The Issue Validity of Petitioner's reduction in pay pursuant to Chapter 22A-2, Florida Administrative Code. These are appeals of 12 career service employees of the Department of Environmental Regulation to the Career Service Commission, pursuant to Section 110.061, Florida Statutes and Rule 22A-10.05, Florida Administrative Code. The appeals were consolidated for purposes of hearing by Prehearing Conference Order, dated July 14, 1976, by reason of similar issues of law and fact. A list of the appellants is attached hereto and this order applies to all of the cases. Prior to the hearing, the parties stipulated to undisputed facts and contested issues of law. Although the Department of Administration objected to the relevancy of the facts and exhibits stipulated to in Paragraph I of the "Pretrial Stipulation", it is determined that such facts and exhibits are relevant to these proceedings and the objection is overruled. (Composite Exhibit 1) The stipulated facts and the exhibits referred to therein are as follow: Stipulation of Facts Petitioners are twelve (12) career service employees of the Department of Environmental Regulation. All have attained the requisite employment status for pursuing this action, and all jurisdictional requirements, including the proper and timely filing of appeals, have been met. This cause arises from a reduction in Petitioners' pay which resulted from actions set forth below. Petitioners seek an order increasing their pay in an amount equal to the reduction, and retroactive reimbursement of the amount of the reduction for each month from January 26, 1976, the effective date of the reduction, plus reasonable attorneys fees and expenses. The amount of reduction for each employee is set forth in Exhibit no. 1 attached hereto. In accordance with Section 4(5), Chapter 75-22, Laws of Florida, the Department of Environmental Regulation collocated their Ft. Lauderdale district office with the Water Management District located in West Palm Beach. This action resulted in the physical relocation of the DER district office from Broward to Palm Beach County, a distance of approximately 40 miles. The Ft. Lauderdale office was closed on January 26, 1976 and all employees reported for work to West Palm Beach on January 27, 1976. No change in the working status of the employees pertinent to this appeal resulted from this move. Nine of the twelve employees continue to reside in or near Ft. Lauderdale. The remaining three employees moved to West Palm Beach after the relocation (collocation) of the district office. The competitive geographical pay differential has also been known as the geographical special appointment rate (GAR). See F.S. s. 110.022 and F.A.C. s. 22A-2.04 & 2.06. This differential represented a salary adjustment for certain positions in areas where the statewide minimum salaries were not competitive with that of local government and subsequently other employers. Its purpose was to meet competition in a local area and act as an incentive to attract qualified employees to state positions. It was not a differential based on a Cost of Living study. The manner in which the petitioners' reduction in pay was calculated by Respondents was: Subtract the statewide minimum salary for the employee's class, as found in the Classification and Pay Plan issued by the Department of Administration, Division of Personnel, from the minimum salary approved for the class for Broward County, as found in the Classification and Pay Plan. This amount is then subtracted from the employee's rate of pay to determine the new rate of pay. if a competitive geographical pay differential had been approved by the Division of Personnel for the class to which the employee was being assigned in Palm Beach County, subtract the statewide minimum salary for the class from the minimum salary approved for the class for Palm Beach County, as found in the Classification and Pay Plan. The amount in (3) would then be added to the employee's rate of pay as determined in (2) above to obtain the new rate of pay. Exhibit 1 attached hereto contains the competitive geographical pay differential (GAR) for each employee as computed in the manner above. No employee's salary prior to reduction (Broward County) would have exceeded the maximum pay scale for Palm Beach County set forth in the Classification and Pay Plan as shown in Exhibit no. 2 attached hereto. The employees were advised by letter of January 8, 1976, copies of which are attached as composite Exhibit no. 3. The Department of Environmental Regulation opposed the reductions in pay of Petitioner employees as well as others not parties to this action. This opposition included a letter, attached as Exhibit no. 4, to Lt. Governor Williams requesting no reductions be made and a conference on the subject between Mr. Steven Wilkerson, Director, Division of Administration for the Department and Mr. William H. Wilder, Chief, Bureau of Classification and Pay, Division of Personnel, Department of Administration. The Ltd. Governor's response is attached as Exhibit no. 5. Competitive geographical pay differentials became a matter of concern between the Division of Personnel and the Department in September of 1975. Mr. Gene Witkowski of the Division of Personnel (DOA) referred to the memorandum of Mr. William H. Wilder of October 1972 as governing the situation. The Department requested a copy of the memorandum. Mr. Witkowski stated the opinion that the Department was bound to follow the guidelines of the October 1972 memorandum, attached as Exhibit 6. This conversation was followed by a letter attached as Exhibit no. 7 from Mr. Conley Kennison, State Personnel Director, essentially reaffirming Mr. Witkowski's remarks. On December 18, 1976, Ms. Yates requested guidance as to whether affected employees could appeal their salary reductions. That letter is attached as Exhibit no. 8. Mr. Kennison, by letter of January 5, 1976, attached as Exhibit 9, stated these reductions were not appealable. The Department processed the reduction in pay pursuant to the October 1972 memorandum of Mr. William H. Wilder. The reductions were effective January 26, 1976. The monthly reduction for each employee is shown by Exhibit no. 1. The Department of Administration objects to the relevancy of the facts and Exhibits stipulated to in this paragraph I, but does not contest the factual truth of the matters or the authenticity of the Exhibits. The Petitioners in this cause are as follows: Patricia A. Murphy was employed June 17, 1974 as Clerk Typist III. She attained permanent status December 17, 1974. She was a Clerk Typist III at the time of her pay reduction January 26, 1976. Her position remained the same after the relocation of the district office to West Palm Beach. Faye W. Stone was employed July 17, 1974 as a Clerk Typist II. She received several promotions and was a Secretary III at the time of her pay reduction January 26, 1976. She achieved permanent status as a Secretary III. Her position remained the same after the relocation of the district office to West Palm Beach. Ruth Seward was employed July 21, 1972 as a Secretary III. She attained permanent status January 21, 1973. She was a Secretary III at the time of her pay reduction January 26, 1976. Her position remained the same after the relocation of the district office to West Palm Beach. Janet Bigelow was employed March 8, 1971 as a Secretary III. On September 29, 1973, she attained permanent status as an Administrative Assistant I (promotion). Her position remained the same after the relocation of the district office to West Palm Beach. Patricia K. Galyon was employed by the state on January 11, 1971 and was transferred to the Department of Pollution Control (now DER) on January 28, 1974 as a Secretary II. At the time of her pay reduction on January 26, 1976, she had achieved permanent status as an Engineering Technician III (promotion). Her position remained the same after the relocation of the district office to West Palm Beach. Clifford S Rohlke was employed May 21, 1974 on OPS, and then on September 6, 1974 received an original appointment as an Engineering Technician IV. At the time of his pay reduction January 26, 1976, he had achieved permanent status as an Engineering Technician IV. His position remained the same after the relocation of the district office to West Palm Beach. Patricia Valkenaar was employed May 15, 1974. She attained permanent status as an Engineering Technician IV November 6, 1975. Her position remained the same after the relocation of the district office to West Palm Beach. Albert W. Townsend was employed January 18, 1971 as an Engineering Technician II. He achieved permanent status as an Engineer I April l, 1975 (promotion). His position remained the same after the relocation of the district office to West Palm Beach. Michael R. Fawley was employed October 16, 1972 as an Engineering Technician II. He was promoted to Engineering Technician III January 4, 1973, prior to attaining permanent status as an Engineering Technician II, and achieved permanent status in that class December 2, 1975. He received several promotions and was a trainee Engineer III as of January 26, 1976. His position remained the same at the time of the relocation of the district office to West Palm Beach. He is presently a probationary Engineer III. David J. Karsmarski was employed as a federal employee/ state assignee June 1972 in the capacity of Engineer. (GB-9 or Engineer II). He was sequently employed by the state as an Engineer III where he achieved permanent status. His position remained the same at the time of the relocation of the district office to West Palm Beach. Julian A. Bucklin, Jr. was employed November 29, 1974 as an Engineer III. He has achieved permanent status. His position remained the same at the time of the relocation of the district office to West Palm Beach. Dennis M. Stotts was employed August 23, 1974 as a Pollution Control Specialist II. He requested a voluntary demotion and transfer to Chemist I, a lower position, from the Northeast region to Southeast due to marriage, and attained permanent status in that position on May 29, 1975. His position remained the same at the time of the relocation of the district office to West Palm Beach. An addendum stipulation provides as follows: "The legislative language was understood by Department of Environmental Regulation to be more than just a simple request to study collocation. It was understood to mean if practicable any Department of Environmental Regulation Office should be collocated with a Water Management District Office. The Fort Lauderdale Office was collocated for several reasons. Rent in Fort Lauderdale was $30,000 a year. Rent in the West Palm Beach Central and Southern District Office is $1.00. The Water Management District owned the building which is a multimillion dollar complex with excellent accessibility to the local airport and major transportation arteries. Collocation allowed for fewer meetings for applicants who had to travel between Fort Lauderdale and West Palm Beach. Greater permit coordination was achieved in terms of Chapter 403 and 373, Florida Statutes, as well as surface water management. The delegation of certain water quality responsibilities was also made possible. Since Dade, Broward and Palm Beach Counties have local programs the move to West Palm Beach was not considered inconvenient to Palm Beach and other counties in the northern end of the district. The Department knew in advance of collocation there might be salary problems because of the interpretation that might be placed on the GAR by the Department of Administration. In addition to Composite Exhibit 1 (Pretrial Stipulation) and the exhibits attached thereto, the following additional exhibits were received in evidence. Composite Exhibit 2 - Employment status forms Exhibit 3 - Recommendations to the Administration Commission for changes in the personnel rules and regulations. Exhibit 4 - Classification and Pay Plan, effective, July 1, 1974. Composite Exhibit 5 - Attorney's affidavits and attorney's fees. Exhibit 6 - DER Staff Legal Opinion concerning geographic pay differentials, DER, February 10, 1976.
Recommendation That the Petitioner's appeal be denied. Done and Entered this 22nd day of September, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ross A. McVoy, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building Tallahassee, Florida 32301 M. Stephen Turner, Esquire THOMPSON, WADSWORTH, MESSER, TURNER AND RHODES 131 N. Gadsden Street P.O. Box 1876 Tallahassee, Florida Mr. Conley M. Kennison State Personnel Director Department of Administration Division of Personnel Carlton Building Tallahassee, Florida 32304 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel & Retirement Department of Administration 530 Carlton Building Tallahassee, Florida 32304 APPENDIX LIST OF CLAIMANTS D.O.A.H. Case No. 76-962 - Patricia Galyon - Clifford S. Rohlke - Patricia Ann Murphy - Dennis Stotts - Julian Bucklin - Faye Stone - Michael R. Fawley - Ruth G. Seward - David Karsmarski - Patricia C. Valkenaar - Albert Townsend - Janet Bigelow ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF: JANET C. BIGELOW, et al. against REDUCTION IN PAY DOCKET NOS. 76-16, 76-17, and 76-19 thru 76-28 by the DEPARTMENT OF ENVIRONMENTAL REGULATION Chairman Catherine W. Chapin and members Clare C. Leiby and Edwin G. Fraser participating. /
Findings Of Fact Joe Francis, Orvil Ownby, and Roscoe Cleavenger are all permanent Career Service Commission employees with appeal rights to the Career Service Commission. The appellants each filed a timely appeal of their reduction in pay by the Department of Transportation with the Career Service Commission. The parties stipulated to the following facts: The reduction of the pay of the appellants was not a disciplinary action. Under protest, some employees have paid back money allegedly overpaid, and other employees are in the process of paying back money allegedly overpaid. The performance of all the affected employees was rated as satisfactory or above, and no basis existed for any reduction in pay due to unsatisfactory performance. All the affected employees initially had their pay reduced to the "current" maximum salary. Thereafter, those employees who did not elect to pay the money back in a lump sum had their pay reduced by a fixed amount to repay monies allegedly overpaid, or alternatively, the employees have made similar monthly payments by personal check to the State under protest. Exhibits A through E were admitted into the record together with the entire personnel file of each appellant. In 1972, Jay McGlon, then State Personnel Director, authorized employees in the classes of Maintenance Foreman II to be changed from pay class 16 to pay class 17. Similar authorization was given to change Sign Erector Foreman from pay class 16 to pay class 17. Pay class 17 had a pay range of $544.62 to $744.72. This adjustment in pay class was effective November 16, 1972, pursuant to McGlon's letter of authorization. See Exhibit A. In the instant case, the affected employees were being paid a geographical pay differential. When their pay was increased by the difference between the minimum salary of the class of which they had been a member and the minimum salary of the class to which they were raised, their adjusted pay, together with the geographical pay differential, exceeded the maximum pay range of the new class. On October 30, 1975, Conley Kennison, McGlon's successor as State Personnel Director, wrote David Ferguson, personnel officer of the Department of Transportation. This letter was in response to Ferguson's letter of May 23, 1975, requesting retroactive approval of a $16.00 biweekly pay adjustment, effective November 16, 1972, for all Dade County employees in the classes of Highway Maintenance Foreman II and Sign Erector Foreman II. In this letter, Kennison cites that the pay increases were not in accordance with the final implementation instructions. However, from the text of this letter, it is unclear whether the instructions referred to relate to the salary increases or the geographical pay differentials discussed in the letter. Kennison, in this letter, denies the request made by Ferguson and directs that steps be initiated to recover the overpayments to employees. Two weeks were given for the Department of Transportation to inform Kennison the method by which the overpayments would be recovered and the amounts owed by individual employees to which overpayment had allegedly been made. It was determined that Cleavenger owed $971.74, Francis owed $821.30, and Ownby $600.01. The Department of Transportation reduced the pay of the affected employees by $16.00 per pay period in order to recover the amount of the overpayment. This reduction occurred effective the first pay period following December 5, 1975.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Career Service Commission rescind the action taken by the agency, and that all monies collected from the affected employees be returned to them. DONE and ORDERED this 17th day of January, 1978, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Phillip S. Bennett, Esquire Mrs. Dorothy Roberts Department of Transportation Appeals Coordinator Haydon Burns Building Career Service Commission Tallahassee, Florida 32304 530 Carlton Building Tallahassee, Florida 32304 Ronald A. Silver, Esquire 2020 Northeast 163rd Street, S204 Joe Francis North Miami Beach, Florida 33162 3830 Day Avenue Coral Gables, Florida Rosco Homer Cleavenger 1901 N.W. 107th Street Miami, Florida 33167
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
Findings Of Fact The employee herein, the Petitioner, is employed by DEP as a park ranger. DEP is an agency of the State of Florida. The Petitioner failed to report for work after June 10, 1995. He apparently had some health problem or complaint and was on sick leave for a time. October of 1995 was the first month that he was on leave without pay. He was on leave without pay when he was terminated, which occurred on November 27, 1995. The Petitioner was not receiving workers compensation benefits between his last day of work on June 10, 1995 and the termination date of November 27, 1995. His monthly rate of pay was $1,627.23. He was paid $1,627.62 in gross wages for 176 hours on November 30, 1995. He received $1,319.18 in net wages for November of 1995. The Petitioner was entitled to $71.74 in wages for 10.75 hours for November of 1995. DEP calculated the amount of overpayment by offsetting the wages issued to him in November of 1995 by the amount he was actually entitled to receive for that month for the 10.75 hours. Thereafter, on December 12, 1995, DEP notified the Petitioner, by certified mail, return receipt requested, that he had been overpaid $1,247.44 in net wages for November of 1995. That return receipt reflected that the Petitioner received that letter on December 15, 1995. The Petitioner failed to refund the money to DEP during the 1995 tax year and as yet, has still not refunded the money. Because the money was not refunded during the 1995 tax year, the Petitioner also owes DEP an additional $163.87, which was withheld for taxes on the payment or overpayment in question. Thus, DEP overpaid the Petitioner a total of $1,411.31 in wages for November of 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that the Respondent, Department of Environmental Protection, enter a Final Order finding that the employee, the Petitioner, Eugene Breeze, owes $1,411.31 for a salary overpayment received by him in November of 1995. DONE AND ENTERED this 1st day of November, 1996, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1996. COPIES FURNISHED: Mr. Eugene Breeze 1110 Florida Avenue Lynn Haven, Florida 32444 Melease Jackson, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Virginia B. Wetherell, Secretary Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue The issue posed herein is whether or not the Respondent, Sherba Brothers, Inc., owes the Petitioner wages in the amount of $1,446.62 based on Respondent's failure to comply with the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes. Based on the entire record compiled herein, including the testimony of the witnesses and their demeanor, I make the following:
Findings Of Fact The Petitioner, Aldine Clinton Carter, Jr., was employed by Sherba Brothers, Inc., from approximately May 27, 1976 to October 14, 1976 as a licensed electrician (Dade County). The project in which the Petitioner was employed is the Dade County Courthouse, Project No. 4169, Code 915-018001 which entailed the complete renovation of the 12th floor. The Petitioner was employed by Respondent approximately 39 days, 2-1/2 hours, receiving wages of One Thousand Nine Hundred Thirty-Four Dollars and Twenty-Five Cents ($1,934.25). The prevailing wage rate for electricians in the subject area is Ten Dollars and Seventy-Five Cents ($10.75) which based on the work period involved here i.e. 39 days, 2-1/2 hours times the prevailing hourly rate equals Three Thousand Three Hundred Eighty Dollars and Eighty-Seven Cents ($3,380.87). This figure represents a difference of One Thousand Four Hundred Forty-Six Dollars and Sixty-Two Cents ($1,446.62) which as stated is the amount claimed by the Petitioner as now being due and owing. The Respondent offered no evidence to contest the fact that the Petitioner was in fact, employed as an electrician on the subject project. Some testimony was adduced by Respondent for the purpose of establishing that Petitioner was classified as a second or third class electrician. The proof falls short in this regard. There was no testimony establishing that there in fact exist such a classification(s) and the job classifications listed in the specification book for this project list only an electrician classification at the hourly rate of Ten Dollars and Seventy-Five Cents ($10.75). It is undisputed that the Petitioner is licensed as an electrician. Therefore, for purposes of this proceeding, I conclude that the Petitioner was in fact employed as a licensed electrician while employed by Respondent. However, the Respondent contends that as a nonunion subcontractor, it was not obligated to pay the prevailing wage rate and that the Petitioner was aware of this when he accepted the job for the lower wages. 1/ Secondly, the Respondent contends, that in any event the Petitioner failed to timely file an affidavit in protest of the asserted "noncompliance" as is set forth and defined in Chapter 215.19(3)(a)(1), Florida Statutes. In this regard, the last date the Petitioner was employed by Sherba Brothers was October 14, 1976. On October 31, 1976, the Petitioner sent a letter to the Public Works Department, protesting the fact that he was not paid the prevailing wages. That letter was forwarded to the administrative agency for that project and the county architect, Alf O. Barth, advised Petitioner, by letter dated November 15, 1976, that while his letter of October 31, 1976, contained the essential information regarding his claim, his letter was not notarized as required by state law. The general contractor, Rainey Construction Company and the subcontractor, Sherba Brothers (Respondent) were both notified by copy of Mr. Barth's letter to Mr. Carter that the amount as claimed by him was being withheld from their final payment until a final determination had been made on Petitioner's claim. Two days later on November 17, 1976, the Petitioner forwarded a notarized letter to the parties involved. The Petitioner testified that he made numerous inquiries from various project employees seeking to ascertain if in fact the Respondent was obligated to pay the prevailing wage rate. According to his unrefuted testimony, it was only after he left the Respondent's employ that he was able to determine that Respondent was indeed obliged to pay prevailing wages. This determination came through a communique from Messr., Luther J. Moore, Administrator of Prevailing Wage. The Respondent failed to introduce evidence showing that the prevailing wage rate was posted on this project during the period in which the Petitioner was employed. By so doing, the Petitioner urges and is now claiming that be was thwarted in asserting his rights under the prevailing wage law.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent shall pay the Petitioner the sum of $1,446.62 as claimed in the petition filed herein. RECOMMENDED this 7th day of April, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Petitioner, Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”) properly issued a Stop-Work Order and Penalty Assessment against Respondent, Barber Custom Builders, Inc. (“Respondent” or “Barber”) for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact On January 31, 2014, the parties filed a Joint Pre- hearing Stipulation, by which the parties stipulated to the facts set forth in the following paragraphs 2 through 12. Those facts are accepted and adopted by the undersigned. The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees and corporate officers. Respondent, a Florida corporation, was engaged in business operations in the construction industry in the State of Florida from June 6, 2010 through June 5, 2013. Respondent received a Stop-Work Order and Order of Penalty Assessment from the Department on June 5, 2013. The Department had a legal basis to issue and serve Stop-Work Order 13-273-1A on Respondent. Respondent contests the validity of the Department’s Stop-Work Order as a charging document. Respondent received a Request for Production of Business Records for Penalty Assessment Calculation from the Department on June 5, 2013. Respondent received an Amended Order of Penalty Assessment from the Department on June 17, 2013. Respondent executed a Payment Agreement Schedule for Periodic Payment of Penalty and was issued an Order of Conditional Release from Stop-Work Order on August 6, 2013. Respondent received a 2nd Amended Order of Penalty Assessment from the Department on September 25, 2013. Respondent employed more than four non-exempt employees during the periods of June 10, 2010 through June 30, 2010; July 2, 2010 through December 31, 2010; January 14, 2011 through December 29, 2011; January 30, 2012 through December 16, 2012; and January 4, 201[3] through June 5, 2013. Respondent was an “employer” as defined in chapter 440. All of the individuals listed on the Penalty Worksheet of the [2nd Amended Order of Penalty Assessment], except Buffie Barber and Linda Barber, were “employees” in the State of Florida (as that term is defined in section 440.02(15)(a), Florida Statutes), of Respondent during the periods of non- compliance listed on the penalty worksheets. In addition to the foregoing, in their March 12, 2014, Joint Stipulations and Status Report, the parties stipulated to the facts set forth in the following paragraphs 14 and 15. Those facts are accepted and adopted by the undersigned. Based on business records received from Respondent, the Department has recalculated the assessed penalty. The penalty has been reduced from $36,387.03 to $2,272.31. The 3rd Amended Order of Penalty Assessment is calculated correctly, if the manual rates were properly adopted by rule. A review of the stipulated 3rd Amended Order of Penalty Assessment reveals assessed penalties for employees engaged in work described as class code 5403 (carpentry - NOC) and class code 8810 (clerical office employees - NOC). Given the stipulations of the parties, further findings are unnecessary.
Recommendation Based on the Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order assessing a penalty of $2,272.31 against Respondent, Barber Custom Builders, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 30th day of April, 2014, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2014.
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Lehigh Portland Cement Company/Furniture Division ("Lehigh"), discriminated against the Petitioner on account of her race (white) by discharging her from employment following a verbal altercation with a black co- employee in which the Petitioner allegedly uttered racial slurs directed at or concerning that black co-employee and whether the Petitioner was discriminated against on account of her sex (female) and because of a perceived interracial, personal relationship with another co-employee, who is black.
Findings Of Fact The Petitioner is a former employee of Lehigh. She was discharged by that concern on August 4, 1989 as a disciplinary measure in response to her utterance of racial slurs concerning a black co-worker in the vicinity of the factory floor on Lehigh's premises immediately before the workday began on the date in question. She ultimately filed a charge of discrimination raising the issues and commencing the proceedings referenced in the above Statement of Issues and Preliminary Statement. Lehigh is a furniture manufacturer located in Marianna, Florida. Its plant consists of several large buildings where employees assemble and finish furniture. Lehigh employs somewhat over 400 persons at that factory. On the morning of August 2, 1989, Dorothy Hall and Major Hallmon, both black co-workers of the Petitioner, were having a discussion concerning union business just before the workday commenced on or in the vicinity of the shop floor of Lehigh's factory. Ms. Hall was a shop steward for the union in the paint shop, where the Petitioner was employed. Mr. Hallmon was the chief union steward for Lehigh as a whole. Ms. Hall was expressing concern to Mr. Hallmon about employees in her department or "shop", including the Petitioner, avoiding her, in her capacity as shop steward, and presenting problems directly to Mr. Hallmon when issues or incidents arose which they felt involved the responsibility of their union representatives. Ms. Hall mentioned the Petitioner as one of the employees who had complained about her to Mr. Hallmon. While Ms. Hall was making these comments to Mr. Hallmon, the Petitioner approached them and interrupted their conversation, getting into a verbal altercation with Ms. Hall. Mr. Hallmon attempted to get the Petitioner to cease arguing and yelling. Lehigh's personnel management procedures require that if employees engage in a physical or verbal altercation in their work area, they must cease arguing or fighting and move the disagreement to their supervisor's office for their supervisor to handle with them in an adult manner. Ms. Hall retreated from the confrontation with the Petitioner and walked into the office of George Williams, the supervisor of both of them. The Petitioner then made loud comments which were overheard by a number of co-workers. During their argument, or about the time Ms. Hall walked away in the direction of the supervisor's office, she referred to the Petitioner as a "stupid, white fool" or a "white fool". When the Petitioner walked away from the site of their verbal altercation, a white co-worker, Annette White, told the Petitioner that "Dorothy said she is going to whip your tail" or words to that effect. At this point, the Petitioner responded "I am not afraid of no black ass nigger." The Petitioner's comments were made in a very loud voice and were overheard by a number of co-workers nearby although Ms. Hall, herself, did not hear them nor did Mr. Hallmon. Anne Hamlin, a white woman, who worked in the Petitioner's department, heard the Petitioner say the above-quoted comment. Ms. Hamlin admonished the Petitioner that she should not be calling people by that name. Wilford Pittman, a black man, observed Mr. Hallmon trying to calm the Petitioner during or shortly after her verbal altercation with Ms. Hall. He heard the Petitioner use the word "nigger" and state words to the effect that "I am not scared of that nigger". Odell Harrison, a white man, also heard the Petitioner state "I am not scared of that nigger". Ron Baker, a black man, heard the Petitioner reference Ms. Hall as "a black son of a bitch". The Petitioner, herself, admitted that she stated "I am not afraid of no black ass nigger". The Petitioner immediately joined Ms. Hall in the office of the supervisor after the above incident. Mr. Jack Toole, a crew leader, was also present in the office on that occasion. The argument was renewed once the Petitioner and Ms. Hall were together in the supervisor's office. During the course of their renewed argument, in one of the Petitioner's comments, she used the words "I am white" to which Ms. Hall retorted "No you ain't, your shorts is white". Mr. Toole, who was present during the argument in the supervisor's office, recalls Ms. Hall telling the Petitioner that she was "a white fool for fooling around with Major Hallmon and ruining his life". He also recalls Ms. Hall first coming into the office when he was already present and stating words to the effect that "if we didn't do something about that white woman out there, she would do something with her". Mr. Williams remembers Ms. Hall stating "you make an old fool out of Major". The Petitioner then made a comment to the effect that Ms. Hall should stay home and tend to her "thieving husband" and stay out of other people's business, whereupon Ms. Hall picked up an ashtray as though to strike the Petitioner. Mr. Toole grabbed her arm and took the ashtray from her hand, replacing the ashtray on the desk. The signal to begin work then sounded and Mr. Williams instructed both antagonists to leave his office and begin work. Lehigh has a very specific policy prohibiting racial slurs. That policy provides: Further, it is a stated policy of Lehigh to prevent and prohibit discriminatory conduct in the work environment including statements or actions which could be interpreted as, racially, sexually, religiously or ethnically based, sexual harassment or any other discriminatory harassment or conduct with respect to co-employees, subordinate employees, or supervisors. Any employee who is found to have violated this policy will be subject to discipline, up to and including discharge. This equal employment opportunity policy was posted on all of the company's bulletin boards in the work place in early 1987 and was so maintained and posted forward of that time. Lehigh's management had experienced two disciplinary incidents in the past where two employees, Mr. Cecil Sims and Mr. Coy Jackson, both white, had used the word "nigger", in a conversational context with two black co-employees or in a circumstance where those employees overheard the comment, although it was not uttered in the course of an argument or verbal altercation. Those employees were disciplined by Lehigh for uttering that word, which is found to constitute a "racial slur". Shortly thereafter, during contract negotiations with the union in November of 1988, union representatives informed Lehigh's management that they felt that Lehigh was not enforcing its anti-discrimination policy as vigorously as it should, with the Sims and Jackson incidents used as examples of the union's perception that management's disciplinary practices with regard to the use of this racial slur by employees was too lax. Although Lehigh's management took the view, and still does, that it had taken appropriate disciplinary action in those two prior incidents, Lehigh also agreed with union representatives that such racial slurs constituted a serious offense and agreed that the company would thenceforth enforce its discrimination policy more vigorously. Lehigh's policy, with regard to racial slurs, includes its view that the word "nigger" is one of the most severe or offensive words used to disparage or embarrass a person on account of that person's race. This interpretation of its anti-discrimination policy is a reasonable one because it was established in the record that that word, dating from the time of slavery in America forward to the present time, has been used essentially as a term of disparagement. It is one of the few words in the American vocabulary most likely to demean the person to whom it is directed, to arouse ill will between the person employing the word and the person or persons to whom it is directed, or about whom it is referenced, and even to incite violence between them. It is rational for Lehigh to consider that the use of that racial slur is one of the most severe offenses to which its anti-discrimination policy is directed and designed to prohibit and prevent. In carrying out its disciplinary policy and procedures, Lehigh investigates alleged violations of company rules or policies to find out what occurred and to determine if a rule or policy was, indeed, violated. That customary procedure was performed in the instant case situation. If the management of Lehigh determines that an employee has violated a rule or policy of the company, it evaluates the nature of the offense and views it against the past employment and disciplinary record of the employee to determine what discipline, if any, is appropriate. The management of the company considers the severity of the offense; whether the violation was a willful one; whether it was done with malice; whether the employee under investigation was the aggressor in the incident; the degree of provocation for that employee's behavior; whether the employee expresses or demonstrates any remorse for the occurrence; and the employee's past general work history and disciplinary record. All of these factors are weighed by the company's management in determining what discipline is appropriate. The company customarily has viewed the disciplinary history of an employee as a very significant factor in determining the appropriate discipline to be imposed for a violation of company rules or policies under review as to that employee. In imposing discipline for infractions of company rules or policies, Lehigh employs progressive discipline whenever possible in order to attempt to persuade the employee to change his or her behavior which has resulted in the violation. If an employee exhibits a pattern of rule infractions, especially infractions of the same rule or type of rules, the company imposes a progressively harsher discipline. When considering an employee's past disciplinary record, the company considers only disciplinary violations which have occurred within the past nine months, however. This is because the company's union contract, by which it is bound in terms of its personnel policies and procedures with regard to its union-member employees, contains a provision which requires this restriction. This provision has been applied to all hourly employees of Lehigh for the life of that contract or approximately the past 18 years. It is thus a regular and customary past practice of the company for purposes of the terms of its union contract. The disciplinary measures, which the company imposes for infractions of its rules and policies, range from an oral reprimand (the imposition of which is recorded in the employee's personnel record even if delivered verbally); a written reprimand; suspension from employment for a discreet time period; and permanent discharge from employment. Mr. Albert Berger is the Vice President of Operations for Lehigh. He is responsible for personnel management, among other duties. His personnel management duties include the investigation of alleged infractions of the company's personnel policies and rules, interpreting the company's disciplinary policies and procedures and arriving at decisions about how to discipline employees. Mr. Berger investigated the subject incident involving the Petitioner and Ms. Hall, ultimately determined how to discipline each employee and imposed that discipline. He followed the company's disciplinary policies and procedures in deciding how to discipline the Petitioner and Ms. Hall concerning the incident of August 2, 1989. Upon learning of the incident between those two employees on August 2, 1989, Mr. Berger commenced an investigation of the matter that same day. After making a preliminary inquiry into the matter, he elected to suspend the Petitioner from work sometime on the morning of August 2, 1989, such that she left the company premises under suspension shortly before Noon. He continued his investigation that afternoon, conducting taped interviews with employees and supervisors who had witnessed the altercation. Those witnesses later signed summaries of their statements to Mr. Berger. The Petitioner returned to the factory between 1:00 and 2:00 on the afternoon of August 2, 1989, while Mr. Berger was still concluding his interviews of other employees and supervisors. He gave the Petitioner an opportunity to relate her version of the incident to him. During her taped interview, the Petitioner was very loud and hostile in her demeanor and statements and responses to his questions. She repeatedly employed the term "nigger" with reference to Ms. Hall and her version of the occurrence in question. During the course of the hearing, the Petitioner attempted to explain her behavior during the taped interview with Mr. Berger by insinuating that she was under the influence of alcohol when she exhibited loud and hostile demeanor and comments during the interview, including the use of the term "nigger". She attempted to substantiate this claim by stating that she had consumed several six-packs of beer between the time she left the company premises under suspension shortly before Noon on August 2, 1989 and the time of her interview with Mr. Berger at approximately 2:00 that afternoon. She did not, however, appear drunk or under the influence of alcohol to Mr. Berger when he interviewed her nor did her verbal statements and responses depicted on the tape of that interview justify a finding that she was drunk or under the influence of alcohol at the time of the interview. Moreover, this explanation of her conduct during the interview is self-serving and is thus deemed not credible. Upon concluding his investigation and in the process of determining what, if any, discipline to impose on the two protagonists, Mr. Berger reviewed and considered the employment histories of both the Petitioner and Ms. Hall. Ms. Hall's disciplinary record was a good one. Her most recent disciplinary offense had occurred 13 years before the August 2, 1989 incident. She had been disciplined only one other time, approximately 16 years before the August 2, 1989 incident. Under its union contract, Lehigh was prohibited from considering those two disciplinary incidents in deciding whether and how to impose discipline for the current August 2, 1989 occurrence because those disciplinary infractions occurred more than nine months prior to the August 2, 1989 incident. In addition to the fact that her disciplinary record was a good one with no disciplinary infractions for more than a decade, Ms. Hall readily expressed remorse for her involvement in the incident, apologizing to Mr. Berger and promising to let no such occurrence happen in the future. Because of this and because Lehigh's management, through Mr. Berger, viewed the racial slur "nigger", loudly uttered by the Petitioner, as more egregious than the remark "white fool", "old fool", or "you're not white, your shorts are white", made by Ms. Hall, a lesser discipline was imposed upon Ms. Hall. Mr. Berger imposed a written warning upon Ms. Hall for picking up the ashtray as a threatening gesture directed to the Petitioner and a verbal warning upon her for the above- quoted name calling. This is not a minimal sanction. Written memoranda of both types of discipline are made a part of such an cmployee's personnel record. Concerning the discipline imposed upon the Petitioner, the record establishes that on June 23, 1989, less than two months prior to the incident concerning Ms. Hall, the Petitioner received a three-day suspension for interference with company operations through the use of abusive language directed at another employee. This incident involved the Petitioner painting the words "High Ass" on the door front of a piece of furniture and sending it down the assembly line so that it could be viewed by the co-worker to whom the words were directed. The Petitioner admitted that the words were directed at a black co-worker who was farther down the assembly line. In conjunction with her suspension, Mr. Berger warned her that if she continued to engage in name calling or racial slurs, the consequences for the next such incident would be more severe, including the potential loss of her employment. Mr. Berger concluded and the record establishes that the Petitioner's conduct on August 2, 1989 clearly violated the company's explicit policy against racially-discriminatory conduct in the work place, as that policy is quoted in the above Findings of Fact. The Petitioner's conduct on August 2, 1989, along with the incident leading to her earlier suspension for similar conduct, establishes a pattern of abusive, racially-discriminatory behavior towards her co-workers. Further, the Petitioner was shown to be the aggressor in the incident, interrupting the private conversation between Ms. Hall and Mr. Hallmon, and making statements or comments which incited the ensuing argument and name-calling episode. The Petitioner showed no remorse for her behavior. She was still hostile and inflammatory in her description and reaction to the occurrence concerning Ms. Hall in her interview with Mr. Berger hours later, when she had every reason to believe that her job was at stake with a strong resulting incentive to be conciliatory and remorseful in her reaction and relation of her version of the occurrence to Mr. Berger. Because of these differences in her conduct, her past record, and the severity of her infraction of company policy, as opposed to that of Ms. Hall, and because of Ms. Hall's relative demeanor and reaction to the occurrence and the subsequent summons by Mr. Berger to account for it, Mr. Berger decided, after considering all of the above factors, to convert the Petitioner's suspension to a termination. Discharging the Petitioner for the August 2, 1989 violation in consideration of the above factors related to her conduct, demeanor and past record, as opposed to that of Ms. Hall, was shown to be reasonable, pursuant to Lehigh's customarily-followed "progressive discipline" policy. The differences in severity between the actions of the Petitioner and Ms. Hall, the differences in their personnel histories, the differences in the circumstances of their actions and their demeanor and conduct after the occurrence with regard to it support the differences in the discipline imposed upon them. In attempting to establish a prima facie case of disparate treatment and discrimination related to her termination, the Petitioner employed in her case the examples of Coy Jackson, a white employee and crew leader, being disciplined, but not terminated for using the term "nigger" directed at a black co-employee, Rudolph Townsend, and the similar example of Cecil Sims, a department supervisor, who is also a white man, using the term "nigger" in the presence of a black co-employee. Mr. Sims was also not terminated, but was given a lesser level of discipline. Concerning the Jackson and Sims incidents, the record establishes that in 1988, Coy Jackson spoke of Mr. Townsend, the black employee, who had complained of being cold, as follows: "Get that nigger a coat before he freezes to death." Mr. Sims, a supervisor in that same department, investigated that incident. During Mr. Sims' investigation, he questioned the employees involved about the name calling and the use of the words "black" and "nigger". Mr. Sims stated to Mr. Townsend that there were two names "you all" (meaning black people) could be called-"black" or "nigger"-and he then asked Mr. Townsend which he preferred to be called. Mr. Townsend responded that he simply wished to be called by his own name. Mr. Townsend complained about Mr. Sims' comment to him; and Mr. Berger investigated that incident, as well. He ultimately decided to give Mr. Sims a verbal warning concerning it and admonished him that he was never to use the word "nigger" again in any context and that the next incident, when it occurred, would result in his discharge. The discipline imposed on Mr. Sims was based upon the fact that Mr. Sims readily expressed remorse for the incident, that he had a long, unblemished career with Lehigh, and was then near retirement. He had had no prior history of uttering abusive language, name calling, or the use of racial slurs in the work place. Moreover, the incident occurred in Mr. Sims' office in a normal conversational tone; it was not shouted or uttered loudly on the factory floor in the presence of a number of other employees. Mr. Jackson, the crew leader who made the remark concerning the coat, was also given a verbal warning for use of the word "nigger". The imposition of a verbal warning as discipline for Mr. Jackson was directly related to the fact that Mr. Jackson had personally apologized to Mr. Townsend for making the remark even before the occurrence had been related to Mr. Berger and any investigation of the matter instituted. Moreover, he had made the comment quietly to one other employee and did not shout it in the work place before a number of other employees. Further, these two incidents occurred in February of 1988 before Lehigh elected, at the urging of the employees' union, to more vigorously enforce its policy against racial slurs, which vigorous enforcement policy it has uniformly pursued since that time. These incidents were thus not proven to be similar to the incidents involving the Petitioner and her employment and disciplinary record. Neither involved the disciplining of a black employee differently than a white employee. The Petitioner, Mr. Sims and Mr. Jackson are white. The less severe discipline imposed on Mr. Sims and Mr. Jackson was rationally related to the mitigating circumstances described above, rather than to their status as men or white men. It is also noteworthy that several years before the Petitioner's discharge, a white man employed in Lehigh's loading department, in the course of a conversation with a black employee, held up a piece of rope, apparently tied as a hangman's noose, and told the black employee that he would show him what use was made of rope in the white employee's home town. The black employee, at this juncture, hit the white employee with his fist. Mr. Berger investigated that incident, as well. Although it was alleged to him that the white employee had used the term "nigger", Mr. Berger was not able to identify a disinterested witness who would actually establish that the term had been used. In any event, however, Lehigh's management, through Mr. Berger, determined that this was a serious, malicious violation of the company's anti-discrimination policy. He promptly discharged the white employee for this conduct. The black employee, in turn, was also discharged for engaging in violence, which the company has uniformly considered to be one of the most severe violations of its disciplinary rules. Each of those employees was individually disciplined for their respective violations of company policy, based upon the circumstances peculiar to each. Neither of those incidents is similar to the incident for which Lehigh discharged the Petitioner. The discipline imposed on each of them was shown to be consistent with the company's customary anti-discrimination policy. None of the exemplary incidents described above serve to establish that white employees, male or female,(or, for that matter, black employees) have been subjected to a pattern of discriminatory disciplinary measures, including termination. They, likewise, do not show that any of those employee groups were accorded favored treatment. Rather, the facts regarding these incidents show that the company has pursued a pattern of non-discriminatory employee discipline. The employees who were disciplined in these three incidents were not shown to be similarly situated to the Petitioner, in terms of the infraction she committed, her past record, the circumstances surrounding her infraction and the investigation afterward, versus the underlying reasons for the various disciplinary measures imposed on these other employees, related above. During the hearing, the Petitioner first raised the issue of alleged discriminatory treatment because of a perceived close interracial relationship between her and Mr. Hallmon. Accordingly, she amended the Petition, ore tenus, without objection. Mr. Hallmon and the Petitioner had apparently become close friends at the point when he asked her to be his assistant in his position as chief union steward. She accepted the position. Mr. Hallmon indicated that this was because of his concerns about tensions between black and white employees. He wished a white employee to be his assistant to, as he termed it, "balance things out". That association began approximately three years ago. Mr. Hallmon and the Petitioner customarily would spend their lunch period together on frequent occasions to discuss union business. They sometimes met after work, in the parking lot next to the factory, to discuss union business because, as Mr. Hallmon put it, he maintained his union business office in the trunk of his car. The two also met many mornings prior to work for donuts and coffee. Their apparent friendship is corroborated by the fact that Mr. Hallmon elected to urge one of the witnesses to the Petitioner's behavior on August 2, 1989 to conceal her knowledge of it. He stopped Anne Hamlin in the parking lot on the day of the incident and told her that she should say nothing about it. The Petitioner has been engaged in contesting her discharge through the union grievance procedure or the administrative process before the Commission on Human Relations and the Division of Administrative Hearings for more than a year and one-half as of the time of hearing. However, she never had complained prior to the day of hearing that her friendship with Mr. Hallmon or any perceived close, personal interracial relationship between her and Mr. Hallmon had been involved in the reasons for her discharge or any discriminatory treatment she believed had been imposed upon her. Mr. Hallmon contended at the hearing that 80% of the approximately 400 workers at Lehigh had made comments about their relationship but, upon questioning about this testimony, was only able to relate two specific comments which had been made to him concerning his and the Petitioner's relationship. Neither of these comments were made by management-level personnel of Lehigh. Moreover, both the Petitioner and Mr. Hallmon, as union representatives, were acquainted with procedures for bringing a grievance to the attention of management, concerning discriminatory treatment, or any other basis for a grievance and yet neither had complained concerning any perceived discriminatory treatment to management. The only instance in which management might have gained any knowledge of their alleged relationship, other than personal observation, was from a conversation between Mr. Hallmon and Mr. Berger on one occasion when Mr. Hallmon asked Mr. Berger whether there was any violation of company policy if two people, black and white, or male or female, have lunch together. Mr. Berger responded by stating, in effect, that it was not any of management's business or anyone else's business concerning which employees had lunch together. Mr. Berger, however, upon learning that Mr. Hallmon had an apparent concern about the perception which management or co-employees might have concerning his and the Petitioner's relationship, did advise him to remember that "...this is the deep south...and I wouldn't want any of these rednecks catching up with you". When asked if he could recall any discussions between management personnel concerning the amount of time Mr. Hallmon and the Petitioner spent together, Mr. Berger answered "no, it's none of our business". Although Mr. Berger had observed the Petitioner and Mr. Hallmon together on several occasions, he felt that was none of his business as a manager of the company. Neither body of testimony, appearing at pages 49, 50 and 90 of the transcript nor any other testimony or evidence in this record, establishes that management had any knowledge of any pervasive discriminatory pattern of behavior in the work place by co-workers toward the Petitioner and Mr. Hallmon, if such indeed existed, which was not proven. It was also not established that management had any concern with any real or perceived relationship between the Petitioner and Mr. Hallmon and it was not demonstrated that it had any effect on the decision to discipline the Petitioner nor on the severity of the discipline imposed. After her termination, the Petitioner attempted to secure employment through the services of Job Services of Florida by application of August 28, 1989. Job Services referred her to Russell Corporation on September 8, 1989 and to Wal-Mart on September 21, 1989. She applied for employment unsuccessfully at both places. These were the only attempts the Petitioner made to obtain employment from the time of her August 2, 1989 termination until the hearing. Her listing, as available for employment, with Job Services of Florida became inactive on November 30, 1989. It was not established that she sought to reactivate that listing until just prior to the hearing. During the period of her unemployment, there were opportunities to seek employment which she did not avail herself of. On the date of the hearing, there were 22 jobs with private employers and 15 jobs with public employers listed with Job Services of Florida for which the Petitioner could have qualified to apply. She contended that she had looked in the help-wanted advertisements in a weekly newspaper for jobs, but there were none for which she was qualified. Local papers published in Jackson, Calhoun and Liberty counties, in the immediate vicinity of the Petitioner's residence in Altha, reveal that there were a number of advertisements for jobs during her unemployment period which she could have qualified to apply for and possibly to secure. The Petitioner's payroll records for 1988 reveal seven pay periods out of 52 when her total hours equaled or exceeded 50 hours. There were seven pay periods when she worked fewer than 40 hours per week. The average hours worked weekly during 1988 were 42.2. The highest gross pay received in 1988 was $375.76 per week, and the lowest weekly gross pay was $98.56. Her weekly gross pay on an average basis for 1988 was, thus, $273.24. The Petitioner worked 36 pay periods in 1989. She worked more than 40 hours in only eight of those weekly pay periods. The time in excess of 40 hours in these eight pay periods varied, with 5.5 hours being the largest number of hours in excess of 40 hours worked for a weekly pay period; and .3 hours was the lowest number of hours in excess of 40 hours worked for a weekly pay period. In 15 of these 36 pay periods, the Petitioner worked fewer than 40 hours. The average hours per pay period for 1989 were, thus, 33.98. She received overtime pay in eight pay periods. Her highest gross salary for any pay period in 1989 was $309.28. Her lowest gross salary for a pay period in 1989 was $51.28. Her average gross pay for 1989 was, thus, $220.72 per week. The average weekly gross pay for the entire period of her employment was $246.12. She earned $6.41 per hour at the time of her discharge. Had she remained employed, this would have increased to $6.63 per hour on December 16, 1989 and to $6.83 on December 16, 1990. She was eligible for two weeks of paid vacation per year since she had been employed for three years, and eight paid holidays per year. Federal income tax, social security, and union dues were withheld from her gross weekly pay. In 1988, income tax withholding totaled $1,022.80; social security totaled $1,066.98; and union dues totaled $110.00. In 1989, federal income tax totaled $513.97; social security totaled $596.76; and union dues totaled $96.00 for the 36 pay periods she worked in 1989. Lehigh was self- insured for health insurance and any amounts exceeding the employee contributions were to be paid by Lehigh. The employees, including the Petitioner, contributed $7.50 per week towards health insurance. Her payroll records reveal, however, that she ceased participating in the employer-provided group health insurance after the seventh pay period of 1989. In arriving at the above Findings of Fact, it has been necessary, to some extent, to reject the testimony of the Petitioner and Mr. Hallmon. This is because the Hearing Officer finds the testimony of other witnesses to the argument between the Petitioner and Ms. Hall and the surrounding circumstances and events to be more credible. The testimony of the other witnesses to these events was accepted because of their basic agreement on the significant circumstances concerning the occurrences in question and the fact that these other witnesses were demonstrated to have no reason to shade the truth concerning the occurrences and the underlying circumstances, including the fact that these witnesses, whose testimony has been accepted as more credible, are of both races involved. The Petitioner, however, is interested in the litigation and admits using the words "black ass nigger" and her tape-recorded statements made the same day of the argument in question are corroborative of the statements, behavior and demeanor on the part of the Petitioner reported by the other witnesses who have been found to be more credible and who are named in the above Findings of Fact. It is found that Mr. Hallmon's close relationship with the Petitioner might have influenced his recollection of the events in question. More significantly, his effort to actually prevent Ms. Hamlin from relating her knowledge about the incident is evidence of a bias in favor of the Petitioner. Moreover, the Petitioner's testimony about alleged recent job-search efforts was impeached because in her deposition taken approximately a week prior to hearing, she repeatedly asserted that the potential jobs at Russell and Wal-Mart were the only ones she had sought, although she maintained at hearing that she had also applied for work at Oglesby Nursery and McDonald's two or three weeks prior to hearing. She offered no explanation of why she did not mention job applications allegedly made less than a month prior to her deposition testimony. It is simply not credible that she would have forgotten those applications if, indeed, they had been made, especially since she was repeatedly asked about that subject matter at her deposition. Thus, her testimony about applying for employment with the two additional employers is deemed not credible.
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 Florida Commission on Human Relations finding that the Petitioner, Donna J. Brown, was not discharged in violation of Section 760.10, Florida Statutes (1989), and was not the victim of a discriminatory employment practice and, therefore, that her Petition be dismissed in its entirety. RECOMMENDED this 7th day of August, 1991, in Tallahassee, Leon County, 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 7th day of August, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-6596 Petitioner's Proposed Findings of Fact 1-3. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter after determination of the relative credibility of the witnesses. Accepted. 6-9. Accepted. 10-11. Accepted. Accepted, but not material based upon the issues actually pled even by ore tenus amendment at hearing in this proceeding. It has not been established that the employer had knowledge, constructive or otherwise, of any pattern of usage of racial slurs by multiple employees on such a frequent basis, or with any frequency. Thus, it could not have condoned such a pattern of utterance of racial slurs if it was not shown to have known about them, nor was it established that the use of the word "nigger" by fellow employees approximately once or twice a month, as apparently heard by Mr. Hallmon, was made only by white employees. Accepted. Accepted, but not to the extent that this finding establishes a pattern of discrimination against white employees by Mr. Berger or the management of Lehigh. 15-17. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. As delineated in the Hearing Officer's findings of fact, a number of factors were considered in the decision to terminate as opposed to imposing another type or degree of discipline; not consideration of the word "nigger" alone. 20-21. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. This finding of fact is not, in itself, materially dispositive of the issues to be adjudicated. Accepted, but not material to resolution of the relevant issues presented for adjudication. Accepted, but not material in this de novo proceeding. Accepted, but subordinate to the Hearing Officer's more detailed findings of fact concerning this subject matter and issue. 26-30. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including finding that the Petitioner did not participate in the group health insurance program any longer than the period of time delineated in the Hearing Officer's findings of fact. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. It has not been established that employment available for purposes of mitigation of damages for lost wages and benefits has to be precisely comparable in circumstances, condition, quality, wages or benefits or any other element in order to be a relevantly considered available job. Rejected, as contrary to the Hearing Officer's findings of fact on this subject matter. It has not been established that the Petitioner would work 50 hours, with 10 hours of overtime, for each week which she would have worked since August 2, 1989 had she not been discharged. Such a figure is therefore speculative, rendering the figures contained in this proposed finding, other than the actual wage figures for a 40-hour work week, speculative. The Hearing Officer's findings of fact on this subject matter are adhered to and those in this paragraph are rejected as not supported by the evidence and as subordinate to the Hearing Officer's findings of fact. Rejected, as not supported by the preponderant evidence of record in light of the Hearing Officer's findings of fact concerning the liability issue. Respondent's Proposed Findings of Fact 1-2. Accepted. 3. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the record. 4-6. Accepted. 7. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not entirely supported by the evidence of record. 8-10. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, except as modified by the Hearing Officer's findings of fact. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 15-17. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. 20-25. Accepted. 26. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 27-98. Accepted, except as modified by the Hearing Officer's findings of fact and by the Hearing Officer's acceptance of the proposed findings of fact by the Petitioner concerning the hourly wage rates Petitioner would have received with her next scheduled pay raises had she remained employed. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esq. General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Ben R. Patterson, Esq. PATTERSON & TRAYNHAM 1215 Thomasville Road P.O. Box 4289 Tallahassee, FL 32315-4289 George J. Little, Esq. 134A Constitution Lane P.O. Box 1612 Marianna, FL 32446 John D.C. Newton, III, Esq. AURELL, RADEY, ET AL. Suite 1000, Monroe-Park Tower 101 North Monroe Street P.O. Drawer 11307 Tallahassee, FL 32302
The Issue The issue in this case is whether Respondent had a sufficient amount of workers’ compensation coverage during the time period in question; and, if not, what penalty should be imposed.
Findings Of Fact The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Kent Howe works for the Division as a compliance investigator based in Orlando, Florida. As part of his job responsibilities, Mr. Howe visits construction sites in order to verify that employers in the construction industry have obtained workers’ compensation coverage for their employees. Mr. Kehr was the owner and sole corporate officer of JNK. Mr. Howe visited a construction site in Port Orange, Florida, on the morning of December 10, 2015, and saw Mr. Kehr and two other men building the interior walls/frames of a house. Mr. Howe talked to the two men (James Hicks and James Garthwait) working with Mr. Kehr, and they reported that Mr. Kehr was paying them approximately $8.00 an hour. Mr. Kehr told Mr. Howe that Messrs. Hicks and Garthwait had been working for him for approximately two hours that morning. Mr. Kehr also stated that he had not obtained workers’ compensation coverage for Messrs. Hicks and Garthwait. Following those conversations, Mr. Howe returned to his car and accessed the Division’s Coverage and Compliance Automated System (“CCAS”) and learned that JNK had no workers’ compensation coverage. Mr. Howe also determined from CCAS that Mr. Kehr had obtained an exemption from workers’ compensation coverage that had been in effect from November 18, 2014, through November of 2016.2/ After relaying that information to his supervisor, Mr. Howe received authorization to serve Mr. Kehr with a Stop- Work Order, and he did so on December 10, 2015. That Stop-Work Order required JNK to “cease all business operations for all worksites in the State” based on the Division’s determination that JNK had failed to obtain workers’ compensation coverage. In addition, the Stop-Work Order stated that JNK would be penalized an amount “[e]qual to 2 times the amount [JNK] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it [had] failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order, Mr. Howe also served a “Request for Production of Business Records for Penalty Assessment Calculation” (“the BRR”) on Mr. Kehr. In order to ascertain JNK’s payroll disbursements during the relevant time period and the resulting penalty for JNK’s failure to obtain workers’ compensation coverage, the BRR requested that JNK remit several different types of business records covering the period from November 10, 2014, through December 10, 2015. Mr. Howe explained during the final hearing that the Division usually reviews business records pertaining to the two years preceding the Stop Work Order.3/ Because JNK came into existence on November 10, 2014, the Division’s review was limited to examining the period between November 10, 2014, and December 10, 2015. The business records sought by the Division included items such as time sheets, payroll summaries, check journals, certificates of exemption, and evidence that any JNK subcontractors had obtained workers’ compensation coverage. Section 440.107(7)(e) provides that if an employer fails to provide business records sufficient to enable the Department to ascertain the employer’s actual payroll for the time period in question, then the Division will estimate the employer’s actual payroll for that time period by imputing the employer’s payroll based on the statewide average weekly wage. The Division then multiplies that amount by two. JNK did not provide business records typically sought by the Division. Instead, JNK responded to the BRR by producing a written statement from Mr. Kehr indicating that he founded JNK in November of 2014, but did no work until July of 2015. That initial job involved fixing a set of stairs for $200. Afterwards, Mr. Kehr performed three separate small jobs between July and November of 2015, earning approximately $550. Because the Division could not ascertain JNK’s actual payroll from the documentation provided by JNK, the Division imputed JNK’s payroll for the time period in question and issued an Amended Order of Penalty Assessment on January 19, 2016, seeking to impose a penalty of $61,424.04. Phillip Sley calculated the aforementioned penalty amount by filling out a worksheet that has been adopted by the Division through Florida Administrative Code Rule 69L-6.027. The first step in completing the worksheet required Mr. Sley to assign a classification code to the type of work that Mr. Howe witnessed Messrs. Kehr, Hicks and Garthwait performing at the Port Orange worksite on December 10, 2015. Classification codes come from the Scopes® Manual, which has been adopted by the Department through rule 69L-6.021. Each code within the Scopes® Manual pertains to an occupation or type of work, and each code has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. The imputed weekly payroll for each employee and corporate officer “shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” See Fla. Admin. Code. R. 69L-6.028(3)(d). In the instant case, Mr. Sley determined “5645” was the appropriate classification code. According to the Scopes Manual, [w]hen all of the carpentry work in connection with the construction of residential dwellings not exceeding three stories in height is performed by employees of the same carpentry contractor or general contractor responsible for the entire dwelling construction project, the work is assigned to Code 5645. This includes the construction of the sill, rough framework, rough floor, wood or light-gauge steel studs, wood or lighted-gauge steel joists, rafters, roof deck, all types of roofing materials, sidewall sheathing, siding, doors, wallboard installation, lathing, windows, stairs, finished flooring, cabinet installation, fencing, detached structures, and all interior wood trim. Mr. Sley’s next step in calculating the penalty amount was to determine the period of non-compliance. With regard to Mr. Kehr, the Department asserted that JNK failed to have workers’ compensation coverage between the date of JNK’s inception (November 10, 2014) and the date that Mr. Kehr received an exemption from the workers’ compensation coverage requirement (November 18, 2014). Despite having no evidence that Messrs. Hicks and Garthwait worked for JNK on any day other than December 10, 2015, the Division’s penalty calculation was based on an assumption that Messrs. Hicks and Garthwait worked for JNK from November 10, 2014, through December 10, 2015. Mr. Sley’s next step was to calculate JNK’s gross payroll for the time period in question. Because JNK did not provide the Division with business records that would have enabled the Division to calculate JNK’s actual payroll, Mr. Sley based JNK’s payroll on the statewide average weekly wage determined by the Department of Economic Opportunity for the time period in question.4/ Mr. Sley then multiplied that amount by two.5/ After converting the payroll numbers into a percentage, Mr. Sley multiplied the payroll amounts by the approved manual rate. As noted above, every classification code is associated with a particular manual rate determined by the Office of Insurance Regulation, and a manual rate corresponds to the risk associated with a particular occupation or type of work. Manual rates associated with potentially dangerous activities will have higher manual rates than activities with little or no potential danger. Mr. Sley’s next step was to calculate a premium for obtaining workers compensation coverage for Messrs. Kehr, Hicks, and Garthwait. Mr. Sley then multiplied that premium by two in order to calculate the individual penalties resulting from JNK not having workers’ compensation coverage for Messrs. Kehr, Hicks, and Garthwait. The sum of those amounts was $61,424.04. The evidence produced at the final hearing established that Mr. Sley utilized the correct class code, average weekly wage, and manual rates in his calculation of the penalty set forth in the Amended Order of Penalty Assessment. The Division has demonstrated by clear and convincing evidence that JNK was in violation of the workers’ compensation coverage requirements of chapter 440. In particular, the Division proved by clear and convincing evidence that Mr. Kehr had no workers’ compensation coverage for himself and no exemption from November 10, 2014, through November 17, 2014. However, the Division did not demonstrate by clear and convincing evidence that Messrs. Hicks and Garthwait were employees of JNK on any day other than December 10, 2015. Mr. Kehr testified during the final hearing that Messrs. Hicks and Garthwait were working for him on December 10, 2015. He also testified that he was paying them at a rate of $8.00 an hour. However, Mr. Kehr persuasively testified that Messrs. Hicks and Garthwait had not worked for him at any other time between November 10, 2014, and December 10, 2015. The undersigned finds Mr. Kehr’s testimony on this point to be credible. Messrs. Hicks and Garthwait did not testify during the final hearing in this matter. There is no evidence that Messrs. Hicks and Garthwait worked for JNK at any time other than December 10, 2015. Because there is no evidence indicating that Messrs. Hicks and Garthwait were employees of JNK at any time other than December 10, 2015, during the time period in question, the undersigned finds that the Department failed to carry its burden of proving that $61,424.04 is the appropriate penalty. Based on the above findings, the undersigned finds that the correct penalty resulting from Mr. Kehr’s lack of coverage is $627.48. The worksheet completed by Mr. Sley indicates that is the amount of the $61,424.04 penalty associated with Mr. Kehr’s lack of coverage. As for the penalties associated with the lack of coverage for Messrs. Hicks and Garthwait on December 10, 2015, the undersigned multiplied the average weekly wage utilized by the Division ($841.57) by two. That results in a weekly gross payroll amount of $1,683.14. Dividing $1,683.14 by five results in a daily gross payroll amount of $336.63. Dividing $336.63 by 100 and then multiplying the result by 15.91 (the approved manual rate utilized by the Division for the period from January 1, 2015, through December 10, 2015) yields a daily premium of $53.62. Multiplying $53.62 by two results in a penalty of $107.23. Multiplying $107.23 by two yields $214.46, JNK’s penalty for not having workers’ compensation coverage for Messrs. Hicks and Garthwait on December 10, 2015. JNK’s total penalty is $841.94. Because section 440.107(7)(d)1. mandates a minimum penalty of $1,000, the undersigned finds that $1,000 is the correct penalty for the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order imposing impose a $1,000 penalty on Donald Kehr, d/b/a JNK Framing Inc., a Dissolved Florida Corporation. DONE AND ENTERED this 10th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2016.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
