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
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 is whether Respondent has violated certain child- care standards in the operation of her child-care facility and, if so, what penalty should be imposed.
Findings Of Fact Respondent owns and operates a licensed daycare facility. Her license expires June 30, 1997. On January 28, 1997, during an inspection by Petitioner's inspector, Respondent's facility was inadequately staffed. One staffperson was supervising a group of nine children, three of whom were less than one year old. Also, a child was asleep, unsupervised, in a back room. The inspector also noted on the inspection report that two staffpersons had not completed the required 30 hours of training. Based on Respondent's assurances, the inspector noted on the inspection form that the two employees were enrolled in the 10-hour class that they needed to complete their required training. The January 28 inspection report names the two employees as "Tabitha" and "Donna." "Tabitha" is Tabitha Johnson, whom Respondent hired on January 21, 1997, and who ceased working for Respondent sometime prior to February 17, 1997. "Donna" is not the first name of any of Respondent's employees, but, whoever the inspector intended to name "Donna" also ceased working for Respondent prior to February 17, 1997. The January 28 inspection of staff training was a followup of an inspection on June 14, 1996, at which time the inspector had discovered that four employees were lacking the required 30 hours of training. By letter dated June 24, 1996, Petitioner gave Respondent until December 30, 1996, to correct this violation or face a fine of $25 per day per employee. The inspector reported that these four employees were "Joan," "Dana," "Debbie," and possibly "Westin." On February 12, 1997, a local television-station crew operating a concealed camera visited Respondent's center. Posing as parents interested in placing their child at Respondent's center, the crew videotaped a room that appeared to reveal that a number of children were unattended. However, the evidence failed to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. On February 17, 1997, during another inspection by Petitioner's inspector, Respondent's facility was again inadequately staffed. One staffperson was supervising a group of 13 children, one of whom was less than one year old. The inspector also reported that seven children were playing unsupervised on a patio. However, the evidence fails to establish that the closest staffperson was sufficiently far from the children as to be unable to supervise them. Petitioner has cited Respondent repeatedly for inadequate supervision and has fined her twice in 1993.
Recommendation It is RECOMMENDED that the Department of Children and Family Services enter a final order imposing a $300 fine against Respondent and dismissing the remainder of the charges against her. DONE AND ENTERED in this 27th day of June, 1997, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 on this 27th day of June, 1997. COPIES FURNISHED: Susan Mastin Scott Senior Health Attorney Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Patricia Morman Post Office Box 1153 Fort Myers, Florida 33902-1153 Richard Doran, General Counsel Department of Children and Family Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
Findings Of Fact Genaro H. Rodriguez, Petitioner, was employed by Y.A.C. Electric Corporation, Respondent, as an electrician on the City of Miami Fire Station #5 project during the period February 1976 through September 1977. He did not work on this project every working day during this period. During most of the period involved Petitioner held a Dade County license as a journeyman electrician. Before the job was completed he was licensed as a master electrician. Petitioner was the electrical foreman on the job for Respondent. This project came under the Prevailing Wage law. While working on this project Petitioner was paid $6.50 per hour and later $6.75 per hour. The prescribed prevailing wage for electricians on this project was $10.75 per hour. The difference between the amount Petitioner received while working on this project and the prevailing wage he should have received is $2,429.65. F. Bilboa and Associates was the general contractor on this project and Y.A.C. Electric Corporation was a subcontractor for the electrical work. At the commencement of the project Respondent advised its employees that they would be paid less than the prevailing wage while the work was in progress and when the work was completed they would be paid the difference in a lump sum between what they had been paid and the prevailing wage. Respondent had been a subcontractor with General Electric as prime contractor on an earlier prevailing wage job and pursuant to a similar agreement the prime contractor paid the lump sum difference to the workers to satisfy the prevailing wage law at the completion of the project. In this case, Respondent has been unable to collect what is owed him by the prime contractor and has, therefore, not fulfilled his agreement with Petitioner.
The Issue Whether Respondent has complied with the Final Order of the Florida Commission on Human Relations.
Findings Of Fact On July 9, 1990 after an evidentiary hearing on the Petitioner’s charge of racial discrimination, a Recommended Order was issued in favor of Petitioner. On June 18, 1992, after reviewing Respondent’s exceptions to the Recommended Order and after argument of Respondent’s counsel at a hearing before the Commission, the Florida Commission on Human Relations entered a Final Order in favor of the Petitioner, Ronnie Wideman. The Final Order stated in part: That the Respondent cease and desist from engaging in unlawful employment practices of this nature; That Respondent offer to promote Petitioner to the next available Quality Support Process Engineer or substantially similar position; That Respondent pay Petitioner back pay and benefits to which he would have been entitled had he received the Quality Support Process Engineer position; That Respondent pay Petitioner reasonable attorney’s fees incurred in litigating this claim, and That the Respondent notify the Commission in writing within 20 calendar days of the date of filing this Order of the steps that have been taken to comply with this Order. The Final Order was received by Respondent, filed and forgotten. The person who was responsible for filing and notifying the Pensacola plant of the Order’s requirements was the same person who failed to show for the original hearing in 1990. No appeal of the Final Order was filed by the Respondent. There was no attempt by Respondent to comply with the provisions of the Final Order, including the reporting, promotional and salary requirements of the Final Order. There are two relevant categories of jobs at Respondent’s facilities. There are hourly paid or non-exempt jobs and salaried administrative or exempt jobs. The exemption refers to whether the job is exempt from the union contract and collective bargaining. All of the salaried jobs at Respondent’s facilities are graded based on job responsibilities. The grades range from Grade 8 to Grade 25. The grade of a position relates to a salary structure for each grade. The salary structure provides for a range of salaries divided into thirds. A salary range for a grade often overlaps the salary range for the adjoining grade levels. The salary grade schedules for 1988-1996 are contained in Appendix 1 of this Recommended Order. Petitioner has been continuously employed with Respondent since 1976. He has been employed as a “paper tester/technician” since before the original charge of discrimination was filed in this case and held such a position at the time of the final hearing in 1990. The actual position title has varied over the years and has been assigned to different work sections over the years. However, Petitioner’s work in his job has remained essentially one of testing the quality of the paper Respondent makes and entering the data in the computer for analysis. Although he has never been promoted to the position of shift supervisor, Respondent has at various times filled some of the duties of the shift supervisor’s position, Grade 14. Petitioner has been and continues to be considered a competent and capable employee by Respondent. The position of “paper tester/technician” was throughout the time period involved in the original charge of discrimination to the present an hourly-paid position. Hourly paid employees can be required to work overtime and are paid for overtime work at the rate of the employee’s hourly rate plus one-half the hourly rate. Hourly employees receive pension benefits through a non-contributory plan. Hourly employees also can participate in 401-K retirement plans. The hourly employee’s contributions to a 401-K plan are matched at .50 cents on the dollar by the Respondent. However, the maximum amount an hourly employee can contribute to that employee’s 401-K plan is capped at $800.00. Since 1988, Petitioner’s hourly rate of pay has been, as follows: Ronnie Wideman SSN 250-94-9677 Position Effective Date Hourly Rate of Pay Paper Test 3B 08/01/88 $13.39* Paper Test 4B 03/23/89 13.90* Paper Test 4B (GWI) 07/01/89 14.25* Paper Test 4B (GWI) 07/01/90 14.54* Paper Test 4B (GWI) 07/01/91 14.90* Paper Test 4BC 05/09/92 15.46* Paper Test 4BC (GWI) 07/01/92 15.85* Paper Test 4BC (GWI) 07/01/93 16.25* Central Lab D 12/13/93 16.67 Paper Test 4BC 05/10/94 16.25* Paper Test 4BC (GWI) 07/01/94 16.66* Central Lab D 07/18/94 17.09 Central Lab 2D 08/26/94 17.29 Paper Test 4BC 04/05/95 16.66* Paper Test 4BC (GWI) 07/01/95 17.16* Central Lab 2D 01/23/96 17.81 Central Lab 3D 03/04/96 18.04 Central Lab 4D 05/10/96 18.24 Central Lab 4D (GWI) 07/01/96 18.79 Central Lab Family E 10/03/96 19.71 Petitioner also received at various times throughout the time period shown above an additional $.73 cents an hour for every hour worked as a Continuous Process Allowance for the difficulties of maintaining a four-shift job schedule necessitating working approximately 2300 hours per year. The pay periods during which Petitioner received the added Continuous Process Allowance are marked with an asterisk. The position of Quality Support Process Engineer was the position to which Respondent unlawfully failed to promote Petitioner and formed the basis of the original charge of discrimination. In 1988, when Petitioner should have been promoted, there were two openings for a quality support process engineer. The grade level was not advertised, but Respondent was told by a lab technician that the salary would range from $40,000.00 to $45,000.00 per year. The $40,000.00 range would have caused the position to fall within the grades 11, 12, 13 or 14. 11. The position of Quality Support Process Engineer was a salaried position with an annual salary based on the position’s grade level and the employee’s credentials and experience. As a salaried employee, the employee does not receive overtime pay, but still may be expected to work overtime in order to perform all the responsibilities of the position. Salaried employees receive pension benefits and can make up to a 6 percent contribution to that employee’s 401-K retirement plan which is matched at .50 cents on the dollar by Respondent. There is no cap on the amount of the contribution other than the 6 percent contribution. The position involves the supervision of the work of the “paper testers/technicians” and the laboratory in which the paper testing is performed. The position also involves attempting to resolve poor paper quality issues, as well as coordinating paper quality problems or issues with senior and field engineers and customers. Respondent prefers a person with a science degree to fill this position, but, as is obvious from the promotions described later, also recognizes a person’s knowledge gained through work in the paper field. In the past, Respondent has promoted employees to the position of Quality Support Process Engineer or similar position’s based on field experience absent a scientific degree. The position has had various titles and been housed in different areas due to Respondent’s reorganization of the various processes of papermaking. Those processes are cutsize, offset, market pulp and pulp. Essentially, Respondent has reorganized its work force at least twice. Beginning in 1991, The technical (paper testers) department and the quality departments were combined into a centralized technical department. The reorganized department still had people which performed quality process engineer functions, shift supervisors and paper testers. In fact, the functions of each person’s job didn’t substantially change. In 1995, the centralized department was eliminated and the technicians, quality support and supervisors were distributed between the various systems of cutsize, offset, market pulp and pulp. At about the same time, the shift supervisor positions were eliminated. The people who filled those positions remained, but transferred to more defined quality support positions under a new engineer grade system. In August of 1988, Charles C. “Red” Bradford (white male) was promoted to one of the two Quality Support Process Engineer positions. Mr. Bradford had been employed at Champion since 1956. Considerably longer than Petitioner. For a year prior to his promotion, Mr. Bradford had worked as the shift supervisor. Prior to shift supervisor, he had been a paper tester along with Petitioner. Upon promotion he received a salary of $45,500.00, even though he did not have a college degree. The position carried a grade level of 14. Mr. Bradford’s promotion was not discriminatory because of his greater experience in papermaking. At the same time, Kathy Dyess (white female), who was hired in 1983 performed the duties of an administrative clerical secretary but had a college degree in biology, was promoted to the second opening for Quality Support Process Engineer. She received a salary of $26,500.00 The position carried a level of Grade 10. Her promotion was discriminatory because of her lesser qualifications for the position when compared to Respondent’s. Because she had fewer qualifications for the position her starting position and subsequent work history since 1988 cannot be used to establish the salary Petitioner should have had if he had been promoted instead of Ms. Dyess. Clearly, Petitioner was entitled to make more than Ms. Dyess given his greater qualifications. Promotions which occurred in later years to substantially similar quality support positions given to David Currey and William Findley reflect a salary and grade level of Neither David Curry, nor Charles Findley had a college degree in the hard sciences, David Currey was hired as an hourly employee in 1971, four years before Petitioner, but is the most similar to Petitioner. Charles Findley was hired as an hourly employee in 1959 and is more similar to Red Bradford based on his greater number of years of experience. Both Mr. Currey and Mr. Findley were shift supervisors prior to their promotions to positions similar to Quality Support Process Engineer. Thus, except for Kathy Dyess’ promotion to Quality Support Process engineer, the evidence demonstrates that the position of Quality Support Process Engineer to which Petitioner should have been promoted carried a grade level of 14 and in 1988 a salary range of $35,800.00 to $57,400.00.1 Moreover, what is very clear from the evidence is that even though Mr. Curry had considrably less work experience at Champion, both men received salaries around the mid-range of the grade 14 salary range throughout the years they were grade level 14 employees. As senior and junior employees the difference between their salaries varied but fell around $2300.00. Therefore, in 1988 Petioner was entitled to receive compensation approximately $2300.00 less than the compensation received by Mr. Bradford. Petitoner’s increase in salary should have been to an hourly rate based on an annual salary of $43,200.00 for a 40 hour work week and 52 weeks in a year, i.e. an hourly rate of $20.77. In the years following 1988, Petitioner should have received increases in his salary based on a mid-range performance rating of 3, utilizing the upper percentage increase for that performance rating. Generally, both Mr.Curry and Mr. Findley received slightly more than the highest percentage rate for their performance rating. The current equivalent positions to the Quality Support Process Engineer are spread over a grade 10 Assistant Engineer, grade 11 Associate Engineer, grade 12 Engineer, grade 13 Process Engineer and grade 14 Senior Process Engineer. The evidence demonstrated that both Findley and Curry were brought into the new job classifications at level 14 around 1995. Given the fact that David Curry’s career tract is simmilar to what Petitioner’s would have experienced if he had received the promotion he was entitled to, he would have in 1995 received a similar position to grade 14 Senior Process Engineer and is entitled to receive a salary within that range for 1995. However, by 1995, Findley and Curry both had the opportunity to increase their skills and maintain their salary grade level under the 1995 engineer grade positions. Had Petitioner been promoted in 1988, he to would have had the requisite experience and skills to qualify for a grade level 14 as defined in 1995. For that reason Petitioner is entitled to receive an equivalent level of pay. The issue is different as to what level of position would be substantially equivalent to what he should have received in 1988. The best evidence, reflects that such a position would fall into the Grade 12 Engineer category. The evidence did not show that such a position with the Grade 14 level of salary was offered to Petitioner, but were only discussed. Petitioner, therefore, remains entitled to the first available Engineer position or its substantial equivalent, but at the salary he should have received if he had been able to pursue a normal course of employment. Finally, Petitioner has had to pay attorney fees and costs for the original 1990 proceeding and this motion proceeding in the amount of $4,482.30 for attorney fees and $1,023.73 in costs. The costs for mail fees and car rental have been disallowed. These fees and costs are reasonable and Petitioner is entitled to receive them from Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
