The Issue Whether the respondent committed the violations alleged in the Administrative Complaint, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and the entire record of this proceeding, the following findings of fact are made: Dr. Allen is, and has been at all times relevant to this proceeding, a licensed veterinarian in the State of Florida, having been issued license number VM 0003475 by the Department of Business and Professional Regulation. The Department is the licensing authority for persons who seek to practice veterinary medicine in Florida. The Division of Pari-Mutuel Wagering ("Division") is a subdivision of the Department of Business and Professional Regulation. It is the licensing authority for the pari-mutuel wagering industry, with the responsibility for issuing occupational licenses to persons connected with racetracks, including veterinarians. The Division does not have jursidiction to issue or discipline licenses to practice veterinary medicine in Florida. Three stewards are assigned to a racetrack to ensure that the rules of racing are followed; one is employed by the state and two by the racing association at the particular pari-mutuel facility. The stewards have the authority to impose discipline upon persons who have pari-mutuel wagering occupational licenses if they find that the rules have been violated. On December 21, 1993, Dr. Allen was working at Calder Race Course as a veterinarian, and he was fined $500.00 in a ruling of the stewards at the Tropical Park at Calder Race Course for violation of Calder Racing Association Rule 1.21(4). The fine was imposed for Dr. Allen's failure "to conduct his business in a proper manner as an equine veterinarian in regard to the keeping of his records and the filing of bills." The charge which was the subject of the stewards' ruling derived from testimony Dr. Allen gave during a stewards' hearing regarding a positive drug test on a race horse named Ski Robbery. The charges at issue in the hearing were not brought against Dr. Allen but against the trainer of Ski Robbery. However, during the course of his testimony at the hearing, Dr. Allen admitted that he had added money to a bill submitted to the trainer for services rendered to Ski Robbery. On January 31, 1994, the Division filed an Administrative Complaint against Dr. Allen's pari-mutuel wagering occupational license, alleging violation of several of the Division's rules. In its Administrative Complaint, the Division alleged, among other things, that Dr. Allen had admitted to padding his bill to an owner/trainer by administering only one of the several drugs listed on the bill and that Dr. Allen had included an entry on a Veterinary Report of Medication filed with the state which was, by his own admission, false. On June 7, 1994, Dr. Allen entered into a Consent Order with the Division to settle the case and avoid further litigation. The Division of Pari- Mutuel Wagering agreed to accept a fine of $1,000 from Dr. Allen in full resolution of the matters contained in the Administrative Complaint. The Consent Order expressly stated that Dr. Allen did not admit liability or culpability with regard to the charges alleged in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Veterinary Medicine enter a Final Order finding Jonathan S. Allen guilty of violating section 474.214(1)(b), Florida Statutes (1993), imposing an administrative fine of $500.00 for this violation, and dismissing Count II of the Administrative Complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March 1996. PATRICIA HART MALONO Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March 1996.
The Issue The issue is whether Respondent committed an unlawful employment practice in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Petitioner was employed for approximately five years with Respondent as a salesman. RF Group, LLC, is a limited liability company, doing business as Respondent, McGowan's Heating and Air Conditioning, and is a company engaged in the heating and air conditioning business. Petitioner was a successful salesman for four and one- half years with the company until a new salesman was hired. According to Petitioner, the new salesman was given most of the sales leads and Petitioner was cut out. Eventually, Petitioner's salary was reduced due to a decrease in his sales performance. He attributes his decrease in sales production to Respondent choosing the new salesman over him. Although he claimed age discrimination in his initial complaint, Petitioner offered no evidence or testimony that he was not given the sales leads due to his age and that the younger salesman received the leads because Respondent considered Petitioner too old to conduct his business. Petitioner resigned his position with Respondent because he was not making enough salary. After his resignation, Petitioner went to work with Total Air Care, but his employment was terminated due to company lay-offs in October 2010.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding Respondent not guilty of the "unlawful employment practice" alleged by Petitioner and dismissing Petitioner's employment discrimination charge. DONE AND ENTERED this 11th day of August, 2011, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 11th day of August, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 G. Alan Howard, Esquire Milam, Howard, Nicandri, Dees & Gilliam, P.A. East Bay Street Jacksonville, Florida 32202 Luis G. Arias 3526 Laurel Leaf Drive Orange Park, Florida 32065 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Department is the state agency charged with the responsibility of regulating licensees in the pari-mutuel industry. Respondent, Albert P. Polito, holds a pari-mutuel wagering occupational license, license number 12037440-1081, and at all times material to this case was operating as a trainer at Pompano Park, a pari-mutuel wagering race grounds. In 1993, Respondent was employed by the Erenstoft family to train and race a standardbred horse named "Handy A." "Handy A" was purchased by Mrs. Erenstoft in 1992. Mrs. Erenstoft paid $4,500 for the horse. As is customary in the industry, "Handy A" was delivered to Respondent's care and custody. As the trainer Respondent was responsible for the stable fees, food, training, and care of the horse. In return, the owner paid Respondent a monthly trainer's fee. When "Handy A" sustained an injury in July, 1994, he was unable to continue racing. Respondent wanted to turn the horse out. Turning a horse out allows them recuperative time to determine whether the injury will heal sufficient to allow the horse to return to racing. In this case, the Erenstofts agreed that Respondent could turn out "Handy A." Respondent advised the Erenstofts that "Handy A" was turned out to a farm somewhere in central Florida. The Erenstofts paid all monies which were owed to Respondent for the care and training of "Handy A." The Erenstofts have not sold nor agreed to sell "Handy A." The Erenstofts have not seen "Handy A" since July, 1994. When Respondent did not return "Handy A" to Pompano Park after demands for same were made, the Erenstofts began inquiries to attempt to locate the horse. Since no attempt to register a new owner has occurred it is presumed the new owner does not race "Handy A" within the regulated pari-mutuel industry. One market available for such a horse is with the Amish. Typically buyers representing the Amish visit Pompano Park to acquire standardbred horses trained to pull carts. In this case, Respondent told Vic Papeo he had "Amished" the subject horse. If, in fact, "Handy A" was sold to the Amish it will be extremely difficult, if not impossible, to recover the horse. Respondent has not paid the Erenstofts for the sale of "Handy A." CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 550.105(6), Florida Statutes, provides, in pertinent part: The division may deny, revoke or suspend any occupational license if the applicant therefor or holder thereof accumulates unpaid obligations or defaults in obligations... Furthermore, Rule 61D-1.006(3)(a) states: The division may deny a license to or revoke, suspend or place conditions upon or restrictions on a license of any person, or rule off or declare ineligible any person who: 2. Has unpaid fines or financial obligations; In this case, there has been clear and convincing evidence presented that Respondent incurred a financial obligation to the Erenstofts and failed to return the horse, "Handy A." It is presumed Respondent disposed of the horse, by sale or otherwise, without the owner's permission. Respondent has failed to meet financial obligations and is, therefore, ineligible for licensure.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Division of Pari-Mutuel Wagering enter a final order revoking the pari-mutuel wagering occupational license of Respondent. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 24th day of December 1996. JOYOUS D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December 1996. APPENDIX Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 14 are accepted. Rulings on the proposed findings of fact submitted by the Respondent: None submitted. COPIES FURNISHED: Royal H. Logan, Acting Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Thomas W. Darby, Esquire Department of Business and Professional Regulation Division of Pari-Mutuel Wagering Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-1007 Albert Polito 5440 Northwest 55th Boulevard Apartment 11-207 Coconut Creek, Florida 33073
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 The issues in this case are whether Respondent, Frank D. Inserra, violated Section 550.105(7), Florida Statutes (2007), as alleged in Count I of an Amended Administrative Complaint issued by Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, on October 15, 2007, and, if so, what disciplinary action should be taken against his Florida pari-mutuel wagering occupational license.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (hereinafter referred to as the “Division”), is an agency of the State of Florida created by Section 20.165(2)(f), Florida Statutes, and charged with the responsibility for the regulation of the pari- mutuel wagering industry pursuant to Chapter 550, Florida Statutes. Respondent, Frank D. Inserra, is, and was at the times material to this matter, the holder of a pari-mutuel occupational license, number 115731-1021, issued by the Division. On or about June 14, 2005, a Complaint was filed by Kenneth Posco against Mr. Inserra in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida (hereinafter referred to as the “Posco Complaint”). In relevant part, the Posco Complaint alleged the following: This is an action for damages in excess of $15,000.00, exclusive of interest and costs. At all times material hereto, Posco was and is an individual residing in Fitchburg, Massachusetts. At all times material hereto, Inserra was and is an individual residing in Broward County and is otherwise sui juris. . . . . On or about November 11, 2004, after a negotiated agreement for the purchase of certain thoroughbred racehorses was not honored by Inserra, Posco and Inserra entered into and [sic] agreement for the repayment of the funds previously forwarded by Posco to Inserra for such purchase (the ”Contract”). . . . Pursuant to the Contract, Inserra was to make certain periodic payments, in order to make full payment of the agreed upon sum of $40,186.00. Inserra has failed to make any of the periodic or final payments described in the Contract. . . . . The Contract referred to in the Posco Complaint is a settlement agreement entered into between Mr. Inserra and Mr. Posco to resolve Mr. Inserra’s failure to abide by the terms of an oral contract whereby Mr. Inserra agreed to sell four thoroughbred horses to Mr. Posco which were to be used by Mr. Posco in pari-mutuel racing. The Contract was entered into by Mr. Inserra and Mr. Posco on or about November 11, 2004. Pursuant to the Contract referred to in the Posco Complaint Mr. Inserra acknowledged, in part, the following: WHEREAS, Inserra, Seller, and Posco, as Purchaser, entered into an oral agreement for the purchase of certain horses (hereinafter “Agreement”) in which Inserra agreed to furnish four (4) total horses together with all required paperwork, in exchange for $36,750.00, prepaid by Posco; and WHEREAS, a dispute has arisen concerning the performance of Inserra under the Agreement; and WHEREAS, Inserra produced Stormin Hillbilly without the required papers (Jockey Club Registration) to allow Posco to race the horse, as anticipated by the Agreement, thus Posco has paid $3,436.00 for training fees, which he now seeks to be reimbursed as the horse has never been able to race; and WHEREAS, Inserra failed to produce any of the remaining three horses; and WHEREAS, Inserra and Posco are desirous of resolving all disputes and controversies regarding the proposed sale. NOW, THEREFORE inconsideration of the mutual covenants hereinafter set forth and other valuable consideration, the parties hereby agree as follows: Inserra shall, within [30] days, pay to Posco $16,000.00. Inserra will then, within [90] days pay to Posco $10,250.00. Inserra will then, within [120] days pay to Posco $13,936.00. . . . . When Mr. Inserra failed to live up to the terms of the settlement agreement, Mr. Posco filed the Posco Complaint. On or about January 6, 2006, Mr. Posco filed Plaintiff, Keneth [sic] Posco’s Motion for Summary Judgment. On February 8, 2006, the Motion was granted and a Judgment was entered in the Circuit Court of the 17th Judicial Circuit, in and for Broward County, Florida, against Mr. Inserra (hereinafter referred to as the “Judgment”). Mr. Inserra was ordered to pay Kenneth Posco $42,075.78. The Judgment was issued as a direct consequence of Mr. Inserra’s breach of the contract he entered into with Mr. Posco for the sale and purchase of thoroughbred racehorses in Florida, a contract which related directly to the sport of racing in pari-mutuel facilities in Florida. On June 18, 2007, the Judges/Stewards at Calder Race Course issued the following written ruling (Calder Order) against Mr. Inserra as a result of the Judgment: Judgment issued by the 17th Judicial Circuit Court in and for Broward County, Florida, on February 8th, 2006, orders Frank D. Inserra to Pay [sic] Kenneth Posco $42,075.78 plus attorney fees. This judgment has not been satisfied. Owner Frank D. Inserra, having been afforded a formal hearing before the Board of Stewards at Calder Race Course on Monday, June 18th, 2007, is suspended sixty days or until such time as the judgment is satisfied or vacated by the court. Suspension will commence on Thursday, June 21, and continue through and including Monday, August 20th, 2007. Denied access, use, and privileges of all grounds under the jurisdiction of the Florida Division of Pari-Mutuel Wagering requiring a license for admission during the term of suspension. The Calder Order was affirmed in a Final Order of the Division entered on or about August 24, 2007. As of the date of the final hearing of this matter, the obligation imposed on Mr. Inserra by the Judgment, which arose out of a transaction relating directly to the sport of racing being conducted at pari-mutuel facilities within Florida, remained unpaid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering: Dismissing Count II of the Amended Administrative Complaint; Finding that Respondent is guilty of the violation alleged in Count I of the Amended Administrative Complaint; and Suspending Mr. Inserra’s pari-mutuel wagering occupational license for a period of not less than ten days and continuing until Mr. Inserra provides satisfactory proof that he has satisfied his outstanding financial obligation to Kenneth Posco as ordered in the Judgment. DONE AND ENTERED this 9th day of April, 2008, in Tallahassee, Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2008. COPIES FURNISHED: Charles T. “Chip” Collette Assistant General Counsel Office of the General Counsel Division of Pari-Mutuel Wagering Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Frank D. Inserra 2649 Sable Palm Drive Miramar, Florida 33023 David J. Roberts, Director Division of Pari-Mutuel Wagering Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent Employer is guilty of an unlawful employment practice by discrimination in its failure to promote Petitioner on the basis of her race and/or gender.
Findings Of Fact Petitioner is an African-American female. Respondent is a constitutional office of local government that appraises property for tax purposes. At hearing, Petitioner claimed to have sent a written narrative of her concerns to FCHR on December 20, 2005, although she did not file her formal Charge of Discrimination until December 28, 2005.1/ At the commencement of the disputed-fact hearing, Petitioner indicated that the only issue to be determined was her entitlement to a promotion, and that no other discrimination claims were at issue in this case. Petitioner also indicated that she was challenging only two alleged promotional decisions: (1) a front counter position awarded to Valencia Scott; and (2) a sales qualifier position awarded to Mike Nichols.2/ Prior to being employed by Respondent, Petitioner had received a B.S. in criminal justice, with a minor in business administration, from Troy State University. Prior to being employed by Respondent, Petitioner worked as a substance abuse counselor with Corrections Corporation of America; as a regulatory specialist with the Florida Department of Business and Professional Regulation; as an evaluation specialist with Disc Village; as a drug treatment counselor with the Alabama Department of Corrections; and as a mental health associate with Tallahassee Memorial Hospital. During her employment with Respondent, Petitioner also worked part-time in a cleaning job. Petitioner was initially hired by Respondent approximately January 2003, as an “Other Personal Services” (OPS) employee. (Stipulated Fact). While serving as an OPS employee between January 2003, and October 2003, Petitioner was not entitled to, and did not receive, the usual benefits and emoluments of a regular, full-time employee, including but not limited to, membership in the Florida Retirement System, paid annual and sick leave, and health insurance. While employed as an OPS employee, Petitioner answered Respondent’s telephone switchboard and performed data entry duties. In approximately October 2003, Petitioner was employed in a full-time position at a higher rate of pay and full benefits. (Stipulated Fact.) In October 2003, Respondent promoted Petitioner into a newly-created full-time position of "switchboard operator." Prior to the creation of this switchboard operator position, various employees had worked the switchboard in the equivalent of four-hour shifts, because working the switchboard non-stop was monotonous in good times and was hectic and stressful due to the number of phone calls received during two peak periods each year. On some occasions prior to October 2003, part-time students also had been used for this purpose. Petitioner was offered the promotion on October 8, 2003, with an effective starting date of October 16, 2003. Upon this starting date, Petitioner was employed by Respondent in a full-time position at a higher rate of pay than she had received as an OPS employee, and began to receive retirement benefits, annual and sick leave, and health insurance. In 2003, Respondent promoted five employees. Four of the five promoted were African-American and/or female. Petitioner was one of the four African-American females promoted that year. From December 28, 2004, through December 28, 2005, none of Respondent’s employees were promoted. During this same period, Respondent had no promotional opportunities of any kind available to any employee. There also were no promotions between December 20, 2004, and December 28, 2005. (See Exhibit P-4 and Finding of Fact 11.) Petitioner received raises throughout her employment with Respondent. During busy times, she was provided additional assistance with her phone duties upon her request, because management agreed with her that the switchboard position was stressful. Petitioner consistently received excellent performance reviews. In September 2005, Petitioner asked her immediate supervisor, Shirley Eaton-Marks, where Respondent would advertise a front-counter position that was expected to become vacant. Petitioner testified that Ms. Eaton-Marks “vaguely” responded, "I am not sure. Sometimes on the Internet or in the [Tallahassee] Democrat."3/ In or about September 2005, Petitioner was provided an extended period of leave for back surgery and recovery. (Stipulated Fact.) Petitioner was on sick leave from September 28, 2005, through November 14, 2005. Respondent provided Petitioner as much leave as she needed for her surgery and recovery. When she ran out of her own accrued paid leave, sick leave was donated to Petitioner by a co-employee. During her leave of absence, food drop-offs to Petitioner’s home were coordinated by her co-employees. Hot meals were provided by co-employees to Petitioner and her family, as well as groceries. During one of these deliveries, Petitioner remarked to Michele Weathersby, Respondent's Chief Financial Officer, that Petitioner was appreciative of her co- workers’ efforts and gifts. Petitioner seemed genuinely overwhelmed by their generosity. While on sick leave, Petitioner spoke with Kathy Doolin, Assistant Property Appraiser, about working at the front counter. A sales qualifier position was not available at that time, and by all accounts, even Petitioner’s account, Petitioner never applied for, or made anyone in Respondent's office aware that she was interested in the sales qualifier position. Petitioner claims she was wrongfully denied a front- counter position. She also claims that the front counter position and sales qualifier positions constituted promotional positions for her. Petitioner’s definition of a “promotion” is moving into a position with greater job responsibility and more authority. However, she did not demonstrate what the job responsibilities and authority of the front-counter or sales qualifier positions were. Therefore, the respective responsibility and authority of the three positions cannot be compared. Petitioner has never specifically applied for any promotion while employed by Respondent. The front-counter position was filled by Valencia Scott. Ms. Scott, like Petitioner, is an African-American female. According to Michelle Weathersby, Respondent’s Chief Financial Officer, Respondent defines a “promotion” as moving an employee to a position with an increase in salary and perhaps an increase in benefits, such as a different benefits classification like “senior management” class, instead of “regular employee” class. By these standards, neither the front desk position nor the sales qualifier position would have constituted a promotion for Petitioner, and moving from a front desk position to the sales qualifier position would not have constituted a promotion for anyone. Petitioner returned from sick leave on November 14, 2005. On December 19, 2005, Petitioner requested to speak to the incumbent property appraiser. Petitioner testified that on December 20, 2005, she approached the incumbent property appraiser in his office and asked if he were aware that she was interested in promotion. She further testified that the Incumbent then stated that he was aware Petitioner was interested in promotion, but that "Speaking from the hardhat point of view, you were hired as a favor to my friend. I did not hire you to be promoted or trained in any other position." At hearing, the Property Appraiser emphatically denied making this statement or any similar statement. However, he acknowledged that he had hired Petitioner upon the recommendation of a mutual friend and that on December 20, 2005, Petitioner had come to speak to him about the stress she was feeling in her position as a switchboard operator and about her health problems. Kathy Doolin, who was present for most, but not all, of the December 20, 2005, meeting, also denied under oath that the comment described by the Petitioner had been made by the Incumbent while she was in the room. Further, she confirmed that the thrust of Petitioner's remarks in her presence were not about any promotion but were about the stress Petitioner was experiencing in her switchboard operator job. The testimony of Ms. Doolin, together with the respective narratives written by herself and Petitioner (Exhibits P-2 and P-5) immediately after the December 20, 2005, meeting strongly suggest that the incumbent property appraiser said he had done all he could to relieve Petitioner's job stress and could not transfer Petitioner to another position just because her current position was stressful, and that Petitioner heard these statements as a refusal to promote her at any future date and a lack of appreciation for Petitioner’s college degree and excellent work history. The Incumbent’s and Petitioner’s respective versions of the December 20, 2005, conversation amount to an equipoise of testimony. In other words, one says "yes," and one says "no." This type of evidence is insufficient to tip the balance of weight and credibility to Petitioner's version of events. Moreover, even if Petitioner's version of the Incumbent's December 20, 2005, statement to her, allegedly made outside Ms. Doolin’s presence, were the more credible version, which it is not, Petitioner’s version of what the Incumbent allegedly said expressed no racial or gender bias. Petitioner testified that she believed that what the incumbent property appraiser had said on December 20, 2005, and how he had said it, created a hostile work environment. However, Petitioner never filed any internal complaints with Respondent alleging that she had been subjected to a hostile work environment. In fact, she filed no internal discrimination complaints of any kind concerning the December 20, 2005, meeting, and the term "hostile work environment" did not appear until her July 6, 2006, Petition for Relief, which was filed after FCHR's "Determination: No Cause." On her lunch hour, either December 20 or 21, 2005, Petitioner telephoned her physician, because she was still upset by her perception of the December 20, 2005, meeting. Petitioner never returned to work after December 21, 2005. On December 23, 2005, Petitioner's doctor wrote a note for her to be off work from December 22, 2005, until January 2, 2006, due to undefined "significant health problems." On or about December 23, 2005, three days after the December 20, 2005 meeting, when Petitioner was no longer on the job, Mike Nichols, a Caucasian male, was transferred from the front counter into a sales qualifier position. Mr. Nichols had previously worked in Respondent's Deed Section and in its Mapping Section and had recently received his law degree from the University of Florida. Respondent considered Mr. Nichols to be a suitable candidate for the sales qualifier position. Upon transfer, Mr. Nichols did not receive a raise in his rate of pay. Petitioner never applied for the sales qualifier position (see Finding of Fact 18) and was not on the job when that position was filled. (See Finding of Fact 29.) While the duties of a sales qualifier were not developed at hearing, the job title “sales qualifier” suggests that Petitioner was arguably not as good a fit for the sales qualifier position, as was Mr. Nichols. Petitioner’s education was primarily in criminal justice, and her job experience was primarily in drug rehabilitation and answering a switchboard. Mr. Nichols’ legal education and training and his office experience with Respondent may have made him a superior candidate for the sales qualifier position. When contacted by her superiors, Petitioner gave no reason for leaving work, except that it would be "best under the circumstances." On January 4, 2006, Petitioner voluntarily resigned her employment with Respondent. (Stipulated Fact.)
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and its subordinate Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. 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 3rd day of November, 2006.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of his national origin in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact No findings are made in this case. Petitioner did not appear and did not submit evidence to support findings of fact.
The Issue The issue in the case is whether Clifford McCullough (Petitioner) was the subject of unlawful discrimination by Nesco Resources (Respondent) in violation of chapter 760, Florida Statutes (2015)1/.
Findings Of Fact The Respondent is a company that refers pre-screened job candidates to employers upon request by an employer seeking to fill a specific position. The Petitioner is an African-American male, born in 1959, who sought employment through the Respondent. The Respondent does not make the hiring decision. The actual decision is made by the employer requesting referrals from the Respondent. The Respondent is compensated by the employer if and when the employer hires an applicant referred by the Respondent. On occasion, the Respondent publishes advertisements seeking applications to fill specific positions, such as “forklift drivers.” The fact that the Respondent seeks applications for specific positions does not mean that an employer has contacted the Respondent seeking referrals for such positions. The advertisements are used by the Respondent to create an inventory of applicants who can be referred to employers. On December 20, 2013, the Petitioner submitted a job application to the Respondent seeking a “forklift driver” position. At that time, the Petitioner indicated to the Respondent that he was available to perform “warehouse, packing, production, shipping and receiving tasks.” Several weeks prior to the Petitioner’s application, the Respondent had referred job candidates to an employer seeking to fill an available forklift driver position. The employer filled the position by hiring an African-American male born in 1961 who was referred to the employer by the Respondent. As of December 20, 2013, the Respondent had no pending employer requests seeking referrals to fill forklift driver positions. The evidence fails to establish that the Respondent had any employer requests at that time which were consistent with the Petitioner’s skills. The Respondent’s general practice when contacted by a prospective employer is to recommend applicants who have maintained ongoing contact with the Respondent’s staff after the submission of an application. There was minimal contact between the Petitioner and the Respondent after the Petitioner submitted his application in December 2013. The Respondent presumes that some people who submit applications subsequently relocate or obtain employment elsewhere. Accordingly, the Respondent requires that previous applicants periodically submit new employment applications so that the Respondent’s inventory includes only active job seekers. On April 8, 2014, the Petitioner submitted another application to the Respondent. Also in April 2014, an employer contacted the Respondent to obtain referrals to fill another forklift driving position. The employer filled the position by hiring an African- American male born in 1964, who was referred to the employer by the Respondent. Prior to his referral for the forklift driver position, the successful applicant routinely contacted the Respondent’s staff, in person and by telephone, regarding available employment opportunities. The evidence fails to establish whether the Respondent was included within the applicants who were referred to the requesting employer. There is no evidence that the Respondent’s referral process reflected factors related to any applicant’s race, color, sex, or age. The Petitioner has also asserted that his application should have been referred to an employer who, on one occasion, was seeking to fill an available cleaning position. The position was a part-time job paying an hourly wage of $10. The Petitioner had not submitted an application for such a position. Nothing in the information provided by the Petitioner to the Respondent indicated that the Petitioner was interested in such employment. Through the Respondent’s referrals, the employer filled the cleaning position by hiring an African-American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petitioner's complaint of discrimination. DONE AND ENTERED this 21st day of June, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of June, 2016.
The Issue The issue for determination is whether Petitioner was subjected to a hostile work environment condoned by Respondent due to Petitioner's race and sex in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact Petitioner was previously employed by the Auditor General, Division of Public Assistance Fraud. That program, along with Petitioner, co-workers, and the persons in her chain of command, were later legislatively transferred to the Florida Department of Law Enforcement. On January 28, 1999, Petitioner filed a complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that the State of Florida, Office of the Auditor General discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01- 760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's race (African- American) and sex (female). Petitioner claimed that Respondent's actions created a hostile work environment as a consequence of her race and/or sex. Petitioner has not been demoted, reassigned, or terminated by her employer. Petitioner complained of certain events that occurred in 1994 regarding the assignment of particular cases. She alleged that she was not being fairly treated in the assignment of pending cases. These events, which occurred in 1994, are time-barred from further consideration by virtue of Section 760.11(1), Florida Statutes, which requires filing of a complaint within 365 days of occurrence of an alleged violation. On one occasion on an unspecified date during her employment, a co-worker asked Petitioner whether her ponytail was real. On March 11, 1998, Regional Supervisor William Martin, a white male, typed a memorandum for Petitioner. The memorandum was precipitated by a conference between Petitioner and her immediate supervisor in which procedures regarding work hours, breaks, and lunch hours were discussed. Petitioner was told in the course of the conference that some staff members perceived Petitioner as "not playing by the rules." Petitioner responded through the memorandum typed by Martin. The memorandum set forth Petitioner's complaints concerning her work situation, inclusive of her observation that others were committing the same violations of policy of which she was accused with no repercussions occurring to them. Petitioner had the opportunity to review a draft of the memorandum and made corrections to the draft. Petitioner then signed the final version of the memorandum, which included Petitioner's express declination to pursue the matter further, stating that she "wanted my personal concerns and feelings on record." Nowhere in the memorandum does Petitioner allege that she has been treated differently on the basis of her race or her sex. There are two supervisors in Respondent's Jacksonville, Florida, office. Petitioner’s immediate supervisor is Laverne McKinney, an African-American female. The other supervisor in the Jacksonville office is Stan Stephens, a white male. The relationship between Stan Stephens and Petitioner is strained. The strained relationship is not due to racial or sexual discrimination. On one occasion during Petitioner's employment, Stan Stephens asked Laverne McKinney to instruct Petitioner to let him know when Petitioner would not be available to work until 5:00 p.m., so that the office could be properly manned until that time. The request followed an incident when Stephens, who usually leaves the office at 4:30 p.m., was unable to find someone to mind the office when he left. Unknown to Stephens, Petitioner had left early to perform official business for Respondent. On another occasion during Petitioner's employment, while Laverne McKinney was the designated "Acting Regional Supervisor," Stan Stephens called William Martin, a former supervisor at the time, on a travel issue regarding Petitioner. Martin was working in Respondent's Miami, Florida, office at the time and McKinney was away from the Jacksonville Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 13th day of February, 2001, 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 13th day of February, 2001.
