The Issue Whether Petitioner is entitled to training and education at Respondent’s expense in order to return him to suitable gainful employment.
Findings Of Fact Respondent, the Department of Financial Services, Division of Workers’ Compensation (Respondent or Department), is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Petitioner, Nathan Lavon Florence, is a 37-year-old man residing in Pensacola, Florida. Petitioner received his Graduation Equivalent Diploma in 2001, and held a number of different jobs between 2001 and 2007, including line cook, sales associate, construction laborer, and warehouse worker. Petitioner began an electrician apprenticeship program in 2007, which he completed in May 2012. Petitioner began working for Barnes Electrical Company, Inc. (Barnes), as an electrician’s helper in August 2013. Barnes paid Petitioner biweekly at the rate of $13 per hour for regular work and $19.50 per hour for overtime. On July 16, 2014, Petitioner suffered an on-the-job injury in which his right hand was crushed by a light pole. A workers’ compensation claim (the underlying claim) was filed with Amerisure Insurance Companies, Barnes’ workers’ compensation carrier. Petitioner’s authorized treating physician was Dr. Steven Kronlage. On October 22, 2015, following three surgeries and a period of treatment, Dr. Kronlage determined Petitioner had attained maximum medical improvement and referred Petitioner for pain management. Dr. Kronlage assigned Petitioner a permanent impairment rating of 15 percent and assigned the following work restrictions: medium-level work, no use of power tools with right hand, and no lifting more than 20 pounds with right hand. According to the U.S. Department of Labor, medium-level work limits lifting to a maximum of 50 pounds. Barnes was unable to offer Petitioner employment that met his work restrictions. The parties to the underlying claim entered into a joint stipulation on January 14, 2016. The joint stipulation “resolv[ed] all issues” and provided, in pertinent part, as follows: The parties agree that the Claimant’s average weekly wage shall be amended upward by $7.59 resulting in a new average weekly wage of $386.09. The Employer/Carrier shall recalculate Claimant’s past indemnity benefits utilizing the average weekly wage of $386.09 and shall pay past due benefits utilizing this average weekly wage plus penalties and interest. Petitioner was represented by counsel in the underlying claim. On November 8, 2015, Petitioner applied to the Department for a vocational assessment to determine the best way to return Petitioner to suitable gainful employment. On November 19, 2015, the Department issued Petitioner a decision letter determining that the best way to return Petitioner to suitable gainful employment was through job placement assistance. Cynthia Baker was the vocational rehabilitation consultant assigned to Petitioner’s case. Ms. Baker based her recommendation for job placement assistance on Petitioner’s educational background, his pre-injury average weekly wage (AWW), his work restrictions, and the “transferable skills” Petitioner could bring to the job market (e.g., knowledge of the English language; knowledge of materials, methods, and tools used in construction and repair of housing; and knowledge of machines and tools). Ms. Baker conducted a labor market survey to identify job openings appropriate for Petitioner’s skill level and work restrictions. Her goal was to identify jobs which could return Petitioner to employment at, or close to, his pre-injury AWW. The labor market survey identified a variety of jobs available in the Pensacola area which Ms. Baker deemed suitable to Petitioner’s skill level and work restrictions. Potential jobs included customer service representative for Florida Pest Control, retail sales associate for T-Mobile, asset protection/loss prevention specialist for Home Depot, and vehicle transporter for Hertz. Ms. Baker prepared a résumé for Petitioner to utilize in applying for jobs identified in the labor market survey, and she connected Petitioner with Michelle Godson at CareerSource, the customer service specialist who would further assist Petitioner with employment opportunities in the area. Petitioner did not apply for any of the jobs identified by Respondent through the labor market survey. Rather, Petitioner found employment on his own and sought no further assistance from Respondent. Petitioner began work in December 2015 with WIS International (WIS) as an inventory associate. The job entails traveling to, and conducting inventory for, a variety of retail stores in the region. Petitioner utilizes a hand-held scanner to complete retail inventories. Petitioner’s rate of pay is $8.50 per hour and he is paid on a weekly basis. Petitioner works part-time for WIS, thus his earnings are below his pre-injury AWW. Petitioner has no plans to apply for a full-time position with WIS, although full-time work has become available with WIS during his employment. Petitioner invested significant time and effort toward his electrician apprenticeship, and desires a career in a field he enjoyed as much as electrician’s helper. Petitioner has requested the Department provide him with a training and education program to become a radiology (x-ray) technician. Specifically, he would like to attend Pensacola State College’s Radiography Program. Mary Cilek is a senior management analyst supervisor with the Department and reviewed Petitioner’s request for training and education. Ms. Cilek researched information on the internet regarding the personal qualities of, and physical demands on, radiology technicians, as well as the educational requirements to become a radiology technician. No competent evidence was introduced on which the undersigned could make a finding as to the particular educational requirements to become a radiology technician, or whether Petitioner would be able to perform the duties of a radiology technician within his work restrictions.1/ Petitioner’s argument in this case is twofold: First, the Department should assist him to obtain a career, rather than “any old job” that would allow him to earn at or near his pre- injury AWW. Second, Petitioner objects to the Department’s reliance on his pre-injury AWW as the basis for a labor market survey. Petitioner maintains that his pre-injury AWW was artificially low because he was out of work, or working part- time, during some of the weeks prior to the injury due to an illness. Section 440.491(1)(g), Florida Statutes, defines “suitable gainful employment” as employment . . . that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and nearly as possible to his or her average weekly earnings at the time of injury. While Petitioner maintains that none of the jobs identified was reasonably obtainable, given Petitioner’s work history, education, and work restrictions, Petitioner introduced insufficient evidence on which the undersigned could make that finding.2/ In this case, Petitioner’s AWW was established by the stipulation. Petitioner introduced no evidence that he had moved to set aside the stipulation or otherwise challenge the determination of his AWW. Petitioner did not claim that the stipulation was obtained by either fraud or duress, or based on mistake of fact.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Petitioner, Nathan Lavon Florence, is not eligible for training and education services at Respondent’s expense. DONE AND ENTERED this 1st day of July, 2016, in Tallahassee, Leon County, Florida. S Suzanne Van Wyk 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 1st day of July, 2016.
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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 the Petition for Relief. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 25th day of January, 2007.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner, a black male, was hired by Respondent on February 11, 1985. Petitioner was employed as a wet mill laborer at Respondent's Florida Plant located in Bradford County, Florida. Petitioner's primary duties consisted of washing spirals and performing general housekeeping. Petitioner, like all newly hired employees, was hired subject to a ninety (90) day probationary period. Petitioner was provided an orientation period, given training, and was informed verbally during his employment about the importance of good job performance during his probation period. Petitioner was terminated by Respondent on April 1, 1985 during Petitioner's probationary period. Petitioner reported to four (4) first-line supervisors during his short period of employment which was the result of Petitioner being primarily on the day shift while the supervisors worked on a rotating shift basis. Petitioner's supervisors and the dates under each supervisor are as follows: C. A. Baldree during the weeks ending February 17, 1985 and March 17, 1985; J. W. Sherrill during the weeks ending February 24, 1985 and March 31, 1985; D. W. Baldree during the weeks ending March 3, 1985 and March 24, 1985 and; W. J. Frick during the week ending March 10, 1985. Although Petitioner's testimony conflicted with all three (3) first- line supervisors who testified concerning the fact surrounding the incidents which eventually gave rise to Petitioner's termination, the more credible evidence shows: During the week ending March 17, 1985, Supervisor C. A. Baldree instructed Petitioner and another employee to clean handrails in a specific area where a management visitation group would be observing. Petitioner proceeded to clean handrails in an area other than the one specified by the supervisor and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner became abusive toward the supervisor and argued that he was following instructions. The Area Supervisor Gilberto Valazquez observed the incident and tried to resolve the matter with a meeting between Petitioner and Supervisor C. A. Baldree but Petitioner declined, commenting that he was afraid of losing his job. During the week ending March 24, 1985, Supervisor D. W. Baldree assigned Petitioner and another employee to wash some spirals in a specific area where visiting management would be observing. Again, Petitioner took it upon himself to clean spirals in a different area and when the supervisor attempted to advise Petitioner of his failure to follow instructions, Petitioner responded that he felt that where he had started was as good as any place to start, notwithstanding that Petitioner was aware of the reason for starting where the supervisor had instructed him to start cleaning. Also, during the week ending March 24, 1985, Supervisor D. W. Baldree repeatedly instructed Petitioner concerning the replacement of hoses and cutters that may be disconnected during the washing of the spirals. However, on several occasions Petitioner failed to replace the hoses and cutters that were disconnected during the washing process as instructed. During the week ending March 31, 1985, Supervisor J. W. Sherrill instructed Petitioner to clean out a tail box that was plugged with sand and adversely affecting production. When the supervisor returned in approximately 20-30 minutes he found the tail box still plugged. When the supervisor attempted to inform Petitioner of his failure to unplug the tail box, Petitioner became argumentative and pointed out that he had unplugged the tail box and that it was only water from a clear water hose that was dripping, notwithstanding the fact that a large amount of sand had accumulated and that muddy water rather than clean water was running from the tail box. At the end of the work week ending March 31, 1985, Supervisor Valazquez met with Petitioner and Supervisor Sherrill concerning an alleged promise made by Supervisor Sherrill to allow Petitioner to leave work early which Petitioner felt Supervisor Sherrill had reneged on, notwithstanding that supervisor had explained to Petitioner why he could not leave early. During the course of the discussion, Petitioner became very belligerent towards Supervisor Sherrill which prompted Supervisor Valazquez to review Petitioner's overall employment record to determine whether Petitioner should continue in the employment of Respondent. Supervisor Valazquez, in investigating Petitioner's overall performance, discussed Petitioner's employment record with all of Petitioner's first-line supervisors and also asked each of them for written comments. Based upon his own observations of Petitioner's job performance and his attitude toward supervision, the supervisors' comments, and the fact that as a short service probationary employee Petitioner was making no effort to improve his job performance or his attitude toward supervision, Supervisor Valazquez felt that Petitioner may not be salvageable as an employee and questioned Petitioner's continued employment with Respondent. Supervisor Valazquez reviewed Petitioner's performance record with his superiors and the site's Employee Relations Supervisor L. H. Wood, who was the site's Affirmative Action Officer. Wood found no evidence of discriminatory motivation. Valazquez's superiors concurred in the discharge recommendation. On April 1, 1985, Valazquez met with Petitioner to discuss the potential discharge action but approached the meeting with the view that should Petitioner show a change in his attitude in regard to his job performance and in accepting supervision, then Valazquez would change his mind and give the Petitioner another chance. When Valazquez attempted to review Petitioner's poor job performance and attitude problems with Petitioner, Petitioner again became very defensive and argumentative. As a result of Petitioner's attitude in this meeting, Valazquez proceeded with the discharge action that had been approved by management. Although the record reflects that Petitioner did not receive any written or verbal warnings from any of his shift- supervisors that his performance was so unsatisfactory that if improvement was not made he would be terminated, Petitioner was made aware, by his shift-supervisors and area supervisor that poor job performance was a basis for termination, particularly during his probationary period. There was at least one (1) occasion, the incident which occurred during the week ending February 17, 1985 with C. A. Baldree, where Petitioner commented about the possibility of losing his job and Valazquez advised him that he would not lose his job so long as he performed properly and showed respect for his supervisors. On three (3) other occasions, his supervisors made the Petitioner aware of his poor job performance and poor attitude. Petitioner was not advised of any written memorandums concerning his job performance or possible termination had been prepared until April 1, 1985, the date Petitioner had a conference with Valazquez and, due to his defensive and argumentative attitude, was not allowed further opportunity to improve his job performance or his attitude and was terminated. No formal employee/supervisor conferences were held with Petitioner until April 1, 985, the date Petitioner was terminated. On the same date that Petitioner was hired, Robert McGee, a white male, was hired by Respondent as a laborer. McGee was assigned to a field laborer position, reporting almost exclusively to one (1) supervisor, Doris Cole. Field laborers work in an area separate and apart from the wet mill and report to different first-line supervisors than the wet mill laborers. On April 25, 1985, within McGee's probationary period, McGee received a formal employee/supervisor conference concerning his unsatisfactory job performance and his damaging of company equipment, warned that definite improvement in his job performance was expected or probation or possibly termination could be expected. On July 3, 1985, McGee received another employee/supervisor conference which involved McGee, Doris Cole and Valazquez and McGee was informed that his performance had improved slightly but significant improvement was expected in the next two (2) weeks or he could expect termination. McGee was placed on probation at this time. On August 2, 1985, another formal employee/supervisor conference was held with McGee wherein it was noted that McGee had demonstrated that- he could perform at a satisfactory level but that continued improvement was expected and that McGee would remain on probation until October 3, 1985. The final employee/supervisor conference record dated October 4, 1985 concluded that McGee could not consistently perform satisfactorily, therefore termination was recommended. McGee did not attend this conference but resigned by telephone on that date in lieu of being terminated. McGee reviewed each of the employee/supervisor conference reports with the exception of the one on October 4, 1985 and each of the reports were included in his personnel file, including the one for October 4, 1985. McGee was a marginal employee who tried to perform his job properly and was receptive to constructive criticism; however, he was unable to improve his performance to a point that was acceptable to Respondent's management. McGee worked on the wet mill for brief periods without incident. McGee had no history of refusing to follow instructions of his supervisor or of being argumentative with the supervisors. The Respondent had no stated policy that required written warnings of poor job performance to employees by their respective supervisors. It was the general policy of the -shift supervisors that during the probationary period, especially during the early part of the probationary period, warnings of poor job performance were given verbally to the employee and that a formal employee/supervisor conference was reserved for more severe matters such as violation of safety rules. However, the manner in which a supervisor handled a particular warning of poor job performance during an employee's probationary period was left to the discretion of the individual supervisor. The record reflects only two (2) other incidents where an employee/supervisor conference was held with an employee during the employee's initial probationary period: Kathy D. Sanders, a black female, on June 5, 1985 and; Bernard Brown, a black male, on March 27, 1984. C. A. Baldree, D. W. Baldree and J. W. Sherrill, three (3) of Petitioner's shift supervisors, were all white as were the supervisors of McGee. Respondent has, and had during Petitioner's employment, an aggressive Affirmative Action program which applied to all aspects of the employment environment. Respondent has in the past received national and local recognition for its Affirmative Action efforts. Respondent's employment of minorities has exceeded the availability of minorities in the labor supply area. Although the local availability of minorities was fifteen percent (15 percent), twenty to twenty-one percent (20-21 percent) of employees at the site were minorities. Of the forty three (43) individuals hired, closely related in time to Petitioner's dates of employment, ten (10) or twenty-three percent (23 percent) were black. Although at the time of Petitioner's initial employment, Respondent had some misgivings about Petitioner's failure to disclose certain information on his employment application, Respondent decided to hire Petitioner anyway because of its Affirmative Action efforts and Petitioner's tests results. The clear weight of the evidence shows that Respondent's reasons for discharging Petitioner was his poor job performance and his argumentative and abusive behavior towards the supervisors when instructed to correct a situation where Petitioner had failed to follow instructions, either intentionally or because he had misunderstood the instructions. The clear weight of the evidence establishes that Petitioner was treated in a dissimilar manner from the white employee, but the disparity of treatment resulted from a dissimilar attitude toward job performance and supervision rather than racial motivation. Area Supervisor Valazquez, the supervisor primarily involved in the decision to discharge Petitioner, is Hispanic.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Milton Baker, was not discharged due to his race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed. Respectfully submitted and entered this 16th day of March, 1987, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 16th day of March, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3623 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner 1-3. Adopted in Finding of Fact 1. The first sentence adopted in Finding of Fact 4. The second sentence rejected as immaterial and irrelevant. Adopted in Finding of Fact 3. 6.(a-c) Adopted in Finding of Fact 5 (a-d) but clarified. Adopted in Finding of Fact 10 but clarified. Adopted in Findings of Fact 6 through 9 and 27. Adopted in Finding of Fact 12. Rejected as not supported by substantial competent in the record. Adopted in Finding of Fact 12. Adopted in Findings of Fact 2, 13, 14 and 17. Adopted in Findings of Fact 15 and 18. Adopted in Findings of Fact 16 and 18. Adopted in Finding of Fact 17. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 22. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rejected as immaterial and irrelevant. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Rejected as immaterial and irrelevant. Respondent had no Finding of Fact 3. Adopted in Finding of Fact 2. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5(a) but modified. Adopted in Finding of Fact 5(b) but modified. Adopted in Finding of Fact 5(c) but modified. Adopted in Finding of Fact 5(d) but modified. Adopted in Finding of Fact 6 but modified. Adopted in Finding of Fact 7 but modified. Adopted in Finding of Fact 8 but modified. Adopted in Finding of Fact 9. Adopted in Finding of Fact 13. Adopted in Finding of Fact 13. Adopted in Finding of Facts 17 and 19. Adopted in Finding of Fact 20 but clarified. Adopted in Finding of Fact 20 but clarified. Adopted in Findings of Fact 10, 11 and 12. Adopted in Findings of Fact 14, 15 and 16. Adopted in Finding of Fact 21. Adopted in Finding of Fact 23. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25 but clarified. COPIES FURNISHED: John F. MacLennan, Esquire Kattman, Eshelman & MacLennan 1920 San Marco Boulevard Jacksonville, Florida 32207 Jerry H. Brenner, Esquire Legal Department E. I. du Point de Nemours and Company 100 West 10th Street Wilmington, DE 19898 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Larry Williams abandoned his position of employment with the Department?
Findings Of Fact Larry Williams worked for the Department for approximately 7 years. During the portion of 1987 that Mr. Williams worked for the Department he was employed as a Supervisor 1. Mr. Williams received a copy of an Employee Handbook upon his employment with the Department. The Employee Handbook informed the Petitioner of the rules governing absences from work, including the Department's rule that an employee will be treated as having abandoned his position if the employee is absent for 3 consecutive workdays without authorized leave. Prior to May 29, 1987, Mr. Williams was assigned to a Bridge Unit of the Department. The Bridge Unit worked out of the Ellis Road yard of the Department located in Jacksonville, Duval County, Florida. Duval County is part of the Department's District Second. By Memorandum dated May 21, 1987, Mr. Williams was informed that he was being reassigned from the Bridge Unit to the Jacksonville Maintenance Unit. He was ordered to report to the Department's sub-maintenance yard at Doctor's Inlet on May 29, 1987. Doctor's Inlet is located in Clay County, Florida. The supervisor of the Doctor's Inlet yard was G. C. Carter. James M. Griffis, a technician at the time at issue in this proceeding also worked at the Doctor's Inlet yard. During the period of time that Mr. Williams was assigned to the Doctor's Inlet yard he occupied a supervisory position between Mr. Carter and Mr. Griffis. Despite this fact, when Mr. Carter was absent from work, Mr. Griffis was placed in charge. This created a problem with Mr. Williams which he discussed with Department employees with supervisory authority over Mr. Carter. Although some efforts were made, the problem was not rectified. On July 30, 1987, Mr. Williams went to the Ellis Road yard and asked to speak with Jesse A. Mann, Mr. Carter's immediate supervisor. Mr. Williams indicated that he was having car troubles and asked if he could work out of the Ellis Road yard that day instead of going to Doctor's Inlet. Mr. Mann informed Mr. Williams that his assigned station was Doctor's Inlet and denied the request. Mr. Williams also asked for permission to drive a Department vehicle to Doctor's Inlet. This request was also denied. Although Department employees had been allowed to use Department vehicles to travel from Ellis Road to other locations, the evidence failed to prove that employees had been allowed to use Department vehicles because their cars had broken down. Mr. Mann told Mr. Williams that he could take a couple of days off in order to get his car repaired. Mr. Mann was authorized to approve leave for Mr. Williams. Mr. Williams told Mr. Mann that he did no have the money to get his car repaired and left without indicating whether he would take time off or not. On Friday, July 31, 1987, Mr. Williams did not report to work. Nor did Mr. Williams notify the Department that he would not be at work that day. On Monday, August 3, 1987, and Tuesday, August 4, 1987, the next working days after July 31, 1987, Mr. Williams did not report to work. Again, Mr. Williams did not notify the Department that he would not be at work. On occasions when Mr. Williams has taken approved leave in the past, his absence has been approved verbally. Only after Mr. Williams has returned from those absences has a written approval form been executed by the Department and Mr. Williams. By letter dated August 5, 1987, the Department notified Mr. Williams that he had been removed from his position with the Department pursuant to Rule 22A-7.010(2)(a), Florida Administrative Code. By letter dated August 12, 1987, Mr. Williams requested a formal hearing to contest the Department's decision.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued concluding that the Petitioner, Larry Williams, has not abandoned his career service position with the Department. DONE and ENTERED this 16th day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 16th day of February, 1988. COPIES FURNISHED: Larry Williams Kaye Henderson, P.E., Secretary 617 West 44th Street Department of Transportation Apartment 191 Haydon Burns Building Jacksonville, Florida 32208 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Attn: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building Augustus D. Aikens, Jr. 605 Suwannee Street General Counsel Tallahassee, Florida 32399-0450 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour. As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime. At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square. After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976 Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance. Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment." Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance. Paragraph one of respondent's proposed findings of fact has been adopted, in substance. Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers. Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters. Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority pay petitioner the sum of four thousand eight hundred seventy-seven dollars and seventy-one cents ($4,877.71). That the contracting authority pay respondent the balance of moneys heretofore withheld, pursuant to Section 215.19 ()(b) Florida Statutes (1975), with respect to project number BR-FTU-172. DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. T. M. Woods, Esquire Suite 1465, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Mr. Bromley Dyson Dyson and Company Post Office Drawer F Pensacola, Florida 32581 Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596 Mr. Jack C. Koons Department of General Services 512 Larson Building Tallahassee, Florida 32304 Mr. Luther Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive - East Tallahassee, Florida 32301
