The Issue Whether respondent should grant petitioner's application for licensure as a real estate salesman?
Findings Of Fact At the time and place set for hearing petitioner failed to appear in person or otherwise, and proved no facts in support of his application.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for license as a real estate salesman. DONE and ENTERED this 12th day of July, 1990, 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 12th day of June, 1990. COPIES FURNISHED: Darlene F. Keller Division Director Division of Real Estate 400 West Robinson Street Post Office Box 1900 Orlando, FL 32801 Kenneth Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Manuel E. Oliver, Esquire Assistant Attorney General Office of the Attorney General 400 West Robinson Street Orlando, FL 32801 Frank J. Norris 1038 Arco Road, #4 Jacksonville, FL 32211
The Issue Whether Respondent's License as a general contractor should be revoked for alleged violation of Sections 468.112(2)(a) & (c), Florida Statutes. Respondent was not present at the hearing although notice of hearing had been provided him under date of February 17, 1976. Accordingly, the hearing was conducted as an uncontested proceeding.
Findings Of Fact E.J. Lamberth, III, holds general contractor certification number 006734. Addition Builders, Inc., Miami, Florida was registered as a certified general contractor on July 16, 1974 with Respondent as the qualifying individual thereon (Exhibits 6 & 7). On August 16, 1975, Respondent applied for a building permit from Metropolitan Dade County, Florida, for the purpose of adding a den to the home of Mr. and Mrs. S.A. Cohen, 7525 Southwest 77nd Court, Miami, Florida. The contractor for the job was listed as Addition Builders, Inc. Permit Number BS15057 was issued on August 19, 1974 (Exhibit 1.) On August 6, 1974, Respondent applied for a building permit from the City of North Miami, Florida for the addition of a bedroom and bath at premises owned by Mr. & Mrs. Michael J. Retter, 416 N.W. Opa Loka Boulevard, North Miami, Florida which showed Addition Builders, Inc. as the contractor. Permit A2860 was issued on August 20, 1974 (Composite Exhibit 2.) The work to be performed as set forth in the above permits was pursuant to contracts between the owners and Addition Builders, Inc. as contractor (Exhibits 5 & 8.) Acting upon complaints filed by the owners of the property involved in the above two contracts, Mr. William F. McDonald, a field investigator for Petitioner, met with the Respondent on February 21, 1975. In a voluntary statement made to Mr. McDonald and Mr. James Brooks, another investigator, at that time, Respondent admitted that he had not actually supervised either job but had depended upon Addition's superintendent to do so, and that he became the qualifying general contractor for Addition as a result of a newspaper advertisement. As part of his investigation, Mr. McDonald established that Respondent had been employed as a recreation supervisor by Metropolitan Dade County since January 9, 1963. McDonald also visited both of the homes in question and observed that the work under the contract was incomplete in February, 1975 (Testimony of McDonald, Exhibits 4, 5 & 9.) Respondent was never seen by owner Retter during the course of the work. Approximately 60 percent of the work was completed by Addition on this job, but the owner was obliged to complete the remainder himself (Testimony of Michael Retter.) Respondent advised Addition by letter that, effective December 24, 1974, he was resigning as general contractor for the firm. On February 20, 1975, the building official of the City of North Miami wrote to Respondent advising that they had received complaints on the stoppage of work at the Retter residence and requesting expedition of completion. Respondent answered that he had disassociated himself from Addition Builders, Inc. (Testimony of Lindblad, Composite Exhibit 3A & B.)
Recommendation That the certification as a general contractor of E.J. Lamberth, III, Number 0006734, be revoked. DONE and ENTERED this 5th day of April, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida COPIES FURNISHED: Barry Sinoff, Esquire Blackstone Building Suite 1010 Jacksonville, Florida 32202 Mr. E.J. Lamberth, III Addition Builders 7251 N.E. 2nd Avenue Miami, Florida 33138
The Issue The issue for determination is whether the Respondent should declare the Petitioner "non-responsible" for a period of one year; and, accordingly, ineligible to bid on any Respondent contract or perform as a material supplier, subcontractor, or consultant with regard to any Respondent contract for that period of time.
Findings Of Fact On July 30, 2002, the Respondent sent the Petitioner a Notice of Intent to declare the Petitioner non-responsible to bid on or be connected in any way for a period of one year with any contract issued by the Respondent. Reasons for the intended action, as cited in the Notice were: 1) numerous incidents involving unprofessional behavior on the part of the Petitioner's president in his relations with the Respondent's employees in the course of performing contractual work for the Respondent; 2) the attempt by the Petitioner's president to avoid contractual responsibility in a previous agreement with the Respondent by insisting that the Respondent's employees perform functions allocated to the Petitioner by the agreement; 3) attempts by the Petitioner's president to dictate which of the Respondent's employees would oversee contracts involving the Petitioner; 4) attempts by the Petitioner's president to remove the Respondent's employees from supervision of contracts involving the Petitioner when the employees disagreed with him; 5) substandard performance by the Petitioner as evidenced by contractor field performance scores on contracts with the Respondent; and 6) the attempts of the Petitioner's president to receive payment from the Respondent at the rate paid for more lucrative "spot" applications as opposed to less highly paid "strip" applications when the contractual arrangement provided that the Respondent would determine the applicable rate. This activity by the Petitioner resulted in an unnecessary administrative burden to the Respondent's contract manager. The Petitioner's president has threatened, intimidated, and displayed unprofessional behavior toward Respondent's employees. By letter dated October 1, 2001, he called the Respondent's employees "incompetent" and avowed that "this is like letting the thief watch the vault or putting the dog inside the chicken pen, at best, letting the blind lead the blind. Please Lord, help their ignorance." By letter to the Respondent dated May 3, 2002, the Petitioner's president accused the Respondent's employees of going "to the very depths of evil or unfair competition-selective enforcement." By letter to the Respondent dated May 20, 2002, the Petitioner's president accused the Respondent's personnel of "evil and corrupt abuse of power by a handful of revengeful men" and avowed that the Respondent selectively enforced its contracts and inflicted evil. Several letters continued in the same vein from the Petitioner's president to the Respondent over ensuing months in which the Petitioner's president referred to various of the Respondent's employees as stupid, incompetent, slothful, unknowledgeable, inexperienced, ignorant, ungodly, and wicked. On July 3, 2002, the Petitioner's president called the Respondent's maintenance yard and spoke with the Respondent's employees, subjecting them to a tirade of extreme profanity, accusations, and threats. On another occasion, the Petitioner's president told the Respondent's employees that he would resolve a problem with a Respondent's employee with something Petitioner's president had under his truck seat. The involved Respondent's employees assumed that the Petitioner's president was referencing a weapon under the seat of the truck. In the course of a July 11, 2002, meeting, the Petitioner's president became loud and abusive to the extent that he could be heard through the walls of the Respondent's facility where the meeting was conducted. Effected Respondent's employees were intimated by the Petitioner's president and took his various threats and harangues of retaliation seriously. As established by the conduct of the Petitioner's president at the final hearing, where he frequently referenced a recent stroke as the reason for his emotional manner, the Petitioner's president presents as unstable and threatening to others who disagree with him. The Petitioner's president attempted to avoid the Petitioner's responsibilities under contracts with the Respondent, seeking to have the Respondent's employees tell the Petitioner's employees what to do on the job in the performance of contractual duties. Such an action by the Respondent's employees was appropriately considered by them to be beyond the scope of their responsibilities, since the agreements between the Petitioner and the Respondent basically specified that the Respondent determined the scope of work to be done while the Petitioner determined the methods to accomplish the specified tasks. Supervision of a contractor's employees is the duty of the contractor, not the Respondent. The Petitioner's contractor field performance scores on Respondent contracts E2E47 and E2E27 were 48 and 51, respectively, well below the Respondent standards of acceptability that begin with a minimum score of 70 out of a possible 100 points. The scores were merited based on the Petitioner's failure to timely clean up tree trimmings, tree limbs, rubble and debris near roadways where such trash presented potential safety hazards to the motoring public. On Respondent contract E2D95, the Petitioner's president knew that the scope of work involved spraying herbicide on a "spot" basis and a "strip" basis with the Respondent to determine which type would be applicable to each particular work order it issued to the Petitioner under the contract. Despite these requirements of the contract, the Petitioner's president attempted to receive payment for the "spot" or higher-priced application when compliance with contractual provisions required that Petitioner accept payment at the lesser rate for "strip" application. By not complying with the contract in this respect, the Petitioner's president created unnecessary administrative burdens for the Respondent's contract manager.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a final order be entered finding the Petitioner to be non-responsible due to violations of Section 337.16(2), Florida Statutes, and Rule 14-22.0141, Florida Administrative Code. DONE AND ENTERED this 11th day of March, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 11th day of March, 2003. COPIES FURNISHED: Barbara G. Hines, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0458 Larry Holley Larry Holley Tree and Lawn Spraying, Inc. Route 11, Box 588 Lake City, Florida 32024 Angela T. Miller, Esquire Department of Transportation 1109 South Marion Avenue Mail Stop 2008 Lake City, Florida 32025-5874 James C. Myers, Clerk of the Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450
Findings Of Fact The Department of Transportation (DOT), the Respondent herein, is an agency of the State of Florida charged with the duty of certifying Disadvantaged Business Enterprises (DBE). DBEs, by attaining that status, are accorded the opportunity of participating in a certain percentage of contracts and construction contract monies set aside exclusively for DBEs under the statutory and regulatory authority cited below. Thus attaining DBE status allows a "small business concern" owned and controlled by minorities to compete for state contracts and to grow as a viable business in a more favorable competitive climate, ultimately becoming better able to compete with all businesses which seek public contracts. W.R. Johnson, Inc., is a small business concern, having annual gross receipts not exceeding $14 million for the fiscal years ending September 30, 1986, and September 30, 1987. There is no dispute that it qualifies as "small business concern," which is a necessary element of establishing entitlement to Disadvantaged Business Enterprise status. W.R. Johnson, Inc., is a construction company engaged in all types of commercial and public construction jobs. It is undisputed that Terri Johnson Nelson and Dorothy V. Johnson are socially and economically disadvantaged individuals (women) as that term is defined in Chapter 14-78, Florida Administrative Code. Fifty-one percent of the voting stock of W.R. Johnson, Inc., is owned by Terri Johnson Nelson and Dorothy V. Johnson. The preferred stock issued in return for capital contributions to the business, at its inception, is held by Terri Nelson's father, William R. Johnson. That preferred stock carries no voting rights, however. The board of directors is composed of Terri Johnson Nelson and Dorothy V. Johnson, as well as William R. Johnson. A majority of the board of directors is thus made up of economically and socially disadvantaged individuals. Terri Johnson Nelson is president of the corporation and chairman of the board of directors. Dorothy V. Johnson is secretary/treasurer of W.R. Johnson, Inc., and William R. Johnson is vice president. William R. Johnson is a licensed general contractor and formerly was an owner of Martin-Johnson, Inc. He was a 49 percent owner of that corporation and was engaged, with that corporation, in the general contracting, construction business. William R. Johnson's daughter, Terri Johnson Nelson, had been an employee of that corporation. She had no ownership in Martin-Johnson, Inc. Sometime in 1985 or shortly before, Martin-Johnson, Inc., was dissolved, Mr. Johnson received in that dissolution, a substantial amount of funds represented by his 49 percent ownership of that corporation. He then organized W.R. Johnson, Inc., the petitioner corporation in 1985. He was the sole initial director and board chairman at the organizational meeting, and the sole incorporator. Shortly after its incorporation, however, the company issued its first common stock and that first issuance of stock was conveyed in the amount of 49 percent to Mr. Johnson, 49 percent to his daughter Terri Johnson Nelson and 2 percent to his wife, Dorothy Johnson, the mother of Terri Nelson. The company at that same time issued non-voting, preferred stock in the amount of some 800 shares valued at $400,000 to William R. Johnson. Additional shares of preferred stock were issued to Mr. Johnson in return for additional investment capital of $80,000 in July of 1988. This preferred stock was issued to Mr. Johnson in return for his investing the capital funds in the new corporation which he had received from the dissolution of the preexisting corporation, Martin-Johnson, Inc. That preferred stock carried no voting rights, however. The majority of the common stock, which carries voting rights, is held by the female members of the board of directors. The issuance of the preferred stock, in return for the large amount of capital contributed by William R. Johnson, was done so that Mr. Johnson's daughter could acquire her shares of common stock, with the voting power attached, at a price which she could afford. She acquired her shares of common stock, amounting to a 49 percent ownership of the company, in exchange for $20,000 capital she paid into the corporation. The $20,000 was a gift from her father and mother. The intent behind this arrangement on the part of Mr. Johnson was that his daughter have, along with his wife, controlling ownership and voting power in the company and substantial degree of management and control of its operations. Put simply, he wanted to help his daughter have her own business. The contractor's license of William R. Johnson has been used to "qualify" the corporation with the Construction Industry Licensing Board. Terri Nelson has passed the State of Florida General Contractor's Exam (on her first attempt), and an application was pending at the time of the hearing to use her license to qualify the corporation as a general contractor with the Construction Industry Licensing Board. The corporation leases its office space from William R. Johnson, in a building which the corporation built for him. The lease is a written one and provides the normal protections for the corporation as a tenant, as well as a $2,000 per month income to Mr. Johnson. There is no evidence to indicate that it is other than an "arm's length" lease arrangement, nor that the landlord, Mr. Johnson, exercises any degree of control over the affairs and operations of the Petitioner corporation merely because he is the landlord. It is also true that William R. Johnson co-purchased a Chevrolet pickup truck along with W.R. Johnson, Inc., the Petitioner corporation, and that the company's occupational licenses from Santa Rosa County and Escambia County are issued in the name of "William R. Johnson d/b/a W.R. Johnson, Inc." Finally, it is also true that Terri Johnson Nelson resides in her father's home presently. That residence is temporary, however, and is due only to the fact that Mrs. Nelson and her husband are in the process of moving from Foley, Alabama, to Pensacola. None of these last mentioned facts demonstrate that William R. Johnson is, in fact, in control of the management, policies or operations of W.R. Johnson, Inc., or occupies, in any way, a superior decision making position over the management authority of the minority persons who are the controlling owners. In that connection, in addition to being a certified general contractor with a statewide license, Terri Nelson has a B.S. Degree in building construction from Auburn University. She also has approximately five years construction experience, in addition to being the president and chairman of the board of directors of the Petitioner corporation. She is actively engaged in management and control of its operations, including participating in estimating and project managing duties. She has played a pivotal role in decisions concerning which projects to bid on, what prices to charge, determining and allocating costs, and decisions concerning what profit margin should be incorporated in bids to be submitted for projects. She has authority to and makes pricing decisions, has prepared all submittals for architects, manages labor crews, both formerly, as an employee of the predecessor corporation, and as an officer and manager of the Petitioner corporation. In this capacity, she has also exercised her authority as an officer in charge of hiring and terminating employees and otherwise managing payroll functions. She coordinates material deliveries and contracts with and otherwise retains and supervises subcontractors, materialmen and laborers. She recently has had experience in supervising and coordinating all field operations in the construction of an office complex for the United States government at Eglin Air Force Base, a contract valued at approximately $6 million. Dorothy V. Johnson has a degree in accounting and long experience handling bookkeeping and financial transactions for the family construction business. She handles all bookkeeping and financial transactions and operations for W.R. Johnson, Inc., the Petitioner. She has approximately ten years experience. Decisions regarding the operation, management and policy of the company are made by the three directors with a vote being taken after the matters at issue are discussed. The majority vote rules and determines what decisions are made and how they are implemented. Mrs. Nelson's father has no authority legally, or otherwise, to control the way she votes her stock nor does he attempt to tell her how to vote her stock, and the same is true of Dorothy Johnson's voting power. The two women owners have no restriction on the manner in which they vote their majority common stock ownership, nor in the manner in which they exercise their votes as directors of the corporation, by W.R. Johnson or any other person or entity. There is no related business entity or person exercising control or ownership over the Petitioner corporation. Terri Johnson Nelson's demonstration that, as chair an of the board of directors and as president of the Petitioner corporation, she has authority to make major decisions and direct the affairs of the corporation, both operationally and financially, is borne out by the testimony of Johnny Bradley, a masonry contractor. He has dealt with W.R. Johnson, Inc. since it was formed and deals primarily Mrs. Nelson regarding all phase of masonry work on the corporation's jobs. He finds that her decisions are not overruled by any other manager of the corporation and would continue to deal with her even if William R. Johnson were not associated with the company. The same considerations were true of Dan Henderson, owner of an engineering and testing firm which customarily deals with W.R. Johnson, Inc. He has primarily dealt with Mrs. Nelson regarding jobs his firm has undertaken for W.R. Johnson, Inc., for the last five years. He finds her very knowledgeable about construction and will continue to deal with her and her corporation even if her father is not associated with it. Elige Palmer owns Sunbelt Equipment and Rental Company. He supplies construction equipment on a rental basis to W.R. Johnson, Inc., and also repairs the corporation's construction equipment. He has primarily dealt with Terri Nelson regarding all business dealings his firm has had with the Petitioner corporation and would continue to deal with her even if W.R. Johnson were not associated with the Petitioner corporation. Joseph Whitten of Sherman International Corporation sells concrete, masonry and waterproofing supplies and products to the Petitioner corporation. He also has dealt primarily with Terri Nelson and finds her one of the most competent estimators and project managers that he deals with in his sales area. He would continue to deal with her even were her father not associated with the company. This testimony in turn is corroborated by letters admitted into evidence (as corroborative hearsay only), pursuant to Section 120.58, Florida Statutes. These letters corroborate the demonstration by these witnesses and Terri Nelson herself that he is primarily responsible for management and control of the operations of the Petitioner corporation, together with her mother, Dorothy Johnson, the financial operations manager. William R. Johnson is vice president of the corporation and primarily works as an estimator and project manager, as well as handling claims involving the corporation. He participates in solving everyday management problems, but has no authority to overrule the decisions made by Mrs. Johnson and Terri Nelson as majority owners of the corporation and as majority members of the board of directors. Thus, Terri Nelson and Dorothy Johnson have been shown to possess the power to direct the management, policies and operations of the Petitioner corporation, as well as the power to make day-to-day major business decisions concerning the firm's management. Their discretion in this regard is not subject to formal or informal restrictions which would vary the managerial discretion customarily placed in the officers and majority of the board of directors of such business entities in the construction industry. The ownership and control exercised by these two women over the operations of the Petitioner are real, substantial, and continuing, and not merely pro forma.
Recommendation In consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered certifying W.R. Johnson, Inc. as a disadvantaged business enterprise. DONE and ORDERED this 26th day of May, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 26th day of May, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5238 Petitioner's Proposed Findings of Fact All of Petitioner's proposed findings of fact were accepted. Respondent's Proposed Findings of Fact 1-8 Accepted. 9-10 Accepted, but not dispositive of material issue. 11 Accepted, but subordinate to Hearing Officer's findings on this subject matter. 12-14 Accepted, but not dispositive of material issue. 15-16 Accepted. Rejected as not in accordance with the Hearing Officer's findings on this subject and with the evidence. Accepted. COPIES FURNISHED: Harry B. Stackhouse, Esquire 125 West Romano Street Post Office Box 13010 Pensacola, Florida 32573 Bruce A. Campbell, Esquire Florida Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman III, Esquire General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Kaye Henderson, Secretary Florida Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether respondent should deny petitioner's application for a real estate salesman's license because she set fire to her car in Holyoke, Massachusetts, in 1989?
Findings Of Fact The mother of four children, Carmen R. Torres lived in Springfield, Massachusetts, for the ten years preceding her move to the vicinity of Williston, Florida, on March 9, 1990, when her husband retired. A homemaker, she did not work outside the home. In 1989, she bought a brand new Renault Alliance, paying the dealer cash she borrowed elsewhere. Although the car was "no good," the dealer would not honor the warranty. Intending to destroy the car in order to collect insurance money, she threw a bottle of gasoline inside the car, then lit it. Afterwards she regretted what she had done, decided against submitting an insurance claim, cancelled the insurance policy that covered the car, and gave the car away for parts. She testified convincingly that she has never done anything remotely like this, before or since, and that she was "not the type of person to do that." T.13. Six months later she told a fireman she had set the car on fire, and the prosecutor's office was notified. Eventually petitioner was found guilty of a type of arson, fined $500 and required to perform community service, all of which she disclosed on her application for licensure. Since the move to Florida, petitioner has enjoyed an excellent reputation among her new neighbors. She and her husband have built a house on a 1.25 acre lot in Williston Highlands, "the nicest home . . . in [the] whole development." T.17. She and her husband keep the lawn "manicured." In Florida, she worked three months as a cashier for Kwik King. Since her brush with the law in Massachusetts, she has had no encounter with any law enforcement officer.
Recommendation It is, accordingly, RECOMMENDED: That respondent grant petitioner's application for licensure as a real estate agent. DONE and ENTERED this 30th day of October, 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 30th day of October, 1991. COPIES FURNISHED: Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Darlene F. Keller, Division Director Division of Real Estate 400 W. Robinson St. P.O. Box 1900 Orlando, FL 32802-1900 Carmen R. Torres P.O. Box 63 Morriston, FL 32668 Joselyn M. Price, Esquire Suite 107 South 400 W. Robinson Street Orlando, FL 32801
The Issue This matter was referred to the Division of Administrative Hearings by the Florida Commission on Human Relations to conduct a hearing regarding a Petition For Relief from an Unlawful Employment Practice filed by Petitioner against Respondent. The Petition For Relief alleges an unlawful employment practice under the Human Rights Act of 1977 in the form of Petitioner's discharge from employment as a Radio-Teletype Operator in December 1978 due to sexual discrimination. The Respondent answered the Petition and asserted that Petitioner was dismissed for legitimate, non-discriminatory reasons (failure to attain a satisfactory level of job performance) while a probationary employee. The Respondent further asserted that Petitioner had never attained permanent status with the Respondent. At the hearing, the parties completed the filing of a Pre- Hearing Stipulation and Supplement thereto and Petitioner's Amendment thereof, pursuant to an earlier order requiring a pre- hearing stipulation. By stipulation the parties agreed to change the style of this case to reflect the Respondent as shown above instead of the Florida Highway Patrol.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact: Petitioner was hired on April 13, 1978, as a Radio- Teletype Operator for the Miami Station of the Florida Highway Patrol, a division of the Respondent. Petitioner was hired on a provisional status for six months or until he passed the required examination, whichever occurred first. The examination was still being prepared when Petitioner was hired. Petitioner had prior experience as a wrecker dispatcher and in electronics. He had received an Associate of Arts degree in Criminal Justice in December 1977. His wages were $824 per month. Chief Operator S. K. Wallace, a male, was Petitioner's immediate supervisor and trainer. Effective May 1, 1978, Sergeant Gracey, a uniformed member of the Patrol, became Communications Officer for Troop E and was Wallace's supervisor. Captain Garris was the Troop Commander at time of hire. Petitioner identified three females and two males, other than himself and Wallace, who were employed as radio operators at Troop E. One male operator may have been employed by the Department of Transportation. On August 22, 1978, Petitioner passed his Radio-Teletype Operator I examination and received a score of 90. Passing score was 70. By memo of September 25, 1978, Petitioner was advised by Col. Beach that effective August 22, 1978, he was no longer provisional and was probationary for six months as a result of passing the examination. On August 7, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of satisfactory. The employee status was shown as probationary and the rating period was from April 19, 1978, to October 19, 1979, a period of 19 months. The rater was Chief Operator Wallace, who signed the rating on July 11, 1978. On July 20, 1978, Sergeant Gracey wrote a memo to Captain Garris wherein he requested a sixty-day extension of Petitioner's probationary period. Sergeant Gracey stated that he did not feel Petitioner had progressed to a level of competency commensurate with his length of service. The memo mentioned areas of deficiency and stated that Petitioner had been counseled regarding them and informed of the extension request. The memo accompanied the initial evaluation. Captain Garris signed the bottom of the memo, indicating his concurrence and stating that both he and Sergeant Gracey disagreed with the rater (wallace). on September 27, 1978, Petitioner signed an Employee Performance Evaluation with an overall rating of conditional. The rating period was from April 13, 1978, to October 13, 1978. Petitioner's performance was rated by Wallace on September 15, 1978, reviewed by Garris, and also initialed by Sergeant Gracey. The rater's comments noted deficiencies in Petitioner's reluctance to apply his knowledge and in always seeking help from others. It also mentioned his slowness. Petitioner checked a box indicating his desire to discuss the rating with his reviewers. Petitioner also spoke with both Captain Garris and Sergeant Gracey about this evaluation. On October 9, 1978, Col. Beach wrote a memo to Petitioner about the conditional evaluation and the Executive Director's approval of the request for extension of probation for three months, from October 13, 1978, through January 12, 1979. This memo also mentioned counseling from Petitioner's immediate supervisor to assist him in improving his performance. Petitioner was the subject of a third evaluation, for the period from September 15, 1978, to November 27, 1978. This rating was by Sergeant Gracey on November 13, 1978. It was reviewed by Captain Carmody who succeeded Captain Garris as the Troop Commander. This evaluation was not signed by Petitioner. Accompanying the third evaluation and referred to therein was correspondence dated December 4, 1978, from Sergeant Gracey constituting the rater's comments. In this memo, Sergeant Gracey recommended Petitioner's termination due to unsatisfactory performance. He indicated a counseling session with Petitioner on or about September 25, 1978, after the initial conditional rating, at which time Petitioner's weaknesses were explained. Sergeant Gracey wrote that he had advised Petitioner that his most serious problem was the inability to obtain information and disseminate it properly and that Petitioner often got information confused, requiring extra supervisory assistance. Sergeant Gracey described counseling for specific errors on October 11, 1978, and November 11, 1978, which mistakes were later repeated. He also mentioned Petitioner's failure to meet deadlines set by Wallace concerning Petitioner's uniform. Sergeant Gracey discussed frequent errors prohibiting Petitioner's assignment for the solitary (midnight) shift and problems with Petitioner's voice quality. Captain Carmody transmitted the second conditional evaluation along with Sergeant Gracey's letter to Col. Beach with the Captain's concurrence. The original submission was dated November 27, 1978, and was re-submitted with all attachments after December 4, 1978. Captain Carmody mentioned therein the counseling Petitioner had received with no appreciable improvement shown. By letter dated December 12, 1978, Petitioner was informed by Col. Beach, with the approval of Chester Blakemore as Executive Director, of his dismissal on December 15, 1978, based on conditional ratings while a probationary employee. The letter stated that since Petitioner lacked permanent status, he had no appeal rights to the Career Service Commission. Petitioner's subsequent attempt at an appeal to the Commission was rejected on that basis. During 1978, Chief Operator Wallace was not a very effective supervisor. For the rating period from September 1, 1977, through September 1, 1978, Wallace was rated conditional. Wallace demonstrated inadequate supervisory techniques, he lacked the respect of his subordinates, he failed to set a good example, and he lacked leadership. In general, Wallace was a weak supervisor. At all times material, Sergeant Gracey was aware of the quality of Wallace's supervision of the radio-teletype operators. During the period from January 1, 1978, to December 31, 1979, the radio-teletype operators employed by the Florida Highway Patrol consisted of 65 male employees and 34 female employees. During the same period there were more females in the applicant pool for radio-teletype operators, both on a statewide basis and in the Miami area. During the period in question there was no pattern of discrimination in favor of female operators or against male operators. When Sergeant Gracey became the Communications Officer on May 1, 1978, he sought to professionalize the operators and procedures. Gracey thought that Chief Operator Wallace was doing a poor job of supervising the operators and for that reason gave Wallace a conditional evaluation. Gracey disagreed with Wallace's initial evaluation of the Petitioner, but Gracey could not change the evaluation because Gracey was not the Petitioner's immediate supervisor. Gracey did, however, write a memo of July 20, 1978, stating his disagreement with Wallace's initial evaluation of the Petitioner, and Gracey also sought an extension of Petitioner's probationary period. Sergeant Gracey counseled with the Petitioner about his job performance on several occasions. In November of 1978 Gracey met with the Petitioner and told him that he (Gracey) was going to recommend that the Petitioner be dismissed. Sergeant Gracey did not direct Chief Operator Wallace to issue the first conditional rating of the Petitioner. Sergeant Gracey did not express a preference for female operators to either Wallace or the Petitioner. The Petitioner was recommended for termination solely because of his failure to achieve a satisfactory level of performance during his probationary period, as extended. The deficiencies in Petitioner's job performance are described in Sergeant Gracey's memo of December 4, 1978. These included the inability to properly disseminate information, that information was often confused, that specific mistakes were counseled but subsequently reoccurred, that the Petitioner failed to adhere to deadlines set by Wallace, and that he required close supervision, could not be left alone in the radio room, and had a nervous and irritating voice quality. Sergeant Gracey recommended the Petitioner's dismissal for the reasons summarized immediately above. The recommendation was approved by Gracey's superiors and the Petitioner was dismissed from his employment with the Florida Highway Patrol effective December 15, 1978.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Robert Hardison, Jr. DONE AND ORDERED this 28th day of August, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of August, 1986. COPIES FURNISHED: Mark A. Cullen, Esquire CULLEN 6 SZYMONIAK, P.A. 1030 Lake Avenue Lake Worth, Florida 33460 Judson M. Chapman Assistant General Counsel Department of Highway Safety and Motor vehicles Neil Kirkman Building Tallahassee, Florida 32301 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32301 Donald A. Griffin Executive Director Florida 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 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. In making these rulings and in finding the facts in this case, I have in many instances had to resolve direct conflicts in the testimony of opposing witnesses. In resolving conflicts between the testimony of the Petitioner and the testimony of witnesses called by the Respondent, I have generally accepted the testimony of the latter as more persuasive. In this regard, particular consideration has been given to the fact that some of the Petitioner's testimony is inconsistent and illogical. Consideration has also been given to the Petitioner's obvious interest in the outcome of the case. Yet another significant factor in weighing the conflicting testimony is that the testimony of Respondent's witnesses tended to be logical, corroborated by the documentary evidence, and convincing. Rulings on findings proposed by Petitioner Paragraph 1: Accepted as introductory material, but not as finding of fact. Paragraph 2: Accepted. Paragraph 3: Accepted with additional findings for accuracy. Paragraph 4: Accepted. Paragraphs 5 and 6: Accepted in substance with additional details in the interest of accuracy and clarity. Paragraph 7: Accepted. Paragraphs 8 and 9: Rejected as contrary to the greater weight of the evidence. Paragraph 10: Accepted. Paragraphs 11 and 12: Accepted in substance. Paragraph 13: First sentence of this paragraph rejected as not supported by persuasive competent substantial evidence. Remainder of paragraph rejected as constituting argument. Paragraph 14: Accepted. Paragraph 15: Rejected as contrary to the greater weight of the evidence. Paragraph 16: Rejected as contrary to the greater weight of the evidence. Although the statements the Petitioner attributes to Wallace were not specifically denied (they could not be denied by Wallace because he died several years before the hearing), they are inconsistent with other evidence and it is most unlikely that they were uttered or, if uttered, that they were uttered seriously. Paragraph 17: Consistent with the evidence, but rejected as irrelevant. Paragraph 18: First sentence of this paragraph is accepted. The remainder is rejected as contrary to the greater weight of the evidence. Paragraph 19: Accepted. Paragraph 20: Rejected as incorrect characterization of the evidence. Paragraphs 21 and 22: Consistent with the evidence but rejected as irrelevant. Rulings on findings proposed by Respondent Paragraphs 1, 2, 3, 4, 5, 6, and 7: Accepted. Paragraph 8: Rejected as irrelevant. The testimony about the statement attributed to the deceased Mr. Wallace is irrelevant both because it is unlikely that the statement was uttered, and even if uttered, it was erroneous. Paragraphs 9 and 10: Accepted. Paragraph 11: First sentence rejected because Petitioner's testimony in this regard is not persuasive. Second sentence is accepted in substance. Paragraphs 12, 13, 14, 15, and 16: Accepted. Paragraphs 17 and 18: Consistent with the evidence, but rejected as irrelevant. Paragraph 19: Rejected as unnecessary summary of testimony, most of which testimony is rejected as unpersuasive or as contrary to the greater weight of the evidence. Paragraph 20: Rejected for the most part as constituting a description of part of the evidence rather than a proposed finding. Accepted in part as a finding that Mr. Wallace was not a very effective supervisor at the time material to this case. Paragraphs 21, 22, 23, 24, 25, 26, and 27: Accepted in substance, although as stated these paragraphs constitute descriptions of the testimony rather than proposed findings of fact. It would greatly facilitate the efforts of hearing officers, agency heads, and courts if all proposed findings of fact were written in a form which constituted the ultimate finding sought by the proposing party. Proposed findings which constitute nothing more than summaries of the testimony pro and con are truly not very helpful to th~se who must recommend, decide, and review cases under Section 120.57(1), Florida Statutes.
Findings Of Fact The Respondent, Charles H. Butler, Jr., was for all periods relevant to this case a certified building contractor with the State of Florida, holding license number CB CA13872. It is officially recognized that on September 17, 1987, the administrative complaint that is the subject of this case was filed against Charles H. Butler, Jr. It is further officially recognized that the administrative complaint charges the Respondent with only two violations: Exhibiting "financial mismanagement, misconduct, or diversion, in violation of 489.129(1)(h) and (m)." Failing "to properly supervise the finances on said job, in violation of 489.129(1)(m), (j); 489.119; 489.105(4)." In April, 1986, Charles H. Butler, Jr., entered into a contract with Albert R. Harrelson to construct a commercial building for $144,000. R. Ex. 20, P. Ex. 6. Article 1 of the contract provides that "this contract includes by reference the following: 1) contract agreement form, 2) specifications, 3) material lists, and 4) approved plans." (E.S.) Article 3 of the contract stated that the "required plans and engineering to obtain a building permit are provided by the owner at his cost." The specifications, material lists, and approved plans are not in evidence. Pursuant to Article 7 of the contract, there was to have been a draw schedule for payments. The parties never agreed to a draw schedule as a part of their contract. A large portion of the loan for the construction was provided by Sun Bank of Tampa Bay. Sun Bank established a draw schedule for disbursement of the loan to the contractor, Mr. Butler, as progress was made in construction. Mr. Butler was not consulted regarding this draw schedule, and had not agreed to it. Mr. Harrelson apparently did not either since he testified that he got a copy of the Bank's draw schedule several months after entering into the contract with Mr. Butler. It is concluded that the draw schedule used by the Bank was imposed by the Bank, and was not a part of the contract between Mr. Butler and Mr. Harrelson. Sun Bank hired Inspection Service, Inc., to conduct inspections of the progress of the construction and in that manner to verify that construction had been completed, stage by stage, to justify disbursement of installments under the draw schedule. Sun Bank required Mr. Harrelson to approve loan disbursements as disbursements were made. In reliance upon progress reports of its inspector and Mr. Harrelson, Sun Bank made a total of $107,000 in disbursements under the loan. P. Ex. 9. Sun Bank had disbursed about $88,000 of this amount by February or March, 1987. P. Ex. 9. The amount disbursed by Sun Bank was never intended to cover the entire cost of construction. Mr. Harrelson was required to come up with his own funds to meet the total contract price. Mr. Harrelson refused to make payments to Mr. Butler outside the draw schedule imposed by the Bank. Mr. Harrelson discharged Mr. Butler for alleged breach of contract in March, 1987. Mr. Harrelson testified at length concerning defects that he perceived in the construction of the project and resultant extra financial cost to himself. While Mr. Harrelson testified as to his perception of mistakes made by Mr. Butler, Mr. Harrelson's testimony did not clearly explain the exact scope of the contract. There is no evidence that Mr. Harrelson has any training in the construction of commercial buildings. Mr. Butler testified at length about the delays and inadequacies in receipt of payments under the draw schedule, as well as disagreements he had with Mr. Harrelson concerning what was required by the contract. From the testimony of Mr. Harrelson and Mr. Butler it is concluded that there were changes made in the original plans, changes made in the scope of the work, changes made during the construction due to problems encountered, and that these changes were by attempted oral agreement. For example, neither party could agree as to who was to submit plans, although the written contract clearly says that the owner is responsible. The plans were never placed in evidence. Mr. Butler insists that the contract had an addendum. R. Ex. 20. Mr. Harrelson was not recalled to confirm or deny this testimony, but the contract submitted by the Petitioner, P. Ex. 6, has no addendum. There was to have been a draw schedule, but none was ever agreed to by the parties. Thus, the testimony is too fragmented, confused, and unclear to make a finding as to the exact scope and schedule of the contract. There was no testimony by the person who made the progress inspections for Sun Bank. There was no testimony from any expert in the field of contracting. During the formal administrative hearing, the Petitioner sought to voluntarily dismiss the charge of diversion of funds. The dismissal was sought without prejudice to refiling that charge at another date. The basis of the motion was that the witness from Sun Bank of Tampa did not bring files to answer questions from counsel, and was unprepared to answer from memory. It appeared during the course of the examination of the witness that counsel was not familiar with the documents in the possession of the witness, and that the witness was not prepared to present evidence. The motion was denied.
Recommendation It is therefore recommended that the Department of professional Regulation, Construction Industry Licensing Board, enter its final order dismissing the administrative complaint against Charles H. Butler, Jr. DONE and RECOMMENDED this 23rd day of March, 1988, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5041 The following are rulings upon proposed findings of fact which have either been rejected or which have been adopted by reference. The numbers used are the numbers used correspond to the numbered and unnumbered paragraphs and sentences in the findings of fact proposed by the Petitioner. (All paragraphs after paragraph 3 have been deemed to be numbered sequentially thereafter.) Findings of fact proposed by the Petitioner: 3. The first sentence is subordinate to findings of fact that have been adopted. It is true, however, and is adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. It is impossible to conclude that the Respondent caused a "self made deficit of $25,000" since the contract itself was never proven by clear and convincing evidence. The administrative complaint did not charge Mr. Butler with failure to supervise the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Moreover, the relevance of evidence concerning Mr. Butler's presence on the job site was never tied into the charge of financial mismanagement. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. With respect to the remainder of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. Since the entire contract, including changes and alleged defects, was never proven by clear and convincing evidence, it is impossible to conclude that Mr. Harrelson paid more than the contract price. The last two sentences are not relevant to the charge of financial mismanagement. The first sentence is not supported by the evidence. With respect to the next sentence of this proposed finding (the list of construction defects), the administrative complaint did not charge Mr. Butler with incompetence in the construction of the building. It charged him with financial mismanagement and failure to supervise finances. The last sentence is true, and adopted by reference. Since the entire contract was never proven by clear and convincing evidence, the relevance of this proposed finding of fact is unknown. No finding can be made on this record as to the percentage of completion on any date since the contract was never proven. Findings of fact proposed by the Respondent: None. COPIES FURNISHED: Lee Sims, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles H. Butler, Jr., Pro Se 8917 Maislin Drive Tampa, Florida 33610 Fred Seely, Executive Director Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32201 Tom GallagherSecretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, MThree Corporate Consulting, LTD (“MThree”), subjected Petitioner, Sidara Chau, to unlawful employment practices on the basis of her race or her sex in violation of section 760.10, Florida Statutes.
Findings Of Fact The following Findings of Fact are made based on the exhibits admitted into evidence and the testimony presented at the final hearing: Ms. Chau, an Asian (Cambodian) woman, was at all times material to this matter employed by MThree. Petitioner alleges that Respondent discriminated against her on the basis of her race and sex. FCHR determined there was no reasonable cause to find Respondent discriminated against Petitioner. Dissatisfied with FCHR’s findings, Petitioner filed her Petition for Relief from Unlawful Employment Practices and Request for Administrative Hearing requesting this hearing. MThree is an international corporation that provides consulting services to assist clients with technology projects. An arm of MThree’s business includes the Alumni Associate program, which hires recent college graduates, provides training, and places the program associates with clients with the goal of the client hiring MThree’s program associates as permanent employees of the client. Given that MThree is an international corporation, and given the number of known employees, MThree is an employer. See § 760.02(7), Fla. Stat. By letter dated August 31, 2017, MThree hired Ms. Chau as an Alumni Associate for production support with the expectation that she would be assigned to work onsite with one of MThree’s clients. Ms. Chau’s job responsibilities included assisting customers with instruments and client data quality checks. Based on the offer letter, Ms. Chau would be paid an annual salary with periodic increases subject to successful performance reviews after every six month of being onsite, through the end of the agreement. After training, Ms. Chau earned $42,000 per year. She anticipated receiving an increase to $45,000 after her six month review. Throughout her employment with MThree, Ms. Chau’s supervisor was Emily Keefe. As an Alumni Associate, Ms. Chau was required to complete training for approximately four weeks before beginning work onsite at the client’s business location. The training class included 18 other new employees. The trainers for the training class, Keith Dauris (general trainer for Jacksonville production class) and David Hodgins (primary trainer for the production class), expressed concerns about perceived deficiencies in Ms. Chau’s performance during the training. Specifically, Mr. Dauris conducted an assessment of the performance of each trainee based on categories described as follows: Very Good: No issues at all. Will hit the ground running; Good: No major concerns. Should settle in well on site; Behind on the learning curve: Still need work. Will take time to settle in on site and will need support; and Major concerns: Serious concerns as to their ability to hold down the job. Mr. Darius placed Ms. Chau in the category of “major concerns” and further commented, “Really does not understand coding at all. General problem skills is [sic] lacking. Serious concerns about her ability to perform on site.” Mr. Dauris shared his assessment with Mr. Hodgins who then communicated his concerns with Ms. Keefe. Similar to Mr. Dauris, Mr. Hodgins was concerned about Ms. Chau’s struggle with technical content, and asked whether she could benefit from additional training. Despite the concerns about Ms. Chau’s performance, she was assigned to work at Deutsche Bank. In October 2017, Ms. Chau began working at Deutsche Bank as a production support analyst. Ms. Chau’s supervisor at Deutsche Bank was Ranjith S. Nair, a line manager and permanent employee of Deutsche Bank. At all times material to this matter, Mr. Nair was not employed by MThree. Ms. Chau testified that Mr. Nair treated her unfairly by refusing to help her on projects and refusing to train her. Instead, he helped other employees namely, Boubacar Barry. Ms. Chau stated that when she expressed interest in disaster recovery projects, Mr. Nair refused to give her the opportunity to complete the training. She also claimed that he did not train her on other work tasks. While Ms. Chau did not believe the training Mr. Nair provided at Deutsche Bank was sufficient, there is no evidence in the record that she asked for training through MThree until after her performance review. Ms. Chau also testified about two incidents where her work performance was impacted by Mr. Nair’s mistakes. The first incident was related to an assignment request, which required Mr. Nair’s approval to complete. Mr. Nair delayed the necessary approval, which caused the work she performed to be cancelled. The second incident involved Mr. Nair yelling at her when she was asked to enter a particular command on a website and the website failed. Ms. Chau testified that Mr. Nair claimed she was responsible but he gave her the incorrect website. Mr. Nair did not testify at the hearing and there was no evidence offered at the hearing to corroborate Ms. Chau’s assertions. Ms. Chau testified that she never received complaints about her work performance while she worked at Deutsche Bank. However, Mr. Nair’s review reflects he had concerns with her performance. On or about April 18, 2018, Mr. Nair completed a six month performance review for Ms. Chau. The review assessed her performance in several areas, including: 1) application of skills in core role; 2) behavior at work and collaboration; 3) objectives; 4) meeting objectives; and 5) rating. The overall performance rating scale was as follows: Rating 5 All objectives fully achieved and most have been exceeded throughout the year and Outstanding levels of the required [behaviors] are always demonstrated across the majority of job competencies Rating 4 All objectives fully achieved and some have been exceeded throughout the year and All required [behaviors] have been demonstrated and consistently exceeded Rating 3 Fully achieved key objectives throughout the year and All required [behaviors] have been demonstrated Rating 2 One or more key objectives not achieved and/or Further development required for current role and/or behavior compares les [favorably] relative to expectations Rating 1 Performance unacceptable and/or Objectives not achieved and/or [behavior] levels not achieved A second rating scale used by line managers focused on potential for improvement, which provided as follows: A-Very high potential Capable of thinking of the “bigger picture,” is a good problem solver and very self-motivated B-High potential Performs very well in current role with potential to do more if given stretch assignments to help prepare for the next level C-Medium potential More focus on “tactical” thinking than “strategic” thinking but coaching and/or mentoring would help broaden that focus D-Low potential A valuable asset but requires encouragement to develop further in a number of areas Effective performer, but without coaching on how to become more innovative, achieve more lateral thinking etc. they may have reached their career potential C-Very low potential[1] No evidence that potential would improve even with extensive coaching or mentoring Consider reassignment or exit from the organization The review format permitted the associate to review him or herself, and then the manager would provide a final review. Petitioner provided favorable comments on her own behalf regarding her work performance in all categories. Ms. Chau’s evaluation of her performance was a clear contrast from Mr. Nair’s evaluation. In the evaluation, Mr. Nair identified a number of issues with Ms. Chau’s work performance. He commented that Ms. Chau needed improvement with the quality of her work, adhering to deadlines, and improvement of organization and communication skills. Mr. Nair reported 1 The rating range designated for managers only included to rating designated as “C.” However, a reasonable inference can be made that the second “C’ was due to a typographical area and was intended to be an “E” rating. that Ms. Chau needed to improve commitment to completion of assigned tasks. He also noted that Ms. Chau needed to be able to operate independently and proactively contribute to team tasks. The objectives set for Ms. Chau were also an area where Mr. Nair believed Ms. Chau could improve. Specifically, he stated that “Objectives/ Targets required by role is [sic] not met. Expect improvements in all areas noted in earlier sections.” Overall, Mr. Nair assigned a 2 out of 5 performance rating and “D” potential rating. In addition to the ratings, he commented that Ms. Chau’s performance was below the standard expected at the bank. He recommended that Ms. Chau improve her technical and organizational skills and engage in effective dialogue with stakeholders. Despite the low performance review, Mr. Nair was willing to give Ms. Chau additional time to improve her performance. After the evaluation, Mr. Nair discussed his concerns with Ms. Keefe who communicated the results to the MThree leadership team. Ms. Nair discussed the review with Ms. Chau. A few days later Ms. Chau emailed Ms. Keefe with concerns about her review and complaints that Mr. Nair treated her unfairly related to “something else personal.” Ms. Chau later withdrew her request for Ms. Keefe to escalate her complaint because she had spoken with Mr. Nair about areas for improvement. By June 2018, Deutsche Bank was prepared to progress toward terminating Ms. Chau from her assignment at Deutsche Bank due to low performance. Patti Burge, Director of Safety and Soundness at Deutsche Bank, and Ms. Keefe agreed Ms. Chau’s last day at Deutsche Bank would be July 27, 2018. Although Ms. Chau’s last day working onsite was July 27, 2018, she received payment from MThree through August 31, 2018. Ms. Keefe could not find a suitable different job site at which she could place Ms. Chau, and, thus, she was terminated from her employment with MThree as well. Ms. Chau offered Mr. Barry, an African man, as a comparator in this case. She believed Mr. Barry was similarly-situated and treated more favorably than her. He was trained on different projects and received help when needed. She asserted that he also received a six month raise for the same job. However, during training, Mr. Barry was placed in the “good” category and was assigned a 4 out of 5 rating for his work performance. Finally, Ms. Chau testified Mr. Barry was permitted to work from home, which Ms. Chau believed was favorable treatment. However, Ms. Chau by her own admission was also permitted to work from home. While not offered as a comparator, another associate, S.W., an African- American man, also scored 2 out of 5 for his six month review and was terminated on the same day as Ms. Chau. It is clear Petitioner believed she was treated unfairly by Respondent and by Mr. Nair in particular. However, Petitioner identified no instance of racially-disparaging direct comments or behavior directed toward her. There was also no evidence of disparaging comments related to her sex. In fact, Ms. Chau wrote in her email that her supervisor, Ms. Keefe, was like a sister to her. Although Respondent terminated another person at the same time as Ms. Chau, there was no evidence of a pattern of conduct, or inference of racial discrimination directed toward Asian women. Further, there was no evidence to support a finding that the decision to terminate Petitioner from employment was made due to Petitioner’s race or sex. Rather, the decision was based on dissatisfaction with Petitioner’s job performance while assigned to work at Deutsche Bank. There was also no evidence to prove that a person of a different race or sex than Petitioner, who was otherwise similarly-situated to Petitioner, was treated more favorably than Petitioner.
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 Petitioner’s Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 9th day of November, 2020, in Tallahassee, Leon County, Florida. S Yolonda Y. Green 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 9th day of November, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Sidara Chau 705 Pennsylvania Avenue Winchester, Virginia 22601 (eServed) Ian M. Jones, Esquire Smith, Gambrell & Russell, LLP 50 North Laura Street, Suite 2600 Jacksonville, Florida 32202 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
Findings Of Fact Background On January 18, 1985, respondents Department of Transportation (DOT), gave notice through the Florida Administrative Weekly to qualified and interested engineering firms that it desired "letters of interest" from firms interested in providing construction, engineering and inspection (CEI) services on State Job Nos. 87170-3525 through 871703530. 1/ Those jobs related to the construction of two major double leaf bascule bridges across the Intracoastal Waterway "flyover" bridge connecting State Road 826 (N.E. 163rd Street), A1A and continuous roadway sections in northern Dade County, Florida. The project is more commonly known as the Sunny Isles Causeway project. After receiving and evaluating ten letters of interest, a DOT selection committee compiled a "short-list" of the four engineering firms considered most qualified and capable of performing the job. The short-list included petitioner, Craig A. Smith and Associates (petitioner or CAS), Beiswenger Hoch and Associates (BHA), Post, Buckley, Schuh and Jernigan (PBSJ), and Reynolds Smith and Hill (RSH). The four consulting firms were invited to a scope of services meeting on October 14, 1985. At that meeting DOT discussed in detail the services required on the project, answered all inquiries by the firms' representatives, and provided each firm with the scope of services package, which contains the technical specifications and plans. The firms were also given DOT's recommended staffing chart which identified the individuals required on the job and the anticipated man-months required from those personnel. According to DOT's recommended staffing plane the project would require approximately 105,070 man hours. It was emphasized that this staff chart would be used as a "critical" measuring tool to evaluate the proposed staffing plans submitted by the firms, but that the firms would have an opportunity to change the number of man hours if such were necessary. The four firms were told to review the specifications and plans and to submit separate technical and price proposals with DOT no later than November 12, 1985. As a part of the technical proposals the firms were required to estimate the man hours to be provided on the project, keeping in mind the 105,070 figure utilized by DOT in its plans and specifications. The man-hour estimates submitted by the four firms were as follows: BHA 66,011 CAS 74,800 RSH 83,214 PBSJ 97,328 After receiving the technical and price proposals an evaluation of the technical proposals was begun by personnel at both the Miami district office and the Tallahassee central office. The two reviews were conducted independently and without the benefit of the price proposal. The district review committee was made up of three district employees while the central office review was made by a construction engineer. Each firm was numerically ranked based upon the firm's (a) technical plan, (b) management plan, (c) project schedule, and (d) "other" factors. In determining the scores, the Miami and Tallahassee offices used an internal written DOT "procedure" which provides guidelines for evaluating a CEI technical proposal. After the grades were assigned, they were totaled and the firms were ranked according to their scores. The two grades were then averaged on a weighted average basis by DOT's Bureau of Contractual Services. The districts central office and weighted average scores were as follows: Firm District Central Office Average RSH 71 74 74 PBSJ 72 54 63 BHA 62 59 62 CAS 61 57 59 The firms were also ranked in accordance with their price proposals. The following price bids were made by the four firms: CAS $2,129,105 BHA 2,136,417 PBSJ 2,862,929 RSH 2,978,462 It is noted that DOT initially estimated its cost for the CEI services to be $3,033,873. All firms were below this estimate. The grades and comments were forwarded to the office of the state construction engineer. Under his supervision, the two sets of comments and scores were "merged" together into a single recommendation as to which firm was the most qualified to perform the work. This recommendation, which was in the form of a memorandum was then forwarded to the chief of the Bureau of Contractual Services on January 9, 1986. In his memorandum the state construction engineer pointed out that although RSH and PBSJ were both technically qualified, he favored RSH for the project. The memorandum also recommended that neither CAS or BHA "be considered" for the work. The adverse recommendation for CAS was based upon its "inadequate staffing" estimates (some 30,000 man hours less than the DOT estimate), and its proposed resident engineer not being registered as a professional engineer in Florida. A selection committee made up of DOT's secretary, assistant secretary and deputy assistant secretary met on February 10, 1986, to make a final selection. The state director of construction (Murray Yates) was also present for the purpose of giving his recommendation to the committee. In preparing his recommendations Yates reviewed public hearing documents and studies relating to the project, and analyzed the DOT evaluation data and the CEI proposals. He also had discussions with both the district and central office personnel who originally evaluated the proposals. Finally, he relied upon his own experience as the DOT design engineer for the project. Prior to their meeting the members were furnished copies of the staff comments and the technical and price proposals of the four firms. At the first meeting, it was agreed to postpone the decision until February 17, 1986, so that the staff could reevaluate the number of man hours needed on the project. As a result of the further staff study, DOT revised its estimated man hours required on the job from 105,000 to approximately 95,000. At the second meeting PBSJ was tentatively selected as the successful firm subject to the Federal Highway Administration's (FHA) approval. The latter approval was necessary since the project is federally funded and PBSJ did not have the lowest price proposal. According to committee notes, PBSJ was selected because of its "sound technical plan for the project," its familiarity "with basculate construction, having provided similar services on the Miami River crossing," "inadequate" staffing requirements having been proposed by CAS and BHA and their lack of experience on bascule construction, and because the top technical firm, RSH, did not propose a fee acceptable to the selection committee." On February 18, 1986, DOT advised petitioner by letter that it "was not selected to provide engineering services on the above referenced project." No reason was given for rejecting petitioner's proposal. However, DOT orally advised CAS that its rejection was based upon inadequate man hours and the lack of qualifications of CAS personnel. Further, in a letter to the FHA dated February 19, 1986, DOT noted that CAS had been rejected because (a) CAS "did not propose adequate manpower to satisfactorily perform the services," (b) its "staffing plan did not provide the expertise desired" for the project, and (c) CAS has no "demonstrated proven ability in the performance of CEI services for the construction of bascule bridges in Florida." The federal agency gave its approval of PBSJ's selection on a later undisclosed date. There was no published notice of the meetings on February 10 and 17, 1986, nor was specific notice given to the four firms. However, there was no intent to bar any persons from attending the meetings, and had any appeared, they would have been permitted to observe the meetings. There is no indication of record that CAS made any inquiry to DOT as to when such meetings would take place, or that it be given notice of any meetings. No formal minutes of the meetings were kept. In accordance with DOT procedures, CAS was allowed to attend a "settlement meeting" with DOT personnel after the bid protest was filed. Such a meeting gave CAS the opportunity to discuss its proposal and presumably to seek DOT to change its mind. However, DOT did not change its position, and this proceeding followed. The Project Requirements DOT required an outside consultant on this project for additional expertise and manpower. The CEI contract calls for the consultant to administer construction activity by inspecting the work of the contractor. By having the work inspected DOT insures that it will receive the type and quality of work necessary to satisfactorily complete the job. The Sunny Isles Causeway project is considered to be a major project by DOT and was characterized by its state director of construction as being an "extremely complex project." Among other things, it involves the construction of two bascule bridges. A bascule bridge is one that can be raised or lowered to allow boat traffic to pass underneath. The total project cost is approximately $24.4 millions and will require 1,365 calendar days (or almost four years) for completion. The six jobs and their respective contract numbers are the west bound roadway and approach (87170-3525), Casino Canal work (87170- 3526), fly over bridge and roadway (87170-3527), east bound roadway and approach (87170-3528), west bound bascule bridge (87170-3529), and east bound bascule bridge (87170-3530). Despite some assertions to the contrary, it is found that the construction of a bascule bridge is indeed complex in nature. In addition, the Sunny Isles project is unique in the sense that the contract calls for the existing bridge to be demolished and removed, and the new bridge to be placed in the same location. The existing foundation will be widened and incorporated into the foundation of the replacement bridge. Further some of the major utilities crossing the intracoastal waterway, such as the 48 inch force main, will remain in place during construction and cannot be disturbed or damaged. Finally the project is located in an affluent area of Dade County, and the contractor must be careful not to infringe upon adjacent private properties. Because of these features, the successful firm would be expected to have an experienced resident engineer, and other key personnel, who was familiar not only with bascule bridge construction, but also with DOT procedures regarding contractual claims, utility problems maintenance of traffic, and interfacing with the community on any other problems that might arise. DOT's Selection Process DOT is required by state law to "adopt administrative procedures for the evaluation of professional services, including, but not limited to capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business . . . and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with the foregoing legislative mandated DOT has informally adopted a document known as "Guidelines and Philosophy on Consultant Selections." These guidelines are set forth in an agency memorandum dated January 29, 1985, prepared by its then chief of Bureau of Contractual Services, John S. Berry, III. This memorandum has been disseminated to all district consultant coordinators. In general terms, the memorandum provides district personnel with guidelines to be used in grading the short-list firms in the various technical non-technical and management categories. More specifically, the graders are given factors to be considered and scores to be given when assessing a firm's technical ability and capability to meet time and budget requirements. Specific guidelines are also given for non-technical and non- management factors such as workload and past performance. Further guidelines are given to assess the firms' managerial skills. On October 20, 1983, DOT adopted Procedure No. 146-002 which governs the selection process for engineering consulting firms. However, the procedure has not been formally adopted as a rule. It covers everything from the initial DOT decision to use an outside consultant through the execution of the final contract. Among other things, the procedure sets forth in detail guidelines for (a) initial selection evaluation, including the duties of the requesting unit, contractual services officer and selection committee, (b) scope of services meeting, (c) technical review committee evaluations and (d) final selection evaluation. Once the proposals have reached the final selection stage, DOT procedure No. 146-002 requires that the contractual services office provide the final selection committee with a summary of all evaluations and grade point averages and the volume of work previously awarded to each firm. The committee must then review these summaries; the volume of work previously awarded the firms, the price proposals, and assign a rating factor to each firm. Although the contents of the memorandum and procedure have not been "formally" adopted as rules, there was testimony from DOT personnel explaining the purpose, meaning and contents of both. In the case at bar the agency adhered to its January 29, 1985 memorandum and procedure No. 146-002 in evaluating the various technical proposals. More specifically, the evaluation process considered each firm's capabilities personnel past record experience and other relevant factors. Prior to the selection of the successful firm DOT met with each firm including petitioner, at the scope of services meeting on October 14, 1985. At that meeting each firm was given the opportunity to ask questions, seek clarification on any ambiguous matter, and learn the specific needs of DOT. In addition it was emphasized to each firm that DOT placed special significance on the staffing plan that would be submitted by each firm. Finally, each step in the review and selection process was documented in writing by DOT, and such documents have been made available to petitioner and all other interested parties. These documents have been amplified on by DOT personnel through discovery and oral testimony at final hearing. DOT Concerns With CAS's Proposals DOT expressed several concerns with CAS's technical proposal, two of which were valid. First DOT was concerned that CAS did not propose adequate staffing and manpower for the jobs. This concern was based on staffing problems CAS is now experiencing on another pending CEI project, and the inadequate number of hours (74,800) proposed in CAS's technical plan for the Sunny Isles project. A failure to provide adequate staffing can create serious potential problems. These include inaccurate recordkeeping, loss of federal funding, contractual claims, insufficient personnel to perform all necessary tasks, a failure to adhere to public concerns, and the possibility of having to obtain another consulting firm to finish the job. In preparing the job specifications, DOT estimated that 105,070 man hours would be required from the CEI firm during the life of the project. After further evaluations this was reduced to approximately 95,000 man hours to eliminate around 10 percent of "fat" in the estimate. CAS estimated that only 74,800 man hours would be required, which was some 21 percent below DOT's revised estimate. Although the DOT resident engineer who initially prepared the 105,070 man hours estimate did not have the plans and specifications for the project when his original estimate was made, he relied upon his extensive experience and familiarity with CEI contracts in preparing his estimate. The engineer had estimated man hours on twelve other CEI contracts, utilized information from the project manager, reviewed available design data, and made a visit to the job site. These calculations were not subsequently reviewed in detail by any other DOT employee. However, the same procedure was followed by the engineer who prepared the estimate for PBSJ and he reached a comparable figure. The methodology and results thereof were not shown to be unreasonable or unreliable, and it is found that the estimates by DOT and PBSJ were both reasonable and appropriate. Three experienced CAS personnel were involved in preparing that firm's estimate, and they had the benefit of the plans and specifications in doing so. In contrast to the 173 hour manmonths used by DOT and PBSJ in their calculations, CAS "absorbed" 13 hours into its overhead and accordingly used a 160 hour man month in its calculation. It also included the project directors' man hours in its overhead cost. This results in CAS having a lower man-hour estimate for its staffing plan. Even so, CAS made no effort to determine the DOT methodology at the scope of services meeting, or to advise DOT that it was calculating man hours in a different manner. Given the low number of man hours, and CAS's problems on another pending job, DOT's concern was well- founded. DOT also expressed concern over the expertise of CAS's staff to be assigned to the job. Although the resident engineer had many years of experience as an engineer, he had just moved to Florida and had no prior construction experience in the State. There was no evidence that he was familiar with DOT procedures, which is of particular importance where a complex and sensitive project is involved. Moreover, the firm itself has never constructed a bascule bridge. Given these considerations, DOT properly found the expertise and qualifications to be less than that of the successful firm. Finally, at the initial stage of the review process, DOT personnel were concerned that CAS's proposed resident engineer was not a registered professional engineer in the State of Florida. However, this concern was unfounded since the engineer in question was granted his registration on February 4, 1986, which was prior to the final selection. The Successful Firm PBSJ is currently working on three CEI contracts for DOT. It has just successfully completed a CEI contract on a major bascule bridge project in downtown Miami which is comparable to the Sunny Isles project. The firm's proposed resident engineer has been involved on five bascule bridge projects in prior years. The firm's man-hour estimate of 97,328 was in line with DOT's revised estimate, and was prepared by the proposed resident engineer in a manner consistent with that used by DOT's estimator. Given the type and amount of experience on the part of PBSJ, and its adequate staffing plan DOT properly selected PBSJ as the consulting engineer on the project.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that a final order be entered awarding the contract on State Job Nos. 87170-3525--87170-3530 to Port, Buckley, Schuh and Jernigan, Inc., and that Craig A. Smith's bid protest be DENIED. DONE and ORDERED this 14th day of May 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty as charged in Counts I, II and IV of the amended administrative complaint, and guilty of misconduct by affixing his signature and number to air-conditioning plans in Count VI. All other charges should be dismissed. It is further RECOMMENDED that Respondent be given the penalty set forth in paragraph 45 of this recommended order. DONE and ENTERED this 3rd day of February, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1983.
