The Issue Whether Respondent subjected Petitioner to an unlawful employment practice based on Petitioner’s race, in violation of section 760.10, Florida Statutes (2016)1/; and, if so, what penalty should be imposed.
Findings Of Fact Petitioner, Aaron Pittman, a black male, was at all times relevant hereto employed at Sunland Center (Sunland) by the Agency for Persons with Disabilities (APD). Sunland Center is an assisted-living facility operated by APD in Marianna, Florida, serving clients with intellectual and developmental disabilities. Petitioner was first employed at Sunland on August 7, 1987, as a Maintenance Mechanic. Petitioner’s full-time job was to maintain wheelchairs for use by residents. According to Petitioner, the work was very steady, with continuous repairs to footrests, wheels, seats, and many other parts of well-used wheelchairs throughout the facility. Petitioner remained in that position for 17 years. In 2007, Petitioner was promoted from Maintenance Mechanic to Electronics Tech II. The duties of the Electronics Tech II include installation of televisions, cleaning fire detection and other safety equipment, conducting fire drills, and repairing all manner of electronics. After Petitioner was promoted to Electronics Tech II, an employee with the last name of Moss was assigned to wheelchair maintenance. Apparently Mr. Moss was not capable of performing the duties of wheelchair maintenance and requested Petitioner’s assistance with those duties. Mr. Moss left Sunland sometime in 2010. When Mr. Moss left, John Kramer, Maintenance Supervisor, asked Petitioner to help out “temporarily” with the wheelchair maintenance. Petitioner testified that he agreed to resume wheelchair maintenance “temporarily” because Mr. Kramer was “a nice man and [Petitioner] wanted to help him out.” Petitioner first worked overtime on a night shift to complete the wheelchair maintenance work. However, Petitioner did not request prior approval for the overtime and was instructed to take time off to compensate for the overtime. Clarence Holden, Sr., a black male, was employed at Sunland for 40 years. Mr. Holden began in an entry-level position, but was promoted to a supervisory position. Mr. Holden supervised Petitioner during Mr. Holden’s last five years of employment in the position of Telecommunication Specialist. Mr. Holden also supervised Keith Hatcher, the only employee other than Petitioner in the Maintenance Department. Mr. Hatcher retired sometime before Mr. Holden. Mr. Holden retired in 2014, leaving Petitioner as the only employee in the Maintenance Department. Petitioner testified that he “took over [Mr. Holden’s] duties” when Mr. Holden retired, but was never compensated for essentially working two jobs. Petitioner never supervised any employees at Sunland. Petitioner did not have any authority to hire or fire other employees or perform evaluations of other employees. After Mr. Holden’s retirement, Petitioner asked Allen Ward (whose position in the chain of command was not identified) about applying for the Telecommunication Specialist position. Petitioner was told management was “holding” that position. Petitioner testified that Mr. Ward advertised and filled the position of Telecommunication Specialist “while [Petitioner] was out.” Petitioner admitted that the position of Safety Specialist3/ was eventually advertised, and that Petitioner did not apply for the position. Amanda Johnson, former Employee Relations Specialist at Sunland, met with Petitioner sometime in 2012 regarding his complaint about working two positions without additional compensation. In June 2013, Petitioner received a ten-percent salary increase “for additional duties and responsibilities for maintaining resident wheelchairs and electric/mechanical hospital beds.” Petitioner seeks back pay for performing duties of two positions beginning in 2010. Petitioner separately complains that he was subject to harassment based on his race and Respondent failed to do anything about it. Petitioner testified that there used to be an employee who used the “N word,” and under a previous administration the supervisor would “take care of it,” but that under the current administration “nothing happens.” Petitioner indicated that other employees used to “make postings about lynching.” Petitioner did not identify any specifics of those incidents--when they occurred, who made the posting, or whether there were consequences to those employees. Petitioner complained that a fellow employee once wrote “Trump” on a dirty work truck. However, when the incident was reported, the manager washed the truck. Petitioner complained that white employees sit around and talk with each other for extended periods without any consequence, but that if he sits to talk with a fellow employee for 15 minutes “people complain.” Petitioner has never been disciplined by Respondent. Respondent is managed by a black Superintendent and black Deputy Superintendent. Sunland employs a number of black mid-level managers and supervisors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700575. DONE AND ENTERED this 30th day of March, 2018, 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 30th day of March, 2018.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin and retaliated against Petitioner in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact No dispute exists that Mr. Duverglas is a male and Black and that his national origin is Haitian. No dispute exists that he is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the City was an employer as defined by the Florida Civil Rights Act of 1992, as amended. Mr. Duverglas began his employment with the City in 1996 as a Park Ranger. An inference is drawn and a finding is made that Mr. Duverglas wore a uniform type of clothing for his position. In 2002, some employees complained, among other things, that the vehicles that Mr. Duverglas drove and in which he rode often were left reeking of urine. On December 17, 2002, a counseling session was held with Mr. Duverglas by his supervisor, Kelton Wayns, regarding, among other things, Mr. Duverglas’ personal hygiene and cleanliness of vehicles. In 2003, a complaint was received by Mr. Wyans regarding Mr. Duverglas urinating in a drain on the floor in a bathroom, instead of a urinal. Mr. Wyans investigated the complaint, and the investigative report was reviewed by the Park Ranger Supervisor and Foreman, Earnest Jones. Mr. Jones concluded that the allegation could not be substantiated, but he did counsel Mr. Duverglas that, as an employee of the City, he (Mr. Duverglas) must conduct himself professionally, at all times, and that any unsanitary behavior would not be tolerated. Performance evaluations of Mr. Duvergals were conducted. The categories for the rating of the evaluations were unsatisfactory, marginal, satisfactory, above satisfactory, and outstanding. At the review ending date of April 29, 2001, he received a satisfactory rating; and at the review ending dates of October 29, 2001, October 27, 2002, and October 27, 2003, he received an above satisfactory rating. In February 2004, due to workforce reductions, Mr. Duverglas was bumped and reassigned to the Grounds Maintenance Division as an Apprentice Maintenance Worker. In that position, Mr. Duverglas was assigned to a roving-crew of three to four workers who picked-up litter in a quadrant of the City. An inference is drawn and a finding is made that he wore a uniform type of clothing for his position. Also, around November 2004, Mr. Duverglas was hired as a part-time Park Ranger. Any problems, regarding Mr. Duverglas in this position, were directly dealt with by Mr. Jones. On December 9, 2004, Mr. Duverglas, as a maintenance worker, had a problem arriving at work timely. On December 15, 2004, he was given a letter of reprimand by his supervisor, John Neal, for arriving to work late and for failing to call-in regarding his tardiness. Additionally, the reprimand indicated that future occurrences could result in more severe disciplinary action up to and including dismissal. In January 2005, Mr. Neal, advised Mr. Duverglas that he was spending too much time on his (Mr. Duverglas’) cell phone. At that time, Mr. Duverglas informed Mr. Neal that a co- worker, L. C. Orr, had made offensive comments about Haitians. Mr. Neal had no knowledge of Mr. Orr’s alleged comments before being informed of them by Mr. Duverglas. Mr. Orr was aware of Mr. Duverglas’ Haitian ancestry. However, Mr. Neal was not until he was informed of Mr. Orr’s alleged comments. After that meeting and also in January 2005, Mr. Duvergals made a complaint with the City’s Office of Professional Standards (OPS) against Mr. Orr. Mr. Duverglas complained that Mr. Orr had made offensive comments about Haitians and that the offensive comments had contributed to a hostile work environment. After making the complaint with OPS, Mr. Duverglas was counseled by Mr. Neal regarding his (Mr. Duverglas’) poor work performance. At that time, Mr. Duverglas informed Mr. Neal that he had made a complaint against Mr. Orr with OPS. Mr. Neal had no knowledge of the OPS complaint before being informed of it by Mr. Duvergals. Mr. Duvergals also complained to OPS that Mr. Neal had retaliated against him when Mr. Neal met with him to counsel him about his performance deficiencies after his (Mr. Duverglas’) OPS complaint. Mr. Duverglas informed Mr. Neal, during the meeting, that he (Mr. Duverglas) had made a complaint to OPS against Mr. Orr regarding Mr. Orr’s derogatory comments about Haitians. Mr. Neal was not aware of Mr. Duverglas’ complaint against Mr. Orr until Mr. Duverglas informed him (Mr. Neal) of it. OPS investigated the complaint. OPS was unable to question Mr. Orr because he had retired from the City. Following an investigation, OPS determined that the allegations were unfounded and without merit. During his work as a maintenance worker and his part- time work as a Park Ranger, complaints regarding Mr. Duverglas’ personal hygiene occurred in both positions. Complaints were made regarding his clothing and body having the odor of urine and his trousers being wet in the front, and regarding the odor of urine being left in vehicles and lingering in the Park’s office. Mr. Duverglas was counseled on several occasions regarding these issues and notified that, if the problems continued, stronger action, than counseling, would be taken to address the problems. When Mr. Duverglas was a part-time Park Ranger, only one Park Ranger, Alan Brown, did not complain about Mr. Duverglas smelling of urine, wetting the front of his trousers, or leaving the smell of urine in vehicles. The evidence demonstrates that Mr. Jones, Mr. Duverglas’ supervisor as a Park Ranger, was aware of Mr. Duverglas’ Haitian ancestry. The evidence fails to demonstrate that any of Mr. Jones’ actions were taken because of Mr. Duverglas’ Haitian ancestry. In March 2005, Mr. Duverglas, as a maintenance worker, was sent by the City for a Fit-For-Duty evaluation, which was a medical evaluation to determine his fitness for duty. On March 22, 2005, a Fit-For-Duty evaluation was performed. The report by the examining physician indicates, among other things, that a prior evaluation was performed on March 11, 2005, and Mr. Duverglas was found fit for duty; that another evaluation was requested due to continued concerns regarding his “cleanliness” at work; that a concern existed as to whether he was suffering from incontinence; that he refused to allow the physician to perform an abdominal and genital exam; that his personal physician wrote a note to the examining physician that Mr. Duverglas did not suffer from incontinence and was fit to return to work with no restrictions; and that, based upon the representations by Mr. Duverglas’ personal physician, the examining physician had no choice but to find Mr. Duverglas fit for duty and clear him to return to work. Mr. Duverglas denied, and continues to deny, that he suffered or suffers from a medical condition, i.e., incontinence. The evidence is insufficient to demonstrate that Mr. Duverglas suffered or suffers from incontinence. The evidence demonstrates that Mr. Duverglas was fit- for-duty. In April 2005, Teresa “Terry” Reynard, Assistant Director of Parks and Recreation, who had the responsibility for park maintenance, transferred Mr. Duverglas, in his position as a maintenance worker, from one location to another location, Carter Park. Ms. Reynard’s intent was to accommodate what she perceived to be a problem with Mr. Duverglas’ personal hygiene by placing him in a park, Carter Park, in which several restrooms were available and accessible. However, the complaints continued at both of Mr. Duverglas’ jobs with the City. Mr. Duverglas’ supervisors counseled him on several occasions regarding his hygiene, the smell of urine, and trousers being wet in the front. At one point, Mr. Duverglas, as a maintenance worker, was notified that he should bring a change of clothing to work in an effort to eliminate the odor and smell of urine. Mr. Duverglas admits that he may have urinated on himself maybe once or twice but nothing extraordinary. Also, complaints were made regarding Mr. Duverglas’ excessive cell phone use, instead of working, inadequately performing his work, and unauthorized breaks. Mr. Duverglas admits that he was disciplined for excessive cell use. Mr. Duverglas admits that, on April 14, 2005, he was issued a reprimand for arriving at work late and that was his second violation in six months. Further, he admits that he was notified that the continuation of such conduct could be a basis for termination. On June 13, 2005, Mr. Duverglas was issued a letter of reprimand by Ms. Reynard for lack of productivity. Furthermore, the letter of reprimand notified Mr. Duverglas that his failure to be productive in his work could result in further disciplinary action including termination. On June 15, 2005, Mr. Duverglas was again issued a letter of reprimand by Ms. Reynard for lack of productivity. The letter of reprimand indicated, among other things, that Mr. Duverglas had violated the following General Employees’ Work Rules: Minor Rule 3 – Failure to observe department work schedules (starting time, quitting time, and meal periods). Minor Rule 6: - Unsatisfactory work performance, inefficiency. Minor Rule 7 – Loafing or other abuse of time during assigned working hours. Major Rule 6 – Leaving City premises during working hours without permission of supervisor. Further, the letter of reprimand notified Mr. Duverglas that, among other things, “future occurrences of the same or similar nature will result in more severe disciplinary action up to and including dismissal.” Mr. Duverglas refused to sign the letter of reprimand, but was provided a copy of it. On June 22, 2005, Ms. Reynard issued Mr. Duverglas an “Informational Letter” regarding his personal hygiene, i.e., urinating in his trousers. The Informational Letter provided, among other things, that, despite prior conversations and counseling, he (Mr. Duverglas) continued to have the personal hygiene problems; that his situation was a serious health risk; that, if he soiled his uniform in the future, he would be asked to change his uniform, and, if he failed to have a change of uniform with him at the time, he would be asked to leave work on his own time and not return until he had changed his uniform; and that, if his problem was caused by a medical condition and he wished to request an accommodation, he should do so. On June 24, 2005, Mr. Duverglas was issued a letter of counseling by Ms. Reynard regarding his (Mr. Duverglas’) personal hygiene. The letter of counseling provided, among other things, that Mr. Duverglas had been spoken to and counseled in the past months regarding his personal hygiene, but that the problem had persisted; and that Ms. Reynard had observed, the day before, that Mr. Duverglas’ trousers were wet. Further, the letter of counseling reminded Mr. Duverglas what he was directed to do if he wet his trousers. Moreover, the letter of counseling provided that future occurrences would result in disciplinary action, including dismissal. Mr. Duverglas contends that he was not protected from a threat of violence made by a co-worker Wilmar “Slim” Alexander. On June 29, 2005, Mr. Alexander threatened physical violence against Mr. Duverglas if Mr. Duverglas approached him (Mr. Alexander) in an aggressive manner. On July 5, 2005, Ms. Reynard issued a letter of reprimand against Mr. Alexander for “an inappropriate remark to a coworker.” Further, the letter of reprimand provided, among other things, that the behavior exemplified by Mr. Alexander would not be tolerated and that future occurrences would result in severe disciplinary action including dismissal. The evidence failed to demonstrate that Mr. Alexander exhibited any further violent behavior towards Mr. Duverglas. The evidence failed to demonstrate that the letter of reprimand was not the appropriate punishment for Mr. Alexander’s behavior. The evidence is insufficient to demonstrate that Mr. Alexander exhibited any violent behavior towards Mr. Duvergals prior to Mr. Alexander’s threat. The evidence failed to demonstrate that the City failed to protect Mr. Duverglas from the threat made by Mr. Alexander. On June 30, 2005, Mr. Duverglas was placed on administrative leave with pay pending the City’s investigation that he “may have violated City rules and regulations.” On July 27, 2005, after notice, an informational meeting was held with Mr. Duverglas. Based on the informational meeting, on July 28, 2005, Ms. Reynard issued a written recommendation to Phil Thornburg, Director of the City, regarding Mr. Duverglas. The recommendation provided, among other things, that the persons in attendance at the informational meeting included Ms. Reynard, Mr. Duverglas, and a union representative; that the meeting was held to address several issues including Mr. Duverglas’ personal hygiene, complaints regarding the smell of urine, his performance deficiencies and general loafing, and the report of his urinating in public; and that Mr. Duverglas denied all allegations. Further, the recommendation determined that Mr. Duverglas’ denials, explanations and responses were “incredible and unworthy of belief” and that he had engaged in severe conduct. Ms. Reynard recommended the termination of Mr. Duverglas. Around May 2005, a self-employed painter, Samuel Mitchell, was performing contract work at Carter Park. Mr. Mitchell observed whom he recognized as Mr. Duverglas leaning against a concrete pole with his (Mr. Duverglas’) trousers around his (Mr. Duverglas’) knees, appearing to be urinating, but Mr. Mitchell did not observe a stream of liquid. The area in which Mr. Duverglas was observed was near a residential area, was an area that the general public frequents, and was an area used by school children. Mr. Mitchell perceived the conduct to be inappropriate. Mr. Mitchell spoke with Mr. Duverglas, and Mr. Duverglas vehemently denied that he was the person whom Mr. Mitchell observed. Mr. Mitchell did not wish to report what he observed to the City, but wanted Mr. Duverglas to change the behavior that he (Mr. Mitchell) observed; however, because of the way Mr. Duverglas reacted to his (Mr. Mitchell’s) talking with him (Mr. Duverglas), Mr. Mitchell reported the incident to the City. Mr. Mitchell testified at hearing, and his testimony is found to be credible. Mr. Duverglas denied that he was the person observed by Mr. Mitchell. Mr. Mitchell’s testimony is found to be more credible than Mr. Duverglas’ testimony. Also, at the time of the incident, another person, who was a non-employee of the City, reported the same observation to the City. That person did not testify at hearing. A finding is made that Mr. Duverglas was the person observed by Mr. Mitchell and was the person engaged in the conduct observed by Mr. Mitchell. Further, even though Mr. Mitchell did not observe a stream of liquid, an inference is drawn and a finding is made that, based upon the prior conduct, actions, and behavior of Mr. Duverglas, regarding his personal hygiene and the wetting of the front of his trousers, Mr. Duverglas was urinating. Moreover, a finding is made that the City was reasonable in making a determination that Mr. Duverglas was urinating. The evidence demonstrated that Ms. Reynard was aware of Mr. Duverglas’ Haitian descent. However, the evidence failed to demonstrate that any of her actions were motivated by Mr. Duverglas’ Haitian descent. Mr. Thornburg had the final authority in disciplinary matters regarding the Parks and Recreation Department. By letter dated August 5, 2005, Mr. Thornburg notified Mr. Duverglas that he (Mr. Duverglas) was being suspended, without pay, for 20 days, effectively immediately, and was being dismissed from the City as an Apprentice Maintenance Worker, effective September 2, 2005. The letter was hand-delivered to Mr. Duverglas. The letter provided, among other things, that the action was being taken for continued deficiencies in performance and conduct, setting forth the deficiencies, which were: Despite prior counseling, a transfer to another facility with better access to bathroom facilities and other accommodations, you continued to disregard your personal hygiene and appearance as a representative of the City by urinating in your trousers in public and disregard of proper safety practices and precautions. Your failure to conform your behavior to civilized standards has been the subject of complaints by your co-workers over having to work in offensive, unsanitary and unhealthy conditions and cannot be tolerated. You continued to demonstrate deficiencies in performance of assigned duties by taking unauthorized breaks, excessive use of your personal cell phone in the field during working hours and general loafing. Employees of two City contractors have witnessed you urinating in a public place although restroom facilities were available. City Ordinance 16-75(a)(5) – Public Indecency. Additionally, the letter set forth General Employees’ Work Rules that Mr. Duverglas violated, which were: Major Rule 1 – Any act which might endanger the safety or lives of other [sic]. Major Rule 2 – Refusal to perform work properly assigned by a supervisor. Major Rule 3 – Willful, deliberate or repeated violation of City safety rules, including instances where there is evidence of willful disregard of proper safety practices and precautions while operating City equipment. Major Rule 7 – Deliberately abusing [sic] destroying, damaging or defacing City property, tools, equipment or the property of others on City premises. Major Rule 21 – Neglect of duty. Major Rule 24 – Conduct, either while on or off duty, which tends to reflect discredit upon the City. Major Rule 25 – Employee harassment, abusive conduct towards an employee or a member of the general public. Major Rule 26 – Violation of City Charter, ordinances, or administrative rules and regulations, specifically City Ordinance 16- 75(a)(5) – Public Indecency. Furthermore, the letter provided that Mr. Duverglas had the opportunity to request a hearing, setting forth the procedure for such a request, and indicated the consequences for his failure to request a hearing. City Ordinance 16-75(a)(5) – Public Indecency provides in pertinent part: Offense. It shall be unlawful for any person to commit public indecency. A person commits public indecency when he performs any of the following acts in a public place: * * * (5) Urinates . . . in other than a toilet or washroom . . . . Definitions. “Public place,” for purposes of this section, means any place where the conduct may reasonably be expected to be viewed by others. Penalties. Any person convicted of violating this section shall be deemed guilty of the offense of public decency and upon conviction shall be punished as provided in section 1-6 of this Code. Section 1-6, titled “Penalty for violations,” provides in pertinent part: In this section “violation of this Code” means: Doing an act that is prohibited or made or declared unlawful or an offense by ordinance or by rule or regulation authorized by ordinance . . . . * * * Except as otherwise provided herein, a person convicted of a violation of this Code, shall be punished by a fine not to exceed five hundred dollars ($500.00) or by imprisonment for a term not to exceed sixty (60) days or by both such fine and imprisonment. . . . The imposition of a penalty does not prevent revocation or suspension of a license, permit or franchise or the imposition of civil fines, civil penalties or administrative sanctions. Administrative sanctions could be imposed for a violation of City Ordinance Section 16-75(5). Mr. Duverglas admits that a violation of City Ordinance Section 16-75(5) is just cause for suspension and dismissal. The ground of public indecency was sufficient, in and of itself, to dismiss Mr. Duverglas from employment. The evidence demonstrated that he committed the act of public indecency as defined in City Ordinance Section 16-75(5). The evidence fails to demonstrate that Mr. Thornburg had any knowledge of Mr. Duverglas’ Haitian ancestry prior to the disciplinary action. Mr. Duverglas requested a hearing from the City. The hearing was held on September 6, 2005. By letter dated September 7, 2005, the City Manager, George Gretsas, notified Mr. Duverglas that, after a review of all the available and relevant information, including that presented at the hearing, the suspension and dismissal was upheld. A grievance under the union contract was filed. On November 21, 2005, the City’s Employee Relations Director issued a “Fourth Step Response Teamster Grievance,” providing, among other things, that a hearing was held on November 9, 2005, in accordance with the grievance, that no evidence was presented to cause the City to modify its decision, and that, therefore, the grievance was denied. An inference is drawn and a finding is made that an arbitration hearing was held on or about May 18, 2006, regarding Mr. Duverglas’ suspension and dismissal. The evidence was insufficient to demonstrate the outcome of the arbitration proceedings, but an inference is drawn and a finding is made that the arbitration decision was not favorable to Mr. Duverglas. On July 24, 2006, Mr. Duverglas filed a Charge of Discrimination with the Broward County Civil Rights Division and the EEOC against the City alleging that the City discriminated against him on the basis of national origin (Haitian) and retaliation in violation of the Florida Civil Rights Act of 1992, as amended. The Broward County Civil Rights Division waived investigation of the charge. The matter was investigated by the FCHR. On January 19, 2007, the FCHR issued a Determination of No Cause and a Notice of Determination of No Cause. Mr. Duverglas timely filed a Petition for Relief with the FCHR against the City.
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 discrimination complaint of Donald Duverglas against the City of Fort Lauderdale. DONE AND ENTERED this 25th day of November, 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 November, 2008.
The Issue The issue to determine in this matter is whether equitable tolling applies to excuse Respondent Mac Mar, LLC’s, late-filed petition for administrative review.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation insurance coverage for their employees. See § 440.107(3), Fla. Stat. Respondent is a corporation located in Clermont, Florida, engaged in the roofing industry. On March 5, 2018, Department Investigator Keith Howe conducted a workers’ compensation compliance check at a residence located in Daytona Beach, Florida, where Petitioner was installing a new roof. The purpose of Mr. Howe’s visit was to determine whether Petitioner had workers’ compensation coverage for its employees, as required under chapter 440. Mr. Howe made a preliminary determination that persons working at the residence were not covered by workers’ compensation insurance. After Mr. Howe’s visit, on March 6, 2018, the Department issued and served on Respondent (via hand-delivery) a Stop-Work Order and Request for Production of Business Records for Penalty Assessment Calculation. The Stop-Work Order alleged that Respondent failed to secure the payment of workers’ compensation insurance for those individuals at the Daytona Beach worksite, in violation of sections 440.10(1), 440.38(1), and 440.107(2). On June 27, 2018, the Department served Respondent with the Amended Order via certified mail. The Amended Order includes two deadlines. The deadline referenced on the first page of the Amended Order states: Pursuant to Rule 69L-6.028, Florida Administrative Code, if the Division imputes the employer’s payroll, the employer shall have twenty days after service of the first amended order of penalty assessment to provide business records sufficient for the Division to determine the employer’s payroll for the period requested in the business records request for the calculation of the penalty. The employer’s penalty will be recalculated pursuant to subsection 440.107(7)(d), F.S., only if the employer provides all such business records within the twenty days after service of the first amended order of penalty assessment. Otherwise, the first amended order of penalty assessment will remain in effect. The Amended Order’s other deadline is found in the “Notice of Rights” on the second page, and states: You must file the petition for hearing so that it is received within twenty-one (21) calendar days of this agency action. The petition must be filed with Julie Jones, DFS Agency Clerk, Department of Financial Services, 612 Larson Building, 200 East Gaines Street, Tallahassee, Florida 32399- 0390. FAILURE TO FILE A PETITION WITHIN THE TWENTY- ONE (21) DAYS OF RECEIPT OF THIS AGENCY ACTION CONSTITUTES A WAIVER OF YOUR RIGHT TO ADMINISTRATIVE REVIEW OF THE AGENCY ACTION. Ms. Anderson, who previously served as an attorney for the Department, testified that the Department assigned her to a separate workers’ compensation matter involving Respondent (case 18-069-D7). Ms. Anderson testified that she contacted Ms. Lairsey, Respondent’s chief operating officer, on July 20, 2018, to discuss whether Respondent would agree to waive the 21- day deadline to file the petition in that matter. By that date more than 21 days had already passed from Respondent’s receipt of the Amended Order. Ms. Lairsey’s testimony confirms this conversation. Ms. Lairsey testified that she returned Ms. Anderson’s call, to discuss case 18-069-D7, as well as the instant case. At the time and date of this phone call, Respondent had not filed a petition for relief in the instant case, and the Department had therefore not assigned it to a Department attorney. During this telephone conversation, both Ms. Anderson and Ms. Lairsey testified that they discussed the potential for settlement in case 18-069-D7, and that Ms. Lairsey asked Ms. Anderson if the Department would consider consolidating that case with the instant case. Ms. Anderson testified that, during this telephone conversation, she was unaware of the instant case because Respondent had not yet filed a petition. After reviewing the Department’s database, Ms. Anderson testified that she discovered the Amended Order, but noted to Ms. Lairsey that Respondent had not yet filed a petition, and that if it did, the Department would consider it to be beyond the 21-day deadline, and thus late. Ms. Lairsey’s testimony is consistent with Ms. Anderson’s testimony concerning the discussion of the presumed lateness of the yet-to-be-filed petition in the instant case. Ms. Lairsey testified: So I understood that I was going to be late with the petition, or actually, I didn’t realize—I don’t remember—I didn’t know until that time that I was going to be late, but I wanted to know if I could get an extension of time or somehow find out a way to respond with why it was going to be late because of all the documentation that I needed to create the response. Ms. Anderson testified that she explained to Ms. Lairsey that because the Department would consider a petition in the instant case to be late-filed, it would issue an order to show cause, which “would give her a chance to respond to the Department and tell us why she believed her petition was late and to see if any of those reasons would amount to anything under the law where the Department could, in fact, look at the petition.” Ms. Lairsey testified that she believed that Ms. Anderson told her that a “response” would be accepted after the filing deadline. Ms. Lairsey also testified that she needed to obtain, review, and provide documentation concerning the allegations in the Amended Order to provide the Department with an “honest answer.” Ms. Lairsey also testified that she did not understand the deadlines stated in the Amended Order, although she ultimately testified, “Yes. I knew that it was—this is the one that was the 21 days from filing[.]”1/ Ms. Anderson testified that Respondent’s deadline for filing a petition in the instant matter was July 18, 2018. The undersigned finds that the Department served the Amended Order by certified mail that was received on June 27, 2018, and that July 18, 2018, is 21 days after the service of the Amended Order. The Department received Respondent’s petition for hearing on July 25, 2018, which was seven days after the filing deadline.2/ Thereafter, on August 7, 2018, the Division issued an Order to Show Cause, providing Respondent 21 days to show cause why the petition should not be dismissed as untimely, and to address whether any basis existed for the Department to equitably toll the 21-day deadline for filing the petition. On August 28, 2018, Respondent responded to the Order to Show Cause. The response states, in part: In this instance, there is sufficient evidence to support equitable tolling. Amanda Lairsey, Chief Operations Officer of MAC MAR, LLC, has been in continuous contact with the Division of Worker’s Compensation regarding matters that had arisen with MAC MAR, LLC. Specifically, Ms. Lairsey had been in communication with Taylor R. Anderson, Attorney for Workers Compensation. It is imperative that it be stressed in abundant clarity that MAC MAR, LLC does not believe that there was any responsibility or inaction or inappropriate action undertaken by Attorney Anderson. In Ms. Lairsey’s experience, she had been extremely helpful and professional in helping MAC MAR, LLC resolve its issues for which she was representing the Division. No representative of the Division was appointed or communicated for MAC MAR, LLC for the present matter. When Ms. Lairsey received the amended Order of Penalty Assessment on June 27, 2018, she asked Attorney Anderson whether or not she could be the assigned representative for the Division in this matter and explained that MAC MAR, LLC would need additional time to provide adequate information to the Division. Attorney Anderson indicated that she could not be the representative. Attorney Anderson stated that Ms. Lairsey would need to respond to the Order and that, if she failed to do so timely, that MAC MAR, LLC would receive a letter (which is apparently the Order to Show Cause) and would have to explain why it was filed untimely. Although it is apparent now that Attorney Anderson was properly communicating the requirements, Ms. Lairsey understood the statement to mean that MAC MAR, LLC could respond, and if it failed to do so timely, an explanation would be sufficient. Although it appears that it was not Attorney Anderson’s intention to lull Ms. Lairsey into thinking she could respond even if it was untimely, that is the unfortunate effect of Ms. Lairsey’s understanding of the communication from Ms. Anderson. Ms. Lairsey is not an attorney and did not appreciate the significance of the requirements of Equitable Tolling. The undersigned finds that Ms. Lairsey’s testimony at the final hearing contradicts Respondent’s response to the Order to Show Cause. Ms. Lairsey testified that she understood that Respondent’s petition in the instant matter was late. She testified that she did not understand the deadlines contained in the Amended Order, although Respondent apparently was able to timely file a petition in case 18-069-D7. And, Ms. Lairsey testified that she was aware that she would have an opportunity to respond to the Department’s Order to Show Cause to explain why the Respondent was filing a late petition--not that she believed she had the opportunity to have the Department accept a late- filed petition. Ms. Lairsey testified that she needed additional time to obtain, review, and provide documentation concerning the allegations in the Amended Order, in order to submit an accurate petition. However, the undersigned finds that Florida Administrative Code Rule 28-106.2015(5)(a) through (e) sets forth the substantive requirements for a petition for hearing. The subsections of this rule do not require a respondent to submit or identify documents or records relevant to the dispute. The undersigned finds that neither the Department nor Ms. Anderson lulled Respondent into inaction. Rather, the evidence adduced at hearing demonstrated that Ms. Anderson adequately explained to Ms. Lairsey that any petition filed in this matter was beyond the filing deadline, which Ms. Lairsey acknowledged she understood. Ms. Anderson explained that if Respondent filed a petition beyond the deadline, it would have an opportunity to respond to an Order to Show Cause, which it did. The undersigned further finds that Respondent has provided no evidence that it was, in some extraordinary way, prevented from exercising its rights, or that it timely asserted its rights mistakenly in a wrong forum.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned RECOMMENDS that the Department dismiss Respondent’s petition for hearing as untimely. DONE AND ENTERED this 31st day of May, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III 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 31st day of May, 2019.
Findings Of Fact 12. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Third Amended Order of Penalty Assessment issued on November 4, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-042-D4, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-042-D4 to GILLION ENTERPRISES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty _ Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on GILLION ENTERPRISES, INC. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 10, 2009, the Department issued a Second Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Second Amended Order of Penalty Assessment assessed a total penalty of $24,732.08 against GILLION ENTERPRISES, INC. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Second Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. by certified mail on March 19, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. | 5. On March 3, 2009, GILLION ENTERPRISES, INC. filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09-1389. 6. On November 4, 2009, the Department issued a Third Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Third Amended Order of Penalty Assessment assessed a total penalty of $21,729.49 against GILLION ENTERPRISES, INC. The Third Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On November 5, 2009, GILLION ENTERPRISES, INC. filed a Notice of Voluntary Dismissal in DOAH Case No. 09-1389. A copy of the Notice of Voluntary Dismissal . filed by ROYMO, INC. is attached hereto as “Exhibit D.” 8. On November 9, 2009 Administrative Law Judge Susan B. Harrell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the November 9, 2009 Order Closing File is attached hereto as “Exhibit E.”
The Issue The issues in this case are: (1) whether Petitioner, Nu Way Drywall, LLC, was in violation of the workers' compensation requirements of Sections 440.107 and 440.38, Florida Statutes (2007),1 by failing to secure workers' compensation coverage for its subcontractors and/or employees of its subcontractors; and (2) if yes, what penalty should be assessed against Petitioner.
Findings Of Fact On April 15, 2008, Germaine Green, a compliance investigator for the Department, conducted a random compliance check of a work site where an office building was under construction. The work site was located at 698 South Tamiami Trail in Osprey, Florida. During the compliance check, Ms. Green observed three men hanging metal framing for the interior walls. One of the men at the work site identified himself as Ted Webb and told Ms. Green that he was in charge of the framing work being done and that the other two men working with him were his sons. Mr. Webb told Ms. Green that his company, Ted Webb, Inc., had workers' compensation coverage through an employee leasing company, Howard Leasing. Ms. Green telephoned the leasing company and was told that the contract with Ted Webb, Inc., had been terminated or had lapsed in December 2007. Ms. Green then checked the Department's computerized database known as Coverage and Compliance Automated System (CCAS). The information maintained in CCAS allowed Ms. Green to determine whether Mr. Webb or his sons had workers' compensation coverage or exemptions from such coverage. After checking CCAS, Ms. Green determined that Mr. Webb and his company did not have workers' compensation coverage and that Mr. Webb and his employees had no exemption from such coverage. Upon making this determination, Ms. Green issued a Stop-Work Order. Mr. Webb advised Ms. Green that Nu Way Drywall, LLC ("Nu Way"), had subcontracted with him or Ted Webb, Inc., to perform the framing services at the work site. Under Florida law, a subcontractor that does not have workers' compensation coverage becomes the "statutory employee" of the contractor that hired the subcontractor. Upon being told that Mr. Webb was working for Nu Way, Ms. Green checked CCAS to determine if that company had active workers' compensation exemptions for any of its employees. Ms. Green's review of CCAS revealed that Nu Way had an exemption for only one person, Alex Rivera, the managing member of the company. Ms. Green contacted Mr. Rivera to determine whether he had received documentation that Mr. Webb had workers' compensation coverage prior to Mr. Webb's beginning work on the Osprey project. Mr. Rivera reported that he had received information in the past that indicated that Mr. Webb had workers' compensation coverage. However, Mr. Rivera told Ms. Green that he had obtained information regarding Mr. Webb's workers' compensation coverage before Mr. Webb began work on the subject work site. At all times relevant to this proceeding, Nu Way had workers' compensation coverage through an employee leasing company, Employee Leasing Solutions. However, when Ms. Green called the leasing company, she was advised by someone with the company that Mr. Webb and his two sons were not listed on the employee roster for Nu Way. Therefore, they were not covered by Nu Way's workers' compensation coverage. Employee leasing companies provide workers' compensation coverage for their clients, but coverage is provided only to employees that the client company specifically identifies. Because Mr. Rivera could not provide proof that Mr. Webb and his sons had workers' compensation coverage pursuant to Chapter 440, Ms. Green issued a Stop-Work Order for Specific Worksite Only ("Stop-Work Order") to Nu Way on April 15, 2008. The Stop-Work Order was posted at the work site and served on Mr. Rivera on April 16, 2008. On the day that Ms. Green served the Stop-Work Order on Mr. Rivera, she also served on him a Request for Production of Business Records for Penalty Assessment Calculation ("Request for Business Records"). The Request for Business Records requested that Mr. Rivera provide the business records of Nu Way to the Department so that it could determine the employer's payroll for the period of April 17, 2005, through April 16, 2008, for the calculation of the penalty provided in Subsection 440.107(7). In response to the Department's Request for Business Records Documents, Mr. Rivera provided Nu Way's business records, which included Nu Way's canceled checks. In auditing the business records, Ms. Green discovered that in addition to making payments made to Ted Webb, Inc., in 2006 and 2008, Nu Way had also made payments to two other companies that did not have valid workers' compensation coverage for their employees when they worked for Nu Way. According to its business records, Nu Way paid Santis Drywall and Construction (Santis) $36,890.00 between July 28 and August 11, 2006, and paid Hernandez Chico Drywall (Hernandez) $260,972.50 between March 17 and April 28, 2006. During the time period Nu Way made those payments to Santis and Hernandez, neither of those companies had valid workers' compensation coverage. After auditing Nu Way's business records, Ms. Green prepared a spreadsheet that included the payments made to uninsured subcontractors or companies during the relevant time period of April 17, 2005, through April 16, 2008. Ms. Green calculated the penalty by dividing the payroll for each uninsured subcontractor by 100 and then multiplied that number (the dividend) by the "approved manual rate" for drywall work for the year in question. Each product of 1/100 of the payroll and the approved manual yielded the "evaded premium" that Nu Way should have paid for each uninsured subcontractor in the years in question. The amount of the "evaded premiums" were then multiplied by 1.5 and then added together to determine the total penalty amount. Applying the formula prescribed in Subsection 440.107(7)(d), Ms. Green determined that the total penalty assessment against Nu Way was $76,215.95. On April 17, 2008, Mr. Rivera was served with the Amended Order of Penalty Assessment, which showed that the total penalty assessment against Nu Way was $76,215.95. That same day, Mr. Rivera, on behalf of Nu Way, entered into an agreement with the Department to pay ten percent of the penalty assessment in one lump sum payment and to make 60 interest-free payments for the balance. After Mr. Rivera signed the agreement, the Department issued an Order of Conditional Release from the Stop- Work Order ("Order of Conditional Release"). The Order of Conditional Release allowed Nu Way to resume work at the work site, subject to his complying with the terms of the agreement. When Ms. Green served the Amended Order of Penalty Assessment on Mr. Rivera, she discussed the penalty assessment with him and also allowed him to review the spreadsheet for accuracy. Mr. Rivera reviewed the spreadsheet, but did not find any errors. In preparing for this hearing, Ms. Green reviewed the spreadsheet and discovered that she had mistakenly included some payments made by Nu Way. By mistakenly including certain payments on the spreadsheet, the payroll amount used to calculate the penalty assessment was higher than it should have been. After discovering the mistake discussed in paragraph 20, Ms. Green prepared a new spreadsheet, which did not include the payments that had been mistakenly included in the initial spreadsheet. Ms. Green then recalculated the penalty assessment and properly determined the corrected penalty assessment to be $72,963.77. The Department prepared a Proposed Second Amended Order of Penalty Assessment showing that the correct penalty assessment for Nu Way is $72,963.77. As of the date of this proceeding, the Department had not served the Proposed Second Amended Order of Penalty Assessment on Mr. Rivera. However, at hearing, Mr. Rivera indicated that he did not object to this amendment as it reduced the penalty assessment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Financial Services, Division of Workers' Compensation, enter a final order: Finding that Petitioner, Nu Way Drywall, LLC, failed to secure the payment of workers' compensation for its employees in violation of Subsections 440.10(1)(a) and 440.38(1), Florida Statutes; and Assessing a penalty of $72,963.77 against Nu Way Drywall, LLC. DONE AND ENTERED this 28th day of October, 2008, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 28th day of October, 2008.
The Issue The issue in this case is whether the Respondent committed an unlawful employment practice against the Petitioner.
Findings Of Fact At some time prior to August of 2013, the Petitioner and Respondent discussed the Petitioner’s potential employment as a “Pharmacy Sales Representative” for the Respondent. The Respondent eventually offered such employment to the Petitioner, the terms of which were set forth in a letter (hereinafter “agreement”) from the Respondent (identified therein as “SCP, LLC” or “company”) to the Petitioner. The agreement stated as follows: Your job title will be Pharmacy Sales Representative and your duties include all aspects of sales and marketing to physicians and patients SCP, LLC can provide for. You will be responsible for producing leads and establishing new pharmacy sales as well as maintaining all existing accounts. You will report to members of SCP, LLC. You may be assigned other duties as needed and your duties may also change on reasonable notice, based on the needs of the company and your skills, as determined by the company. The agreement provided that the Petitioner would be paid an annual base salary of $45,000, and a commission “based on the total sales of compounded products sold to all accounts you are managing.” The salary was to be paid bi-weekly. The commission was to be paid quarterly. The agreement stated that the Petitioner would receive an additional $250 per month for the purposes of obtaining private health insurance, and that the additional payment would cease if a company health insurance plan became available to employees. The agreement stated that the Petitioner would also have access to an expense account, including a company credit card, and receive either a car or a paid car allowance from the Respondent. The agreement specifically provided as follows: YOUR EMPLOYMENT WITH THE COMPANY IS AT-WILL. IN OTHER WORDS, EITHER YOU OR THE COMPANY CAN TERMINATE YOUR EMPLOYMENT AT ANY TIME FOR ANY REASON, WITH OR WITHOUT CAUSE AND WITH OR WITHOUT NOTICE. According to the agreement, the Petitioner’s employment was to commence on September 3, 2013. Although the Petitioner was dissatisfied with the salary structure offered by the Respondent and believed that the offer was below her market value, the Petitioner signed the agreement on August 1, 2013, and accepted the employment terms set forth therein. The Petitioner’s dissatisfaction with her income was a continuing issue during her employment. The Petitioner repeatedly requested that her base salary be increased, but the Respondent was unprofitable and was unwilling to agree to the Petitioner’s request. Although the Petitioner initially developed some marketing materials for the Respondent, the Respondent was not satisfied with the Petitioner’s overall job performance. Additionally, there appears to have been disagreement between the Petitioner and the Respondent as to the responsibilities of her employment, including continuing friction between the Petitioner and her supervisor. On several occasions, the supervisor requested that the Petitioner come into the office during working hours to meet with him. The Petitioner apparently believed that her time was better utilized meeting with prospective clients; however, some of the prospective clients sought products that, for a variety of reasons, the Respondent could not supply. In any event, rather than come into the office as requested by her supervisor, the Petitioner chose to communicate with him by “after hours” email or by telephone. The supervisor was dissatisfied by the Petitioner’s failure to comply with his request. At some point in December of 2013, the Respondent determined that the Petitioner’s performance was not satisfactory and that a change needed to occur. The Petitioner was advised of the Respondent’s dissatisfaction in a meeting on December 5, 2013, between the Petitioner and a representative of the Respondent. After being advised that some type of change was going to occur, the Petitioner raised a number of complaints about her supervisor. The Petitioner complained that the supervisor used profanity, that he had hung up on her during a telephone call, and that, on one occasion, he had patted her on the head in an apparently demeaning manner. The Respondent had a written “zero tolerance” policy prohibiting all forms of harassment, including sexual harassment. The policy prohibited any form of retaliation against an employee who complained that he or she was a target of harassment. The Respondent also had a written “open door” policy that provided a specific procedure for resolving employment-related disputes. The Petitioner was specifically advised of such policies during an orientation process that occurred at the commencement of her employment with the Respondent. Additionally, the Petitioner received written copies of all relevant policies from the Respondent’s human resource director. There is no evidence that, prior to learning on December 5, 2013, that her employment was in jeopardy, the Petitioner advised any representative or employee of the Respondent that she objected to the supervisor’s alleged behavior. After the meeting on December 5, the Petitioner wrote an email to company officials dated December 17, 2013, wherein she asserted that she had “closed” a number of accounts on behalf of the Respondent, and suggested that her contribution to the company was being undervalued. She also requested reevaluation of her compensation because she believed the commission structure was inadequate. The Respondent apparently disagreed with the Petitioner because few actual sales resulted from the Petitioner’s “closed” accounts. Accordingly, during a meeting with Respondent’s representatives on December 20, 2013, the Petitioner was advised that her employment was officially being terminated. Central to the Respondent’s decision was the lack of revenue generated by the Petitioner’s sales and the unprofitability of the company. The Petitioner’s failure to comply with the requests of her supervisor also provided a basis for her termination from employment. During the meeting on December 20, the Petitioner restated the complaints she had first addressed during the meeting on December 5, and raised a number of additional complaints, including allegations of harassment or sexual harassment by her supervisor or another employee. There is no evidence that, prior to learning on December 20, 2013, that her employment was being terminated, the Petitioner had advised any representative or employee of the Respondent that she had been harassed in any manner by her supervisor or by any other employee of the Respondent. The alleged perpetrators of the harassment dispute the Petitioner’s assertions. The evidence fails to establish that any of the alleged acts of harassment or sexual harassment actually occurred. In a memorandum to the Petitioner dated December 20, 2013, the Respondent advised the Petitioner that her termination package would include salary payments for three weeks (one week of “final” pay and two weeks of severance pay), additional payment for 27 hours of accrued paid time off and unused comp time, and a total commission payment of $31.97. By letter to the Respondent dated December 27, 2013, the Petitioner restated the alleged harassment referenced herein and requested that she receive an additional two weeks of severance pay. The Respondent ultimately paid the Petitioner a total of four weeks of severance pay. The evidence fails to establish that the termination of the Petitioner’s employment by the Respondent was related to any complaint of harassment or sexual harassment, or was retaliatory in any manner.
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 Petitioner's complaint against the Respondent. DONE AND ENTERED this 5th day of January, 2015, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 5th day of January, 2015. COPIES FURNISHED: Cheyanne Michelle Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Christina Harris Schwinn, Esquire Pavese Law Firm 1833 Hendry Street Post Office Drawer 1507 Fort Myers, Florida 33901 (eServed) Antonios Poulos, Esquire Poulos Law Firm 1502 West Busch Boulevard Tampa, Florida 33612 (eServed)
Findings Of Fact 10. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on July 17, 2007, and the Third Amended Order of Penalty Assessment issued on September 8, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Findings Of Fact 10. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on September 24, 2010, and the 2nd Amended Order of Penalty Assessment issued on May 5, 2011, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment and the 2nd Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 10-423-D3, and being otherwise fully advised in the premises, hereby finds that: 1. On September 24, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop- Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 10-423-D3 to Hal’s Floor Covering, Inc. (hereinafter Hal’s). The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On September 24, 2010, the Stop-Work Order and Order of Penalty Assessment was served on Hal’s by personal service. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On October 25, 2010, the Department issued an Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The Amended Order of Penalty Assessment assessed a total penalty of $9,049.83 against Hal’s. The Amended Order of Penalty Assessment included a Notice of Rights wherein Hal’s was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Amended Order of Penalty Assessment was served on Hal’s by personal service on February 18, 2011. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On November 12, 2010, Hal’s filed a timely Petition for formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 10-10613. 6. On May 5, 2011, the Department issued a 2nd Amended Order of Penalty Assessment to Hal’s in Case No. 10-423-D3. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $1,502.86 against Hal’s. The 2nd Amended Order of Penalty Assessment was served on Hal’s on May 12, 2011 through the Division of Administrative Hearings. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On May 16, 2011, the Department filed a Notice of Settlement in DOAH Case No. 10-10613. A copy of the Notice of Settlement filed by the Department is attached hereto as “Exhibit D.” 8. On May 16, 2011, Administrative Law Judge Elizabeth W. McArthur entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the May 16, 2011 Order Closing File is attached hereto as “Exhibit E.”
The Issue Whether Respondent engaged in unlawful employment practices with regard to Petitioner.
Findings Of Fact Graham is a black male. He filed an employment application with Pier 1, a "chain retailer," on August 23, 1999. The application indicated that he applied for a position as a sales associate but in fact he was to be employed as a stockroom assistant. His employment application included a block denominated, "Work Availability." Graham completed this block indicating that he was available to work between 6:00 a.m., and 12 p.m., Monday through Saturday. The employment application stated in the block denominated, "Work Availability," the following: "Although an effort will be made to accommodate individual work schedule preferences and availability, work schedules such as start time, number of daily or weekly hours and assigned work days are subject to change at any time. Availability to work on weekends is required. Number of hours may vary based on business necessity and could change an individual's employment status." Graham was hired on August 30, 1999, as a full-time employee. He worked primarily in the back stockroom. A meeting of store personnel was scheduled at the store on Sunday, November 17, 1999, at 6:30 p.m. Graham was aware of the meeting. He was 20 minutes late because he was participating in a church service at Macedonia Primitive Baptist Church. As a result of his tardiness he was presented with an Associate Corrective Action Documentation, which is a confidential Pier 1 form. The form noted that this was his first "tardy." The form as completed took no action such as suspension or loss of pay. It merely informed him that further instances of tardiness could lead to disciplinary action. Graham testified that he was treated differently from a white woman employee, one Christy Musselwhite, who did not attend the meeting, because Musselwhite did not receive a counseling form. However, Graham's personal knowledge of Musselwhite's situation was insufficient to demonstrate that Musselwhite was treated differently from Graham because of race or gender. Graham felt humiliated because he received the Associate Corrective Action Documentation form. Graham resigned from Pier 1 effective November 12, 1999, so that he could begin employment with the Florida Department of Children and Family Services at a rate of pay in excess of that which he received at Pier 1.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission Human Relations enter a final dismissing Petitioner's claim of discrimination. DONE AND ENTERED this 15th day of November, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2001. COPIES FURNISHED: Russell D. Cawyer, Esquire Kelly, Hart & Hallman 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Kenneth Terrell Graham 2811 Herring Drive Tallahassee, Florida 32303-2511 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ronni Morrison Pier 1 Imports Post Office Box 961020 Fort Worth, Texas 76161-0020
The Issue The issues are whether Respondent maintained workers' compensation coverage for certain employees, and, if not, what penalty, if any, should be imposed.
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees. § 440.107, Fla. Stat. (2002). Respondent is a corporation domiciled in Florida and engaged in the business of installing motorized aluminum hurricane shutters and security systems. On June 3, 2003, four of Respondent's workers installed aluminum shutters on a single-family residence located at 20799 Wheelock Drive, No. 909, Heron's Glen, North Fort Myers, Florida. Respondent did not have workers' compensation insurance for the four employees. In addition, Respondent failed to maintain workers' compensation coverage for the benefit of ten employees from June 21, 2002, through June 27, 2003 (the relevant period). Respondent stipulated that Respondent was an employer during the relevant period, and that Respondent failed to maintain workers' compensation coverage for five employees identified in the record as Ricardo Mendez, Pedro Rojas, Willie Marrow, Eric Mendez, and Izarate Cartas. Respondent further stipulated that Petitioner correctly assessed the penalty amounts for those employees. The remaining five individuals that Respondent contends were not employees are identified in the record as Jessica Mendez, Gelacio Zarate, Manual Mendez, Jesus Espinoza, and David Mobley. Respondent asserts, in relevant part, that these individuals were "casual labor" and not "employees" within the meaning of Section 440.02(15)(d)5, Florida Statutes (2002). Under the Workers' Compensation Law in effect on June 21, 2002, an "employee" did not include a person if the employment satisfied the conjunctive requirements of being casual and not in the course of the trade, business, profession, or occupation of the employer. § 440.02(15)(d)5, Fla. Stat. (2002). Section 440.02(5), Florida Statutes (2002), defined the term "casual," in relevant part, to be work that satisfied the conjunctive requirements of being completed in ten working days or less, without regard to the number of persons employed, and at a total labor cost of less than $500. Ms. Mendez and Mr. Zarate were Respondent's employees during the relevant period. Respondent paid each more than $500, and each individual performed services that were in the course of the trade, business, profession, or occupation of Respondent. Ms. Mendez worked as an assistant to the wife of the president and sole shareholder of Respondent. The wife maintained accounts and pulled permits for Respondent. Ms. Mendez assisted the wife by answering telephone calls and accompanying the wife when the wife pulled permits for Respondent. Respondent paid Ms. Mendez $760 during the relevant period. Respondent paid Mr. Zarate $800 during the relevant period to help build large roll-down, accordion, or panel shutters. Building shutters is an activity required in the course of Respondent's business. Mr. M. Mendez and Mr. Espinoza were Respondent's employees during the relevant period. Although Respondent paid each person less than $500, Mr. M. Mendez and Mr. Espinoza each performed cleanup work for Respondent. The amount of cleanup required depended on the number of roll-down shutter installations Respondent had at a given time. Constructing roll-down shutters produces a lot of paper and scraps that must be cleaned up to keep the shop clean. Mr. M. Mendez and Mr. Espinoza each performed services directly related to the construction of shutters by Respondent. Respondent argues that Mr. Mobley was either casual labor or an independent contractor. Mr. Mobley did not satisfy the statutory requirements for either classification. Mr. Mobley did not satisfy the requirements for casual labor. Mr. Mobley was an electrician who installed motorized shutters for Respondent. Mr. Mobley secured electrical permits needed for Respondent to do the electrical work essential to Respondent's business. Mr. Mobley accompanied Respondent's president to the construction site, ran the electrical, and wired the motor for the shutter that Respondent was assembling. Although Mr. Mobley worked for Respondent for only three days, Respondent paid Mr. Mobley approximately $1,200. Under the Workers' Compensation Law in effect during the relevant period, Section 440.02(15)(c), Florida Statutes (2002), required an "independent contractor" to satisfy all of the following requirements in Section 440.02(15)(d)1, Florida Statutes: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. Mr. Mobley satisfied some of the definitional elements of an independent contractor. He maintained a separate business as a sole proprietor not required to obtain a federal identification number, and incurred principal expenses related to the service or work he performed for Respondent. There is insufficient evidence to find that Mr. Mobley satisfied the remaining requirements for an independent contractor. The evidence was insufficient to show that Mr. Mobley could be held liable for failure to complete the work or services he performed for Respondent, had continuing or recurring business obligations, or that the success or failure of his business depended on the relationship of receipts to expenditures. The evidence is clear that Mr. Mobley would not have performed work for Respondent if he were to have suffered a loss. Mr. Mobley was Respondent's employee during the relevant period. Mr. Mobley failed to satisfy the definition of either casual labor or an independent contractor.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order that affirms, approves, and adopts the Amended Stop Work and Penalty Assessment Order. DONE AND ENTERED this 9th day of April, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 2004. COPIES FURNISHED: Marshall L. Cohen, Esquire Marshall L. Cohen, P.A. Post Office Box 60292 Fort Myers, Florida 33906-0292 Andrea L. Reino, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
