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
Findings Of Fact On December 17, 1981, the Respondent Department of Transportation published an advertisement announcing a vacant position for a welder at its Orlando Maintenance Yard. This advertisement specified that applicants must possess either a welder's certificate or have at least one year's welding experience. Applicants for the position had to be certified as eligible prior to the date of their employment interview. The closing date of this initial advertisement for the welder's position was established as January 5, 1982. The Department did not receive any applications for this position prior to the closing date of January 5, 1982. The Petitioner first heard about the welder's position from a friend who was working for the Department. The Petitioner went to the Orlando Maintenance Yard and read about the position on the shop bulletin board. After obtaining a chauffeur's license as required by the position, the Petitioner filed an application for the position on January 10, 1982, after the closing date for the advertisement. On January 19, 1982, the Petitioner was certified as eligible for the position of welder. On January 27, 1982, the Department readvertised the position, establishing a closing date of February 10, 1982. This advertisement was identical to the initial advertisement published on December 17, 1981. Although the Petitioner's application was received between the closing date of the first advertisement and the initiation of the second advertisement, his application was considered for the welder's position. The Petitioner was interviewed by C. P. Bronson, Sid Bronson, and W. O. Downs between January 19 and February 10, 1982. Petitioner, a black male, had the required welder's certificate and 14 years' experience as a welder. The Petitioner could execute drawings and designs, do layouts, and cut metal, which he could weld into a finished product. The welder's position had become vacant due to the promotion of the incumbent in August or September 1981. Shortly after the incumbent was promoted, C. P. Bronson spoke with John Mierstein, a white male employed at the Orlando Maintenance Yard as a mechanic, and urged Mierstein to apply for the welder's position. In September 1981, Mierstein filed an application in an attempt to become certified as a welder. Mierstein was notified that he was not qualified for a position as a welder because of lack of experience. Mierstein reapplied and, following the advice of C. P. and Sid Bronson, listed among his experiences "all-purpose welder." Mierstein was again notified that he was not qualified for the position. Mierstein had been employed by the Department of Transportation as a mechanic on July 7, 1981. Prior to that time, Mierstein had worked for eight years for the Orange County School Board. For three years, while he was with the School Board, Mierstein repaired playground equipment and gates. Welding duties were approximately 60 percent of his work time. While working for the Department, Mierstein worked with heavy equipment and mowing equipment. His welding duties were approximately 50 percent of his time. In addition, Mierstein's other duties involved rebuilding transmissions and engines on this equipment. While with the Department, Mierstein's welding duties had increased from 40 percent of the time to 60-to-70 percent of the time after the incumbent left the position of welder. The Bronsons spoke separately with Mierstein about the welding position, but, because of their knowledge of his welding work and their familiarity with his work habits, they did not conduct a formal interview. The Petitioner was interviewed by W. O. Downs, Sid Bronson, and C. P. Bronson. After the interview, Downs and the Bronsons met together and collectively arrived at a numerical rating of the Petitioner's scores in each of the nine categories reflected on the Department's Applicant Selection Guide. These categories included qualifying minimum training and experience, communication skills, motivation and interest in position, interpersonal relationships, appearance, knowledge and skills of occupational subject, education, planning and organizational skills, and ability to accomplish assignments. W. O. Downs never participated in an interview of Mierstein. Mierstein's scores on the Applicant Selection Guide were arrived at between C. P. and Sid Bronson; therefore, although the Petitioner's Exhibit 2-A indicates that all three individuals interviewed Mierstein, the evidence reflects that Mierstein was never formally interviewed by W. O. Downs. Pete Bronson, shop foreman of the Orlando Maintenance Yard, regularly encouraged his employees to seek promotion. He also assisted his employees in filling out their applications and obtaining eligibility for promotion. In the case of Mierstein, Pete Bronson spoke with a supervisor in the Orange County School Board maintenance system about Mierstein's work as a welder, specifically the amount of time Mierstein spent welding in his position with the School Board. This conversation took place before Mierstein filed his second application. This information was reported to John Dollar, former maintenance engineer for the Department of Transportation. . . . Two days prior to Mierstein's promotion to the position in question on February 10, 1982, Dollar telephoned the Department's district personnel director, Susan Bickley to obtain a certification of eligibility for Mierstein. Ms. Bickley telephonically approved Mierstein's training and experience based upon Dollar's representation that Mierstein had spent 60 percent of his time with the School Board performing welding duties. Based upon Mierstein's performance with the School Board for over three years and with the Department of Transportation for seven months, Ms. Bickley determined that Mierstein had over a year's experience in welding and therefore was eligible for the position. Ms. Bickley was authorized to certify applications for noncompetitive positions. In addition to his duties as a welder, Mierstein had experience in mechanical repairs upon the various pieces of equipment used by the Department and maintained at the shop. Ms. Bickley also provided certain information concerning the Department's hiring practices. The Department has a conciliation agreement with the FHWA to hire 50 percent minority employees in all new hiring situations. In fiscal year 1981-82, 50 percent of all new hires were minorities, and in fiscal year 1982-83, 55 percent were minorities (not including female employees). The Department had an Upward Mobility Program as set forth in Rule 14- 17.06, Florida Administrative Code. This policy provided that the Department should give priority to Department employees when they applied for a position. The Petitioner was not hired as a result of Mierstein's promotion into the vacant position.
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 denying the Petition for Relief from an Unlawful Employment Practice and dismissing Petitioner's complaint of discrimination. DONE and RECOMMENDED this 6th day of December, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 December, 1983. COPIES FURNISHED: Harry L. Lamb, Jr., Esquire 738 West Colonial Drive Post Office Box 7085-A Orlando, Florida 32854 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in the case is whether Petitioner's request for exemption from employment disqualification should be approved.
Findings Of Fact 1. Petitioner is 32 years old, unmarried, and a 1992 graduate of Auburn University with a degree in business administration. He attended college on a athletic scholarship and was a captain of the football team. 2. Since graduation he has worked extensively with teenagers as a youth development professional with Boys and Girls Club of Central Plorida, as a recreational leader with Orange County Parks and Recreation; as a substitute teacher at Maynard Evans High School, where he worked with physically impaired students; and as a night monitor at The Center for Drug Free Living. 3. On November 27, 2000, Petitioner submitted an Employment Application with the Department of Juvenile Justice seeking the position of Juvenile Probation Officer. 4. As a part of the November 27, 2000, Employment Application, Petitioner indicated that he had not been convicted, pled nolo contendere, or had adjudication withheld on a crime which is a felony or first-degree misdemeanor. 5. On October 30, 2000, Petitioner executed an Affidavit of Good Moral Conduct which states, in part, "I have not committed an act which constitutes domestic violence .. ." 6. As a result of background screening, it was determined that on a January 14, 1990, Petitioner was charged with "Assault 3rd" in Auburn, Alabama, as a result of a meleé involving members of a fraternity and the football team. On February 19, 1990, the charge was dismissed. 7. The background screening also revealed that on November 11, 1995, Petitioner was charged with Battery (Domestic Violence); was arrested on November 29, 1996 (over a year later) for the offense; and had adjudication withheld after a plea of nolo contendere to the offense on February 5, 1997. 8. On February 5, 1997, Petitioner was sentenced to supervised probation for 363 days, required to attend a batterer's intervention program, and charged $115 in court costs. He successfully completed probation. 9. On December 16, 2000, Petitioner wrote the IG stating: This letter is to clarify why I failed to indicate the offenses on the notarized Affidavit of Good Moral Character. I did not indicate the offenses because I thought you are only supposed to write down convictions of a felony or first-degree misdemeanor. I did not know pleading no contest was counted as guilty. Therefore, I thought the circumstances did not fit my offenses. I conversed with a Department of Juvenile Justice employee when applying for the position, and they [sic] informed me that the Department was only looking for felony convictions. They said a misdemeanor arrest will not disqualify me. This is the reason why I failed to indicate the offenses. 10. On January 11, 2001, Petitioner wrote the IG stating: This letter is to clarify the incident that happened on the evening of November 11, 1995 at Heroes Night Club, Orlando, Florida. This incident was between a Ms. Monica Pryor and myself. At the time Ms. Pryor and I were dating. At the nightclub, Ms. Pryor and I got into an argument and exchanged harsh words that resulted in us pushing and shoving one another. Ms. Pryor then left the nightclub with her girlfriends. She called my cell phone to inform me that her girlfriends were taking her to the police station. We talked later that evening and apologized to each other. During the conversation, she let me know that she had filed charges against me and there was a warrant out for my arrest and would drop the charges in the morning. As far as I can recall from our conversation, Ms. Pryor didn't suffer any physical bruising from this incident. This is one incident in my life that I deeply regret. I feel that I was in the wrong place at the wrong time, doing the wrong thing. This incident happened over 5 years ago. Since then, I have experienced healthy relationships without any hostile contact involved. I have been blessed to counsel several young people and I've helped young men from making the same mistake that I made. I believe this experience has made me a better person and has given me a testimony to share with others. In the past 7.5 years, I have worked in child development, education and recreation. I have worked with the Boys and Girls Club of Central Florida, Center for Drug Free Living, Orange County Parks and Recreation, and I am presently employed with Orange County Public Schools. I ama member of the New Church of Faith in Orlando, Florida were I've helped with youth banquets and church activities. If you have any questions about my spiritual leadership and commitment, please call Pastor David Beacham at (407) 296-2664. 11. Petitioner testified that even though Ms. Pryor had told him that she would "drop the charges," he elected to plea nolo contendere just to get the matter behind him. 12. On January 19, 2001, Petitioner submitted a second affidavit of Good Moral Character indicating that his record contained "one or more of the disqualifying acts or offenses .," and circled the reference to the domestic violence statute. 13. Ken Davis, of Maynard Evans High School in Orlando, Florida, submitted a letter which observed that Petitioner was a "diligent and conscientious person." 14. Yvette Johnson, Universal Orlando, an occupational health and safety specialist, submitted a letter in which she characterized Petitioner as an "asset to the troubled youth in the community . . . never failing to instill the values desired by the church." 15. Ruthenia Moses, who has a Master's Degree in Social Work from the University of Connecticut, who has worked as a clinical therapist, and who was, at one time, the second in command of the Orange County Work Release Center, testified that Petitioner has "an amazing ability to relate to young people," was a "kind and sincere individual of good moral character. I highly recommend him to anyone who works with young people." She further testified that "if I had a business serving youth at risk I would want Petitioner on her team." 16. Christine Barbery, who has a Master's Degree in Legal Studies from the University of Central Florida and is employed by Florida Department of Children & Families as a Family Services Counselor Supervisor, reports that Petitioner is "responsible, hard-working," "setting an admirable example," "an excellent candidate for a Juvenile Probation Officer-type position." She worked for the Department of Juvenile Justice from 1995-1997 and Department of Children and Families since 1997. She has worked with Petitioner with young people at Maynard Evans High School and finds him "caring and dedicated." She "has no qualms about Petitioner's qualifications to be a probation officer." 17. Gloria P. Cleary, Recreation Specialist, Orange County Parks and Recreation, in a letter, characterized Petitioner as a "very enthusiastic and responsible person." She had observed Petitioner in his role as a recreational leader at Liberty Middle School. She further indicated that she would not hesitate in hiring Petitioner in the future. 18. Petitioner was guilelessly candid in his testimony. He is remorseful and contrite regarding the 1995 domestic violence incident. He has conducted his life since that incident in such a way that rehabilitation is indubitably demonstrated. He has an obvious desire to work with troubled teenagers as a Juvenile Probation Officer.
Conclusions For Petitioner: Charles Brown, pro se 7251 Minippi Drive Orlando, Florida 32818 For Respondent: Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Recommendation It is recommended that the Department of Juvenile Justice enter a final order granting Petitioner an exemption from disqualification in employment. DONE AND ENTERED this “Ir day of June, 2001, in Tallahassee, Leon County, Florida. lec 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 10 Filed with the Clerk of the Division of Administrative Hearings this XI day of June, 2001. COPIES FURNISHED: Charles Brown 7251 Minippi Drive Orlando, Florida 32818 Lynne T. Winston, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue The issue in this case is whether Respondent committed an unlawful employment practice against Petitioner on the basis of his medical disability in violation of the Florida Civil Rights Act of 1992, as Amended (FCRA of 1992).
Findings Of Fact Petitioner is a 41-year-old man who began his employment with Respondent in April 2006. Petitioner has been continuously employed in Respondent's Power Quality Services Division (PQSD) since April 2006. However, he has been on either short term disability (STD) since January 25, 2010, or long term disability (LTD) beginning on July 25, 2010. Respondent is an international power service-related company. Respondent's PQSD has customer service engineers (CSE) throughout the nation who perform similar jobs in ten different geographic regions. Petitioner is located in Orlando, Florida, and worked in Respondent's southeast region, Central Florida division. Sedgwick is the claims administrator for Respondent's STD, LTD, and workers' compensation programs. Employees who are in the STD or LTD programs need to communicate with and keep Sedgwick apprised of their disability and related physician directives. Respondent's employees are to contact Sedgwick to file the requisite claim(s) for STD or LTD benefits.5/ Prior to his disability leave, Petitioner worked for Respondent as a CSE. Petitioner's position required him to perform scheduled maintenance (SM), emergency maintenance (EM), preventative maintenance (PM) on uninterruptible power supplies (UPS), start-up projects that included the installation of electrical equipment, and other related service activities. Part of Petitioner's job was to perform PM to catch issues before they became major problems for the customers. Petitioner also performed other field work that included emergency service calls, customer visits, and battery assessments of various UPS units. Respondent's standard CSE's job description6/ included the following areas: primary function, specific functions, dimensions, specialized knowledge, and additional information. In the additional information section, all CSEs had the following "Working Conditions" enumerated: Be able to lift up to 75 lbs Occasional over-night travel may be required Scheduled and unscheduled overtime required 24/7 on call position Petitioner and Brian Irish (Mr. Irish)7/ both agreed that this job description was an accurate description of a CSE's job. Further, Petitioner agreed that, in order "[t]o do 100 percent of the [CSE] job," a person has to be able to lift up to the 75 pounds as required. Petitioner provided a spread sheet to demonstrate his PM activities for 2009. The spread sheet highlighted the seven battery PM jobs that required a battery lift and tray puller8/ in order to perform the service, the 29 battery PM jobs that did not require a battery lift, and the 74 UPS PM jobs that did not require a battery lift. The spread sheet failed to include Petitioner's scheduled maintenance work, the start-up jobs, or any of his EM or emergency work done in 2009. Thus, the spread sheet does not provide a complete picture of Petitioner's 2009 work performance. Petitioner's duties made multiple physical demands of his body: from carrying his tool bag (with various screwdrivers, wrenches, sockets, drills and other assorted items), his laptop computer bag, and safety gear bag to the work site; to sitting on a stool or the floor to hookup his laptop in order to run the requisite diagnostic tests; to moving cabinet doors in order to actually work on the equipment. There were times when Petitioner used a two-wheeled dolly to transport the equipment that he needed to perform his duties.9/ Petitioner routinely carried his computer laptop bag with his laptop computer, some small hand tools, and assorted communication cables to download the UPS information into work sites. He also carried a cordless drill, a charger and/or a back-up battery, a Fluke multi-meter,10/ leads for the meter, various sockets and adapters, a vacuum cleaner (if found to be necessary), a flashlight, a torque wrench (for battery jobs), an infrared gun,11/ and safety gear. Petitioner estimated the weight of the tools he typically used on a job at 14 to 15 pounds. Petitioner also estimated that his laptop bag with the laptop (which was an essential piece of equipment) weighed between 12 to 16 and one-half pounds. Petitioner did not offer a weight on the safety gear bag he was required to use; however, based on the demonstration provided, that gear weighed at least five pounds, if not more.12/ On a routine service call, Petitioner would need to carry at least 26 to 31 pounds of equipment in order to perform the service call. Then he would have to actually perform the required service, which could entail additional physical demands. Petitioner (as well as other CSEs) could remove the outer doors to the UPS cabinets which housed the various battery trays used in the computer system. Petitioner would use the steel toe of his boot to lift the outer door of the cabinet off its hinges. He would then put that edge of the door on the ground, pull his steel-toed boot out, and slide or shift this outer door to a safe location. Petitioner would repeat the process with the second outer door. He would then remove the inner doors ("dead front") in order to perform the required service. The two dead fronts were not as heavy as the outer doors. To replace the outer doors (after replacing the dead fronts), Petitioner would lift the outer door up on one end, place his steel-toed boot under the door edge, then slide or shift this outer door back to the cabinet front, raise the door up, and guide the door back on to its hinges. He would repeat the process with the second outer door. Petitioner had to use his body to physically push, pull, slide, and/or lift and direct the outer doors to their appropriate resting location, as well as back on the hinges. There was credible testimony that these outer cabinet doors to the units that Petitioner serviced can weigh between 26 and 50 pounds per door. Respondent provides leased vehicles to its active CSEs. Such vehicles could include a service van, a mini-van, a truck, or some other large vehicle that is easily adapted to carrying the equipment a CSE uses. CSEs pay approximately $120.00 a month for the unfettered use of the leased vehicle.13/ Petitioner estimated that he used his leased vehicle 90 percent of the time for Respondent's business purposes and only ten percent for personal use. Respondent initially provided Petitioner with a van. At the time he went on STD, Petitioner was driving a leased heavy-duty Dodge Ram truck, with a camper top enclosure. During the calendar work year for 2009, Petitioner met his performance measures and was rated a perfect five on Respondent's performance scale. That high performance evaluation rating is undisputed. Respondent provides merit pay increases to active employees who receive high performance marks for the preceding year. Respondent provides training courses to active employees for them to maintain and/or obtain requisite training on the UPS models being offered at the time. On or about November 19, 2009, while on his honeymoon, Petitioner suffered a back injury. Although Petitioner returned to work in late November, his work schedule for the remainder of 2009 was very light based on the multiple holidays and the difficulty in actually scheduling the various maintenance appointments. Between his return to work in late November 2009 and January 13, 2010, Petitioner only completed two service calls in 2009 and a standby service call.14/ Petitioner was contacted, around Thanksgiving 2009, about a customer wanting "standby service," and no one was available to take the call but Petitioner. Petitioner contacted Robert Costantino (Mr. Costantino), his immediate supervisor, telling him that Petitioner had hurt his back while on his honeymoon, but that Petitioner was willing to take the call. Mr. Costantino, who did not know the specifics of Petitioner's back injury, nor did he have any written medical restrictions regarding Petitioner, cautioned Petitioner "to be very careful." Petitioner completed the standby service call without incident. Sometime in early January 2010, Petitioner again spoke with Mr. Costantino and expressed that he (Petitioner) was not getting any better, that he was in a significant amount of pain, and that it was becoming difficult for him to do the job. Mr. Costantino suggested Petitioner see a doctor. On January 13, 2010, Petitioner was examined by an orthopedic physician. Petitioner provided this orthopedic physician's work status note to Mr. Costantino, who provided it to Respondent's human relations (HR) department. This work status note placed "LIGHT DUTY RESTRICTIONS" on Petitioner's movement for six weeks and limited his "lifting/pushing/pulling" to no more than 25 pounds. This work status note also contained the following directive that, "[i]f light duty is not available with the listed restrictions, the patient is to be temporarily kept off work until the next office visit," which was also six weeks later. After forwarding Petitioner's work status note to Respondent's HR department, Mr. Costantino consulted with the HR personnel. It was determined that it was not safe for Petitioner to continue to work as a CSE. Mr. Costantino contacted Petitioner, expressed concern for his injury, and directed Petitioner to contact Respondent's HR department to file a claim for STD. Mr. Costantino directed Petitioner to cancel his pending service calls for the remainder of January 2010. Although Petitioner contended he could perform PM, or performance checks, Mr. Costantino indicated that Respondent could not allow Petitioner to continue to work based on the belief that the standard job requirements could be detrimental to Petitioner's health. As Petitioner started his STD, he was advised that he could apply for any available positions for which he was qualified on Eatonjobs.com, the internal job website available only to Respondent's employees. Petitioner did not avail himself of this, as he thought it was Respondent's duty to find him a position. Dianne Higgens (Ms. Higgens) was the manager of compensation, employee rehabilitations, and community involvement for Respondent's PQSD until May 2011, when she retired. In April 2010, Ms. Higgens took a special assignment in Respondent's HR department, when that manager went on maternity leave. During her service in the HR department, Ms. Higgens spoke with Petitioner on numerous occasions regarding his disability and the issues he was having with Sedgwick regarding his disability payments. Ms. Higgens had multiple, lengthy telephone conversations with Petitioner. Ms. Higgens's perception during these calls was that Petitioner was in a great deal of pain, as he mentioned that in the majority of their telephone conversations. Ms. Higgens's testimony is found credible. Ms. Higgens authored several letters to Petitioner seeking information regarding his medical condition and/or attempting to secure necessary medical documentation regarding Petitioner's disability and when he could return to work fulltime. Specifically, in November 2010, Ms. Higgens sent Petitioner a letter asking for his physician to complete a return-to-work status form. Petitioner did not initially get that form to Respondent, but did provide it in January 2011. The form indicated Petitioner was to have surgery in February 2011 and would be able to return to work six to eight weeks thereafter.15/ It is appropriate to note that Respondent has in place a return-to-work process for employees who return from either STD or LTD to ensure that their health restrictions or conditions are properly and adequately addressed. Ms. Higgens encouraged Petitioner to search Eatonjobs.com to locate a position that he desired. She offered that, if Petitioner found a job opening that he was interested in, he should apply for it and let her know of his application. She would then contact the appropriate HR person. Petitioner never notified Ms. Higgens of any applications. Further, Ms. Higgens attempted to assist Petitioner in finding work for him within Respondent's organization. For the one possible position that she found in a 50–mile radius from Orlando, Florida, Petitioner could not fulfill the job requirements because he was medically restricted in how much weight he could lift. Respondent did not and does not have permanent or regular light-duty positions. On April 13, 2010, Petitioner was examined by another physician. Petitioner provided this physician's work status note to Respondent. This work status note reflected that Petitioner "MAY NOT return to work," but could return to "regular duty on MAY 13th 2010." Although this work status note indicated Petitioner could return to work on May 13, 2010, Respondent did not receive any physician's directive or release that Petitioner could, in fact, return to work. In fact, Petitioner's condition declined to such an extent that he, on his own volition, started using a cane in June 2010. Further, in a January 4, 2011, letter, yet another physician documented Petitioner's need to use a cane.16/ Towards the end of Petitioner's STD period, Mr. Costantino and Petitioner talked via telephone about possible options for Petitioner to pursue. Petitioner continued to express interest in three types of jobs that he felt he could perform: the administrative job of scheduling PM and other service calls, a triage job, and a technical support job. The first two positions were at a lower salary than Petitioner's CSE position. The technical support job was at a higher salary. All three positions were located in Raleigh, North Carolina. At that time, all three positions were filled with active employees of Respondent and, thus, were unavailable for Petitioner. Mr. Costantino suggested to Petitioner that he search Eatonjobs.com for any open positions. Mr. Costantino also provided Petitioner with the names and contact information for the managers in both Respondent's triage and technical support sections. Petitioner could contact those managers to discuss any openings. Mr. Costantino was unaware of any contact by Petitioner with those managers. Mr. Costantino told Petitioner he could not attend Respondent's training classes because he was on disability leave, and there was a possibility that Petitioner could jeopardize his disability benefits if he participated in some compensable activity for Respondent. Mr. Costantino also discussed the 2009 merit increase award with Petitioner. Respondent's stated policy is that, in order to receive a merit increase award, the employee must be an active employee at the time the merit increase award is effective. Respondent's company-wide 2009 merit increase award was not effectuated until July 2010. As set forth in Respondent's Merit Planning User Guide, employees who are "on a leave of absence (LOA) cannot be planned for during the merit [award] planning process, unless they return to work before the plan cycle is over." Thus, Petitioner did not qualify for the merit raise in 2010, as he was either on STD or LTD at that time. There was credible testimony that, once Petitioner returned to work for Respondent, he would receive that merit increase award, not retroactively, but moving forward. In late summer of 2010, Mr. Costantino discussed Respondent's leased truck usage with Petitioner. As Petitioner was out on LTD, he was not actively working for Respondent, and he did not need the leased vehicle. Following his previously- scheduled vacation trip in 2010, Petitioner returned the leased truck to Mr. Costantino. When he returned Respondent's leased truck, Petitioner obtained a motorcycle for transportation. Mr. Leung is a CSE from Respondent's Northeast 9 region, specifically working in three New York boroughs: Brooklyn, Queens, and Manhattan. Mr. Leung sustained two hand injuries, a fractured wrist in 2007 and a severely burnt right hand in 2008. Following his fractured wrist in 2007, Mr. Leung was put on LTD because he had to undergo surgery. Mr. Leung was out of work a couple of months; however, he sufficiently recovered and returned to his regular CSE duties. In March 2008, Mr. Leung suffered second-degree burns to his right hand while he was working for Respondent at St. Peter's Hospital. He was initially treated at St. Peter's Emergency Room, but was later transferred to a different hospital that had a burn unit. Mr. Leung received instruction on his hand bandaging/care and was told to return to the hospital for care. He thinks he had his hand in a bandage/dressing for a month. Mr. Leung thinks he was placed on workers' compensation following this accident. Exactly what treatments or job-related activities Mr. Leung performed following his 2007 and 2008 hand injuries are suspect as his memory of these activities was unclear.17/ Petitioner would have one believe that a burnt hand injury is equivalent to an injured back. The undersigned cannot agree. Petitioner attempted to demonstrate that, following Mr. Leung's 2008 hand injury, he participated in Respondent- sanctioned training and work duties. While it appears that Mr. Leung did participate in some training and work for Respondent, the extent to which he trained or worked was not clearly addressed to establish that Respondent provided Mr. Leung with a position different than his CSE duties. Additionally, Mr. Leung's 2008 circumstance is unhelpful in Petitioner's cause as no testimony was offered regarding the similarities or differences between the workers' compensation program Mr. Leung thinks he was engaged in and the STD or LTD programs in which Petitioner participated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Florida Commission on Human Relations finding Eaton Corporation not guilty of the alleged unlawful discriminatory employment practices alleged by James Patrick Overly, II, and dismissing his Petition for Relief in full. DONE AND ENTERED this 24th day of January, 2012, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 24th day of January, 2012.
Findings Of Fact Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees. There has been no showing that the reason stated for the termination was pretextual. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired." Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me." The store manager then asserted they were not brothers. He called Petitioner a "damn nigger." Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.
Recommendation Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case. RECOMMENDED this 17th day of September, 1991, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618 Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #5 - #7. Accepted. See HO #6. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees. Rejected. Contrary to fact. See HO #7 and #9. Accepted. Accepted. See HO #15. Rejected. Contrary to fact. See HO #9. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #3. 3. Accepted. 4. Accepted. See HO #6. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #10. 8. Accepted. See HO #13. 9. Accepted. See HO #14 and #15. COPIES FURNISHED: ALBERT A WHITE 809 GRANITE RD BRANDON FL 33510 DONALD C WORKS III ESQ RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL 200 E BROWARD BLVD PO BOX 1900 FT LAUDERDALE FL 33302 RONALD M McELRATH EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570 DANA BAIRD ESQ GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570
Findings Of Fact The Respondent is a Public Employer within the meaning of Section 447.203(2), F.S, William F. Sietsema was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. Richard O. Prather was formerly an employee of the Respondent, and a public employee within the meaning of Section 447.203(3) F.S. The pleadings attached to Exhibit 1 show that on July 19, 1976 Petitioner, Local 2019 of the IBEW, filed a representation petition; on August 12, 1976 the Petitioner filed the Unfair Labor Practice Charge here under consideration; that on September 22, 1976 Petitioner and Public Employer entered into a Consent Election Agreement that was approved by the Chairman of PERC on or about October 1, 1976; that the election was held on November 12, 1976; and that on November 18, 1976 Petitioner filed Objections to the election. Several unions, including IBEW, made organizational drives to represent the city employees of Leesburg. While IBEW was engaged in their drive, the Supervisor of the Sanitation Department, John Torpey, on July 28, 1976, held an informal meeting with the employees of the Sanitation Department. At this meeting Torpey advised the employees that a pay raise was scheduled to commence on October 1, 1976 and gave specific examples of how it would affect their pay. He also advised them that, if representation by a union was voted for, pay schedules and working conditions would have to be negotiated with the union. He clearly indicated that he was opposed to a union representing the employees; however, if they were represented by the union he would follow the contract that was negotiated. He also advised of pending transfers from the Parks Department and cautioned the employees regarding the care of automated equipment recently provided by the city to facilitate the handling of garbage and to eliminate the need of the collectors to "tote" the garbage and lift it to dump it in the garbage truck. The Sanitation Department is under the Public Works Department (PWD). Meetings of a similar nature where policies, working conditions and productivity are discussed had been held more frequently than once per month in the past. These meetings were also used to pass departmental policies to the crews. The director of PWD had advised his superintendents to pass along to their men the city's policy that solicitation for union membership would not be tolerated during working hours, but would have to be done either before or after work or during the lunch period. Although no one specifically testified that this was one of the subjects discussed by Torpey at the July 28 meeting, the testimony respecting the "white cards" discussion by Torpey could well have stemmed from Torpey passing this policy directly to his crews. The crews assigned to garbage pickup consist of a driver and two toters. Those picking up in residential areas work specific routes on Mondays and Tuesdays and repeat those routes on Thursdays and Fridays. On Wednesdays they pick up trash. Since the advent of the automated equipment the container, which is on wheels, is placed at the curb by the residential customer. The toter wheels this container to the back of the truck where it is mechanically lifted and dumped into the truck and returned to the street. The toter then returns the container to the curb and replaces the lid. The garbage crews commence work at 8:00 a.m. Upon completion of their route they return to the "barn" from where they are released after it is ascertained there have been no "skips". If skips are reported the same crew is required to return to pick up the garbage or trash they missed. As a result of being released when their "task" is completed the sanitation employees are usually free to go home by noon or 1:00 p.m. Seldom do they work beyond 2:00 p.m. They are paid for a full eight hour work day. Parks Department employees, also in the PWD, commence work at 7:00 a.m. and complete their work day at 3:30 p.m. with one half hour off for lunch. These employees trim shrubs, hoe, mow, plant, cultivate, and remove trash. Prior to the advent of the mechanical equipment in the Sanitation Department the turnover in this department was approximately 100 percent per year. Subsequent to the installation of this equipment the turnover rate has been comparable to the turnover rate for laborers in other departments of the city. Transfers from Parks Department to Sanitation Department are frequently made with the more recently employed laborers the first to be transferred. On January 27, 1977 William Sietsema was transferred from the Parks Department to work as a toter in the Sanitation Department and assigned to the crew of Johnson, driver, and Prather, toter. During the first week in August Johnson was off-duty one or two days and Norris Griffiths was assigned to drive his route on Wednesday, August 4. On August 4, 1976 the crew comprised of Griffiths, Prather, and Sietsema were on trash pickup and, because of insufficient equipment, had skipped a load on Susan Street. Shortly before completing their route Johnson, who was driving a radio equipped truck, encountered them and relayed a radio message that Torpey wanted to see them and for them to wait for him when they returned to the barn. All members of the crew were cognizant of this instruction. Prather requested Johnson to pick up the trash they had skipped on Susan Street and Johnson told him that it was not his, Johnson's, job. Apparently the discussion involving Johnson and the pick up crew occurred from the two trucks and was overheard by all parties. Accordingly all members of the crew were aware they had skipped the pick up on Susan Street and would undoubtedly have to return to pick it up. Upon their return to the barn the driver gassed the truck and the other two walked into the office where Prather looked at the "skip" pad then he and Sietsema departed. Shortly thereafter, when Griffiths went into the office he was told by the secretary about Torpey's message and he acknowledged that they all knew about the message. They were also all aware that they had skipped the load on Susan Street. Prather and Sietsema both testified that Griffiths had told them they could leave; however, Griffiths categorically denied giving such permission and further testified that he had returned to get another truck and equipment to get the Susan Street pick up. Only Sietsema was seen in the office by the secretary and she was unaware that he was in the crew with Griffiths. Neither Prather nor Sietsema made any inquiries in the office regarding Torpey's message but they were aware that Torpey was not there when they arrived. Torpey arrived some ten minutes later but Prather and Sietsema had departed. A well established and understood policy of the Sanitation Department was that the crews did not depart the barn area until released. Generally the driver checks at the office for reported skips and, if none, either releases the crew or another supervisor releases them. When Torpey arrived and learned that Sietsema and Prather had departed knowing of his instruction to wait for him, as well as the load they had skipped on Susan Street, and that Griffiths had not authorized them to leave, he wrote a memo to his superior, the Director of PWD, requesting that they be dismissed. The following morning when Sietsema and Prather arrived for work they were advised that Torpey wanted to see them. Upon reporting to Torpey he asked why they did not follow his instructions and he advised them that if they couldn't follow instructions they could hit the road. When Prather asked if that meant they were fired Torpey told them that the Director of PWD (Jack Willard) had the final word on firing and that they could talk to him. Both Sietsema and Prather became upset and Sietsema (or both) made several disparaging comments which were overheard by Willard in an adjoining office. Neither Prather nor Sietsema made any effort to see Willard and later that morning Willard signed the personnel papers discharging both of these men. Immediately after being advised by Torpey they were being fired Prather went to the City Manager to complain of his treatment. Sietsema demanded that all the pay due him be ready by noon and the following day he complained of his firing to a city commissioner. Both men testified they where upset, Prather sufficiently so to have used profanity; although Torpey attributed use of profanity at the firing only to Sietsema, which Sietsema denied. People who feel strongly that they are being unfairly treated normally go to the closest person capable of settling their grievance. In this case that would be Willard but no effort was made to obtain a hearing from Willard who was sitting in an adjoining office. Torpey testified that at the time the recommendation for dismissal was made, he had no information that either Prather or Sietsema were promoting union recognition. The Director of PWD had previously been advised that Sietsema and others were promoting union recognition and he advised his superintendents to be sure their employees knew that union promotion was restricted to times other than work hours. Willard testified that Earl Gray, foreman of the Parks Department where Sietsema worked for about eleven months, had advised him that Sietsema had been promoting the union on city time. Immediately following this testimony the following was asked: "Q. And isn't it a fact, Mr. Willard, that John Torpey came to you one morning before work and told you that Bill Sietsema was meeting with the men about the union and you replied that it was all right so long as it was before work? Yeah; true. Q. Is that true? A. uh-huh. Q. Isn't it a fact, Mr. Willard, that you were fully aware that Bill Sietsema was actively supporting the union? A. Him and some other people too." Torpey denies he ever mentioned Sietsema by name to Willard but "may have said that I had heard that there was some talk of organization in the area of the Public Works." (TR p. 235-236) The testimony of Willard and Torpey is not necessarily conflicting with respect to Torpey's knowledge of Sietsema's activities. As noted above Willard was asked two questions to which he replied one time, "yeah; true." The first part of the question pertained to Torpey telling him about Sietsema's activities and the second part involved the city's position that solicitation was all right if not conducted on city time. In earlier testimony (TR p. 128) Willard acknowledged that he had met with his department heads and told them that "the union should not be discussed on work time." A fair conclusion from all the evidence presented on this matter is that Gray, for whom Sietsema had worked for eleven months and not Torpey, for whom Sietsema worked for six days, advised Willard regarding Sietsema's union activities and that Willard's affirmative answer quoted above related only to the second half of the question posed. Previously other employees in the Sanitation Department had been dismissed for leaving before their departure was authorized and thereby requiring someone else to pick up garbage or trash they had skipped. On one occasion an entire crew was fired because they left the barn area without reporting in to see if they had any skips, when, in fact, they had skips and others had to pick up the skips. On other occasions toters have left without permission and not been disciplined when no skips had occurred and management did not become aware of the infraction. Findings of Fact submitted by Respondent not contained in the finding's above were either not supported by evidence or not relevant to the issues presented.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Edward Abdo, held correction certificate number 502-00180 issued by petitioner, Criminal Justice Standards and Training Commission (Commission). Respondent has held his license since July 3, 1981. When the events herein occurred, Abdo was employed by the Department of Corrections as a correctional officer I at a correctional facility in Daytona Beach, Florida. He will turn 62 years of age in May and will have completed eleven years of employment at that facility in June 1992. At that time, he plans to retire. The charges against respondent are based upon two incidents which occurred in May 1990 and June 1991, respectively. The first incident involved a charge of retail theft lodged against Abdo in May 1990 while the second incident involved a charge of driving while under the influence of alcohol (DUI). The facts giving rise to those charges are set forth in the subsequent findings. On May 4, 1990, respondent was shopping at Publix store number 304 located at 1500 Bevill Road, Daytona Beach, Florida. William C. Rhodes was then the store manager. Rhodes observed Abdo push a cart filled with various grocery items through a "fire code lane" between cash registers 5 and 6 and continue out of the store without first stopping at a cash register. None of the items were bagged. Rhodes followed Abdo into the parking lot where he observed Abdo stop at an automobile and begin placing some items into the car. At that point, Rhodes confronted Abdo and asked him if he had anything which he had not paid for. Abdo responded that he had purchased the groceries and reached into his pocket looking for a receipt but could not find one. Abdo then told Rhodes that maybe he had not paid for the groceries and offered to pay for them in the parking lot. Rhodes asked Abdo to put the items already placed in the car back into the shopping cart and to return to the store. When Abdo could produce no cash register receipt and declined to have the cash register girls verify his claim that the groceries were paid for, the police were called and Abdo was charged with retail theft. The value of the groceries was approximately $20. They consisted of a ten pound bag of potatoes, eight heads of lettuce, four green peppers, and five packages of tomatoes. On July 26, 1990, Abdo pled no contest to the charge of retail theft, adjudication was withheld, and he was placed on six months probation and fined $150. The arrest and plea were later expunged and sealed pursuant to an order of the Volusia County Court entered on April 18, 1991. Although respondent agreed that he had been arrested for retail theft and pled no contest to that charge, he maintained he did so only because he could never find his receipt. He contended at hearing that except for two packs of cigarettes he had inadvertently placed in his pocket, which Rhodes and the arresting officer never saw, he had previously paid for all grocery items and they were bagged. However, this version of the facts is not deemed to be credible. Around 1:20 a.m. on June 22, 1991, respondent was stopped in the 4800 block of Spruce Creek Road by a City of Port Orange police officer, B. S. Stiltner. Abdo, who was driving a 1987 automobile with two passengers, had been followed by Stiltner for approximately three minutes. During that period of time, Abdo failed to maintain a single lane, crossed the center line several times, went onto the right-of-way while negotiating a turn, and continued weaving until stopped. Upon approaching Abdo, Stiltner smelled an odor of alcohol on his breath and noted that Abdo had slurred speech, "watery" eyes, red coloration in the face, and fumbled for his driver's license. Abdo was given four roadside field sobriety tests by Stiltner and flunked each test. After being taken to the Port Orange police station, Abdo blew .151 and .140 on the Intoxilizer 5000 Series machine, indicating that he was driving while under the influence of alcohol in violation of state law. He was thereafter arrested and charged with driving under the influence of alcohol. Under a then-effective policy of the Port Orange city attorney, first time DUI offenders were allowed to plead guilty to reckless driving. Accordingly, Abdo, who had no previous DUI arrests on his record, pled guilty to reckless driving, had his license suspended for ninety days, and served three months probation. At hearing, Abdo acknowledged that he had drunk a number of beers without eating over a six and one-half hour period at a local social club. However, he blamed his arrest on a strict arrest policy in the City of Port Orange and cited a poorly lit road and a "bad street" that was "slightly pitched" as causing his weaving. Also, he attributed his failure to pass several coordination tests to arthritis in his right shoulder and both knees. To the extent these matters are true, they are still insufficient to overcome the clear and convincing evidence that respondent was driving while under the influence of alcohol on the morning of June 22, 1991. In terms of mitigating or aggravating circumstances, there is no evidence of any prior disciplinary actions taken against respondent during the eleven years he has been certified. Also, neither offense occurred while respondent was on duty, and respondent did not use his official authority to facilitate his misconduct. The potential pecuniary gain to Abdo by his misconduct amounted to approximately $20, and as it turned out, the store retrieved all stolen merchandise.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of failing to maintain his qualifications and this his correctional officer certification be placed on probation for two years. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1992. DONALD R. ALEXANDER 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 24th day of March 1992.
The Issue The issue in this case is whether Respondent discriminated against Petitioner for the reasons stated in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is a Florida corporation engaged in the business of manufacturing, distributing, and selling cement and concrete. Respondent operates throughout the state and employs a substantial number of people. Respondent maintains an Equal Employment Opportunity Policy (the "policy"). Respondent promulgates the policy to all employees in its various facilities throughout the state. Respondent encourages the employment of disabled but qualified individuals. Respondent routinely makes reasonable accommodations for disabled employees. Respondent first employed Petitioner on June 29, 1981, but terminated that employment. Respondent subsequently rehired Petitioner in February, 1983, as a ready-mix driver and front end loader, and also as an occasional batcher. Respondent employed Petitioner in various positions until Petitioner resigned his last position on October 5, 1993. During his employment, Petitioner suffered physical injuries that resulted in both temporary and permanent impairment. All of the injuries occurred from work-related accidents. Petitioner suffered no other physical impairment. Petitioner is not physically disabled as a result of the physical injuries he suffered from his work-related accidents. The injuries Petitioner suffered did not substantially limit his ability to perform his duties and responsibilities. Respondent did not discriminate against Petitioner on the basis of Petitioner's physical impairment. Respondent provided Petitioner with reasonable accommodations. The first injury to Petitioner occurred on August 5, 1986. While driving a cement truck for Respondent, Petitioner drove his truck off of the road to avoid hitting a car that was stopped in front of him. Petitioner was thrown into the steering wheel and injured his stomach. Petitioner also injured his back and was treated by a chiropractor. On October 6, 1987, Petitioner reached maximum medical improvement under Workers' Compensation guidelines. His back injury left him with a total permanent impairment of seven percent. Petitioner returned to work on March 5, 1987. Respondent offered both light duty and regular work to Petitioner from October 6 through March 27, 1987. However, Petitioner refused to return to work prior to March, 1987, due to a labor dispute involving Teamsters Local 769. When the labor dispute was resolved, Petitioner returned to work as a batcher. The position was not defined specifically as a light duty job. However, it did accommodate the work restrictions prescribed after his previous accident. Petitioner subsequently resumed driving a truck for the Respondent. Petitioner was able to drive without restrictions. On March 17, 1988, Petitioner had the latest in a series of accidents as a truck driver for Respondent. On March 21, 1988, Respondent notified Petitioner that he had exceeded the number of accidents permitted under Respondent's "Accident Classification Policy" and prohibited Petitioner from operating any company vehicle for Respondent until further notice. On January 29, 1990, Petitioner passed a physical examination to be recertified as physically qualified to drive a truck. The examining physician certified Petitioner as physically able to drive a truck. Petitioner verified on the examination form that he did not suffer from any permanent defects resulting from illness, disease, or injury. Petitioner continued treatment for chronic discomfort caused by the back injury he sustained in August 1986. Petitioner's chiropractor intermittently prescribed light duty to alleviate Petitioner's discomfort. On September 6, 1991, Respondent attempted to accommodate Petitioner's chronic discomfort. Respondent offered Petitioner a position as a dispatcher in Respondent's Cocoa facility. The dispatcher position was not a light duty job. However, it did accommodate Petitioner's intermittent need for light duty work to alleviate his discomfort. Petitioner declined the dispatcher position. Petitioner elected to replace a junior truck driver in another location. Petitioner's chronic back discomfort continued to cause absences from work and frequent need for light duty work. However, no permanent light duty positions existed. Respondent repeatedly created temporary light duty work for Petitioner in attempts to provide Petitioner with employment. Respondent experienced increasing difficulty finding suitable work for Petitioner. The vast majority of positions involved a greater degree of manual labor than Petitioner was able to perform under his work restrictions. On August 13, 1992, Respondent's Worker's Compensation carrier had Petitioner examined by an orthopedic surgeon. At the time, Petitioner was being treated once a week by his chiropractor. Petitioner had a full range of motion in his cervical region, shoulders, elbows, wrists and fingers. X-rays showed no fracture, dislocation, or congenital abnormality. The orthopedic surgeon diagnosed Petitioner as suffering from a cervical sprain or strain which had become somewhat chronic in nature. He found that Petitioner had reached maximum medical improvement with a total permanent impairment of four percent according to Workers' Compensation guidelines. The orthopedic surgeon determined that Petitioner was able to work on a regular basis without restrictions. He concluded that Petitioner's permanent impairment did not interfere with the performance of his occupation. Petitioner aggravated his back injury while driving a truck. Petitioner's chiropractor excused him from work from September 28 through September 30, 1992, and placed him on light duty from December 10, 1992 through January 14, 1993. On December 17, 1992, the chiropractor sent a letter to Respondent's Risk Management Director discussing Petitioner's work restrictions. The letter designated Petitioner's work restrictions as: no prolonged sitting; no lifting over 30 pounds; no repetitive bending or twisting; and no climbing ladders. Climbing stairs was permitted. Petitioner's work restrictions continued in effect during the remainder of Petitioner's employment. In December, 1992, Respondent was unable to create temporary light duty work for Petitioner. Respondent had no other work available that accommodated Petitioner's work restrictions. Petitioner applied for Worker's Compensation benefits and apparently sought other employment for approximately two weeks. On January 5, 1993, Respondent located a suitable temporary position as a batcher at the Tarmac plant in Melbourne, Florida. Petitioner temporarily replaced the permanent batcher who was out on an extended illness. The batcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. After the permanent batcher returned, Respondent continued to find work Petitioner could perform. Respondent found temporary light duty work at the Melbourne plant. Respondent created a temporary position for an "aggregate dispatcher." Two employees performed the functions of the aggregate dispatcher in addition to their other regular job duties. The aggregate dispatcher position was not a position for which Respondent had a need. Respondent created the position for Petitioner in an attempt to accommodate his work restrictions and to keep him working. Respondent never represented the position as a permanent solution to Petitioner's need for light duty work. In July 1993, the permanent dispatcher at the Melbourne plant asked to move to another position. Respondent offered the full-time position to Petitioner. The dispatcher position was not a light duty position. However, it did accommodate Petitioner's work restrictions. Petitioner accepted the dispatcher position at the Melbourne plant. On August 1, 1993, Respondent promoted Petitioner to dispatcher and increased Petitioner's salary accordingly. Petitioner complained that he was unable to do the work by himself. Petitioner requested help to perform the job. The dispatcher job at the Melbourne plant had always been performed by one person and was routinely performed by one person at other locations. However, Respondent instructed Petitioner's supervisors to give him assistance when needed. In late August 1993, Petitioner stated to his supervisors that he could not perform the duties of dispatcher because he could not cope with the stress. Petitioner asked to be relieved of his responsibilities and resigned as dispatcher. No other suitable work was available. Petitioner agreed to remain in the dispatcher position until a replacement was hired and trained. A dispatcher from another plant, a 42 year-old female, transferred and took over the job. Petitioner's last day of employment was October 5, 1993. Unknown to Respondent, Petitioner was suffering from a severe major depression when he resigned from Respondent's employment. Sometime after August 13, 1996, an Administrative Law Judge for the U.S. Social Security Administration found that Petitioner had been disabled, within the meaning of the Social Security Act, since October 5, 1993. Petitioner suffered from a dysthymic disorder. He had a history involving a depressed mood. Petitioner did not respond to treatment. Petitioner lost his appetite, suffered insomnia, lethargy, inability to modulate anger in an effective manner, and disinterest in almost all activities. Petitioner was disabled. He was substantially limited in his ability to perform a major life activity such as work. Petitioner was significantly restricted, when compared with the average person having similar qualifications, from performing a class of jobs or a broad range of jobs in various classes. Petitioner entertained thoughts of suicide. He did not have the ability to follow instructions or to function independently. He had very limited concentration. His memory was impaired. Petitioner had marked deficiencies in concentration, persistence, pace, daily living skills, and socialization. Petitioner's disability prevented him from completing tasks in a timely manner. He suffered episodes of deterioration or decompensation in work resulting in withdrawal from the situation or exacerbation of his symptoms. Respondent did not discriminate against Petitioner on the basis of Petitioner's disability. Petitioner's disability existed for some time before Petitioner resigned from Respondent's employment. During that time, Respondent repeatedly provided Petitioner with reasonable accommodations to enable Petitioner to continue his employment with Respondent. Petitioner performed the duties of dispatcher satisfactorily prior to his resignation. There were no complaints about his work. Respondent had no reason to terminate Petitioner from the position. Petitioner did not express an interest in the possibility of alternative employment with Respondent. Petitioner did not request any further accommodations to enable him to continue working for Respondent. Petitioner's physical impairment did not prevent him from performing the dispatcher job. The dispatcher job at the Melbourne plant no longer exists because Respondent has undergone major restructuring. The functions of the dispatcher are presently divided among different individuals. Some of the functions are no longer performed at individual plants but are performed at centralized locations.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner. DONE AND ENTERED this 28th day of April, 1997, in Tallahassee, Florida. DANIEL MANRY 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 28th day of April 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission On Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Jack L. Shoemaker, pro se 106 Cameron Street, Southeast Palm Bay, Florida 32909 Charles S. Caulkins, Esquire Wendy J. Smith, Esquire Fisher and Phillips 2300 Nations Bank Tower One Financial Plaza Fort Lauderdale, Florida 33394
