The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue Whether Respondent, Sanford Housing Authority (Respondent), committed an unlawful employment practice as alleged in the Petition for Relief filed with the Florida Commission on Human Relations (FCHR) and, if so, what relief should Petitioner, Jimitre Smith (Petitioner), be granted.
Findings Of Fact Petitioner is a female who was pregnant during a portion of the time events occurred related to her employment with Respondent. At the time of Petitioner’s initial employment with Respondent, the Sanford Housing Authority operated public housing complexes within its geographical area pursuant to a HUD program to provide housing assistant to low income, qualified residents. At some point, the Orlando Housing Authority stepped in to take over the management of Respondent’s properties. Due to the deteriorating condition of Respondent’s properties, residents were provided Section 8 vouchers so that they could obtain private rental opportunities. In the midst of the transition period, Petitioner’s employment with Respondent ended. Petitioner was initially hired by Respondent to replace a receptionist who was out on maternity leave. The assignment was part-time and temporary. It began on or about March 31, 2010. When the receptionist returned to work, Petitioner was offered a second part-time job as leasing clerk. Although the record is not clear when this second job started, it is undisputed that Petitioner sought and was granted maternity leave due to her own pregnancy on September 27, 2010. It was during this time period that the Orlando Housing Authority stepped in to take over Respondent’s responsibilities. Mr. Fleming, an employee of the Orlando Housing Authority, served as the Interim Executive Director for Respondent. In November 2010 residents were advised of the plan to demolish the substandard housing units. Since the units would not be leased, a leasing clerk was no longer required. Although Petitioner had been told she could return to work after her maternity leave, there was no position available for her at that time. Once the Orlando Housing Authority took over management, all of the day-to-day work was assigned to its employees. Respondent kept a handful of maintenance workers, but there is no evidence Petitioner sought and/or was denied that type of job. Petitioner claimed she should have been offered or allowed to apply for a job with the Orlando Housing Authority. There is no evidence that entity was required to hire her or that it refused to hire her because of her gender or pregnancy or that Respondent refused to recommend Petitioner for employment due to her gender or pregnancy. When Petitioner was cleared for return to work in December 2010, there was not a job to return to as Respondent did not have a position for her. There is no evidence that Respondent hired anyone during or after Petitioner’s pregnancy or that Petitioner was refused a job that she was qualified to perform. Had a suitable job been available, it most likely would have come through the Orlando Housing Authority. In January of 2011, Respondent formally eliminated Respondent’s part-time position through a reduction in workforce decision. At that time, Petitioner received a severance payment from Respondent and an offer for other job training opportunities.
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 finding no cause for an unlawful employment practice as alleged by Petitioner, and dismissing her employment discrimination complaint. DONE AND ENTERED this 3rd day of January, 2013, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2013. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301 Jimitre Rochelle Smith 804 South Bay Avenue Sanford, Florida 32771 Ricardo L. Gilmore, Esquire Saxon, Gilmore, Carraway and Gibbons, P.A. Suite 600 201 East Kennedy Boulevard Tampa, Florida 33602 Cheyanne Costilla, Interim General Counsel Florida Commission on Human Relations Suite 100 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner, Rusty Santangelo, was subject to an unlawful employment practice by Respondent, Ace Staffing, based on his disability (handicap) in violation of the Florida Civil Rights Act.
Findings Of Fact Ace Staffing is a temporary employment agency. Ace Staffing works mostly with day laborers in the construction industry. Petitioner is a former temporary worker with Ace Staffing. Petitioner worked for Ace Staffing from 2007 through 2015. Generally, when an Ace Staffing customer requests temporary employees, the customer completes a Purchase Order (“PO”) indicating the date(s) for which employees are needed, the number of employees requested, and a description of the work to be performed. Ace Staffing then contacts its list of available employees and offers them job assignments. If an employee accepts the assignment, Ace Staffing provides that employee with a “ticket” for the customer to complete. The customer is to record the hours the employee worked, as well as the rate of pay on the ticket. After the employee performs the job, the employee returns the completed ticket to Ace Staffing along with the PO which the customer signs. Ace Staffing then collects information from the ticket to generate a paycheck for the employee. Ace Staffing typically pays employees on the day they worked. Thereafter, Ace Staffing bills the customer. Occasionally, Ace Staffing places a temporary employee in a long-term job assignment. In these circumstances, Ace Staffing considers the employee to be working a “steady” or “open” ticket. The customer still prepares a PO for Ace Staffing to record how many workers the customer employed for each work day. When working on a “steady” or “open” ticket, Ace Staffing requires the employee to provide his or her work hours to the customer at the worksite. The customer then reports the time to Ace Staffing (on a ticket or by e-mail). Ace Staffing, in turn, issues the paycheck to the employee. All Ace Staffing temporary employees are hired for specific jobs as requested by customers. Employees are never guaranteed constant work or a permanent assignment. Either Ace Staffing, the employee, or the customer may terminate the job at any time. Petitioner began working for Ace Staffing in September 2007. In 2011, Ace Staffing sent Petitioner to fill a temporary job assignment with Owens, Renz & Lee Company, Inc. (“Owens”). Owens provided janitorial and maintenance services for the Amway Arena (the “Arena”) in Orlando, Florida. Ace Staffing did not have a formal contract with Owens for its staffing services. Either Ace Staffing or Owens could end their business relationship at any time. Petitioner generally worked for Owens at the Arena performing custodial services. Petitioner worked in a part-time capacity and typically only when the Arena hosted events, such as music concerts and sporting events. Soon, Petitioner’s assignment with Owens became a “steady” or “open” ticket. When Owens needed an employee for the Arena, Ace Staffing allowed Owens to contact Petitioner directly to schedule the job. Ace Staffing instructed Petitioner to simply show up at the Arena when Owens offered him work. Regarding payment for his work for Owens, Ace Staffing instructed Petitioner that he was responsible for ensuring Owens completed the PO and the ticket for his work hours. Therefore, when Owens hired him, Petitioner was required to report his time to Owens. Specifically, Petitioner was to record the time he reported in, and when he left, the Arena. Typically, Petitioner would “punch in” with a time card when he checked in at the Arena. Owens would provide Petitioner’s recorded work hours to Ace Staffing on Petitioner’s ticket or via e-mail. Petitioner would drop off his ticket at the Ace Staffing office once a week. Ace Staffing would then provide Petitioner a ticket for Owens to complete the following week. This process enabled Ace Staffing to accurately prepare Petitioner’s paycheck. Ace Staffing paid Petitioner based on the work hours Owens reported on the ticket (or by e-mail). Ace Staffing issued Petitioner’s paycheck on a weekly basis. Petitioner very much enjoyed his job at the Arena. Similarly, the evidence indicates that Owens considered Petitioner a good and reliable worker. Petitioner worked steadily at the Arena averaging ten to 20 events a month. Petitioner began to envision that he could work for Owens as long as he wanted. Periodically, however, Petitioner complained to Ace Staffing that he was not being paid for all the hours he worked at the Arena. Petitioner’s pay issues came to a head in October 2015. On October 2, 2015, Petitioner appeared at the Ace Staffing office to discuss his pay shortage. Petitioner met with Prity Patel, the Owner of Ace Staffing. Petitioner told Ms. Patel that he had not been paid for approximately 45 hours that he had worked the previous fall in September and October 2014. Ms. Patel testified at the final hearing that the October 2, 2015, incident was not the first time Petitioner had complained about not being paid for all the hours he worked for Owens. She relayed that in April 2014, Petitioner told her that he had not been paid for several events he worked during December 2013. Both Ace Staffing and Owens investigated Petitioner’s claim. Owens subsequently confirmed that Petitioner had worked more hours than were recorded on his ticket. Thereafter, Ace Staffing paid Petitioner for the missing time and billed Owens accordingly. Subsequently, in May 2014, Petitioner again reported to Ace Staffing that he had worked several jobs for Owens for which he had not received compensation. This time, Petitioner identified one day in January 2014, and 12 days in March 2014. Once again, both Ace Staffing and Owens reviewed their respective records, and Owens was able to confirm that Petitioner worked the additional hours for which he claimed he was not paid. Ace Staffing paid Petitioner for all of the missing time. After Petitioner’s second complaint in May 2014, Ms. Patel instructed Petitioner to regularly check his paystub to ensure that he was properly paid for all the hours he worked. Ms. Patel specifically cautioned Petitioner not to wait weeks (or longer) to advise Ace Staffing of any error in his paycheck. However, despite Ms. Patel’s instructions for Petitioner to conscientiously record his work hours with Owens, on October 8, 2014, and again on November 8, 2014, Petitioner sent two e-mails to Owens declaring that he was missing pay for hours worked in September and October 2014. Then, almost a year later on September 11, 2015 (evidently because Owens never satisfactorily responded to his initial requests), Petitioner sent another e-mail to Owens about his missing time. At that point, on September 24, 2015, Owens sent an e-mail to Ray Patel (Ace Staffing’s office manager) informing him that Petitioner was complaining that he had not been paid for work in September and October 2014. Based on Petitioner’s history of pay issues, when Ms. Patel learned on October 2, 2015, that Petitioner was again complaining about missing pay, she became upset. She was frustrated that Petitioner had failed to follow her instructions to ensure that Owens accurately recorded his work hours. Ms. Patel was further irritated that Petitioner was bemoaning pay discrepancies that were over a year old. She was also distressed that, upon receiving each paycheck over the last year, Petitioner had assured her that the amount of his paycheck was accurate. Ms. Patel explained that reconstructing Petitioner’s work hours was intensive and time-consuming for both Ace Staffing and Owens. Petitioner was asking to be paid for hours that Owens had not submitted to Ace Staffing. Therefore, tracking down Petitioner’s work days and hours required checking with each of Petitioner’s supervisors at Owens on the specific event to verify whether Petitioner did, indeed, work on the date he claimed. This process was complicated by the fact that Owens employed hundreds of workers. Consequently, reviewing the jobs Petitioner worked was burdensome on both Ace Staffing and Owens. Therefore, upon hearing Petitioner’s latest complaint, Ms. Patel instructed Petitioner not to return to Owens until she could straighten out his back pay. Ms. Patel expressed to Petitioner that she would investigate the issue, and he could return to the Arena after the matter was resolved. Ms. Patel testified that she spent a considerable amount of time in October and early November 2015 accounting for and reconciling the time Petitioner insisted that he worked for Owens in September and October 2014. Ms. Patel voiced that she was ultimately unable to independently confirm the hours Petitioner claimed. Instead, she had to rely on Petitioner’s personal calendar, which he used to track the days and events he worked at the Arena. Ace Staffing paid Petitioner for all the missing hours (44.25 hours) he claimed he worked. On November 30, 2015, Petitioner received a call from Ms. Patel informing him that the final amount of all his missing back pay from 2014 would be deposited in his bank account. Ace Staffing did not bill Owens for Petitioner’s missing time. As a direct consequence of the complications Petitioner’s pay issues caused, Ms. Patel decided to end Ace Staffing’s business relationship with Owens. Petitioner was the only Ace Staffing employee working for Owens, and the account had simply become too troublesome to administer. As a result, after October 2, 2015, Ace Staffing no longer placed any temporary employees with Owens or the Arena. On November 30, 2015, Ray Patel formally notified Owens that Petitioner would no longer be working for them. On the other hand, Petitioner, after he met with Ms. Patel, was quite anxious to return to work at the Arena. He was fully prepared to report back to Owens as soon as Ace Staffing resolved his pay discrepancy. Petitioner believed that Ace Staffing and Owens were not communicating with each other, and the clerical error that led to his pay issue could be resolved with minimal coordination between the two companies. Petitioner had been prepared to work at the Arena on Friday, October 3, 2015, for the start of basketball season. Petitioner represented that Owens had also scheduled him for additional events over the next two weeks. Further, Owens indicated that it was willing to continue employing Petitioner despite the pay dispute. After October 2, 2015, Ace Staffing continued to offer Petitioner temporary job assignments. Prior to and during the years Petitioner worked for Owens, Ace Staffing regularly sent Petitioner on day labor jobs. These jobs included work as a flagman, a sign holder, and distributing flyers. Ms. Patel, Rich Patel (an Ace Staffing manager and secretary), and Janice Mullendore (Ace Staffing’s office assistant) all persuasively testified that during October and November 2015, they contacted Petitioner and presented him with similar work. Ms. Patel explained that she only intended not to send Petitioner (or anyone) back to Owens. But, Ace Staffing always had jobs to provide to her temporary employees, including Petitioner. Petitioner, however, turned down every assignment Ace Staffing offered. He expressed to Ace Staffing that he already had a job he liked-–working for Owens at the Arena. Ace Staffing advised Petitioner that the assignments at the Arena were no longer an option. Petitioner pronounced that he did not want any other jobs but to work for Owens at the Arena. Ms. Mullendore testified that after Petitioner rejected several temporary assignments, she removed him from her list of available employees. She did not want to spend time calling someone who was not interested in working on the jobs she offered. Ms. Patel echoed Ms. Mullendore’s statement saying that after Petitioner turned down three to four job offers, Ace Staffing simply stopped calling him about available temporary work. Ace Staffing did not offer Petitioner another temporary job after November 2015. As a result of the fallout from his meeting with Ms. Patel on October 2, 2015, Petitioner asserts that Ace Staffing unjustly “terminated” him based on his disability. Petitioner felt that Ace Staffing punished him for complaining about his missing pay and for being “slow.” Petitioner asserts that he tried his best to keep up with the hours he worked for Owens. He may have been “slow,” but he was determined. Ms. Patel denied that Ace Staffing terminated Petitioner’s employment. She emphasized that the reason Ace Staffing halted Petitioner’s assignment with Owens was due to his multiple failures to accurately and timely report his work hours to Owens (and Ace Staffing). Ms. Patel stressed that Petitioner’s failure to dutifully record his hours at the time he worked at the Arena placed an extreme and unnecessary administrative burden on Ace Staffing. Reconciling Petitioner’s pay discrepancies required hours of extra work for both Ace Staffing and Owens. Further, Petitioner’s actions placed Ace Staffing in the uncomfortable position of having to request its customer (Owens) review its own work records to verify Petitioner’s work hours. Ms. Patel felt that the situation resulted solely from Petitioner’s inattentiveness. The October 2015 complaint was Petitioner’s third incident involving unpaid work hours, which Ms. Patel determined was unacceptable. Ray Patel also testified that Ace Staffing did not terminate Petitioner. Ace Staffing simply stopped offering Petitioner temporary assignments after November 2015. Mr. Patel further testified that Ace Staffing’s decision to remove Petitioner from its list of available workers was not related to any disability from which he suffered. Ace Staffing’s decision was based on Petitioner’s unwillingness to take any job assignment other than with Owens. Petitioner vehemently challenged Ace Staffing’s representation that it presented him additional work after October 1, 2015. Petitioner recounted that, according to his phone records, Ace Staffing called him seven times between October 5, 2015, and November 30, 2015. Of these seven calls, Petitioner believed that only one call concerned additional temporary work. This call came from Rich Patel who offered him an assignment passing out flyers. At the final hearing, Petitioner described a number of mental and physical ailments he experienced during his time working for Ace Staffing.4/ In 2000, Petitioner was diagnosed with human immunodeficiency virus (“HIV”), which caused Petitioner several lingering side effects including chronic muscle pain and fatigue. Since March 2011, Petitioner has received regular treatment for bipolar disorder. Petitioner was Baker Acted in June 2011 due to depression and an attempted suicide. In 2011 and 2012, Petitioner experienced several anxiety attacks while working at the Arena. In 2011 and 2014, Petitioner underwent surgery related to an umbilical hernia from which he still endures complications. Petitioner continues to be treated for depression with psychotic features. In addition, Petitioner suffers from asthma, sleep apnea, and plantar fasciitis in both feet. Ace Staffing does not dispute that Petitioner suffered from disabilities during the time he worked for them.5/ (Petitioner concedes that Ace Staffing had no knowledge of his HIV or foot issues.) Ace Staffing was aware that Petitioner was limited in the types of work he was able to perform. Ace Staffing tried to accommodate Petitioner’s limitations by offering him job assignments Petitioner indicated he could execute. Despite all his medical conditions, Ace Staffing readily placed Petitioner with Owens at the Arena. Based on the competent substantial evidence in the record, the preponderance of the evidence does not establish that Ace Staffing discriminated against Petitioner based on his disability (handicap). Accordingly, Petitioner failed to meet his burden of proving that Ace Staffing discriminated against him in violation of the FCRA.
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 finding no unlawful employment practice and dismissing Petitioner’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 13th day of October, 2017, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 October, 2017.
The Issue Whether Respondent committed the violation alleged in the Amended Administrative Complaint in the manner specified therein and, if so, what penalty should be imposed.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been at all times material to the instant case, a Florida-licensed real estate sales associate, holding license number SL-691286. At no time during the almost ten years he has held this license has any disciplinary action been taken against him.2 From August 31, 2000, to March 31, 2002, and from April 16, 2002, to June 26, 2008, Respondent worked as a real estate sales associate for Tenzer Realty, Inc., and Associates (Tenzer Realty). Jack Tenzer is a Florida-licensed real estate broker. He has owned and operated Tenzer Realty since January 30, 1990. On or about December 13, 2007, Wiltamar Mendes executed a written agreement giving Tenzer Realty the "exclusive right to sell" residential property, located at 14081 Southwest 166th Street in Miami Florida, he and his wife owned (Subject Property). Under the terms of the agreement, "Tenzer Realty [was] to receive only [a] 3% commission" on the sale of the Subject Property, plus a "transaction coordination fee [of] $395.00 at closing." At no time has Mr. Tenzer ever had an interest in the Subject Property. Respondent was the listing agent for the Subject Property, and he represented the Mendeses throughout the sale process. In January 2008, Sulena Hernandez and her husband were looking to purchase a home in the Miami area. Roger Shapiro, a Florida-licensed real estate associate then working for Coldwell Banker, was helping them in their search and acting as their representative. Mr. Shapiro telephoned Respondent to make arrangements for the Subject Property to be shown to Ms. Hernandez. Ms. Hernandez, accompanied by Mr. Shapiro, was subsequently shown the Subject Property by the Mendeses.3 After the showing, the Hernandezes decided to make an offer on the Subject Property of $338,640.00 (money they hoped to obtain through a 100% financed Veteran's Administration loan4), with the "additional [monetary] term" that the Mendeses would "contribute 2% of the sale price toward [the Hernandezes'] closing cost[s]." The offer was written up for the Hernandezes by Mr. Shapiro on a Florida Association of Realtors (FAR)-developed Residential and Sale Purchase Contract form that Coldwell Banker used, on behalf of its clients, for such purposes (FAR Form). This FAR Form had eight pages, not including the "attached addenda." On the bottom of each page were spaces for the buyers and sellers to put their initials to "acknowledge receipt of a copy of th[e] page." Page 7 of the FAR Form contained the "Addenda" and "Additional Terms" provisions of the contract. The "Addenda" provision began as follows: 20. ADDENDA. The following additional terms are included in the attached addenda and incorporated into this Contract (check if applicable): This introductory language was followed by a lettered checklist of various possible "addenda" items, including "F. VA Financing," "H. As is w/Right to Inspect," "I. Inspections," "P. Back-up Contract," "Q. Broker - Pers. Int. in Prop.," "V. Prop. Disclosure Stmt.," and "Other." Next to (immediately to the left of) each listed item was a box (to be "check[ed] if applicable"). On the written offer he prepared for the Hernandezes (Contract Offer), Mr. Shapiro checked the "F. VA Financing," the "H. As is w/Right to Inspect," the "V. Prop. Disclosure Stmt.," and the "Other" boxes,5 and he attached an appropriately initialed addendum corresponding to each of these checked items.6 No other boxes were checked. Page 8 of the FAR Form was the signature page. Numbered lines 412 through 416 on page 8, as filled in by Mr. Shapiro (for the Hernandezes), read as follows: OFFER AND ACCEPTANCE (Check if applicable: ? Buyer received a written real property disclosure statement from Seller before making this Offer.) Buyer offers to purchase the Property on the above terms and conditions. Unless this Contract is signed by Seller and a copy delivered to Buyer no later than 5 ? a.m. ? p.m. on January 21, 2008, this offer will be revoked and Buyer's deposit refunded[7] subject to clearance of funds.[8] On numbered lines 417 through 420 on page 8, directly beneath this "Offer and Acceptance" provision, was the following "Counter Offer/Rejection" provision, which contained a box for the Mendeses to check if they wanted to counter the Contract Offer, as well as a box for the Mendeses to check if, alternatively, they wanted to reject the Contract Offer outright: COUNTER OFFER/REJECTION Seller counters Buyer's offer (to accept the counter offer, Buyer must sign or initial the counter offered terms and deliver a copy of the acceptance to Seller. Unless otherwise stated, the time for acceptance of any counteroffer shall be 2 days from the date the counter is delivered. Seller rejects Buyer's offer. On the next numbered line (421) on page 8, in the spaces provided, Ms. Hernandez signed her name and wrote in the date, "1/18/08." Acting under a power of attorney, she also signed (on numbered line 423) for her husband, who was on military deployment in Afghanistan at the time. The penultimate numbered line (433) on page 8 provided that the "[e]ffective date" of the contract would be "[t]he date on which the last party signed or initialed and delivered the final offer or counteroffer." Ms. Hernandez put her and her husband's initials in the spaces provided on the bottom of page 8, as well as in the spaces provided on the bottom of the preceding seven pages, to "acknowledge receipt of a copy of th[ese] page[s]." Mr. Shapiro sent the Hernandezes' signed, dated and initialed Contract Offer to Respondent (by facsimile transmission) for presentation to the Mendeses for their consideration. Respondent guided the Mendeses through their review of the Contract Offer and provided them with advice. On January 23, 2008, after they had finished going over the Contract Offer with Respondent, the Mendeses (on numbered lines 427 and 428) signed and dated the document. They also initialed the bottom of each of the offer's first eight pages, as well as the bottom of each addendum that had been attached thereto, in the appropriate spaces. This was all done in Respondent's physical presence. On behalf of the Mendeses, Respondent provided (by facsimile transmission) a copy of the signed, dated, and initialed document (Genuine Hernandez Contract9) to Mr. Shapiro. By their actions (which Respondent helped orchestrate), the Mendeses signified their intent to accept the Contract Offer, without revision. They checked neither of the boxes in the "Counter Offer/Rejection" provision (on numbered lines 417 through 420 on page 8), nor did they make any written entries elsewhere on the document, or attach any appropriately initialed additional addenda, reflecting a desire to accept an offer from the Hernandezes only on terms different than those set forth in the Contract Offer. Most significantly, for purposes of the instant case, the Mendeses made no changes to the "Addenda" provision. They checked no additional boxes (including the "P. Back-up Contract" box), nor attached any appropriately initialed addendum corresponding to an unchecked item. After receiving the Genuine Hernandez Contract from Respondent, Mr. Shapiro showed it to Ms. Hernandez. Ms. Hernandez, with the help of Mr. Shapiro, proceeded to take those steps necessary for her and her husband to close on the Subject Property on February 29, 2008, the agreed-upon closing date.10 These steps included having the Subject Property inspected and securing a mortgage loan commitment.11 Respondent and Mr. Shapiro had occasion to speak with one another over the telephone regarding these post- contract/pre-closing matters. (There was no direct communication at any time between Respondent and the Hernandezes.) At no time either before or after the effective date of the Genuine Hernandez Contract did Respondent advise Mr. Shapiro that the Mendeses intended to treat their contract with the Hernandezes as a "back-up contract," that is, a contract subordinate to another contract for the sale and purchase of the Subject Property. This was not information that could be gleaned from a review of the Genuine Hernandez Contract. Indeed, the Genuine Hernandez Contract affirmatively indicated that it was not a "back-up contract," inasmuch as the "P. Back-up Contract" box in the "Addenda" provision on page 7 was not checked, nor was there any corresponding "Back-up Contract" addendum attached to the document. Unbeknownst to Mr. Shapiro and the Hernandezes, by the time the Genuine Hernandez Contract became effective (which, according to numbered line 433, was January 23, 2008, "[t]he date on which the last party [the Mendeses] signed or initialed and delivered the final offer"), the Mendeses had already entered into a contract (using the FAR Form) to sell the Subject Property to another couple, Carlos and Aida Garcia, for $330,000.00 (95% of which would be financed), with no seller contribution toward closing costs (Garcia Contract). In the "Addenda" provision (on page 7) of the Garcia Contract (as in that provision of the Genuine Hernandez Contract), neither the "I. Inspections" box, the "P. Back-up Contract" box, nor the "Q. Broker - Pers. Int. in Prop." box was checked. Respondent was aware at the time that the Mendeses executed the Contract Offer and entered into the Genuine Hernandez Contract that it was the Mendeses' intention to proceed with the Garcia Contract as the primary contract12 and to treat the Genuine Hernandez Contract as merely a "back-up"13 (providing a ready alternative for the Mendeses, as insurance, in the event their deal with the Garcias fell through).14 This was information that any reasonably prudent buyer in the Hernandezes' situation would have wanted and expected to have, as Respondent surely must have known. As a Florida- licensed real estate sales associate representing the Mendeses, Respondent had a duty, in the interest of honest and fair dealing, to disclose this information to the Hernandezes (notwithstanding that he was not their agent15). Nonetheless, Respondent knowingly and dishonestly participated in a scheme to conceal from the Hernandezes the subordinate status of their contract to purchase the Subject Property.16 As it turned out, the Mendeses did not need to have a "back-up" buyer, as the Garcias closed on the Subject Property on February 11, 2008, as scheduled. Respondent "attend[ed] the closing with the Garcias." Respondent told neither Mr. Shapiro, nor the Hernandezes, that the Garcias had closed on the Subject Property. Mr. Shapiro found out about the Garcias and their having closed on the Subject Property, not from Respondent, but from a representative of Sunbelt Title (the title company). He obtained this information just a few days before the Hernandezes' scheduled February 29, 2008, closing. Mr. Shapiro, in turn, told Ms. Hernandez about the Garcias' purchase of the Subject Property. Ms. Hernandez was "shocked" to learn that the Mendeses no longer had title to the Subject Property and that therefore she and her husband would not be able to purchase the property from them. She had made all the necessary preparations to move from the rental property she was living in with her husband to the Subject Property. She even had family members who were going to be "flying into town" to help her with the move. Had the Hernandezes known that their contract was only a "back-up" to the Garcias', they would not have done the things they did in anticipation of their scheduled February 29, 2008, closing on the Subject Property. Ms. Hernandez hired an attorney, who contacted Mr. Tenzer to inquire, on the Hernandezes' behalf, about the situation. Mr. Tenzer had no "idea what [the attorney] was talking about." Respondent was unavailable at the time inasmuch as he was out of the country on vacation. Mr. Tenzer therefore went directly to the filing cabinets where all of Tenzer Realty's files (both active and closed) were supposed to be kept and proceeded to look for the file on the Subject Property. Pursuant to established Tenzer Realty office policy (with which Respondent should have been familiar), all contracts dealing with the Subject Property should have been in one file in these filing cabinets. Mr. Tenzer found only the Garcia Contract in the file on the Subject Property. The Genuine Hernandez Contract (to which the Hernandezes' attorney had referred in his conversation with Mr. Tenzer) was not in the file. Unable to locate a contract for the sale of the Subject Property to the Hernandezes, Mr. Tenzer left a note on Respondent's desk asking Respondent to see him about the matter as soon as he returned to the office from vacation. In his note, Mr. Tenzer emphasized that "it was urgent" that Respondent discuss the matter with him "immediately" upon Respondent's return. When Respondent returned to the office, he produced for Mr. Tenzer a document (Purported Hernandez Contract17) identical in all respects to the Genuine Hernandez Contract, except that three additional boxes in the "Addenda" provision on page 7 were checked: the "I. Inspections" box; the "P. Back- up Contract" box; and the "Q. Broker - Pers. Int. in Prop." box.18 (No additional addendum corresponding to any of these items was attached to the document, however; just the boxes were checked.19) There were no signatures or initials next to these three checked boxes.20 Respondent told Mr. Tenzer that this was a "back-up contract" and that the Hernandezes had been so informed. What Respondent had done was alter the "Addenda" provision of the Genuine Hernandez Contract in a weak and transparent attempt to make it appear as if the "back-up" nature of the contract was apparent from its face. Mr. Tenzer asked Respondent where the Purported Hernandez Contract had been "all this time." Respondent responded that he had kept it in his desk drawer. This response drew a rebuke from Mr. Tenzer, who chastised Respondent for not keeping the Purported Hernandez Contract in the file together with the Garcia Contract. Mr. Tenzer then inquired, "Why do we have another contract when one's already closed?" Respondent answered, unresponsively (as well as untruthfully), that he had notified Mr. Shapiro that the Garcias had closed on the Subject Property and that therefore the Hernandezes would not be purchasing the property. Upon reviewing the Purported Hernandez Contract, Mr. Tenzer noticed that the "Q. Broker - Pers. Int. in Prop." box was checked. When he questioned Respondent about this, Respondent told Mr. Tenzer that "that was done in error."21 The Hernandezes ultimately purchased another home in the Miami area. The purchase price of the home was more than the amount that they had agreed to pay to buy the Subject Property from the Mendeses. A complaint concerning Respondent's dealings in connection with the Subject Property was filed with Petitioner. The complaint was investigated by Felix Mizioznikov, an investigator with Petitioner. As part of his investigation, Mr. Mizioznikov interviewed Respondent, both over the telephone and "in person." During the "in person" interview, Respondent gave Mr. Mizioznikov his file on the Subject Property. The file contained the Garcia Contract, the Genuine Hernandez Contract,22 and the Purported Hernandez Contract. Mr. Mizioznikov's investigation led to Petitioner's filing the instant charge against Respondent alleging a violation of Section 475.25(1)(b), Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Commission issue a Final Order finding Respondent guilty of "concealment" in violation of Section 475.25(1)(b), Florida Statutes, as alleged in the Amended Administrative Complaint and disciplining him for having committed this violation by suspending his license for four years, fining him $1,000.00, and requiring that he reimburse Petitioner for its reasonable investigative costs in this case. DONE AND ENTERED this 3rd day of March, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 3rd day of March, 2010.
The Issue The issue for determination is whether Petitioner has been discriminated against, as he has alleged, and if so, what relief is appropriate.
Findings Of Fact Respondent, F.I.T., is located at the Melbourne airport in Melbourne, Florida. The company provides maintenance support and other general aviation support services for Florida Institute of Technology's flight school. Balazs was hired in August 1987 by Thomas Thompson, Director of Maintenance. His primary duties were the cleaning and washing of aircraft. Thompson left for a 30-day vacation the end of August, and Shop Foreman, John D. Laudenslager, was in charge. Almost immediately, Laudenslager began receiving complaints from female employees regarding Balazs' over-friendly conduct. Laudenslager told Balazs to ignore the females, and when Thompson returned, he was informed of the problem. The complaints were that Balazs would watch the women arrive at work and would jump out from behind the door and scare them. He would also make them uncomfortable by asking about their personal lives. He would also meet them at the gate with exaggerated and unwarranted attention. Thompson spoke to the women involved and confirmed their complaints. On one occasion, Thompson himself observed Balazs at his work station washing an airplane. When a female arrived, Balazs dropped his brush and walked over to the gate. As she walked past him, he turned to face her, staring and leering. Thompson discussed the behavior with Balazs and told him to leave the women alone. Balazs' conduct appeared to improve for a while. His 60 days probationary employment terminated on October 18, 1987. Thompson was reluctant to elevate him to permanent status and to give him the usual merit raise, but by the end of October it appeared that the problem might have been resolved. Balazs received his raise on November 2, 1987. On November 6, 1987, the primary recipient of Balazs' attentions complained again. Virginia Toole has worked at F.I.T. for about nine years, and presently is the senior administrative clerk in charge of records. Balazs started bothering her almost as soon as he started working there. He jumped out from behind the door to scare her, he asked about her boyfriend and asked F.I.T. students about her personal life. When she brought roses she had received from her boyfriend, he told her he could bring bigger and better. Shortly thereafter, a bag of dead roses was found hanging on the gate. After Virginia Toole complained again, John Laudenslager wrote a memo to Balazs reminding him that he had been counselled previously and informing him that further complaints would result in his immediate termination. Balazs was given the memo on November 6th. He was counselled again by Thompson and Laudenslager and was told to avoid all women at work. His response to the memo was peculiarly cavalier. He asked the foreman if he could put the memo on the bulletin board because it was so ridiculous. That evening, after maintenance hours, the company hosted a social gathering to celebrate the dedication of a new building. Balazs attended the gathering and circulated among the females present, showing them the memo and making derisive remarks related to his claim that his accusers were not identified and that the phrase "too familiar and overly friendly" was not defined to his satisfaction in the memo. One female with whom he wittingly or unwittingly shared his comments was Thompson's wife. The next day, a Saturday, Virginia Toole arrived at work just as Balazs was leaving. He followed her to her office, put his arm around her and asked her to meet him at a local lounge for drinks. He also turned to a friend who was with him and said that she was the lady who was going to get him fired. On Monday, November 9, 1987, he was fired. Ms. Toole had reported his behavior again, and his flagrant actions on the evening of November 6th obviously had not escaped the attention of his supervisors. Although he denies leaving the dead roses and putting his arm around Ms. Toole, Balazs admits that he made a point of opening the entrance gate for the women and conversing with them. He denies that his approaches were improper, but admits that he was counselled repeatedly and was told to ignore the women. He also admits that he knew of no instance where females were overly friendly with other females or males and were not disciplined. His behavior, according to Thompson, was unique, but the company would discipline others of either sex if confronted with the same or similar complaints.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that John Balazs' Petition for Relief from an Unlawful Employment Practice be dismissed. DONE and RECOMMENDED this 1st day of May, 1989, in Tallahassee, Florida. MARY CLARK 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 1st day of May, 1989. COPIES FURNISHED: John S. Balazs 2007 Dunbar Avenue Melbourne, FL 32901 Wayne L. Helsby, Esquire 201 South Orange Avenue Barnett Plaza Suite 740 Orlando, FL 32801 Margaret Agerton Clerk of the Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750 Donald A. Griffin Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1750
The Issue The issue presented for decision herein is whether or not Petitioner, by failing to disclose an arrest conviction and sentencing on a license application (as the applicant administrator), constitutes grounds for revocation of an ACLF license granted pursuant to that application as provided in Section 400.414(1), (2), (b), Florida Statutes.
Findings Of Fact Petitioner applied for an initial ACLF license on or about April 10, 1985 and a license was issued pursuant thereto on July 17, 1985. In Section 4 of the initial license application, the question is asked "have you ever been arrested or convicted of a crime involving injury or harm to persons, or financial or business management (e.g., assault, battery, robbery, embezzlement or fraud)". Applicant Lorraine Cooney, answered "no" and marked the section seeking further information about such arrest or conviction: "N/A". In fact, applicant Cooney's 1986 renewal application filed June 7, 1986, indicates that she was convicted in March 5, 1985, in Federal Court of Income Tax Fraud. Specifically, a review of a letter from Ms. Cooney's U.S. Probation Officer, Terry M. Levix, indicates that Ms. Cooney pled guilty on January 4, 1985 to two counts of a two count indictment charging that she filed a fraudulent claim to the United States Treasury and was placed on two years probation effective February 5, 1985. Ms. Cooney did not contest the conviction of the fact that she was placed on probation. At hearing, applicant Cooney admitted the facts of the arrest and conviction but contested the revocation of her license based on her contention that she has operated the facility in accordance with all applicable standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner's appeal of the Department's revocation of her ACLF license be DENIED. RECOMMENDED this 20th day of June, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 20th day of June, 1988. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of HRS 5190 Northwest 167th Street Miami, Florida 33014 Joaquin J. Iglesias, Esquire 2001 Northwest 7th Street Suite 303 Miami, Florida 33125 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Petitioner timely filed a complaint of discrimination in accordance with the provisions of Chapter 760, Florida Statutes (2009).
Findings Of Fact Prior to November 28, 2007, the Petitioner was employed by the Respondent. On November 26, 2008, the Petitioner sent a Technical Assistance Questionnaire (TAQ) to the Florida Commission on Human Relations (FCHR). The TAQ was submitted via facsimile transmission and was not signed. The Petitioner believed she was complying with the directives of the FCHR website and that follow-up assistance (from the FCHR) would not be required. The Petitioner did not understand that a signature was required, notwithstanding the place for same (along with a date) on page 2 of the TAQ. The Petitioner maintains that the FCHR website instructions were unclear and that she erroneously relied on the directions that did not specify she was required to sign the TAQ. The Petitioner filed a signed Charge of Discrimination with the FCHR on January 14, 2009. On February 5, 2009, the Petitioner received a "Notice of Receipt of Complaint" from the FCHR. At the same time, a copy of the complaint was furnished to the Respondent, who was then, presumably, put on notice of the Petitioner's charge. The FCHR did not advise the Petitioner that the TAQ had to be signed. In the course of its review of the instant charge, the FCHR entered a determination of "untimely." Per the FCHR's assessment, the charge of discrimination was filed more than 365 days from the last incident or act of discrimination. Thereafter, the Petitioner elected to file a Petition for Relief to challenge the determination and to seek relief against the Respondent. The Commission then forwarded the matter to the Division of Administrative Hearings for formal proceedings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim of discrimination. DONE AND ENTERED this 29th day of September, 2009, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2009. COPIES FURNISHED: Mark Levitt, Esquire Allen, North & Blue 1477 West Fairbanks Avenue, Suite 100 Winter Park, Florida 32789 Marie C. Perez 517 29th Street West Palm Beach, Florida 33407 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether two persons were employees or independent contractors of Respondent, pursuant to Chapter 440, Florida Statutes, and, if employees, an additional issue is the penalty that Petitioner should impose against Respondent for his failure to obtain workers’ compensation coverage for the two employees.
Findings Of Fact At the time in question, Respondent was in the business of erecting enclosures for swimming pools. On most of these jobs, Respondent served as a subcontractor of Commercial Residential Construction. On April 7, 1998, Respondent was providing labor and materials, as a subcontractor to Commercial Residential Construction, on a screened-enclosure job located at 2242 Otter Creek Lane in Sarasota. Commercial Residential Construction supplied the aluminum and screen used for this job. For this job, Respondent hired two individuals who had worked for Commercial Residential Construction or other independent contractors in the construction business. Respondent did not have workers’ compensation coverage for the two individuals working with him on this job. Respondent’s agreement with these two persons was to pay them, on a weekly basis, a specified percentage of the total price that Respondent was to receive for the work. If the contractor refused to pay Respondent due to unsatisfactory work, then Respondent would not pay the two individuals. The two individuals had to supply their own tools. Sometimes they transported themselves to the job site; sometimes, as a matter of convenience, Tom Dybalski, the owner of Respondent, transported them or was transported by them. The two individuals did not testify. Petitioner called Mr. Dybalski as a witness; otherwise, Petitioner’s witnesses consisted exclusively of staff and investigators. However, these witnesses were unable to establish the statements of the two putative employees because of hearsay. The findings of fact contained in this recommended order are derived from Mr. Dybalski’s testimony or admissions made to one of Petitioner’s investigators. However, the administrative law judge has not relied on hearsay testimony, which is admissible under the exception for admissions against interest, that Mr. Dyblaski admitted that the two individuals were employees. Mr. Dyblaski is an aluminum contractor, not an attorney, and his “concession” concerning a complex matter, especially given his obvious ignorance of the applicable legal criteria, is not entitled to any weight. Admissible evidence does not establish whether the two individuals had exemptions from workers’ compensation. Mr. Dybalski testified that he did not know whether they did. The two individuals did not testify, so it is impossible to determine from this source whether they had exemptions. The record is similarly devoid of competent evidence establishing Respondent’s contention that the two individuals were employees of Commercial Residential Construction while working on the subject job.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order finding Respondent guilty of failing to obtain workers’ compensation coverage to two employees and imposing a penalty in the amount of $1000. DONE AND ENTERED this 9th day of September, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 Filed with the Clerk of the Division of Administrative Hearings this 9th day of September, 1998. COPIES FURNISHED: Louise T. Sadler Senior Attorney Division of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 A. Brent McPeek Attorney 3986 South Tamiami Trail Venice, Florida 34293 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
