The Issue The issues to be resolved in this proceeding concern whether the Petitioners were the victims of an unlawful employment practice by being denied promotions allegedly on account of their age.
Findings Of Fact Petitioner Little was employed by Monsanto, the Respondent, for 34-1/2 years until his retirement on January 1, 1990. Petitioner Akins is currently employed by Monsanto and commenced employment with that firm on December 13, 1955. The Monsanto Company operates a manufacturing facility in the vicinity of Pensacola, Florida, which converts certain chemical feed stocks to synthetic filaments and/or yarns for use in the textile and fiber industries. Petitioner Akins is currently a "Group 12 Maintenance and Instrument Mechanic", an hourly "manufacturing unit" position. Prior to his retirement, Petitioner Little was a "Group 11 Maintenance and Instrument Mechanic", also an hourly manufacturing unit position. Monsanto's Pensacola facility operates with a manufacturing unit employing hourly wage employees and a Technical Center which employs essentially all salaried employees. The two facilities within the plant are separate and distinct units. In December 1989, Monsanto posted two vacancies for a salaried "Operations Technician" position in the Technical Center. The procedure for a promotion or transfer from an hourly job to a salaried Technical Center job is contained in the Nonexempt Selection Procedure Manual, in evidence as Petitioners' Exhibit 1 and Respondent's Exhibit 1. When a vacancy is announced in a salaried position, interested employees submit a "Request for Salaried Job" and "Employee Placement Profile" to the plant employment office. Thereafter, a screening committee comprised of plant personnel determines whether the self- nominated candidates are qualified for the vacancy. That committee selects the qualified candidates and submits the list of those candidates to the Technical Center personnel superintendent. The department with the vacancy thereafter receives notification from the Technical Center personnel department of the candidates to be interviewed. The employees who nominated themselves for the vacant Operations Technician position were Petitioners Little and Akins, Terry Nettles, W. D. Tidwell, and Joni Troutman. All of the candidates who were self-nominated for that Operations Technician position were interviewed by a committee consisting of three technical employees; Charles Livingston, Lawrence Brantley, and Gary Green. All these individuals on the committee were over the age of 40. The committee interviewed each candidate in accordance with the evaluation criteria set forth in the Nonexempt Job Selection Procedure Manual. Some of the factors which the committee considered were the knowledge and skills of each candidate, applicable experience, past job performance, communication skills, attendance records, human-relation skills, and employee initiative. The committee's objective was to select the most qualified candidate for the position based upon the aforementioned factors. Seniority was considered by the committee, but only as one of many factors. Although seniority is a deciding factor in manufacturing unit professions, seniority is not the deciding factor in the selection process in the Technical Center. In accordance with Monsanto's equal employment opportunity policy, age was not a consideration in the selection process. The committee did not ask any candidate any questions about age, nor did the committee ask the candidate when he or she planned to retire from the company. Following the interview, the committee selected Richard T. Nettles, age 47, as the most qualified candidate for the Operations Technician position. Mr. Nettles had been employed by Monsanto from December 1963 until he was terminated by a reduction in force or layoff in June 1985. After leaving Monsanto, Mr. Nettles worked for the James River Corporation at a similar type of plant in an Operations Technician position, the type of position at issue in this proceeding. His job was very similar to the one he held at Monsanto. Mr. Nettles was subsequently rehired by Monsanto in September 1989 as an hourly Manufacturing Unit Employee. During his previous employment with Monsanto, Mr. Nettles had been in an Operations Technician position in the Technical Center for approximately 18 years. During that time, Mr. Nettles' performance evaluations were consistently above average or excellent. Additionally, Mr. Nettles had recently completed college level courses in computers, science and metallurgy, as well as a chemical operator training course at Pensacola Junior College. Mr. Nettles was the only applicant for the Operations Technician job who had ever performed the Operations Technician job in the past. Mr. Nettles was a probationary employee at the time he applied for the Operations Technician position. Monsanto has no policy which prohibits probationary employees from applying for promotions. Rather, the probationary period is simply a period in which a newly hired employee is being evaluated for purposes of retention and during which no job-related benefits accrue. Further, Mr. Nettles was not barred from applying for the Operations Technician position because he was required to spend any length of time in his prior job. Promotions or transfers from hourly to nonexempt salaried positions in the Technical Center are governed by the Nonexempt Selection Procedure Manual. The Nonexempt Selection Procedure Manual contains no restrictions on upward mobility. Monsanto has never followed a policy of restricting the upward mobility of its employees. Ultimately, Mr. Nettles was evaluated by the committee, the appropriate recommendations were made, he was found to be the most qualified candidate for the job and thus was offered the Operations Technician position, which he accepted. Petitioners Little and Akins were dissatisfied with the committee's selection and thereafter pursued the plant's appeal procedure to appeal the decision to hire Mr. Nettles for that position. In the final step in that appeal procedure, the Petitioners met with plant manager Leon Hebert. Mr. Hebert played no part in the selection of Mr. Nettles. Indeed he has no authority over the Technical Center hiring process at all. In their meeting, Mr. Hebert explained to Petitioners why Mr. Nettles was selected over them for their Operations Technician position, most notably, because of his past experience on the job. Mr. Hebert also explained the differences in the selection procedure in the manufacturing unit as compared to the Technical Center. Mr. Hebert made no comments about the Petitioners ages during this meeting, although Mr. Akins maintains he made a comment to the effect that the job in question was not to be a "swinging gate for retirees." Even if Mr. Hebert made such a comment, it is not probative of discrimination or discriminatory intent on the part of the employer for the reasons discussed in the conclusions of law below involving Mr. Hebert playing no part in the decision concerning who to hire for the position in question. Shortly after the vacancy for the Operations Technician position was filed, a similar vacancy was announced for a Spinneret Technician position in the Technical Center. The candidate selected for that position, Mr. Walter Williams, was the oldest candidate who applied for the job.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the Petitions of Bennie J. Little and Carlton E. Akins in their entirety. DONE and ENTERED this 2nd day of February, 1992, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1992.
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, 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 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of a handicap, in violation of Section 760.10, Florida Statutes (2003).
Findings Of Fact Petitioner has been employed by the City of Kissimmee (the City) from July 17, 1989, to the present as a tele- communicator in the Communications Center of the Police Department. Petitioner and his health care provider advised the City sometime in 1995 that Petitioner is diabetic. Diabetes has impaired Petitioner's work schedule and his willingness to train other employees but has not handicapped Petitioner. The diabetes has not substantially limited Petitioner in a major life activity and has not substantially limited Petitioner from performing a class of jobs or broad range of jobs in various classes. Petitioner is able to care for himself. Petitioner clothes himself, bathes, shaves, brushes his teeth, and combs his hair. Petitioner checks his own blood sugar level regularly during waking hours. Petitioner is able to perform other major life activities. Those activities include walking, driving a vehicle, performing manual tasks, seeing, speaking, hearing, learning, talking, and performing the duties of his occupation. Petitioner has walked for several years approximately 1.25 miles a day. Petitioner drives his own vehicle. Petitioner performs manual tasks. Petitioner operates a computer, though he has some difficulty doing so. Several months ago, Petitioner helped a friend hang an interior door. Petitioner has also helped friends paint walls in recent years. Petitioner has difficulty with his uncorrected vision. With reading glasses, however, Petitioner reads documents most of the time. Petitioner uses a device identified in the record as a CPAP machine to assist him in breathing at night. However, Petitioner does not need to use the machine during the work day to do his job. No health care provider has advised Respondent that Petitioner is disabled. Petitioner’s diabetic specialist is Dr. Jose Mandry. Dr. Mandry did not testify at the hearing. Dr. Mandry informed Respondent that Petitioner has diabetes in a note the City received on or about February 6, 1995, when Respondent attempted to schedule Petitioner for a night shift in the Communications Center. The note from Dr. Mandry did not indicate that Petitioner was handicapped (disabled), or that any accommodations were required in order for Petitioner to continue working. The note requested the City to keep Petitioner on daytime shifts "if possible." The note did not indicate that a daytime schedule was medically necessary. Rather, the note indicated that working day shifts would be “desirable.” On March 23, 1995, Dr. Mandry provided another letter to the City regarding Petitioner's medical condition. The note stated that Petitioner needed to “be accommodated with a normal daytime work schedule.” In July 1995, the City established a regular daytime work schedule for Petitioner. The City never regarded Petitioner as disabled, and the daytime work schedule for Petitioner was not an “ADA Accommodation.” The City employee who granted the request for a daytime schedule was identified in the record as Police Department Commander Johns. Commander Johns did not have authority to provide an ADA accommodation. The authority to provide an ADA accommodation is vested in the city manager and city attorney. They make a final determination of whether the City will provide an ADA accommodation to a particular employee. The city manager and city attorney did not authorize the City to provide any ADA accommodation to Petitioner. The daytime schedule granted to Petitioner is part of Respondent’s general practice and policy of working with impaired employees and employees who have personal needs. The policy attempts to help such employees with their schedules when it is possible to do so without an adverse impact on the City’s ability to provide services. Assuming arguendo that City employees had the authority to provide ADA accommodations to Petitioner in the absence of a formal determination by the city manager and city attorney, Petitioner relies on evidence of interactions between City employees and Petitioner in an attempt to show the City provided Petitioner with ADA accommodations. The relevant evidence involves two time periods. The first is the period from June 4, 1996, until June 5, 2002. The second is the period from June 5, 2002, through March 16, 2006, when Petitioner filed the Charge of Discrimination with the Commission. The record evidence does not support a finding that City employees provided an ADA accommodation to Petitioner. The daytime work schedule authorized in 1995 remained in effect until June 4, 1996, when Dr. Mandry advised the City that Petitioner could work up to 12 hours a day, as long as the 12 hours were daytime hours. Between 1996 and June 5, 2002, the City allowed Petitioner to work overtime when he wanted to, based on Petitioner's self-assessment of his physical condition. Petitioner acknowledged the overtime schedule in a memo that he wrote to Lieutenant Donna Donato on June 5, 2002 (the memo). The memo described Petitioner's plans for his future work schedule. The memo stated that Petitioner was providing notice “that due to self-assessed health issues” Petitioner intended to restrict the amount of his overtime in the future. (emphasis added). In relevant part, the memo advised the City that Petitioner did not intend to “demand the imposition of the restrictions [on his work schedule] as addressed by City Management in June of 1995.” Instead, the memo advised that Petitioner would address his concerns “to the best of [his] abilities by modifying [his] agenda. " Petitioner listed a number of items that may be fairly described as terms or conditions for when and under what circumstances Petitioner would work overtime. Petitioner provided no new medical evidence to support a finding of medical necessity for the terms and conditions that Petitioner prescribed in the memo. Petitioner acknowledged that his concerns were based on “self-assessed health issues” and asserted that “no further documentation should be necessary.” Petitioner did provide a note from Dr. Mandry on June 20, 2002. The note states: The following is a letter as requested by the above-captioned patient [David Dey]. As you know, he suffers from diabetes and also requires insulin for his control. David needs to monitor glucose levels and follow fairly stable meal patterns in order to try to achieve good control of diabetes and avoid complications. It would certainly be to his advantage and much preferable if he could have a stable work shift where he could regulate his meals and his injections properly. (emphasis added) Respondent's Exhibit 18 (Hereinafter R-18, etc.). During the second period of time between June 5, 2002, and the Charge of Discrimination, the City hired a new manager for the Communications Center. In July 2002, the City hired Ms. Jean Moe to manage the Communications Center at the Police Department, and Ms. Moe remains responsible for the supervision and management of Petitioner. Ms. Moe is diabetic. Ms. Moe met with Petitioner on August 6, 2002. The two discussed the issues Petitioner raised in his memo and agreed on a number of items outlined in Ms. Moe’s memo of August 6, 2002 (the Moe memo). The Moe memo provides in relevant part: Beginning today, August 6, 2002 you will only work your twelve (12) hour shift assignment [sic]. You will not volunteer or be assigned any overtime. You are also no longer on the standby schedule. Here you had some concern on the overtime issue, however, as stated by your doctor in writing he is recommending that you do not work any extra hours. Should he feel your health improves and he authorizes your overtime, I will take his note under advisement. That does not mean I will immediately give you overtime but will review his letter and his suggestion. Along with the above issues, your supervisor has been advised under no circumstances will you miss your assigned lunchtime or breaks, these are important to keep you regulated on your medication per your doctor. You also requested you be allowed to lift your feet after working several hours, this will also be under consideration when I receive a note from your doctor stating it R-19. would be another requirement for health reasons. In 2004, the City Police Department considered changes to the normal work schedule for employees in the Communication Center. The City advised employees, including Petitioner, that the City would require employees to rotate work shifts between daytime and night shifts. On July 14, 2004, Petitioner wrote to the City Human Resources Department and requested a “final, permanent accommodation . . .” for daytime work only. Petitioner provided copies of documents from Dr. Mandry, which did not include a medical opinion that Petitioner is disabled. Assistant Human Resources Director Andrea Walton wrote to Dr. Mandry on July 15, 2004, and requested clarification of his letters in order for the City to arrange an appropriate schedule for Petitioner. Ms. Walton specifically inquired about the possibility of Petitioner's working a rotating work schedule and asked Dr. Mandry to clarify Petitioner's ability to work overtime. The City wanted Dr. Mandry to clarify previous statements that Petitioner could work overtime as a parking enforcement specialist but that Petitioner's overtime work as a tele-communicator must be limited. Dr. Mandry responded to Ms. Walton on July 26, 2004. The response explained that Petitioner was able to work in a rotating schedule and for unspecified amounts of overtime if control is optimal and under ideal circumstances. Dr. Mandry was unable at that time to give more specific information to the City. He explained: R-27. With regards to some of the other issues, again, it is very difficult, if not impossible, for me to give you a specific answer, and I would rather you talk to Mr. Dey specifically so that he can let you know what his current limitations are. On August 3, 2004, Ms. Beth Stefek, the director of Human Resources for the City, wrote to Petitioner and explained that the City was willing to work with Petitioner to arrive at an appropriate work schedule. Ms. Stefek did not indicate that the City considered Petitioner to be disabled. Sometime after August 3, 2004, Petitioner experienced further difficulties in controlling his diabetes. On August 10, 2004, Dr. Mandry wrote to the City again. Dr. Mandry told the City: I just saw David today who seems to be having some further difficulties with his health and his control of diabetes. At this time, I have reviewed his records, and I think it would clearly be in his best interest that from now on, he work only on a stable daytime work shift only [sic]. He certainly is not doing well when he tries to do overtime, and traditionally in the past has always become more complicated and his health has deteriorated whenever he tries to do either night shifts or overtime shifts. I have, therefore, at this time, recommended that David should not be allowed to work any overtime and/or nighttime shift. Of course, he needs to have accommodations for meals and monitoring or blood sugar levels as necessary, and he needs to have access to food in case he becomes hypoglycemic. R-29. The difficulties Petitioner experienced in controlling his diabetes were attributable to an increase in stress that Petitioner experienced between June and September 9, 2004. Petitioner's father died in June 2004, and three hurricanes impacted Petitioner’s home from August through September 2004. The hurricanes also increased stress at work due to increased demand on City services. On August 15, 2004, Petitioner advised Ms. Moe that he was intentionally running his blood sugars “higher than desired” at work to “offset and reduce the possibility of a hypoglycemic situation.” Toward the end of August 2004, the City moved Petitioner to the night shift in the Communications Center. Petitioner worked the night shift for a few nights. On September 5, 2004, Petitioner advised Ms. Moe that he was available to be part of a voluntary group of dispatchers to work catastrophic disasters like hurricanes if she decided to form the group. On or about September 9, 2004, while Petitioner was at home, Petitioner fell unconscious and was transported to the hospital for treatment. On September 16, 2004, Dr. Mandry wrote to the City and advised that it was necessary for Petitioner to refrain from working "any overtime shifts and/or nighttime shifts.” On or about September 21, 2004, Petitioner returned to work, and the City placed Petitioner on a daytime work schedule through the remainder of 2004. On January 6, 2005, Ms. Moe advised Petitioner the City needed Petitioner to work the night shift for a few nights. However, the City was able to satisfy its needs without placing Petitioner on the night shift at that time. Petitioner responded to Ms. Moe on January 6, 2005, by stating that he was going to begin a search within the City for another position that would meet his medical needs. On January 20, 2005, Petitioner inquired about an opening within the City for a parking enforcement specialist. On January 25, 2005, Petitioner informed Ms. Moe and others at the City that he would not consider either the parking enforcement position or a community service officer (CSO) position that had become available because both jobs contradicted his "medical requirements.” On April 4, 2005, Ms. Moe sent a memo to Petitioner advising him that the City would place Petitioner on a list identified in the record as the call-back list for emergency back-up in the Communication Center. Ms. Moe specified that the placement of Petitioner on the call-back list was subject to the work conditions previously established in July 1995 by Commander Johns. Ms. Moe advised Petitioner that he would be placed on the call-back list effective April 20, 2005, but only in those weeks when he was scheduled to work 33 hours so that his work week did not exceed 40 hours. She assured Petitioner that absent some extraordinary circumstances, the City would not call Petitioner back to work a night shift and would not schedule Petitioner on a call-back that would result in Petitioner working more than 40 hours in a work week. The memo from Ms. Moe expressly indicated that the City did not consider the Petitioner to be ADA disabled. Ms. Moe told Petitioner to advise her if he thought there was some medical or ADA reason why he could not be on the call-back list. On April 13, 2005, Attorney Edward R. Gay wrote to the City on behalf of Petitioner. Mr. Gay stated that Petitioner believed there was a medical reason that prevented Petitioner from being placed on the call-back list. On April 21, 2005, Attorney Lucille Turner, the City’s special labor counsel, responded to Mr. Gay. Ms. Turner provided Mr. Gay with a copy of the City’s April 4, 2005, memo detailing the call-back restrictions applicable to Petitioner. Ms. Turner repeated that it was not the City's intent to call Petitioner back to work a night shift or to schedule Petitioner to work more than 40 hours a week in the absence of “some extraordinary circumstance." The City, through its counsel, expressly advised Petitioner that the City had never undertaken a formal review of whether Petitioner should be classified as a person protected by the ADA. Instead, the City had informally worked to develop a work schedule for Petitioner that takes into account the information provided by Petitioner's health care providers. The City provided Petitioner with written guidance concerning the procedure for Petitioner to follow to seek a classification from the City as ADA disabled. In relevant part, the letter advises: If [Petitioner] believes that his diabetes (or any other medical condition) requires the City to not include him on the call back list, or to change his work schedule, he should provide the City with further information in support of his request. This should include information about the legal basis for his disability claim . . . [keeping in mind case law cited earlier in the letter indicating diabetes is not a per se disability]. . . . The City will then review the information to determine whether Mr. Dey has a disability as defined by the ADA, and, if so, what accommodations can be reasonably made. R-54, at 3. Petitioner did not ask to be classified as disabled. Rather, Dr. Mandry wrote to the City on June 8, 2005. Dr. Mandry stated that he was writing at the request of Petitioner. In relevant part, Dr. Mandry explained: R-1. Mr. Dey is by no means disabled, and he can clearly work and satisfy the capacities of his job as long as there is some stability involved in it. (emphasis added) In March and August 2005, the City did not select Petitioner to fill respective vacancies for a shift supervisor in the Communication Center and a parking enforcement specialist for the City. Neither action constituted an adverse employment action against Petitioner. The job duties for the vacant shift supervisor in March 2005 required the successful applicant to work night shifts. Petitioner did not apply for the shift supervisor position. When the City posted the notice of vacancy for the shift supervisor, Petitioner requested Ms. Moe to provide Petitioner with information about the job requirements for the position. Ms. Moe responded on March 14, 2005, and advised Petitioner that the position was night shift duty and required the supervisor to train other employees. On March 23, 2005, Petitioner wrote to Ms. Moe indicating he had concluded that multiple aspects of my physical disability are contradictory to the requirements of the supervisory position and that he had elected not to apply for the position. If Petitioner were to have applied for the shift supervisor position, Petitioner was not qualified to perform the essential requirements of the position. Petitioner was unable or unwilling to work the night shift and was unable or unwilling to train subordinate employees. The Communications Center receives 911 calls from the public. Employees receive calls and dispatch them to the police department and fire department 24 hours a day. The work schedule at the Communication Center is divided into two shifts. The day shift begins at 6 a.m. and ends at 6 p.m. The night shift begins at 6 p.m. and ends the following day at 6 a.m. Approximately four to six employees work each 12-hour shift in the Communications Center. However, only one supervisor works each shift. A shift supervisor oversees the duties of all employees at the Communications Center and trains, advises, and assists subordinates. Supervisors are routinely required to work overtime, perform on-call duty, fill in for other shift supervisors, and hold over for indefinite times at the end of a shift to handle ongoing calls. Petitioner claims to suffer from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. Petitioner has previously asked on two separate occasions to be relieved of responsibility to train personnel because it was too stressful for him. In each instance, the City relieved Petitioner of any training responsibilities. In August 2005, Petitioner applied for a job opening as a parking enforcement specialist for the City. The City selected another candidate identified in the record as Ms. Evelyn Thurman. The selection of Ms. Thurman over Petitioner to fill the vacant position of parking enforcement specialist was not an adverse employment action against Petitioner. Ms. Thurman was more qualified by training and experience. When the City selected Ms. Thurman to fill the vacant position of parking enforcement specialist, Ms. Thurman had 24 years of law enforcement and security experience in various agencies. From 1980 until 1996, Ms. Thurman worked as a crime scene investigator for the City of Miami Police Department, where she received numerous commendations, and her performance evaluations rated her as an above average employee. Ms. Thurman also worked at the Sheriff’s Office in Tampa, Florida, and in Security at the Florida Department of the Lottery. Petitioner was unable to meet the essential functions of the job requirements for a parking enforcement specialist. A parking enforcement specialist routinely works alone and is required to work at night. The nature of the job does not permit the type of schedule Petitioner requires. The work schedule of a parking enforcement specialist is not limited to daytime hours that do not exceed 33 to 40 hours a week. A parking enforcement specialist may be required to work evening shifts, long hours, overtime, and holidays. A parking enforcement specialist also must adjust his or her work schedule when needed. A parking enforcement specialist also must be available during emergencies to alleviate calls for service from patrol officers. A parking enforcement specialist works alone. Petitioner suffers from hypoglycemic episodes in which he becomes unresponsive and dysfunctional. The episodes can occur at any time, and Petitioner prefers not be alone on the job if possible. On October 31, 2005, Ms. Moe issued a verbal reprimand to Petitioner for insubordination. The verbal reprimand is not an adverse employment action against Petitioner. The City did not reduce Petitioner's pay and did not change the terms, conditions, or privileges of Petitioner's employment as a result of the reprimand. In preparation for Hurricane Wilma earlier in October 2005, Ms. Moe sent an e-mail to employees in the Communication Center instructing them to come to work the following day with the supplies they would need if events required them to stay at the Communication Center during the hurricane (the Moe email). Petitioner and most of the other employees did not bring their hurricane supplies with them when they reported to work the morning after the Moe email. The City sent Petitioner and the other employees home to fetch their supplies and did not impose a time limit for the task. Petitioner took about 90 minutes to get his supplies and return to work, and the span included the regular lunch hour. The time he took was not an issue of concern and did not provide a basis for the verbal reprimand. Petitioner did not eat lunch during the time he retrieved his supplies. Later in the day, Petitioner requested a meal break, and his supervisor denied the request. Petitioner took a second meal break. On October 23, 2005, Ms. Moe delivered to Petitioner a Notice of Intent to Discipline for insubordination. On October 31, 2005, Ms. Moe issued an Oral Warning to Petitioner. Petitioner grieved the verbal reprimand. During the grievance procedure, the City offered to rescind the warning to resolve the grievance. Petitioner rejected the offer as unsatisfactory unless the City also destroyed the record of the discipline. The City advised Petitioner that it could not destroy the document because the document was a public record.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of July 2007, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 16th day of July 2007.
Findings Of Fact Petitioner is a corporation formed in 1972, whose majority stockholder and president is Ima Jean Strickland, a minority person. The parties have stipulated that Petitioner corporation has in the past and continues to meet all eligibility criteria for MBE certification except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility for recertification in this regard depends on whether or not Petitioner continues to employ "25 or fewer permanent full-time employees." Petitioner engages in the provision of electrical work for commercial and residential construction and in electrical services for business and residential customers. Approximately ten percent of its business is the service work for residential and business customers and residential construction. The remainder of its business consists of new construction. On its recertification application, Petitioner claimed to have only eight permanent full-time employees and at the time of formal hearing, testimony of its witnesses acknowledged only 9-10 permanent full-time employees. Petitioner considers an employee to be "permanent full-time" only when that employee has been with the company for at least five years. Only after an employee has been with Petitioner for five years does Petitioner pay the premiums on that employee's health insurance and give that employee a paid annual one week's vacation. (See Finding of Fact No. 8, infra.) By Petitioner's interpretation, a "permanent employee" is a different category-than a "full-time employee." In Petitioner's parlance, "full-time" refers to how many hours the specific employee works per week; whereas, "permanent" refers to an employee with a long-standing relationship with the Petitioner and who has attained full benefits. As of the date of formal hearing, only ten of Petitioner's employees were vested its profit and pension plan. (See Findings of Fact Nos. 46-47, infra.) Petitioner's hiring goals and employment practices emphasize long-term employment. Such policies benefit Petitioner by the retention of accessible, qualified labor in an industry with consistently high employee turnover. Petitioner's employees normally work 7:30 a.m. to 4:00 p.m. When possible, such employees are allowed to make up the hours when they have been absent without pay and where a job/project has been closed for a hcffliday All of Petitioner's employees are subject to a 90- day probationary period during which they are observed for performance and attendance. Petitioner encourages new employees to attend its apprenticeship program at Lively Vo-Tech. If the employee gets past the 90-day probationary period, his employment continues until he voluntarily terminates the employment relationship or until Petitioner terminates his employment due to his failure to perform adequately. If residential jobs/ construction projects are not awarded to Petitioner, the employee may not be able to work but would be encouraged to return to Petitioner when work again becomes available. All Petitioner's employees are eligible to participate at their own expense in the company-sponsored group health plan after 90 days of employment. When an employee can become eligible to join the group medical insurance plan at his own expense is tied to the probationary period. When the company pays an employee's group health plan premiums is tied to his attaining "permanent" status at the five years' employment stage. DGS duly promulgated Rule 13-8.005(4) (c) F.A.C. in November 1988 in order to establish uniform review of MBE applicants on the "25 or fewer permanent full-time employees" statutory criterion contained in Section 288.703(1) F.S. In applying Rule 13-8.005(4)(c), DGS considers the number of permanent full-time employees that the applicant acknowledges to be permanent and full-time and the number of positions the applicant needs to actually carry out its work. However, DGS does not add these two figures because it wishes to avoid "doublecounting" positions. This agency policy/procedure/ interpretation of the rule has been consistently applied to all MBE applicants since the rule has been in effect and was applied to this Petitioner. In determining the number of employees Petitioner actually needs to carry out its business, DGS considered its annual gross receipts, the number of supervisory positions that are used, and the quantity of work it performs. The rule permits this latitude. In determining the number of permanent full-time employees who are employed by the Petitioner, DGS reviewed its Florida State Unemployment Compensation reports, payroll ledgers, financial statements, listing of projects, and listing of managerial supervisory employees. In practice, DGS considers "permanent" to mean the number of positions that an employer uses on a regular and predictable basis to carry out its work. In practice, DGS personnel make a distinction between "full-time" and "permanent" employees. In evaluating the Petitioner, DGS evaluated two criteria: 1) the continuum or permanency, that is, the regularity and predictability with which a position appears, and 2) the length of service given by that position in a particular quarter--12 to 13 weeks being the cutoff for the count. Only when those two elements are met simultaneously does DGS count a position for purposes of applying Rule 13-8.005(4)(c) F.S. The agency does this as a result of two final orders addressing the number of employees for MBE certification. See, Dees, Inc. and Falcon Mechanical, Inc., supra. Contractors determine the number of people they need to do a project by reviewing the specific plans and specifications for each job/project. In preparing bids, contractors determine how much work is involved in a given job and how long it is going to take to accomplish it. It is DGS' experience that contractors will know how many employees they need to hire for any particular job/project/contract and that the number of employees needed will be represented on the contractors' Florida Employer's Quarterly Wage and Tax Reports (unemployment compensation tax reports) Petitioner's reports, like those of every other applicant, list all employees who worked for the company during each 13-week period, regardless of duration of employment. Bobby Strickland, Petitioner corporation's minority qualifying person's husband, is qualified to determine the number of employees Petitioner needs on each job. He has held a master electrician's license for 18 years and has been involved in the electrical contracting business for 31 years. He currently determines the amount and cost of materials involved and the number of employees required to complete each contract by reviewing the plans. In submitting Petitioner's bids, he has taken into account how many persons he will need to carry out each contract, understanding that some employees on any given job on any given day may not report for work. The rule does not require that DGS make a determination of how many employees are needed to perform each job/project/contract on the basis of such plans, and DGS does not review any plans, does not assess the complexity of any contract, and does not substitute its judgment call for that of the contractor applicant on that basis. Rather, it reviews documents prepared by the contractors indicating actual number of employees used and revenues generated. See also, Finding of Fact 29, infra. The number of employees Petitioner needs on each job depends in part on the quantity of work subcontracted out. Petitioner contracts out certain portions of its construction contracts. All witnesses concur that it is reasonable to count the subcontractors as independent contractors and not as employees. Subcontractors and their employees do not appear on Petitioner's payroll as its own employees and there has been no demonstration that they appear on any of the other forms/ documentation listed in Rule 13-8.005(4)(c) F.A.C. The number of employees and the names of the employees whom Petitioner had on its payroll for any given quarter is reflected in its Florida Employer Quarterly Wage and Tax Reports (unemployment compensation reports). During 1986, 1987, 1988 and the first three quarters of 1989, Petitioner reported the following number of employees on its Florida Employer's Quarterly Wage and Tax Reports: MONTH QUARTER 1986 1987 1988 1989 January 39 44 51 6 February 39 32 55 64 March 1st 40 39 55 53 April 39 62 56 51 May 43 67 57 58 June 2nd 46 65 57 49 July 46 67 61 46 August 46 57 73 40 September 3rd 43 54 66 44 October 45 53 57 November 49 50 60 December 4th 45 46 60 The total number of employees on Petitioner's payroll fluctuated from a high of 73 to a low of 32 between the quarters ending 3/31/86 and 9/30/89. In the last three years, Petitioner employed a total of 273 different persons. Two hundred thirty-three of these 273 persons worked less than one year. Stated differently, in that period, at least 40 persons were employed by Petitioner for a duration of one or more years. On October 9, 1989, Petitioner employed 36 people, which it admittedly needed to keep its business going in terms of the construction projects it had at the time. By the date of the formal hearing, Petitioner had increased the number of its employees to 38; 22 field workers were spread among five construction jobs, plus two service staff employees, two warehouse staff employees, and three office/clerical staff employees. The balance may be supervisory staff. Of the 38 employees paid by Petitioner's October 24, 1989 payroll, nine had been employed more than three consecutive years. At no time between the quarter ending 3/31/86 and the quarter ending 9/30/89 did Petitioner employ fewer than 26 employees who were working from 12-13 weeks in any quarter. The least number of employees working full-time for a minimum of 12 weeks in any particular quarter for the quarters ending 3/31/86 through 9/30/89 was 26, and the largest number was 49. Twenty-six employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/87 also appeared on the unemployment tax report for the quarter ending 12/31/87. Thirty employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/88 also appeared on the unemployment tax report for the quarter ending 12/31/88. Thirty employees were listed on Petitioner's payroll for the quarter ending 3/31/89 who were also listed on the payroll as of 10/31/89. In determining the number of employees that an MBE applicant needs to carry out its business, DGS also considers the number of projects the applicant enters into and the quantity of work performed because it is DGS' experience in investigating businesses in the construction industry that the greater the number of contracts an applicant has, the greater its revenues and the greater the number of employees an applicant will need to carry out its business. The rule permits this latitude. Bobby Strickland conceded that the amount of work and the number of employees the Petitioner needs fluctuates with the number of contracts it has and the amount of work required under those contracts at any given time. According to J. Kinson Cook, however, gross revenue is not determinative of the number of employees required to complete a contract. J. Kinson Cook, Inc., a general construction firm, has 12 "permanent full-time employees," as Mr. Cook personally defines that term, and its contracts total an average of $20 million per year. However, J. Kinson Cook, Inc. is not a certified MBE, and Mr. Cook's opinion as an expert in the construction field was not rendered on the basis and criteria established by Rule 13-8.005(4) (c) F.A.C. In 1986, Petitioner had 32 commercial construction contracts totalling $4,760,539. In 1987, Petitioner had 10 commercial construction contracts totalling $814,593.90. In 1988 Petitioner had 16 commercial construction contracts totalling $2,143,412. As of the date of formal hearing in 1989, Petitioner had 13 commercial construction contracts as follows: Dittmand Chemistry $ 8,295 Sugar Creek Theatres 150,000 Village Green 12,961 Sewage Pumping Stations 155,986 Koger-Osborne Building 182,000 Wal-Mart 187,000 Mayo Building 29,000 FSU-Sports Complex 925,000 Kentucky Fried Chicken n/a Hartsfield Elementary School 190,000 Victoria's Secret 13,700 John Wurst n/a $1,853,942 Some of the contracts listed for 1986-1989 include projects that have extended (will extend) into later years. Beyond construction income which has been reviewed supra., Petitioner also performs residential and commercial service work, the income from which was $354,076.56 in 1986; $268,718.42 in 1987; and $375,157.94 in 1988. Petitioner projects its income produced from service work in 1989 to be $200,000. Petitioner's residential service work includes the electrical work on the construction of new homes. On October 9, 1989 Petitioner had eight residential construction projects. Petitioner does repeat business in its commercial service work and in the construction of new homes (residential service work). Petitioner's gross receipts were $4,193,064 in the fiscal year ending July 1, 1989 and $2,150,289 in the fiscal year ending July 1, 1988. Petitioner's gross revenues for the fiscal year ending in July 1987 were $2,156,722. Petitioner projects its gross revenues for the fiscal year ending July 1990 will be between 2.5 and 3.0 million. Petitioner has nine supervisory employees: six construction foremen, one warehouse supervisor, one office supervisor (Ima Jean Strickland), and one field supervisor (Bobby Strickland). Petitioner conceded that each supervisor must have at least one subordinate to supervise, but it is also clear that the number of persons supervised fluctuates with the skill of the workers and the complexity of the jobs in progress. As of the date of hearing, foreman Ronald Fraser was supervising nine employees on the Wal-Mart project. At the time of his deposition, October 12, 1989, he was supervising eight employees on that project. He supervised approximately twenty-five employees on the Department of Education Building and anticipated that he would supervise 10 employees on the Hartsfield School project. As of the date of hearing, foreman Kenneth Cushing was supervising four employees on the Koger Center project. Ima Jean Strickland regularly supervises the two office employees. At the time of his October 12, 1989 deposition, foreman Charlie James was supervising three employees, which is the average number of employees he supervises. As of she date of his October 12, 1989 deposition, foreman Donald Metcalf was supervising five employees redoing the fire alarms at Florida State University. On an average, Mr. Metcalf supervises 4-5 employees. Foreman John Garrett Hemanes normally supervises one employee, on average. As of the date of formal hearing, Bobby Strickland was responsible for supervising all of the field employees. His is a higher level of supervision than that of the respective construction foremen and their chain of command often passes through him. Therefore, his position should be counted only once. Thomas J. Strickland, a/k/a Jeffrey Strickland, supervises one employee. He is the warehouse supervisor. None of Petitioner's employees are eligible for paid sick leave; however, all employees may take unpaid sick leave with Bobby Strickland's approval. Petitioner's employees are eligible to participate in an employer-sponsored profit sharing plan after six months of employment. Vesting in the pension plan is determined by federal regulation, not company policy. After an employee has been with the company for 12 months of continuous service, the employee can benefit from profit sharing in the form of a cash bonus. Additionally, an employee who has not had an accident during a 12-month period is entitled to a safety bonus. During the years 1986-1989, Petitioner's contracts have primarily been in Leon County and the surrounding area, and therefore, it has been able to circulate staff from project to project for its own advantage. By so doing, Petitioner encourages good employees to stay with Petitioner longer. In order to keep an ample amount of work going, Petitioner continuously reviews potential jobs and prepares and submits bids. On an average, Petitioner bids 3-4 contracts a month. Petitioner's decision to bid is affected by the amount of work in progress and whether or not it has adequate manpower. If it has more work than it can handle, Petitioner does not bid up more.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of General Services enter a final order which: Dismisses that portion of the Petition addressing the constitutionality of the statute, Finds Petitioner to employ more than 25 permanent full-time employees, and Denies Petitioner recertification as a Minority Business Enterprise under Chapter 288 F.S. DONE and ENTERED this 9 of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4402 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 4, 7-10 and 12-14 are accepted. 2, 3, 5-6 and 11-17 are accepted as modified to conform to record as a whole. is rejected as a FOF and as a Conclusion of Law (COL) and as contrary to the record as a whole. and 18 are rejected as immaterial since this is a de novo proceeding. See the COL. Moreover, presentation of Summary 15 in the de novo proceeding is sufficient, in light of the Petitioner's burden of proof. 19 is rejected as immaterial and as legal argument in light of the duly promulgated rule. 20-23 are rejected as stated as immaterial since this is a de novo proceeding. See the COL. Some of this material has been incorporated in substance into the Recommended Order so as to demonstrate that application of the rule relies upon applicant- generated information after the applicant has assessed its own needs, and that such needs are not "second-guessed" by whoever applies the rule. Respondent's PFOF: 1-3, 5, 11-18, 20-22, 26-36, 40-44, 46-56, 59, 62, and 64-66 are accepted. 4, 6-9, 19, 24-25, 37, 39, 45, 57-58 and 60-61 are accepted as modified to clarify the concept, and to eliminate unnecessary, subordinate or cumulative material and mere description of testimony or exhibits. 10 is rejected as unnecessary. 23 and 63 are accepted as modified to eliminate legal argumentation and to reconcile the testimony and evidence as a whole. 38 is rejected as unnecessary and unduly speculative. COPIES FURNISHED: E. Thomas Brushwood, Esquire Brushwood and Gruver, P.A. Post Office Box 10117 Tallahassee, Florida 32302-2117 Susan B. Kirkland, General Counsel Alma Gonzalez-Neimeiser, Staff Attorney Department of General Services 2737 Centerview Drive-Suite 309 Tallahassee, Florida 32399-0950 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31, 1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606 The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner: The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing. The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted. Respondent: (NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.) 23 and 24. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: E. D. Wiggins 4843 Campenella Drive Jacksonville, Florida 32209 Kathryn M. Lancaster, Esquire 501 First Avenue North Suite 626 St. Petersburg, Florida 33701 Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact At all times material hereto, the Dade County School Board (Petitioner) was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Dade County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Edward E. Smith (Respondent) has a Bachelor's of Science in Accounting and Management Science and a Master's degree in International Business and Accounting. Respondent is a member of the Institute of Administrative Accountants, which membership requires testing, and as a member, he is authorized to practice accounting in the British Commonwealth as a fellow of the Institute of Administrative Accounting which is the equivalent to the Certified Public Accountant (CPA) in the United States. At all times material hereto, Respondent was employed by Petitioner as an accountant, holding the positions of Coordinator I or II, Operating Budgets, which are non-instructional administrative positions and assigned to the Office of Facilities Management. He was employed under an annual contract (twelve month employee) and has been continuously employed by the School Board for approximately 11 years. As an administrator, Respondent's minimum work day was from 7:00 A. M. to 3:30 P.M. For administrators, no standard workday exists in the form of a rule with specific starting or departing time. Also, Respondent took the benefit of a 15 minute break in the morning and one in the afternoon provided for Petitoner's employees. There is no rule prohibiting administrators from using the breaks. Respondent's salary remained the same regardless of the hours worked. If he performed his employment duties before 7:00 A.M. or beyond 3:30 P.M., Respondent received the same compensation. Respondent's lunch time was one (1) hour and could be taken anytime between the hours of 11:30 A.M. and 1:30 P.M. He could request an extension of his lunch hour but never made such a request. INVOLVEMENT WITH TRI-CITY COMMUNITY ASSOCIATION,INC. In 1989, Respondent became a member of the Board of Directors for Tri- City Community Association, Inc. (Tri-City). Sometime later, he became its secretary, then treasurer, and in 1991, Respondent became Tri-City's president. As president, he was also chairperson of the board. In or around February 1994, Respondent's association with Tri-City ended. Respondent did not inform Petitioner of his involvement with Tri-City. There was no need or requirement for him to do so. Tri-City is a nonprofit organization which provides services for low income neighborhoods, primarily minority neighborhoods, by repairing the homes of targeted individuals in the neighborhoods, and which provides training for disadvantaged youths by having the youths perform the repairs and providing the youths with marketable skills. Most of Tri-City's funding is from the City of Miami and Dade County, and in the past, some funding has come from Petitioner. Members of Tri-City's board of directors are volunteers and are not compensated for their service or participation. Contrastly, the staff of Tri- City consists of paid employees. Most of the board members are employed. In order to accommodate the employed board members' work schedules, board and committee meetings, including executive committee, full board, program committee, fund-raising committee, and personnel committee, were generally scheduled for an hour, but may exceed an hour, during the lunch period between 11:00 A.M. and 2:00 P.M. The meetings usually began between 11:30 A.M. and 12 Noon. As president of Tri-City's board of directors, Respondent's responsibility, among other things, was to attend full board meetings, which were held every quarter, and to attend executive board meetings, which were held once a month. Also, as president, he was an ex-officio member of all committees. Respondent, as president, changed the format of the executive board meetings so that each meeting could be completed in approximately one (1) hour. He also changed the meeting times so that the meetings would accommodate his lunch time and other working members. If a meeting was not completed within an hour, Respondent would leave early so that he could return to work in a timely fashion. Board members could vote by proxy. On occasion when Respondent was not present, another board member would cast proxy votes for Respondent. The agenda for Tri-City board and committee meetings is not reliable for determining the actual starting time of the meetings. The agenda indicates the scheduled time only. The minutes of Tri-City board and committee meetings are not reliable as to the starting and ending time of meetings or when a member arrived or departed. The meetings were tape recorded but were later transcribed anywhere from days to weeks after the meetings by Tri-City's secretary, a paid employee, who was not present at the meetings. The secretary used the starting time on the agenda as the starting time in the minutes. No ending time was listed in the minutes. More times than not, the minutes contained omissions and inaccuracies. Members who voted by proxy or who contacted a committee by telephone to vote were listed as being present. If Respondent departed a meeting before it concluded, the minutes would not reflect his departure. Tri-City's monthly executive committee meetings and quarterly full board meetings were held in a conference room in the building where Tri-City's office is located. Board members accessed the conference room by elevator without going through, to, or near Tri-City's office. Furthermore, the members were not required to sign-in at the Tri-City office. Consequently, the board members could attend the meetings without Tri-City staff knowing it. Respondent's place of employment was located approximately five (5) minutes, and no more than ten (10) minutes, from Tri-City's office. CONDUCTING TRI-CITY BUSINESS ON PETITIONER'S TIME Respondent attended Tri-City board and committee meetings during his lunch time. Tri-City's executive director generally attends full board executive committee meetings; however, the executive director may be requested to leave during an executive board meeting by the members. No executive director had a reliable or credible recollection of the span of time Respondent attended the meetings, i.e., when Respondent arrived and when he departed. However, on two different occasions at Tri-City committee meetings, Respondent was present beyond the scheduled block of time in which he has to take his one (1) hour lunch which ends at 1:30 P. M. On October 29, 1992 at a full board meeting, Respondent was in attendance at the meeting beyond 1:45 P. M. On August 26, 1993 at a call executive committee meeting, Respondent was in attendence at the meeting until around 1:30 P.M. or 1:45 P.M. when the meeting adjourned. But no evidence was presented to show when Respondent arrived or when he departed either of the two meetings. Both days were a work day for which Respondent was paid by Petitioner. At times, Respondent would visit Tri-City work sites. These visits were made during Respondent's lunch hour. On or about May 11, 1993, Respondent left work around 2:30 P. M., before the end of his work day, to attend a court proceeding involving Tri-City. Respondent worked through his lunch hour that day in anticipation of attending the court proceeding. This day was a work day for which Respondent was paid by Petitioner. On one occasion, Respondent visited the Tri-City office to investigate a personnel matter. On August 16, 1993, Respondent was at Tri-City's office for at least 30 minutes from approximately 8:30 A.M. to approximately 9:00 A.M. This day was also a work day for Respondent for which he was paid by Petitioner. USING PETITIONER'S EQUIPMENT, PERSONNEL, AND OFFICE From around February 1990 to around February 1993, Respondent supervised an employee who on several occasions performed tasks for Respondent involving or associated with Tri-City. Respondent requested the employee to perform the tasks and did not require her to do so as her supervisor or promise her anything in return. These tasks were performed on Petitioner's time using Petitioner's equipment. Over this period of time, the employee typed approximately 20 to 30 documents with each taking no more than five (5) to ten (10) minutes and copied the documents that were typed. If Respondent provided envelopes, which were not Petitioner's envelopes, the employee stuffed the envelopes with the documents. Also, the employee sent from 20 to 30 faxes related to or associated with Tri-city for Respondent over this period of time. The tasks that the employee performed for Respondent involving Tri- City did not interfere with her duties or responsibilities that she was required to perform for Petitioner, her employer. The employee performed the tasks for Respondent only if she had the time to do them. When this employee began her employment with Petitioner, which was under Respondent's supervision, Respondent was doing things associated with Tri- City at his place of employment. It was never indicated that Respondent should not engage in the activities, so the employee believed Respondent's activities associated with Tri-City to be normal practice in the office. It was common practice for Petitioner's employees who worked with Respondent to use Petitioner's equipment for their own personal use. Computers were used for personal typing. The xerox machine was used for personal copying. The fax machine was used to fax personal items. No one was disciplined for using the equipment for personal reasons. Respondent, himself, faxed items to Tri-City or on behalf of Tri-City from Petitioner's fax machine in his office. Also, he received approximately 20 to 30 faxes at his workplace from Tri-City or associated with Tri-City. During the period from around February 1990 to around February 1993, Respondent used Petitioner's computer for Tri-City business. Respondent had a personal computer, provided by Petitioner, in his office. Respondent neither shared his office nor his computer with anyone else in his workplace. There is no evidence that such personal use of Petitioner's equipment at the request of Respondent or by Respondent caused any negative impact upon the equipment. From around February 1990 to around February 1993, individuals associated with Tri-City visited Respondent at his place of employment. Tri- City employees would visit Respondent once or twice monthly bringing Tri-City employee checks or various documents for Respondent to sign. These visits would involve a span of time anywhere from a few minutes to 40 minutes, but mostly a few minutes. Respondent and one member of Tri-City's board were also friends. The board member would visit Respondent once or twice monthly. Also, Respondent would at times go to Tri-City to sign the employee checks. Such visits to Tri-City would occur during Respondent's scheduled block of time for lunch. Most of the time Respondent would not eat lunch but would work through lunch. It was generally accepted that Petitioner's employees would receive personal visitors at their workplace. No rule or policy existed prohibiting personal visitors. From around February 1990 to around February 1993, Respondent received numerous telephone calls which were Tri-City related (either from Tri-City individuals or regarding Tri-City business). From around February 1990 until Winter 1991, three-quarters of Respondent's telephone calls received in a day were Tri-City related. There is no credible evidence as to the length of time of the telephone calls. After winter 1991, there is no credible evidence to show the number of telephone calls Respondent received which were Tri-City related, since his calls went directly to his office instead of through another person first. From 1992 to around February 1993, the board member who was also Respondent's friend called Respondent two or three times a week. Respondent also called Tri-City from his office telephone. There is no credible evidence as to the frequency or length of time of the telephone calls. Sometime in 1993, Respondent requested Tri-City staff to contact him through his beeper, instead of calling him at his office. Respondent's beeper was issued to him by Petitioner. There is no evidence to indicate the number of times Respondent was contacted by Tri-City staff through his beeper. There was an expectation in Respondent's workplace that use of Petitioner's telephone for personal, non-Petitioner related matters was acceptable, as long as the use was not excessive. There is no credible evidence that Respondent's personal use, either by himself or at his request, of Petitioner's xerox machine and fax machine far exceeded the personal use of the other employees in Respondent's workplace to the point of being excessive. Nor is there credible evidence that Respondent's personal telephone calls were excessive as compared to the employees. During the course of one day in either Winter 1991 or Spring 1992, Respondent conducted interviews for a position with Tri-City in his office at his workplace. This day was a work day for Respondent for which he was paid by Petitioner. In addition, the week prior to this day Respondent's workplace received several telephone calls regarding the position and the interview process, which reduced the amount of time the employees at Respondent's workplace expended on Petitioner's business. One day in the month of either March, or April, or May 1992 Respondent had a meeting in his office with individuals associated with Tri-City. The meeting began at around 5:00 P.M. and lasted a few minutes. Even though the meeting began after Respondent's work day ended at 3:30 P. M., individuals associated with Tri-City began arriving before 1:00 P. M., and went directly to Respondent's office. This day was a work day for Respondent for which he was paid by Petitioner. At some point Respondent instructed Tri-City staff to transfer information from the hard drive of their computer to diskettes. He would access the information on the diskette using his personal computer in his office. Also, Respondent stored the material from the diskette on his office computer. There is no evidence that such use and storing by Respondent affected the performance of Respondent's computer or impaired the ability of the computer to save and store Petitioner's data. RESPONDENT'S OFFICE SITUATION Respondent worked in Petitioner's central maintenance compound (compound) which contained several buildings, including the building where Respondent's office was located. The compound covered several blocks. Respondent was able to perform some of his work prior to 7:00 A.M. and after 3:30 P.M. He had access to data and a personal computer provided by Petitioner. Additionally, Respondent had access to a lap top computer, issued by Petitioner, which he used at home. In 1991, Maria Davis became Executive Director of Maintenance and Capital Projects and became Respondent's supervisor. In 1993, Ms. Davis became an Assistant Superintendent for Petitioner and was in charge of the Office of Facilities and Operations. In 1991, a sign-in and sign-out procedure was instituted for administrators. Sign-in and sign-out sheets were provided in the areas under Ms. Davis' supervision. When signing-out, there was no requirement to indicate on the sign-out sheet where one was going and no one did. Also, there was no requirement to verbally inform someone where one was going. At least from in or around February 1990, Respondent would be in his individual office working before the beginning of a work day at 7:00 A. M. and after the end of a work day at 3:30 P.M. After Respondent and other employees in his office moved into a new building, called the "White House," within the compound in the Winter 1991, Respondent would be in his office about 50 percent of the time by 7:00 A.M. and almost always after 3:30 P.M. If he left the office before the end of the work day and had to go to another location on Petitioner related business, Respondent would sign-out using the time that he expected to leave the other location. As part of his duties and responsibilities, Respondent was required to visit Petitioner's satellite offices. When Respondent was in the White House, he would open the door to his individual office when he arrived in the mornings and close his office door at the end of the day when he left. Although on some mornings he was not physically in his office at the beginning of his work day, which began at 7:00 A.M., Respondent had already been in his office on those mornings because his office door was open. Respondent was issued a beeper by Petitioner. When he was away from the compound, his office could reach him through his beeper. Most of the time, Respondent's office did not know his whereabouts when he left the office, so they either paged him or beeped him. When his office paged or beeped him, Respondent promptly responded. At times, from around 1991 to around February 1993, when Respondent was not in his office and his supervisor, Maria Davis, or later his immediate supervisor Berny Blanco, called asking for him, Respondent's office beeped him, entering the caller's telephone number in the message. Neither Ms. Davis nor Mr. Blanco would call back, indicating that Respondent had contacted them. Only on one or two occasions did Ms. Davis or Mr. Blanco call a second time asking for Respondent. For the 1991-92 school year, after Ms. Davis became Respondent's supervisor, his performance evaluation declined from "exceeding performance expectations" to "meeting performance expectations." Respondent's decline was based upon Ms. Davis determining, among other things, that Respondent was not producing his work in a timely fashion, that at times he could not be located, and that he was tardy in the mornings. At or around the same time that Respondent became involved with Tri- City, he had marital problems. Respondent became less focused on his office work and responsibilities. There is no evidence to show that Respondent's involvement with Tri-City was the cause of him being less focused. Respondent's performance is not an issue in this proceeding. By memorandum dated May 23, 1991 to Respondent and three other administrators, Ms. Davis expressed her concern about them not being in their respective offices at the beginning of the work day (7:00 A. M.) and advised them to adhere to the working hours. Further, Ms. Davis advised them to notify either her or one of the other supervisors if they had to leave early or if they had to leave the compound for meetings or personal business and to wear their beepers during work hours. By memorandum dated August 29, 1991, Ms. Davis notified all employees under her supervision regarding, among other things, the work day consisting of eight hours, which included two 15 minute break periods, and not engaging in unauthorized activities, including shortening their work day by returning to the compound without good reason. In late 1991 or early 1992, Ms. Davis transferred supervision of Respondent to Berny Blanco. Ms. Davis did this because she felt that she was devoting too much time to the budget area and that Respondent needed closer monitoring. By memorandum dated February 7, 1992, Ms. Davis notified Respondent regarding, among other things, the minimum work hours of 7:00 A.M. to 3:30 P.M., noting that she had been unable to reach him on occasion near the end of the work day and that he was arriving late for work. Further, Ms. Davis advised Respondent, among other things, to notify her office when he arrived late or departed early and when he needed to visit another work site during the work day. On or about July 20, 1993, Respondent was given a prescription for improving his performance which was considered by Mr. Blanco and Ms. Davis to be below expectations. Of importance, in the prescription Respondent was noted as having failed to regularly inform his supervisor or staff of his whereabouts and having failed to be regularly available or responsive to questions regarding office functions. The prescription did not indicate any problem with Respondent's work attendance, lunch hour or personal use of Petitioner's equipment. On or about July 19, 1993, Mr. Blanco, while at the fax machine in Respondent's workplace, intercepted a fax from Tri-City to Respondent. Mr. Blanco did not mention or give the fax to Respondent. At no time, after intercepting the fax, did Mr. Blanco discuss Tri- City with Respondent. Nor did Mr. Blanco discuss with Respondent the use of Petitioner's equipment to receive non-Petitioner related items. On or about August 16, 1993, a former employee of Tri-City, Wanda Armstrong, telephoned Mr. Blanco to inform him of Respondent's volunteer, non- Petitioner related activities with Tri-City. Mr. Blanco reported the telephone call to Ms. Davis. Ms. Davis contacted the director of the Dade County School Police (School Police) for her region and requested a personnel investigation regarding Respondent's activities with Tri-City. Also, she requested the director to be personally involved in the investigation. Sometime between August 16, 1993 and September 3, 1993, Mr. Blanco accessed Respondent's office personal computer and obtained Tri-City documents from Respondent's hard drive. Mr. Blanco transferred the documents from Respondent's hard drive to a portable computer and printed the documents. 1/ Mr. Blanco performed this act without Respondent's knowledge and after Respondent had left his office for the day. Also, Mr. Blanco performed this act at the request of the School Police. On or about September 3, 1993, Jolita Dorsett telephoned Mr. Blanco complaining about Respondent engaging in Tri-City business during the time Respondent was supposed to be performing his duties and responsibilities as Petitioner's employee. Ms. Dorsett was the former executive director of Tri- City and had been terminated by Respondent pursuant to a directive from the Tri- City board of directors. Mr. Blanco reported the telephone call to Ms. Davis who directed him to contact the School Police. Mr. Blanco complied with the directive. Regarding the handling of complaints against salaried administrators, Mr. Blanco, as Respondent's supervisor, was obligated to follow the procedures in the Manual of Administrative Personnel Procedures (MAPP). The provisions of MAPP contemplate that a complaint would be the preliminary step prior to an investigation of an administrator and, in turn, require that all complaints against such an employee, as well as the identity of the complaintant, be made known to the employee. Mr. Blanco did not make a determination as to whether either Ms. Armstrong's or Ms. Dorsett's telephone calls were complaints. Neither did Mr. Blanco meet with Respondent, in accordance with MAPP procedures, to discuss the telephone calls. Once an investigation, including a personnel investigation, is initiated by the School Police, it is the School Police which determines and directs the scope and conduct of the investigation. The School Police's personnel investigation of Respondent did not follow the usual procedures or process even though it was not an unusual case. The case was assigned to an investigator without the usual paperwork preceding an assignment; the executive director/chief of the School Police participated directly in the investigation which is not the norm; the investigator reported directly to the chief instead of reporting to his (investigator's) coordinating supervisor; the chain of command was by-passed in the investigation in that the director of the School Police was by-passed in the reporting process which is not the normal procedure. Further, at the onset of the investigation, Ms. Davis, Mr. Blanco, and the chief, coordinating supervisor and investigator of the School Police met with Ms. Dorsett on or about September 13, 1993. At the meeting, Ms. Dorsett provided copies of minutes of Tri-City meetings and discussed the minutes with them. At no time during the meeting was Ms. Dorsett questioned by members of the School Police who were in attendance. It is unusual for the chief of the School Police to meet at the beginning of an investigation with the administrators and a potential witness. Additionally, it is unusual for an investigator to not question a witness and for the supervisor of an employee being investigated to be present at such a meeting. On or about September 28, 1993 the chief of the School Police and Ms. Davis met with Respondent and Respondent's representative from the Dade County School Administrator Association (representative) of which Respondent is a member. Prior to this meeting, Respondent had not been made aware that allegations had been made against him or the nature of the allegations or that there was an investigation, or of the identity of his accusers. Usually, the School Police's investigator makes contact with the person being investigated (subject) and reveals to the subject the aforementioned. At this meeting, these things were not revealed to Respondent. On the advice of Respondent's representative, after the chief of the School's Police refused to make the revelations, Respondent did not say anything. On or about September 24, 1993, Respondent had received written communication regarding the meeting, which notified him that he was being investigated concerning his relationship with Tri-City. The written communication did not specify the allegations or identify the accusers. The investigation was completed relying solely on statements from Ms. Dorsett, Ms. Hicks (Tri-City employee and present executive director), Ms. Davis and Mr. Blanco, the copies of the Tri-City minutes provided by Ms. Dorsett, copies of Respondent's time sheets which were compared to the dates and times of Tri-City meetings contained in the minutes, and a copy of the items from Respondent's office personal computer obtained by Mr. Blanco. 2/ The investigation was reduced to a written report, with attachments. Usually, an investigative report is reviewed and signed by at least three individuals in the School Police: the investigating officer, the investigating officer's immediate supervisor who is usually the coordinating officer, and the division director. However, this procedure was not followed with Respondent's investigation. Only one person reviewed the report and signed for all the others and that person was the acting coordinator; not even the investigator reviewed the report after it was prepared. In late October 1993, Respondent and his representative received a copy of the investigative report which failed to have any attachments even though the report referred to a list of attachments. Not until January 1994, did Petitioner provide the attachments. After the meeting held on September 28, 1993, and on that same day, Respondent was "re-deployed" (moved) from his office to another location. The locks on his former office were changed. In the haste of the move, Respondent left some personal items in his office. At the time of the formal hearing, Respondent had not been returned his personal items. Included in his personal items was non-Petitioner related personal mail, which was clearly addressed to Respondent. Some of this personal mail was opened and reviewed by Respondent's supervisor. At his new location, Respondent's access to information, via his computer, that he needed to perform his duties and responsibilities was terminated. Mr. Blanco ceased being Respondent's supervisor and Respondent was placed under the supervision of someone else. At Respondent's new location, he was also given new and different duties and responsibilities even though his job description did not change. Respondent's prescription was not altered to coincide with his new duties and responsibilities. Also, at his new location, Respondent received Tri-City visitors. There is no credible evidence that these visits did not occur during Respondent's lunch hour. SUSPENSION/DISMISSAL On March 23, 1994, Petitioner suspended Respondent and initiated dismissal proceedings against him. Petitioner's action was based upon the recommendation of Dr. Patrick Gray, which was based upon the School Police's investigative report, with attachments, his (Dr. Gray's) own investigation which included discussions with Ms. Davis and Mr. Blanco, and Respondent's work performance. Respondent's name was not included on a list of individuals on whom Petitioner voted for reappointment for the 1994-95 school year. As a result, Respondent's contract was not renewed after June 30, 1994, when his then current contract expired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order revoking the suspension and reinstating Edward E. Smith under such terms and conditions as are appropriate. DONE AND ENTERED this 21st day of August, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 1995.
Findings Of Fact Petitioner was employed by Respondent at the commencement of the 1975- 1976 school year as an industrial arts teacher at the B. F. James Adult Education Center. During the first days of the 1975-1976 school year, Petitioner was employed as a substitute teacher. On November 17, 1975, however, Petitioner entered into a written agreement with Respondent entitled "Contract for Part-Time Instruction." Pursuant to the terms of the contract, Petitioner was to be paid an hourly salary of $8.82 per hour. The contract further provided, in pertinent part, that: The number of hours of instruction will be based upon the courses offered for which the instructor is qualified, and assignment to teach such courses will be made by the county superintendent of schools through his designated adminis- trative representative. This appointment is contingent upon minimum enrollment and attendance in the course assigned. This contract may be cancelled at any time by either party upon ten days written notice. . . (Emphasis added.) During the 1975-1976 school year, Petitioner worked at least seven and one-half hours per day, five days per week, 12 months per year. Petitioner worked a regular day schedule with additional but irregular work performed at night. Like full-time teachers on an annual contract, Petitioner received his pay on a monthly basis. However, as indicated above Petitioner was paid an hourly salary, whereas teachers on either annual or continuing contracts were paid according to a salary schedule negotiated between Respondent and the Broward County Classroom Teachers Association, Inc. In addition, as earlier indicated, Petitioner's work hours were on an "as needed" basis, depending upon student enrollment, the nature of courses offered, and funding for particular programs of instruction. Full-time teachers on annual or continuing contracts were employed on the basis of a school year of not less than 196 days. During the course of the 1975-76 school year, Petitioner inquired of his immediate supervisor concerning the possibility of receiving an annual contract. The supervisor, in fact, recommended Petitioner for such a contract, but that recommendation was not acted upon favorably by Respondent. The record in this cause reflects only that there was "some problem" with Petitioner's personnel file which led to Respondent's decision not to offer an annual contract to him during the 1975-1976 school year. Respondent was again recommended, in a subsequent school year, by his immediate supervisor for an annual contract for 70 percent of a full school day, but again that recommendation was not acted upon favorably. Petitioner continued employment with Respondent during the 1976-1977, 1977-1978, and 1978-1979 school years. During each of those years, Petitioner continued to work at least seven and one-half hours per day, five days per week, 12 months per year. After the initial contract between Petitioner and Respondent for the 1975-1976 school year, however, Petitioner never received another written contract. He did, however, inquire on several occasions concerning his right to receive an annual contract. Respondent, however, never offered Petitioner annual contract status. Respondent classifies the contractual status of its instructional employees as either "annual," "continuing," or "part-time." Part-time employees, unlike annual contract and continuing contract employees, have not been given written employment contracts for at least the last five years. Recommendations to employ part-time instructional employees originate with Respondent's school principals, who transmit their recommendations to the Superintendent. The Superintendent, in turn, recommends the employment of part- time employees to the School Board. Part-time employees are recommended by the Superintendent and voted upon by the Board en masse in June of each year for employment during the following school year. As many as 1,200 to 1,500 part- time employees may be recommended for employment at one time. Once the School Board approves the Superintendent's recommendations concerning the hiring of part-time employees, those persons approved are thereafter available to principals to be hired at any time during the ensuing school year. Respondent places no limits on the amount of time part-time employees may work, notwithstanding their part-time designation, so long as students, courses, and course funding are available. When a course offered by Respondent and taught by Petitioner or other instructional employees similarly situated did not generate sufficient enrollment or failed to receive funding, the course was discontinued and the instructional employee's employment ceased. Sometime during the 1978-1979 school year, Petitioner met with his immediate supervisor to discuss his continued employment with Respondent. Ultimately, Petitioner received a letter advising him that his employment would be terminated at the conclusion of the 1978-1979 school year. Prior to his termination, Petitioner had never been advised, in writing, of any deficiencies in his job performance.
