The Issue Whether Respondent violated Section 760.10(1), Florida Statutes (2002), by forcing the termination of Petitioner's employment with Respondent because of his gender (male), and/or national origin (Venezuela), and/or his age (37); and because Petitioner alleged that younger, female lifeguards were given better work assignments.
Findings Of Fact Petitioner was employed by Respondent from November 26, 2002, until April 17 2003, in the position of deep water lifeguard at Respondent's facility at the Grand Floridian Hotel (Grand Floridian) located in Lake Buena Vista, Florida. He worked in that position until his resignation on April 17, 2003. Petitioner is a Hispanic male, aged 37, and a member of a protected class. Respondent is an employer as defined by the Florida Civil Rights Act of 1992 (FCRA). Petitioner was hired for a full-time position to work 40 hours per week. He normally worked a ten-hour shift, four days a week. Petitioner never applied for any other position or promotions during his employment. All full-time lifeguards at the Grand Floridian are covered by a collective bargaining agreement (CBA) between Respondent and the Services Trades Council Union. A lifeguard working at the Grand Floridian does not have to be a member or pay dues to the union in order to be covered by the terms of the CBA. Petitioner is not a member of the union. At the time of his hire, Petitioner was provided with a packet of materials containing Respondent's employment policies. Respondent had a policy regarding harassment that covered all of its employees and prohibited all types of harassment in the workplace, including any such behavior based on age, national origin, and/or gender. Respondent also has an "equal opportunity" policy that applies to all of its employees. This policy provides that all employees should be treated equally in terms of hours, work location, and scheduling based on seniority. Operations at the Grand Floridian Of the class of lifeguards hired at the same time, Petitioner was the only one assigned to the Grand Floridian. At the time of being assigned to the Grand Floridian, there were approximately 25 lifeguards employed there. The lifeguards at the Grand Floridian are full-time, part-time casual, or part- time regular employees. There are also "college program" lifeguards who perform all of the same duties as the full-time and part-time employees. The starting times for employees are staggered, based on the needs of the area and the time of the year. The main duties of a lifeguard at the Grand Floridian are to ensure safety and guard the pools, clean the pool and beach areas, work the cash register, and operate the marina. The head supervisor of the Grand Floridian lifeguards during Petitioner's employment was Jerry Davis. Davis has been employed with Respondent for nine years. He has served in his current position as the recreation operations manager for six years. His duties in this position include supervising the outside recreation areas, including the pools, boats, and lifeguards at the Grand Floridian. Davis plays no role in hiring the employees that report to him, but rather Respondent's Employee Relations Department is responsible for hiring these employees. Davis has the authority to terminate lifeguards that report to him. Prior to terminating an employee, however, Davis seeks the input of the Employee Relations Department. The evidence is credible that Davis is accessible to his direct reports and makes sure that his office is always open to them. If a lifeguard wants to speak with Davis, he will make himself available to him or her. As a manager, Davis has undergone training from Respondent regarding its equal employment policies and anti- harassment policies. He has also been trained that employees may raise complaints about working conditions with either their manager or the Employee Relations Department. All employees are made aware of these policies and complaint procedures as a part of their orientation program. Under Davis, the next supervisor was Darin Bernhard. Bernhard has been employed with Respondent for eight years and is currently employed as a recreation guest service manager. Until October 2003, Bernhard was employed at the Grand Floridian. In that capacity, Bernhard directly supervised lifeguards, marina employees, and activities' employees. Bernhard had continuous interaction with lifeguards throughout the day while at the Grand Floridian. Bernhard had an open-door policy to all employees and made himself accessible to them. Under Davis and Bernhard, there were three coordinators who served as the immediate supervisors of the lifeguards. The weekly work schedule for lifeguards was posted on the wall every week. Bernhard, along with Respondent's Labor Office, was responsible for preparing this weekly schedule. The factors used in preparing this schedule were a scheduling bid submitted by each employee, scheduled vacations, and operational needs. As for operational needs, Bernhard would try to give a combination throughout the week based on full-time, part-time, and college program employees and avoid having all college program employees on duty at one time, thereby providing more experience on each shift. The CBA contains a provision stating as follows: "The principles of seniority shall be observed in establishing days off and work schedules by department, location, or scheduling pool." As a result, the schedule bids of all employees were considered based on the seniority of the employees. At the time of his hire, Petitioner spoke with Bernhard about special scheduling requests. Specifically, Petitioner asked to receive early shifts and weekends off. He wanted the weekends off due to child-care issues with his son. Bernhard informed Petitioner that he would attempt to work with Petitioner on this, but that he was limited in what he could do based on the seniority requirements set forth in the CBA, as well as the fact that most of the lifeguards preferred to have weekends off. At that point in time, Petitioner had the least amount of seniority of all the full-time lifeguards, since he was the most recently hired employee. Despite the CBA restrictions, Bernhard made every effort to provide Petitioner with at least one day each weekend off and tried to provide him with two, whenever possible. On a regular basis, Petitioner was scheduled to have Saturdays off. In addition, on numerous occasions, he was given Friday, Saturday, and Sunday off from work, in accordance with his special request. At no time during his employment did Petitioner ever complain to Bernhard about not getting enough days off on the weekend. Employees would occasionally complain to Bernhard about the weekly schedule. When he received such complaints, Bernhard would listen to their complaints and not take any adverse action against any employee for complaining to him about scheduling issues. On occasion, lifeguards would be sent home early due to slow business or inclement weather. This decision would be made either by the immediate supervisor on duty or one of the coordinators. The lifeguards would be allowed to volunteer to go home on a "first-come, first serve" basis. No lifeguard, however, was forced to go home early. Similarly, Bernhard did not receive complaints from any lifeguard about being forced to go home early. The coordinators at the Grand Floridian were responsible for making the daily rotation schedules. There were five primary positions that the lifeguards could be assigned to on a daily basis, consisting of two lifeguard positions at the pool, the slide, the marina, and cashier. The coordinators made these assignment decisions based on the people they had available that day. The primary focus was to make sure that all of the areas were properly covered. Such daily rotation assignments were also based on certain needs during particular periods of the day. In addition, certain assignments were given to certain employees if they are more capable of performing the task. It is also not uncommon for the daily rotation to be changed during the day based on unexpected factors, such as absent employees. In terms of shift assignments, an effort is made to make sure that regular employees and college program employees are working together so that the regular employees can provide guidance when needed. During a workday, most of the employees rotate positions every 30 minutes to an hour. The rotation of duties for the lifeguards changed on a daily basis. Petitioner enjoyed working as a lifeguard because he considered himself a stronger lifeguard than others in his department. He also described himself as the "leader of the lifeguards." All lifeguards are trained in the cashier duties, but very few individuals are chosen to actually work as a cashier. These cashiers undergo special training prior to performing these duties. The primary attributes for a cashier are good guest interaction and good phone skills because a cashier is required to interact with guests, both on the telephone and in person. This assignment also differs from the other assignments in that the employee assigned to this position normally does not rotate throughout the day to other assignments. It is not uncommon for the same employee to serve as a cashier for an entire day. Petitioner was sometimes assigned to work at the marina, but not as a cashier. Petitioner never spoke with any of his supervisors or coordinators about working more at the marina or as a cashier. Each lifeguard at the Grand Floridian was required to complete four hours of in-service training each month, either at his home resort or at another resort. Attendance at these training sessions were tracked on a daily sign-in sheet. If a lifeguard failed to complete his or her in-service training for the month, he would be reprimanded. Davis prepared a reprimand for Petitioner on April 1, 2003. This reprimand was the result of Petitioner's failing to complete his in-service training hours for the month of March 2003. As a result of failing to complete this training, Petitioner received a two-point reprimand for poor job performance. Petitioner did not know when Davis prepared the Poor Job Performance Memorandum dated April 1, 2003. Davis and Petitioner did not see each other between Petitioner's accident on March 30, 2003, and the date Petitioner signed the Poor Job Performance Memorandum on April 9, 2003. At the time that Davis prepared this memorandum, Petitioner had not made any complaints of discrimination or harassment to Davis. The attendance of the lifeguards on a daily basis was tracked by the use of an electronic swipe card. The daily schedule and attendance of the lifeguards was also tracked on a daily sheet completed by the coordinators. This sheet was kept in the managers' office and was forwarded to the Respondent's Labor Office when it was completed. Bernhard usually reviewed these sheets on a daily basis as well. The lifeguards did not have access to these sheets on a daily basis. Under the attendance policy in the CBA, three absences in a 30-day period warranted a one-point written reprimand. An employee had to receive three written reprimands within a 24- month period before he could be terminated for attendance issues. The reasons for an absence did not make a difference for purposes of accruing points under the policy. On March 24, 2003, Petitioner called in sick and did not appear for work. On his way home from work on March 31, 2003, Petitioner was in a car accident in a parking lot on Respondent's property. As a result of that accident, Petitioner's car had to be towed because it was not drivable. Petitioner did not, however, seek medical treatment as a result of the accident. Shortly after the accident occurred, Petitioner contacted Bernhard. He informed Bernhard of the accident and told him that he would not be available for work the next day because his car had been destroyed. He did not inform Bernhard that he had been injured in any way. Petitioner was absent from work on April 1, 2003, because he had no transportation. Petitioner called in his personal absence on April 1, 6, 7, 8, 13, 14, 15, and 16, 2003, and was a "no show" on April 2, 2003. As a result of these numerous absences, Davis made a decision to contact Petitioner by telephone and inquire about the reasons for these multiple absences. Petitioner informed Davis that he still did not have transportation. Petitioner expressed concern to Davis that he was afraid he was going to accrue too many points and get himself terminated. Davis responded to Petitioner that if he did not return to work, he would accrue points under the attendance policy. Petitioner asked Davis if it would be better if he terminated himself or if he was terminated by Respondent. Davis also informed Petitioner that if he terminated himself, at some point he might be able to return to his job at Respondent, though he did not guarantee him that he could simply return. Davis made it very clear to Petitioner that this was a decision he had to make. At the time of Davis' phone call to Petitioner, he had accrued sufficient points under the applicable "attendance policy" set forth under the CBA to warrant giving him a one- point written reprimand. Davis had not been able to give the reprimand to Petitioner, however, because he had not returned to work. At no time had Davis ever informed Petitioner that such a reprimand was waiting for him. In addition, such absences would not have provided a basis for terminating Petitioner at that point in time. Petitioner contacted Davis the following day and informed Davis that he was going to voluntarily resign his employment. Upon learning of this decision, Davis informed Petitioner that he needed to return his uniform and all other of Respondent's property prior to receiving his last paycheck. All employees are required to return their uniform and Respondent's property at the time of resignation. Davis never informed Petitioner that he was being terminated or that he had an intention of terminating him. Similarly, Davis never told Petitioner that he had no option but to resign. Davis had no problem with Petitioner returning to work, provided he could obtain proper transportation. After Petitioner's resignation, Davis completed the required paperwork and indicated that Petitioner should be classified as a "restricted rehire." Davis chose this restriction due to Petitioner's tardiness and attendance issues, as well as his failure to take responsibility to make it to work. This decision to categorize him as a "restricted rehire" was not based on Petitioner's age, national origin or his gender. Petitioner visited Respondent's casting center (human resource department) on June 17, 2003, approximately two months after his resignation, with the intent to reapply for his prior position. Petitioner wanted to return to his same position at the Grand Floridian, working for Davis and Bernhard, as well as working under the same coordinators. On June 17, 2003, Petitioner met with Fernanda Smith, who has served as a recruiter for Respondent for five years. Smith was born in Buenos Aires, Argentina, and is Hispanic. As a recruiter, Smith is responsible for interviewing, selecting, and hiring the strongest candidates for positions at Respondent. She is responsible for hiring employees for all hourly, entry- level positions. The hiring process used by Respondent is the same for both new applicants and former employees of Respondent. That process is set forth in the "Rehire Review" policy given to each recruiter. Once Smith is randomly assigned an applicant, she brings them to her office and reviews their personal data in the computer. She then reviews the application for accuracy and completeness. She also confirms that they are qualified to work in the United States and their criminal background. Smith reviews the conditions of employment with the applicant, including compensation, appearance, ability to attend work and transportation. If the applicant was previously employed by Respondent, Smith also reviews the application for the reasons the employee previously left employment and the applicant's rehire status. The different rehire statuses are "yes rehire," "restricted rehire," and "no rehire." If a former employee has been categorized as a "restricted rehire," Smith then must confirm that the person is currently employed and that he or she has been at that employment for a period of at least six months at the time of re-application. Assuming they can satisfy these requirements, the applicant is required to provide an employment verification letter from their current employer within one week of the interview. At that point, the information is forwarded to a rehire committee for consideration. On June 17, 2003, Smith interviewed Petitioner for potential rehire with Respondent. She recalls that when she met him in the lobby, he was very professionally dressed. Upon entering her office, Smith reviewed the information on Petitioner's application with him. At that point, she noticed that he had a recent date of termination from Respondent and asked him the reasons for his termination. Petitioner responded that he had left his employment because of transportation problems and that he had missed a number of days from work. In reviewing Petitioner's application, she realized that he did not meet the requirements for consideration as a "restricted rehire." First of all, Petitioner did not offer any evidence of current employment at the time of the interview. Secondly, Petitioner had only been gone from Respondent for a period of approximately two months, and thus, did not have the six months of continuous employment to be considered for rehire. Smith shared with Petitioner that he did not meet the minimum requirements for a "restricted rehire." Petitioner had no idea what that designation meant. At that point, Petitioner responded by getting very upset, yelling and screaming at Smith, standing up and pointing his finger at her. He then informed Smith that he was going to sue Respondent for discrimination and left her office. Petitioner did not allow Smith to make any other comments to him. Immediately after Petitioner had left the building, Smith prepared the standard evaluation that she prepares for all applicants she interviews, including the incident that occurred in the interview with Petitioner. If Petitioner had allowed Smith to explain the process and eventually provided the appropriate documentation, he might have been considered for rehire. Based on his behavior in the interview, however, Smith recommended that he not be considered for rehire, particularly for the position of lifeguard where he would be dealing with guests on a regular basis. Allegations of Discrimination Petitioner alleges that one of the coordinators referred to his national origin in a derogatory manner on one occasion. Other than this isolated alleged comment, he stated he never heard anyone else at Respondent make any derogatory comments about his being Hispanic or Venezuelan. Petitioner did not complain about this comment to anyone at Respondent and specifically did not complain to Davis, Bernhard, or employee relations about it. Other than this one comment by an unnamed coordinator, Petitioner offered no evidence that any actions or decisions were taken against him based on his national origin. In support of his age discrimination claim, Petitioner alleges that some of his co-workers referred to him once or twice as "old." Petitioner did not offer any evidence that any of his supervisors or coordinators ever used any of these terms in reference to him. Petitioner does not know whether or not he ever discussed his age with other workers. At the time of Petitioner's resignation, he was not the oldest lifeguard working at the Grand Floridian. Penny Ivey and Sherry Morris were both older than Petitioner, and Davis was born on February 5, 1951. At the time of Petitioner's resignation, Davis was 52 years old. Other than these alleged isolated comments, Petitioner offered no other evidence that any actions or decisions were taken against him based on his age. Petitioner claims that one example of gender discrimination was that the rotation schedule was not equal. In particular, he alleges that the "young and beautiful girls" were preferred in the rotation schedules because they were allowed to work in the marina and at the cash register more than males. Petitioner alleges that Jaimy Tully, a 23-year-old female lifeguard, was always late. For example, Petitioner alleges that Tully was late on March 2, 2003, based on the fact that she was supposed to be there at 10:00 a.m. The daily schedule indicates that she arrived for work at 9:30 a.m. In reviewing the document, however, it indicates "S/C" which means that a schedule change was made, and Tully showed up for work half an hour early, not late, and she still worked her scheduled day of ten hours. A schedule change would occur for several reasons, including the need to have certain employees come in early for an in-service session or the personal request of an employee. It sometimes required employees to come in for work early and other times required them to work later. Petitioner similarly alleges that Tully was late on March 22, 2003, and should have been fired for that. In reviewing the daily schedule for that date, however, it is evident that a schedule change was made, and Tully was scheduled to work from 9:30 a.m. to 8:30 p.m., a regular 10-hour day, and that she actually worked those hours. Petitioner admitted at the hearing that she was actually early to work and not late. Petitioner alleges that Tully was late again for work on April 7 and April 16, 2003. A review of those daily schedules, however, reveals that Tully had a schedule change on each of those days and that she worked the hours that she was assigned. Of all these allegations of Tully being late to work, Petitioner never complained to anyone about it. Petitioner then alleges that Tully arrived for work early on February 15, 2003, and that she was allowed to work extra hours and earn overtime. On that particular occasion, however, Tully was called in early because she needed to attend an in-service training session that was occurring that day. Petitioner conceded that Tully was not late on that day. Petitioner admitted that both males and females were called in to work additional hours as lifeguards. For instance, Michael Whitt, a male employee, was allowed to start work earlier based on a schedule change on March 4, 2003. Similarly, a schedule change was made involving Whitt on February 25, 2003, and he was required to report to work at 11:40 a.m., not 10:00 a.m., and as a result, was not given any breaks that day. Petitioner never received any discipline as a result of being late to work or for leaving work early. Petitioner claims that he suffered discrimination on January 12, 2003, because Tully was allowed to start work later than he and then was allowed to work as a cashier for the majority of the day. He claims that she should have been on a rotation like him and that she was given more hours than he was. Tully was trained as both a lifeguard and a cashier, but she had more cashier experience than the majority of the other lifeguards. She also had good guest-interaction and cash- handling skills, and thus, she was placed as a cashier more than most of the other lifeguards. The cashier assignment also differed from the other assignments in that the employee assigned to this position normally did not rotate throughout the day, and it was not uncommon for the same employee to serve as a cahier for an entire day. Petitioner never spoke with any of his supervisors or coordinators about serving as a cashier, nor did he ever complain to Bernhard about any of his daily assignments. He alleges that the woman and the "young girls" were always placed at the marina. When asked to identify "these girls," he stated he was referring to Mindy and Matt, a male employee. In particular, Petitioner testified that on December 25, 2002, Matt served in the marina for three consecutive rotations on that particular day. He also points out that Matt had a longer break than he did on that particular day. There was no pay differential between employees who were assigned to work at the marina and those who worked at the pool. Similarly, there was no pay differential between employees working as a cashier and those at the pool. Petitioner never made any complaints to Davis about his weekly schedule or his daily rotation assignments. Similarly, Petitioner never complained to Davis about any disparate treatment or harassment based on his age, national origin, or gender. Petitioner never raised any complaints about discrimination or any other working conditions with Bernhard. Bernhard never made any derogatory comments to him or about him. Bernhard does not give any preference to any employees based on age, national origin, or gender. Petitioner was aware that there was an Employee Relations Department located at the casting center, but never complained to them about his working conditions or alleged discrimination.
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 which DENIES Petitioner's Petition for Relief and dismisses his complaint. DONE AND ENTERED this 14th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 14th day of April, 2004. COPIES FURNISHED: Fernando J. Conde 4732 Olive Branch Road Apartment No. 1205 Orlando, Florida 32811-7118 Paul J. Scheck, Esquire Shutts & Bowen, LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues are as follows: (a) whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her age and handicap contrary to Subsection 760.10(1), Florida Statutes (2003); and (b) whether Respondent committed an unlawful employment practice by retaliating against Petitioner contrary to Subsection 760.10(7), Florida Statutes (2003).
Findings Of Fact From March 30, 1998, until April 9, 2002, Respondent employed Petitioner as a payroll and billing clerk at Respondent’s Pensacola support center. The role of the support center is to process payroll checks and billing for 85 to 90 of Respondent’s field offices in five states. In January 1999, Petitioner applied for the team lead position in the payroll department. Jessica Pope, one of Petitioner’s co-workers, also applied for the position. Like Petitioner, Ms. Pope had worked at the support center for about a year. The role of the team lead is to handle questions and problems from other members of the team. The employee chosen to act as team lead must be adaptable and have leadership, teamwork, and communication skills. Sandi Hartzog, support center manager, and Kerri Golmon, payroll supervisor, selected Ms. Pope for the team lead position because they believed that Ms. Pope demonstrated better leadership and teamwork skills than Petitioner. Additionally, Ms. Pope had prior management experience. Ms. Pope’s performance appraisal for the relevant time period (June 1998 through May 1999) rated her teamwork skills as a "4," or "Above Expectations." Petitioner’s performance appraisal for that time period (April 1998 through March 1999) rated Petitioner’s teamwork skills as a "3," or "Meets Expectations." In or about June 1999, Petitioner informed Ms. Hartzog, that she suffered from allergies. Petitioner also informed Ms. Hartzog that her condition was exacerbated by scents. Petitioner requested that Ms. Hartzog prohibit all employees at the support center from wearing any scented substances, including perfumes and colognes. Ms. Hartzog informed Petitioner that she would not impose a scent-free environment but that she would request that support center employees voluntarily refrain from wearing strongly scented substances. Accordingly, Ms. Hartzog sent an e-mail to all support center employees on June 11, 1999, requesting that they voluntarily refrain from wearing perfume and cologne in the workplace. Ms. Hartzog also requested that Petitioner provide medical documentation regarding her health condition. In response to Ms. Hartzog’s request for medical information, Petitioner provided Ms. Hartzog with a memorandum dated June 22, 1999, from Tanya Hodge, nurse practitioner. The memorandum stated that Petitioner was "under the care" of the First Physicians Internal Medicine Group and that "she has been evaluated" for several conditions. The memorandum did not contain a medical diagnosis. In February 2000, Petitioner requested that Ms. Golmon send out another e-mail reminding her co-workers not to wear fragrances in the office. Ms. Golmon complied and sent a reminder to all employees at the support center asking them to refrain from wearing perfumes and colognes. In February 2001, Petitioner again requested that Ms. Golmon send out a reminder regarding fragrances in the office. Within a half-hour, Ms. Golmon sent out another reminder to all employees at the support center. In addition to sending out these periodic reminders concerning the wearing of fragrances, Ms. Golmon warned several employees concerning their wearing of fragrances in the office. Ms. Golmon threatened to discipline employees who continued to wear fragrances. Ms. Golmon attempted to police the wearing of fragrances in the workplace because Ms. Golmon knew fragrances bothered Petitioner. Ms. Golmon wanted to "keep some sort of peace" and "ease tension in the office." Despite Ms. Golmon’s efforts to prevent Petitioner’s co-workers from wearing fragrances, Petitioner confronted employees who were wearing fragrances on her own. These employees complained to Ms. Golmon that Petitioner was singling them out and ignoring other co-workers who were also wearing fragrances. Petitioner also complained to Dawn Adams, an employee relations representative at Respondent’s headquarters in Milwaukee, Wisconsin, about the wearing of fragrances at the support center. In an e-mail dated August 31, 2001, Petitioner told Ms. Adams that her supervisors were taking her condition lightly and suggested that Respondent adopt a policy for a mandatory "scent-free environment." In October 2001, Petitioner complained to Respondent concerning mold in the support center building. Because Respondent was only a tenant in the building, Ms. Hartzog contacted building management. The landlord subsequently remediated the mold damage. Ms. Hartzog permitted any employees who were bothered by the construction to leave the office early. Ms. Hartzog did not dock the pay of anyone who left work early. Petitioner took advantage of this opportunity. On October 3, 2001, Ms. Hartzog again requested medical documentation of Petitioner's health condition with respect to her request for an accommodation. Ms. Hartzog gave Petitioner a form/doctor's certificate for Petitioner's doctor to complete. A series of e-mails followed in which Petitioner stated that she had provided the form to her doctor and would provide it to Ms. Hartzog as soon as she received it. However, Petitioner never returned the completed form to Ms. Hartzog. On October 4, 2001, Petitioner sent an e-mail to Ms. Adams complaining about Respondent’s handling of the mold problem. Petitioner's e-mail included a reference to a prior inquiry from Ms. Adams, asking whether Respondent would pay employees who left early during the mold-removal construction. Petitioner copied this e-mail to, among other people, Respondent’s president, Jeffrey Joerres. In her October 4, 2001, e-mail, Petitioner mentioned that three of her co-workers, Ms. Pope, Joyce Hillig, and Mary Jordan, also suffered from allergies and breathing problems. Each of these co-workers were copied on the e-mail. Shortly thereafter, each of the co-workers complained to Petitioner’s supervisors and/or to Petitioner herself that they were upset for the following reasons: (a) Petitioner included them in her complaint; and (b) Petitioner disclosed their medical conditions to, among other people, Respondent’s president. Around that same time, Ms. Golmon learned about the complaint of another of Petitioner’s co-workers. Specifically, Felicia Myrick, complained to her supervisor about Petitioner's unannounced visit to Ms. Myrick's home to discuss Petitioner's concerns about mold and air quality in the support center building. Petitioner’s actions, such as involving co-workers in an e-mail to Respondent's president, caused tension in the office. Ms. Golmon was aware that the tension adversely affected the cohesiveness of the team. Petitioner received a verbal warning on October 8, 2001, for confronting co-workers regarding their use of cologne and for inappropriately discussing other employees’ medical conditions. Ms. Hartzog and Ms. Golmon also informed Petitioner in a meeting on October 8, 2001, that further such conduct could result in further disciplinary action, up to, and including, termination. After receiving the verbal warning, Petitioner continued to confront co-workers regarding fragrances in the workplace. She also conducted herself in other ways that made her co-workers feel threatened and uncomfortable. In October 2001, Tim Gainer was Respondent's payroll/billing clerk in charge of bridge error corrections. Petitioner was his assistant. When Mr. Gainer announced that he was resigning his position, Petitioner understood that she would replace Mr. Gainer and that Tracy Hughes, a temporary employee, would be Petitioner's assistant. However, Respondent subsequently trained Ms. Hughes and increased her pay equal to Petitioner's pay rate. Ms. Hughes' desk was placed next to Petitioner's desk so that they could share all books and paperwork pertaining to bridge error corrections. There is no competent evidence that Ms. Hughes, a younger person than Petitioner, was treated more favorably than Petitioner. On March 8, 2002, Petitioner confronted a co-worker, Tenisha Malden, at her desk. Petitioner handed Ms. Malden an e-mail about spraying air freshener in the women’s restroom. The e-mail erroneously implied that Ms. Malden was purposefully attempting to harm Petitioner by using air freshener. Ms. Malden was offended by Petitioner’s accusation. Ms. Malden also worried that Petitioner intended to report to management that Ms. Malden was attempting to harm Petitioner. Ms. Malden reported this incident to Ms. Golmon. On March 20, 2002, Petitioner called an attorney from her desk during work hours. During the telephone call, Petitioner inquired about filing a civil lawsuit against co-workers who were intentionally causing her harm. Petitioner spoke in a raised voice so that several of her co-workers, including Ms. Pope and Ms. Hughes, could hear her side of the conversation. Both Ms. Pope and Ms. Hughes felt threatened and anxious about Petitioner’s discussion of suing a co-worker. Ms. Pope reported this disruptive incident to Ms. Golmon. Both Ms. Pope and Ms. Hughes felt that Petitioner was "unapproachable." Ms. Pope and Ms. Hughes were concerned that any interaction with Petitioner could upset or offend her. Other employees also avoided approaching Petitioner's work area, because she created a "tense" and "uncomfortable" atmosphere in the office. Petitioner’s conduct left the team unable to work together as well as it should have. On March 27, 2002, Respondent gave Petitioner a written warning. The warning specifically referenced the incident with Ms. Malden and the telephone call to the attorney. In the warning, Respondent informed Petitioner that such conduct "negatively affect[ed] productivity, individual and team performance, and morale, as well as cause[d] conflict and fear"; and that Petitioner "must discontinue the inappropriate and confrontational behavior with coworkers as well as the abuse of company time, systems and equipment, etc." The written warning also stated, "If this behavior or any form of retaliatory action occurs, further disciplinary action up to and including termination, will occur." Ms. Hartzog and Ms. Golmon met with Petitioner on March 27, 2002, to discuss the written warning. On April 5, 2002, approximately ten days after receiving the written warning, Petitioner initiated a discussion with Ms. Hughes regarding her employment status. Petitioner stated that she was the reason Ms. Hughes could not become a permanent employee. Petitioner further told Ms. Hughes, "I like you but I don’t like you that much." Apparently, Petitioner believed that Respondent had not made Ms. Hughes a permanent employee due to Petitioner's complaints about Ms. Hughes receiving equal job responsibilities and rate of pay. Ms. Hughes was confused and bothered by the conversation, which implied that Petitioner had control over Ms. Hughes’ employment status and that Petitioner had a problem with Ms. Hughes. The conversation made Ms. Hughes apprehensive about approaching Petitioner. Ms. Hughes reported her conversation with Petitioner to Ms. Golmon. At Ms. Golmon’s request, Ms. Hughes sent her an e-mail on April 9, 2002, describing the situation. After learning of Petitioner’s inappropriate conversation with Ms. Hughes, Respondent decided to terminate Petitioner’s employment. The termination was necessary due to the stress and tension that Petitioner's conduct was causing in the workplace. Respondent's management did not believe that further warnings or other discipline would be effective in curbing this conduct because Petitioner disregarded two prior warnings. On April 9, 2002, Ms. Hartzog and Ms. Golmon met with Petitioner to inform her that she was terminated for violating the March 27, 2002, written warning. Specifically, Petitioner violated the written warning when she talked to Ms. Hughes concerning Ms. Hughes’ employment status.
Conclusions For Petitioner: Hazel M. Casler, pro se 6950 Frank Reeder Road Pensacola, Florida 32526 For Respondent: Michael R. Phillips, Esquire McGuireWoods, LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 28th day of May, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Hazel M. Casler 6950 Frank Reeder Road Pensacola, Florida 32526 Michael R. Phillips, Esquire McGuireWoods LLP 150 North Michigan Avenue, Suite 2500 Chicago, Illinois 60601 Jane M. Rolling, Esquire Post Office Box 2053 Milwaukee, Wisconsin 53201-6351 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
Findings Of Fact The Parties. The Petitioner, June M. Smith, is a female. The Respondent, the Department of Management Services (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department was formerly known as the Department of Administration. The Department's Division of Facilities Management. The Division of Facilities Management (hereinafter referred to as the "Division"), is a division of the Bureau of Maintenance (hereinafter referred to as the "Bureau"), a bureau of the Department. The Bureau's offices were located at Koger Executive Center (hereinafter referred to as "Koger"), in Tallahassee, Florida. The Division's Grounds Section had offices and a storage/maintenance area (hereinafter referred to as the "Grounds Section Shop"), located at 1018 South Bronough Street, Tallahassee, Florida. At all times relevant to this proceeding, the following individuals constituted the management structure immediately above the Division and the management structure of the Division: K. Wayne Smith was the Chief of the Bureau. Franklin Hatcher was the Deputy Bureau Chief of the Bureau. Mr. Hatcher left the Bureau in March of 1992. Tom LeDew was the Superintendent of Grounds. Mr. LeDew filled this position until June 20, 1991. Jack Smith became Superintendent of Grounds in March of 1992. Prior to March of 1992, Jack Smith was an "OPS" employee of the Division in charge of landscaping and irrigation. Olin Collins was under the supervision of the Superintendent of Grounds. Mr. Collins was a Supervisor III. There were three Supervisor I's under the supervision of Mr. Collins: Lawrence Medlock, Jeremiah Gee and Darren Miller. Each of the three Supervisor I's was responsible for the supervision of a crew of groundskeepers and laborers. Each crew usually consisted of between five to eight crew members. The Department's Decision to Employ Ms. Smith. Prior to January of 1990, Ms. Smith worked at Koger. She was employed by the company that was responsible for landscaping and maintenance of Koger's grounds. Ms. Smith assisted in landscaping and maintaining the grounds. She was involved in weeding, planting, mulching, trimming and minor spraying. Ms. Smith worked at Koger for approximately three years. During the last year of her employment at Koger, Ms. Smith was a supervisor of two individuals. At the suggestion of an employee of the Department that had observed Ms. Smith's work at Koger, Ms. Smith expressed interest in employment with the Department. Prior to her filing an application for employment with the Department, Ms. Smith spoke with Mr. Hatcher about employment with the Division's Grounds Section. Mr. Hatcher expressed his interest as Deputy Bureau Chief in hiring Ms. Smith when a position became available. Subsequent to her conversation with Mr. Hatcher, Ms. Smith filed an application for a laborer position with the Division. Ms. Smith was hired by the Department as a laborer and began her employment on January 19, 1990. Ms. Smith was continuously employed by the Department in the Division's Grounds Section until November 30, 1992. The decision to hire Ms. Smith was made by K. Wayne Smith, Bureau Chief, Mr. Hatcher, Deputy Bureau Chief, Mr. LeDew, Superintendent of Grounds, and Lawrence Medlock, one of the Supervisor I's. Ms. Smith was hired because she was the best candidate for the position. The evidence failed to prove that anyone was forced to hire Ms. Smith. In particular, the evidence failed to prove that Mr. LeDew was forced to hire Ms. Smith against his will as alleged in the Amended Petition for Relief filed in this case. The evidence also failed to prove that there was any resistance to Ms. Smith's employment by the Department. The Department did not have any policy against the hiring of women in the Grounds Section of the Division. The fact that there were few women employed at any given time in the Grounds Section was based upon the fact that few women applied for positions with the Grounds Section. At best, the evidence concerning the reaction within the Division to the employment of Ms. Smith proved that there were a few crew members who expressed their displeasure with the fact that a woman had been hired in the Division. One individual made a comment after Ms. Smith was hired that indicated he did not believe a woman should be hired because a man that needed to support his family needed the job more. The evidence failed to prove, however, that the individual who made the comment was a supervisor, that the Department was aware of the comment, that Ms. Smith was aware of the comment, or that the individual who made the comment treated Ms. Smith differently because of her sex. The evidence concerning the Department's attitude about hiring Ms. Smith was very positive. It was a Department Deputy Bureau Chief that suggested she apply for a position with the Department, Mr. Hatcher encouraged Ms. Smith to apply for a position, a group of four supervisors concluded that Ms. Smith was the best candidate for the position she applied for and the Department in fact hired her the first time that a position became available. The Department also paid Ms. Smith a starting salary which was 23 percent higher than the base salary for her position. Only one other employee, a male, was hired by the Division during 1990 and 1991 at a starting salary that was above the base salary. In that instance the individual transferred from another agency and received only a 10 percent increase above base salary. Ms. Smith's First Supervisor. Upon the commencement of her employment with the Department, Ms. Smith was assigned to Mr. Medlock's crew. Ms. Smith remained under Mr. Medlock's supervision for approximately 2 to 4 weeks. Very soon after Ms. Smith first began her employment under Mr. Medlock's supervision, Mr. Medlock made a comment to another employee that the work the crews performed "ain't a woman's type of work" and that a woman "ain't going to make it down here around with all these guys." The evidence failed to prove that Ms. Smith was made aware of Mr. Medlock's comments while employed by the Department. The evidence also failed to prove that Mr. Medlock treated Ms. Smith differently than he treated other employees because of her sex. Although the comments were inappropriate, the evidence failed to prove the comments had any direct or indirect impact on Ms. Smith's treatment by Mr. Medlock or the Department. On one occasion while under Mr. Medlock's supervision, Mr. Medlock took Ms. Smith by the arm. Mr. Medlock placed his hand around the back of Ms. Smith's upper arm. Although Ms. Smith described this incident as sexual and indicated that Mr. Medlock "caressed" her arm, Ms. Smith's testimony was not credible. Ms. Smith did not say anything to Mr. Medlock when he touched her or at any other time. Ms. Smith also did not report the incident to any supervisor or employee of the Department until almost three years after it took place. Mr. Medlock often took employees by the arm when he talked to them. He also had a habit of getting closer to employees than some of them would have liked when he talked to them. Mr. Medlock treated employees in this manner whether they were male or female. Mr. Medlock treated employees in this manner in an open manner. At least one supervisor, Mr. LeDew, was aware of Mr. Medlock's conduct. The evidence failed to prove that Mr. Medlock touched employees in a sexual way. The evidence also failed to prove that any employee complained to Mr. Medlock or any other supervisor about Mr. Medlock's conduct. The evidence also failed to prove that Mr. Medlock touched Ms. Smith in a sexual way. Ms. Smith's Second Supervisor. Ms. Smith was transferred from Mr. Medlock's supervision to Mr. Miller's supervision approximately two to four weeks after she began her employment with the Department. She remained under Mr. Miller's supervision for approximately one year. Mr. Miller did not tell Ms. Smith or any other person that he did not want Ms. Smith or women in general working on his crew. Mr. Miller did not have any problem having a woman work on his crew. Mr. Miller's crew was responsible for landscaping and maintenance of the grounds around the Florida Capitol complex. At some point shortly after Ms. Smith was assigned to Mr. Miller's crew, a personality conflict between Mr. Miller and Ms. Smith began to develop. A number of incidents led to this conflict. The evidence failed to prove that any of those incidents, however, were attributable to Ms. Smith's sex. The conflict between Mr. Miller and Ms. Smith was caused, in part, by the fact that Ms. Smith did not believe that Mr. Miller was a good supervisor and she let Mr. Miller know how she felt: Ms. Smith frequently questioned Mr. Miller's instructions to her. Ms. Smith believed that she knew how to accomplish her assigned tasks in a manner better than the manner in which Mr. Miller instructed her to accomplish those tasks. When Ms. Smith felt that way, which was often, she let Mr. Miller know. Although Ms. Smith's actions in questioning Mr. Miller did not reach the level of insubordination, her actions did cause friction with Mr. Miller; Ms. Smith also complained to Mr. Collins and another employee about the fact that Mr. Miller suffers from epilepsy and suggested that his condition negatively impacted his ability to supervise. On more than one occasion Ms. Smith also told Mr. Miller that she had a problem with his condition; Ms. Smith believed that Mr. Miller had trouble relating to people. The conflict between Mr. Miller and Ms. Smith was also caused in part because of Mr. Miller's concern about whether he would be replaced as supervisor by Ms. Smith. This fear was based upon the following: Mr. Miller saw Mr. Hatcher speaking with Ms. Smith, and not other employees, on several occasions at the Capitol; Mr. Hatcher suggested to Mr. Miller that Ms. Smith be made a crew leader instead of other crew members that had been on Mr. Miller's crew longer than Ms. Smith; Ms. Smith was allowed to attend an educational session at Florida A & M University that other laborers did not attend. Although Ms. Smith had requested permission to attend the session, Mr. Miller was not aware of this and believed that Ms. Smith was simply receiving special treatment by management; Finally, Mr. Miller actually heard a rumor that Ms. Smith would be promoted to supervisor and that she would replace him. Mr. Miller was so concerned about the rumor that he spoke to Mr. LeDew about it. Mr. LeDew assured Mr. Miller that the rumor was not true and spoke to Mr. Miller's entire crew in an effort to squelch the rumor. Toward the end of the time that Ms. Smith was assigned to Mr. Miller's crew, Mr. Miller requested that Ms. Smith meet with him to discuss the problems they were having. Mr. Miller asked Ms. Smith what her problem with him was. Nothing was resolved between Mr. Miller and Ms. Smith as a result of this meeting. Despite the personality conflict between Mr. Miller and Ms. Smith, Mr. Miller did not take any disciplinary action against Ms. Smith. Mr. Miller did not take any action to isolate Ms. Smith or treat her differently than he treated male employees. There were times when Mr. Miller assigned Ms. Smith to perform a task by herself. Ms. Smith believed that these assignments were based upon her sex or were intended as punishment. The evidence failed to support Ms. Smith's belief. The weight of the evidence proved that Mr. Miller's assignments of Ms. Smith were based upon his judgment as to how a task should be performed. The evidence failed to prove that Mr. Miller attempted to keep other crew members away from Ms. Smith. The evidence also failed to prove that Mr. Miller attempted to turn other crew members against Ms. Smith. The evidence also failed to prove that Mr. Miller or male employees and supervisors intentionally misled Ms. Smith. In particular, Mr. Miller did not inform Ms. Smith that Mr. Hatcher did not want her to be a crew leader. Mr. Miller actually told Ms. Smith that Mr. Hatcher had suggested she be made a crew leader and that Mr. Miller did not believe it would be fair to make her a crew leader instead of other crew members who had been with the Division much longer than Ms. Smith. Safety Meetings. For approximately three months after Ms. Smith began her employment with the Department, safety meetings were held every Tuesday. The meetings were held at the Grounds Section Shop. The safety meetings were attended by all of the grounds crews, including Ms. Smith's crew. The purpose of the safety meetings was to discuss safety issues. There were times, however, when the crew members were also reminded that cat calls and vulgar or sexual comments to females they saw while working were not appropriate. These reminders were usually made when a complaint had been received about the crews violating the policy against such conduct. There were instances when male workers used profane or vulgar language during safety meetings and Ms. Smith heard them. The evidence concerning whether supervisors of the Department were present when profanity was used during safety meetings in front of Ms. Smith was contradictory at best. The evidence presented by Ms. Smith was overly broad, lacking in specifics as to what was said, by whom comments were made, who was present and, whether supervisors that were present were also aware that Ms. Smith heard any comments. Based upon the weight of the evidence, it is concluded that supervisors of the Department did not routinely hear profanity being used by employees in Ms. Smith's presence, and, when they did, employees were not allowed by supervisors to use vulgar language while safety meetings were being conducted. On one occasion an employee used vulgar language in front of Ms. Smith during a safety meeting when a supervisor was present and the supervisor warned the employee to "watch your mouth." On other occasions, Mr. LeDew admonished one particularly troublesome employee, Bill Ojala, to not use vulgar language. Mr. Ojala was not a supervisor. Vulgar language was used by a small group of the non-supervisory employees immediately before and after safety meetings. Ms. Smith overheard employees using vulgar language before and after safety meetings on some occasions. The evidence failed to prove, however, that Ms. Smith told management of the Department about those instances when she overheard the use of vulgar language. The group safety meetings were discontinued approximately three months after Ms. Smith began her employment with the Department. The group meetings were discontinued largely because they had turned into "gripe sessions" instead of meetings to discuss safety. Separate safety meetings were continued by each ground crew. The evidence failed to prove that vulgar language was used by Ms. Smith's crew during the separate safety meetings conducted for her crew. Troy Sullivan's Employment by the Department In approximately August of 1990, eight months after Ms. Smith began employment with the Department, she applied for a groundskeeper position with the Division. Troy Sullivan, a male, was another applicant for the same groundskeeper position Ms. Smith applied for. Mr. Sullivan was hired by the Division to fill the groundskeeper position. Mr. Collins made the decision to hire Mr. Sullivan. Mr. Sullivan was hired at a salary below that being paid to Ms. Smith at the time he was hired, even though his position was a higher position than Ms. Smith's. Mr. Sullivan had approximately two or three years of experience with grounds maintenance prior to being employed by the Department. Most of that experience, however, was part-time and included some time when he mowed yards while in school. Mr. Sullivan worked full-time performing landscaping and grounds maintenance for approximately three months prior to his employment by the Department. Mr. Sullivan was assigned to Ms. Smith's crew. After speaking to Mr. Sullivan about his experience, which was not as extensive as hers, Ms. Smith complained to Mr. Miller about the failure of the Division to promote her to the groundskeeper position. The evidence failed to prove that Mr. Miller or anyone else told Ms. Smith that she was not promoted because she was a female. Mr. Miller arranged a meeting for Ms. Smith with Mr. Collins. Mr. Collins met with Ms. Smith and Mr. Miller. After hearing from Ms. Smith, Mr. Collins attempted to explain that he believed that Mr. Sullivan was the best candidate because of his experience and because Mr. Miller believed that she had evidenced resistance to authority during her employment with the Department. Mr. Collins gave Ms. Smith a specific example of an incident which he believed evidenced her resistance to authority. Mr. Collins had given Ms. Smith instructions concerning spraying an ant bed. Ms. Smith did not follow those instructions. Although Ms. Smith had an explanation for why she had not sprayed the ant bed (someone else did it before she could do it), the evidence failed to prove that Ms. Smith had told Mr. Collins why she had not sprayed the bed until after the decision had been made to hire Mr. Sullivan. Ms. Smith ended the meeting before Mr. Collins could give further explanation for his decision to hire Mr. Sullivan. In addition to the specific incident Mr. Collins informed Ms. Smith of, Mr. Collins had also been told by Mr. Miller of the difficulties he was having with Ms. Smith and her resistance to his instructions. Based upon Mr. Collins' understanding of the spraying incident at the time of his decision to hire Mr. Sullivan and his understanding of the difficulties Mr. Miller had experienced with Ms. Smith, his decision to hire Mr. Sullivan and not to promote her to the groundskeeper position was reasonable. Ms. Smith also complained to Mr. LeDew about the decision not to promote her. The evidence failed to prove that the decision to hire Mr. Sullivan and not to promote Ms. Smith to groundskeeper was based upon sex. All of the laborers, including Ms. Smith, were reclassified as groundskeepers effective October 26, 1990 and received a 10 percent increase in pay. Bricks in Your Pants. In January of 1991 Ms. Smith was pulling a sod roller over an area around the Capitol. The roller was very heavy and Ms. Smith appeared to be having some difficulty with it. Jack Smith walked past where Ms. Smith was pulling the roller. Jack Smith was an OPS worker at the time of this incident. Jack Smith said to Ms. Smith "you don't have enough bricks in your britches to pull that thing." Ms. Smith threw her hands down at her side in disgust. Jack Smith, believing that Ms. Smith was angered by his comment, apologized to Ms. Smith and indicated he did not mean to upset her. Jack Smith also told Ms. Smith that he did not have enough bricks in his britches to pull the roller by himself and suggested that there was one area where she should not attempt to pull the roller by herself. Jack Smith came by Ms. Smith later and, at her request, helped her pull the roller over a small hill. Jack Smith told Ms. Smith to suggest to Mr. Miller that they use a "Toro" to pull the roller. Ultimately, the Toro was used to pull the roller. Jack Smith reported his comment to Mr. LeDew. Jack Smith's comment to Ms. Smith was meant to indicate that Ms. Smith did not have enough weight and strength to pull the roller. Ms. Smith's belief that the comment had a sexual connotation was unfounded. I. Ms. Smith's Third Supervisor. In early 1991, Ms. Smith and Dewayne Earnest, a co-worker and friend of Ms. Smith, met with Mr. Hatcher, Jack Smith and Mr. Collins to complain about Mr. Miller's supervision. As a result of the meeting, it was decided that Ms. Smith and Mr. Earnest would be moved to another supervisor. This decision was made because of the personal conflict that had developed between Ms. Smith and Mr. Miller. The decision to move Ms. Smith was not based upon Ms. Smith's sex. The evidence failed to prove that the decision to change Ms. Smith's supervisor was made in retaliation for alleged complaints about alleged harassment and abuse of Ms. Smith by Department employees. The evidence failed to prove that Ms. Smith was told during the meeting that Mr. Miller would be demoted. Ms. Smith was placed under the supervision of Jeremiah Gee. Ms. Smith remained under Ms. Gee's supervision until November 16, 1992. Ms. Smith testified that she did not have any problem with Mr. Gee's supervision of her. Ms. Smith complained, however, about several alleged incidents involving Mr. Gee. Ms. Smith complained that, for some unspecified period of time, Mr. Gee required that she keep notes of the work performed each day. Mr. Gee, when questioned by Ms. Smith about why she was being required to keep notes, told her that she was good at keeping records. The evidence failed to prove that male employees were never required to take notes for Mr. Gee before or after Ms. Smith took notes. The evidence also failed to prove that Mr. Gee's decision to require that Ms. Smith take notes was based upon her sex. Ms. Smith also complained that Mr. Gee had required that she go to the Grounds Section Shop to pick up 15 to 20 one-gallon potted plants and bring them in a truck to a landscaping site. The evidence failed to prove that this assignment was unreasonable, that it was meant to be punishment, that it was a more difficult task than Mr. Gee assigned to male workers or that the assignment was based in any way on Ms. Smith's sex. In fact, Mr. Gee had instructed Ms. Smith to request assistance if she had any difficulty lifting any objects. Ms. Smith also complained about an incident that took place on a rainy day on or before September 25, 1991. Because of the rain, the crews remained at the Grounds Section Shop. Mr. Gee instructed Ms. Smith to clean machinery and tools. Mr. Gee observed Ms. Smith talking to another crew member, Mr. Holland, rather than cleaning machinery and tools. Mr. Gee gave Ms. Smith a written counseling for failing to follow his instructions. Mr. Collins was also present when the written counseling was given to Ms. Smith. Ms. Smith refused to sign the counseling. Ms. Smith wrote a response to Mr. Gee's written counseling alleging that she had been discriminated against. The evidence failed to prove that the written counseling given Ms. Smith by Mr. Gee was based in any way upon her sex. The evidence also failed to prove that Mr. Gee "continued the attitude of sex based hostility toward Petitioner." The evidence also failed to prove that "Bill McCray, then-Crew Leader of Petitioner's crew, told other supervisors including Gee that they needed to be harder on Petitioner with the hope that she would quit working with the Department." There was no evidence presented to support this allegation. Additionally, "crew leaders" were informally designated supervisors without a great deal of authority and, therefore, it is unlikely that a crew leader would be giving instructions to Mr. Gee or any other Supervisor I. Slashed Tires, Vandalized Equipment and Rocks on Ms. Smith's Windshield. While Ms. Smith was under Mr. Gee's supervision, Ms. Smith drove her daughter's automobile to work one day. The automobile was parked at the Grounds Section Shop. During the day a tire on her daughter's car was slashed. The evidence failed to prove who was responsible for this incident, that it was based upon Ms. Smith's sex or that the Department acted unreasonably. On another occasion, the Grounds Section Shop was broken into one night. The truck that Ms. Smith's crew used had the words "bitch, bitch, bitch" spray painted on it and the word "bitch" was spray painted on a pillar in front of the truck. Jack Smith's departmental vehicle had also been spray painted. The door to the restroom used by Ms. Smith and a few male employees had been kicked in. Tools and equipment used by Ms. Smith's crew were thrown around the maintenance area. Other equipment had also been moved, but not to the same extent as Ms. Smith's crew's equipment. Communications equipment had also been misplaced and a telephone had been taken. The Capitol police were informed of the incident and came to the Grounds Section Shop to investigate. The police were unable to determine who had caused the damage at the Grounds Section Shop. Ms. Smith was very upset about the incident and talked of quitting. Jack Smith encouraged her not to quit and told Ms. Smith that she was the best worker he had. It is likely that the incident was directly related to Ms. Smith and involved an employee of the Division who did not like Ms. Smith. The evidence, however, failed to prove who the individual or individuals were that vandalized the Grounds Section Shop. The evidence also failed to prove that any action of the Department in response to the incident was based upon Ms. Smith's sex. The evidence also failed to prove that the Department did not respond in a reasonable manner to the incident. Ms. Smith also complained that she believed that someone had gotten into her personal truck and that her purse, which she had left in the truck, had been searched. The truck, which was locked, had not been broken into and nothing was taken from her purse. She reported the incident to Mr. Collins and Mr. Medlock. The weight of the evidence failed to prove that anyone had actually gone into Ms. Smith's truck. The evidence also failed to prove that any action of the Department related to this incident was unreasonable or based on Ms. Smith's sex. During the summer of 1992, Ms. Smith reported to Jack Smith that, while exiting the Grounds Section Shop at the end of work, rocks had been thrown on her vehicle when the tires on a truck driven by another employee spun out. Jack Smith spoke to the other employee, who explained that it had not been intentional. The individual indicated that he was having problems with his transmission, which Jack Smith knew to be true. Jack Smith reported back to Ms. Smith. The evidence failed to prove that this incident was related in any way to Ms. Smith's sex. The Incinerator Incident. Ms. Smith reported to Jack Smith that two co-workers from another crew had been drinking alcohol. While Ms. Smith had not seen the individuals drinking, she had smelled what she believed alcohol when she walked into a room that the individuals were in. One of the workers was Earl Thomas. Jack Smith told Ms. Smith that there was nothing that he could do about employees drinking unless he actually caught them drinking. Jack Smith also told Ms. Smith that he would get the Capitol police to investigate, because he believed there was a drinking problem. Although Jack Smith asked Capitol police for assistance, none was immediately given and Jack Smith did not follow-up on his request. The evidence, however, failed to prove that Jack Smith's reaction to Ms. Smith's complaint, or the lack of effort to follow up on the problem, was related to her sex. The Department did not simply ignore drinking. Mr. Ojala had previously been counseled about drinking alcoholic beverages during working hours. Subsequent to reporting Mr. Thomas for his alleged drinking, Ms. Smith drove her crew's truck to the incinerator to drop off trash. Other crew members were with Ms. Smith. While at the incinerator she saw Mr. Thomas. Mr. Thomas made the following statement: "if that fucking bitch was my fucking wife I'd kick her fucking ass." Ms. Smith overheard the statement. The evidence failed, however, to prove that any other individuals heard the statement. Mr. Earnest's testimony about this incident was not credible. Mr. Earnest and Ms. Smith discussed essentially all of their problems at the Department. It was not until the final hearing of this case that Ms. Smith heard that Mr. Earnest had allegedly overheard Mr. Thomas' statement. Because of Mr. Earnest's lack of candor concerning this matter, very little weight was given to any of Mr. Earnest's testimony. Ms. Smith reported the incident to Jack Smith. Jack Smith told Ms. Smith that he "would take care of it". Jack Smith spoke to Mr. Thomas about the incident. Mr. Thomas denied that he made the comment to Ms. Smith. Jack Smith believed that there was no way he could determine whether Mr. Thomas or Ms. Smith was telling the truth. Therefore, no disciplinary action was taken against Mr. Thomas. Instead, Jack Smith told Mr. Thomas that, if he did make the comment, not to make any further comments to Ms. Smith and, if he did not make the comment, he should stay away from Ms. Smith. Jack Smith did not take any disciplinary action against Mr. Thomas. The evidence failed to prove that the Department's actions relating to the incident at the incinerator were based upon Ms. Smith's sex or that the Department acted unreasonably. The evidence also failed to prove that a subsequent change in Ms. Smith's supervisor was based on the incinerator incident. Ms. Smith's Unspecified Complaint About an Unnamed Supervisor. On or about December 16, 1991, a meeting was held at Ms. Smith's request with Ms. Smith, K. Wayne Smith, Mr. Hatcher and Mr. Collins. The meeting had been arranged after Ms. Smith told Mr. Gee that she had a problem with a supervisor and that she wanted to discuss the problem with management. She would not tell Mr. Gee who the supervisor was or what the problem was. Ms. Smith also told Mr. Gee that she did not want to see Mr. Collins. During the December 16, 1991 meeting Ms. Smith indicated that she would rather not discuss her complaint with Mr. Collins present. Mr. Collins, therefore, left the meeting. After Mr. Collins left the meeting, Ms. Smith stated that there was a supervisor in the Division that hated women. When asked to identify the supervisor, she refused. The evidence failed to prove any specific incident that Ms. Smith raised other than the written counseling previously given to Ms. Smith. Following a discussion of the written counseling, Ms. Smith was told that the written counseling would be returned to her and that no copy of the document would be placed in her file. Rather than the written counseling, Ms. Smith only received an oral counseling for the incident. When asked if there were any other problems she was having, she replied "no". Following the December 16, 1991, meeting Mr. Collins spoke to several people in an effort to determine if Ms. Smith was being discriminated against on the basis of her sex. Mr. Collins learned on one incident involving Raymond Hines. Raymond Hines' Inappropriate Comment to Ms. Smith. While under Mr. Gee's supervision, Raymond Hines acted as a "crew leader". This was an informal position and Mr. Hines lacked disciplinary authority. Ms. Smith and Mr. Earnest worked with Mr. Hines. Mr. Hines had instructed Ms. Smith concerning how to plant daisies. Mr. Hines became upset with Ms. Smith when she questioned his instructions and made the comment that "she needed to be home taking care of her babies." When Ms. Smith learned of Mr. Hines comment she reported it to Mr. Gee and Mr. Collins. Ms. Smith indicated that she did not wish to file a complaint against Mr. Hines because she did not want for him to get into any trouble. Mr. Collins directed Mr. Gee not to allow Mr. Hines to act as a crew leader any longer. The next day, Mr. Hines was no longer allowed to act as a crew leader. The evidence failed to prove that the Department's actions with regard to Mr. Hines' inappropriate comment to Ms. Smith were unreasonable or unresponsive. Mr. Ojala. The Department had a number of problems with Mr. Ojala and three other individuals. They became known as the "Parkway 4." Ultimately, three of the Parkway 4, including Mr. Ojala, were terminated in the Spring of 1991. The fourth member was suspended in May of 1991. On one occasion immediately before or after a safety meeting, Mr. Ojala pulled his shirt out to indicate "breasts" and said he did not have any of "those." These actions were directed at Ms. Smith. The evidence failed to prove that any supervisors were aware of this incident. The evidence also failed to prove that Mr. Ojala or any other employee of the Department touched Ms. Smith's breasts. Mr. Ojala was reprimanded orally on March 20, 1989, for the use of profane, obscene or abusive language. At some time while employed by the Department, Mr. Ojala came out of a restroom at the Grounds Section Shop. Mr. Ojala was still tucking his shirt into his pants when he came out of the restroom. Mr. Ojala made no effort to hide what he was doing even though Ms. Smith was present and Mr. Ojala saw her. Ms. Smith reported the incident to Jack Smith. Jack Smith questioned Mr. Ojala about the incident. Mr. Ojala denied that he was coming out of the restroom when the incident occurred. Mr. Ojala stated that he was outside the building in the morning between two automobiles tucking his pants in when Ms. Smith drove past and saw him. The evidence failed to prove that the Department's actions with regard to Mr. Ojala's actions around Ms. Smith were unreasonable or based upon her sex. Ms. Smith's Final Supervisor. In November of 1992 Jack Smith decided to rearrange the areas each of the crews were responsible for. This decision was based upon Jack Smith's conclusion that the areas needed to be more contiguous in order to reduce the amount of travel time required by the supervisors and crews to cover their respective areas of responsibility. The evidence failed to prove that this decision was unreasonable or that it was based in any way on Ms. Smith's sex. The rearrangement of areas did not change the work load or duties of the crews. Nor were the crews required to work in a significantly different work area. As part of the rearrangement of work areas, Jack Smith decided to move the supervisors to different crews. As a result of this decision, Mr. Medlock became the crew leader of Ms. Smith's crew. Ms. Smith and her crew were informed of the change in their supervisor by Mr. Gee. Mr. Gee informed Ms. Smith that Jack Smith had made the decision. After learning of the change in supervisor, Ms. Smith asked Jack Smith not to put Mr. Medlock in charge of her crew. Jack Smith declined her request. After speaking to Jack Smith, Ms. Smith asked Mr. Gee to arrange a meeting with someone that would be able to stop the change in her supervisor. A meeting was arranged. On or about November 15, 1992 a meeting was held with Ms. Smith, K. Wayne Smith, Jack Smith and Glenn Abbott, a Management Review Specialist of the Department's Bureau of Personnel, Mr. Earnest and a union representative also attended the meeting. Ms. Smith and Mr. Earnest stated that they did not want to be placed under Mr. Medlock's supervision. Ms. Smith gave several reasons why she was opposed to working for Mr. Medlock. Ms. Smith then stated for the first time that Mr. Medlock had touched her when she had first been employed by the Department. Ms. Smith indicated that she believed the touching was sexual; that Mr. Medlock had "caressed" or "squeezed" her arm. Ms. Smith indicated that the incident had taken place almost two years earlier, that she had not previously reported it and that no further incidents had occurred during the almost two year period that had passed since the incident. Ms. Smith also did not report that there were any witnesses to the incident. Ms. Smith only reported one incident during the November 15, 1992 meeting and in her Amended Petition for Relief, although she contended for the first time at hearing that there were two or three incidents. After listening to Ms. Smith's complaint about Mr. Medlock, she was informed that the change in supervisors would still take place. K. Wayne Smith made the decision. K. Wayne Smith also told Ms. Smith to report any inappropriate actions by Mr. Medlock directly to him. The decision to decline Ms. Smith's request that Mr. Medlock not be assigned as her supervisor was based upon the amount of time that had passed since the incident, the fact that there were no witnesses to the incident, the non-sexual nature of the touching and the fact that Ms. Smith had not previously reported the incident. K. Wayne Smith and several other supervisors had previously met with Ms. Smith. K. Wayne Smith had asked Ms. Smith to report any problems she had experienced. Ms. Smith did not report the incident with Mr. Medlock to K. Wayne Smith or any of the other supervisors. Jack Smith had, on more than one occasion, asked Ms. Smith if she had any problems. Ms. Smith never reported the touching incident. Mr. Abbott reported the touching incident to the Department's personnel director. Mr. Abbott also intended to speak to Mr. Medlock about the incident, but Ms. Smith left the Department before he had an opportunity to do so. During the November 15, 1992, meeting, Ms. Smith asked if there were any other positions within the Department that she could be transferred to. K. Wayne Smith told her that, based upon her education and experience, the only position she would qualify for was a "maid's job". K. Wayne Smith was referring to custodial positions available at the Department. The meeting on November 15, 1992, although not uncontrollable, was somewhat heated. Despite the heated nature of the meeting, efforts were made to convince Ms. Smith of the benefits of remaining with the Department. The evidence failed to prove that Ms. Smith was told that she was a "troublemaker" or that she was told that the only way she could make it with the Department was to keep her mouth shut, her ears shut and look the other way. The evidence failed to prove that any comments made during the November 15, 1992, meeting, or that the actions taken by the Department as a result thereof, were based upon Ms. Smith's sex. By the time of this meeting, Ms. Smith had made numerous complaints about a wide variety of subjects. Ms. Smith had become a source of problems for management of the Division. Many of the problems were based upon hearsay and rumor and not based upon reality. Some of those problems were caused by Ms. Smith and some were caused by others. Of significance, however, is the fact that the problems were related to personality conflicts and not Ms. Smith's sex. In light of all these circumstances, the Department's actions following the November 15, 1992 meeting were reasonable and were not based upon Ms. Smith's sex. The evidence failed to prove that Ms. Smith was subjected to written discipline for insubordination as a result of questioning her assignment to Mr. Medlock's supervision. Ms. Smith's Next to the Last Day of Reporting to Work. On November 16, 1992 Ms. Smith was placed under Mr. Medlock's supervision. Jack Smith told Mr. Medlock to have someone with him when he gave Ms. Smith and Mr. Earnest instructions. Mr. Medlock's first encounter with Ms. Smith on November 16, 1992 was at the Grounds Section Shop. Mr. Medlock expected Ms. Smith and Mr. Earnest to approach him about their work assignment that morning. When they did not, Mr. Medlock eventually approached them. Ms. Smith and Mr. Earnest were still gathering their tools. When Mr. Medlock questioned them about why they were not ready to leave yet, they told him that there were too many people in the Grounds Section Shop. They also indicated that they were not paid to think and that he would have to tell them everything that they were suppose to do. Ms. Smith and Mr. Earnest were belligerent and angry. Mr. Medlock was also irritated about the situation. Mr. Medlock directed Ms. Smith and Mr. Earnest to go to the Union Bank building and trim shrubs. At approximately 8:20 to 8:25 a.m. Mr. Medlock and Mr. Collins drove past the Union Bank. Ms. Smith and Mr. Earnest were standing by their truck and had not yet begun working. At approximately, 8:35 to 8:40 a.m. Mr. Medlock and Mr. Collins returned to the Union Bank to see if Ms. Smith and Mr. Earnest had begun to work. Mr. Earnest was working on one small plant that was part of a hedge. Ms. Smith was not working until she saw Mr. Medlock and Mr. Collins approaching. When Ms. Smith saw Mr. Medlock and Mr. Collins she began to immediately work on the same small plant that Mr. Earnest was working on. Very little trimming had been done at this time. Mr. Medlock told Ms. Smith and Mr. Earnest that they needed to spread out and not work on the same small bush. Mr. Medlock demonstrated what he wanted them to do. Between an hour and an hour and a half later Mr. Medlock and Mr. Collins drove past the Union Bank again. Ms. Smith and Mr. Earnest were no longer there. Their truck was also gone. It was not time for their break and the evidence proved that they were not on break. Even if they were on their break, they were suppose to remain at the job site and they were gone more than the fifteen minutes allowed for breaks. Mr. Medlock and Mr. Collins looked for Ms. Smith and Mr. Earnest for thirty to forty-five minutes. They eventually saw them driving the truck back toward the Union Bank. Mr. Medlock and Mr. Collins returned to the Union Bank where they found Ms. Smith and Mr. Earnest. Very little work appeared to have been done. Mr. Medlock told Ms. Smith and Mr. Earnest that he would not tolerate them driving around in the truck and not getting any work done. Mr. Earnest told Mr. Medlock, "Nigger, I ain't got to put up with this shit" and "I ain't going to do a damn thing." Ms. Smith was present when Mr. Earnest made these comments. Ms. Smith did not say anything to Mr. Earnest about his use of profanity or the racial slur. Mr. Earnest then returned to the Grounds Section Shop and left for the day on sick leave. Ms. Smith left Union Bank a short time after Mr. Earnest had left. Ms. Smith also went home on sick leave. The evidence failed to prove that Mr. Medlock made any effort to touch Ms. Smith on November 16, 1992. Mr. Earnest resigned on November 17, 1992. At that time, Mr. Earnest referred to Mr. Medlock as "that nigger" in Jack Smith's presence. Ms. Smith's Last Day of Employment with the Department. Ms. Smith remained home on sick leave for several days trying to decide what to do. She was concerned about not having a job. She was also concerned that her position with the Department was in jeopardy. Ms. Smith stayed home on sick leave for a week. The Department made no effort to question Ms. Smith's use of sick leave during this time. On November 20, 1992, Ms. Smith signed a resignation form with an effective termination date of November 30, 1992. Ms. Smith asked Jack Smith what she should give as her reason for resigning. Jack Smith suggested that she could simply say "personal reasons." Jack Smith did not, however, attempt to make Ms. Smith use "personal reasons". Ms. Smith put "conflict of interest" as her reason for leaving. Ms. Smith was correctly informed that she could use her accumulated leave but that State policy required that she work her last day of employment. She was allowed to take sick leave between November 20, 1992 and her resignation date even though she was not sick. On Ms. Smith's last day of employment, November 30, 1992, Mr. Medlock was absent from work. Therefore, Mr. Gee was assigned to supervise Ms. Smith. Mr. Gee was not assigned to supervise Ms. Smith because of her fear of Mr. Medlock. The evidence failed to prove that Ms. Smith was constructively terminated by the Department. First, the evidence failed to prove that Ms. Smith was reasonably afraid of Mr. Medlock touching her or otherwise sexually harassing her. Ms. Smith's and Mr. Earnest's relationship with the Department had simply deteriorated to the point where it was becoming difficult for Ms. Smith's employment to continue. Secondly, Ms. Smith had another alternative to terminating her employment if her fear of Mr. Medlock had been the only reason why she did not believe she could return to work. Ms. Smith, as a career service employee, could file a grievance over the decision to place her under Mr. Medlock's supervision. Ms. Smith chose not to do so. Subsequent to Ms. Smith's resignation, an Exit Interview Report was completed by Mr. Medlock and placed in her file. Reemployment was not recommended in the report because of "bad attitude, didn't get along well with co-workers, and she didn't like to cooperate with supervisor." Ms. Smith suggested that she had never been told any of these things. This assertion, however, is not supported by the weight of the evidence. Sexual Harassment Policy/Training. During Ms. Smith's employment by the Department, sexual harassment in the workplace was not discussed with, or mentioned by management to, the employees of the Division. Employees of the Division were not provided with any training concerning sexual harassment in the workplace during the time that Ms. Smith was employed by the Department. The Department has promulgated rules concerning sexual harassment in the workplace. See Chapter 13J-5 (now Chapter 60-5), Florida Administrative Code. Respondent's exhibit 5. The Department's rules on sexual harassment were provided to all new employees of the Department. The Department's employee handbook also briefly addresses sexual harassment and refers to the Department's rules. Respondent's exhibit 6. A copy of the Department's employee handbook was provided to all new Department employees. Mr. Collins, the immediate supervisor of Mr. Medlock, Mr. Gee and Mr. Miller, has attended courses dealing with discrimination on the basis of race and sex. As a result of these courses and his involvement in hearings on sex discrimination and sexual harassment, Mr. Collins is mindful of the problems of discrimination on the basis of sex. The Use of Vulgar Language. It was the policy of the Department that profane, obscene or abusive language was not to be used by employees of the Division. See Chapter 13J-4 (now Chapter 60-6), Florida Administrative Code. Respondent's exhibit 4. It was the standard practice of the Division to provide a copy of Chapter 13J-4 to all employees when they were hired by the Department. Ms. Smith was provided a copy of Chapter 13J-4. The Department also required that all employees sign a memorandum dated January 24, 1990, which explained the Department's policy concerning profane, obscene or abusive language. The memorandum provided the following: The use of Profane, Obscene, or Abusive Language is a Violation of Rule 13J-4 of the State of Florida Administrative Code. Use of such language will at no time be tolerated within the Capital Center Grounds Section. Violation of this requirement will result in disciplinary action being taken against the offender. The normal progression, depending on the severity of the offense, of this disciplinary action will be an Oral Reprimand, Written Reprimand, Three (3)-Day Suspension, and Dismissal. The disciplinary chain is progressive and will be followed. See Respondent's exhibit 2. At least one employee did not sign the memorandum until April 10, 1991. Employees were, however, informed of the policy orally prior to the date of the memorandum. Despite the Department's policy, profane and obscene language was used at times by employees of the Division. There were also times when profane and obscene language was used by non-supervisory employees of the Department when Ms. Smith was present. Ms. Smith contended in this proceeding that she made numerous and continuous complaints about the use of profane and obscene language in her presence while she was employed by the Department and that management of the Division failed to take any action to remedy the situation. The weight of the evidence failed to prove Ms. Smith's contentions. The evidence in support of such findings was generally over-broad and lacking in specificity as to when and to whom she complained, what she alleged was said, who she alleged used profanity, whether supervisors were present, whether the person that used the profanity or supervisors were aware Ms. Smith was present, etc. The evidence failed to prove that Ms. Smith complained to Mr. Hatcher about the use of profanity or the telling of off-color jokes. The evidence did prove that, despite the Division's efforts to prevent the use of profanity, the use of profane or obscene language by employees of the Division was not uncommon. Words such as "damn", "shit", "bitch", and "cunt" were used. The evidence, however, failed to prove specific incidents when profanity was used in Ms. Smith's presence or the circumstances surrounding such occasions. The evidence also failed to prove any incident when Ms. Smith complained to management about the use of profanity when management did not take action. For example, Ms. Smith complained to Mr. LeDew at some point between January of 1990 and June of 1991 about the use of vulgar language. Mr. LeDew instructed Ms. Smith's supervisor to make sure vulgar language was not used. In approximately June of 1992 Ms. Smith also complained to Mr. Gee about an "OPS" worker telling off-color jokes. Mr. Gee reported the incident to Jack Smith who met with the OPS worker and informed him that the Division did not allow the telling of off-color jokes. The worker was also told by Jack Smith that he would be fired if he persisted in telling off-color jokes. Ms. Smith did not report any further problems with the worker. The General Treatment of Ms. Smith. The evidence failed to prove that male employees of the Department became suspicious or jealous of Ms. Smith and attempted to sabotage her performance and potential promotions. Mr. Miller did not tell Ms. Smith that she should not expect any promotions because women were never promoted in the Grounds Section. The evidence also failed to prove that Ms. Smith was treated differently by her supervisors at the Department than her male counterparts were treated. The evidence also failed to prove that Ms. Smith was given work assignments or otherwise treated differently because of the fact that she is a female. The evidence also failed to prove that Ms. Smith was held to a higher standard of performance than male workers. Ms. Smith received high evaluations while employed at the Department. Ms. Smith received "exceeds" performance standards throughout her employment with the Department. She was also promoted to groundskeeper with all the other laborers and received a letter of recommendation from Jack Smith. Ms. Smith was also the third highest paid employee of similar position within the Division while employed by the Department between March 16, 1990 and May 10, 1991. Ms. Smith was paid more than some equivalent employees who had more time with the Department. The two individuals that were paid more than Ms. Smith had been with the Department for 15 to 20 years each. The evidence also failed to prove that Ms. Smith was not allowed to seek assistance from co-workers under circumstances similar to those when her male co-workers would seek assistance. The evidence also failed to prove that she was denied assistance when it was necessary or that she was criticized inappropriately for "needing help from others." Comments on Ms. Smith's January 19, 1991 appraisal concerning seeking assistance were intended as constructive and not disciplinary. The comments were reasonable because of Ms. Smith's unreasonable preference for working with another co-worker rather than completing the task assigned to her by her supervisors. Ms. Smith was not disciplined for complaining about being assigned a task to be performed alone and she was not threatened with discipline by any supervisor for expressing her desire to work with Mr. Earnest or any other co- worker. There were tasks that required two or more workers to perform. There were also tasks that, while only requiring one person to perform, two or more workers were assigned to perform. The standard procedure was, however, for workers to work in the same general area, but to be performing different tasks. There were also times when all workers, including Ms. Smith, were required to work alone and independently of others. Ms. Smith did not like to work alone or on a task by herself and frequently complained about being denied her preference to work with another employee. The evidence failed to prove that Ms. Smith was segregated from her co-workers unreasonably, as retaliation or based upon her sex. There were times when Ms. Smith was not allowed to perform a task with Mr. Earnest, whom she preferred to work with most of the time, or other co- workers. The evidence, however, failed to prove that on those occasions when she was required to work independently, that she was being singled out to perform a job which would require two or more employees to perform. The evidence also failed to prove that Ms. Smith's sex played any role in any decision to require Ms. Smith to work independently. The evidence also failed to prove that Ms. Smith was treated with discipline for complaining about the workplace. The evidence also failed to prove that working conditions became worse as a result of her complaints about an alleged sexually hostile work environment. While it is true that Ms. Smith was viewed by management as a complainer and problem employee for a large part of her employment, that perception was not based upon her sex or allegations of sexual misconduct in the Division. The Department's reaction to Ms. Smith would have most likely been the same had she been a man. This conclusion is supported by the Department's treatment of Mr. Earnest. In many, although not all, respects Mr. Earnest joined Ms. Smith in the complaints raised by her to the Department. For a considerable part of the time Ms. Smith was employed with the Department, she insisted that Mr. Earnest be present when she spoke to supervisors, especially when she spoke to Jack Smith. Mr. Earnest, like Ms. Smith, was resentful of management, argumentative with supervisors and was viewed toward the end of his employment as a source of problems for the Division. With perfect hindsight, it would be easy to criticize some of the reactions of the Department to the complaints of Ms. Smith and Mr. Earnest. Some supervisors reacted with anger to the mounting number of complaints and accusations Ms. Smith and Mr. Earnest made. Any inappropriate reaction by management of the Department was not, however, based upon sex. Had it been, Mr. Earnest, a male, would not have been treated in the same general manner that Ms. Smith was treated. The fact that Mr. Earnest was treated similarly to Ms. Smith tends to refute any conclusion that the Department's actions were based upon Ms. Smith's sex. Miscellaneous Complaints. The evidence failed to prove that Jack Smith asked Ms. Smith or Mr. Earnest whether they were having sex with each other. The evidence failed to prove that any disciplinary or other adverse action was taken against Ms. Smith for asking Jack Smith if he had asked Mr. Earnest whether Mr. Earnest and Ms. Smith were having sex with each other. Ms. Smith's Subsequent Employment. After terminating her employment with the Department, Ms. Smith filed an application for employment with the Department of Labor and Employment Security. Not too long after leaving the Department, Ms. Smith moved to Virginia and lived with her sister for a relatively short period of time. She returned to Florida. The evidence failed to prove how long Ms. Smith unsuccessfully made a diligent effort to find employment after leaving the Department. Ms. Smith is currently employed as manager of the inside lawn and garden section of Lowe's in Tallahassee, Florida. Ms. Smith has been employed at Lowe's since February 19, 1993. She is paid more than she was being paid at the Department when she left. Ms. Smith's Complaint. Ms. Smith filed a Charge of Discrimination with the Commission on or about August 10, 1993 alleging that the Department had discriminated against her on the basis of her sex. On or about January 13, 1994, the Commission entered a Notice of Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice had occurred. On or about February 14, 1994, Ms. Smith filed a Petition for Relief contesting the Commission's determination. The Petition was filed with the Division of Administrative Hearings. On or about March 24, 1994, Ms. Smith filed an Amended Petition for Relief.
The Issue The issue for determination is whether Petitioner, Steven A. Ramunni, owner of Steven A. Ramunni, P.A., employed by the City of Moore Haven, Florida, as the part-time city attorney, is entitled to participate in the Florida Retirement System from November 25, 1986, through the present.
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying in person and the documentary materials received in evidence, stipulations by the parties, evidentiary rulings made pursuant to Section 120.57, and the entire record compiled herein, the following relevant and material facts are found: The City of Moore Haven, Florida (City), is a Florida Municipal Corporation classified as a local agency and participates in the Florida Retirement System (FRS). The city attorney part-time position is established by Article IV of the City of Moore Haven Charter. The City has no legal department. The cost for legal services rendered by its part-time city attorney is included in the City's annual budget. Petitioner, Steven A. Ramunni (Mr. Ramunni), owner of Steven A. Ramunni, P.A., was hired November 25, 1986, as the City's part-time city attorney. His immediate supervisors are the mayor and the City Council of Moore Haven (City Council). Mr. Ramunni's primary legal duties consist of mandatory appearances at two regularly scheduled monthly meetings and attendance at special meetings at the discretion of the City Council. He performs the legal duties and services needed or required by the City Council. He represents the City in all litigation and official business. He provides legal advice/opinions to the mayor, the City Council, and to all city department heads. Mr. Ramunni, by virtue of a monthly retainer, is obligated to be available as needed by his retainer client on a daily basis, if necessary. The City provides administrative assistance to Mr. Ramunni when he is engaged in legal projects for the City. However, the City hires and supervises the administrative staff. Additionally, Mr. Ramunni has authority and does use his private law firm's administrative staff to assist him in performing legal services for the City. The City is billed separately from the monthly retainer agreement for other legal services. The City pays for those legal seminars attended by Mr. Ramunni that are related to local agencies as that term is defined in Subsection 121.021(52)(b). Mr. Ramunni is responsible for attending and making payment for additional seminars necessary to comply with mandatory Florida Bar requirements. Mr. Ramunni has held the position of part-time city attorney for the City and has continuously performed legal services as the part-time city attorney continually since November 25, 1986. There was no formal contract of employment entered into by Mr. Ramunni and the City on November 25, 1986, and no formal contract of employment presently exists. Reimbursement for legal services rendered to the City For attending City Council meetings twice a month, Mr. Ramunni is on a fixed monthly retainer. Other than attending the two monthly City Council meetings, Mr. Ramunni has no other established legal duties as the part-time city attorney. He is available and he does provide requested legal counsel and engages in litigation when needed only on those issues determined by the City Council and/or the mayor. Other than his fixed monthly retainer for attending City Council meetings, any and all other legal services performed for the City require additional compensation, billed by the hour, plus cost, to be paid to Mr. Ramunni. This hourly billing rate plus expenses is separate and apart from his fixed monthly retainer for attending City Council meetings as part- time city attorney. Reporting income paid Mr. Ramunni for services rendered Mr. Ramunni asserts that he has not received an Internal Revenue Service (IRS) Form 1099 or a Form W-2 reflecting annual compensation paid him by the City from November 25, 1986, to the present. The Department of Management Services, Division of Retirement's (the Agency), ERQ-1 form, dated October 3, 2002, question 15, page 3, completed with the assistance of Maxine Brantley, City Clerk, and submitted to the Agency, answered the question, "How did the worker report the earnings for income tax purposes?" to the contrary. Answering the above question regarding how monies paid to Mr. Ramunni are reported to state and federal agencies for income tax purposes, the ERQ-1 form confirms that the City does not report annual earned income payments made to Mr. Ramunni as "Wages" for income tax purposes by Form W-2. The City chose to report, and Mr. Ramunni acquiesced, annual earned income paid to Mr. Ramunni by the City as "self employed income" for tax purposes by using Form 1099. The City chose, and Mr. Ramunni acquiesced, not to withhold federal income taxes and federal social security deductions from Mr. Ramunni's payment for services rendered. The City chose, and Mr. Ramunni acquiesced, not to withhold medicare deductions from Mr. Ramunni's annual pay. The City chose, and Mr. Ramunni acquiesced, not to make matching contributions for Mr. Ramunni's federal social security or medicare payments. The City chose, and Mr. Ramunni acquiesced, not to provide statutorily required workers' compensation coverage for Mr. Ramunni. The City is insured by its Public Risk Management Self Insurance coverage, to include legal work performed on behalf of the City by Mr. Ramunni. This coverage is not insurance coverage for legal malpractice claims that may be made against Mr. Ramunni, personally. Mr. Ramunni maintains a law firm, Stevens A. Ramunni, P.A., with offices in LaBelle and Fort Myers, Florida, offering legal services to the general public. Mr. Ramunni does not have office equipment or office space on the City's premises. The City makes remittance of the monthly retainer and of fees charged by Mr. Ramunni to Steven A. Ramunni, P.A., and not Mr. Ramunni personally. The City's remittance checks are deposited in the Steven A. Ramunni, P.A., law firm's account and not Mr. Ramunni's personal banking account. Mr. Ramunni, at his sole discretion, uses the administrative staff of his private law firm to assist him with the City's legal projects. The cost for use of the administrative staff of his private law firm is an integrated portion of his hourly total billing totals to the City. Although Mr. Ramunni may terminate his independent relationship with the City as city attorney without personal financial liability, he continues to have a professional and ethical duty to assist in the transition of ongoing litigation to a new attorney. As part-time city attorney, Mr. Ramunni may not substitute another attorney to provide legal services assigned to him by the City without expressed authority and approval of the proposed new attorney from the City Council and the mayor. Based upon the Findings of Fact herein above, the evidence demonstrates that Mr. Ramunni's relationship as the part-time city attorney is not that of an "employee" of the City as that term is defined by rule of the Agency, for participation in the FRS. Based upon the Findings of Fact herein above, Mr. Ramunni has failed to prove that his part-time city attorney relationship with the City is and always has been an employer- employee relationship as that term is defined by rule of the Agency and that he is eligible for participation in the FRS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request to participate in the Florida Retirement System from November 25, 1986, through the present. DONE AND ENTERED this 3rd day of September, 2003, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2003. COPIES FURNISHED: Steven A. Ramunni, Esquire Post Office Box 1118 LaBelle, Florida 33975 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Erin Sjostrom, Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Monesia Taylor Brown, Acting General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560
The Issue Whether Respondent violated provisions of Petitioner’s Human Resources Manual and Employee Handbook (“the Manual”) on May 18, 23, 24, and 31, 2018, as charged in the agency action letter dated June 25, 2018.
Findings Of Fact Chapter 2001-324, Laws of Florida, declared the Escambia County Utilities Authority an independent special district with transferred assets and enumerated powers. Chapter 2004-398, Laws of Florida, changed the Escambia County Utilities Authority’s name to ECUA. By law, ECUA provides utility services throughout Escambia County, Florida, and has the power to appoint, remove and suspend its employees, and fix their compensation within the guidelines of Escambia County Civil Services Rules. ECUA’s mission statement specifies that the Board and employees of ECUA “are committed to providing the highest quality service” and that “ECUA will always provide cost-effective services.” ECUA has adopted standards set forth in the Manual in order to govern employee conduct. During the relevant time period, ECUA employed Mr. Baker as the utility service worker in the patch services division (“the patch crew”). Mr. Baker acknowledged on April 22, 2013, that a copy of the Manual was made available to him. The patch crew consists of eight people who normally work from 7:00 a.m. to 3:30 p.m., with a 30-minute lunch break. Mr. Baker usually performed asphalt repairs or assisted other patch crew members with their tasks. The patch crew’s supervisor assigns work to the patch crew each day. If the crew completes all of its assigned tasks prior to 3:30 p.m., there is no policy or Manual provision allowing them to leave work early and count that as work time. Mr. Baker would normally begin each workday by reporting to an ECUA building on Sturdevant Street where the patch crew’s trucks are maintained. Many ECUA vehicles carry global positioning devices (“GPS”) that transmit the vehicle’s precise location to ECUA at two-minute intervals. The GPS devices also inform ECUA whether a vehicle is moving, idle, or stopped. ECUA vehicle #1622 had such a device and was normally driven by Mr. Baker or Tadarel Page. An anonymous e-mail to Gerry Piscopo, ECUA’s Deputy Executive Director of Maintenance and Construction, alleged that the patch crew was incurring overtime by intentionally being lackadaisical in completing work assignments. As a result, ECUA initiated an investigation of the patch crew’s daily activities. In addition to monitoring the GPS reports from the vehicles, ECUA retained a private investigator, Terry Willette, to surveil the patch crew and videotape their work or lack thereof. From April of 2018 to some point in June of 2018, Mr. Willette routinely surveilled the patch crew for 4 to 12 hours a day. Findings Regarding the Allegations from May 18, 2018 The May 18, 2018, GPS report for vehicle #1622 records that the truck was parked at a local seafood restaurant on 610 South C Street from 11:43 a.m. until 1:17 p.m. Because the patch crew is only allotted a 30-minute lunch break, this extended stop at the local seafood restaurant would almost certainly amount to a violation of multiple Manual provisions unless weather conditions (such as heavy rain) made it infeasible to attempt asphalt repairs. Mr. Baker testified without contradiction that it was raining when the patch crew was at the seafood restaurant, and there was no evidence as to whether ECUA had a policy governing what the patch crew was to do when it was raining. With no evidence to contradict Mr. Baker’s testimony about the weather conditions or what the patch crew is capable of doing when it is raining, ECUA did not prove by a preponderance of the evidence that Mr. Baker falsely claimed that he worked eight hours and took a 30-minute lunch on May 18, 2018. Findings Regarding the Allegations from May 23, 2018 The May 23, 2018, GPS report for vehicle #1622 indicates that the truck was parked at Mr. Baker’s home from 9:33 a.m. to 9:46 a.m. Mr. Baker does not dispute that he stopped at his home at that time. However, he asserts that he took no actual lunch break on May 23, 2018. Therefore, he argues that the 13-minute stop at his home should be of no concern to ECUA. Nothing in the Manual specifies that ECUA employees must take their lunch break at a certain time. The May 23, 2018, GPS report indicates that vehicle #1622 stopped at 3116 Godwin Lane from 11:43 a.m. to 12:47 p.m. However, there is no record evidence indicating what is at that address. Therefore, it cannot be found that the stop at 3116 Godwin Lane amounted to a lunch break. The ECUA failed to prove by a preponderance of the evidence that Mr. Baker effectively abandoned his work when he drove vehicle #1622 to his home and stayed for 13 minutes on May 23, 2018. Findings Regarding the Allegations from May 24 and May 31, 2018 Mr. Baker’s timesheet for May 24, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 24, 2018, Mr. Willette observed Mr. Baker at 12:59 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 12:56 p.m. on May 24, 2018. Mr. Baker’s timesheet for May 31, 2018, indicates he reported to work at 6:59 a.m. and worked until 3:30 p.m. On May 31, 2018, Mr. Willette observed Mr. Baker at 3:09 p.m. leaving the ECUA building where he begins and ends each workday. A GPS report records that vehicle #1622 was not driven after 3:10 p.m. on May 31, 2018. Mr. Baker does not dispute that he left work at 12:59 p.m. on May 24, 2018, and at 3:09 p.m. on May 31, 2018. Mr. Baker testified that he had permission from Greg Rigby, the patch crew’s supervisor, to leave early on those days. As for why his timesheets indicated that he left at 3:30 p.m. on both days, Mr. Baker explained that the individual patch crew members did not fill out their timesheets. Instead, Mr. Rigby or his assistant supervisor, Robert Boyd, Sr., entered each patch crew member’s time into the timekeeping system. ECUA proved by a preponderance of the evidence that Mr. Baker’s timesheets for May 24, 2018, and May 31, 2018, were inaccurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Dalton B. Baker violated Section B-3, attendance records; and Section B-13 A (33), violation of ECUA rules or guidelines or state or Federal law. DONE AND ENTERED this 18th day of September, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 2018.
The Issue Whether Petitioner is entitled to service credit in the Florida Retirement System (FRS) from June 1, 1995, through August 2001.
Findings Of Fact At all times material, Petitioner has been a school psychologist, certified by the Florida Department of Education. From June 1995 through August 2001, Petitioner performed duties as a psychologist under "purchase of services agreements" with SBAC to perform special needs assessments for gifted children. These formal contracts were executed between Petitioner and SBAC in and for each successive school year during that period. Although there was the expectation that a new contract would be negotiated/signed each year, there was no guarantee to that effect. The annual contracts for June 1995 through August 2001, between SBAC and Petitioner provided that Petitioner was to assume all risks, and that he was a "consultant." They further provided that he was to be paid at a rate of $150.00 for each assessment he completed. Either party to the contract could terminate it on 30 days' notice. In pertinent part, the annual contracts described Petitioner as an independent consultant and not an employee in the following terms: * * * The CONSULTANT is an Independent Consultant and will perform all services at the Consultant's risk, assuming full responsibility for completion of the services stipulated below: Psychoeducational evaluations of students referred for determination of eligibility to the Gifted Program as shall be requested by the Board through its Director of Exceptional Student Education or Lead School Psychologist. All psychoeducational evaluations shall be completed within 30 days of having been received by the CONSULTANT. All reports and billing for services rendered by the CONSULTANT shall be submitted in a timely manner. All reports are to be submitted in triplicate. * * * CONSULTANT also acknowledges that in rendering the services provided herein, the CONSULTANT will be acting as an Independent Consultant, and not as an employee of the School Board of Alachua County. (Emphasis added.) The contracts contained no specific provision for reimbursement of Petitioner's expenses. However, a calculated amount for travel expenses was built into the fee of $150.00 per child. SBAC did not consider Petitioner an "employee" during the period of his annual contracts, because he was not filling a regularly established position. Accordingly, SBAC did not report to FRS any retirement information/contributions on the amounts it paid Petitioner during this period. Likewise, during the specified period, Petitioner received no paid leave or other employee benefits from SBAC. Also, SBAC did not provide unemployment compensation coverage or workers' compensation coverage for Petitioner during the specified period. While under contract as an independent consultant, Petitioner did not report his time to SBAC via a timesheet or otherwise. Rather, he was paid for each completed assessment under the terms of his respective contracts. He was only required to file his test results within five business days of the date he assessed a student. Between 1995 and 2001, SBAC reported Petitioner's pay for federal income tax purposes by Form 1099, rather than by Form W-2. A 1099 form is traditionally used for occasional employees and for independent contractors. W-2 forms are used for regular employees. Petitioner reported his income from SBAC as "other income," i.e. self-employment income. In a similar vein, SBAC withheld no taxes, Social Security, or Medicare deductions for Petitioner during this period. SBAC made no matching contributions for Social Security or Medicare. During the specified period, Petitioner was hired solely for special needs assessments. The time frame for testing by SBAC was established by law. Other than special needs assessments, Petitioner had no duties for SBAC, but he was assigned cases by SBAC as necessary to meet its caseload and time frame. Petitioner was only called upon when SBAC's school psychologists, who filled regularly established positions, were not available or could not timely meet the demand for assessments in a school year of 10 months' duration. Petitioner was required to hold a professional license as a psychologist to perform his SBAC contracts, and he was expected to perform his services for SBAC within the standards of his profession. His contracts provided for him to render personal services, and he could not hire an assistant or subcontract out his duties to another psychologist. SBAC could not instruct Petitioner how to do his job as a professional psychologist or what decision or recommendation to reach on any child. However, SBAC told him which text to use, and he was initially trained by another school psychologist on the testing instrument required by SBAC. Petitioner also received initial training from SBAC on how to report his assessments, and SBAC provided him with test kits and word processing assistance for each child assessment. SBAC set the format for his reports and provided him with a template therefor. Petitioner was not regularly provided office space by SBAC. However, he was allotted a room on each school's premises for each test, as he traveled from school to school within the county, and he had to do his testing on a day the specified child was in school and that school was open. Each test had to be completed within 30 days of its assignment, per his contracts. Petitioner was free to schedule one or more of his assessments on the dates most efficient for him, provided he met his deadlines. Petitioner's efforts for SBAC during this period might be described as "frequently recurring, but not regular." Petitioner never worked for SBAC more than four consecutive months during the entire time period at issue. During that period, he was on his own for defending his test results. Petitioner was required to carry his own professional liability insurance during the time in question, whereas then and now, SBAC "covered" their employees' liability insurance. Between 1995 and 2001, Petitioner was free to offer his professional services to other clients besides SBAC, but he chose not to do so. There was no profit or loss involved for SBAC or Petitioner in Petitioner's 1995-2001 service. Petitioner had to invest none of his personal funds to do his assessments. In September 2001, Petitioner was hired by SBAC in a half-time, regularly established position with all benefits, including sick leave, personal leave, and FRS membership. Upon that event, his duties were altered to include rendering any psychological assistance required by any SBAC school in which he was working. He is now reimbursed for travel by submitting request forms. He has continued to meet that job description and has filled that regularly established position to date. SBAC requested, and in 2002, received a letter-opinion from the Internal Revenue Service (IRS) interpreting various federal statutes and regulations. That IRS letter-opinion concluded that during the period in question, the Petitioner was an "employee" of SBAC; that various federal forms might require filing or amending by SBAC; and that SBAC and Petitioner might need to pay yet-to-be determined amounts. That IRS opinion is based on facts submitted by SBAC and not necessarily in evidence; is based on federal laws which are not determinative of the Florida retirement issue before this forum, and was not necessarily final. Accordingly, it is not binding in the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order denying Petitioner's request for membership and service credit in the FRS from June 1, 1995, through August 2001. DONE AND ENTERED this 10th day of February, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 2005. COPIES FURNISHED: Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Leonard D. Jackson 2731-B Northwest 104th Court Gainesville, Florida 32606-7174 Alberto Dominguez, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way Tallahassee, Florida 32399-0950 Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560
Findings Of Fact Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980. Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination: Gross neglect of duty. Absence without leave. Incompetence or unwillingness to render satisfactory services. Insubordination or serious breach of discipline. Habitual absences, tardiness or abuse of sick leave. Substantial violations of personnel regulations. Falsifying travel records. Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures. Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials. In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector. Sura is now building inspector for Suwannee County. The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m. work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules. As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations. The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979. Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar. From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County. After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours. Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner. In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often. Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports. From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board. From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than $100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers. Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports. On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
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
