irrationally assumed it was management's responsibility to reach out to him to find out what was going on, rather than him requesting time off. After going home, Petitioner made no effort that evening to contact a supervisor to explain why he left the job. Petitioner's suggestion, that leaving his work equipment was not an indication of quitting, is also not credible. Petitioner claims that he left the keys and equipment in what he believed was his own mailbox, assumed no one would touch it, and that the building was secure. Petitioner cross- examined the City witnesses at final hearing in detail about where his equipment was actually left (on a desk or in his mailbox) but, ultimately, he provided no rational explanation why he left everything in an unsecured building on December 7, 2017, when after every other shift, he previously took those things home. Petitioner did not identify any handicap or disability either while employed with the City or at final hearing. Nor did he request any accommodation that would have enabled him to perform the essential functions of the PES job.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the FCHR Petition 2018- 04710. DONE AND ENTERED this 13th day of May, 2019, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of May, 2019.
The Issue The issue for consideration in this case is whether Petitioner was discriminated against in employment by Respondent because of his race.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Tredit Tire & Wheel Co., Inc., operated a specialty tire and wheel assembly facility in Plant City, Florida. Petitioner was employed by Tredit at that facility. On October 10, 1995, Ronald Pike, Tredit’s vice- president for operations, paid a routine visit to Tredit’s Plant City facility. Somewhat concerned over the apparent inadequate level of production and higher costs being experienced there, Mr. Pike called a meeting of the entire 15-member staff. During the course of the meeting, in an attempt to determine, if possible, the reason for the deficiency, Mr. Pike asked questions of each member of the staff. Mr. Lee, who recalls he had nothing to say at the time, claims Pike’s insistence on his participation in the discussion constituted "picking on him." Mr. Pike denies picking on Petitioner. He contends he was trying to get some input from the hourly employees, and insists he questioned all of them even-handedly. He asked each for input, indicating their jobs would not be jeopardized by their answers. During the meeting Pike advised the associates that both their attitudes and their production must improve. Though Petitioner denies it, Mr. Pike indicated that Petitioner claimed at that time there was not enough work to give him a 40-hour week, and he was stretching out his jobs in order to make them take long enough to ensure he could work a 40-hour work week. Mr. Bauer, also a Tredit executive, is of the opinion this manipulation is neither necessary nor possible, considering the facility’s work practices. Tredit creates wheel assemblies for specialty vehicles, utilizing tires and wheels manufactured by others. Though its Florida business is high volume, due to the nature of the product and the intense competition, the profit margin is low, and the company has to react to order cycles which require immediate response. However, Mr. Bauer opined there was always enough to do to make sure the hourly employees were always productively employed. No independent evidence was presented in support of the position taken by either party on this point, however. Once the meeting was completed, Mr. Pike and Mr. Bauer left. The facility was being managed at the time by Carol Suggs. At the end of the day after Mr. Pike held his meeting with the staff, Ms. Suggs called for Petitioner to meet with her. The request was communicated through Mr. Longo. According to Ms. Suggs, Petitioner was admonished about his working habits and warned regarding his attitude on the job. She claims he then became disrespectful and quit. A short while later, a payroll accounting document was prepared reflecting Petitioner had been discharged on the day of the conference with Ms. Suggs. Petitioner categorically denies having quit the job as Ms. Suggs indicates in her sworn affidavit of August 22, 1996. He claims to have taken pride in his work and to have been so upset by his termination that he actually cried as a result. Ms. Suggs, on the other hand, contends that Petitioner did not put forth appropriate effort on the job. She claims that not only were the hourly employees getting a full 40-hour week, but also performing overtime, and yet the required amount of material was not being produced. Petitioner rebuts this contention, claiming adequate inventory was prepared. Nonetheless, as a result of what she perceived as Petitioner’s attitude and performance shortcomings, on October 11, 1995, at her meeting with Petitioner the day after Mr. Pike’s visit, Ms. Suggs gave him a written employee warning notice. Petitioner admits to having signed this notice as indication he received it, but denies he agreed with its contents. No other notice of dismissal action was executed by Ms. Suggs except the payroll change notice reflecting Petitioner’s dismissal on October 13, 1995, two days following the meeting she had with Petitioner. Because this earlier action, the warning, does not reflect Petitioner was terminated, but within two days thereof he was taken off the payroll, and because Ms. Suggs’ testimony was credible, it is found that Petitioner’s reaction to the warning was as described by her and was the basis for his dismissal. Tredit had 15 employees at the Plant City facility when Petitioner was employed there. Of this number, four were female and eleven were male. Two of the males were black. After Petitioner was terminated, the employee census was the same except for one fewer black employee. At the time of the hearing, Tredit employed four individuals in the Plant City facility’s office, all of whom were white; and nine warehouse employees, of whom four were white, one black, and two Hispanic. No evidence was presented to establish that Petitioner’s termination from employment with Respondent was the result of his race.
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 Raymond T. Lee’s Petition for Relief filed against Tredit Tire & Wheel Co., Inc. DONE AND ENTERED this 6th day of January, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1999. COPIES FURNISHED: Ramon T. Lee, pro se 832 Augusta Street Lakeland, Florida 33805 Antonio Faga, Esquire 375 Twelfth Avenue South Naples, Florida 34102 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Said Order Closing File was predicated upon Respondent’s failure to appear at the scheduled hearing, which was deemed to be a voluntary dismissal with prejudice. Accordingly, it is hereby ORDERED and ADJUDGED that Petitioner, Cycle Exchange LLC d/b/a Cycle Exchange, be granted a license for the sale of motorcycles manufactured by Astronautical Bashan (BASH) at 14540 North Florida Avenue, Tampa (Hillsborough County), Florida 33603, upon compliance with all applicable requirements of section 320.27, Florida Statutes, and all applicable Department rules. Filed August 4, 2011 8:26 AM Division of Administrative Hearings DONE AND ORDERED this aA day of August, 2011, in Tallahassee, Leon County, Florida. Sandra C. Lambert, Director Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A435, MS 80 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this 7? day of on ae 2011. Natini Vinayak, Deater Etcense Administrator NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. SCL:vlg Copies furnished: Wendy Yu Peace Industry Group (USA), Inc. 6600B Jimmy Carter Boulevard Norcross, Georgia 30071 Patcharee Clark Cycle Exchange LLC 14540 North Florida Avenue Tampa, Florida 33613 Robert L. Sardegna Auto Shop, Inc. d/b/a Motorsports Depot 17630 US 41 North Lutz, Florida 33549 wre ate Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Section
Findings Of Fact Born in Rio de Janeiro, petitioner Paul Sergio Inacio emigrated to the United States from Brazil in 1961, when he was still a teenager. He first worked for respondent for a brief time in 1976. On June 6, 1980, he returned to respondent's employ as a journeyman welder mechanic at Crist Electric Generating Plant, a position he still held at the time of hearing. A "mile square with seven generating units" (T.187), the plant is in Florida, as are respondent's headquarters. Several hundred people work for respondent at Crist Electric Generating Plant alone. In "late June, 1980" (T.235) somebody began calling Mr. Inacio "Julio," nicknaming him after a Hispanic character in a television series (Sanford & Son). The actor portraying Julio "used to drag a goat through the living room . . . and acted . . . stupid." T.236; T.64. Despite (or perhaps because of) petitioner's telling people he did not like being called "Julio," the sobriquet caught on. Even during his initial eight-month probationary period, he made his objections known. T.115, 180. He felt freer to press the point, once the probationary period ended, although at least one friend advised him to do so might be counterproductive T.235-6. Mr. Inacio never referred to himself as Julio. T.28, 99-100, 115, 146-7, 180, 194, 198. Once "he almost got in a fight with [a co-worker] because the guy called him my little Puerto Rican buddy Julio." T.28. Before he retired from his employment as a supervisor with respondent, on July 30, 1987, Murdock P. Walley repeatedly addressed, or referred to petitioner in his presence, as "Julio," "wop," "spic," and "greaser." Mr. Walley's last day at work was "in April or along about then." T.472. Behind petitioner's back, Mr. Carnley heard Mr. Walley refer to petitioner as "wetback," "wop" or "the greaser." T. 27. Co-workers have called him "spic," "wetback," and "greaser" to his face, (T.30) as well as behind his back. Mr. Peakman, another maintenance supervisor, testified that he was guilty of a single lapse: I didn't see him and I asked, "Where's Julio?" And then I caught myself, I said, "Excuse me, where's Mr. Inacio?" I corrected myself right then. T.455. In or about January of 1989, (T.271), Jimmy Lavon Sherouse, maintenance superintendent since May of 1987, referred to petitioner as "Julio" at least once, in the break room. Willard A. Douglas, a supervisor of maintenance at the plant since December of 1981, referred to petitioner as "Julio" frequently. Described as abrasive, Mr. Douglas, also known as "Bubba," has "single[d] Paul out." T.46. But it appeared at hearing at least as likely that Mr. Douglas singled petitioner out because of a run-in which had nothing to do with Mr. Inacio's background, as that he discriminated against him on account of national origin. Prior to June of 1989, continuously since 1981 (T.29), Howard Keels, Calvin Harris, Mike Taylor, Ronnie Yates, and Bill Sabata, Control Center supervisors, C. B. Hartley, supervisor over the coal docks, John Spence and David Hansford, both maintenance supervisors at the time, Mike Snuggs, Joe Patterson, Ed Lepley, Tommy Stanley and Dennis Cowan, supervisors of the laboratory department, Dennis Berg and Joe Kight, schedulers, Tom Talty, the assistant plant manager, Joe Lalas and Larry Swindell, both operations supervisors, all called petitioner "Julio" "[t]o his face in [the] presence" (T.27) of Ricky Carnley, a fellow welder mechanic who testified at hearing. T.21-26. Others also heard supervisors call petitioner "Julio." T.79-80, 110, 144-6, 178-9, 195-6, 237-9, 537-8. Not without reason, petitioner came to feel that "(a)nything associated with Hispanic heritage that could come up, I was called at some point or other by practically anybody." T.267. Angelo Grellia, a fellow mechanic who testified "I'm a wop, you know" (T.79) (emphasis added) remembered co-workers calling petitioner a "wop." A newspaper cartoon posted on a bulletin board in the employee break room (not the bulletin board reserved exclusively for management's use) depicted a man using a two-by-four. Petitioner "is known for using two-by-fours a lot to move stuff, pry stuff for leverage." T.34. The cartoon was labelled "Julio." Another time somebody posted a newspaper clipping, a report of a parricide, complete with picture; the killer's name had been lined through and Mr. Inacio's had been substituted. T.112, 158, 179. After two days, a fellow employee took it down (T.158), apparently without Mr. Inacio's ever seeing it. Still another time somebody posted "a National Geographic picture" (T.181) that resembled petitioner "and the caption said, can you guess who this is." T.181. Somebody had guessed and written in "Julio." T.243. According to uncontroverted testimony, white Anglo-Saxon men "were not selected to be the butt of these sorts of jokes." T.159. Over the plant's public address system, in Mr. Talty's presence, Charles Brown referred to petitioner as "Paul Inasshole," a play on his surname. T.25. No other employee was ridiculed in such a fashion, as far as the evidence showed, (T.49) but broadcasts in a similarly offensive vein ("An asshole" "A nasty hole") took place repeatedly over respondent's public address system. T. 24-25, 48-49, 71, 144-146, 163, 240. At all pertinent times, respondent had widely disseminated written equal opportunity and affirmative action policies with the stated "intent . . . to provide all employees with a wholesome work environment." Respondent's Exhibit No. 2. "Company policy prohibits intimidation or harassment of its employees by any employee or supervisor." Id. But, as Barbara Louise Mallory, an "Equal Employment Opportunity representative" (T.477) in respondent's employ, conceded, the "conduct that went on was against [Gulf Power's] policies and against the law." T.484. Respondent's Exhibit No. 2 stated that employees "subjected to conduct which violates this policy should report such incidences to their immediate supervisor, a higher level of supervision, or the Company's Equal Employment Opportunity Representative in the Corporate Office." Id. In the present case, both respondent's immediate supervisors and "a higher level of supervision," were well aware of the harassment to which petitioner was subjected, before he officially reported it. Supervisors were themselves guilty of harassment. On February 8, 1988, Mr. Sherouse, the maintenance superintendent, addressed "a routine shift meeting with employees [and] discussed with them the need to refrain from destruction of employees' or company property." Respondent's Exhibit No. 8. Mr. Sherouse "essentially said . . . some employees . . . were being singled out . . . . " T.295. He told employees at the meeting that "such an incident . . . could result in an action up to termination." Id. At the same meeting he "also discussed cartoons and calendars that could be considered . . . racial or sexual harassment . . . [directing that] they must be removed now." Respondent's Exhibit No. 8. These matters were also discussed at an employee information meeting in January of 1989. Petitioner's Exhibit No. 1. But harassment of petitioner continued. "[Q]uite frequently . . . thick heavy grease would get smeared on his toolbox, underneath the drawers of his toolbox." T.34. The lock on his locker was glued or "zip-gripped" shut several times, and had to be cut to open the locker. Respondent's Exhibit No. He is the only employee (T.39) who had to change clothes because some sort of itching powder was put in his clothes. Somebody put "Persian Blue," a particularly persistent dye, in his glove. At respondent's counsel's behest a list was prepared of "employees who have experienced problems with someone tampering with their tools or person[a]l lockers," Respondent's Exhibit No. 10, during the two years next preceding the list's preparation on August 4, 1989. Of the nine employees listed, seven were white Caucasians whose tools or books had been lost or stolen. 1/ Unlike the native-born men on the list, petitioner and Debbie Mitchell, the only other person listed, were subjected to repeated instances of vandalism and other harassment, including unflattering references in cartoons posted on the bulletin board in the break room. Although petitioner did not request it, management assigned him a new locker, something they did for no other employee. According to a co-worker, petitioner, who once taught welding at Pensacola Junior College, "likes to do a good, clean, responsible job" (T.185) of welding. But, on October 22 and 23, 1988, when petitioner and Millard Hilburn worked on "the #7 bottom ash discharge piping," Respondent's Exhibit No. 21, at Willard Douglas' behest, they failed to stop seepage from the pressurized pipe (which was in use while they worked) by welding, and resorted to epoxy which, in Mr. Douglas' "opinion[,] . . . [was] bad judgement and very poor workmanship." Id. Of 30 or 40 welders respondent employed at Crist, only one or two "still have a clean record. Eventually somebody is going to get a leak." T.202. Petitioner's work record is basically a very good one, although not perfect. Nevertheless Mr. Sherouse, after putting petitioner's name on a list of three "employees who for different reasons are not performing their jobs," Respondent's Exhibit No. 7, summoned petitioner to a conference about his job performance, on January 20, 1989. The other two employees were Scott Allen, whose problem was "attitude . . . distrust, dislike . . . just unbelievable" (T.443; 420) and Ed Lathan who "hadn't been there since June of '87" (T.420) except sporadically "working light duty." T.420. Mr. Sherouse also prepared various memoranda concerning petitioner; and caused other managers to prepare still other memoranda. Only after the January conference was petitioner involved in the repair of a boiler tube that failed. (He welded one end of a replacement piece that may have been improperly sized and had already been welded in place by others.) In contrast to petitioner's involvement in two incidents (only one of which occurred before the filing of the complaint), at least one other welder mechanic working for respondent had made five welds that failed in short order. On April 11, 1989, petitioner was assigned the job of cleaning plugged nozzles on intake screens for units four and five (although ordinarily operators themselves did such routine maintenance.) He first went to the control room for units four and five and asked directions to the intake screens, which are part of the cooling system. Misunderstanding directions, he went to the wrong cooling system intakes, those for units six and seven, instead of those for four and five, and started work without finding a red tag (used to indicate that somebody from operations had "isolated" the equipment) and without placing his own tag on an electrical switch that equipment operators use. He did, however, place tags on valves that had to be opened in order for the system to operate. When Mr. Sherouse heard what had happened he sent Mr. Inacio home from work. Although Mr. Sherouse did not at that time "announce termination or non- termination, pay or no pay" (T.436), petitioner was eventually paid for the time off, which lasted two days during the purported pendency of an investigation, which consisted of "going back and looking at his files." T.437. Without credible contradiction, several people testified that mistaking one piece of equipment for another occurred not infrequently (T.85) at the Crist plant. The evidence showed that much more serious safety lapses had, in general, elicited much milder responses from management. Petitioner was criticized more harshly than non-minority employees for the same or comparable performance. T.31-33, 73-74, 112-120, 130-131, 148-9, 150-4, 186-7, 197, 257- 263. Petitioner's safety record was "better than most." T.424. An Indian who works at the Crist steam plant, Ron Taylor is known as "Indian" or "Chief." T.52. Supervisors referred to Nicholas Peterson as "a damned Greek" (T.111) when he worked at respondent's Crist plant. "From January 1982 until March 1990," just about every supervisor at Crist "refer[red] to some . . . blacks as being niggers." T.135. Objection was sustained to admission of colored Beetle Bailey comic strips crudely altered to depict cartoon characters engaged in oral sex. But Ms. Mitchell testified without objection to other "extremely vulgar cartoons" (T.157) she saw posted on the bulletin boards including one with her name on it. T.159. (When she complained to Mr. Sherouse, he eventually reported back to her that the reference was to a different Debbie.) At Crist Electric "they use the good ole boy theory . . . [i]f you fit into their select group, you're taken in, you're trained . . . you get better selection of jobs. If you're not, you're an outcast." T.136. Petitioner "definitely" got more than his share of "dirty jobs," specifically precipitator work and condenser work. T.183; 85-86, 147-8. Petitioner's "pride was hurt." T.265. He felt humiliated. Unfair criticism affected his morale. T.36. At least one co-worker "could sense . . . that he felt like he was not wanted there." T.37. He considered leaving his employment and even told at least one Gulf Power official that he was doing so. See Respondent's Exhibit No. 3. Discriminatory treatment affected his ability to concentrate, and so his job performance. T.36, 37.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR order respondent to refrain from harassing or otherwise discriminating against petitioner on account of his national origin. That the FCHR award petitioner reasonable attorney's fees and costs. DONE and ENTERED this 14th day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of May, 1991.
Findings Of Fact The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it. Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991. J. STEPHEN MENTON 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134 Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16 and 18. Adopted in substance in Findings of Fact 16 and 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. Rejected as irrelevant and unnecessary. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25 and 26. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Daniel E. Jonas, Esquire Jonas & Jonas 300-71st Street Suite 630 P. O. Box 41-4242 Miami Beach, Florida 33141 David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza Charlotte, North Carolina 28280
The Issue The issue in this case is whether Respondent materially understated payroll and thus should be deemed to have failed to secure payment of workers' compensation, which is a sanctionable offense.
Findings Of Fact Petitioner Department of Financial Services ("Department") is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. Respondent Bicon, Inc. ("Bicon") is a corporation domiciled in Florida and engaged in the business of hauling construction debris, which is considered a non-construction activity for the purposes of workers' compensation coverage requirements. Bicon's workers' compensation carrier from October 1, 2003 to May 4, 2005 (the "Focal Period") was Bridgefield Employers Insurance Company ("Bridgefield"). Bridgefield's Policy Number 830-29266 (the "Policy") initially covered Bicon for the period from May 11, 2002 to May 11, 2003. Bridgefield renewed the Policy twice, each time for a one-year period. The premium for the Policy was based on Bicon's payroll. Before the beginning of each policy period, Bicon provided Bridgefield an estimate of its payroll for the upcoming period.2 Bridgefield then established an estimated premium for the period, which Bicon was expected to pay in installments. After the policy period had ended, Bridgefield audited Bicon's records to determine actual exposures. Once the audit had been completed, the estimated premium was adjusted as necessary, upward or downward, to reflect actual exposures for the policy period. The audit covering the first renewal period (May 11, 2003 to May 11, 2004) caused Bridgefield to conclude that there existed a premium shortfall of $274,281.66, for which sum Bridgefield billed Bicon on May 2, 2005.3 Given that the estimated premium for the period had been $22,634.44,4 this was a significant upward adjustment. The premium increase was attributed to exposure arising from Bicon's use of an alleged uninsured subcontractor, which exposure Bridgefield's auditor valued at $816,231.00. Bridgefield's Audit Summary Sheet contains the following instructions pertaining to uninsured subcontractors: If no evidence of coverage is submitted to the insured for a subcontractor and only labor is provided, the auditor must include either payroll of the subcontractor's employees or the Total Contract Price. If the labor and material portions of the contract are not broken down in the Insured's records, the auditor must include the Total Contract Cost prorated according to manual rules. No persuasive or convincing evidence was offered establishing whether the auditor calculated the subcontractor exposure for the first renewal period based on the subcontractor's payroll or, alternatively, on the contract price. Bicon paid $53,091.40 against the audit adjustment, leaving a balance of $221,190.26, which remained outstanding as of the final hearing. Bicon has disputed the findings of Bridgefield's audit, but the record does not disclose the nature and grounds of its objections. The estimated premium for the second renewal period (May 11, 2004 to May 11, 2005)——which had been calculated in March 2004, apparently before the findings from the audit of the first renewal period were available——was $20,097.48.5 The retrospective audit convinced Bridgefield that the estimated premium had fallen short by the amount of $186,653.88, for which Bridgefield billed Bicon on September 13, 2005. This shortfall was attributed to Bicon's use of five alleged uninsured subcontractors, which the insurer claimed gave rise to an exposure appraised at $718,462.00. No persuasive or convincing evidence was offered to establish whether the auditor calculated this exposure based on the subcontractors' respective payrolls or, alternatively, on the contract prices. Bicon disputed these audit findings, and as of the final hearing had not paid any part of the audit adjustment. The record does not disclose the nature and grounds of Bicon's objections to this audit. The Department's case against Bicon is premised on the liability for workers' compensation that attaches to a contractor who engages a subcontractor to perform any part of the contractor's contractual obligations to a third party. In such a situation, if the subcontractor is uninsured, then the contractor is obligated to provide workers' compensation to all of the subcontractor's employees. The Department alleges that, during the Focal Period, Bicon sublet work to the following uninsured subcontractors: Precision Equipment Fabricators & Repair, Inc.; S&S National Waste, Inc.; Mickelson Enterprises, Inc.; and Wheeler Employee Leasing, Inc. The Department alleges further that, in its dealings with Bridgefield, Bicon materially understated the amounts of its uninsured subcontractors' payrolls——a practice that, the Department contends, is deemed by statute to constitute a failure to secure the payment of workers' compensation. Despite these allegations, the Department did not elicit any direct evidence that Bicon's alleged subcontractors were performing jobs or providing services that Bicon was contractually obligated to carry out for third parties. Rather, in this regard, the Department's investigator testified (via affidavit) as follows: [T]he vast majority of the work being performed [by Bicon's alleged subcontractors] was the hauling of debris by truck drivers, which is a non-construction activity. However, the duties performed by the employees of Precision Equipment Fabricators & Repair Inc., were construction in nature, specifically, the installing/erecting of debris chutes at construction sites. Aff. of J. Turner at 3. Notably absent from the investigator's account is any testimony that the alleged subcontractors were performing Bicon's contract work. There is, however, some circumstantial evidence that Bicon sublet part of its contract work to other entities. In its application for workers' compensation insurance, for example, Bicon described its business operations as follows: "haul[ing] clean recyclable construction materials (sand, gravel, concrete, wood) from construction sites to waste management locations." The Department accepts this description, for in its Proposed Recommended Order, the Department requested a finding that "Respondent is . . . engaged in the business of hauling construction debris, which is a non-construction activity." The undersigned so found above. It is reasonable to infer, from the basic undisputed facts about Bicon's business, that Bicon provided hauling services to third parties (its clients or customers) to whom it was contractually bound. The inference is sufficiently strong that the undersigned is convinced, and finds, that such was the case. The evidence shows that Bicon considered various entities, including S&S National Waste, Inc. ("S&S"); Mickelson Enterprises, Inc. ("Mickelson"); and Wheeler Employee Leasing, Inc. ("Wheeler"), to be its "subcontractors." Indeed, at the Department's request, Bicon produced one of its subcontracts, which is in evidence, wherein Mickelson was designated the "subcontractor." The undersigned is convinced, and finds, that Bicon did, in fact, enter into subcontracts, express or implied, with S&S, Mickelson, and Wheeler. It is undisputed, moreover, that these three companies——S&S, Mickelson, and Wheeler——performed the work of hauling construction debris, which happens to be Bicon's core business. Therefore, it is reasonable to infer, and the undersigned finds, that, to some extent, S&S, Mickelson, and Wheeler provided hauling services to Bicon's customers. None of the aforementioned subcontractors had workers' compensation insurance in place during the Focal Period. The evidence is insufficient to prove that Precision Equipment Fabricators & Repair, Inc. ("Precision") was a subcontractor of Bicon that performed Bicon's contract work. On the contrary, Mr. Turner's testimony, which was not contradicted, shows that Precision was engaged in a different business from Bicon's——one involving construction activities (i.e. installing debris chutes) as opposed to the non- construction work of hauling. There is no persuasive or convincing evidence in the record establishing that Bicon was contractually obligated to anyone to perform such construction services. There is no persuasive or convincing direct evidence that Bicon ever understated the payroll of S&S, Mickelson, or Wheeler in communicating with Bridgefield. There is, indeed, no evidence in the record of any statement made by or on behalf of Bicon, to Bridgefield, concerning either the subcontractors' payrolls or the amounts that Bicon had paid, expected to pay, or owed its subcontractors pursuant to the subcontracts that it had made with them.6 The Department's theory, which is implicit (though unstated) in its litigating position, is that Bicon must have understated the subcontractors' payrolls because: (a) during the audits following the first and second renewal periods, Bridgefield picked up additional exposure, which it attributed to uninsured subcontractors; and (b) no other explanation accounts for the large discrepancies between the estimated premiums and the audited premiums.7 The flaw in this theory is that the incriminating fact which the Department urges be inferred (material understatement of payroll) is plainly not the only possible cause of the known effect (audit findings relating to uninsured subcontractors). Without being creative, the following possibilities, all of which are reasonable and consistent with the proved facts of this case, spring readily to mind: Estimating its anticipated exposures, Bicon told Bridgefield that it estimated its payments to uninsured subcontractors would be $X, and in fact, Bicon had estimated that it would pay uninsured subcontractors $Y——a materially greater sum than $X. Or: in fact, Bicon truly had estimated that its payments to uninsured subcontractors would total $X, but its estimate turned out to be low, and the actual aggregate of such payments was $Y, a materially greater sum. Bicon said nothing to Bridgefield about its payments to uninsured subcontractors until the audits because: prior to the audits, Bridgefield had never asked Bicon to disclose such information. Or: prior to the audits, Bridgefield had asked Bicon an ambiguous question about its estimated payroll exposures, which Bicon reasonably had understood as not inquiring about payments to uninsured subcontractors. Or: although, prior to the audits, Bridgefield had asked Bicon a clear and unambiguous question calling for Bicon to disclose such information, Bicon had remained silent on the issue. Bicon told Bridgefield about its payments to uninsured subcontractors, but Bridgefield, which knew that the actual amount of such exposure would be included at audit in determining the final premium, declined to use the information in calculating the estimated premium. The Department failed to prove, by any standard, that something like 1.a. occurred in fact. Further, the Department failed to exclude numerous hypotheses of innocence——such as 2.a., 2.b., and 3.——which are reasonable and consistent with the evidence. Accordingly, the undersigned declines to infer, from the proved facts, that, in its communications with Bridgefield, (the existence of which must be inferred, for there is no direct evidence of such communications), Bicon materially understated either the amounts of its subcontractors' payrolls or the amounts Bicon paid or owed to its subcontractors for the work they performed for Bicon's customers pursuant to subcontracts. Consequently, it is determined, as a matter of ultimate fact, that Bicon is not guilty of materially understating payroll——and hence failing to secure payment of workers' compensation——as charged under Section 440.107(2), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order rescinding the Stop Work Order and exonerating Bicon of the charge of failing to secure the payment of workers' compensation by materially understating payroll. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006.
The Issue Whether Respondent, Sarasota County Government (County), violated section 760.10, Florida Statutes (2017),1 by discriminating against Petitioner, Lavender Suarez, based on her race (African-American) and gender (female), 1 Unless otherwise indicated, all statutory and administrative rule references are to the 2017 codifications of the Florida Statutes and Florida Administrative Code. when it terminated her employment; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner is an African-American female who started her employment as a Manager II/Fiscal Manager with the Sarasota County Area Transit (SCAT) on November 30, 2015. She remained in that position until she was asked to resign in lieu of termination on August 17, 2017. Respondent, the County, oversees SCAT. SCAT provides public transportation services within Sarasota County via a fixed route bus system. SCAT has approximately 247 employees including administrative staff, bus operators, maintenance workers, and managerial staff. Rocky Burke, a white male, was the Director of SCAT during Petitioner's employment.3 Petitioner reported directly to Mr. Burke. In addition, during the relevant time period, there were four other managers who reported to Mr. Burke: Paratransit Operations Manager Gary Speidel, Fixed Route Operations Manager Ricardo Ferris, Transit Planning Manager Chris DeAnnuntis, and Fleet Maintenance Manager Jon Russo. Except for Ms. Suarez, all the managers were white males. The County's Human Resources Procedures and Guidelines Manual (P&G) provides the following policies regarding performance issues: Chapter III: Compensation and Status * * * (c) Performance appraisals shall be conducted as follows: 3 Mr. Burke resigned on September 5, 2017, less than a month after Petitioner left the County. * * * 3. Performance Improvement Plan (PIP) A performance Improvement Plan appraisal may be conducted at any time at the discretion of the immediate supervisor. Moreover, when an employee's performance is observed as needing improvement, the supervisor should conduct a performance appraisal for the employee as soon as possible. * * * Chapter IV: Discipline 4.03 Corrective Counseling Whenever an employee's performance or conduct falls below an acceptable level, the supervisor should inform the employee promptly of the deficiency and provide counsel, instruction and assistance to the employee. Michele Green, who oversees employee relations for the County, testified that—with the exception of theft or something extremely serious warranting immediate termination—the County makes every effort to advise employees in advance of shortcomings so they have an opportunity to improve prior to termination. The County, she explained, trains supervisors to counsel and coach their employees to help them succeed. MS. SUAREZ' JOB HISTORY AND DUTIES As SCAT's Fiscal Manager, Ms. Suarez was responsible for providing fiscal and budgetary project management, including grants analysis and oversight of federal and state financial requirements for compliance. She also managed a staff of four direct reports including Mary Goldaraz, who served as a Procurement and Contracts Coordinator; and Barbara Garrett, who served as an Information Technology (IT) professional. The unrefuted testimony establishes Mr. Burke treated Ms. Suarez differently than he treated the four white male managers. For example, Mr. Burke would come around Petitioner's desk several times a day asking what she was doing and monitoring her whereabouts; he did not do that with the other managers. Mr. Burke also had regular one-on-one meetings with the white male managers but did not have regular meetings with Ms. Suarez. If Ms. Suarez tried to meet with him, he would brush her off and tell her everything was fine. Whereas Mr. Burke sought input from the white male managers, if Ms. Suarez made a suggestion or recommendation he would dismiss it or not respond. Ms. Suarez also noted Mr. Burke allowed one of the other managers, Mr. Speidel, to belittle and berate her. Ms. Suarez testified she was afraid to go to Mr. Burke because she felt he would always take Mr. Speidel's side over hers. Ms. Goldaraz regularly heard Mr. Speidel yelling at Ms. Suarez and experienced this behavior from him herself. She felt that although this was unprofessional behavior, Mr. Burke allowed it in the workplace because he was grooming Mr. Speidel for the position of Director. At one point, Petitioner had a vacant position she needed to fill in her staff. Ms. Suarez wanted to hire a candidate who had been unanimously recommended by a selection committee. Mr. Burke refused to hire that candidate without any explanation. The candidate was an African American female. In contrast, when filling another position, the selection committee's recommended candidate had a felony conviction and other issues that became apparent after a background check. Mr. Burke told Ms. Suarez to hire that candidate despite his history. That candidate was a white male. Ms. Suarez testified about another incident where she was in her office with the door closed with a black supervisor who worked at SCAT. When Mr. Burke found out, he questioned Ms. Suarez and asked her what they were discussing. To her knowledge, he had never done that with any of the male managers who met with employees in their offices behind closed doors. Ms. Goldaraz corroborated Petitioner's testimony regarding Mr. Burke's negative attitude toward Petitioner, and women in general. Ms. Goldaraz worked next to Ms. Suarez' office and regularly witnessed the interactions between Mr. Burke and Ms. Suarez. She testified that Mr. Burke treated Ms. Suarez differently than he did the male managers. He discounted her suggestions and implemented a "good ole boy system" where he met regularly with the male managers, but not with Ms. Suarez. After Ms. Suarez was forced to resign, Ms. Goldaraz took her position. Ms. Goldaraz testified Mr. Burke was dismissive with her as well. He would not give her credit for her ideas and suggestions, but would give the male managers credit. The County put on no evidence contradicting the version of events or description of Mr. Burke's behavior credibly presented by Ms. Suarez and Ms. Goldaraz. LIBERTY PASS PROGRAM AND AUDITS Ms. Suarez also had responsibilities related to the Liberty Pass Program (Liberty Pass), which distributed 30-day transit passes for riders at discounted rates. The Liberty passes were offered by SCAT to low-income and/or homeless riders who provided appropriate documentation. The documentation to assess eligibility for Liberty Pass could be submitted at either the SCAT Administrative Office or one of 19 third-party agencies approved to distribute Liberty passes. Liberty Pass had its challenges. In May 2015, before Petitioner began working for the County, the County's Board of County Commissioners (BCC), authorized SCAT to discontinue Liberty Pass. The Federal Transit Administration required SCAT to perform a Fare Equity Analysis and SCAT hired a consultant to assess the impact of changes in the program on certain minority and low income populations. In September 2016, the County issued an audit report on SCAT's administration of Liberty Pass. The scope of this audit was from October 2014 (before Ms. Suarez was hired at the County) to June 8, 2016. The audit found there were problems with riders obtaining duplicate Liberty passes and with the third-party agencies not obtaining the necessary information before enrolling riders for the program. Eventually, SCAT eliminated the third- party distributors, and thereafter a Liberty pass could only be obtained at the SCAT headquarters or the County Health Department. According to Petitioner's yearly evaluation for 2016, given in January 2017, Mr. Burke rated her as either "Successful" or "Exceeds Expectations" in all five relevant categories. Related to Liberty Pass, the evaluation listed as accomplishments: (1) successfully completing the Liberty Pass Audit, (2) obtaining approval from the BCC in September 2016 for a "Liberty Pass Increase," and (3) collaborating with the consultant to finalize the Liberty Pass Fare Equity Analysis. Mr. Burke did not give Ms. Suarez the possible rating of "Needs Improvement," nor did he provide her with any negative or constructive comments.4 In response to the issues raised in the Liberty Pass Audit, Ms. Suarez had instructed Ms. Garrett, the IT professional on her staff, to prepare a spreadsheet to track the issuance of the Liberty passes. It is unclear whether Ms. Garrett completed the spreadsheet, but at some point Mr. Burke transferred Ms. Garrett (along with her IT position) and the spreadsheet tracking project from Ms. Suarez' oversight to Mr. Speidel. This spreadsheet was never submitted to the auditor. After the initial Liberty Pass Audit, Ms. Suarez was meeting regularly with Deborah Martin, the auditor, regarding the Liberty Pass issues, and other SCAT audits related to Bus Operations Cash Handling and Bus Pass Inventory and Reviews. At no time did Ms. Martin or anyone complain to Petitioner that she was not providing adequate information or that she was not addressing the issues for which she was responsible. There was no 4 Ms. Suarez also did not receive the other possible ratings of "Outstanding" (the highest rating), or "Unsatisfactory" (the lowest rating). evidence Ms. Martin or anyone else complained about Ms. Suarez' work on the SCAT audits. On August 15, 2017, Mr. Burke asked Ms. Suarez if she would resign from the Fiscal Manager position and take a lesser position. Ms. Suarez was surprised, and asked Mr. Burke for something specific in writing regarding her performance. Mr. Burke refused to put anything in writing. When she asked if his request was related to the audits, Mr. Burke stated it was not. Rather, he told her that other departments had lost confidence in her and he had as well. Two days later, on August 17, 2017, Mr. Burke advised Petitioner that if she did not resign she would be terminated. Under duress, Ms. Suarez signed and submitted a resignation letter that day. At the time of her forced resignation, Ms. Suarez was actively working on issues related to the audits. Ms. Goldaraz took over as the Fiscal Manager and completed the work related to the audits. Ms. Goldaraz was able to complete all the outstanding work that needed to be done. She stated there were a few standard things that needed to be finished up and she was able to do them quickly. There was nothing "major" left on the audit. Ms. Goldaraz "met with the auditors … and kind of wrapped it up. It wasn't really a huge deal." At the hearing, the County relied on an untitled spreadsheet and a follow-up audit report as grounds for Petitioner's termination.5 The spreadsheet purportedly was a list of audits, with columns for "Opportunities for Improvement," "Management Responses," and "Updated Responses." The spreadsheet had some portions highlighted. There was no explanation by the County as to who prepared the spreadsheet, whether it was accurate, whether it was the most recent version, what its purpose was, or why it was 5 The copy of the spreadsheet admitted into evidence is illegible due to its miniscule type and font. relevant. The undersigned finds the spreadsheet wholly unreliably and not credible evidence. The County also relies on a follow-up audit report issued December 2017, months after Ms. Suarez and Mr. Burke left the County's employment. Although this follow-up audit has numerous outstanding issues that remained "open," there is no proof Petitioner was responsible for the open items. Robert Lewis was the interim director of SCAT from October 2017 to January 4, 2020, coming in after Mr. Burke and Ms. Suarez had left. He did not work with either of them. Although he was aware of the audit, Mr. Lewis had no personal knowledge of SCAT operations prior to October 17, 2017. Furthermore, he had no knowledge of what had been provided to the auditor by SCAT, or how the SCAT audits were conducted. Mr. Lewis could not testify which department was responsible for the open items in the follow-up audit report, and admitted he was not aware of which manager was assigned to which open item. Mr. Lewis was not aware of what items may have been left open by the white male managers. Given there was no explanation of the December 2017 follow-up audit report, the undersigned finds it unreliable and not credible evidence. Because she was regularly meeting with the auditor, Ms. Suarez had personal knowledge of some of the open items listed in the follow-up audit report, even though she was not familiar with the report itself. The follow-up audit listed four open items and two partially open items. She was responsible for two of the items. The first dealt with managing the fare money on a daily basis. She testified she implemented a policy addressing this issue as there was not an existing policy when she was hired. The second open item for which she was responsible related to cash variances. Ms. Suarez testified she had finalized the reports reconciling the daily deposits; prior to her coming to SCAT, they were not done daily. She could not testify as to why these items remained listed as open or what had happened after her departure when Ms. Goldaraz began working with the auditors. The remaining open and partially open items related to "vault access" and "monitoring." Ms. Suarez testified she was not responsible for the vault or the security system that monitors the lock boxes and vault. Rather, these were items that were the responsibility of the maintenance and the bus operations departments, which were overseen by Mr. Ferris and Mr. Russo. Even though these two managers had open items in the follow-up audit report, they were not terminated. Ms. Suarez testified she received no indication from Mr. Burke, the auditor, or anyone else that there were problems with her handling of these open items. Prior to August 15, 2017, Mr. Burke gave her no indication he was disappointed in her performance or that she needed to improve or change. Similarly, Ms. Goldaraz' unrefuted testimony was that Ms. Suarez was totally capable as the Fiscal Manager, worked hard, and was very dedicated. There was no evidence of actual or perceived deficiencies in Ms. Suarez' performance. MR. DEANNUNTIS AS A COMPARATOR Like Petitioner, Mr. DeAnnuntis held the position of Manager II and reported to Mr. Burke. Mr. DeAnnuntis was hired at SCAT a few months before Petitioner was hired, at a similar (albeit slightly higher) salary as Petitioner. Mr. DeAnnuntis also managed a staff of three positions. Although he did not have the identical duties of Petitioner, as the Manager of Transit Planning he had similar compliance duties as he was responsible for SCAT's planning budget and compliance with federal, regional, and local transportation planning requirements. On December 29, 2016, Mr. DeAnnuntis was provided a two-page document titled "Performance Review Comments" (comments) from Mr. Burke. These comments outlined specific areas in which Mr. DeAnnuntis was to improve and suggestions as to how to make these improvements. Mr. Burke suggested that he and Mr. DeAnnuntis have daily in-person meetings. Mr. Burke also provided a list of outside resources to help Mr. DeAnnuntis. Ms. Suarez never received any similar comments from Mr. Burke. The comments document was not labeled a "Performance Improvement Plan" (PIP), nor did it set out a time frame for him to accomplish certain goals. It did not indicate that Mr. DeAnnuntis would suffer any repercussions if he did not take the advice given by Mr. Burke. As such, the undersigned does not find this document was a PIP. Rather the comments were consistent with those required by the County as described by Ms. Green and codified in P&G section 4.03 requiring supervisors counsel and coach an employee if his or her performance falls below an acceptable level. Almost three months after receiving the comments, on March 23, 2017, Mr. DeAnnuntis resigned. Unlike Ms. Suarez' forced resignation, there was no evidence Mr. DeAnnuntis was asked to resign after he was provided the comments or that his eventual resignation was in lieu of termination. Furthermore, the unrebutted evidence established no one had ever discussed poor performance or any other issues with Petitioner prior to her forced resignation. POST-RESIGNATION At the time of her forced resignation in lieu of termination, Ms. Suarez was earning a salary of approximately $71,427 a year at the County. After she left the County, Ms. Suarez immediately started applying for positions on various computer sites. While she attempted to find a permanent position, she worked for a temporary agency earning $10,557. On February 25, 2018, Ms. Suarez began permanent employment with Community Health, Inc., at a starting salary of $64,500. Her loss of earnings during the period from her forced resignation until she found this position was approximately $35,713. Ms. Suarez mitigated her damages. Subtracting out the amount she earned while temping, her interim losses total $25,156. Ms. Suarez received an annual increase a year later on February 4, 2019, raising her salary to approximately $68,275. Her annual salary for 2017 with the Respondent would have been $71,427, a difference of $6,927.18 annually for the first year (2018) and $3,152.64 annually thereafter.
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: Finding the Sarasota County Government discriminated against Lavender Suarez based on her gender; Awarding Petitioner $36,550 in back pay; and Awarding reasonable attorney's fees as part of the costs. DONE AND ENTERED this 15th day of July, 2020, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 15th day of July, 2020. COPIES FURNISHED: Dusty Firm Aker, Esquire Aker Law Firm, P.A. 240 South Pineapple Avenue, Suite 803 Sarasota, Florida 34236 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Maria D. Korn, Esquire Sarasota County Office of the County Attorney 1660 Ringling Boulevard, 2nd Floor Sarasota, Florida 34236 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue Whether Respondent, a pari-mutuel wagering occupational licensing holder, committed the offenses alleged in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent held pari-mutuel wagering license number 0680747-1081. Prior to November 14, 1994, Kenneth Manness, a blacksmith who does business as Better Hooves, Inc., provided services and supplies at the request of Respondent for horses which Respondent kept and raced on the grounds of the Pompano Park Harness Track during the 1994 meet. Mr. Manness, d/b/a Better Hooves, Inc., made repeated demands for Respondent to pay the bills that had been submitted to him for these services and supplies. Respondent failed to pay this debt. This debt was for services and supplies that directly relate to racing at a pari-mutuel facility within the State of Florida. Mr. Manness, d/b/a Better Hooves, Inc., filed suit against Respondent based on this indebtedness in the County Court of Broward County, Florida where the proceeding was assigned Case Number CO-NO-94-001685. On November 14, 1994, a default judgment was entered against Respondent in the County Court proceeding. The Court found that Respondent was indebted to Mr. Manness, d/b/a Better Hooves, Inc., in the principal amount of $1,332.30 and ordered Respondent to pay that amount plus costs in the amount of $115.00, for a total of $1,437.30. Interest was to accrue at the rate of 12 percent per annum. As of the date of the formal hearing, Respondent had paid none of this indebtedness.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Respondent's pari-mutuel wagering occupational license be revoked. It is further recommended that Respondent be given leave to apply for licensure after he submits proof that the judgment described in this Recommended Order has been fully satisfied. DONE AND ENTERED this 30th day of July, 1996, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1996. COPIES FURNISHED: Thomas W. Darby, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Mr. Claude D. Richards 10 Parkwood Road Westbury, New York 11590 Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
