The Issue Whether or not Sanier Constructors, Inc., by its officers and/or agents or other representatives, failed to pay the Petitioner the prevailing wage rate as set forth and defined in Chapter 215.19, Florida Statutes, as alleged.
Findings Of Fact Royce J. Pombrio was employed as a sheet metal mechanic by C.P.M., Inc., an electrical subcontractor performing work for Sanier Constructors, Inc., on the construction of the Police Headquarters Complex for the City of St. Petersburg (C.P.M. Job No. 144). The prevailing wage rate for sheet metal mechanics performing similar work in the City of St. Petersburg is $9.56 per hour. As stated, Royce J. Pombrio, Petitioner, was employed by C.P.M., Inc., in June of 1977. Mr. Bobby R. Habgood, also an employee of C.P.M., served as Project and Acting Field Superintendent during the periods in question. Mr. Habgood credibly testified that the Petitioner performed superintendent's work during his (Habgood's) absence and that he recommended Petitioner for the sheet metal mechanic's position. Mr. Habgood credibly testified that Petitioner supervised two helpers and that the type of work performed by Petitioner was not the kind of work helpers were capable of performing as contended by Boyd Walters, the comptroller for C.P.M. Documentary evidence introduced into evidence revealed that during the period June 17, 1977, through October 28, 1977, Petitioner was paid an hourly wage of $5.75. During the period October 27, 1977 (approximately), through January 27, 1978, Petitioner was paid approximately $6.25 per hour and from the period of January 27, 1978, through June 17, 1978, Petitioner was paid an hourly wage of approximately $6.50 per hour. These total wages, when contrasted against the prevailing hourly wage rate of $9.56 per hour, result in a deficit of approximately $5,308.38. Based on the testimony of Petitioner Pombrio, the corroborative testimony of Messrs. Habgood and Donald Cochran, who was also employed by C.P.M. as a Superintendent and Project Manager, I conclude that the Petitioner was in fact performing sheet metal mechanic duties and as such was entitled to be paid the prevailing hourly wage rate of $9.56 per hour. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby, That the Respondent, Sanier Constructors, Inc., by and through its agent/subcontractor, C.P.M., Inc., pay the Petitioner the sum of Five Thousand Three Hundred Eight Dollars and Thirty-Eight Cents ($5,308.38), which amount represents the difference in the amount Petitioner should have been paid according to the prevailing wage rate schedule and the actual hourly wages he in fact received while employed as a sheet metal mechanic for C.P.M., Inc. RECOMMENDED this 16th day of March, 1979, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 101 Collins Building MAILING ADDRESS: 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675
Findings Of Fact The Petition herein was filed by Petitioner with PERC on December 29, 1975. (Hearing Officer's Exhibit 1). The hearing in this case was scheduled by Notice dated January 22, 1976. (Hearing Officer's Exhibit 2). The City of Sunrise is a Public Employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7) 1/ The Petitioner is an association which is seeking to represent public employees in matters relating to their employment relationship with a public employer. The Petitioner requested recognition from the Public Employer as the exclusive bargaining representative for employees in the Public Employer's Utilities Department. The request was denied by the Public Employer. There is no contractual bar to holding an election in this case. (Stipulation, TR 7, 8). There is no pertinent collective bargaining history that will affect this case. (Stipulation, TR 8). PERC has previously determined that the Petitioner is a duly registered employee organization. (Hearing Officer's Exhibit 3). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit 4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The Public Employer operates under the form of government commonly referred to as the "strong Mayor-Council form of government". The City Council serves as the legislative body of the Public Employer, and the Mayor is the Chief Executive Officer. Public Employer's Exhibit 1 accurately describes the organization of the Public Employer. The Public Employer is roughly divided into twelve different departments, excluding the Police and Fire Departments. Each department is headed by a department head who answers to the Mayor. The Public Employer employs approximately 200 persons, approximately 25 percent of whom are clerical employees. There are approximately 55 to 60 persons in the bargaining unit proposed by the Petitioner, 12 to 15 of whom are clerical employees. The department heads are generally responsible for the day-to-day functioning of their department. The department heads will initiate hiring, firing, discipline, and promotion of employees; however, such action must be approved by the Mayor. Respecting hiring and firing, the Mayor goes against the recommendations of the department heads approximately 30 to 40 percent of the time. With respect to disciplinary action, the department head submits recommendations to the Mayor in the form of a memorandum. In the Water and Sewer Department the recommendation would go from the Director of the Utilities Department to the City Engineer to the Mayor. The department head will make all decisions respecting shift changes, lunch hours, and vacations; however, an aggrieved employee can always go to the Mayor. The department heads regularly evaluate employees in their department, and make recommendations respecting merit pay increases based upon the evaluations. The Mayor has a practice of always approving recommendations for merit pay increases if money is available in the budget. The Mayor is responsible for preparing a proposed budget to be submitted to the City Council. The department heads provide the Mayor with information respecting the budgetary needs of their departments. The department heads meet on a monthly basis as a group to discuss safety programs. Safety policies are formulated at these meetings. The department heads are responsible for granting leave time; however, this responsibility is apparently delegated to the chief operator in the Water and Sewer Department. Public Employer's Exhibit 2 is a computer read-out of all of the Public Employer's employees other than those in the Police and Fire Departments. Those employees who the Public Employer considers to be managerial, confidential, or professional employees within the meaning of the Public Employees Relations Act are designated respectively on the exhibits by the hand written letters "M", "C", or "P". The hand written numbers on Public Employer's Exhibit 2 refer to the page number where the job description of the employee appears in Public Employer's Exhibit 3. Public Employer's Exhibit 3 is a compilation of the job descriptions of all of the Public Employer's employees other than those in the Police and Fire Departments. The descriptions were prepared in January, 1976, and accurately describe the duties, responsibilities, and day-to-day activities of the employees. All employees of the Public Employer other than those in the Police and Fire Departments are compensated under the same pay plan, and receive the same benefits. All employees are given eleven paid holidays, ten paid sick days, and ten paid vacation days annually. All employees participate in the same hospitalization and pension plans. All employees are issued uniforms and safety equipment by the city; however, clerical employees are responsible for maintaining their own uniforms. Christmas parties and other social functions for the employees are open to all employees of the city. There are no functions open to the employees of only one department. Transfers of employees from one department to another are fairly common. Job openings and promotions in a department are always advertised and made available to employees in all departments before they are advertised or made available to non-employees. The departments of the Public Employer generally work together. Many employees in the Public Works Department have the same job description as employees in the Utilities Department. When necessary, employees in one department will assist in performing the functions of another department. The Utilities Department is divided into the Gas Department, the Water and Sewer Field Maintenance Department, and the Water and Sewer Treatment Plants. These departments produce services for a fee to the inhabitants of the City of Sunrise, as do the Spring Hill Country Club and the Recreation Department. Employees in the Water and Sewer Departments are on duty 24 hours daily. Each employee works a fixed 8-hour shift. Most other employees of the Public Employer work a day-shift only. Employees in the Water and Sewer Department do not generally work in one place. Clerical employees generally work full time at City Hall. It is apparent that transfers between manual positions and clerical positions are rare, and have probably never occurred. The work performed by clerical employees is different than the work performed by employees in the Water and Sewer Departments. The only testimony presented at the hearing respecting the desires of the employees was that employees in the Water and Sewer Departments would like to have their own bargaining unit. The Utilities Department is separately budgeted, and the only employee who testified expressed an interest in using the revenue of the department for the benefit of the employees in the department. All employees of the Public Employer are eligible for membership in the Petitioner. DONE and ORDERED this 6th day of April, 1976 in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue The issue to be resolved is whether Petitioner received more than one increase in pay in any twelve-month period for the category of added duties and responsibilities, Rule 60K-2.006, Florida Administrative Code.
Findings Of Fact Stephen C. Metzler is an Environmental Specialist II in a leadworker position with the Department. Stephen C. Metzler received an Increase to Base Rate of Pay for added duties in the amount of $69.39, on April 7, 1998. Thereafter, Robert Merritt was promoted and there was no one to supervise the employees that he had previously supervised. He asked Petitioner to continue to perform the duties he had been performing, and assume the supervisory duties that Merritt had previously performed. Merritt advised Petitioner that he would be given additional compensation for performing these duties. Petitioner assumed and performed these added supervisory duties, and Merritt administratively initiated the pay increase. Subsequently, the paperwork was prepared by one of Respondent's clerical personnel, reviewed by the personnel officer, and signed by Petitioner's superiors. Petitioner did not see this paperwork at any time prior to its submission and had no part in its preparation. Both of Petitioner's supervisors who had signed and approved the pay-raise testified. They were aware that Petitioner was performing supervisory, leadworker duties and it was their intent to increase his compensation for performing those duties. Metzler received an increase to his base rate of pay for added duties in the amount of $75.86, on October 2, 1998. The Escambia County Health Department was not aware of the rule of prohibiting more than one pay increase in twelve consecutive months for the same category. The Department of Management Services audited the payroll of the Department of Health and found several deficiencies including overpayment to Metzler. The Personnel Action Request Form dated April 7, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. Under the section of the form relating to "Salary," there is no selection under "Salary Additive." The Personnel Action Request Form dated October 2, 1999, indicated that the pay increase being approved was to Petitioner's base rate of pay for the performance of added duties. However, under the section of the form relating to "Salary," salary additive, the block "leadworker" was checked. It was testimony of the personnel officer that, had they known of the Rule restricting two pay increases within twelve consecutive months, they would have checked the block under increase in base rate of pay, Internal Pay Relationships. That, together with the selection of "Leadworker" under "Salary Additive," would have been administratively correct. Both payroll request forms authorize the increase of pay by placing an "X" in the box "added duties." Personnel Action Request one authorized a raise on April 7, 1999, and Personnel Action Request two authorized a raise on October 2, 1999, which is within twelve months of the first raise. McCulough calculated the $1,010.80 overpayment by determining the increases paid prior to the expiration of the twelve-month period of the preceding raise for the same category, added duties and responsibilities. McCullough calculated the amount of overpayment and drafted a letter for the Director of the Health Department's signature. McCullough drafted the letter seeking reimbursement of the $1,010.80, because of the audit exception and the demand of the Department of Management Services to correct the administrative error that had been made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent correct its paperwork and not attempt to collect the monies involved. DONE AND ENTERED this 26th day of June, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 26th day of June, 2000. COPIES FURNISHED: Stephen C. Metzler 4048 Charles Circle Pace, Florida 32571 Rodney M. Johnson, Esquire Department of Health 1295 West Fairfield Drive Pensacola, Florida 32501 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Dr. Robert G. Brooks, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue is whether Respondent is entitled to recover an alleged overpayment of $499.76 in salary previously paid to Petitioner.
Findings Of Fact Respondent employs Petitioner as a Juvenile Detention Officer in Sarasota, Florida. On October 1, 2004, Respondent issued a warrant to Petitioner for the payroll period from September 10 through 23, 2004. The gross amount of the warrant was $1,132.73. After authorized deductions, including taxes and retirement contributions, the net pay to Petitioner was $773.87. The warrant overpaid Petitioner in the amount of $499.76. The warrant paid Petitioner for 60.5 hours of overtime, but Petitioner actually worked only 27.25 hours of overtime. Respondent overpaid Petitioner for 33.25 hours of overtime. During the payroll period at issue, Respondent paid Petitioner a standard hourly rate of $10.85. The hourly rate for overtime was $16.275, equal to the mathematical product calculated when the standard hourly rate of $10.85 is multiplied by a factor of 1.5. The amount of overpayment for 33.25 hours may be calculated mathematically as $541.14, equal to the product determined when 33.25 of overtime is multiplied by the hourly rate of $16.275. The difference between $541.14 and $499.76 is not explained in Respondent's PRO, and Respondent did not order a transcript of the testimony of Respondent's witness during the hearing. The worksheet exhibits purporting to explain the difference are partially unclear copies of the original worksheets. The difference between $541.14 and $499.76 cannot be explained in this Recommended Order based on the available evidence. However, Respondent stipulates that the net overpayment is $499.76. Respondent explicated the reason for the overpayment as a problem encountered during the period in which Respondent converted its payroll system from the Cooperative Personnel System (COPES) to the People First system. In an effort to avoid delays in payroll payments to employees, Respondent requested managers and supervisors to ensure that their employees submit estimated time sheets in advance of the due date. Compliance with the request required employees to estimate their hours for the payroll periods August 27 through September 9, 2004, and September 10 through 23, 2004. For the latter of the two payroll periods, the supervisor for Petitioner submitted an estimated time sheet for Petitioner. Petitioner did not sign the estimated time sheet because Petitioner was not working on the date the supervisor submitted the estimated time sheet. The estimated time sheet predicted Petitioner would work 33.25 hours of overtime during the payroll period. Petitioner actually worked 27.25 hours of overtime during that period and subsequently submitted a corrected time sheet showing the 27.25 hours of overtime actually worked. Respondent paid Petitioner for 60.5 hours of overtime, including both the estimated and actual overtime worked. Respondent is entitled to reimbursement for the amount of overpayment that Petitioner received.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Respondent overpaid Petitioner in the amount of $499.76 and ordering Petitioner to repay the amount of overpayment. DONE AND ENTERED this 31st day of July, 2006, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2006. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Jennifer Parker, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mary Linville Atkins, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Steven Kelm 4589 Las France Avenue North Port, Florida 34286
The Issue The issue is whether Respondent retaliated against Petitioner for signing an affidavit allegedly adverse to Respondent and for testifying on behalf of another employee in a proceeding filed under Section 760.10, Florida Statutes, in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact The Respondent is an employer as defined in the Florida Civil Rights Act of 1992, as amended. At all times material to this proceeding, Respondent employed Petitioner at Respondent's place of business located in Tallahassee, Florida. On March 29, 1990, Petitioner and Respondent's representative signed an Employment Agreement in which Petitioner agreed, inter alia, that during his employment, he would refrain from: (1) performing services for any person, during business hours, or at any other time, when said services were not authorized by Respondent; (2) soliciting work for or accepting any business from any customer of the company on behalf himself or for any others. On March 30, 1990, Petitioner and Respondent's representative signed a Sales Employee Compensation Plan in which Respondent agreed to pay Petitioner a starting salary of $1,200 per month as a guarantee against commission on sales for the first three months. Thereafter, Respondent's salary of $1,200 per month was to be a draw against commission on sales. Petitioner had to sell a minimum of $8,000 per month to earn his draw. Pursuant to the Sales Employee Compensation Plan, Petitioner earned a percent of sales, ranging from 10 percent to 20 percent, depending on the type of service Petitioner sold. He received commissions after the work was completed and the customer paid for the service. For example, Petitioner earned 15 percent of the annualized value of all pest control work, termite work, or special onetime service that he sold. He earned 20 percent of the initial month's service charge on all annual pest control service that he sold provided that he performed the start-up. Respondent paid Petitioner 20 percent of the total value of all real estate inspections (certification or clearance letter) that Petitioner performed. Under the Sales Employee Compensation Plan, Petitioner elected to receive 2.5 percent of monthly net commissionable sales, or $150, whichever was greater, as a gasoline allowance and to furnish his own transportation. However, Respondent's former branch manager gave Petitioner a gasoline credit card and told Petitioner to put the gasoline allowance in his pocket. The record indicates that the former branch manager acted beyond the scope of his authority in this regard. Upon employment, Respondent's former branch manager gave Petitioner a key to the office. Petitioner also received a pest control kit with which to perform the initial pest control treatment after selling a service contract. Respondent gave Petitioner a voice-pager so that he could stay in touch with the office and respond quickly to "office" leads. No other employee had the benefit of a voice-pager. In May of 1990, Petitioner successfully completed a training course in pest control. That September, he completed a course in termite control. On or about January 14, 1991, Petitioner became qualified to prepare wood infestation reports. At all times material to this proceeding, Petitioner was allowed to sell Respondent's services in north Florida and south Georgia. There were two kinds of sales leads. Petitioner could develop his own "creative" leads and sell anywhere within the sales territory of the Tallahassee branch office. Respondent's office manager logged all incoming "phone" or "office" leads and distributed them to the salesmen based on a geographic division of the sales territory. Petitioner lived in south Georgia; therefore, the office manager gave him all "office" leads originating in Georgia and on the east side of Tallahassee. Contrary to Petitioner's testimony, neither the office manager nor any other supervisor ever discriminated against Petitioner by withholding leads from him or by taking the best leads for themselves or another salesman. On or about September 16, 1991, Petitioner sold a customer a termite protection contract instead of a termite service contract on a very expensive home without Respondent's approval. This incident resulted in the preparation of a written Disciplinary Action Report (DAR) which states that Petitioner would be terminated if he could not follow Respondent's policy governing sales of termite protection and service contracts. Respondent's testimony that he signed this DAR under the threat of violence not credible. On February 26, 1992, Petitioner signed an affidavit relating to the employment relationship between Norm Arrington and Respondent. Mr. Arrington had been a salesman for Respondent and Petitioner's coworker. On March 9, 1992, Petitioner performed a wood-destroying organism inspection on residential property in Tallahassee, Florida. Petitioner issued a Form 1145 (October '89) Wood Destroying Organisms Inspection Report without identifying visible and accessible evidence of and damage caused by subterranean termites on the exterior of the structure. The Florida Department of Agriculture fined Petitioner $300 dollars for failing to report evidence of termite damage. Respondent paid this fine on Petitioner's behalf. Petitioner failed to report to work on September 12, 1992, for a sales meeting. He claimed he had an emergency but did not call in to explain his absence. Respondent wrote a DAR dated September 14, 1992, warning Petitioner that he would be suspended without pay for three days or terminated if he repeated this type of conduct. Petitioner presented contradictory record evidence concerning his reason for missing the sales meeting: (a) family medical emergency; and (b) mechanical problem with vehicle. Until October of 1992, Petitioner was successful in meeting or exceeding his minimum quota of $8,000 in sales revenue on an averaged monthly basis. One month he earned an award for being Respondent's top salesman statewide. However, in November of 1992, Petitioner's monthly sales revenues dropped below an acceptable level for an experienced salesman. Thereafter, Petitioner was in overdraw status, averaging between $3,000 and $4,000 per month in sales. Except for the month of February, 1993, Petitioner never again met his monthly minimum quota. At all times material to this proceeding, Petitioner's father owned a construction company. Respondent occasionally hired Petitioner's father to perform termite repair work. Respondent always hired outside contractors to do repair work for customers because of the liability involved and to prevent giving the impression that Terminix, Inc. was in the construction business. Petitioner was also trained as a carpenter. Petitioner admits that, during the months of his highest sales, he solicited and received "building" leads from Respondent's customers. As a result of these leads, Petitioner performed carpentry work, such as building cabinets or repairing damaged woodwork, for Respondent's customers. Petitioner's testimony that Respondent authorized this outside employment is not persuasive. In February of 1993, Tim Carey was Respondent's sales manager. He attended an out-of-town divisional sales meeting and returned to Tallahassee with motivational material to share with his staff. In the material was a poster which stated, "If you don't know where you going . . . you'll probably end up someplace else." Mr. Carey gave a copy of the poster to all salesmen including Petitioner sometime before Petitioner gave testimony adverse to Respondent. Petitioner's testimony that Mr. Carey gave the poster to Petitioner alone as a means of retaliation is not persuasive. On March 22, 1993, Petitioner testified by deposition on behalf of Norm Arrington in an unrelated age discrimination case. Around the end of March or the first of April, 1993, Tim Carey became Respondent's sales manager-in-charge. Respondent's Tallahassee branch did not have a branch manager at that time. Mr. Carey was responsible for all operations under the direct supervision of Ralph Potter, Respondent's regional manager. Mr. Carey officially became branch manager before Respondent terminated Petitioner on June 30, 1993. One of Mr. Carey's first acts as sales manager-in-charge was to change the locks to the office and the pesticide storage room. Petitioner signed a statement that he received a key to the office on March 31, 1993. However, Mr. Carey did not reissue an office key to Petitioner or any other sales representatives because they, unlike route technicians, did not work after normal business hours. Petitioner's testimony that his key was taken away as a discriminatory act is not persuasive. The undersigned also rejects Petitioner's testimony that the office was locked during office hours so that he was unable to use the phone. Mr. Carey also took Petitioner's company gasoline credit card because Petitioner was not entitled to use the card and receive a gasoline allowance too. This action was to enforce company policy, and not to retaliate against Petitioner. Soon after Mr. Carey became sales manager-in-charge, he and the office manager began receiving calls from customers wanting to know when Petitioner was going to finish their carpentry work. Sales meetings were interrupted at times by calls on Petitioner's voice-pager with inquiries about unfinished jobs. On one occasion, Petitioner came to the office at noon with paint on his hands which had been clean earlier that morning. On another occasion Mr. Carey could hear saws operating in the background when Petitioner called the office during business hours. Mr. Carey gave Petitioner repeated verbal warnings not to solicit outside employment or perform outside work for Respondent's customers. After each verbal reprimand, Petitioner would promise that he would stop and that it would not happen again. Mr. Carey eventually took Petitioner's voice-pager away and replaced it with a tone beeper like the ones used by other employees. The purpose of this action was to reduce overhead expenses and alleviate problems with Petitioner abusing the privilege of having a voice-pager. Petitioner could no longer receive direct messages relating to his construction business. Petitioner's testimony that Respondent discriminated against him by taking his voice-pager is contrary to more persuasive testimony. In April or May of 1993, Petitioner performed unauthorized work for one of Respondent's customers who sent one check to pay for a termite inspection and for Petitioner's carpentry work. In order to balance the office books, Respondent deposited the customer's check and wrote a separate company check made payable to Petitioner. Respondent again warned Petitioner not to perform unauthorized work for the company's customers. On May 17, 1993, Respondent prepared another DAR reprimanding Petitioner for two incidents. The first involved Petitioner's issuance of a clearance letter for Ms. Fortune's residence even though Petitioner had identified wood rot on the premises. Petitioner claimed he knew Ms. Fortune and issued the clearance letter based on her promise that she would repair the damage. A subsequent inspection revealed that the customer had not made the repairs. The second incident covered by the May 17, 1993, DAR involved one of Respondent's national relocation customers, Prudential Relocation. Petitioner prepared a wood destroying organism report for the customer without inspecting the inside of the structure. Respondent was responsible for repairing wood rot damage on the house. Petitioner violated Respondent's policy regardless of whether he wrote "exterior only" on the report. Neither party signed the May 17, 1993, DAR. However, Mr. Carey discussed both incidents with Petitioner and warned him that he would be suspended or discharged if: (a) Petitioner gave a clearance letter without inspecting the interior of the structure; and (b) Petitioner issued a clearance letter on a structure with water damage. On another occasion, Petitioner informed Mr. Carey that someone had stollen his pest control kit out of the back of his truck. Petitioner filed a police report on the missing pesticide kit. Several days later, a lady, who was not Respondent's customer, reported that Petitioner left the service equipment at her home after using it to treat her residence. Respondent recovered the missing equipment and did not return it to Petitioner. From that time on, a service technician performed Petitioner's initial pesticide treatments. Petitioner's testimony that Respondent took his pest control kit as a retaliatory act is rejected. Petitioner was not allowed to use the service equipment again because: (a) He left registered material in an unsupervised location; (b) He used the equipment to service a non-customer's property; and (c) He could schedule the start-ups for his new customers through the office. Petitioner's testimony that Respondent took the pest control equipment away and deliberately delayed the start-up service or failed to service on Petitioner's new accounts is not persuasive. On June 8, 1993, Ralph Potter and Tim Carey had a conference with Petitioner. The result of the meeting was a DAR signed by Mr. Potter and Mr. Carey. During the conference, the parties discussed: (a) Petitioner's poor performance for the first week of June, 1993, in which he created only $90 in revenues; (b) Petitioner's poor attitude; and (c) Petitioner's work ethic. Mr. Potter advised Petitioner that he would thereafter be expected to produce $2,500 per week in sales. Petitioner was counseled not to make negative comments, not to perform outside jobs on company time, and not to solicit from or do any work for Respondent's customers. The DAR listed suspension without pay or termination as future corrective action, if required. Petitioner refused to sign the June 8, 1993, DAR. Petitioner's attitude created problems as follows: (1) Mr. Carey had to ask Petitioner to leave a sales meeting because of his negative comments; (2) Petitioner disagreed with Mr. Carey over the proper way to complete required daily written sales reports; (3) Mr. Carey had to ask Petitioner to leave the office by 9:00 a.m. for his first appointment of the day; and (4) Petitioner resented not being allowed to answer the office phone even though company policy dictated that only the office manager, sales manager, or branch manager could answer the phone. Petitioner's testimony that Respondent offered him a job which would have reduced his income significantly is rejected as contrary to more persuasive evidence. Likewise, the undersigned rejects Petitioner's testimony that Ralph Potter physically attacked Petitioner in the men's room during an out-of-town meeting. Respondent discharged Petitioner on June 30, 1993. Petitioner's termination was the result of his unsatisfactory job performance and his failure to follow his supervisors' instructions. There is no persuasive competent substantial evidence to indicate that Respondent retaliated against Petitioner because he participated in a discrimination suit on behalf of a co-worker. To the contrary, Petitioner's employment record presents a history of problems with his supervisors. When Tim Carey became sales manager-in-charge, he and Ralph Potter warned Petitioner repeatedly that, regardless of his past working conditions, Petitioner would be expected to follow company policies. Petitioner's refusal to heed their advice and to increase his productivity resulted in job separation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that the Florida Commission on Human Relations enter a Final Order denying Petitioner's Petition for Relief. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of August, 1995. SUZANNE F. HOOD, Hearing Officer Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995. APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Petitioner's Proposed Findings of Fact Petitioner did not file Proposed Findings of Fact. Respondent's Proposed Findings of Fact 1-3 Accepted as modified in Findings of Fact 1-6. 4-5 Accepted as modified in Findings of Fact 9 & 14. Accepted as modified in Findings of Fact 11 & 18. Accepted in Findings of Fact 10, 13, 25, & 30. Accepted in Findings of Fact 12 except the administrative case involved only one incident. Accepted as modified in Findings of Fact 25-27. Accepted in Findings of Fact 10. Accepted in Findings of Fact 9 regarding leads. However, Petitioner never received a new key from Mr. Carey. Accepted in Findings of Fact 28 & 29. 13-14 Accepted but unnecessary to resolution of case. Accepted. See Findings of Fact 11, 33, & 34. Not a finding of fact. More of a conclusion of law. COPIES FURNISHED: Linda G. Miklowitz, Esquire Post Office Box 14922 Tallahassee, Florida 32317-4922 James M. Nicholas, Esquire Post Office Box 814 Melbourne, Florida 32902 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird General Counsel 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue At issue in this proceeding is whether Petitioner, an employee of the Department of Children and Family Services (the "Department"), was overpaid in the amount of $826.82 and should be required to repay that amount to the Department.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, the following findings of fact are made: On June 5, 1995, Petitioner entered into a settlement agreement with Respondent to resolve certain disciplinary matters not directly relevant to this case. For purposes of this proceeding, the key element of the settlement agreement was that Petitioner would accept a voluntary demotion. The terms of the settlement agreement provided that Petitioner would retain his current salary status for a period not to exceed five years, though it would exceed the maximum for his new pay grade. On June 7, 1995, the Public Employees Relations Commission ("PERC") entered a final order approving the settlement agreement in disposition of Petitioner's complaint. Petitioner did not appeal the final order. Rule 60K-2.004(4)(a), Florida Administrative Code, provides that a demoted state employee's base rate of pay may exceed the maximum of the salary range to which the employee has been demoted for a maximum of five years. Petitioner's base rate of pay was allowed to exceed the maximum of his new pay grade for the full five years. During this period, Petitioner benefited from pay grade increases, received a reclassification of his position, and was not promoted. The five-year period ended in June 2000. Respondent's main office in Tallahassee twice per year issues a computer-generated list of employees receiving pay over the maximum of their pay grades. Human resources employees in Respondent's branch offices then examine the list to determine whether these employees' base rate of pay should continue to exceed the maximum. Respondent issued an "Employees Over Maximum" list in September 2000. Rex Duley of the District 8 human resources office examined the approximately 15 listed names of persons working in District 8. Mr. Duley determined that the applicable five-year period for Petitioner's receipt of pay above his grade had expired in June 2000. Mr. Duley prepared a letter, dated September 11, 2000, notifying Petitioner of the overpayments. The letter stated that Petitioner had received $1,316.11 in gross overpayments since June 2000. Respondent subsequently completed the full computation through the Bureau of State Payroll's automated system, and determined that the net overpayment to Petitioner was $826.82. At the hearing, Petitioner did not dispute the amount of the net overpayment. Petitioner testified that he would be able to repay the money at a rate of $25 to $50 per pay period. Instead, Petitioner sought to introduce evidence calling into question the validity of the 1995 settlement agreement. This evidence was deemed irrelevant and was not admitted. The evidence established that Petitioner voluntarily entered the settlement agreement, did not appeal from the PERC final order adopting the settlement agreement, and accepted the benefits of the settlement agreement for a period of five years. The time for contesting that agreement has long passed. Petitioner also questioned Respondent's diligence in discovering the overpayments. Petitioner was well aware of the five-year limitation on the salary arrangement established by the settlement agreement, and was in at least as good a position as Respondent to know that he was being overpaid between June and September 2000. Petitioner accepted the overpayments without questioning them or calling Respondent's attention to them. Petitioner's contention that he is being penalized for Respondent's lax bookkeeping is thus without merit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $50 per pay period to the Department of Children and Family Services beginning with the pay period immediately following entry of a final order in this case and continuing each pay period thereafter until the overpayment is repaid. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 2001. COPIES FURNISHED: Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Robert J. Richmond 5411 Loyloa Lane Southwest Fort Myers, Florida 33908 Virginia A. Daire, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner Frank Selecky requested a hearing by a letter received in the office of Respondent on March 4, 1981. After the required informal conference with a supervisor in Respondent Department Petitioner requested a formal hearing. On January 8, 1981 Selecky, a white male, filed a Household Application for low income energy assistance. No one in his household is a migrant or migrant farm worker, and no one else has applied for the low income energy assistance. He lives alone and receives a bill for use of liquid propane for heating. By Notice of Application Denial mailed February 18, 1981 Petitioner was informed that he was denied assistance for the reason that his monthly income exceeded the maximum income for a household of his size. Action was taken by Respondent within 45 days of Petitioner's application, and he was promptly notified of the reason for denial of benefits. Petitioner did not dispute the evidence presented by Respondent Department but was convinced the in come limit by household size was unfair, especially since he has no kidneys, is on dialysis, has large medical and automobile fuel bills and is sixty-nine (69) years old. He has had difficulty in collecting his insurance reimbursement. Under Rule 10 CER 80-11.07, Florida Administrative Code, and the applicable chart Petitioner Selecky's income exceeds the income limit of $316.00 for a household of one person.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that low income energy benefits be denied Petitioner. DONE and ORDERED this 6th day of April, 1981, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1981. COPIES FURNISHED: Mr. Frank Selecky Route 2, Box 985 Webster, Florida 33597 James A. Sawyer, Esquire Department of HRS 3001 SW Broadway Ocala, Florida 32671 Susan B. Kirkland, Esquire Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondent, Mark O. Holland, is a licensed registered building contractor holding license number RB 0039443. Respondent was licensed at all times material to this action. Sometime around June 19, 1986, Respondent entered into a contract with Mrs. Mary Sue Thames. Ms. Thames resided in Tennessee. The contract covered Ms. Thames' partially burned out home located at 528 Dement Circle, Panama City, Florida. Respondent was to rebuild the damaged portions of the home and to build an addition onto the home. The contract improvements were to be completed within sixty days of the contract date. The contract contemplated installment payments by Mrs. Thames, by September 5, 1986, she had paid $15,000.00 of the total contract price of $17,300.00 to Respondent. The remaining $2,300.00 was to be paid upon completion of the job. Mrs. Thames became concerned that the job was not progressing in a reasonably timely manner in September 1986 when she visited the job site from Tennessee. She observed that "nothing was done" even though the sixty day contract period had expired. Suppliers were removing items from the job that Respondent had not paid for under the contract. Mrs. Thames throughout the job had telephoned the Respondent weekly to check on the progress. Respondent would assure Mrs. Thames that he would "get right on it" and finish the job. Due to Respondent's assurances, Mrs. Thames elected to stay with Respondent so that he could complete the contract. Respondent never substantially performed the job although he did perform part of the contract. Between September 1986 and January 1987, Mrs. Thames in an effort to get the job finished, paid for supplies and materials that Respondent was contractually obligated to purchase. She paid for sheet rock, vinyl, carpet and doors. Respondent had told Mrs. Thames that he had no money to finish the job and that if she would purchase those materials he could finish the job. Mrs. Thames knew the contract obligated the Respondent to furnish the materials she purchased but was trying to work with the Respondent. The effort did not pay off. Respondent had in effect abandoned the job. As stated earlier, Respondent did not complete Mrs. Thames' job. In March 1987, Mrs. Thames' family assisted her in obtaining other subcontractors and suppliers to complete the job. She incurred costs of $8,000.00 to these subcontractors and suppliers, an amount less than the amount already paid to Respondent. Mrs. Thames testified that at least two subcontractors have not been paid by the Respondent those being Stephens Heating and Air Conditioning and M.D. Stewart Plumbing Company. Mr. Lester Stephens, owner of Stephens Heating and Air Conditioning subcontracted with the Respondent. Stephens' company roughed in the central ducts system valued at $700.00 on September 1, 1986 and as of September 27, 1988, had not been paid by Respondent. Coastal Insulation of Northwest Florida, Inc. filed a lien against Mrs. Thames' property as a result of Respondent not paying for supplies. The lien was apparently discharged by Respondent. Mr. Richard Dodson confirmed the testimony of Mrs. Thames. Mr. Dodson added that in addition to the $8,000.00 Mrs. Thames paid to complete the job, she also incurred hotel and travel bills. She also lost approximately 1 - 1/2 years worth of rental income on the house because of Respondent's misconduct and abandonment of the job. Respondent was disciplined by the Panama City Beach Board of Examiners on September 10, 1987 for misconduct and violations of the Building Regulations and Ordinances of the City of Panama City Beach during the Thames job. Respondent's competency card was revoked by the Board. Respondent has never refunded any of the contract price to Mrs. Thames.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That an administrative fine in the amount of $1,000.00 be levied against Respondent. DONE and ENTERED this 9th day of November, 1988, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2489 The facts contained in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are subordinate. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Tectonics Section Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mark O. Holland Route A, Box 366 Youngstown, Florida 32466 Fred Seely Executive Director Construction Industry Licensing Board Department of Professional Regulation Post Office Box 2 Jacksonville, Florida 32201 Lawrence A. Gonzalez, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
