Findings Of Fact On or about September 25, 2010, Petitioner filed a Charge of Discrimination against Respondent with the FCHR. Pursuant to the FCHR's procedure, an investigation of the matter was completed, that resulted in a Notice of Determination: No Cause. Essentially, the FCHR found that based upon the allegations raised by Petitioner there was no reasonable cause to believe an unlawful employment practice occurred. Thereafter, Petitioner elected to file a Petition for Relief to challenge the determination, and to seek relief against Respondent for the alleged violation. The FCHR forwarded the matter to DOAH for formal proceedings. DOAH issued a Notice of Hearing on April 15, 2011, that was provided to all parties at their addresses of record. It is presumed, the parties received notice of the hearing date, time, and location. In fact, counsel for both parties did appear. Prior to the hearing, the parties engaged in discovery and Petitioner participated in a deposition on or about May 24, 2011. It is undisputed that Petitioner knew or should have known of the hearing date, time, and place.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 30th day of June, 2011, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 June, 2011. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 W. John Gadd, Esquire The Law Offices of W. John Gadd 2727 Ulmerton Road, Suite 250 Clearwater, Florida 33762 Glenn Michael Rissman, Esquire Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterman, PA 200 East Las Olas Boulevard, Suite 2100 Fort Lauderdale, Florida 33301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact On May 18, 1992, a Notice of Hearing was issued setting the date, time, and place for the formal administrative hearing. The Notice of Hearing was sent by United States mail to the Petitioner and his counsel at the addresses listed in the Petition for Relief and accompanying information. Petitoner's attorney appeared at the hearing. However, even though Petitioner received adequate notice of the hearing in this matter, the Petitioner did not appear at the place set for the formal hearing at the date and time specified on the Notice of Hearing. The Respondent was present at the hearing. The Petitioner did not request a continuance of the formal hearing or notify the undersigned or his attorney that he would not be able to appear at the formal hearing. Petitioner was allowed fifteen minutes to appear at the hearing. As a consequence of Petitoner's failure to appear, no evidence was presented to support Petitioner's case. Specifically, no evidence of discrimination based on handicap or race was forthcoming. Therefore, Petitioner's attorney was advised that the Petition for Relief would be dismissed and a Recommended Order entered recommending the Commission do likewise.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing the Petition for Relief. DONE and RECOMMENDED this 14th day of September, 1992, at Tallahassee, Florida. COPIES FURNISHED: Robert Allen, Esquire 322 West Cervantes Street P.O. Box 12322 Pensacola, Florida 32581 Joseph L. Hammons, Esquire 17 West Cervantes Street Pensacola, Florida 32501 Margaret A. Jones Agency Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32399-1570 DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The De Soto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1992.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Petitioner was employed by HRS at the Broward County Public Health Unit ("BCPHU") as a Fiscal Assistant II, a career service position. Petitioner began working for HRS in approximately August, 1973. From approximately July of 1986 through July of 1991, Petitioner's supervisor at BCPHU was Sylvia Villafana. During this time period, Ms. Villafana frequently counseled Petitioner regarding excessive absenteeism and tardiness which interfered with Petitioner's ability to meet necessary deadlines at work. Even before 1986, Petitioner's personnel record reflects excessive use of sick leave and problems with prompt and consistent attendance at work. These issues were discussed with Petitioner on several occasions. In March of 1991, Ms. Villafana scheduled a meeting for March 21, 1991, with Petitioner and Jeff Keiser, the personnel manager for BCPHU. At that meeting, Ms. Villafana intended to issue a written reprimand to Petitioner regarding excessive absenteeism. The March 21, 1991, meeting was scheduled to begin at 2:00. Petitioner left the BCPHU building at approximately 1:00 p.m. that day and did not attend the meeting. Petitioner contends that she was having chest pains and went to the hospital that afternoon. Petitioner did not advise her supervisor that she was leaving the premises. Petitioner did advise at least one co-worker at BCPHU that she was leaving. The next day, Petitioner's daughter called Ms. Villafana and told her that Petitioner was in the hospital. Ms. Villafana told Petitioner's daughter that documentation would be needed of Petitioner's medical problems. No records of Petitioner's hospitalization were ever presented to Ms. Villafana or any other HRS supervisor. Petitioner was apparently discharged from the hospital on the evening of March 22, 1991. Petitioner contends that she called Ms. Villafana on Monday, March 25, and told her that she was still under a doctor's care and that she would return to work as soon as he released her. Ms. Villafana contends that the telephone conversation did not occur until March 29, 1991. In any event, Petitioner did not ask for authorized leave. During the telephone conversation, Petitioner indicated that she had a doctor's appointment on April 2. Ms. Villafana told Petitioner that medical documentation of her problem would be necessary. On April 3, 1991, Petitioner did not return to work. At this point, Ms. Villafana had virtually no information regarding Petitioner's alleged illness and/or condition. Ms. Villafana inquired of other employees regarding Petitioner's condition, but was unable to learn anything more. On the afternoon of April 3, 1991, Petitioner contacted Ms. Villafana and indicated that she would be back to work on April 9, 1991. The April 3 conversation was acrimonious. Because there were several large project deadlines coming due, Ms. Villafana emphasized that medical documentation was needed to support Petitioner's claim of illness. Petitioner did not show up for work on April 9, 1991. On April 10, 1991, Petitioner called and told Ms. Villafana that she was mailing in notes from her doctors and then hung up. On April 11, 1991, Ms. Villafana found notes from two doctors on her desk. The notes were submitted into evidence at the hearing, but were not authenticated by the physicians who purportedly authored them. One of the notes was allegedly from Dr. Murillo, a cardiologist. This note indicated that Petitioner would be able to return to work on April 15, 1991. The second note was from Dr. Love, an orthopedic surgeon, who indicated that he was scheduled to see Petitioner again on April 24, 1991, and that Petitioner was "unable to return to work" until then. No explanation was given as to the nature of Petitioner's injuries. At the hearing in this case, Petitioner contended that she was seeing Dr. Love in connection with injuries supposedly received during an automobile accident on February 20, 1991. No persuasive evidence was presented as to the nature and extent of those injuries. The car accident occurred on the evening of February 20 and Petitioner reported to work the next day. No evidence was presented to establish that Petitioner missed any work as a result of the car accident prior to the time she left work on March 20, 1991, complaining of chest pains. Ms. Villafana advised Petitioner that the doctor's notes submitted on April 11 did not provide adequate documentation of her medical condition and/or inability to work. Petitioner did not report to work on April 25, 1991, and did not contact her supervisor. Neither Ms. Villafana nor the personnel office had a home phone number or current residence address for Petitioner. One of Petitioner's friends gave Ms. Villafana a P.O. Box number which Petitioner was using as a mailing address. On April 30, 1991, Ms. Villafana prepared a letter which was sent to Petitioner at her last known address and by certified mail to the post office box. That letter advised Petitioner that as of the close of business on Monday, April 29, 1991, she was absent without authorized leave and was in jeopardy of being deemed to have abandoned her position. The letter noted that the last medical excuse from Dr. Love expired as of the end of the normal work day on April 24, 1991. The certified letter was not claimed. On April 30, 1991, Petitioner spoke with Jeff Keiser who advised her that she would be receiving a letter regarding the possible abandonment of her position. Petitioner did not request and was not given authorized leave. During one of their conversations over this period of time, Ms. Villafana advised Petitioner that she should document in writing a request for leave. No such written request was ever received. Also during one of these conversations, Petitioner acknowledged that she had received the April 30, 1991 letter. On May 2, 1991, Ms. Villafana received two additional notes on Dr. Love's letterhead. One of the notes was dated April 24, 1991, and indicated that Petitioner was scheduled for a follow up visit on May 8, 1991. The second note was dated May 1, 1991, and indicated that Petitioner was unable to return to work for two weeks. The note on Dr. Love's letterhead dated May 1, 1991, included some information regarding Petitioner's alleged medical problems. However, Ms. Villafana advised Petitioner that she needed additional information regarding her condition. On May 13, 1991, Petitioner provided Ms. Villafana with a note on Dr. Love's stationery dated May 8, 1991. This note indicated that Petitioner was unable to work for two more weeks and was scheduled for a follow up visit on May 22, 1991. Ms. Villafana spoke with Petitioner on May 23, 1991. During that conversation, Petitioner indicated that she was returning to the doctor on May 30 and hoped to be in the office on May 31. Petitioner did not show up for work on May 31, 1991. On June 3, 1991, Petitioner called Ms. Villafana and advised her that she was going to see the doctor and, if he released her, she would be back at work on Wednesday, June 5. Petitioner did not show up for work on June 5, 1991. On June 20, 1991, Ms. Villafana received a note on Dr. Love's office letterhead indicating that Petitioner visited his office on June 14, 1991, and was unable to return to work for one week. Around this time, another note was received which indicated that Petitioner had an office visit on June 7, 1991, and was unable to return to work for one week. In a letter dated June 21, 1991, Ms. Villafana advised Petitioner that her [C]ontinued actions have placed [her] employment with the HRS BCPHU in serious jeopardy. Leave of absence (sick leave and/or leave without pay) was never formally requested by you since your midday departure on 3/20/91 and was, therefore, not approved. Chapter 22A-8.002 of the State of Florida Career Service Personnel Rules and Regulations states that 'the granting of any leave of absence with our without pay shall be in writing and shall be approved by the proper authority within the agency.' This was not done. On various occasions, I requested that you inform me of your intentions in reference to your leave, which you did not communicate to me, your supervisor, of your plans. As of this date, you have been on unauthorized leave for three months... All avenues of communication to you have been exhausted; I am unable to call you because you state that you have no telephone; certified mailings to your P.O. Box and various addresses have been returned unclaimed; etc. On the few and far between telephone calls from you, I received the run around stating that medical notes are forthcoming in the mail. This practice will no longer take effect. You are therefore, Ms. Gray, to return to work on 8:00 a.m. on Monday, July 1, 1991... The June 21, 1991 letter was sent to Petitioner by certified mail. Copies were also sent to Petitioner's P.O. Box and last known address in unmarked envelopes. Petitioner did not show up for work on July 1, 1991. During the hearing, Petitioner contended that she did not receive the June 21 letter until July 3, 1991. Petitioner contends that Dr. Love did not release her to return to work until July 10, 1991. Petitioner admitted during the hearing that she spoke to Ms. Villafana and Mr. Keiser on July 3, 1991. Neither of these supervisors gave her authorization for any additional leave. Petitioner contends that she told them that she would not return to work until released by her physician. There is no evidence that either Ms. Villafana or Mr. Keiser granted her leave to remain absent for any additional time. On July 10, 1991, Petitioner contacted her supervisor about returning to work, but was told that she was deemed to have abandoned her position. At the hearing Petitioner produced two typewritten notes on the stationary of Dr. Love dated June 21, 1991, and July 10, 1991 (Petitioner's Exhibits 4 and 2). Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. As noted above, Dr. Love did not testify at the hearing. These alleged records of Dr. Love's treatment of Petitioner were not provided to Ms. Villafana or the BCPHU Personnel Office until after Petitioner as deemed to have abandoned her position. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Love's reports prior to receiving the June 21, 1991 certified letter. However, the more credible evidence established that from June 20 through at least July 10, neither Ms. Villafana nor the Personnel Office was provided with any documentation from any physician that Petitioner was unable to work. The evidence established that from June 21, 1991, until July 10, 1991, Petitioner did not show up for work, did not provide any additional documentation regarding her absences and was not granted authorized leave. During the time she was employed at BCPHU, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. Ms. Gray should have been aware of the requirements regarding sick leave and leaves of absence and her need to provide documentation regarding her course of treatment to the BCPHU Personnel Office. By certified letter dated July 25, 1991, Respondent advised Petitioner that she was deemed to have abandoned her career service position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order finding that Inez Gray abandoned her career service position with HRS and is not eligible to be reinstated or to receive any back pay. DONE and ENTERED this 7 day of August 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 7 day of August 1992. APPENDIX Only Petitioner submitted a proposed findings of fact. The following constitutes my rulings on those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Subordinate to Findings of Fact 7 and 24. Rejected as not supported by the weight of the evidence. This subject matter is addressed in Findings of Fact 24. The last note submitted was dated June 14, 1991 and indicated that Petitioner was unable to return to work for one week. This last note was received by Petitioner's supervisors on June 20, 1991. Adopted in pertinent part in Findings of Fact 19-22. Subordinate to Findings of Fact 22. Adopted in substance in Findings of Fact 33. The first sentence is subordinate to Findings of Fact 25 and 27. The second sentence is subordinate to Findings of Fact 26. Rejected as vague and unnecessary. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry Strong, Acting Secretary Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Augustus D. Aikens, Jr., Esquire Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Ben Patterson, Esquire Patterson & Traynham 1215 Thomasville Road P.O. Box 4289 Tallahassee, Florida 32315 Judith C. Engelberg Acting District Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301-1885
The Issue The issue addressed in this proceeding is whether Respondent's correctional officer's certification should be disciplined.
Findings Of Fact Linda S. Linton was certified by the Criminal Justice Standards and Training Commission on May 27, 1988, and was issued Certificate Number 11-87- 502-04. Respondent began her employment with the Department of Corrections as a Correctional Officer I at Calhoun Correctional Institution on May 27, 1988. She has continued in that position to the present. During her years with the Department, Ms. Linton received overall achieves performance standards ratings and has been rated as exceeding her standards in several specific categories. Her performance appraisals indicate that she excelled in the following areas: supervision of inmates in her area of responsibility; adherence to Department rules, regulations, policies and procedures; completion of all written reports and assignments in an accurate, concise and neat manner within specified time limits; maintenance of control of the inmate population through counseling and appropriate disciplinary actions; and completion of other related duties as assigned within specified time frames and according to supervisors' instructions. The comments of her supervisors indicate that Ms. Linton is considered to be a conscientious, dedicated, reliable and dependable employee. However, in 1990, she was suspended 120 days for the misdemeanor conviction which is the subject of this case. Other than the discipline imposed by the Department of Corrections, the misdemeanor conviction has not affected or impaired Respondent's ability to perform her duties as a correctional officer. The misdemeanor conviction in this case occurred after her licensure. However, the facts giving rise to the conviction occurred prior to her licensure as a correctional officer. Prior to her employment with the Department of Corrections, Ms. Linton worked as a clerk in the Post Office. The Post Office was located in the Fiesta Food Store at Mexico Beach, Florida. Beginning in early 1987, Ms. Linton's duties included assisting Janis Brownell, the senior clerk at the post office, in the postal unit, putting up mail, waiting on the postal window, operating the cash register, selling postage stamps and money orders to the public and accepting items for mailing. Isaac "Ike" Duren and his brother operated the Mexico Beach Branch Post Office for a monthly fee pursuant to a contract with the United States Postal Service. Mr. Duren also was and is a real estate broker. His brokerage office was located within a block of the Post Office. Ms. Linton had known the Duren family for approximately twenty years. She worked for Ike Duren's father at the convenience store for seven years prior to being hired by Ike Duren at the Post Office. Her pay was $2.35 per hour at the Post Office. While working full-time at the Post Office, Ms. Linton attended night school at Gulf Coast Community College for four hours a night, five nights a week. Ms. Linton attended school in order to obtain the necessary educational credentials to become certified as a correctional officer. On weekends, she practiced at the firing range to achieve the level of firearm proficiency required for certification. The Post Office generally maintained an inventory valued at around $5,000.00. The safe for the Post Office was located at the back of the area Mr. Duren provided for the Post Office. Those persons having access to the safe included Linton, Judy Hendricks, Janis Brownell, Ike Duren and his wife, as well as one or two employees of Duren's real estate office, Gulfaire Realty. On more than one occasion when she reported to work, Linton found that the safe had been left open overnight. The cash/stamp drawer containing stamps and money was located at the front of the Post Office. At night, the cash/stamp drawer was removed from the front of the Post Office and placed in the safe. The key to the drawer remained in the drawer during working hours. The drawer was never locked during either the day or night. The Post Office inventory was not audited when Linton began her employment. However, the inventory was apparently short at that time by about $50.00. It was common practice for Gulfaire Real Estate employees to take sheets or rolls of stamps from the Post Office and leave slips of paper in the drawer denoting the amount taken. On several occasions Ms. Linton saw two or three slips in the drawer. She had been advised to remove the slips if a postal inspector came to the Post Office. Janis Brownell handled the slips from the real estate office, ordered stamps and other supplies, and completed the daily worksheets. The daily worksheets showed the "running totals" of cash received and expended as well as inventory items received and sold to the public. These daily worksheets were sent to the Panama City Post Office. Either Judy Hendricks or Ms. Linton ordered inventory and completed the daily worksheets when Ms. Brownell could not. When Ms. Brownell could not be at the Post Office during regular working hours because of illness or death in her family, she would sometimes come in after hours to handle the ordering and accounting matters that Ms. Linton did not know how to do. Ms. Linton and Ms. Brownell discussed the shortage in the inventory/cash several times prior to late 1987 when Ms. Brownell performed an audit. The audit verified a shortage of approximately fifty dollars. Around Christmas time of 1987 Ms. Linton and Ms. Brownell discussed the possible need to notify the postal inspectors so that they could audit the post office. Ms. Linton does not know whether Ms. Brownell discussed the shortage with Mr. Duren. Ms. Linton did not tell Mr. Duren of the shortage at that time since it was Ms. Brownell's duty to inform Mr. Duren. Eventually, however, Mr. Duren became aware of the shortage in the Post Office. In February, 1988, at Duren's request, two postal inspectors audited the Mexico Beach Post Office. The audit revealed a shortage of $2,545.69 in the $5,000 inventory for which the contract unit was accountable. Upon questioning by the postal inspectors, Ms. Linton admitted that she had occasionally taken small amounts of money from postal funds in the cash/stamp drawer to purchase cokes or cookies at the convenience store. She believed such actions to be common practice and did not intend to steal any money since she intended to pay the money back when she left employment with Mr. Duren. She did not know the total amount she had taken. The postal inspectors prepared a statement for Linton to sign which estimated $600 as the amount of money she had taken. The postal inspectors told Ms. Linton that she could avoid prosecution if she made restitution for the total shortage and signed the statement they had prepared. She voluntarily signed a statement acknowledging that she had taken approximately $600.00 from the contract Post Office for her own use, without returning same. She told the inspectors as well as Mr. Duren that she had not taken the amount they estimated or the much larger total shortage of $2,545.69. However, she agreed to pay the entire amount of the shortage to Mr. Duren in order to put the matter behind her and move on to finishing her certification requirements. Ms. Linton agreed to the settlement as stated by the postal inspectors and signed papers which she thought satisfied all matters with the Postal Service. Both Respondent and Mr. Duren understood that if Respondent repaid the amount of the shortage ($2,545.69), the Postal Service would take no further legal action against her. As the postal contractor ultimately responsible for the postal contract, Mr. Duren immediately paid the Postal Service the entire amount of the shortage. Mr. Duren withheld Ms. Linton's last paycheck and applied it to the total she owed him of $2,545.69. Additionally, on March 21, 1988, Ms. Linton paid Mr. Duren $900.00 towards repayment of the shortage. Mr. Duren had kept in contact with the Postal Service "every so often" to inform them whether Ms. Linton had made full restitution. On May 19, 1988, a postal inspector came to Ms. Linton's house, showed her his badge identifying himself as a "Postal Inspector," and told her she had to pay full restitution that day or be taken to jail. She unsuccessfully attempted to borrow the amount of the shortage remaining unpaid. 1/ Ms. Linton could borrow only $1,000.00 from her brother-in-law Johnny D. Linton. Johnny D. Linton had borrowed the $1,000.00 on his signature at Northwest Finance in Port Saint Joe. Ms. Linton told the postal inspector that she had tried to obtain the entire amount she owed but could not get all of it. She gave the inspector the $1,000 and received a receipt for the payment. The postal inspector, who had apparently been in contact with Mr. Duren, told Linton she had to "work out something" with Mr. Duren for the remainder of the shortage. Following her conversation with the postal inspector, Ms. Linton drove to the real estate office to talk with Mr. Duren about the balance she owed after the $1,000.00 payment. The postal inspector, who drove in his own car, arrived at the real estate office after Ms. Linton and gave Mr. Duren the $1,000.00 payment. Mr. Duren told Ms. Linton that the postal inspector was waiting for his acknowledgment that the matter of restitution had been settled. To settle the matter, Ms. Linton signed a promissory note in the amount of $1,161.50 that Mr. Duren had prepared. The amount of the promissory note was calculated by Mr. Duren and was purported to be the balance Linton owed on the $2,545.59 shortage, after she had paid her last paycheck and $1,900. Added to the shortage were Mr. Duren's attorney's fees. Again, the figures used by Mr. Duren, did not add up to the shortage amount plus a reasonable attorney's fee. In addition to the promissory note, Duren's attorney, Tom Gibson, had prepared a mortgage for Linton's signature. The mortgage referred to an "Exhibit A" where the property description would ordinarily have been. Exhibit A was either not attached to the mortgage or Respondent did not look at it when she signed the mortgage. Ms. Linton understood that the mortgage referred to the property on which her home was built, Lots 8, 9 and 12 in Bay View Heights. She also understood that the mortgage would not "have to come into effect" since she signed the promissory note. Unknown to Respondent, Exhibit A mortgaged Lots 8, 9 and 12; and Lots 7, 10 and 16, Block F, in Bay View Heights. All of Respondent's property was also owned by her husband as tenants by the entirety. Her husband did not sign the mortgage and the mortgage was invalid as a lien against the property and particularly invalid against the homestead property. 2/ Ms. Linton owned no property apart from the property she and her husband owned jointly. Mr. Duren knew Ms. Linton was married, knew her husband, knew where their home was built, and knew the approximate value of lots in Bay View Heights. Mr. Duren was a real estate broker but did not obtain the husband's signature or verify in any way that the husband's signature was not needed on the mortgage he obtained from Respondent. 3/ Ms. Linton and her husband had purchased Lot 16, Block F from Quality Services, Inc., in Marianna under an agreement for deed and were making monthly payments on the Lot. Lot 7, Block F had two $35,000 mortgages on it, one to AVCO Financial Services and the other to Citizens Federal. Lot 10, Block F had no mortgage on it. The Lintons built a house in 1986 on Lots 8, 9 and 12 to replace their house that had burned in 1985. On November 24, 1987, the new house was appraised at $100,000. They attempted to mortgage the house and property to AVCO Financial Services for $35,000. However, the mortgage was mistakenly placed on Lot 7. Subsequently, Citizens Federal repeated the AVCO mistake and placed a second mortgage for $35,000 on Lot 7 instead of on Lots 8, 9 and 12, as intended. The mistakes on lot identification were not discovered by the Lintons, AVCO or Citizens Federal until AVCO started to foreclose its mortgage. In an effort to clear title and place AVCO in the position it should have been in if the property description in AVCO's mortgage had been correct, the Lintons executed a quit claim deed on their home and lots 8, 9 and 12 on September 1, 1988, in lieu of foreclosure and corrected the prior mortgage error on Lot 7. On September 28, 1988, the Lintons deeded Lot 16 back to Quality Service in lieu of foreclosure. In connection with returning Lot 16 to the original owner, Respondent signed an Affidavit under oath, attesting that no mortgage or lien existed against Lot 16. At the time she signed the affidavit she believed there was no mortgage or lien existing on the property. Moreover, apart from her belief, Mr. Duren's mortgage was invalid as either a mortgage or a lien. Both legally and factually there was no mortgage or lien in existence on Lot 16 and Respondent is not guilty of any false statement or perjury. Therefore, the portions of the Administrative Complaint and amended Administrative Complaint relating to this affidavit should be dismissed. Ms. Linton had a number of financial difficulties and was unable to pay the $1,161.50 balance to Mr. Duren promptly. Mr. Duren wrote the postal inspector to encourage the Postal Service to criminally prosecute Ms. Linton and filed civil suit on the note against Ms. Linton. The civil suit resulted in a default judgment. Mr. Duren then wrote the superintendent at Calhoun Correctional Institution to tell him "what kind of employee he had" and to see if the superintendent would get Ms. Linton to make monthly payments on the default judgment he had obtained. On December 20, 1988, the Grand Jury issued an indictment charging Ms. Linton with knowingly converting to her own use public funds entrusted to the United States Postal System of a value in excess of $100.00 in violation of Title 18, United States Code, Section 641. Pursuant to this indictment, the federal court issued a warrant for her arrest. Ms. Linton was unaware of either the indictment or the warrant for her arrest until the United States Marshall's Office telephoned her and notified her that it had a felony warrant for her arrest. In response to this notice, Ms. Linton drove to Panama City to be arrested and was released. The following day Ms. Linton consulted her supervisor, Lieutenant Durham, and reported her arrest in a letter to the superintendent at Calhoun Correctional Institution. On June 29, 1989, the United States Attorney executed and filed an information that amended the charge against Ms. Linton to encompass a lesser period of time and a value of less than $100.00, thus, reducing the offense from a felony to a misdemeanor. Linton pled guilty to the charge as amended without going to trial. The United States District Court, Northern District of Florida, convicted her of violating the misdemeanor provision of Title 18, Unite States Code, Section 641, suspended her sentence and placed her on probation for a period of three years. Linton has voluntarily continued to pay restitution even though that was not a term of her sentence. Linton notified the Department of the proceedings in her case as they occurred. The evidence was neither clear nor convincing that Respondent committed any felony offense against either the U.S. Postal Service or Mr. Duren. The evidence did demonstrate that Petitioner committed the misdemeanor offense of petty theft. However, even with this conviction, given the underlying facts of this case, the evidence did not demonstrate that Respondent lacked good moral character or is dishonest or unfair. In fact, the unrebutted evidence from her peers is that she possesses good moral character and should be allowed to continue as a correctional officer. The portions of the Administrative Complaint and amended Administrative Complaint relating to this misdemeanor conviction should be dismissed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the amended Administrative Complaint filed against Linda S. Linton be dismissed. RECOMMENDED this 28th day of October, 1991, in Tallahassee, Florida. DIANE CLEAVINGER 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 28th day of October, 1991.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
Findings Of Fact The Other Eligibility Criteria The Petitioner is a corporation formed in 1984, whose sole stockholder, only Director, and President is Kathleen Weber, a minority person. Respondent, Department of General Services (DGS) concedes that Petitioner corporation meets all eligibility criteria for certification as a Minority Business Enterprise (MBE) except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility in this regard hinges on the employment of "25 or fewer permanent full-time employees." Petitioner engages in the provision and installation of plumbing, HVAC ventilation, fire protection, process piping, and potable and waste water systems in the commercial construction field. Permanent, Full-time Employees Ms. Weber claims no part-time employees and considers all employees to be full-time. That is, all employees work, when they work, for a full forty hours per week. However, Ms. Weber classifies her employees, as of date of formal hearing, into two categories of full-time employees: office employees and field employees. Petitioner asserts that the office employees are permanent, while the field employees are not permanent. At the time of the hearing, petitioner had twelve permanent office employees whose positions included Ms. Weber, six project managers, accounting and estimating personnel, and clerical help. Office employees are paid for holidays, sick leave and vacation, and insurance. They are paid a salary on a monthly basis. They are covered by written corporate employment policies. The number of field employees fluctuates between sixty and ninety. Their number and makeup are determined on an "as needed" basis, depending upon the securing by petitioner of a construction contract upon which they can be employed, the size of the "job" and the stage of completion of each job undertaken by Petitioner at any given time. As individuals, these employees do not work on a guaranteed, regular, or predictable basis. The corporation does not have or display any written employment policies concerning them. Sometimes, field employees are hired through a labor company. Usually, as with most non- union construction companies, they are hired upon word of mouth, reputation, and as they present themselves at the job. Field employees are paid only for the hours that they actually work. They may be moved from job to job to accommodate the schedule on each job and to avoid Petitioner laying off personnel that may be needed again soon. Their pay scale ranges from $6.00 to $14.00 an hour with $8.00 being an average. Field employees' wages are set by Bob Pacitti, the head project manager. When a man in the field feels that he is entitled to a raise and asks for it, then a form is filled out by a superintendent who gives it to Bob Pacitti who approves or disapproves the raise. Final approval of a wage increase is made by Ms. Weber. There is no set beginning wage for field employees. Their hourly rate depends on the experience of the worker, the type of work, how badly an employee is needed, add if there is a labor crunch or not. There is no set review period for deciding whether a field employee is entitled to a raise. Field employees are not paid for sick time, holidays, or vacation time. The company designates a field worker, who is called a "foreman" for each job in progress. The "foreman" telephones on a daily basis to the office personnel to inform them of the time worked for all field workers on his particular job/site. After working for the company for one month, field employees are eligible to join the major medical group health insurance plan. The employee is automatically put on the insurance and the company pays the premium for an individual employee. Once an employee has stopped working for two weeks, he is taken off the insurance, retroactive to the last day he worked, and sent a letter indicating that he can assume the insurance premium payment himself through petitioner. Although there is no direct-testimony to that effect, it can be inferred from Ms. Weber's testimony that the health insurance premium for the company is somehow calculated on a regular basis to anticipate at least some number of continuously, employed field employee positions. Two separate payroll ledgers are generated by petitioner: one for field employees and one for office employees. Superintendents Frank Llama and Don De Silva are included in the field employees' weekly computerized payroll but are nonetheless considered by Ms. Weber as permanent employees. The monthly office employee payroll is done by hand. There were about ninety field employees on the last field employee payroll before the date of formal hearing. As of the date of formal hearing, Petitioner was working on twelve projects. The twelve projects have a contract amount ranging from $123,000 to $6,200,000, which may last from a few months to almost two years. The total contract amount for the twelve contracts is in excess of $14,000,000. Each project is assigned one of the six project managers who oversee the job. Frank Llama is a superintendent who is in charge of field operations. He travels from job to job making sure that things are done the way they are supposed to be done Don De Silva performs the same supervisory function, but his work is generally limited to supervision of the air conditioning aspects of the projects. There were thirty-three individual field employees (not counting superintendents Llama and De Silva) who were listed on the applicant's payroll as of 6/19/86 who were also listed on the last payroll for 1986. These employees were continuously employed throughout that time frame. There were twenty-two individual field employees (not counting Llama and De Silva) who were listed on the Petitioner's first payroll for the year 1987 and who were also listed on the last payroll for 1987. Most of these field employees were continuously employed by Petitioner for all or a significant part of that year. There were forty-seven field employees (not counting Llama and De Silva) who were listed on the first payroll for 1988 and who were also listed on the 9/08/88 payroll. Some non-supervisory field employees were employed continuously from one year to the next, and a few were continuously employed for all or the better part of the two or three years. Each had federal income and FICA taxes deducted from his salary while employed by Petitioner. During 1986, 1987, and the first two quarters of 1988, the Petitioner reported the following number of office and field employees on the initial Florida Employer's Quarterly Wage and Tax Report, for Florida Unemployment Compensation purposes: 1986 1987 1988 Jan. 77 74 97 Feb. 1st 91 79 105 March 93 81 107 April 116 96 96 May 2nd 117 98 96 June 108 105 96 July 127 122 August 3rd 100 122 Sept. 106 112 Oct 91 108 Nov. 4th 74 110 Dec. 68 110 Petitioner's gross receipts in the fiscal year ending March 31, 1986, were $5,702,138. Its gross receipts for 1987, $3,466,926. Its gross receipts for 1988, were $3,917,190. Non-Rule Policy Petitioner's initial application for MBE certification was deemed incomplete by DGS. The application did not respond to the question that says, "state-the number of current, full-time, permanent employees ", on page 3 of the Certification Application Form 1704. It did not give the name, home address, home telephone number and length of service for each current, full-time, permanent employee on an attached sheet of paper, also as required by the application form. It did not attach a copy of one or more of the following items: W-4 Social Security form for each current full-time employee. The most current Florida Quarterly Unemployment Report. The most current Federal Annual Unemployment Report. (R-13) Ms. Weber filled out only the questions relating to minority status. By letter dated December 15, 1988, Ms. Weber was requested to provide this information by Lloyd Ringgold, Minority Business Assistance Labor Employment and Training Field Representative of the Minority Business Enterprise Office. By letter dated December 23, 1986, Ms. Weber replied, "Falcon Mechanical, Inc., has 22 full-time, permanent employees. Ms. Weber also included an employee roster showing a list of twenty- two employees. When that employee roster was submitted to the MBE office, twelve of the employees on that roster were paid on a monthly basis and ten were paid on a weekly basis. At the time of the hearing, the applicant no longer employed eight warehouse employees from that roster, who had been paid on a weekly basis. (See Finding of Fact 11). Without needless elaboration, it is found that Mr. Ringgold and Ms. Weber did not have a meeting of the minds when, during an on-site interview, he requested her to define "full-time employee" and "permanent employee." Her responses then are not inconsistent with her testimony at formal hearing nor with the facts as found supra. Petitioner's President clearly always viewed the field employees as a transient, very flexible, changing labor force who were not office personnel and who did not individually work on both a regular and a predictable basis, whether they worked 40 hours a week in stretches or not. DOS personnel, however, did not understand her responses at the interview this way and applied what Mr. Ringgold thought Ms. Weber meant to both of the Petitioner's payroll ledgers to reach the conclusion that Petitioner employed more than twenty-five permanent full-time employees. DOS does not have a duly promulgated rule defining the term "permanent employee" which is a crucial component of the element, "permanent full-time employee," within the statutory MBE criterion "small business' which is here at issue. DOS also has no written statement of its policy with regard to such a definition but it asserts it has an unpublished, not publicly declared definition or method for determining the number of permanent full-time employees. DOS admittedly did not explicate, announce, or publish this method to Petitioner or anyone else. When an agency makes such an assertion, it must explicate and demonstrate the reasonableness of its non-rule policy on a case- by-case basis. MacDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). This is a heavy burden, and the non-rule policy does not have the presumption of validity which is afforded formally promulgated agency rules. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). From the testimony of Lloyd Ringgold, and the testimony of his supervisor, Marsha Nims, DGS Employment and Training Manager, it was established that DGS uses the information provided by the applicant on the application form, the Employer's Quarterly Wage and Tax (Unemployment) Reports, and other employee records to initially consider whether an applicant employs twenty-five or fewer permanent full-time employees. What formula, if any, is applied at that stage of agency review, other than a general discussion between DOS employees, was not fully explicated at formal hearing. However, after the first stage of review, if the reviewer has a question as to whether an applicant has more than twenty- five permanent full-time employees, DOS then conducts an on-site interview as it did in this case and relies on the applicant's definition of "permanent" and "full-time" employee given in that interview. The reasoning behind this approach by the agency is apparently that someone within DOS believed such an approach to be the fairest method for judging MBE applicants who represent diverse types of businesses, not all of which businesses are susceptible of easy analysis. No non-speculative rationale was advanced for this method of defining "permanent, full-time employee." This method has built-in external inconsistency and subjectivity as between applicants and is subject to manipulation and control by every applicant. Moreover, as the foregoing findings of fact demonstrate, ordinary conversational misunderstandings subject the method to internal inconsistencies in actual practice. The method/policy does nothing to apply presumed agency expertise to a program the agency is mandated by statute to administer. The method also was not demonstrated to conform with any generally recognized MBE or employment planning and reporting considerations. Therefore, DOS failed to explicate its non-rule policy and failed to demonstrate its reasonableness.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for certification as a Minority Business Enterprise be DENIED. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 87-1950 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1-3,5. Accepted in substance but not adopted where subordinate, unnecessary, or cumulative to the facts as found or never at issue. 4,7. Accepted. 6. Rejected as a FOF: covered in conclusions of law (COL). 8-9. Rejected as mere statements of position or argument. To the extent they address the evidence presented and are contrary, they are rejected for that reason. The non-rule policy is addressed within the RO and FOF made therein that conform to the greater weight of the evidence as a whole. 10-16. Accepted in substance but not adopted as cumulative, subordinate, and unnecessary to the facts as found. 17-18. Rejected as cumulative, subordinate, and unnecessary to the facts as found and portions are also mere argument or statement of position. 19. Accepted as Petitioner's classifications only. The second sentence is modified to conform to the relevant and material evidence as a whole. Respondent's PFOF 1-14. Accepted in whole or in substance except where subordinate, unnecessary, or cumulative. A portion of PFOF 3 has been rephrased so as not to constitute an ultimate conclusion of law. Mere recitations of testimony have been rejected as-such. 15-20. Generally accepted; what is rejected is rejected as contrary to the evidence, cumulative in part, and in part as mere recitations of testimony. Further explanation and rulings are contained within the RO itself. 21-23,25. Accepted in substance, modified to clarify or conform more closely to the record evidence as a whole. 24. Accepted in substance but conformed to the greater weight of the evidence as a whole in FOF 15. During year 1987, Respondent does not state that employees Budgett and Ocasio were not employed for a significant number of pay periods and seems to have confused Ruben Ocasio (59415) and Jose Ocasio (59400) throughout the pay periods as well as with regard to the first and last payrolls. In 1988, Figueroa and Zager were not employed for a significant number of pay periods. The Hearing Officer has read composite exhibit 6 with diligence and has conformed the FOF to the evidence, without cumulative verbiage. COPIES FURNISHED: Gerald G. Sternstein, Esquire MacFarlain, Sternstein, Wiley & Cassedy, P.A. Suite 600 First Florida Bank Bldg. Post Office Box 2174 Tallahassee, Florida 32316-2174 Sandra D. Allen, Esquire Office of General Counsel Department of General Services 200 East Gaines Street Room 452 Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue Whether or not Respondent has abandoned her position as a Career Service employee. BACKGROUND AND PROCEDURE Petitioner presented the oral testimony of Terry Brown, Jo Ann Register, and Tony DeJosias, identified eight exhibits, and had seven exhibits admitted in evidence. Respondent testified on her own behalf and had admitted one exhibit. No transcript was provided. HRS' proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), Florida Statutes. Respondent did not file any proposals.
Findings Of Fact Beginning at least on August 19, 1985 Respondent was a Career Service employee of the Department of Health and Rehabilitative Services (HRS) in West Palm Beach, Florida. On April 21, 1987, Respondent was operating a complicated telephone system for HRS when she tripped and fell flat on her face, injuring her head and back. She was taken to a hospital, and after a series of referrals, remained under the care of Dr. Charles Curtis, D.O., due to residual concussion and back problems. Her employer was aware of all the foregoing facts and initially paid Respondent workers' compensation and medical benefits, pursuant to Chapter 440, Florida Statutes. On July 1, 1987, employees of the State of Florida, Department of Insurance, Division of Risk Management (HRS' workers' compensation administrator located in Tallahassee, Florida) terminated Respondent's benefits under Chapter 440, Florida Statutes, because they believed Respondent was then able to return to work. The notification form for this termination was not completed by Risk Nanagement until July 15, 1987, and was not received by Respondent or her West Palm Beach HRS supervisors until some time after that date. Initially, Dr. Curtis had been an "authorized" physician as that term is understood under Chapter 440, Florida Statutes, and its case progeny. There is no evidence in this record that he was ever specifial1y "de-authorized," although evidence was presented to show that Risk Management's rehabilitation associate wanted Respondent released by Dr. Curtis to return to work at the West Palm Beach HRS office. Indeed, local HRS and Tallahassee Risk Management consistently treated Dr. Curtis as the attending or treating physician. Prior to her April 21, 1987 accident, and while employed full-time with HRS, Respondent had worked part-time for her husband, a jeweler, at five dollars per hour. The regularity or duration of this work was never established, but the pre- accident nature of her part-time work was mostly setting up displays and occasional retail selling of jewelry. After the April 21, 1987 accident at HRS, and at least as early as July 2, 1987 (the day after workers' compensation benefits were terminated), Tony DeJosias, an insurance investigator hired by Risk Management, observed Respondent driving a car and at work again waiting on DeJosias and other customers in her husband's jewelry store. Mr. DeJosias' observations of Respondent were periodic throughout July and August, 1987, but did not specifically cover August 5, 6, and 7, 1987, which are the dates HRS ultimately required that Respondent appear for her regular employment with them. Respondent's work in the jewelry store as observed by Mr. DeJosias involved bending, lifting a thick, heavy jewelry catalogue, and brief operation of an engraving machine, while seated. Mr. DeJosias observed that the Respondent showed no visible signs of pain or discomfort, but Mr. DeJosias has no medical background. Respondent admits that in July and August of 1987, she was in her husband's store to take advantage of the store's air conditioning because air conditioning helps her headaches and air conditioning was not available to her at her home. Her HRS office in West Palm Beach was also air conditioned. Respondent represented that she also wished not to be alone and wished to be in the presence of her husband because she suffered dizzy spells and would occasionally lose her balance. Respondent was not paid wages by her husband during July and August, 1987. Terry Brown, Respondent's highest ranking local supervisor, wrote Respondent a letter dated July 20, 1987, that stated, We have been advised by the Division of Risk Management that your Worker's [sicj Compensation benefits have been suspended effective July 1, 1987. *This letter is to advise you that you must report to work immediately, but no later than 8:00 a.m. Monday, July 27, 1987.* If you do not report to work on July 27, 1987, it may appear that you have abandoned your position. (Emphasis supplied between *) Respondent received the July 20, 1987 letter on July 22, 1987. She sought out Dr. Curtis who was then unavailable. In his absence, she was referred by personnel in Dr. Curtis' office to a Dr. Robert C. Greer IV, D.O., who was "covering for Dr. Curtis." Dr. Greer wrote a July 23, 1987 letter to Terry Brown which, referring to Respondent, stated in pertinent part, At the present she presents with syptoms [sic] consistent with lost concussion syndrome. She continues in therapy with another physician. She is not yet able to return to work. On July 31, 1987, Terry Brown caused Respondent to be sent a certified letter which she received on August 1, 1987. That second letter read in pertinent part: On July 20, 1987, you were advised to report to work no later than Monday, July 27, 1987 and that failure to report may constitute abandonment. You contacted this office and stated that due to medical reasons, you could not return to work. Subsequent to your telephone call, we received your doctor's statement which also stated you could not return to work. Our personnel office contacted the Division of Risk Management regarding your doctor's statement and they informed us that this statement was not acceptable. In view of the above, this is to advise you that you must report to work on Wednesday, August 5, 1987 at 8:00 a.m. Failure to report to work on this date will constitute abandonment of your position. Respondent recalls that she had a telephone conversation with someone at the local HRS office but could not say when. This phone conversation probably was the unspecified "contact" referred to in the first paragraph of the July 31, 1987 letter. Terry Brown recalls personally speaking with Respondent one time on the telephone, but whether he did so before or after the July 31, 1987 letter is not clear. It is more probable from the evidence of record as a whole that Mr. Brown spoke with the Respondent after she had received his July 31, 1987 letter, because Brown recalls telling Respondent that she needed to go to the physician authorized by Risk Management (Dr. Curtis) and that she needed to talk to one of the local HRS personnel specialists, and because Respondent stated that she called an HRS supervisor (probably Terry Brown) within a week after receiving the July 31, 1987 letter. Respondent testified that she told whoever she talked to on the phone in the period after the July 31, 1987 letter, that she was not abandoning her job but that whoever she spoke to on the phone at the local HRS office at that time never informed her that Dr. Greer's letter was insufficient. This latter representation of Respondent is directly refuted by her admitted receipt of the July 31, 1987 letter, which clearly states that HRS found Dr. Greer's letter unacceptable. After observing the candor and demeanor of the respective witnesses, after considering all the evidence, and after giving Respondent the benefit of the doubt with regard to her alleged memory problems resulting from the April 21, 1987 fall, I find credible Mr. Brown's testimony that he orally explained to Respondent that she must have an excuse from Dr. Curtis in order to avoid a presumption of abandonment. Terry Brown and Jo Ann Register, a local HRS personnel officer, testified credibly and consistently that Dr. Greer's letter would not have been considered sufficient by them as a doctor's excuse for absence from work for sick leave even if Risk Management in Tallahassee had not raised the workers' compensation issue of Dr. Greer being a physician unauthorized by the employer pursuant to Chapter 440, Florida Statutes. Dr. Greer's letter would have been deemed by Brown and Register to be insufficient to grant extended sick leave because it did not specify that Dr. Greer was treating (attending) Respondent and because it did not specify a date when Respondent would be able to return to work. The failure of Brown and Register to ever verify Dr. Greer's relationship with Dr. Curtis or to initiate contact with Dr. Curtis to see if Dr. Curtis had, in fact, released Respondent to return to work may be significant in terms of workers' compensation benefit entitlement but in light of the law to be applied in this case, it is not. (See the following Conclusions of Law.) Brown and Register agree they would have accepted an excuse from Dr. Curtis, who was still understood to be the authorized/ treating/attending physician, if the note had said when the Respondent could return for work. Such a note was not presented by the Respondent prior to the ultimatum date of August 5, 1987. Respondent had accumulated annual and sick leave available for her use on August 5, 6, and 7, 1987, but she admittedly did not request to use any leave of any kind for those dates. Respondent also did not report for work on any of those days. By letter of August 10, 1987, in reliance on Rule 22A-7.010(2), Florida Administrative Code, HRS separated Respondent from the Career Service, upon the following terms: You were scheduled to work August 5, 1987, as advised in our letter to you dated July 31, 1987. You failed to report for work and you did not have approved leave for your absence. For purposes of abandonment, the three consecutive workdays are August 5, 6, and 7, 1987. Based on the above information, we must now reasonably assume that you are no longer interested in your position and therefore we are processing your resignation. Risk Management employees had informed Jo Ann Register by phone prior to August 10, 1987 that there was reason to believe Respondent was working full- time. Risk Management confirmed these oral representations in a letter to the West Palm Beach HRS office mailed from Tallahassee on August 10, 1987. This letter is an admissible business record. However, even if it could be considered hearsay for purposes of the facts asserted therein, it would still be admissible to show the state of mind of local HRS personnel with regard to the issue of abandonment. Although Mr. Brown and Ms. Register apparently did not know about Mr. DeJosias' ongoing surveillance of Respondent until shortly before formal hearing, they had some knowledge that Respondent was working before August 10, 1987 and this knowledge constituted an element in their decision to interpret Respondent's nonappearance on August 5, 6, and 7 as "abandonment" or as evidence that Respondent was "no longer interested in her position" as set forth in HRS' August 10, 1987 letter to Respondent. Respondent testified that she has never yet been released for work by Dr. Curtis, whom she represents that she continues to see professionally every two weeks, and that she has not been released for work by an unnamed clinical psychologist who apparently only performed a one time evaluation. Although not admitted as an exhibit at hearing, the undersigned is entitled to take official recognition of all pleadings within the file of the Division of Administrative Hearings, i.e., the Respondent's petition, dated August 19, 1987, has attached to it what purports to be an unsigned but stamped excuse from a Charles E. Curtis, D.O., P.A., stating, As of this date Mrs. Van Nest has been unable to work 4-30-87/8-19-87 due to a work related injury. Whether or not that note can be interpreted to refute or support Respondent's testimony that she has never been released by Dr. Curtis is subject to debate, but it clearly may be inferred that the earliest date Respondent's supervisors could have received this excuse was August 19, 1987, two weeks after their ultimatum date of August 5, 1987 when Respondent failed to report to work and further that Respondent clearly had knowledge that a note of this kind was required from Dr. Curtis. Respondent put on no evidence that Dr. Curtis was unavailable to provide such a note between August 1 (the date she received the second ultimatum) and August 5, 1987. There is no evidence that Dr. Curtis knew about Respondent's work at her husband's store. Respondent testified that at all times relevant and even at the time of formal hearing, she had both residual headaches and balance problems. The balance problems were partially refuted by the credible observations of Tony DeJosias.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that HRS enter a Final Order that ratifies Respondent's termination effective August 10, 1987, and DONE AND ENTERED this 25th day of May, 1988, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 25th day of May, 1988. Appendix to Recommended Order DOAH Case No. 87-3893 The following ccnstitute specific rulings upon Petitioner's propod findings of fact (PFOF) pursuant to Section 120.59(2), Florida Statutes. 1-2. Covered in FOF 1. Covered in FOF 2. Covered in FOF 5-6. Covered in FOF 6, 8, and 9. Covered in FOF 4 as the undersigned recalls the stipulation. Covered in FOF 10. Covered in FOF 11. Accepted but subordinate and unnecessary. COPIES FURNISHED: Peggy G. Miller, Esquire 111 Georgia Avenue West Palm Beach, Florida 33401 Joseph D. Lee, Esquire Servico Centre East Suite 300-400 1601 Belvedere Road West Palm Beach, Florida 33408 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent engaged in an unlawful employment practice with regard to Petitioner.
Findings Of Fact Ms. Sorey is an African-American woman who at the time of the hearing was a resident of Panama City, Florida. Mastercorp was Ms. Sorey's employer at all relevant times and is engaged in the business of providing housekeeping and cleaning services to timeshare resorts in the State of Florida and elsewhere. Mastercorp has its headquarters in Crossville, Tennessee. Ms. Sorey was employed by Mastercorp at a resort in Panama City called the Landmark, from August 2005 until Mastercorp's contract with Landmark ended in September 2006. Ms. Sorey began her employment with Mastercorp at Landmark as a housekeeping supervisor. She was eventually assigned to the laundry. It was while working in the laundry at Landmark that she alleged discriminatory treatment. Ms. Sorey was supervised by an executive housekeeper (EH) and an assistant EH. The EH and assistant EH are management level employees who are supervised by area, district, or regional managers, and ultimately by corporate managers working out of the Crossville office. An EH is responsible for all operations at a client property, including budgeting and supervising all Mastercorp employees located there. Miguel Palacios began his career with Mastercorp in 2004 as an assistant EH and worked his way up to EH at a client property in the Orlando area. Later, he was used as a roving manager by Mastercorp. As a roving manager, he was assigned to "problem properties." It was his job to ameliorate whatever was causing a property to be a "problem property." Mr. Palacios was assigned to Landmark because operations there were unsatisfactory and, as a result, Mastercorp was in danger of losing its contract. Mr. Palacios was instructed to support the existing EH at Landmark. Later, he took charge of the operation and ran it until a new EH, Wilmer Gonzalez, was hired. Ms. Sorey was working at Landmark when Mr. Palacios assumed his duties there. Debbie Green was one of Mastercorp's housekeeping supervisors at Landmark. Ms. Green is an African-American. Because of her excellent performance, Ms. Green became Mr. Palacio's acting assistant while he was in charge of the Landmark property. Mastercorp's Vice President of Operations, David Maier, visited the Landmark property in March 2006 and told Ms. Sorey that he was impressed with her work in the laundry. He complimented her on the good job she was doing there. Mr. Maier made a remark to Ms. Sorey to the effect that she should be her "own boss." Ms. Sorey interpreted this to mean she could run the laundry as she wished, and without supervision. This was the first of several incorrect assumptions made by Ms. Sorey. When a district manager questioned her placement in the laundry, she attempted to contact Mr. Maier for clarification, but was not able to do so. Payment for working overtime at Landmark was permitted only when approved by the EH. This was a policy dictated by the requirement for Mastercorp to remain within its budget. Ms. Sorey approached Mr. Gonzalez and Mr. Palacios and informed them that she did not have enough time to complete her laundry during normal working hours and expressed a desire to work and be paid overtime. When rebuffed, Ms. Sorey became frustrated by the demands on her, which, it is found, were substantial. Eventually, Ms. Sorey brought a friend in to help her and the friend was put on the Mastercorp payroll. This alleviated some of the stress felt by Ms. Sorey. Subsequently, a corporate quality inspector named Nell Wilson came to Landmark in June 2006 and gave her department a 100 percent grade on its evaluation and provided a certificate of dedication. Neither Mr. Palacios nor Mr. Gonzalez found time to present the certificate to her. Mr. Palacios, a Puerto Rican, traveled to his native land on vacation in June of 2006 and returned with souvenirs for some of the employees at Landmark. These souvenirs included coffee mugs, liquor, and key chains. He presented Ms. Sorey with a coffee mug. She asserted that she was offended by the coffee mug. She referred to it as an "old devil cup" and considered it to be an inappropriate reflection on her race. Ms. Sorey related at the hearing, "I don't know nothing about Puerto Rico. Coming back here giving me no cup, calling me no black devil." It is clear how a person lacking sophistication in an international sense, or at least a Caribbean sense, could misinterpret the nature of the mug. The mug was black with a Puerto Rican flag superimposed upon it. On one side of the flag were the words "Puerto" and on the other, "Rico." Overlaid on the flag was a figure that vaguely resembled a man that was variously colored green, yellow, and red, and which appeared to be wearing a blue suit. The figure wore a cape with a yellow lining. The mug had the word "Vejigantes" written on it. In certain parts of Puerto Rico, Vejigantes are masks worn by dancers in carnivals. They represent various things such as strength and harmony. The masks are part of Puerto Rican culture and have nothing to do with race except that the festival itself may have had roots in Africa. Although Ms. Sorey appeared to be grateful at the time she was given the mug, two or three days later she called Gloria Turner, the general manager of the Landmark, telling her that she was offended by it. This was relayed to Mr. Palacios who went to Ms. Sorey and told her that he meant no offense and offered to provide her with another gift in return for the mug. She refused this offer. Several days later Mr. Palacios counseled Ms. Sorey because she had worked overtime without approval and was not following the direction of Mr. Gonzalez. This was memorialized in a written memorandum dated June 25, 2006. Subsequently, Ms. Sorey submitted a handwritten complaint, dated July 3, 2006, to Mastercorp's employee leasing company, Oasis. This was forwarded to Mastercorp because Ms. Sorey was an employee of Mastercorp. The aforementioned document was four and one-half pages long and complained about work issues relating to time and amount of work. The sole issue that could be interpreted as addressing race was this sentence: "Miguel Palacio went to Puerto Rico and when he came back he came to the laundry and gave me a black cup and on the cup was a body and a face like a devil like he is call me a black devil. This face had red horn on it and at the top of the cup have these letter 'Vejigantes.'" The July 3, 2006, memorandum was the only complaint that Mastercorp received from Ms. Sorey, and, as noted above, it was received indirectly. Nevertheless, Whitney Stoker, an employee in the human resources department in the Crossville, Tennessee headquarters was tasked to conduct an investigation into the matter. In effecting her investigation, Ms. Stoker interviewed Mr. Palacios. She attempted to contact Ms. Sorey by telephone on five occasions. She left messages imploring Ms. Sorey to provide her with details surrounding her complaint. Ms. Sorey had an ample opportunity to amplify the information contained in the complaint, but chose not to provide additional information. Ms. Stoker also conducted an Internet search into the matter of the "Vejigantes" mask that was featured on the mug, using the Yahoo search engine. She discovered that it was indeed a character signifying various aspects of Puerto Rican culture and related to festivals held in some Puerto Rican towns. She discovered that it had nothing to do with race or insulting someone. Mastercorp's contract with Landmark was by its terms set to expire in September 2006. In July or August 2006 it became clear that Mastercorp would not obtain another contract with Landmark and, therefore, there would be no more work there for Mastercorp's employees. However, a new opportunity for work arose in Mastercorp's contract at Club Destin, in Destin, Florida. Mr. Palacios took nine of the Panama City employees to the Destin job. There were not enough positions in Destin available for everyone who had been employed at the Landmark job. He did not consider race in deciding who would be offered employment in Destin. He was not concerned about the complaint Ms. Sorey had made. Ms. Sorey did not ask to be employed at Destin, and Mr. Palacios did not ask her to work there. Ms. Sorey did not complain at the time that she was not offered one of the positions in Destin. One of the employees employed at the Destin property was Donna Ponds, an African-American. She was trained at Landmark, but was hired in anticipation that she would work at Club Destin. She was hired as the EH at Club Destin. No evidence was adduced that indicated that anyone of another race was treated differently or more favorably than Ms. Sorey. Mr. Palacios did not need any help in the laundry at Club Destin because the property manager there was successfully using foreign exchange students. Ms. Sorey expressed no desire to move to the Destin facility at the time staffing decisions were being made. During the hearing she was asked, "Did you want to go to Destin." She answered, "Not really." Ms. Sorey's allegations of harassment, disparate treatment, and retaliation were precipitated by her anger at management due to having to work hard and not being allowed to incur overtime; the pressure she felt at not having enough time to complete her duties; and her opinion that she was not sufficiently recognized for her work in the laundry. No evidence whatsoever was adduced that adverse working conditions were precipitated by racial prejudice.
Recommendation it is Based upon the Findings of Fact and Conclusions of Law, RECOMMENDED that the Petition for Relief from an Unlawful Employment Practice be DISMISSED. DONE AND ENTERED this 5th day of September, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 September, 2008. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Timothy Nathan Tack, Esquire Kunkel Miller & Hament 15438 North Florida Avenue, Suite 202 Tampa, Florida 33613 Judy Sorey 1025 North Everitt Avenue, Apt. A-3 Panama City, Florida 32401 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
