The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2008),1 by discriminating against Petitioner based on his national origin (Hispanic), by limiting, segregating, or classifying employees in a discriminatory fashion, or by retaliating against Petitioner for his opposition to unlawful employment practices.
Findings Of Fact Respondent is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Respondent is a family owned company based in Winter Park that installs residential and commercial insulation and acoustical ceilings and tiles. The company is divided into two divisions. The Insulation Division is headed by William Aldrich. The Acoustic/Ceiling Division is headed by Dale Aldrich, Jr., who was Petitioner's ultimate supervisor. Subsequent references to "Mr. Aldrich" are to Dale Aldrich, Jr. Petitioner, a Hispanic male originally from the U.S. Virgin Islands, was hired by Respondent in February 2006 to work in the Acoustic/Ceiling Division. He was hired as a tile installer, the entry-level position in the Acoustic/Ceiling Division. A tile installer drops ceiling tiles into the gridwork installed by a ceiling mechanic. With experience, a tile installer may work his way up to ceiling mechanic. "Ceiling mechanic" is not a licensed position, and there is no formal progression through which an employee works his way up to this more skilled, higher paid position. Advancement depends on management's recognition that an employee's skills have advanced to the point at which he can be entrusted with the mechanic's duties. Three to four years' experience is generally required to advance from tile installer to ceiling mechanic. By all accounts, including those of the ceiling mechanics who supervised him at job sites and that of Mr. Aldrich, Petitioner was more than competent as to his actual job skills. During the approximately thirteen months he worked for Respondent, Petitioner received four pay raises. He was making $14.00 per hour at the time of his termination in August 2007. The evidence produced at the hearing demonstrated that Petitioner had problems controlling his temper on the job. He was generally negative and quick to take offense at perceived slights, especially when he inferred they were due to his national origin. During his employment with Respondent, Petitioner was involved in at least three altercations with fellow employees and/or general contractors for whom Respondent worked as a subcontractor. The earliest incident occurred in October 2006. Petitioner was working on a job site at which Respondent was a subcontractor for Harkins Development Corporation. Petitioner testified that a Harkins supervisor named Harley was "commanding" him to perform tasks on the job site. Petitioner was affronted, because he was not Harley's employee and because Harley, who was white, did not appear to be giving commands to the white employees of Respondent. After lunch, Harley feigned that he was about to throw a soft drink at Petitioner. In fact, the Wendy's cup in Harley's hand was empty, though a drop or two of condensation from the outside of the cup may have landed on Petitioner. In Petitioner's version of the story, Petitioner then stood up and asked Harley if he would enjoy being on the receiving end of such treatment. Petitioner then phoned Mr. Aldrich and asked to be sent to a different job site. Mr. Aldrich refused, and instead scolded Petitioner. Petitioner believed that Mr. Aldrich was retaliating for his complaint. Petitioner walked off the job site for the rest of the day, and worked at a different site the next day. Petitioner entered into evidence the written statement of his co-worker, Eddy Abud. Mr. Abud is Hispanic, with a national origin in the Dominican Republic. Mr. Abud witnessed the confrontation between Petitioner and Harley. Mr. Abud stated that Harley shook his cup and a "couple drops" of water splashed on Petitioner, who "went ballistic." Petitioner used obscenities against Harley and invited him to fight. Harley threw Petitioner off the job, an action with which Mr. Abud agreed. Petitioner entered into evidence the written statement of his co-worker, Robert "Pappy" Amey. Mr. Amey is white, and wrote that Petitioner "acted like a man all the time" except for the incident with Harley. Mr. Amey's statement reads as follows, in relevant part: Harley had a big drink cup and he turned around and flipped it, playing, nothing came out. Justo lit up [and] called him a mother fucker a dozen times. He said if I find you on the street, I'll kill you. I leaned to him and I said, "Justo, shut up." He did not, he cussed Harley out the door. It was Harley's job. This was unprofessional behavior by Justo. It was just horseplay and it was empty. No reason to act like that. Despite his overall respect for Petitioner, Mr. Amey stated that Petitioner should have been fired for his actions. Mr. Aldrich testified that Harley called him and told him that Petitioner had threatened him. Petitioner told Harley that he would not do anything on the job, but would "kick his ass" if he saw him away from the job. Mr. Aldrich stated that Harkins was one of Respondent's largest, longest-standing accounts, and that he knew Harley as a "stand up guy" who would have no reason to lie about such an incident. The second incident occurred later in the same month, on October 31, 2006. Petitioner was working for Respondent on a project at the University of Central Florida. A ceiling mechanic named Adam Sorkness was in charge of the project. Petitioner testified that Mr. Sorkness had already angered him in September 2006 by making racial jokes about black employees, and that Mr. Aldrich had separated Petitioner from Mr. Sorkness on subsequent jobs up to October 31, 2006. At first, there were no problems on the University of Central Florida job. Petitioner accepted his assignment from Mr. Sorkness. On this day, every man on the job was installing ceiling tile, which involved wearing stilts. According to Petitioner, two white employees arrived later in the morning and decided to work together, leaving Petitioner to work with Isaiah Fields, a black employee whom Petitioner alleged was the butt of Mr. Sorkness' earlier racial jokes. Petitioner became agitated because it appeared the two white employees were doing no work. Mr. Fields testified that he and Petitioner were working around a corner from Mr. Sorkness. They heard loud laughter from around the corner. Mr. Fields said that the laughter was not directed at him or Petitioner, but that it appeared to anger Petitioner, who said, "Wait a minute," and headed around the corner on his stilts. Mr. Fields stayed put and thus did not see the subsequent altercation. Petitioner approached Mr. Sorkness, who was also on stilts. Petitioner complained about the job assignments. Mr. Sorkness replied that everyone was doing the same job and that Petitioner could leave if he didn't like it. Petitioner became more incensed, calling Mr. Sorkness a "sorry white faggot." Petitioner took off his stilts, then confronted Mr. Sorkness at very close range. Mr. Sorkness pushed Petitioner away. Petitioner then charged Mr. Sorkness and they engaged in a brief fight. Ben Davis, a white ceiling mechanic who witnessed the altercation, called it a "scuffle."3 Mr. Aldrich investigated the matter and determined that Petitioner was the instigator of the fight. He suspended Petitioner for three days, and gave Mr. Sorkness a verbal warning. Mr. Aldrich issued a "written warning" to Petitioner cautioning him that he was subject to termination. Mr. Aldrich wrote the following comments: "Justo has been given 3 days off without pay. Normally an employee would be fired for this action. Justo has NO MORE chances. Next offense will result in immediate termination of employment with Energy Savings Systems." The document was signed by Mr. Aldrich and Petitioner.4 Petitioner claimed that Mr. Aldrich cut his hours in retaliation for the UCF incident, and it took several months for his hours to come back up to 40 per week. The time sheets submitted by Petitioner showed fluctuations in his work hours before and after the incident, which is consistent with Mr. Aldrich's testimony that he only cuts hours when work is slow for the company. The evidence demonstrated that Petitioner's hours were reduced at times because he would refuse to take certain jobs, either because of their location or because Petitioner did not want to work with certain people, such as Mr. Sorkness. The third and final incident occurred on August 20, 2007. Petitioner was working on a job for which Respondent was a subcontractor to Alexander-Whitt Enterprises, a general contractor. Alexander-Whitt's superintendent on the job was Dan Alexander. Mr. Alexander asked Petitioner to clean up. Petitioner resented either the order itself or Mr. Alexander's method of delivering it, in light of a brief altercation between the two men on the job site three days earlier. Petitioner threatened to slap Mr. Alexander. Mr. Aldrich testified that he received several calls from Mr. Alexander complaining about Petitioner over the course of this job. Petitioner had an "attitude" about Mr. Alexander's instructing him on the job. Mr. Aldrich apologized. After Petitioner's threat, Mr. Alexander called yet again and told Mr. Aldrich that he wanted Petitioner off the job. After this call, Mr. Aldrich fired Petitioner. Aside from his own suspicions and resentments, Petitioner offered no evidence that his termination had anything to do with his national origin or was retaliation for his complaints about the company's discriminatory practices. In fact, Petitioner never made a formal complaint while he was employed by Respondent. His only "complaints" were to certain co-workers that he was being discriminated against because he was Hispanic. Andy Weatherby, a ceiling mechanic who at times was Petitioner's field superintendent, recalled Petitioner telling him that he felt disadvantaged on the job for being Hispanic, but that Petitioner described no specific incidents of discrimination. Julio Oliva, a junior ceiling mechanic with Respondent, is of Puerto Rican descent. Mr. Oliva testified that he saw no discrimination at the company. He worked often with Petitioner, whom he described as having a negative attitude. Mr. Oliva testified that it was difficult to merely pass the time in conversation with Petitioner, because Petitioner always had something negative to say. Edgar Mullenhoff, also Puerto Rican, has worked for Respondent since 1982 and is the field superintendent for the insulation side of the company. Mr. Mullenhoff described the company as "like a family" and stated that he never felt a victim of discrimination. Mr. Abud's written statement attests that he has had no problems working for Respondent, and that "we have great bosses." Petitioner noted what he termed a discriminatory pattern in the ethnic diversity of the Insulation Division versus the Acoustic/Ceiling Division. While conceding that most of Respondent's employees are Hispanic, Petitioner notes that the great majority of the Hispanics work in the lower paying, less skilled Insulation Division. Petitioner further argued that those few Hispanics hired in the Acoustic/Ceiling Division are given no opportunity to advance to the position of ceiling mechanic. William Aldrich, the head of the Insulation Division, testified that there is a much higher turnover in insulation, and that for the last four years or so the only applicants for the positions have been Hispanic. He credibly testified that he hires anyone who appears capable of doing the job. As to Petitioner's lack of advancement, it must be noted that he worked for Respondent for just a little over one year. Mr. Oliva testified that he has worked for Respondent for five and one-half years. He spent the first two years performing menial tasks and learning on the job. Mr. Oliva stated that Respondent's ceiling mechanics were helpful to him in learning the trade, and he felt no barriers due to his national origin. Mr. Sorkness testified that it took him between four and five years to become a mechanic. Mr. Davis testified that it took him between three and four years to work his way up to ceiling mechanic. The greater weight of the evidence establishes that Petitioner was terminated from his position with Respondent due to misconduct on the job. The greater weight of the evidence establishes that Respondent has not discriminated against Petitioner or any other employee based on national origin.
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 that Energy Savings Systems of Central Florida, Inc. did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 24th day of February, 2009, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 24th day of February, 2009.
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- 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 Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2010.
The Issue The issue to be determined in this case is whether certification should be granted to Duke Energy New Smyrna Beach Power Company, Ltd., L.L.P., and the Utilities Commission, City of New Smyrna Beach, to construct and operate a 500 megawatt (nominal) natural gas-fired, combined cycle electrical power plant on a site located in the City of New Smyrna Beach, Florida, in accordance with the provisions of the Florida Electrical Power Plant Siting Act ("PPSA"), Sections 403.501-.518, Florida Statutes.
Findings Of Fact The Applicants/Petitioners Duke wants to construct, own, and operate a new electrical power plant in the City of New Smyrna Beach, Florida. The UCCNSB needs additional electricity to serve its customers in the New Smyrna Beach area. Accordingly, the UCCNSB signed a contract ("Participation Agreement") with Duke that describes how they will work together to develop a new power plant. Duke/UCCNSB’s contract gives the UCCNSB the right to purchase 30 megawatts ("MW") of the electricity that will be produced by the Project. The UCCNSB has a second contract with Duke to purchase up to an additional 40 MW of power from the Project. Given their mutual interests, Duke and the UCCNSB jointly filed an application under the PPSA for approval of the Project. Public Notice Duke/UCCNSB and DEP provided various notices to the public concerning the Project and the Certification Hearing. Their actions have complied with and satisfied all of the applicable notice requirements in the PPSA and the DEP rules. PSC Need Determination On March 22, 1999, the PSC issued an order (No. PSC-99- 0535-FOF-EI) granting Duke/UCCNSB’s petition for a determination of need for the Project. The PSC determined that the Project is needed and satisfies the criteria in Section 403.519, Florida Statutes. The Site for the New Smyrna Beach Power Project The site ("Site") for the Project is located approximately 5 miles west of downtown New Smyrna Beach. The Site is approximately 0.5 mile northwest of the intersection of State Road ("SR") 44 and Interstate 95 ("I-95"). The Site and nearby areas are primarily rural and undeveloped. Most of the Site is covered with pine trees, palmettos, and native vegetation, but the Site also includes an existing electrical substation that is owned and operated by the UCCNSB. The Site is traversed by an existing electrical transmission line corridor that is approximately 170 feet in width. There are no scenic or cultural lands on the Site, and no archaeological or historic resources have been identified on the Site. There are several wetlands on the Site, but no lakes, rivers, or other surface waters. No threatened, endangered, or listed wildlife species have been found on the Site. Adjacent to the north side of the Site is a 6.0 million- gallon-per-day ("mgd") wastewater treatment plant ("WWTP") that the UCCNSB currently is constructing. East of the Site is a borrow pit, undeveloped land, and I-95. South of the Site is undeveloped land and SR 44. West of the Site is undeveloped land. The Site is well buffered from other land uses. The nearest commercial development is a gasoline service station, which is located on SR 44. There are no other businesses located near the Site. The nearest residence is approximately 3000 feet from the Site. The nearest residential neighborhood is at least one mile east of the Site. I-95 provides a buffer between the Site and this neighborhood. The nearest low-income or minority neighborhoods are approximately 2 to 3 miles east of the Site. The nearest significant off-Site environmental resources are: (a) Spruce Creek, which is approximately 4 miles north of the Site; and (b) a wildlife corridor, which is approximately 3/4 miles west of the Site. Description of the Proposed Project The Project involves the construction and operation of a combined cycle, natural gas fired, 500 MW (nominal) electrical power plant on the Site. The Project will include two combustion turbines, two heat recovery steam generators, a steam turbine, emission stacks, a cooling tower, a treatment and storage system for process water, a treatment system and detention pond for stormwater, an administration building, and other ancillary structures and features. The Project will connect directly to the UCCNSB’s substation, which is connected to an existing electrical transmission line system. Natural gas will be provided to the Site through a pipeline that will be designed, permitted, built, owned and operated by Florida Gas Transmission Company ("FGT") or its affiliates. Duke/UCCNSB’s PPSA application describes certain off-Site improvements to the electrical transmission line grid that may be made in the future, and it describes the potential impacts associated with FGT’s pipeline, but Duke/UCCNSB are not seeking authorization in this proceeding to build any off-Site electrical transmission lines or the natural gas pipeline. The Project will utilize state-of-the-art design concepts and equipment for the production of electrical power. The plans for the construction and operation of the Project have been designed to ensure compliance with all of the applicable environmental and land use regulations. General Impacts of Construction and Operation The Site contains approximately 30.5 acres of land. The Project will be built on 16.3 acres of the Site that are located east of the existing transmission line corridor. The portion of the Site that is located west of the transmission line corridor is comprised primarily of wetlands and will not be developed by Duke/UCCNSB. There are three small wetlands located on the east side of the Site. One of these wetland areas (0.7 acres) will be preserved in its natural state. The other two wetlands, comprising a total of 0.7 acres, will be filled during the construction phase of the Project. To mitigate these wetland impacts, Duke/UCCNSB will preserve a 7.1-acre forested wetland that is located on the western portion of the Site. Duke/UCCNSB also will preserve 0.9 acres of upland buffer area on the eastern portion of the Site. The construction of the Project will cause some temporary, minor impacts (e.g., dust, noise) that are typical of any large construction project. These impacts should not adversely affect anyone off-Site, however, because the Site is isolated and well buffered. The construction phase of the Project also will generate some additional traffic, but it will not lower the level of service on any roads, even during peak traffic hours. When the Project becomes operational, its impacts on traffic will not be noticeable. The construction and operation of the Project will have minimal adverse impacts on the environment. The Project will not cause any significant impacts to any fish or wildlife resources under the jurisdiction of the FGFWFC. The construction and operation of the Project will not adversely affect any residential neighborhood. The Project will not create any nuisance conditions. There will be no dust or odor associated with the Project’s operations. There will be no visible plume from the Project’s stacks. The Project will comply with all applicable noise regulations and will be compatible with existing and future land uses. Comprehensive Plan Consistency In the Volusia County comprehensive plan and future land use map, the Site is located in an area designated as the "Southeast Activity Center." The Project will be located in a portion of the Southeast Activity Center where industrial uses are expressly authorized. The Project is consistent and in compliance with the local, regional, and state comprehensive plans. The Volusia Growth Management Commission has certified that the Project satisfies the Commission’s criteria for comprehensive plan consistency. The Project also is consistent with Florida’s Coastal Management Program. The Project’s Water Usage All of the wastewater from the Project will be sent by pipeline to the UCCNSB’s adjacent WWTP for treatment. The WWTP’s treated effluent (reclaimed water) will be pumped to the Project and the UCCNSB’s other customers for reuse. As a result of the proposed interconnections between the Project and the WWTP, the Project will not discharge any industrial or domestic wastewater into the environment. To the greatest extent practical, the Project has been designed to minimize the use of water. Among other things, water will be recycled in the cooling tower, and it will be recycled between the Project and the UCCNSB’s WWTP. On an annual average basis, the Project will require approximately 3.75 mgd of water to operate. Approximately two- thirds (2/3) of the water will be used for cooling and the remaining one-third (1/3) will be used for the Project’s steam cycle, process and potable uses. The Project’s Water Supply Plan Initially, the Project will obtain water from at least three sources. The UCCNSB will supply: (a) at least 2.0 mgd of reclaimed water from the adjacent WWTP; (b) up to 0.55 mgd of groundwater from the UCCNSB’s existing well fields; and (c) up to 1.2 mgd of groundwater from new wells that will be located on the Site or at the adjacent WWTP. (The new wells are referred to herein as the "on-Site wells"). If more reclaimed water is available from the UCCNSB or other sources when the Project commences operations, the Project’s use of groundwater will be reduced. From the first day of operations, reclaimed water will be used to meet at least 53 percent of the Project’s needs. The Project’s supply of reclaimed water will increase over time as the population of the City of New Smyrna Beach increases. At least 50 percent of the WWTP’s increased flow in reclaimed water will be provided to the Project as it becomes available. Within 20 years, the UCCNSB will be supplying at least 2.85 mgd of reclaimed water to the Project. If sufficient supplies become available from other sources, reclaimed water will be used to meet approximately 98 percent of the Project’s needs. Under the Conditions of Certification, the Project’s use of groundwater from the on-Site wells must be reduced as the supply of reclaimed water increases. The "groundwater allocation" (i.e., the maximum amount of groundwater that can be withdrawn) for the on-Site wells drops 66 percent over 20 years--from an annual average of 1.2 mgd to an annual average of 0.40 mgd in 2019. Water Supply Alternatives Environmental Consulting & Technology, Inc. ("ECT"), Duke/UCCNSB’s primary environmental consultant for the Project, prepared a comprehensive analysis of water supply alternatives for the Project. CH2M Hill, a second environmental consulting firm retained by Duke, conducted an independent analysis of water supply alternatives. These reports and the other record evidence demonstrate that Duke/UCCNSB’s proposed water supply plan is the most appropriate, feasible plan for the Project. The other water supply alternatives (e.g., the use of brackish surface water or groundwater) were properly rejected. The Project’s water supply plan maximizes the use of reclaimed water and minimizes the use of groundwater. To the extent feasible, Duke/UCCNSB will use all of the reclaimed water that is available before they rely on groundwater. Impacts of Groundwater Withdrawals ECT conducted various analyses to evaluate the effects of using the proposed on-Site wells. Based on ECT’s work and its own independent evaluations, the SJRWMD concluded that the Project should not adversely impact groundwater resources in the area. Withdrawing 1.2 mgd from the on-Site wells will cause a drawdown in the surficial aquifer of only 0.03 feet (0.4 inches) at a location 25 feet from the proposed wells. The drawdown would be even smaller at greater distances from the proposed wells. A drawdown of 0.4 inches in the surficial aquifer is indistinguishable from the seasonal fluctuations in the water table. The SJRWMD concluded that the Project’s drawdown of the surficial aquifer will be minimal. This drawdown will not cause a loss of wetland functions in on-Site or off-Site wetlands. To ensure that no adverse effects occur, the Conditions of Certification require Duke/UCCNSB to monitor the water levels in the surficial aquifer. Withdrawing 1.2 mgd from the on-Site wells will cause a drawdown in the Floridan Aquifer of approximately 1.6 feet at a distance of one mile from the Site, and a drawdown of approximately 1 foot at a distance of two miles from the Site. The drawdown would be even smaller at greater distances. One to two feet of drawdown is a minimal amount in the Floridan Aquifer and within the range of normal seasonal fluctuations. The closest existing groundwater production well is approximately two miles from the Site. Withdrawing 1.2 mgd of groundwater from the on-Site wells will not interfere with or adversely affect this production well or any other existing legal use of water. The Project will not adversely affect the wellfield used by the City of Daytona Beach. The proposed use of the on-Site wells will not cause saltwater upconing or saltwater intrusion. Nonetheless, the Conditions of Certification require Duke/UCCNSB to install a well on the Site and monitor the groundwater to ensure that upconing and saltwater intrusion do not occur. The drawdowns and other impacts caused by the on-Site wells will be even smaller than predicted when the groundwater withdrawal rate is decreased from 1.2 mgd, as required by the Conditions of Certification. The UCCNSB has a SJRWMD consumptive use permit for its existing wellfields. The groundwater allocation in the UCCNSB’s consumptive use permit is large enough that UCCNSB could provide 0.55 mgd of water to the Project without increasing the current, approved groundwater allocation. The UCCNSB’s plan to supply 0.55 mgd of groundwater to the Project is not expected to cause any adverse environmental impacts. SJRWMD’s 2020 Water Supply Planning Process The Project is located in an area designated by the SJRWMD as a priority water resource caution area ("Caution Area"). In the Caution Area, water supply problems do not exist today, but they may occur in the future if all of the potential demands for water occur through the year 2020 and no new water supply alternatives are developed. Accordingly, the SJRWMD has initiated a regional water supply planning process to identify sources of water and methods of optimizing the supply of water in the Caution Area. The regional groundwater modeling performed by SJRWMD as part of this planning effort indicates that there are adequate supplies to meet the projected needs of the New Smyrna Beach area through the year 2020, including the proposed use of 1.2 mgd of groundwater for the proposed power plant, without causing harm to the region’s water resources. The SJRWMD’s analysis considered the impacts associated with the use of 1.2 mgd of groundwater from the on-Site wells, and 0.55 mgd of groundwater from the UCCNSB’s wellfields, when combined with the impacts from all of the other foreseeable water uses that may develop in this region through 2020. The SJRWMD’s work demonstrates that the Project will not cause unacceptable adverse impacts to the water resources of the region, such as wetlands impacts, saltwater intrusion, or interference with existing legal uses. Further, the Conditions of Certification will ensure that the proposed use of groundwater for the Project will not have an adverse impact on water resources. Reclaimed Water from Port Orange and Daytona Beach The SJRWMD identified two potential sources of additional reclaimed water for the Project: the City of Port Orange ("Port Orange") and the City of Daytona Beach ("Daytona Beach"). In 1998, a year of record-breaking drought conditions, Port Orange discharged approximately 1 mgd (annual average) of reclaimed water to the Halifax River. These discharges occurred because the City’s supply of reclaimed water exceeded its demand. The SJRWMD has determined that at least 0.55 mgd (annual average) of excess reclaimed water could be provided to the Project from Port Orange. Accordingly, the Conditions of Certification require, in effect, that Duke/UCCNSB must build an interconnection (pipeline) between the Project and Port Orange, if Port Orange will agree to sell its excess reclaimed water at a price that is economically feasible for the Project. In 1997-98, Daytona Beach discharged an average of 7.6 mgd of reclaimed water to the Halifax River. The SJRWMD has concluded that Daytona Beach could provide reclaimed water to all of its existing and future customers and still have at least 1 mgd available for the Project. However, Daytona Beach would have to make certain improvements to its reclaimed water system, and Duke/UCCNSB will have to extend the interconnection pipeline from Port Orange to Daytona Beach, before Daytona Beach will be able to provide reclaimed water to the Project. Duke/UCCNSB are required by the Conditions of Certification to diligently pursue interlocal agreements with Port Orange and Daytona for the two interconnection projects. Under the Conditions of Certification, Duke must establish a financial guarantee (e.g., performance bond) in the amount of $4 million to ensure that funding for the two interconnection projects will be available. Duke will pay up to $4.5 million to complete the construction of the interconnection projects. The Conditions of Certification provide that, if the Project receives reclaimed water from Port Orange or Daytona Beach, the SJRWMD and DEP shall reduce the groundwater allocation for the on-Site wells by an equivalent amount. Compliance with SJRWMD Requirements The proposed use of water for the Project is a reasonable beneficial use of water, that will not interfere with or adversely impact any existing legal use of water, and is consistent with the public interest. The proposed water supply plan for the Project is consistent with and satisfies all of the requirements in the applicable statutes and SJRWMD rules concerning the consumptive use of water. Continuing Compliance with SJRWMD Requirements The Project would satisfy all of the applicable SJRWMD requirements for the consumptive use of water and, therefore, the SJRWMD would recommend certification of the Project, even if no reclaimed water was available from Port Orange or Daytona Beach. However, under such circumstances, the SJRWMD would require the Project to undergo a periodic review process to determine whether other sources of reclaimed water are available. Accordingly, the Conditions of Certification require Duke/UCCNSB to submit compliance reports 5, 10, and 15 years after certification of the Project to maintain reasonable assurance that the conditions for issuance in Chapter 40C-2, Florida Administrative Code and part II, Chapter 373, Florida Statutes, continue to be met. The compliance reports will provide the SJRWMD and DEP with a regular opportunity to review the facts concerning the two interconnection projects, the availability of reclaimed water, and the feasibility of using other sources of lower quality water. The compliance reports must demonstrate that the Project is not causing unacceptable adverse impacts on wetlands, saltwater intrusion, or existing legal uses of water. Under the Conditions of Certification, the Siting Board or its designee may modify the authorization to use water, as necessary, to ensure that the Project continues to meet the SJRWMD requirements in Chapter 40C-2, Florida Administrative Code, for the consumptive use of water. The Conditions of Certification authorizing the Project’s consumptive use of water will expire in 20 years. To continue the consumptive use, Duke/UCCNSB must apply for a renewal of the consumptive use authorization and demonstrate that the Project complies with the applicable SJRWMD requirements for consumptive uses. Best Available Control Technology The Project’s impacts on air quality were evaluated by Duke/UCCNSB and DEP under Florida’s Prevention of Significant Deterioration ("PSD") review process. As part of the PSD review, a determination of the Best Available Control Technology ("BACT") was made. A BACT determination involves a case-by-case analysis of the costs, environmental impacts, and energy impacts associated with the use of each proposed air pollution control technology. A BACT determination results in the establishment of an emission limit for each pollutant of concern. In this case, DEP determined the appropriate BACT limits for the Project’s emissions of carbon monoxide ("CO"), oxides of nitrogen ("NOx"), sulfur dioxide ("SO2"), sulfuric acid mist ("SAM"), particulate matter ("PM") and particulate matter less than ten microns in diameter ("PM10"). (PM and PM10 are referred to collectively herein as PM). All of these emission limits, as set forth in the Conditions of Certification, are very, very low. The DEP determined in the PSD analysis that BACT for CO is based on Duke/UCCNSB’s use of an advanced combustor design and good operating practices. The use of an oxidation catalyst for CO removal was not required by DEP as BACT. Further, the use of an oxidation catalyst for CO removal is not appropriate in this case. The DEP determined in the PSD analysis that BACT for NOx is an emission limit of 9 parts per million ("ppm"), based on the use of dry low NOx ("DLN") combustion technology. The DLN technology is incorporated into the design of the combustion turbines that will be used for the Project. The DLN technology is a form of "pollution prevention" because the design of the turbine prevents NOx from forming. General Electric, the manufacturer of the Project’s combustion turbines, has demonstrated that its combustion turbines can comply with a NOx emission limit of 9 ppm. Some commenting agencies asked DEP whether a selective catalytic reduction ("SCR") system should be used to reduce the Project’s NOx emissions. SCR is an add-on, post-combustion control system in which liquid ammonia is vaporized and injected into the exhaust gases of a combustion turbine. The exhaust gases are then exposed to a catalyst bed where the ammonia and the NOx react to form nitrogen and water. The unreacted ammonia "slips" out of the SCR system and is emitted into the atmosphere. SCR does not represent BACT in this case and should not be required for the Project. The use of SCR would impose excessive costs on the Project, adversely impact the Project’s energy efficiency, and provide little or no environmental benefit. The cost of SCR is particularly unwarranted in this case because SCR will provide little or no net environmental benefit and will emit a new pollutant (ammonia), which would not otherwise be released at the Project. The ammonia emissions (5 ppm) from the SCR system will be almost equal to the reduction in NOx emissions (5.5 ppm) that would occur with SCR. Unlike the pollution prevention technology that is incorporated into the design of turbines that use DLN, the add-on SCR system results in greater overall pollution, including another pollutant. Impacts on Air Quality The EPA has adopted national Ambient Air Quality Standards ("AAQS") that are intended to protect the public health and welfare, with a margin of safety. The standards are based on extensive national health studies and they are designed to protect the most sensitive portions of the public, including the young, the old, and those with respiratory diseases. For the purposes of the AAQS, the public welfare includes the protection of soils, vegetation, and visibility. Duke/UCCNSB analyzed the Project’s potential impacts on ambient air quality, using conservative assumptions that were intended to over-estimate the Project’s impacts. Duke/UCCNSB’s analyses demonstrate that the Project’s maximum impacts on ambient air quality will be less than 1 percent of the applicable AAQS for each criteria pollutant, except PM. Because the Project’s impacts are so small, no further analyses are required, except for PM. Refined analyses were performed to evaluate the Project’s maximum potential impacts on ambient concentrations of PM. These analyses show that even when the Project’s emissions are combined with background levels of PM and the emissions from off-Site sources of PM, the resultant ambient levels of PM will be well below the applicable AAQS for PM. Since the Project’s impacts on ambient air quality will be far below the applicable AAQS, human health and welfare will be protected in this case with a wide margin of safety. The PSD program includes varying levels of protection for those areas that have good air quality. Areas have been designated as Class I or Class II, depending upon the level of protection that is to be provided. In this case, the Project is located in a PSD Class II area. The Project’s impacts on ambient PM concentrations are below the applicable PSD standards or "increments" for this Class II area. The nearest PSD Class I area is the Chassahowitzka Wildlife Refuge ("Chassahowitzka"), which is approximately 95 miles west of the Site. The Project’s impacts in the immediate vicinity of the Site will be insignificant and, given the great distance to Chassahowitzka, the Project’s impacts on this PSD Class I area also will be insignificant. Impacts on Water Quality from NOx A representative of the Florida Wildlife Federation, suggested that Duke/UCCNSB should consider whether the Project’s NOx emissions will adversely affect the water quality of the St. Johns River and Spruce Creek. DEP’s PSD review process normally does not involve an evaluation of the impacts of a facility’s air emissions on water quality, so Duke/UCCNSB did not perform a quantitative evaluation of this issue for the Project. However, Duke/UCCNSB did perform a qualitative assessment of this issue and demonstrated that the NOx emissions from the Project will not cause an adverse impact on water quality in the St. Johns River or Spruce Creek. These water bodies are not near the Site. Spruce Creek is located approximately four miles from the Site. The St. Johns River is approximately 25 miles from the Site. The NOx emissions from the Project will be controlled through the use of BACT and will be very low. The Project’s maximum potential impact on ambient concentrations of NOx (0.24 µg/m3 - annual average) will be far less than the level that is defined by DEP to be "de minimis" (14 µg/m3) for the purposes of preconstruction monitoring. The maximum potential impact of the Project’s NOx emissions will not even rise to the level that is deemed by DEP to be "significant" (1.0 µg/m3). Under the PSD program, multi-source modeling and more rigorous reviews are not required for those projects with impacts that are not significant. Further, the Project’s maximum potential impact on ambient NOx concentrations will be only 0.24 percent of the applicable AAQS (100 µg/m3), which are intended to protect public health and welfare. Duke/UCCNSB’s air quality expert (Tom Davis) has experience evaluating the potential effects of NOx emissions on water quality. When evaluating facilities with NOx emission rates considerably higher than the ones proposed for the Project, Davis found that the proposed facilities would not adversely affect water quality. Given the Project’s low NOx emissions and very small impacts on ambient NOx concentrations, Davis would expect no adverse impacts on water quality as a result of the atmospheric deposition of the Project’s NOx emissions. Davis’ analysis and the other evidence of record support the conclusion that the Project’s airborne emissions will not adversely affect water quality. No credible, competent evidence has been presented in this case to support a contrary finding. Compliance with Air Standards The airborne emissions from the Project will not: (a) cause or contribute to the violation of any state or federal ambient air quality standard; (b) cause or contribute to a violation of any PSD increment for any Class I or Class II PSD area; or (c) cause any adverse impacts on human health or the environment. The Project complies with all applicable DEP and EPA air quality requirements, including the applicable standards, criteria, policies, rules, and statutes. Duke/UCCNSB provided reasonable assurance that the Project will be able to comply with the Conditions of Certification involving air issues. The Cooling Tower The UCCNSB’s WWTP will chlorinate the reclaimed water before it is provided to the Project for use in the cooling tower. The reclaimed water will receive additional treatment at the Project. DEP recently adopted new rules in Chapter 62-610, Florida Administrative Code, governing the use of reclaimed water in cooling towers. The Project will comply with these new DEP rules. The use of reclaimed water in cooling towers is fairly common. There are no human health risks associated with the use of reclaimed water in the cooling tower of a power plant, provided the reclaimed water is properly treated. Indeed, the same reclaimed water that will be used in the Project’s cooling tower can be used to irrigate residential lawns. Environmental Benefits of the Project The Project will provide a number of environmental benefits for the citizens of Florida. The design of the proposed power plant incorporates state-of-the-art electrical generation technology. The Project’s heat rate (thermal efficiency) is nearly twice as good as the heat rate for a representative plant in Florida. The Project will be 30 percent to 50 percent more energy efficient than the existing oil and gas-fired power plants in Florida, which means that the Project will use 30 percent to 50 percent less fuel to produce the same amount of electricity. By comparison to the existing plants, the operation of the Project in 2002 would result in energy savings of approximately 13.6 trillion British Thermal Units (Btu) of fuel, which is the equivalent of approximately 5.9 million barrels of No. 6 fuel oil. Natural gas is the only fuel that will be used at the Project. Natural gas is the cleanest burning fossil fuel available to generate electricity. By using natural gas and the Best Available Control Technology, the Project will reduce its airborne emissions to levels that will be significantly less than the emissions from the existing gas and oil fired power plants in Florida. Because the Project will use less fuel, it will cost less to operate the Project than the existing oil and gas fired power plants in Florida. Consequently, those older, less efficient plants will be used less after the Project becomes operational. By causing a reduction in the use of those other facilities, the Project will cause a net reduction in the airborne emissions resulting from the generation of electricity in Florida. ECT reviewed the actual emissions data from existing power plants in Florida and then quantified the reductions in air pollution that will occur if the Project is operational in 2002. The Project will cause a net reduction in air pollution of approximately 25,000 tons in 2002 alone. This reduction includes approximately 8,500 tons of NOx. If the Project only reduces the use of oil fired power plants, then the Project will cause a net reduction in pollution of approximately 39,000 tons in 2002. In this second scenario, the Project primarily will reduce emissions of sulfur dioxide (approximately 26,000 tons), which is a precursor to acid rain. The Project will help the UCCNSB dispose of the treated effluent from the UCCNSB’s WWTP. By using and evaporating the effluent from the WWTP, the Project will help the UCCNSB eliminate 2 mgd of wastewater that otherwise would be discharged into the Indian River. In addition, if the Project receives reclaimed water from Port Orange and Daytona Beach, the Project will help those communities eliminate their discharges to the Halifax River. As a result of the Project being available to assist the Utilities Commission, the UCCNSB has agreed to install a 150 Kw solar photovoltaic project in the City of New Smyrna Beach. Solar hotovoltaic power is a renewable energy source. The UCCNSB’s demonstration project will promote the use of this energy source. Socioeconomic Benefits of the Project The proposed power plant will be a "merchant plant." A merchant plant has no captive ratepayers and is not subject to traditional rate-based regulation. As the developer of a merchant plant, Duke will incur and bear all of the financial risks associated with the construction and operation of the Project. The Project will sell electricity on a wholesale basis only--electricity will be sold to other utilities for resale to their retail customers. Other utilities will buy electricity from the Project only when that electricity is the "least cost alternative" available to them for obtaining power. No one has to buy the electricity produced by the Project. The Project will be able to produce electricity at a lower cost than the gas and oil fired power plants currently operating in Florida. By providing less expensive wholesale power to other utilities in Florida, the Project will help lower the cost of electricity for the residents of Peninsular Florida. Thus, the Project will enhance competition and exert a downward pressure on the price of electricity in Florida’s wholesale power market, while simultaneously reducing emissions from existing power plants. The UCCNSB is entitled to 30 MW of the Project’s capacity, pursuant to the terms of the Participation Agreement between Duke and UCCNSB. By comparison to UCCNSB’s other options for obtaining electricity, the Project will allow the UCCNSB’s ratepayers (approximately 20,000 customers) to enjoy savings that initially will be worth $3.1 million per year. Over the first 20 years of the Project’s operations, the UCCNSB’s customers will enjoy cost savings with a net present value of approximately $39 million. The construction of the Project will provide approximately 320 construction jobs and a construction payroll of $31 million. The indirect economic benefits of the construction of the Project will be in excess of $113 million. The Project will provide approximately 20 permanent jobs and an annual payroll of about $1 million. Duke will pay annual taxes of $750,000 to the City of New Smyrna Beach. In addition, Duke will pay approximately $3.5 million per year in ad valorem taxes to the other local taxing authorities, including Volusia County, the local school board, and the SJRWMD. Potential Impacts on Manatees Concerns that the Project may have "secondary impacts" on manatees, in the event that the Project eliminates the use of those older power plants that have thermal (i.e., warm water) discharges relied upon by manatees during cold weather, are without a basis in the evidence in this proceeding. The Project will not cause any existing electrical power plants or generating units in Florida to be shut down during periods of cold weather. The Project’s 500 MW is only about 1.5 percent of the State’s total "on-peak" electrical generating capacity. The impact of the Project’s generating capacity on the operation of the total system within Florida at times of peak demand will be absolutely de minimus. Although the Project will cause some gas and oil fired units to operate less in the future, the Project will not cause any units to shut down, especially not during cold weather. During cold weather, all electrical generating units in Florida will either be generating power or available as "spinning reserve." In either case, thermal discharges from existing plants will continue. A wide range of variables will determine whether, and the extent to which, the Project affects the operations at any particular power plant. In turn, a host of variables will determine whether that facility’s operations will have any impacts on manatees. Any hypothesis about the extent or magnitude of such remote, hypothetical impacts would be speculative. Compliance with Environmental Standards Duke/UCCNSB have demonstrated that the Project will comply with all of the nonprocedural land use and environmental statutes, rules, polices, and regulations that apply to the Project, including but not limited to those requirements governing the Project’s impacts on air, water consumption, the management and treatment of stormwater, and wetlands. The location, construction, and operation of the Project will have minimal adverse effects on human health, the environment, the ecology of the State’s lands and wildlife, and the ecology of the State’s waters and aquatic life. The Project will not unduly conflict with any of the goals or other provisions of any applicable local, regional, or state comprehensive plan. The Conditions of Certification establish operational safeguards for the Project that are technically sufficient for the protection of the public health and welfare. Agency Positions and Conditions of Certification The DEP, SJRWMD, DOT, FGFWFC, DCA, ECFRPC, and the City of New Smyrna Beach have all recommended certification of the Project, subject to the Conditions of Certification. Volusia County does not object to certification of the Project, subject to the Conditions of Certification. Duke/UCCNSB have accepted, and have demonstrated that they will be able to comply with, the Conditions of Certification. The Conditions of Certification are attached hereto and incorporated by reference herein as Appendix A. No state, regional, or local agency has recommended denial of certification for the Project.
Conclusions For Petitioners, Duke Energy New Smyrna Beach Power Co., Ltd., L.L.P., and the Utilities Commission, City of New Smyrna Beach, Florida: David S. Dee, Esquire Robert Scheffel Wright, Esquire Landers and Parsons 310 West College Avenue Tallahassee, Florida 32301 For the Florida Department of Environmental Protection: Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399 For the St. Johns River Water Management District: Jennifer B. Springfield, Esquire St. Johns River Water Management District Office of the General Counsel Post Office Box 1429 Palatka, Florida 32178-1429
Recommendation Based upon the findings of fact, conclusions of law and the evidence of record, it is, therefore, RECOMMENDED: That the Governor and Cabinet, sitting as the Siting Board, enter a final order pursuant to the PPSA, Chapter 403, Part II, Florida Statutes, granting certification for the construction and operation of the Project, subject to the Conditions of Certification that are attached hereto. DONE AND ENTERED this 27th day of April, 2000, 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 27th day of April, 2000. COPIES FURNISHED: Ron Vaden, Utilities Director Utilities Commission City of New Smyrna Beach 200 Canal Street New Smyrna Beach, Florida 32168 Hamilton S. Oven, Jr. Office of Siting Coordination Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399 Robert V. Elias, Esquire Division of Legal Services Florida Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399 Andrew Grayson, Esquire Department of Community Affairs 2555 Shumard Oak Boulevard Tallahassee, Florida 32399 Douglas M. Weaver, General Counsel 123 West Indiana Avenue Deland, Florida 32720 James V. Antista, General Counsel Game and Fresh Water Fish Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399 David S. Dee, Esquire Robert Scheffel Wright, Esquire Landers and Parsons 310 West College Avenue Tallahassee, Florida 32301 Jennifer B. Springfield, Esquire St. Johns River Water Management District Office of the General Counsel Post Office Box 1429 Palatka, Florida 32178-1429 Gerald Livingston, Esquire Suite 850 255 South Orange Avenue Orlando, Florida 32802 Brent C. Bailey, Esquire Duke Energy North America, L.L.C. Post Office Box 1642 Houston, Texas 77251-1642 George Beazley, City Attorney City of New Smyrna Beach 210 Sams Avenue New Smyrna Beach, Florida 32168 Scott A. Goorland, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399 Sheauching Yu, Esquire Department of Transportation Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Henry Dean, Executive Director St. Johns River Water Management District Highway 100, West Palatka, Florida 32177
The Issue Whether there is just cause to dismiss Respondent from her employment with the Petitioner.
Findings Of Fact Respondent, Patricia Locke, is a teacher certified by the State of Florida, holding a professional service contract issued by the Pinellas County School Board. Respondent has been employed as a teacher at Palm Harbor Elementary School by the Pinellas County School Board since 1988. On May 22, 1995, Respondent returned to work after being out two weeks due to illness. She stayed at work until around noon. Julie Hoover, the secretary/bookkeeper at the school, convinced Respondent to go home because she appeared strained and ill. Hoover drove Respondent home, made sure she got upstairs, and helped her get into bed. Hoover did not smell alcohol on Respondent's person at that time, and Respondent did not appear to be under the influence of alcohol. Respondent slept most of the afternoon and remained in her apartment, where she was alone until her son, Kyle, returned home from school at approximately 2.45 p.m., and found his mother asleep. Kyle remained at home the rest of the afternoon until Respondent left the house at approximately 7:00 p.m. Respondent does not keep alcoholic beverages in her apartment and on May 22, 1995, Kyle did not see Respondent drink any alcoholic beverage nor did she appear to be under the influence of alcohol. Respondent remained in her apartment the entire afternoon except for a short time around 5:00 p.m., when she went swimming in the apartment complex pool. While there, she spoke to Dan Riegle, a friend that lived in the complex. They spoke for a few minutes. Respondent was not drinking any alcoholic beverages at that time and did not appear to be under the influence of alcohol. Sometime between 6:30 p.m. and 7:00 p.m., Respondent left her apartment in Palm Harbor to meet a friend, Jim Thompson, for dinner at Danny's Restaurant in Holiday, a city in Pasco County, north of Palm Harbor. They met at the restaurant between 7:30 p.m. and 8:00 p.m., and stayed there for between an hour and an hour and a half. At dinner Respondent drank one Michelob Lite and ordered a second one, but finished only half of that bottle. After dinner, Respondent told Thompson she was going home. Respondent did not appear intoxicated during or immediately following dinner. On the evening of May 22, 1995, Respondent was not intoxicated when she arrived at Danny's Restaurant, nor when she left the restaurant. Upon leaving the restaurant, Respondent became confused and disoriented. She went north on U.S. 19 instead of south toward her home in Palm Harbor. Respondent recalls looking for signs or anything familiar to give her an idea of where she was. While driving north on U.S. 19, Respondent's car struck the rear of another car near Moog Road. After stopping for a moment, Respondent continued driving northbound on U.S. 19. Respondent was driving erratically, with large variations in speed, and her car was swerving. A short time later, at Jasmine Road, Respondent struck a second vehicle while driving northbound on U.S. 19. At that point the airbag in Respondent's car deployed and the right front tire blew out. Respondent also cut her forehead when it banged against the windshield. Respondent then drove another five to ten miles before she pulled off U.S. 19 into the parking lot of a bar near the Pasco-Hernando border. William Parker had been driving northbound on U.S. 19 and observed the first accident in which Respondent's vehicle rear-ended another vehicle. After his observation, Parker followed Respondent's vehicle, driving a safe distance behind her until she pulled over. Parker observed both accidents and followed Respondent to the point where she pulled over. Both Respondent and Parker exited their cars. According to Parker, Respondent was in terrible shape and "could barely speak". In Parker's opinion, Respondent seemed intoxicated. Shortly thereafter Corporal McMann from the Florida Highway Patrol arrived on the scene and found Respondent sitting on the curb. He approached Respondent, who appeared to be disoriented. Corporal McMann attempted to conduct a field sobriety test involving balance with Respondent. Respondent was unsteady and unable to complete any type of balance test. Corporal McMann conducted the "nystagmus gaze" test with Respondent. Respondent was unable to follow the object with her eyes. Upon questioning by Corporal McMann, Respondent indicated she had consumed two drinks that evening and had taken a valium. Respondent also admitted that she was the driver of the vehicle that had been involved in two accidents on the evening of May 22, 1995. Corporal McMann indicated that Respondent's behavior was not consistent with an individual that had consumed two drinks, but rather was indicative of somebody that was extremely intoxicated. He reported that Respondent had a strong odor of an alcoholic beverage. However, Corporal McMann acknowledged that the odor could be consistent with an individual having two beers. Corporal McMann has no training or experience with silicone poisoning or its effects Corporal McMann determined that Respondent had a tremendous loss of critical judgment and decided that he had probable cause to take her into custody for driving under the influence. At the jail, Corporal McMann requested that Respondent take a breath test, but Respondent refused. Corporal McMann then placed Respondent under arrest for DUI. At that time Respondent allegedly offered Corporal McMann $1,000 not to charge her with the crime. Respondent has no recollection of that event. On or about February 6, 1996, Respondent pleaded no contest to charges of driving under the influence and leaving the scene of an accident for the May 22, 1995, accidents. Respondent paid a $1,000.00 fine, completed a 30-day in- house treatment program, was placed on supervised probation for one year, and had her driver's license revoked for ten years. Respondent was never charged with a crime related to offering $1,000.00 to Corporal McMann. On February 4, 1989 and October 25, 1991, Respondent was arrested for driving under the influence. After being charged in both incidents, Respondent pleaded no contest to the charges. On February 13, 1991, Respondent left the scene of an accident and pled guilty to such charge. As a result of the February 4, 1989, and October 25, 1991, incidents, Respondent received a letter of reprimand from the Pinellas County School District on October 5, 1992. On May 26, 1989, and on April 19, 1990, Respondent completed the state recertification application. Prior to completing the applications, Respondent contacted the Pinellas County School District Office (PSCDO) regarding a question on the form relating to arrest records and criminal charges and convictions and pleas related thereto. Respondent was told by someone at the PCSDO that traffic violations need not be reported. Based on information provided to her, Respondent failed to report her pleas of nolo contendere to the February 4, 1989 DUI and failure to yield right-a-way charges on her state recertification application. As a result of Respondent's failure to report her pleas of nolo contendere of the February 4, 1989 charges, on or about May 12, 1993, the Commissioner of Education filed an Administrative Complaint against Respondent. The case was resolved pursuant to a Settlement Agreement executed on July 12, 1993. Under the terms of the Settlement Agreement, Respondent agreed to accept a written reprimand from the Education Practices Commission. A copy of the reprimand was to be "placed in the Respondent's certification file with the Department of Education and in her personnel file with the Pinellas County School District." In 1985 or 1986, and prior to any of the subject traffic violations, Respondent had silicone breast implants placed in her body. Shortly thereafter, Respondent began having health problems which her doctor suspected may have resulted from the implants. In 1994, Respondent was diagnosed with silicone toxicity. This diagnosis was confirmed when the results of an MRI revealed that the left implant had ruptured. During surgery in 1994, to remove the left implant, it was discovered that the right implant had also ruptured. Both of the gel-filled implants were removed and replaced with saline-filled implants. The ruptured implants caused the silicone to spread throughout Respondent's body and resulted in silicone toxicity. Following the surgery to remove the gel-filled breast implants, Respondent has continued to suffer various effects. Those effects have taken the form of chronic fatigue syndrome, depression, hepatitis C, stressed kidneys, liver, and spleen. At times, Respondent has also become disoriented. During some of these episodes, Respondent becomes confused, suffers memory loss, and is unable to determine what is going on around her. When experiencing a mild case of disorientation, Respondent gets panicky and confused. During more severe cases of disorientation, Respondent cries, argues, loses sight of where she is or what is she is doing. Such episodes have been observed by Respondent's sixteen year old son. Respondent has seen a variety of doctors over the years to deal with her condition. In 1994, after Respondent was diagnosed with silicone toxicity, Dr. Levin, Respondent's rheumatologist, referred her to Dr. Frank Vasey, M.D., a specialist in the field of silicone toxicity. Respondent was on the waiting list to see Dr. Vasey for over one year. Respondent saw Dr. Vasey on June 19, 1995. The symptoms complained of by Respondent included dry eyes, dry mouth, rash, chronic fatigue, numbness in arms, and disorientation. These symptoms are consistent with those of individuals with silicone poisoning. Other major clinical manifestations of silicone poisoning are "peripheral neuritis which means the peripheral nerves are malfunctioning sending false messages", memory loss, swollen lymph nodes, muscle and joint pain, and bladder dysfunction. It is Dr. Vasey's opinion that the silicone poison has spread throughout Respondent's body. Dr. Vasey's clinical experience includes working with 500 or more women suffering from silicone toxicity. Respondent's symptoms, including disorientation, memory loss, numbness, chronic fatigue, muscle and joint paint and peripheral neuritis, were consistent with symptoms found in the 500 women he had worked with in his clinical experience. Dr. Vasey has observed that other women with silicone implants in Respondent's condition suffer disorientation in a manner that has adversely affected their driving. Based on his belief that Respondent had one to two beers on the night of May 22, 1995, Dr. Vasey believes with reasonable medical probability that Respondent's silicone illness coupled with head trauma suffered in the night of the accident is the more likely explanation for her actions than alcohol. As a result of Respondent's condition, and the depression resulting therefrom, Dr. Vasey recommended that Respondent see a psychiatrist. On June 26, 1995, Respondent was admitted to the Fairwinds Treatment Center for major depression, alcoholism, and other illnesses attributable to the silicone poisoning. Dr. Vasey is the Chief of Rheumatology at the University of South Florida, College of Medicine, in Tampa, Florida. His major research interest is the interaction of silicone breast implants and the immune system. He has written approximately ten articles, and given numerous speeches on the subject. In addition he has written a text on the subject of silicone implants. James Barker is an administrator with the Office of Professional Standards, Pinellas County Schools. He conducts investigations regarding possible employee misconduct and makes recommendations to the superintendent regarding employee misconduct and employee discipline. He is an expert in the area of school administration and teacher conduct. It is his opinion that if Respondent's actions on May 22, 1995, resulted from the effects of silicone poisoning and not the abuse of alcohol, he would probably not recommend that Respondent be dismissed from her employment. J. Howard Hinesley, Ed.D., is the Superintendent of Pinellas County Schools. Dr. Hinesley concurs with Mr. Barker's opinion that if Respondent's actions on May 22, 1995 were the result of the manifestations of her illness and not the result of the over-consumption of alcohol he may not seek her dismissal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner dismiss all charges against Respondent and reinstate her to a teaching position in Pinellas County School District. DONE and ENTERED this 11th day of October, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1996. COPIES FURNISHED: Keith B. Martin, Esquire Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 34649 Mark Herdman, Esquire Suite 308 34650 U.S. Highway 19 North Palm Harbor, Florida 34684 Dr. J. Howard Hinesley, Superintendent Pinellas County School Board 301 Fourth Street Southwest Largo, Florida 34640-2942 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Michael H. Olenick General Counsel The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue The issues for determination are: (1) did the College of Central Florida (“CCF”) commit an unlawful employment practice by discriminating against Petitioner on the basis of age and/or sex; and (2) did CCF unlawfully retaliate against Petitioner by firing her.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Howell began working in CCF’s lawn maintenance department on August 17, 2015. She worked 25 hours a week performing activities such as removing weeds, picking up debris, and maintaining the flower beds around CCF’s campus. CCF’s lawn maintenance department consisted of approximately 20 people, but Ms. Howell was the only female. At the time of the final hearing, Ms. Howell was 67 years old. Tommy Morelock, CCF’s director of facilities, made the decision to hire Ms. Howell. Ms. Howell claims that her co-workers mistreated her. For example, she asserts that there were at least three occasions when co-workers intentionally drove a four-wheel drive vehicle or a pickup truck into a golf cart driven by her. Another alleged incident involved a co-worker running a finger down her neck. In addition, Thomas Smith supposedly “flipped her off” on numerous occasions throughout her tenure at CCF and referred to her as a “f***ing c*nt.” In approximately August of 2016, after a co-worker allegedly used a vehicle to strike a golf cart driven by Ms. Howell, her fiancée, Newell Melton, called CCF in order to lodge a complaint with Mr. Morelock. Mr. Melton ultimately spoke with Katherine Hunt, one of Mr. Morelock’s subordinates and CCF’s manager of facility operations and construction projects. Ms. Hunt met with Ms. Howell soon afterward about these alleged incidents. Ms. Howell also described how her male co- workers would grab themselves between the legs. However, Ms. Howell did not indicate that those actions were directed toward her. Ms. Howell did not mention any improper conduct by Thomas Smith during her meeting with Ms. Hunt. In late 2016 or early 2017, Ms. Howell also met with Mark Sakowski, another of Mr. Morelock’s subordinates and CCF’s manager of plant safety and facility operations, about one of the vehicle incidents. Mr. Sakowski told Ms. Howell that he would talk to the co-worker in question and asked her to bring any future issues to his attention. Ms. Howell did not mention anything to Mr. Sakowski about Thomas Smith directing obscene gestures toward her. After the meeting, Mr. Sakowski spoke to employees within the lawn maintenance department about professionalism, safety, and having respect for others. Ms. Howell never filed a formal complaint with CCF about her co-workers’ alleged misconduct. At Mr. Morelock’s request, Ms. Howell met with him and Caroline Smith, CCF’s equity officer, on June 7, 2017, to discuss her complaints. During this meeting, Ms. Howell described: (a) how her co-workers would drive vehicles into golf carts she was occupying; (b) the incident in which a co-worker ran a finger down her neck; and (c) a rumor among her co-workers that she was planning to file a sexual harassment complaint. As CCF’s equity officer, Ms. Smith is responsible for investigating student and employee claims of discrimination or harassment. After hearing Ms. Smith’s description of the alleged incidents, she concluded that the allegations involved inappropriate “horseplay” rather than age and/or gender-based discrimination. She then explained CCF’s employee complaint procedure to Ms. Howell, but Ms. Howell declined to initiate a formal complaint. Ms. Howell did not mention Mr. Smith’s alleged misconduct during her meeting with Mr. Morelock and Ms. Smith. In a memorandum dated June 7, 2017, and addressed to Ms. Howell, Mr. Morelock wrote the following: As discussed in our 11:00 AM meeting today with the College Equity Officer, Mrs. Smith, to address your complaints regarding horseplay in the workplace, rumors, and possible harassment, I have met with the 3 employees in your complaint and have addressed these issues. Please let me know immediately if there are any further incidents or if you have any additional concerns. Mr. Morelock noted in the memorandum that Ms. Hunt, Mr. Sakowski, and Ms. Smith received copies. Ms. Howell received a copy of Mr. Morelock’s memorandum shortly after their meeting. At approximately 12:30 p.m. on July 19, 2017, Ms. Howell was nearing the end of her workday and driving a golf cart. She crossed paths with a vehicle driven by Mr. Smith and noticed in her rearview mirror that Mr. Smith was directing an obscene gesture toward her.2/ Ms. Howell proceeded on her way to leaving the CCF campus. However, she reversed course and, with the assistance of another co-worker, spent approximately ten minutes driving around the CCF campus looking for Mr. Smith. Upon finding Mr. Smith at the back of the CCF campus planting junipers, Ms. Howell exited the golf cart and angrily told Mr. Smith to stop directing obscene gestures toward her. According to Mr. Smith, Ms. Howell went into a “tirade.” After confronting Mr. Smith, Ms. Howell left the campus without reporting this new incident to any supervisors. As far as she knew, none of the pertinent supervisors were available. Mr. Smith felt threatened and immediately sought out Mr. Sakowski. Mr. Smith reported that Ms. Howell demanded that he stop spreading rumors about her, and Ms. Howell supposedly stated that CCF, Mr. Smith, and Mr. Smith’s wife “would be sorry.”3/ Rather than obtaining Ms. Howell’s version of the confrontation, Mr. Sakowski and Ms. Hunt spoke to Mr. Morelock, who was on vacation at the time. Mr. Morelock recommended that they confer with CCF’s director of Human Resources and authorized them to resolve the matter as they saw fit. Mr. Sakowski and Ms. Smith called Ms. Howell on July 21, 2017, and notified her that she had been fired. The only explanation given to Ms. Howell was that she did not work well with supervisors and co-workers. Mr. Sakowski explained that he was concerned about his staff’s safety and that of CCF’s students: We take safety very seriously on the campus. And in this day and age with mass-casualty and active-shooter scenarios, we practice these drills on campus on an annual basis. And it did scare me that -- I did not want it [to] make national news. Mr. Sakowski was also concerned by the fact that Ms. Howell confronted Mr. Smith rather than reporting his obscene gesture to a supervisor: Instead of coming back onto campus after leaving her shift, she should have come into the building and either got myself or Ms. Hunt at that time and explained what had just happened instead of taking matters into her own hands. Because Mr. Morelock’s memorandum to Ms. Howell directed her to “[p]lease let me know immediately if there are any further incidents or if you have any additional concerns,” Ms. Hunt considered Ms. Howell to be insubordinate when she confronted Mr. Smith on July 19, 2017.4/ This was the first disciplinary action that CCF had taken against Ms. Howell. Since being fired by CCF, Ms. Howell has unsuccessfully applied for two positions, a greeter at a hospital and a landscaping technician at a local cemetery. While she considers herself to be retired, Ms. Howell is still looking for employment. Ultimate Findings Ms. Howell persuasively testified that Mr. Smith directed an obscene gesture toward her on July 19, 2017. However, the preponderance of the evidence demonstrates that CCF did not know nor should have known that Mr. Smith directed obscene gestures and/or language toward Ms. Howell. While Ms. Howell consistently testified that she did not discuss Mr. Smith’s conduct with Mr. Sakowski or Ms. Hunt, she gave conflicting testimony as to whether she reported Mr. Smith’s conduct to Mr. Morelock during their meeting on June 7, 2017. In contrast, Carol Smith, CCF’s equity officer, persuasively testified that Mr. Smith’s conduct was not discussed during that meeting.5/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 17th day of June, 2019, in Tallahassee, Leon County, Florida. S W. CHISENHALL 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 17th day of June, 2019.
The Issue The issues are whether Respondent discriminated against Petitioner based on his race, and if so, what relief should be granted.
Findings Of Fact Respondent is a Florida corporation with its principal business location in Ormond Beach, Florida. Respondent operates a restaurant in Daytona Beach, Florida, known as IHOP 35. At all times material here, IHOP 35 had a racially-diverse workforce. Scott Studner is Respondent's President. Mr. Studner has direct supervisory authority over Respondent's management employees and ultimate supervisory authority over the non- management employees at IHOP 35. Mr. Studner is responsible for making all decisions relating to promotions and terminations of employees. Petitioner is a single African-American male with a minor son. Respondent hired him as a line cook in January 2007. At that time, Petitioner did not have any management experience. Petitioner worked as a cook on the day shift for approximately 15 months before Respondent terminated his employment. Petitioner began working 40-hour weeks for $9.00 per hour. He received at least five raises over a 12-month period, increasing his hourly wage to $10.00. Petitioner and all of the staff had to work some overtime during busy periods like "Race Week." Shortly after Petitioner began working, Mr. Studner asked Petitioner if he had any interest in a future management position. Mr. Studner routinely asks this question of all newly hired cooks. Mr. Studner told Petitioner about Chester Taylor, an African-American male, who began working for Mr. Studner as a dish washer and now owns and operates two IHOP restaurants of his own. Mr. Studner never made any representation or promise regarding Petitioner's potential advancement into a management position at IHOP 35. Shortly after he was hired, Petitioner began to demonstrate poor performance traits. He frequently arrived late to work. Occasionally Petitioner called to say that he could not work due to personal reasons. While working for Respondent, Petitioner reported several specific instances of racial hostility in the workplace to the general manager, Kathy, who tried to correct each problem as it arose. On one occasion, Petitioner discussed one incident with Mr. Studner, months after it occurred. In February 2007, Petitioner reported to Kathy that a white server named Sharon Blyler had made an inappropriate comment. Specifically, Petitioner accused Ms. Blyler of stating that she would get her orders out faster if she was black like a server named Angela. Kathy wrote Ms. Blyler up on a disciplinary form, advising her that comments about someone's race or color would not be tolerated. Mr. Studner was never informed about this incident. In April 2007, a white co-worker named Kevin called Petitioner a "monkey" several times. The name calling initially arose as a result of someone in the kitchen requesting a "monkey dish," which is a term commonly used in restaurants to describe a small round bowl for side items such as fruit. Petitioner reported Kevin's inappropriate comments to Kathy, who wrote Kevin up on a disciplinary form and suspended him for a week. Apparently, Kevin continued to work in one of Mr. Studner's restaurants but did not return to work at IHOP 35. Three or four months after Kevin was suspended, Mr. Studner asked Petitioner if Kevin could return to work at IHOP 35. When Petitioner objected, Mr. Studner said he would put Kevin on the night shift. During the conversation, Mr. Studner told Petitioner that he should have punched Kevin in the face for calling him a monkey. In the summer of 2007, there was an ordering mix-up involving a Caucasian server named Tiffany. When Tiffany became upset, Petitioner told her to calm down. Tiffany then called Petitioner a "fucking nigger." Kathy immediately had a talk with Tiffany, who then quit her job. Mr. Studner was never informed that Tiffany used a racial slur in reference to Petitioner. In August 2007, Petitioner received a formal verbal warning that was memorialized on a disciplinary form. The warning related to Petitioner's tardiness for work and for not maintaining his work area. When Kathy left her job as general manager of IHOP 35 in October 2007, there was no one person in charge of the kitchen. Petitioner and the other cooks continued to do their previously assigned jobs. On one occasion, Petitioner and another African- American male cook got into an argument. Someone at the restaurant called the police to intervene. Petitioner denies that he picked up a knife during the confrontation. At some point, Mr. Studner began working in the kitchen with Petitioner. Mr. Studner worked there for approximately five straight weeks. While Mr. Studner was working in the kitchen, he never saw any signs of racial hostility. However, Mr. Studner was aware that Petitioner could not get along with the rest of the staff. Mr. Studner realized that the staff resented Petitioner's habit of talking on his cell phone and leaving the line to take breaks during peak times. Respondent had an established and disseminated work policy that employees are not allowed to take or make cell phone or other telephone calls during work hours except in emergencies. Compliance with the policy is necessary because telephone calls to or from employees during paid working time disrupt the kitchen operation. Petitioner does not dispute that he made and received frequent calls on company time for personal reasons. Sometimes Mr. Studner would enter the restaurant and see Petitioner talking on the phone. Mr. Studner would reprimand Petitioner, reminding him that phone calls on company time were restricted to emergency calls only. Mr. Studner had video surveillance of the kitchen at IHOP 35 in his corporate office in Ormond Beach, Florida. Mr. Studner and his bookkeeper, Steven Skipper, observed Petitioner talking on his cell phone when Mr. Studner was not in the restaurant. Eventually, Mr. Studner decided to transfer Petitioner to another one of his restaurants to alleviate the tension caused by Petitioner at IHOP 35. After one day at the other restaurant, Mr. Studner reassigned Petitioner to IHOP 35 because he realized that Petitioner was unable to get along with the staff at the new location. Respondent never gave Petitioner any managerial responsibilities. Petitioner did not approach Mr. Studner or otherwise apply for the position of Kitchen Manager or any position other than cook. Respondent never denied Petitioner a promotion. In December or January 2007, Respondent hired Larry Delucia as the Kitchen Manger at IHOP 35. Mr. Delucia had not previously worked with Respondent, but he had extensive management experience at three different restaurants. When Mr. Delucia began working at IHOP 35, Petitioner and the other cooks were asked to help familiarize him with the menu and the set-up of the kitchen and coolers. They were not asked to train Mr. Delucia, whose job included scheduling and working on the computer, as well as supervising the kitchen. In February 2008, Petitioner told a white busboy named John to bring him some plates. John then told Petitioner that he was not John's boss and called Petitioner a "fucking nigger." The front-end manager, Pam Maxwell, immediately suspended John for a week but allowed him to return to work after two days. Mr. Studner was not aware of the incident involving John. Petitioner then asked Mr. Delucia and Ms. Maxwell for the telephone number of Bob Burns, the district manager for the International House of Pancakes, Inc. Mr. Studner was not aware of Petitioner's request for Mr. Burns' telephone number. Days later, Mr. Studner instructed Mr. Delucia to terminate Petitioner's employment. The greater weight of the evidence indicates that Mr. Studner decided to terminate Petitioner solely because of his continued cell phone usage on company time as observed in person and on surveillance tapes. At first, Petitioner did not realize he had been permanently terminated. During the hearing, Petitioner testified that he tried to return to work by talking to Mr. Delucia, who told him to call Mr. Studner. Mr. Studner did not return Petitioner's calls. For years, Mr. Studner has employed African-Americans to work as servers, cooks, hostesses, kitchen managers, front- end managers, and general managers. Mr. Studner owns five other restaurants, including two other IHOPs. Over the last two years, Mr. Studner has hired three African-American general managers.
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 Complaint and Petition for Relief. DONE AND ENTERED this 31st day of December, 2009, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 <day> day of <month>, <year>. COPIES FURNISHED: Sebrina L. Wiggins, Esquire Landis, Graham French 145 East Rich Avenue, Suite C Deland, Florida 32721 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802 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 issues are (1) whether the Petition for Relief filed by Petitioner was timely under Section 760.11(7), Florida Statutes, and (2) whether Respondent engaged in an unlawful employment practice in violation of the Florida Civil Rights Act of 1992 when it terminated Petitioner's employment as a retail sales associate in May 1998.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Parties Petitioner is an African American female. During the period of time at issue in this proceeding (i.e., January through May 1998), Petitioner was 49 years old. Respondent is a retail department store chain with stores located throughout Florida, including a store in Oviedo, Florida. Respondent is an employer subject to the Florida Civil Rights Act of 1992. Petitioner's Employment With Respondent On or about January 30, 1998, Petitioner was hired by Respondent to work as a retail sales associate in Respondent's Oviedo store. She was originally assigned to work in the women's clothing department. Petitioner was interviewed and hired by Heidi Jensen, a white female. Ms. Jensen was the assistant sales manager responsible for the women's clothing department, and was Petitioner's direct supervisor throughout the course of Petitioner's employment. Petitioner was hired as a part-time employee at a rate of $9.00 per hour. As a part-time employee, she worked approximately 20 hours per week. Petitioner's schedule was flexible; she worked eight hours on some days and four hours or less on others. She was typically scheduled on the closing shift (i.e., nights), rather than the opening shift. On February 7, 1998, Petitioner signed a certification indicating that she had read and agreed to abide by Respondent's work rules and policies. Those rules include the following directive, hereafter referred to as "Work Rule 10": Associates must exhibit positive behavior toward their job, Management, supervisors, and co-associates in all of their actions and speech. Customers must always be treated courteously. Anything to the contrary will not be tolerated. On February 8, 1998, Petitioner attended a general orientation at which the work rules and policies were discussed. That orientation was also attended by other recently-hired employees, including non-African American employees. Petitioner received additional training from Respondent throughout her employment, including customer service and sales training and direction for handling merchandise returns. That training was also provided to other employees, including non- African American employees. Petitioner never received formal training on how to "open" the store. However, as noted above, Petitioner typically worked during the closing shift rather than the opening shift. Slightly more than a month into her employment, Petitioner's co-workers began complaining about her unprofessional behavior. The complaints alleged that Petitioner yelled at co-workers; that she initiated arguments with co- workers in front of customers regarding who should get credit for the customer's purchases; that she referred to the customers in the woman's department (which caters to larger women) as "fat pigs"; that she stole customers from her co-workers; that she referred to some of her co-workers as "vultures" and others as "bitches" or "wolves," often in front of or within "earshot" of customers; and that she generally upset or harassed co-workers through her attitude and derogatory comments. The complaints came from eight different co-workers, at least one of whom was an African American female. The complaints were made in writing by the co-workers, typically through signed, hand-written statements given to Ms. Jensen or the store manager. Petitioner denied making any of the statements or engaging in any of the conduct alleged in the complaints. In response to the complaints, she took the position that she was being "singled out" by her co-workers because her aggressive tactics made her a more successful salesperson than most of her co-workers. Despite Petitioner's denials, Ms. Jensen determined that disciplinary action was appropriate based upon her investigation of the complaints. Ms. Jensen gave Petitioner a verbal warning "concerning using a positive attitude towards merchandise and customers" on March 7, 1998, and she gave Petitioner a formal written warning for her lack of positive attitude towards customers and co-workers on March 19, 1998. Both warnings cited Work Rule 10 as having been violated. Despite the warnings, Petitioner's conduct continued to generate complaints from her co-workers. She received another verbal warning from Ms. Jensen on April 17, 1998, and she received a formal written warning from the store manager on April 22, 1998. Again, the warnings cited Work Rule 10 as having been violated. Petitioner continued to deny any wrongdoing. She again claimed that she was being "targeted" by her co-workers because of their "jealousy and envy" over her success as a salesperson. The April 22, 1998, written warning stated that "[i]f there is one more report of negativity or verbal abuse of customers or associates, [Petitioner] will be terminated." It also enumerated Respondent's "expectations" with respect to Petitioner's conduct, including a requirement that Petitioner "never confront an associate in front of a customer" (emphasis in original). At some point after the April 22, 1998, written warning, Petitioner was transferred from the women's department to the casual department to give her a "clean slate" with her co-workers. Despite the transfer, Petitioner's co-workers continued to complain about her behavior. The complaints were of the same nature as the complaints discussed above, e.g., stealing sales from other co-workers and initiating confrontations with co-workers over customers in the customer's presence. On May 22, 1998, Petitioner and a co-worker, Brenda Ross, "had words" over a customer. When confronted about the incident by Ms. Jensen, Petitioner "was loud and aggressive" towards her. As a result of this incident and the prior warnings, Ms. Jensen recommended that Petitioner's employment be terminated. The store manager accepted Ms. Jensen's recommendation, and, Petitioner was terminated on May 22, 1998. Thus, the term of Petitioner's employment with Respondent was less than four months. After she was fired, Petitioner returned to her work station to retrieve her belongings. While doing so, she confronted Ms. Ross and called her a "lying bitch" (according to Petitioner's own testimony at the hearing) or something similarly derogatory.1 There are no videotapes of the incidents described above. None of the co-workers who reported the incidents testified at the hearing. Nevertheless, the co-worker's contemporaneous hand-written reports of the incidents which were received into evidence (Respondent's Exhibits 21-30) are found to be credible based upon their general consistency and the corroborating testimony of Ms. Jensen at the hearing. By contrast, Petitioner's testimony regarding the incidents was not credible. There is no credible evidence to support Petitioner's allegations that she was denied the opportunity to file complaints against her co-workers. Nor is there any credible evidence that Petitioner did file complaints (alleging discrimination or anything else) which were ignored by Respondent's management. By all accounts, Petitioner was a good salesperson; her sales per hour were high and, on several occasions, they were the highest in the department where she was working. Ms. Jensen complemented Petitioner on at least one occasion for her high level of sales. Petitioner was also punctual and had a good attendance record. She was on track to receive a pay increase at her next review. However, as a result of the unprofessional behavior detailed above, she was fired prior that review. Petitioner is currently unemployed. She has not held a job since she was fired by Respondent in May 1998. However, she has only applied for four or five other jobs since that time. Petitioner's Discrimination Claim Petitioner first contacted the Commission regarding her allegation that Respondent discriminated against her on or about June 29, 1998. On that date, she filled out the Commission's "intake questionnaire." On the questionnaire, she indicated that she had sought assistance from attorney Anthony Gonzales, Jr. (Attorney Gonzales) regarding the alleged discrimination by Respondent. Petitioner also listed Attorney Gonzales as her representative on the "intake inquiry form and complaint log" completed on or about July 10, 1998. Petitioner consulted with Attorney Gonzales in April 1998, prior to her termination. Although Petitioner claimed at the hearing that Attorney Gonzales did not agree to represent her beyond the initial consultation, Petitioner provided the Commission a copy of Attorney Gonzales' business card and a copy of the check by which Petitioner paid Attorney Gonzales' consultation fee with the Commission's intake documents. Based upon those documents, the Commission apparently (and reasonably) assumed that Attorney Gonzales was Petitioner's attorney because it subsequently directed various letters to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. Petitioner filed her formal charge of discrimination on November 9, 1998. The charge did not reference Attorney Gonzales. Nevertheless, on December 7, 1998, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address confirming receipt of the charge of discrimination. The record does not include any correspondence from Attorney Gonzales to the Commission in response to the December 7, 1998, confirmation letter. However, Attorney Gonzales continued to receive correspondence from the Commission regarding Petitioner's charge of discrimination after that date. On February 2, 1999, the Commission sent a letter to Petitioner "c/o Anthony Gonzales, Esq." at Attorney Gonzales' address indicating that Petitioner's charge of discrimination had been pending for over 180 days and identifying the options available to Petitioner. The letter was accompanied by an "election of rights" form which was to be completed and returned to the Commission. Attorney Gonzales apparently forwarded the form to Petitioner because Petitioner completed and signed the form and returned it to the Commission on June 17, 1999. This strongly suggests that there was an attorney-client relationship between Attorney Gonzales and Petitioner at the time. Indeed, if there was no attorney-client relationship, either Petitioner or Attorney Gonzales would have informed the Commission in connection with the return of the form that Attorney Gonzales was not representing here. However, neither did. The record does not include any additional communications between the Commission and Petitioner and/or Attorney Gonzales between June 1999 and August 2001. Notably absent from the record is any notice to the Commission that Attorney Gonzales was no longer representing Petitioner. On August 31, 2001, the Executive Director of the Commission issued a "no cause" determination on Petitioner's charge of discrimination. On that same date, the Clerk of the Commission sent notice of the determination to Petitioner "c/o Anthony Gonzales, Jr., Esq." at Attorney Gonzales' address. The notice stated that "[c]omplainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE" (emphasis supplied and capitalization in original), and further stated that the claim "will be dismissed" if not filed within that time. Attorney Gonzales contacted Petitioner by telephone after he received the notice of determination. The record does not reflect the date of that contact. However, Petitioner testified at the hearing that Attorney Gonzales informed her during the telephone call that the deadline for requesting a hearing had not yet expired. Accordingly, the contact must have occurred prior to October 5, 2001, which is 35 days after August 31, 2001. Despite the notice from Attorney Gonzales, Petitioner did not immediately file a Petition or contact the Commission. She did not contact the Commission until October 16, 2001. On that date, she spoke with Commission employee Gerardo Rivera and advised Mr. Rivera that Attorney Gonzales was not representing her. Mr. Rivera indicated that the Commission would send an "amended" notice directly to her. An "amended" determination of no cause was issued by the Executive Director of the Commission on October 26, 2001. On that same date, an "amended" notice of determination was mailed to Petitioner. Included with the "amended" notice was a blank petition for relief form. Petitioner completed the form and mailed it to the Commission. The Petition was received by the Commission on November 28, 2001,2 which is 33 days after the date of the "amended" determination, but 89 days after the date of the original August 31, 2001 determination. Mr. Rivera's affidavit (Exhibit P1) characterized the mailing of the original determination to Attorney Gonzales as "our [the Commission's] error" and a "mistake." The preponderance of the evidence does not support that characterization. Specifically, the record reflects that it was Petitioner who gave the Commission the impression that Attorney Gonzales was representing her, and neither Petitioner nor Attorney Gonzales did anything to advise the Commission otherwise during the two and one-half years that the Commission investigated Petitioner's charge of discrimination and sent letters to Attorney Gonzales on Petitioner's behalf. Indeed, Petitioner testified at the hearing that the October 16, 2001, conversation with Mr. Rivera was the first (and only) time that she informed the Commission that Attorney Gonzales was not representing her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 31st day of December, 2002.
The Issue Whether Respondent, Milos, illegally terminated Petitioner based on her race (Black), in violation of the Florida Civil Rights Act ("FCRA"), section 760.10, Florida Statutes (2018).
Findings Of Fact The undersigned makes the following findings of material and relevant fact: Petitioner is a Black female who worked for Milos as a line cook. Respondent is a Greek restaurant located in Miami, Florida. On January 12, 2016, Respondent hired Petitioner for a line cook position. Petitioner was interviewed and hired by Arsan. Arsan supervises all back-of-the-house staff and was Petitioner's supervisor throughout her entire 20-month period of employment. On May 30, 2016, approximately four and a half months after Petitioner's hire at Milos, Arsan gave Petitioner a raise in pay because he felt that she was performing well. Many of the employees Arsan supervises at Milos are Black. PETITIONER'S PERFORMANCE ISSUES AT MILOS On September 23, 2016, Petitioner was suspended for insubordination and violating company policies and procedures. Resp. Ex. 7 and 8. More specifically, Arsan was notified by the sous chef that there had been an argument between Petitioner and a coworker. Arsan attempted to investigate the dispute and found Petitioner to be very emotional and aggressive during the investigation. She was asked to leave but refused. Eventually, she left the premises. This incident came on the heels of another similar incident involving a verbal argument with a coworker, which occurred on September 17, 2016. Subsequently, on April 28, 2017, Petitioner was involved in another workplace argument with an employee named Rosa Salazar ("Salazar"). Resp. Ex. 10. The manager on duty intervened and attempted to resolve the dispute and calm the parties down. After he did so, Petitioner left work without permission and left early the following day as well. On June 27, 2017, a third employee named Ishay (a.k.a., Ayse Akbulut) complained that she could not work with Petitioner at their assigned station because Petitioner was "being rude and territorial." Resp. Ex. 11. Arsan spoke to Petitioner and resolved the matter between the two employees. However, he documented the incident as other employees had previously complained about Petitioner creating a hostile working environment. On June 30, 2017, Petitioner reportedly was involved in yet another workplace incident with Sonya Cabret ("Cabret"). Cabret complained that Petitioner made racially charged and demeaning comments to her based on Cabret's Haitian national origin. More specifically, Cabret complained that Petitioner called her an "ignorant Haitian," a "f ing Haitian," and stated that Cabret does not know how to speak English and that Cabret could not find a job anywhere else. Two months prior, Salazar had also complained that Petitioner made derogatory remarks to her based on Salazar's Latin ethnicity. Resp. Ex. 12 and 13. Salazar recounted that Petitioner had called her a "f ing Latino." Arsan disciplined Petitioner by counseling her and sending her home for the day. Each of the above incidents occurred prior to Hurricane Irma in September 2017. The undersigned finds that these incidents, and their related warnings and discipline, are relevant to the ultimate decision to discharge Petitioner and have some bearing on the propriety and necessity for termination. PETITIONER'S FAILURE TO RETURN TO WORK AFTER HURRICANE IRMA At some point in time on Wednesday, September 6, 2017, Arsan informed all employees that Milos would be closed at the end of the work day due to the approaching landfall of Hurricane Irma. Petitioner had been scheduled to report to work on September 6, 2017, at 10:00 a.m., but she did not do so. At 12:40 p.m. on September 6, 2017, Petitioner texted Arsan that she could not report to work because she was evacuating to Georgia due to Hurricane Irma. However, she hoped to return to work the following Tuesday (September 12, 2017). Resp. Ex. 14. After the hurricane had passed, on September 10, 2017, Arsan sent a group text message to all back-of-the-house staff alerting them that the restaurant was "closed for Monday" (September 11, 2017) and "we will be probably open for Tuesday" (September 12, 2017). Resp. Ex. 15. Petitioner received this text message. Petitioner never informed Arsan that she would not be back from Georgia by September 12, 2017, as she mentioned in her text message on September 6, 2017. Believing Petitioner would be back in Miami on September 12, 2017, Arsan scheduled Petitioner to work Wednesday, September 13, 2017. Resp. Ex. 16. On September 13, 2017, Petitioner did not call in or report for work. That same day, Arsan called Petitioner to find out why she did not report to work. Petitioner did not answer or return Arsan's call. On September 14, 2017, Petitioner again failed to call in or report for work. Arsan again attempted to reach Petitioner by telephone, but she did not answer. Arsan then sent Petitioner a text message notifying her that she was scheduled to be at work. Petitioner responded to Arsan's text messages on September 14, 2017, and the following discussion ensued: Arsan: "Denise you are scheduled to work today[.]" Petitioner: "Nobody called me and told me anything I cannot get out until Tuesday or Wednesday I'll [sic] area was hit bad and the bus is [sic] down here start running Wednesday[.]" Arsan: "Denise everybody is at work except you. How the bus starting [sic] on wednesday, [sic] half of staff is using the bus and they are here, The buses working [sic] fine." Petitioner: "When you come to my family I don't care about no job [sic] that's not my life we had an emergency down here we don't have any lights some of the buses is not running my house got water in it I am coming from Georgia so I might not be back until Thursday I have a lot of stuff to take care of in my house[.]" Arsan: "Please help let [sic] me understand your situation are you in Miami? or Georgia? Petitioner: I will be in Miami tonight I still have a lot of stuff to do at my. . . . Resp. Ex. 14. Arsan and Petitioner did not have any further communications after this text message exchange. Further, Petitioner did not initiate or attempt to send any more text messages to Arsan after the September 14, 2017, exchange. Petitioner did not report for work scheduled on September 15, 16, 17, 18, 19, or 20. Petitioner testified that she did not report to work from September 13, 2017, to September 20, 2017, because she was attending to damage to her home caused by the hurricane. Based on Petitioner's text message that she does not "care about no job [sic]," Arsan, after consulting with Milos' outside contracted human resource company, removed Petitioner from the schedule for the week of Monday, September 18, 2017, to Sunday, September 24, 2017. On September 21, 2017, Petitioner showed up at Milos to work. Arsan believed Petitioner had abandoned her job and did not expect her to report to work again. After she arrived, Arsan directed Petitioner to speak to Faundez, Milos' outside human resource representative at Eleva Solutions. Contrary to what Petitioner told Arsan (i.e., that she missed work because she was attending to damage in her home from the hurricane), Petitioner gave Faundez three different reasons for her failure to call in or show up for work the preceding week: she did not know that she was supposed to be at work; there was no bus transportation; and (c) Petitioner had to be evacuated. Faundez concluded that Petitioner's reasons for failing to appear for work were inconsistent and conflicted with each other. She also did not believe that Petitioner had provided a definitive or plausible answer explaining why she had not returned to work. After consultation, Faundez and Arsan decided together to terminate Petitioner's employment. Arsan was not the sole decision-maker with respect to Petitioner's termination. Prior to her termination and despite having received Respondent's antidiscrimination policy and complaint procedures, Petitioner never complained that Arsan was discriminating against her because of her race. During the course of the hearing, Petitioner was unable to identify any employee(s) outside of her protected class who engaged in the same conduct and were not terminated from employment. Specifically, on cross-examination, Petitioner admitted that she was unable to identify a single non-Black employee who failed to show up for work following the hurricane and who was not terminated from employment. The evidence Petitioner offered to support her race discrimination claim was vague, unpersuasive, and included only conclusory and general allegations by her that Arsan "was a racist" and is a "nasty human being." There were no emails, texts, documents, or other direct evidence from Petitioner or Arsan supporting her claim that she was fired by Milos because of her race. Likewise, Petitioner called no witnesses to offer any compelling facts or circumstances to support her claim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner's Petition for Relief with prejudice and find in Respondent's favor. DONE AND ENTERED this 23rd day of October, 2018, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 October, 2018.
