The Issue Whether Respondent’s rights and benefits under the City of Tampa General Employees’ Retirement Fund (the Fund) are required to be forfeited pursuant to section 112.3173, Florida Statutes (2018).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for City employees. Respondent was an employee of the City’s Parks and Recreation Department. Although she began working as a seasonal employee during the summers when she was in college, Respondent began in a permanent capacity as a recreation leader in October 2006. As part of her duties, Respondent was responsible for working in the City’s afterschool and cheerleading program. In Fall 2018, Respondent was responsible for ordering the uniforms for the participants in the cheerleading program. The money for the uniforms was provided to the City by the participants’ parents. Initially, the money was collected by a parent representative who converted it to a pre-paid purchasing card in the amount of $762.00, and submitted the card to Respondent. Respondent was to use the card to order the uniforms for the cheerleaders, and the uniforms were to be delivered to the City’s Parks and Recreation office. Michelle Keeler, Respondent’s supervisor, noticed the uniforms had not arrived at the expected date. On October 26, 2018, she questioned Respondent about the delay. Respondent initially told Ms. Keeler there had been a mistake by the delivery company. At this point, Ms. Keeler, who had supervised Respondent since Respondent had started working at the City, had no reason to suspect Respondent was lying. Over the next few weeks, Ms. Keeler periodically asked Respondent about the status of the cheerleading uniforms and was told there was a problem with the delivery. By mid-November, Ms. Keeler became suspicious and again asked Respondent about the uniforms. Respondent indicated the uniforms had been delivered and left in the office, but were now missing. Respondent suggested to Ms. Keeler that the cleaning crew may have thrown out the box of uniforms. On November 26, 2018, Ms. Keeler called the cheerleading uniform company and discovered no uniforms had been ordered for delivery to the City’s Parks and Recreation Department. The same day, Ms. Keeler confronted Respondent about the uniforms. Respondent insisted she had ordered them, but could not produce any records to show that she had made the order. She was also questioned by another Parks and Recreation supervisor, and gave the same response. Upon further interrogation, Respondent changed her story, admitting she had not actually ordered the uniforms. She claimed the card had been stolen from her. Respondent later provided a written statement to the City, in which Respondent claimed she still had the pre-paid card in her possession, but that the card no longer had any funds. Eventually, Respondent admitted to City staff that she no longer had the funds. On November 30, 2018, the City placed Respondent on suspension, pending an investigation. The City considered the funds collected for the purchase of the uniforms to be City property. Ultimately, the City ordered the missing uniforms and covered the cost. Based on the investigation, the City found Respondent to be in violation of section B28.2A(3)(d)(1) of the City’s Personnel Manual concerning “Moral Turpitude,” prohibiting “[f]alsification, misrepresentation, or material omission of statements, testimony, or any document or record completed in the course of employment or in obtaining employment, including group insurance claims.” The City also found Respondent had violated section B28.2A(3)(d)(11) of the Personnel Manual prohibiting theft or unauthorized removal or use of City property. As a result of its investigation and the violations, the City terminated Respondent on March 12, 2019. At the hearing, Respondent admitted she collected the money for the uniforms, misled City staff about the missing uniforms, and was terminated for theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, City of Tampa General Employees’ Retirement Fund enter a final order determining Respondent, Deirdre Williams, has forfeited all of her rights and benefits in the pension plan administered by the Fund, except to the extent of Respondent’s accumulated contributions, if any, as of March 12, 2019. DONE AND ENTERED this 29th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2019.
The Issue Whether Respondent discriminated against Petitioner on the basis of sex in violation of Section 760.10, Florida Statutes, when it terminated his employment.
Findings Of Fact Respondent is a large corporate employer with corporate headquarters outside the State of Florida. Pertinent to this proceeding, Respondent has a large manufacturing facility located in Palm Beach County, Florida. Petitioner is a male who was employed by Respondent at its Palm Beach facility between August 1978 and February 1993. Petitioner is a college graduate who subsequently earned a Master's degree in Business Administration (MBA). Respondent first employed Petitioner as a Financial Trainee, which is designated as a Grade 41 on the system by which Respondent designated pay ranges and relative job responsibilities. Respondent promoted Petitioner to a position referred to as Financial Analyst in 1979, which is a Grade 43 position. Respondent promoted Petitioner in 1981 to a position referred to as Senior Analyst, which is a Grade 45 position. Respondent promoted Petitioner in 1984 and assigned him to its Saudi Arabia Program as the Continental U.S. International Administrator, which is a Grade 46 position. Respondent laterally transferred Petitioner in 1986 from the Financial Department into the Human Resources Department to a position designated as Personnel Representative, which is also a Grade 46 position. Respondent promoted Petitioner in January 1989 to a position designated as Senior Resources Representative, which is a Grade 48 position. Respondent informed Petitioner on February 12, 1993, that his employment would be terminated, effective February 28, 1993. Petitioner's base annual salary at the time his employment was terminated was $56,484.00. As of the formal hearing, Petitioner was working for his wife's appraisal company in a nonpaying job. Karen Roberts is a female who has been employed by Respondent at its Palm Beach County facility since June 1980. Ms. Roberts is also a college graduate who subsequently earned an MBA. In addition, Ms. Roberts has been designated as a Certified Compensation Professional by the American Compensation Association. Ms. Roberts first began her employment with the Respondent as a Financial Trainee, Grade 41. She was transferred out of the Finance Department into the Human Resources Department in July 1984 as a Human Resources Representative, which is a pay grade 45. She was promoted to Senior Human Resources Representative in October 1992, which is a pay grade 48. Respondent's upper management determined in 1992 that it was necessary to reduce the number of its employees as part of an overall restructuring of its operations. The reduction in force, which was to be the largest separation of employees that Respondent had ever experienced, was for valid business considerations which are not at issue in this proceeding. The management group set the target for the number of employees in each department of the Palm Beach facility whose employment would be terminated. The management group decided that the Human Resources Department of the Palm Beach facility, of which Petitioner was a part, would be reduced by between 20-25 employees in February 1993. That decision by the management committee is not being challenged in this proceeding. William Panetta was, at the times pertinent to this proceeding, the Respondent's Vice President of Human Resources for the West Palm Beach facility. The management group informed Mr. Panetta in the fall of 1992 of the upcoming reduction in force and gave to him the targets that had been set for the various departments for the West Palm Beach facility. Soon thereafter, Mr. Panetta began meeting with the heads of major departments to devise a procedure for making the reductions in force. Among the senior staff who met with Mr. Panetta was John Roberson, who was manager of Human Resources for non-engineering personnel. Petitioner worked in Mr. Roberson's department from the time he was transferred to its Human Relations Department in 1986 until the termination of his employment in 1993. Mr. Roberson was Petitioner's second line supervisor. At different times, Bob Vogel, Charles Wilson, and John Hopkins served as Petitioner's direct supervisor. Mr. Roberson was asked by Mr. Panetta to prepare a draft of a proposal for the procedure to be followed in carrying out the reduction in force. This draft was to include a method to identify those employees whose employment would be involuntary terminated. Pertinent to this proceeding, Mr. Roberson's draft included a provision for selecting among multiple incumbents when some job positions or functions were being eliminated. In that situation, Mr. Roberson proposed that seniority be the primary factor and that relative performance of the incumbents be considered only if the more senior employee was ranked as a low performer on his or her annual evaluation. Respondent annually evaluated employees such as Petitioner as being either a "T" (top), a "M" (middle), or an "L" (low). The employees were also given annual evaluations by their supervisors called Performance Management Reports, which rated the employees on a scale ranging between unsatisfactory to exceptional. During his entire tenure with Respondent, Petitioner was rated at least as being fully competent on his Performance Management Reports and, at different times, as being either in the "T" or the "M" category. The procedure drafted by Mr. Roberson was never intended to be the final procedure that would be followed in accomplishing the reduction in force. In late 1992, Mr. Panetta presented Mr. Roberson's draft to the senior staff for comment and revision. The senior staff determined that Mr. Roberson's draft overemphasized seniority and was too inflexible. It was determined that such emphasis on seniority would hamper management's efforts to retain the most qualified employees. The Human Resources Department assigned to each of Respondent's major departments a Personnel Support Representative to assist with employee relations and to provide administrative support in personnel matters. As part of the procedure followed for the 1993 layoffs, the Personnel Support Representative for each department reviewed the candidates for layoffs with the Department Head to determine whether the selection was fair and properly documented. The Personnel Support Representative was to provide support only. Each Department Head had the responsibility for determining the employees within a department to be laid off. During the same time period that senior staff was trying to develop the procedure that would be followed for layoffs, Mr. Roberson met with the Personnel Support Representatives and discussed with them the drafted procedure he had prepared. He informed them that the draft was not the final product and asked for discussion. Mr. Roberson discussed with the Personnel Support Representatives the final policies that senior staff adopted before final selections were made and informed them that rigid adherence would not be given to seniority. Respondent has never used seniority as the controlling factor in any previous layoff. The senior staff decided that it would consider the following criteria to determine which of its qualified employees to layoff: documented poor performance, the elimination or consolidation of different positions, relative performance among the candidates, and seniority. Mr. Panetta determined that those employees of the Human Resources department should be "generalists" who are capable of performing a wide range of responsibilities as opposed to specialists. Respondent's plan was to either eliminate functions that had been performed by specialists or to consolidate those functions with other specialized functions. The employees in Human Resources who would still be employed would be required to take on new responsibilities and to perform tasks that had previously been performed by specialists. In the Human Resources department, an employee would have to assume responsibilities in labor relations, employee relations, and compensation. Mr. Panetta decided after conferring with Mr. Roberson that the Management Training, Placement and Compensation section in the Human Resources department for non-engineering personnel would be eliminated. Senior Human Resource Representatives and Human Resource Representatives were candidates for layoffs and were put into a resource pool. The employees in the resource pool were thereafter considered for other positions by comparing their qualifications with those of employees whose positions were not being eliminated. If an employee in the resource pool was considered to be more qualified than an employee whose position was not being eliminated, the more qualified person in the resource pool would be retained to fill the existing job and the incumbent employee would have his employment terminated. Petitioner and Karen Roberts were assigned to the compensation function at the time of the layoffs, but their positions were eliminated as a result of the layoffs. Petitioner and Karen Roberts were placed in the resource pool. Dave Swanson was employed as a Personnel Support Representative in the Human Resources Department prior to the reduction in force. Mr. Swanson's position was not eliminated, but it was determined that there were employees in the resource pool, including Petitioner and Karen Roberts, who were more qualified than Mr. Swanson. Respondent selected Ms. Roberts to fill the position that had been filled by Mr. Swanson. Petitioner's employment with Respondent was terminated. Petitioner asserts that Respondent discriminated against him on the basis of his sex in deciding to retain the employment of Ms. Roberts and to terminate his employment. There is no assertion by Respondent that Petitioner was an incompetent employee. To the contrary, Respondent considered Petitioner to be a competent employee, which is why he was a candidate to fill Mr. Swanson's former position. At the time of the layoffs, John Hopkins was the Manager of Technical Development and Compensation and the direct supervisor of Petitioner and Ms. Roberts. While Mr. Panetta had the ultimate responsibility for deciding whether Petitioner or Ms. Roberts would be retained in Mr. Swanson's former position, he relied heavily on Mr. Roberson's recommendation in making that decision. Mr. Roberson in turn relied on his own knowledge of the respective performances of these two employees and on information that had been given him by Mr. Hopkins. Mr. Hopkins believed that Ms. Roberts was a more valuable employee than Petitioner. Mr. Hopkins testified that Petitioner failed to timely complete certain assignments, that certain aspects of his performance was not satisfactory, and that he had experienced problems working with others. Mr. Hopkins received separate complaints from Joe Bressin, who was in charge of Executive Compensation, and Henry Ugalde, who was in charge of the Equal Employment Opportunity function, that Petitioner had not rendered satisfactory assistance to them. Petitioner did not meet all of the interim deadlines for preparation of a negotiations book that was being complied for use in labor negotiations. Several of Petitioner's supervisors met with him during his tenure with Respondent to discuss his perceived deficiencies and to review his assignments. Mr. Roberson was aware of these deficiencies at the time he recommended to Mr. Panetta that Ms. Roberts be selected to fill Mr. Swanson's former position. Mr. Hopkins considered Ms. Roberts to be a "solid performer" who was enthusiastic, worked well with others, and was capable of performing a wide range of tasks. Ms. Roberts prepared a book for other employees in the compensation function that detailed the procedures involved in performing hourly compensation duties relative to collective bargaining agreements. In addition, Ms. Roberts was chosen by Mr. Panetta to assist Respondent's negotiating team during negotiations with the labor unions for the 1992-1993 labor contract. Ms. Robert's worked on a complex computer program that computed the costs to Respondent of various collective bargaining proposals. Ms. Roberts was chosen for this assignment because Mr. Hopkins believed her to be the best employee to assume this responsibility. Mr. Hopkins selected her because of her competence, her enthusiasm, her ability to maintain confidential information, and her willingness to work irregular hours. Gender was not a factor in selecting Ms. Roberts for this assignment. Ms. Roberts performed with distinction the duties that had been assigned to her as a member of the negotiating team, thereby favorably impressing Mr. Roberson and Mr. Panetta. Mr. Roberson was aware of Ms. Roberts' job performance at the time he recommended to Mr. Panetta that she be selected to fill Mr. Swanson's former position. Mr. Roberson and Mr. Panetta did not rely heavily on their most recent job evaluations, which were the only documents they reviewed, nor did they consider it significant that Petitioner was in a position that is designated as pay grade 48 when his last evaluation was written and that Ms. Roberts was in a position designated as pay grade 46 when her last evaluation was written. 1/ Mr. Roberson and Mr. Panetta considered the responsibilities and job duties of these two positions to be identical. The relative job performances of Petitioner and Ms. Roberts were evaluated by Mr. Roberson and Mr. Panetta taking into consideration the future demands of the job and were based, in large part, upon direct experience with the two employees. There was no written documentation of their rationale for selecting Ms. Roberts to fill Mr. Swanson's former position. Petitioner established that Mr. Roberson occasionally made comments about attractive female employees and that he seemed to prefer the company of certain female employees, one of whom was Ms. Roberts, at social events. While due consideration has been given this evidence, it is found that the greater weight of the evidence established that Respondent had legitimate, nondiscriminatory business considerations for the employment decision that was at issue in this proceeding. These considerations were not shown to be pretextual. Petitioner failed to establish that Respondent discriminated against him on the basis of his sex by its decision to replace Mr. Swanson with Ms. Roberts instead of with Petitioner. The petition Petitioner filed before the Florida Commission on Human Relations contains an allegation that Respondent discriminated against him on the basis of age. Petitioner abandoned that allegation at the beginning of the formal hearing. The petition Petitioner filed before the Florida Commission on Human Relations also contains an allegation that Respondent discriminated against him by failing to rehire him or recall him after his employment had been terminated. There was no evidence to support that allegation.
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 that adopts the findings of fact and conclusions of law contained herein and that dismisses the Petition for Relief filed by Petitioner. DONE AND ENTERED this 9th day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
The Issue The issues in this case are whether Respondent, as City Manager for the City of Opa-locka, violated Section 112.313(6), Florida Statutes, by (1) using his position to engage in sexual, or romantically-oriented, comments, behavior, and/or invitations to female City employees; (2) having a subordinate's car repaired using City resources; (3) soliciting a personal sexual or romantic relationship with a female job applicant; and (4) if yes, what penalty is appropriate.
Findings Of Fact Respondent served in the Marines for two years and in the Florida Department of Law Enforcement (FDLE) for thirteen years. He then served as Police Chief of Florida City for two years before resigning to become the Executive Officer in Charge of Investigations at the City of Lauderhill Police Department. After two or three months he quit that job, and conducted private investigations until he was hired by the City of Opa- locka. Respondent was appointed acting City Manager for the City of Opa-locka (City/Opa-locka) on Friday, June 9, 1995. He was appointed City Manager effective July 28, 1995, and remained in that position until May 1997. All City employees, other than those in the City Attorney's Office, ultimately reported to the Respondent as City Manager. Also, as City Manager, Respondent could terminate City employees. In Respondent's positions as acting City Manager and City Manager, he was subject to the requirements of Part III, Chapter 112, Florida Statutes, the Code of Ethics for Public Employees and Officers. Remarks and Conduct Toward Female Employees At all times relevant hereto, Angelita Griffin was employed by the City of Opa-locka. Ms. Griffin first started working with the City of Opa-locka during a Federal Emergency Management Agency (FEMA) project in late 1992. Thereafter, in March 1993, Ms. Griffin was hired by the City, in a temporary position as an accounts clerk in the Water Department, which was under the City's Finance Section. Ms. Griffin was eventually placed in a permanent position with the City and continued to work as a clerk in the Water Department until June 1995. Ms. Griffin first met Respondent on Saturday, June 10, 1995, the day after he was appointed acting City Manager. Respondent was visiting the Finance Department with Winston Mottley, Director of the Finance Department. Ms. Griffin and several other employees were in the office working that day. Respondent briefly spoke to some of the employees, but he did not engage in extended conversations with any of them. On June 10, 1995, while at the Finance Department, Respondent asked Mr. Mottley if he could send someone to Respondent's office on Monday to answer the telephones. Mr. Mottley said that he had just the right person, someone who he had been "trying to get out of his office." Even though Mr. Mottley did not name or otherwise identify that person to Respondent, the employee to whom he was referring was Ms. Griffin. The following Monday, June 12, 1995, Mr. Mottley informed Ms. Griffin that she was being transferred to the Building Department and told her to report there the next day. After Ms. Griffin reported to the Building Department on June 13, 1995, she was directed to report to the City Manager's Office. Although Ms. Griffin reported to the City Manager's Office, she was unhappy about being transferred from the Water Department. Ms. Griffin wanted to remain in the Water Department because she enjoyed the work, believed that she knew the job, and was comfortable there. Almost immediately after being transferred from the Water Department, Ms. Griffin openly expressed her disatisfaction about the transfer and took steps which she believed would possibly result in her being reassigned to the Water Department. Within a day or so of Ms. Griffin's being transferred to the City Manager's Office, she told Respondent that she wanted to go back to the Water Department. However, he did not comply with her request. Also, as early as June 13 or 14, 1995, Ms. Griffin telephoned former City Manager Dennis Whitt and asked him if he could "talk to someone in City Hall and see if [she could] go back to the Water Department." Ms. Griffin called former City Manager Whitt because she believed that he was "still close to the mayor and the commissioners." When former City Manager Whitt did not call Ms. Griffin with a response regarding her request, Ms. Griffin telephoned Mr. Whitt. In that conversation, Mr. Whitt told Ms. Griffin that he had been unsuccessful in trying to help her get transferred back to the Water Department. Mr. Whitt conveyed to Ms. Griffin that he had spoken to someone in the Water Department who said that Ms. Griffin was incompetent and that there was "nothing they could do to help [her]." Based on her telephone conversation with Mr. Whitt, Ms. Griffin believed that Respondent had told City Commissioner Helen Miller that Ms. Griffin couldn't return to the Water Department because she was "incompetent, . . ., didn't know [her] work over there, [and]. . . couldn't even type." During the week of June 12, 1995, Ms. Griffin also went to the office of the City's Vice-Mayor Timothy Holmes and asked him to help her "get back to the Water Department." Vice- Mayor Holmes apparently believed that such a transfer was unlikely and advised Ms. Griffin that Respondent had said Ms. Griffin "didn't know [her] work over there." Despite Ms. Griffin's soliciting the assistance of Mr. Whitt and Vice-Mayor Holmes, whom she considered to be influential, and Respondent, she was never reassigned to the Water Department. Between June 1995 and November 1995, Ms. Griffin worked in four different offices: the City Manager's Office, the Mayor's Office, Safe Neighborhoods, and Code Enforcement. While working in each of the aforementioned offices, Ms. Griffin's sole or primary responsibility was to answer the telephone. Beginning on June 13, 1995, Ms. Griffin worked for Respondent in the City Manager's Office and was there for about two months. While working in the City Manager's Office, there were two instances when Respondent spoke to Ms. Griffin about reporting to work late. In the first instance, Ms. Griffin indicated that her tardiness was due to transporting her son to daycare. During this or a subsequent conversation, Respondent asked Ms. Griffin several personal questions. The questions concerned Ms. Griffin's marital status, the paternity of her child, and her financial status as it related to her ability to take care of herself and her child. It was then that Ms. Griffin told Respondent that she earned extra money by working part-time as a singer. Ms. Griffin agreed to and did eventually bring him a tape of her music. On another occasion, when Ms. Griffin was working in Respondent's office, he commented on her weight and the junk food she was eating. Respondent then suggested that Ms. Griffin contact a company to inquire about having a juice machine put in the building. Respondent's comments upset Ms. Griffin so much that she almost stayed home from work the next day. However, she later decided to report to work even though she was late. When Ms. Griffin arrived at the office, Respondent called Ms. Griffin into his office to discuss her tardiness. Respondent also called his assistant, Ms. Robinson, into the office while he talked to Ms. Griffin. Mr. Mottley, who was already in Respondent's office when Ms. Griffin arrived, remained there during the meeting. Ms. Griffin became frustrated and told Respondent and Mr. Mottley that she was tired of them "harassing" her. After Ms. Griffin made this comment, Respondent demanded that she write a letter of apology for her accusation against Respondent and Mr. Mottley. Ms. Griffin acknowledged that she, in fact, wrote the letter and gave it to Respondent. However, there is no indication of what Respondent did with the letter. After working full-time in the City Manager's Office for about two months, Ms. Griffin was transferred to the Mayor's Office for a short time. From the Mayor's Office, Ms. Griffin was sent to Safe Neighborhoods, where she worked for approximately three weeks. Ms. Griffin's assignment to Safe Neighborhoods was the result of a request by the director of that program for additional assistance. From Safe Neighborhoods, Ms. Griffin went to work in Code Enforcement, where she worked until November 6 or 7, 1995. In the City of Opa-locka, a Report of Personnel Action was to be completed whenever an employee was transferred from one section to another section. However, it was not unusual for City employees to be transferred without such forms being completed. In Ms. Griffin's case, there was never any paperwork reflecting any of her interdepartmental transfers or reassignments. During Ms. Griffin's tenure with the City, even when she was not assigned exclusively to the City Manager's Office, she was called to that office several days a week, for some part of the workday, to answer the telephone. Ms. Griffin had no set schedule for reporting to the City Manager's Office to answer the telephone, but was considered a relief person and, as such, went there whenever she was called upon to report. When Ms. Griffin was needed, she was always called by a support staff person from the City Manager's Office. Ms. Griffin also served as a relief person under the two former city managers who preceded Respondent. In addition to Ms. Griffin, employees from other City departments were required to serve as relief persons by answering the telephone in the City Manager's Office. Again, this practice was in place prior to Respondent's being appointed City Manager and continued during his tenure. Several City employees, mainly Department heads or other highly placed staff, had Rotary Club memberships paid for by the City. Although Ms. Griffin did not fall into this category of employees, Respondent also authorized a City paid membership for her. Ms. Griffin was one of the City employees who regularly attended Rotary functions and meetings. In addition to her job with the City, Ms. Griffin was a singer. Because Ms. Griffin was a performing artist, she often sang at Rotary Club activities. Notwithstanding the fact that Ms. Griffin customarily sang at Rotary Club or other functions, there was at least one occasion when Respondent asked Ms. Griffin to sing at an event and she refused to do so. After Ms. Griffin refused to sing at that particular event, Respondent asked her why she was not more cooperative given "all that he had done for her." In response to this inquiry, Ms. Griffin told Respondent that her refusal to sing was not anything "personal." However, Ms. Griffin maintained her position that she "couldn't do it." After this exchange, there is no indication that Ms. Griffin sang at this function or that she suffered any adverse consequences as a result of her decision. During the period between June 13, 1995, and November 6, 1995, none of Ms. Griffin's supervisors ever documented any complaint about her job performance or observed any changes in her behavior or attitude. In fact, those individuals who worked with Ms. Griffin and saw her on a regular basis found her to be pleasant and happy, and noticed no changes in her demeanor. However, while Ms. Griffin worked in Safe Neighborhoods, a fellow employee, Mildred Bradshaw, observed that Ms. Griffin sometimes appeared disgusted or disturbed when she returned from the City Manager's office. In response to Ms. Bradshaw's inquiry about what was wrong, Ms. Griffin expressed her dissatisfaction with Respondent and told Ms. Bradshaw that she was "tired of [Respondent] calling her back over to his office" and "switching me back and forth and the way he was treating me as far as coming on to me." Ms. Griffin testified that she gave Ms. Bradshaw no detailed explanation of what she meant by these comments. None the less, contrary to Ms. Griffin's statement, Ms. Bradshaw testified that Ms. Griffin told her that she and Respondent had had "sex" in Respondent's office. According to Ms. Bradshaw, Ms. Griffin made this statement to her in October 1995, when Ms. Griffin worked in Safe Neighborhoods. On October 1, 1995, while Ms. Griffin was working in Safe Neighborhoods, City Commission authorized a 5 percent cost of living salary increase for City Employees. As a result thereof, Ms. Griffin's annual salary went from $16,500 to $17,388. Respondent authorized an additional raise for Ms. Griffin, on October 9, 1995, which increased her salary to $18,000. For the three weeks Ms. Griffin was in Safe Neighborhoods, she was supervised by Ms. Lockhart. However, Ms. Lockhart was unaware of Ms. Griffin's salary or of the pay raise authorized by Respondent. During Respondent's tenure as City Manager for the City Of Opa-locka, City employees other than Ms. Griffin received salary increases in excess of the 5 percent cost-of- living increase approved by the City Commission. Some of those salary increases, approved by Respondent, were substantially higher than the one received by Ms. Griffin. Completion of a Report of Personnel Action (RPA) is required to effectuate a salary increase for City employees and the form contains a "remarks" section that may be used to indicate the reason for any pay adjustment. Nonetheless, it is not unusual for such a statement to be absent from the RPA. In Ms. Griffin's case, no reason for the October 9, 1995, salary increase was provided on the form. Ms. Griffin signed the RPA authorizing her salary increase. However, when she signed the form, the only pay raise shown was the 5 percent cost of living adjustment. Ms. Griffin testified that the first she knew of the raise was when the Respondent called her in and asked her how she liked her raise. According to Ms. Griffin, she was upset to know she was receiving special treatment, and was concerned about what Respondent might want in return. On October 25, 1995, Ms. Griffin submitted a letter of resignation to the City, with such resignation being effective November 6, 1995. At the time Ms. Griffin tendered her letter of resignation, she told City colleagues that she was leaving the City to accept a job as a singer. Ms. Griffin told some City employees that she would be going on tour with someone, although after leaving the City, Ms. Griffin performed as a singer on a cruise ship. On the evening of November 1, 1995, Respondent and a number of City officials who belonged to the Rotary Club, including Respondent's assistant, Michael Jones, and Police Chief Craig Collins, attended a Rotary Club function. Ms. Griffin also attended and sang at the event. While enroute to the Rotary Club function on November 1, 1995, Ms. Griffin damaged her car. Ms. Griffin testified that the car was damaged when she backed into the gate or lock at her apartment complex as she was leaving for the Rotary Club event. However, that evening Ms. Griffin told Respondent, Michael Jones, and Craig Collins, in separate conversations, that someone had hit her car. On November 1, 1995, after learning that Ms. Griffin's vehicle was disabled, Police Chief Craig Collins offered to drive her home. Even though Ms. Griffin knew Chief Collins not only as the City's Police Chief, but also as a relative of one of her friends, she declined his offer. Michael Jones also offered to provide Ms. Griffin with a police escort to take her home. Again, Ms. Griffin declined this offer and instead accepted a ride with Respondent. At Respondent's suggestion, Ms. Griffin then drove her car to the City Police Station and parked it. Respondent went to the Police Station to pick up Ms. Griffin and drive her home. Respondent drove Ms. Griffin home after the Rotary Club event. When Respondent arrived at Ms. Griffin's apartment complex, he entered through the security entrance and drove Ms. Griffin to her apartment. About fifteen minutes after Respondent left the Rotary function, Respondent called Mr. Jones from the cellular telephone in Respondent's car to advise him of matters that the Mayor had discussed earlier that evening. This call was made after Respondent took Ms. Griffin to her apartment. Ms. Griffin's and Respondent's versions of what occurred once they arrived at Ms. Griffin's apartment complex are at odds. Respondent's version of the events that transpired on the evening of November 1, 1995, is that after he arrived at Ms. Griffin's apartment complex, she exited his car and he immediately left. According to Respondent, he never went into Ms. Griffin's apartment. According to Ms. Griffin, Respondent carried Ms. Griffin's belongings upstairs, entered her apartment, put the items in her bedroom, seated himself on her couch, and asked for something to drink. Ms. Griffin testified that while she was getting Respondent something to drink, he came up behind her, and rubbed against her. Ms. Griffin stated that she then turned around and tried to push him away, but Respondent persisted in his efforts, asking her why she was resisting after all he had done for her. Finally, according to Ms. Griffin, Respondent pushed her down and asked her for oral sex, and when she did not comply, he engaged in sexual intercourse with her against her will. Ms. Griffin testified that she did not want Respondent in her apartment on the evening of November 1, 1995, but claims that she did know how to stand up to him. Ms. Griffin never reported the aforementioned alleged sexual assault to anyone before about August 1996, when she mentioned it to her attorney. Moreover, Ms. Griffin never reported the incident to law enforcement officials nor did she seek medical attention after the alleged assault. There is no physical or otherwise reliable evidence that the alleged sexual assault occurred. Furthermore, it is found that Ms. Griffin's testimony regarding the alleged assault is not credible. Thus, it is found that on the evening of November 1, 1995, Respondent never entered Ms. Griffin's apartment. The next day, November 2, 1995, Ms. Griffin reported to her City job as usual. During that day, Ms. Griffin went to the City Manager's office after she was called to report there. Ms. Griffin continued to work for the City until November 7, 1995. Although Ms. Griffin's resignation was to be effective November 6, 1995, she worked an extra day until November 7, 1995, at the request of Respondent. During the period between November 7, 1995, and August 19, 1996, Ms. Griffin was employed as a singer on the a cruise ship, Europa Sea Cruise. About nine months after Ms. Griffin left her job with the City, she filed a sexual harassment claim against Respondent. According to Ms. Griffin, the reason she decided to file the complaint was that she "had gone for a long time without saying anything to anybody." Also, Ms. Griffin acknowledged that she filed the complaint because she was struggling financially, was in a low-paying job, was away from her son, had given up her apartment, and was "stressed out and worried." The basis of the claim was alleged acts that occurred between June 1995 and November 1995. With the possible exception of comments that may have been made to Ms. Bradshaw in October 1995, Ms. Griffin never told anyone that Respondent made inappropriate remarks to her or behaved inappropriately toward her. Ms. Griffin testified that from the first month that she reported to Respondent's office and continuing until she left the City's employ four and one-half months later, she was subjected to continuous sexual harassment by the Respondent. According to Ms. Griffin, in addition to the questions about her personal life noted in paragraph 15 above, Respondent asked her whether there was a man in he life, told her he was looking for a girlfriend, and asked for her help. Ms. Griffin also testified that during the time she worked in Respondent's office, he stared at her breasts. Moreover, Ms. Griffin testified that Respondent hugged her almost everyday that she came into the office. According to Ms. Griffin, Respondent sometimes hugged her in the presence of other City employees who worked in the office. According to Ms. Griffin, Respondent not only hugged her, but also hugged other female City employees. From the reception area, anyone could see into Respondent's private office through a transparent window. This was possible because there was no covering on the window to obscure the view. Regla Mederes, who worked as Respondent's executive secretary at the time relevant to this proceeding, worked in an area where she was able to observe both Ms. Griffin and Respondent and would have seen Respondent hug Ms. Griffin if he had done so. However, Ms. Mederes never saw Respondent hug Ms. Griffin when she came into the office to answer the telephones or any other time. Aletha Robinson, Respondent's assistant when he worked for the City, was in and out of Respondent's office on a regular basis, but also never saw Respondent hug Ms. Griffin. Ms. Robinson stated that Respondent was always professional and "very much" a gentleman when he was in the office. Respondent never hugged Ms. Griffin or any other City employee in the workplace and was never overheard making sexually inappropriate remarks to female employees in the workplace. Ms. Griffin testified that at on two separate occasions, Respondent touched her on the buttocks. According to Ms. Griffin, Respondent touched her buttocks with his knee when he sat behind her at a banquet. Based on Ms. Griffin's account of events, Respondent also touched her buttocks with his hands while they stood in a buffet line at a Rotary function. Ms. Griffin stated that in the first situation, she made no attempt to move her chair and in neither of the aforementioned situations did she say anything to Respondent. Other City employees and officials attending these events never observed Respondent touching Ms. Griffin. In fact, at Rotary events, Respondent never sat near Ms. Griffin. As City Manager, Respondent was seated at the front of the room, typically at the head table. On the other hand, Ms. Griffin was usually late and sat in or near the back of the room. Moreover, Ms. Griffin testified that during the course of her employment, Respondent asked her out to dinner and on another occasion, called her at home and asked if her boyfriend was in bed with her. Ms. Griffin never reported this to anyone during her employment with the City. According to Ms. Griffin, on the evening of November 1, 1995, after the Rotary Club function had concluded, Respondent remarked that since Ms. Griffin had resigned from the City, she could now go out with him. Moreover, Ms. Griffin testified that these comments were made in the presence of City officials and/or employees, namely Vice Mayor Holmes, Aletha Robinson, and Michael Jones. Neither of the aforementioned individuals heard Respondent make any comment that Ms. Griffin could now be his girlfriend or go out with him. Respondent, on one occasion, commented to Mr. Mottley about Ms. Griffin's breasts and their size. During this conversation, which Mr. Mottley characterized as "talking as men," he jokingly warned the Respondent that "breasts" could get him into trouble. This was a private conversation between only Respondent and Mr. Mottley. It is unknown where or when this discussion took place. Respondent has had numerous courses dealing with sexual harassment. Thus, he was aware that remarks of a sexual nature to subordinates are inappropriate; that it was improper to ask a subordinate employee about her sexual partners; that it was improper to ask a subordinate employee to kiss him; and that it was improper for a superior to attempt to engage a subordinate employee in a sexual or romantic relationship. Ana Otero was employed by the City of Opa-locka for eight years, leaving in September 1997, after she was asked to resign by Arlington Sands. Ms. Otero testified that she did not like anyone associated with the City of Opa-locka, including Respondent. On one occasion when Ms. Otero went to Respondent's office, he told her that he wanted to come to her house for rice and beans. On another occasion, while passing through the small room where the copier was located, Respondent came up behind Ms. Otero while she was making photocopies. He was so close to her that she could feel his breath on her neck. Also, there was a time that Respondent made a comment to Ms. Otero regarding short Puerto Rican women. In another incident that occurred at the workplace, Respondent asked Ms. Otero to give him an "intimate" kiss. Ms. Otero never reported Respondent's conduct or comments during her tenure with the City. Liliana Cuevas was employed by the City of Opa-locka from 1990 until 1996. At one point, when Ms. Cuevas was in a meeting with Respondent on a personnel matter, he began to inquire about her personal life. Respondent asked such questions as why she was divorcing her husband, and whether her husband was her son's father. Respondent also asked her if she wanted to go out with one of his colleagues. On another occasion, Ms. Cuevas was delivering papers to the Respondent. As she gave him the items, he brushed his fingers lightly against her hand. As she was about to exit his office, he called her back to give her something else to take back with her. This scene was repeated several times, each time with Respondent brushing Ms. Cuevas' hand and watching her as she went back and forth. Respondent never asked Ms. Cuevas to have sex with him, asked her out, or made any "moves on her." Notwithstanding, Ms. Cuevas' description of the the incident described above, she stated that Respondent has never flirted with her or gotten physical with her. Ms. Cuevas never reported any inappropriate conduct by Respondent while she was employed by the City. While Ms. Cuevas filed sexual harassment charges against other employees of the City, she has not filed any such charges against Respondent. Sonia Hernandez started working for the City as an administrative assistant in the Public Works Department in November 1995. She left the City's employ in December 1996, after being terminated by Aibola Balogun. One week into her employment with the City, someone at a staff meeting asked Ms. Hernandez if she were single. Respondent told the staff member to "back off." When Ms. Hernandez came to this meeting, she unknowingly sat in the area designated for upper management, Respondent grabbed her arm and hand as if indicating she was in the wrong area. Ms. Hernandez characterized Respondent's action as physical rather than sexual. Nonetheless, when he put his hand on Ms. Hernandez, she felt uncomfortable. About a week after the staff meeting Respondent called Ms. Hernandez and invited her to the Christmas party. During this call, another person was on Respondent's speaker phone. Respondent made comments to this third person about Ms. Hernandez's "big brown eyes." On another occasion, during one of his regular visits to the City's public works section, Respondent observed Twinkies on Ms. Hernandez's desk and suggested that she "lay off the Twinkies." Ms. Hernandez believed that the comment was a negative reference to her weight, and responded by telling Respondent that she was "comfortable with herself." Respondent then looked at her, chuckled, and said, "Well, when I usually go to the meat market, I buy a pound of meat as opposed to a pound of bones." Ms. Hernandez did not understand the meaning of Respondent's statement, but the earlier reference to her weight made her feel uncomfortable. Although Respondent made comments about Ms. Hernandez's weight, she testified that Respondent made no sexual advances toward her either at the Christmas party or the workplace. Finally, at the City employees' Christmas party, Respondent approached Ms. Hernandez and her date, and told Ms. Hernandez that someone wanted to meet her. Ms. Hernandez indicated that she was not interested. During the conversation, Ms. Hernandez believed that Respondent was looking at her breasts, rather than at her face. This made Ms. Hernandez feel uncomfortable. At the end of the conversation Respondent shook Ms. Hernandez's hand. The entire conversation lasted about 30 seconds. While serving as City Manager, Respondent was aware that it was improper for a superior to engage in unsolicited or unwelcome sexually or romantically-oriented remarks or behavior toward a subordinate employee. Repair of Employee's Vehicle Using Public Resources As previously noted, on November 1, 1995, Ms. Griffin damaged her car on the way to a Rotary Club function at which she was to sing. After the event, Ms. Griffin approached Michael Jones and told him that someone had hit her car, that the bumper was on the ground, and that the car was inoperable. Nevertheless, later that evening, Ms. Griffin was able to drive the damaged vehicle to the City Police Station, where she left it overnight. The next day, Ms. Griffin went to see Michael Jones about having her car repaired. Mr. Jones instructed City employee, Jesus Corrales, to look at the car to assess the damage. Mr. Corrales told Mr. Jones that he could reattach the bumper in about five minutes. Thereafter, Mr. Jones directed Mr. Corrales to repair Ms. Griffin's car. Pursuant to Mr. Jones' directive, Mr. Corrales repaired Ms. Griffin's car. Even though no City-owned parts were required, it took Mr. Corrales two to three hours to repair the vehicle. After the vehicle was prepared, Ms. Griffin offered to pay Mr. Corrales $20.00 for repairing the damage to her car. Mr. Corrales refused to accept the money. Respondent never authorized or directed Mr. Corrales to repair Ms. Griffin's car. Nor did Respondent authorize or instruct Mr. Jones to have Mr. Corrales repair the vehicle. Behavior Toward Job Applicant One day during Respondent's tenure as City Manager, he went to the City's Revenue Department. While in that office, Respondent observed an individual who was not employed by the City in that office typing. The Respondent then asked Deborah Ford, Director of the Revenue Department, who the person was and why she was in the office working. Ms. Ford indicated that the individual, Tonia Sanders, was good and had previously worked with her. Respondent admonished Ms. Ford, reminded her that there were procedures for hiring people, and directed her to have Ms. Sanders leave the office. Respondent then told Ms. Ford to have Ms. Sanders pick up an employment application and he offered to interview her if Ms. Ford brought her by his office. A couple of days later Ms. Ford brought Ms. Sanders by Respondent's office. After both women entered the office, Ms. Ford commented to Respondent about Ms. Sanders' physical appearance, indicating that Ms. Sanders was attractive and had nice legs. Respondent cut this conversation off and then talked to Ms. Sanders about matters related to her application. Immediately after Ms. Sanders left, Respondent counseled Ms. Ford and told her not to ever bring anyone else to the office and "talk like that." Respondent put Ms. Sanders' City employment application on file and subsequently interviewed Ms. Sanders on one other occasion. However, Respondent never hired her for a position with the City. Ms. Sanders testified that Respondent later called Ms. Sanders and asked her out socially. On one occasion, he suggested she prepare dinner for him and offered to purchase the ingredients. On another occasion, Ms. Sanders spent some time talking with Respondent at a restaurant called Shula's, as part of a gathering organized by City employee Debra Ford. Following the gathering, Ms. Ford invited Respondent to go out with her and Ms. Sanders, but Respondent declined and all three decided to go home. However, as Respondent was leaving, he asked Ms. Sanders to ride with him. Ms. Sanders refused Respondent's offer. On another occasion, Respondent called Ms. Sanders and told her to make hotel reservations at a specified hotel. Respondent instructed Ms. Sanders to call him after she had made the arrangements and he would meet her at the hotel. Although Respondent never expressly spoke to her about sexually-related matters or made sexually-explicit suggestions, Ms. Sanders reasonably assumed that Respondent was attempting to set up a sexual liaison with her. Ms. Sanders was not interested and did not comply with Respondent's instructions. The aforementioned incidents involving Ms. Sanders occurred while Ms. Sanders' job application with the City was pending.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that a Final Order and Public Report be entered finding that the Respondent, Earnie Neal, violated Section 112.313(6), Florida Statutes, in two of the three instances alleged; imposing a civil penalty of $3,000 per violation; and issuing a public censure and reprimand. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. _ CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative this 13th day of November, 1998. COPIES FURNISHED: Virlindia Doss, Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 David H. Nevel, Esquire Law Offices of Ronald S. Lowy Seventh Floor 420 Lincoln Road Miami Beach, Florida 33139 Cynthia Everett, Esquire City of Opa-locka City Hall 777 Sharazad Boulevard Opa-Locka, Florida 33054 Kerrie J. Stillman Complaint Coordinator and Clerk Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709
The Issue The issues posed for decision are: 1. Whether the Respondent, by its agent Lawrence McCarthy, unlawfully discharged Jerome Cilhar on June 21, 1976, in violation of Section 447.501(1)(b), of the Act. 2 . Whether the Respondent, by its agent and representative, Lawrence McCarthy, unlawfully interrogated and threatened employees on April 30, and May 4, 1976, within the meaning of Section 447.501(1)(a), of the Act. Based upon my observation of the witnesses and their demeanor while testifying, including the entire record compiled herein) I make the following:
Findings Of Fact The Respondent, City of Gulfport, Florida, is a Florida municipal corporation located in Pinellas County, Florida. During times material to this proceeding, the City Manager was Mr. Harry Perkins (Perkins) who had the ultimate authority over personnel matters including hirings, discharges, levels of manpower, administration of federal employment assistance programs, as well as labor relations. During times material to this proceeding, Mr. Lawrence McCarthy (McCarthy) was employed by Respondent as Director of Public Works. As such, he had operational responsibility for sanitation, water and sewer, streets and parks among others. While McCarthy had the authority to manage his department, the hiring and discharge of employees and the general administration of budgets was handled by Perkins with some input and recommendation by McCarthy. During 1975, Gulfport contracted with Pinellas County, Florida to be a member of a consortium to receive federal supplemental employment assistance funds from the federal government under the Comprehensive Employment and Training Act (CETA). Under this contract, Gulfport was required to follow all federal rules and regulations adopted under the CETA program. In March, 1975, Mr. Jerome Cilhar (Cilhar or the alleged discriminatee) had been unemployed for the requisite period of time to qualify for employment under the Pinellas County CETA program. Cilhar applied for a CETA position with Gulfport and, after the interview, was hired as a sanitation worker in the Public Works Department on March 3, 1975. He (Cilhar) was hired along with a Mr. Johnson who was also hired by Respondent under the CETA prograin as a sanitation worker, On July 17, 1975, an election was conducted by PERC among a comprehensive unit of Respondent's blue and white collar employees. The Petitioner therein did not receive a majority of the valid ballots cast. With these facts, both Perkins and McCarthy were under the impression that no union organizational campaign could begin until after the expiration of a one year period from the date of the election. Respondent operates on a fiscal year basis from October 1, until September 30. For the fiscal year 1975 to 1976, Respondent had budgeted approximately 130 positions for employees. In April and May, 1976, testimony reveals that Perkins became concerned that estimated revenues from services and taxes would not be reached during fiscal year 1975 through 1976 and that expenses would exceed the amount estimated. In this regard, it was noted that Respondent realized an operating deficit of approximately $200,000 for the fiscal year 1975 to 1976. In response to projected deficits, Perkins began personnel cutbacks in May, 1976, since personnel costs represented the largest single budget expenditure. Between May of 1976 and September 30, 1976, Perkins trimmed the City's work force by approximately 20 percent or a net loss of 26 employees. (See Respondent's Exhibit #4). In this regard, the evidence revealed that the City operated the sanitation department without any upward manpower adjustments until February, 1977, when employees were transferred to that area. Mr. Cilhar stated that he voluntarily informed Mr. McCarthy (the Public Works Director) of his desire for a union in late April, 1976. He testified that he and Barney White, a fellow employee in the sanitation department volunteered this information respecting their union activity because White was upset about the lack of pay raises. He testified that Barney White took the initiative in the conversation with McCarthy and in this regard, the evidence revealed that White who, as best as the record reveals, made all of the comments respecting their union activities. Cilhar testified that he noted no change in his relationship with the City and its employees during the six week interim between the date he and White made known their union activities to Respondent's agent (McCarthy) and the date of his discharge on June 21, 1976. Evidence reveals that Respondent made the decision (jointly by Perkins and McCarthy) to retain CETA employee Johnson, whose seniority was equal to Cilhar's, based on the fact that Johnson was more versatile in terms of his employment skills and Respondent was of the opinion that he would be of more assistance in that he could be assigned to a multitude of tasks. Cilhar also advanced the position that Respondent terminated him because he was arranging to schedule a union meeting on the date that he was discharged. The testimony in this regard establishes, on balance, that the Respondent made its decision to terminate Cilhar on Friday, June 18, but could not locate Cilhar because he had left to go home when the final decision was made by Respondent. He was contacted and advised of the termination decision by Respondent early the following Monday, June 21, 1976. He was given an exit interview and advised that his job was being abolished due to the lack of CETA fundings for the next fiscal year. He was also paid for his accrued annual leave from CETA funds. In this regard, Respondent established that this was done to curb employment costs from municipal funds since the payment of Cilhar's leave would have come from municipal funds had the decision been postponed until the end of the fiscal year. It was also noted in this regard that in its effort to realize economy through personnel cuts, Perkins terminated Ryan Larison, a budgeted city employee in the Sanitation Department on June 16, 1976 and thereby realized an economic savings. Pertinent CETA rules and regulations as well as the Respondent's contract with Pinellas County required that the City utilize federal CETA funds only as supplemental to budgeted employment positions. Thus Respondent could not maintain CETA positions instead of budgeted positions under its contract and the regulations. See Respondent's Exhibit #2, Section 205(c)(8). With these facts, I conclude that the Respondent did no more than it was required to do or in fact was compelled to do based on the financial restraints that it was operating under and its regulations with Pinellas County under the CETA program. As Respondent aptly notes, union activity does not insulate an employee from discharge for cause. While there were some uncertainties in this record, and some suspicions automatically arise from the fact that a union adherent was discharged while an employee of equal seniority with, as best as can be determined by the record, little or no union sympathies, these suspicions provide no substitute for record evidence upon which a finding can be made that the Respondent discharged the alleged discriminatee based on his union sympathies or desires as alleged in the complaint. I shall therefore recommend that this allegation be dismissed. THE ALLEGED THREATS AND INTERROGATION The complaints cite two instances in which the Respondent's agent, McCarthy, engaged in unlawful threats and/or interrogation. Witnesses testifying to these remarks during the hearing were Messrs. McCarthy and Rousseau. Both testified that in essence McCarthy warned that "they had a constitutional right to do any damn thing they wanted, but while on City property and on City time, solicitation of union activities was not condoned. Any one I heard would be subject to dismissal". McCarthy testified frankly and openly with respect to his remarks to employees respecting solicitation while on City time and property. Given all of the circumstances of this case and the complete absence of any evidence indicating that the Respondent engaged in any independent acts to unlawfully interfere with, restrain or coerce employees to exercise those rights guaranteed them in Chapter 447, I am of the opinion that the remarks given employees by McCarthy respecting solicitations for unions on City time on City property did not rise to the level of unlawful activity as defined in Chapter 447.501(1)(a), Florida Statutes. Accordingly, I shall recommend that the complaint allegations be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the complaint filed herein be dismissed in its entirety. RECOMMENDED this 3rd day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Frank E. Hamilton, Jr., Esquire 101 East Kennedy Boulevard Tampa, Florida 33602 William E. Sizemore, Esquire Post Office Box 3324 Tampa, Florida 33601
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
Findings Of Fact Petitioner is a corporation formed in 1972, whose majority stockholder and president is Ima Jean Strickland, a minority person. The parties have stipulated that Petitioner corporation has in the past and continues to meet all eligibility criteria for MBE certification except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility for recertification in this regard depends on whether or not Petitioner continues to employ "25 or fewer permanent full-time employees." Petitioner engages in the provision of electrical work for commercial and residential construction and in electrical services for business and residential customers. Approximately ten percent of its business is the service work for residential and business customers and residential construction. The remainder of its business consists of new construction. On its recertification application, Petitioner claimed to have only eight permanent full-time employees and at the time of formal hearing, testimony of its witnesses acknowledged only 9-10 permanent full-time employees. Petitioner considers an employee to be "permanent full-time" only when that employee has been with the company for at least five years. Only after an employee has been with Petitioner for five years does Petitioner pay the premiums on that employee's health insurance and give that employee a paid annual one week's vacation. (See Finding of Fact No. 8, infra.) By Petitioner's interpretation, a "permanent employee" is a different category-than a "full-time employee." In Petitioner's parlance, "full-time" refers to how many hours the specific employee works per week; whereas, "permanent" refers to an employee with a long-standing relationship with the Petitioner and who has attained full benefits. As of the date of formal hearing, only ten of Petitioner's employees were vested its profit and pension plan. (See Findings of Fact Nos. 46-47, infra.) Petitioner's hiring goals and employment practices emphasize long-term employment. Such policies benefit Petitioner by the retention of accessible, qualified labor in an industry with consistently high employee turnover. Petitioner's employees normally work 7:30 a.m. to 4:00 p.m. When possible, such employees are allowed to make up the hours when they have been absent without pay and where a job/project has been closed for a hcffliday All of Petitioner's employees are subject to a 90- day probationary period during which they are observed for performance and attendance. Petitioner encourages new employees to attend its apprenticeship program at Lively Vo-Tech. If the employee gets past the 90-day probationary period, his employment continues until he voluntarily terminates the employment relationship or until Petitioner terminates his employment due to his failure to perform adequately. If residential jobs/ construction projects are not awarded to Petitioner, the employee may not be able to work but would be encouraged to return to Petitioner when work again becomes available. All Petitioner's employees are eligible to participate at their own expense in the company-sponsored group health plan after 90 days of employment. When an employee can become eligible to join the group medical insurance plan at his own expense is tied to the probationary period. When the company pays an employee's group health plan premiums is tied to his attaining "permanent" status at the five years' employment stage. DGS duly promulgated Rule 13-8.005(4) (c) F.A.C. in November 1988 in order to establish uniform review of MBE applicants on the "25 or fewer permanent full-time employees" statutory criterion contained in Section 288.703(1) F.S. In applying Rule 13-8.005(4)(c), DGS considers the number of permanent full-time employees that the applicant acknowledges to be permanent and full-time and the number of positions the applicant needs to actually carry out its work. However, DGS does not add these two figures because it wishes to avoid "doublecounting" positions. This agency policy/procedure/ interpretation of the rule has been consistently applied to all MBE applicants since the rule has been in effect and was applied to this Petitioner. In determining the number of employees Petitioner actually needs to carry out its business, DGS considered its annual gross receipts, the number of supervisory positions that are used, and the quantity of work it performs. The rule permits this latitude. In determining the number of permanent full-time employees who are employed by the Petitioner, DGS reviewed its Florida State Unemployment Compensation reports, payroll ledgers, financial statements, listing of projects, and listing of managerial supervisory employees. In practice, DGS considers "permanent" to mean the number of positions that an employer uses on a regular and predictable basis to carry out its work. In practice, DGS personnel make a distinction between "full-time" and "permanent" employees. In evaluating the Petitioner, DGS evaluated two criteria: 1) the continuum or permanency, that is, the regularity and predictability with which a position appears, and 2) the length of service given by that position in a particular quarter--12 to 13 weeks being the cutoff for the count. Only when those two elements are met simultaneously does DGS count a position for purposes of applying Rule 13-8.005(4)(c) F.S. The agency does this as a result of two final orders addressing the number of employees for MBE certification. See, Dees, Inc. and Falcon Mechanical, Inc., supra. Contractors determine the number of people they need to do a project by reviewing the specific plans and specifications for each job/project. In preparing bids, contractors determine how much work is involved in a given job and how long it is going to take to accomplish it. It is DGS' experience that contractors will know how many employees they need to hire for any particular job/project/contract and that the number of employees needed will be represented on the contractors' Florida Employer's Quarterly Wage and Tax Reports (unemployment compensation tax reports) Petitioner's reports, like those of every other applicant, list all employees who worked for the company during each 13-week period, regardless of duration of employment. Bobby Strickland, Petitioner corporation's minority qualifying person's husband, is qualified to determine the number of employees Petitioner needs on each job. He has held a master electrician's license for 18 years and has been involved in the electrical contracting business for 31 years. He currently determines the amount and cost of materials involved and the number of employees required to complete each contract by reviewing the plans. In submitting Petitioner's bids, he has taken into account how many persons he will need to carry out each contract, understanding that some employees on any given job on any given day may not report for work. The rule does not require that DGS make a determination of how many employees are needed to perform each job/project/contract on the basis of such plans, and DGS does not review any plans, does not assess the complexity of any contract, and does not substitute its judgment call for that of the contractor applicant on that basis. Rather, it reviews documents prepared by the contractors indicating actual number of employees used and revenues generated. See also, Finding of Fact 29, infra. The number of employees Petitioner needs on each job depends in part on the quantity of work subcontracted out. Petitioner contracts out certain portions of its construction contracts. All witnesses concur that it is reasonable to count the subcontractors as independent contractors and not as employees. Subcontractors and their employees do not appear on Petitioner's payroll as its own employees and there has been no demonstration that they appear on any of the other forms/ documentation listed in Rule 13-8.005(4)(c) F.A.C. The number of employees and the names of the employees whom Petitioner had on its payroll for any given quarter is reflected in its Florida Employer Quarterly Wage and Tax Reports (unemployment compensation reports). During 1986, 1987, 1988 and the first three quarters of 1989, Petitioner reported the following number of employees on its Florida Employer's Quarterly Wage and Tax Reports: MONTH QUARTER 1986 1987 1988 1989 January 39 44 51 6 February 39 32 55 64 March 1st 40 39 55 53 April 39 62 56 51 May 43 67 57 58 June 2nd 46 65 57 49 July 46 67 61 46 August 46 57 73 40 September 3rd 43 54 66 44 October 45 53 57 November 49 50 60 December 4th 45 46 60 The total number of employees on Petitioner's payroll fluctuated from a high of 73 to a low of 32 between the quarters ending 3/31/86 and 9/30/89. In the last three years, Petitioner employed a total of 273 different persons. Two hundred thirty-three of these 273 persons worked less than one year. Stated differently, in that period, at least 40 persons were employed by Petitioner for a duration of one or more years. On October 9, 1989, Petitioner employed 36 people, which it admittedly needed to keep its business going in terms of the construction projects it had at the time. By the date of the formal hearing, Petitioner had increased the number of its employees to 38; 22 field workers were spread among five construction jobs, plus two service staff employees, two warehouse staff employees, and three office/clerical staff employees. The balance may be supervisory staff. Of the 38 employees paid by Petitioner's October 24, 1989 payroll, nine had been employed more than three consecutive years. At no time between the quarter ending 3/31/86 and the quarter ending 9/30/89 did Petitioner employ fewer than 26 employees who were working from 12-13 weeks in any quarter. The least number of employees working full-time for a minimum of 12 weeks in any particular quarter for the quarters ending 3/31/86 through 9/30/89 was 26, and the largest number was 49. Twenty-six employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/87 also appeared on the unemployment tax report for the quarter ending 12/31/87. Thirty employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/88 also appeared on the unemployment tax report for the quarter ending 12/31/88. Thirty employees were listed on Petitioner's payroll for the quarter ending 3/31/89 who were also listed on the payroll as of 10/31/89. In determining the number of employees that an MBE applicant needs to carry out its business, DGS also considers the number of projects the applicant enters into and the quantity of work performed because it is DGS' experience in investigating businesses in the construction industry that the greater the number of contracts an applicant has, the greater its revenues and the greater the number of employees an applicant will need to carry out its business. The rule permits this latitude. Bobby Strickland conceded that the amount of work and the number of employees the Petitioner needs fluctuates with the number of contracts it has and the amount of work required under those contracts at any given time. According to J. Kinson Cook, however, gross revenue is not determinative of the number of employees required to complete a contract. J. Kinson Cook, Inc., a general construction firm, has 12 "permanent full-time employees," as Mr. Cook personally defines that term, and its contracts total an average of $20 million per year. However, J. Kinson Cook, Inc. is not a certified MBE, and Mr. Cook's opinion as an expert in the construction field was not rendered on the basis and criteria established by Rule 13-8.005(4) (c) F.A.C. In 1986, Petitioner had 32 commercial construction contracts totalling $4,760,539. In 1987, Petitioner had 10 commercial construction contracts totalling $814,593.90. In 1988 Petitioner had 16 commercial construction contracts totalling $2,143,412. As of the date of formal hearing in 1989, Petitioner had 13 commercial construction contracts as follows: Dittmand Chemistry $ 8,295 Sugar Creek Theatres 150,000 Village Green 12,961 Sewage Pumping Stations 155,986 Koger-Osborne Building 182,000 Wal-Mart 187,000 Mayo Building 29,000 FSU-Sports Complex 925,000 Kentucky Fried Chicken n/a Hartsfield Elementary School 190,000 Victoria's Secret 13,700 John Wurst n/a $1,853,942 Some of the contracts listed for 1986-1989 include projects that have extended (will extend) into later years. Beyond construction income which has been reviewed supra., Petitioner also performs residential and commercial service work, the income from which was $354,076.56 in 1986; $268,718.42 in 1987; and $375,157.94 in 1988. Petitioner projects its income produced from service work in 1989 to be $200,000. Petitioner's residential service work includes the electrical work on the construction of new homes. On October 9, 1989 Petitioner had eight residential construction projects. Petitioner does repeat business in its commercial service work and in the construction of new homes (residential service work). Petitioner's gross receipts were $4,193,064 in the fiscal year ending July 1, 1989 and $2,150,289 in the fiscal year ending July 1, 1988. Petitioner's gross revenues for the fiscal year ending in July 1987 were $2,156,722. Petitioner projects its gross revenues for the fiscal year ending July 1990 will be between 2.5 and 3.0 million. Petitioner has nine supervisory employees: six construction foremen, one warehouse supervisor, one office supervisor (Ima Jean Strickland), and one field supervisor (Bobby Strickland). Petitioner conceded that each supervisor must have at least one subordinate to supervise, but it is also clear that the number of persons supervised fluctuates with the skill of the workers and the complexity of the jobs in progress. As of the date of hearing, foreman Ronald Fraser was supervising nine employees on the Wal-Mart project. At the time of his deposition, October 12, 1989, he was supervising eight employees on that project. He supervised approximately twenty-five employees on the Department of Education Building and anticipated that he would supervise 10 employees on the Hartsfield School project. As of the date of hearing, foreman Kenneth Cushing was supervising four employees on the Koger Center project. Ima Jean Strickland regularly supervises the two office employees. At the time of his October 12, 1989 deposition, foreman Charlie James was supervising three employees, which is the average number of employees he supervises. As of she date of his October 12, 1989 deposition, foreman Donald Metcalf was supervising five employees redoing the fire alarms at Florida State University. On an average, Mr. Metcalf supervises 4-5 employees. Foreman John Garrett Hemanes normally supervises one employee, on average. As of the date of formal hearing, Bobby Strickland was responsible for supervising all of the field employees. His is a higher level of supervision than that of the respective construction foremen and their chain of command often passes through him. Therefore, his position should be counted only once. Thomas J. Strickland, a/k/a Jeffrey Strickland, supervises one employee. He is the warehouse supervisor. None of Petitioner's employees are eligible for paid sick leave; however, all employees may take unpaid sick leave with Bobby Strickland's approval. Petitioner's employees are eligible to participate in an employer-sponsored profit sharing plan after six months of employment. Vesting in the pension plan is determined by federal regulation, not company policy. After an employee has been with the company for 12 months of continuous service, the employee can benefit from profit sharing in the form of a cash bonus. Additionally, an employee who has not had an accident during a 12-month period is entitled to a safety bonus. During the years 1986-1989, Petitioner's contracts have primarily been in Leon County and the surrounding area, and therefore, it has been able to circulate staff from project to project for its own advantage. By so doing, Petitioner encourages good employees to stay with Petitioner longer. In order to keep an ample amount of work going, Petitioner continuously reviews potential jobs and prepares and submits bids. On an average, Petitioner bids 3-4 contracts a month. Petitioner's decision to bid is affected by the amount of work in progress and whether or not it has adequate manpower. If it has more work than it can handle, Petitioner does not bid up more.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of General Services enter a final order which: Dismisses that portion of the Petition addressing the constitutionality of the statute, Finds Petitioner to employ more than 25 permanent full-time employees, and Denies Petitioner recertification as a Minority Business Enterprise under Chapter 288 F.S. DONE and ENTERED this 9 of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4402 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 4, 7-10 and 12-14 are accepted. 2, 3, 5-6 and 11-17 are accepted as modified to conform to record as a whole. is rejected as a FOF and as a Conclusion of Law (COL) and as contrary to the record as a whole. and 18 are rejected as immaterial since this is a de novo proceeding. See the COL. Moreover, presentation of Summary 15 in the de novo proceeding is sufficient, in light of the Petitioner's burden of proof. 19 is rejected as immaterial and as legal argument in light of the duly promulgated rule. 20-23 are rejected as stated as immaterial since this is a de novo proceeding. See the COL. Some of this material has been incorporated in substance into the Recommended Order so as to demonstrate that application of the rule relies upon applicant- generated information after the applicant has assessed its own needs, and that such needs are not "second-guessed" by whoever applies the rule. Respondent's PFOF: 1-3, 5, 11-18, 20-22, 26-36, 40-44, 46-56, 59, 62, and 64-66 are accepted. 4, 6-9, 19, 24-25, 37, 39, 45, 57-58 and 60-61 are accepted as modified to clarify the concept, and to eliminate unnecessary, subordinate or cumulative material and mere description of testimony or exhibits. 10 is rejected as unnecessary. 23 and 63 are accepted as modified to eliminate legal argumentation and to reconcile the testimony and evidence as a whole. 38 is rejected as unnecessary and unduly speculative. COPIES FURNISHED: E. Thomas Brushwood, Esquire Brushwood and Gruver, P.A. Post Office Box 10117 Tallahassee, Florida 32302-2117 Susan B. Kirkland, General Counsel Alma Gonzalez-Neimeiser, Staff Attorney Department of General Services 2737 Centerview Drive-Suite 309 Tallahassee, Florida 32399-0950 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
Conclusions Objections 3B, 3C and 3D involve factual questions which can only be resolved by an evaluation of the credibility of various witnesses. Consequently, pursuant to Fla. Admin. Code Rule 8H- 3.28, a hearing shall be held where the underlying facts can be determined prior to ruling on the merits of those objections and the remainder of CWA's Objections are dismissed. It is so ordered. LEONARD A. CARSON CHAIRMAN 77E-207 THIS IS TO CERTIFY that on April 21st, 1977, this document was filed in the office of the Public Employees Relations Commission at Tallahassee and a copy served on each party at its last known address by certified mail. PUBLIC EMPLOYEES RELATIONS COMMISSION BY: Judy N. Collins Deputy Clerk
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent acted properly in refusing to post a job order for Petitioner's business, an "adult maid service."
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Walker is a sole proprietor doing business under the name Babe-A-Maid, which advertises as an "adult maid service." Babe-A-Maid's advertising makes plain that it is in the business of adult entertainment. A customer may browse Babe-A-Maid's web site and select a "maid" who will be transported to the customer's location to perform topless or nude dancing. No evidence was presented that Babe-A-Maid's services go beyond dancing to acts of prostitution. Mr. Walker personally screens potential customers, and pays to provide security to dancers who are sent to perform for groups of people. Babe-A-Maid's "Subcontractor Agreement" with its dancers provides that it is not an escort agency. Babe-A-Maid has operated in Mr. Walker's native Kenosha, Wisconsin for a number of years. Babe-A-Maid has been accepted for listing by the Wisconsin equivalent of AWI. On April 26, 2001, Mr. Walker submitted a job order to the Florida job service office in St. Petersburg, announcing the availability of positions with Babe-A-Maid. By letter dated July 25, 2001, AWI's complaint specialist Jim Cadwallader informed Mr. Walker that his job order would not be accepted for posting. Mr. Cadwallader's letter stated: I have found that the activities described in your job order include conduct, e.g., nude dancing, which has detrimental secondary effects that are harmful to the public health, safety and welfare. Therefore, it has been determined that it is not in the best interest of the State or its citizens to assist in promoting your industry. Mr. Walker requested clarification as to the meaning of "detrimental secondary effects." By letter dated July 31, 2001, Mr. Cadwallader responded as follows: The job order that you wish to place would secondarily impact and threatens to impact the public health, safety and welfare by providing an atmosphere conducive to, among other things, violence, sexual harassment, public intoxication, prostitution and the attendant health risks. As previously stated, this decision is designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of communication. The decision not to place your job order on the job services web-site does not adversely affect other reasonable alternative avenues of advertisement that are available. Mr. Walker conceded that the placement of advertisements in newspapers and other sources yielded approximately 800 responses from prospective dancers in the St. Petersburg area. However, he testified that his experience in Wisconsin showed him that the state job service listings provide an even-flow of employees, lessening the need for paid advertising. Robert Bradner, the AWI employee who actually made the decision to reject Mr. Walker's job order, testified that the state was not attempting to regulate Mr. Walker's admittedly legal business. Rather, the problem was a perceived linkage that a job listing would create between the state and Babe-A-Maid. Mr. Bradner did not want to establish a public perception that the state was endorsing Babe-A-Maid. Mr. Bradner conceded that Babe-A-Maid's was the only rejection of which he was aware since AWI's creation in 2000. Mr. Bradner also conceded that his decision was not based on any written statute, rule or guideline. AWI provided a second reason for its rejection of Mr. Walker's job order: that he is not an "employer" as contemplated by the Wagner-Peyser Act and its implementing rules. Mr. Walker conceded that the dancers who work for him are independent contractors who are paid only for the hours they are actually out on a dancing job. Babe-A-Maid applicants must sign a "Subcontractor Agreement" that states, in relevant part: I, [name of Subcontractor], hereinafter referred to as the Subcontractor, enter into an agreement, with Babe-A-Maid. We do hereby agree that for good and valuable consideration, the Subcontractor shall provide services to Babe-A-Maid as outlined below, pursuant to the terms and conditions contained herein. Babe-A-Maid is a referral agency for persons seeking cleaning/entertainment services, hereinafter referred to as Clients. * * * The parties agree that the Subcontractor shall be treated as a Subcontractor, responsible for all Federal, state, and local law purposes [sic]. The terms of this agreement shall not be deemed to be an employment contract, nor shall the Subcontractor be deemed an employee of Babe-A-Maid for any purpose. The Subcontractor shall be responsible for paying all Federal, State and local taxes, and acquiring all licenses or other permits in the locale associated with providing services and receiving compensation for the provision of entertainment services. * * * The Subcontractor shall have neither actual nor apparent authority to bind Babe-A-Maid in contract nor shall Babe-A-Maid assume any responsibility for the acts of the Subcontractor. The Subcontractor agrees to indemnify Babe-A-Maid for all damages, fines, attorney fees, and cost imposed upon it for acts committed by the Subcontractor. The Subcontractor hereby warrants the information he or she has provided to Babe- A-Maid regarding his or her identification is true and current. The Subcontractor also warrants that the tax identification number provided at the bottom of this agreement is the number that the United States government has properly assigned to the Subcontractor. The evidence established that Babe-A-Maid does not employ its dancers. The dancers are subcontractors who inform Babe-A-Maid of the days and times they are available to go out on calls. Aside from general instructions by Babe-A-Maid, such as dressing appropriately and not using illegal drugs or drinking "excessive" amounts of alcohol during their shows, the dancers control the manner of their performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting the job service order submitted by Oliver Walker on behalf of his business, Babe-A-Maid. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ 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 31st day of October, 2001. COPIES FURNISHED: Oliver Walker Babe-A-Maid Post Office Box 1933 Kenosha, Wisconsin 53141 Sonja P. Mathews, Esquire Agency for Workforce Innovation Atkins Building, Third Floor 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Michelle M. Austin, General Counsel Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Veronica Moss Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250
