Findings Of Fact On October 23, 1978, Petitioner was hired as secretary to W. J. Crist, president of Hygroponics, Inc. On February 26, 1979, W. J. Crist evaluated Petitioner's overall job performance as "good." With respect to cooperation, the Petitioner was rated in the category of "cooperates very well," the highest rating possible for that category of performance. With respect to job knowledge, she was rated as showing "unusual capacity," also the highest rating possible for that category of performance. On March 5, 1979, Petitioner received an increase in salary from $4.18 per hour to $4.51 per hour, based in part upon her increased responsibilities and in part upon demonstrated merit. Following is Hygroponics, Inc.'s office staff organization chart dated May 2, 1979: HYGROPONICS, INC. OFFICE STAFF ORGANIZATION CHART | President | /| W. J. Crist |\ / | | \ / | \ \ \ | Purch. Agent | | Controller | \ | Technical Service | | Dick Destival | | James Jobe |" \ | Dick Jeffery | | | | | "" \ | | " / | | " "\ | " / | | " \" | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | " \ " | " / | | "\ "| | Marsha | | Liz | | Nell | | Arlene | | Carolyn | | Betsy | | | | | | | | | | | | | /|\ Direct lines of authority. Answerable to this person at all times " Indirect lines of authority. Answerable for secondary duties and when direct lines are not available. The above organizational chart does not include the company's chief executive officer. On occasion, members of the company's secretarial staff went directly to the chief executive officer with employment-related problems. In September, 1979, after James Jobe, the controller referenced in the above chart, left the company's employ, W. J. Crist, the company president, advised Petitioner that she was to become office manager. After that time, Petitioner assumed many of the duties of office manager. Petitioner inquired when she would receive a raise commensurate with her increased responsibilities, and was advised that this would be accomplished after the company hired a new controller. Emmett Singleton was hired to fill the position of controller on October 29, 1979. On December 11, 1979, Petitioner formally became acting office manager. On that date Petitioner was evaluated by Emmett Singleton, who rated Petitioner highest in the areas of decision-making and ability to organize, and lowest in the areas of acceptability and responsibility. Specifically, Singleton made the following comments concerning Petitioner's job performance: "Has difficulty in establishing satisfactory relationships with people"; "Average leader, conventional in manner and enthusiasm, conveys ideas but does not motivate group"; "Has problem with admitting an error or fault"; "Reluctant to accept job responsibilities. Supervision and follow-up often required"; "Considers job an eight to five task with scheduled breaks reguardless [sic] of status of workload"; "Employee is preoccupied with the position rather than a concern for getting the job done"; and, "Employee resents being monitored or controlled. Sometimes uncooperative and slow to respond to direction." In addition, members of the company management group, other than Emmett Singleton, commented on this evaluation that Petitioner "alienates co-workers," "Has experienced confusion in the scheduling of grower school," and expressed concern with Petitioner's "attitude." The controller noted on the evaluation form that he planned ". . .to work closely with [Petitioner] for the next 60 days and make an assessment during this time as to whether on [sic] not suited for office manager." Finally, Mr. Singleton noted on Petitioner's performance review form that Petitioner ". . .is classified as Acting Office Manager and is on probation with reguard[sic] to classification. No change in rate of pay is being made at this time. Employee will be reevaluated in 60 days on or about 2/10/80." In order to improve her skills in the area of acceptability and responsibility, Petitioner requested that Mr. Singleton issue a memorandum clarifying the lines of her authority especially since her subordinates had not been advised that she had been given supervisory responsibility over them. Her request was denied at that time because Singleton wanted to first determine whether she could handle the position. On January 12, 1980, Singleton reevaluated Petitioner's job performance. According to Singleton's rating, Petitioner had improved in the areas of acceptability and responsibility, which had been her weak points in the evaluation performed one month earlier. On this same day, Petitioner was reclassified from acting office manager to office manager, and received an increase in pay to $821.60 per month, retroactive to November 1, 1979. Petitioner also assumed the duties of payroll clerk and accounts payable in addition to the duties of office manager. Shortly after receiving this promotion, Petitioner advised employees of Hygroponics, Inc., that she was pregnant. W. J. Crist and Emmett Singleton acknowledged her pregnancy, and the latter inquired concerning her intentions regarding her employment. Petitioner responded that she intended to continue working for the company, and to return to work after the birth of her child. Hygroponics, Inc., had no maternity leave policy. No other female employee had ever given notice of pregnancy and stated her intention to return to work following childbirth. However, at least two other employees had become pregnant during the term of their employment with Hygroponics, Inc. One of these employees, in fact, suffered two miscarriages during her term of employment, and continued working with the company. Another female worker became pregnant, gave birth to a child, and returned to work without ever advising the company or the company ever being aware that she had been pregnant until after she had returned to work. On January 30, 1980, Petitioner submitted a memorandum to Eugene Crist, the company's chief executive officer. The memorandum suggested changes regarding the responsibilities of certain of the office personnel under her supervision. Petitioner had previously discussed these suggested changes with Emmett Singleton, her immediate supervisor, who advised her that he thought her suggestions were a good idea. At the time the memorandum was submitted to the company's chief executive officer, W. J. Crist, the president of the company, was out of the state. On January 30, 1980, Eugene Crist showed the memorandum to Emmett Singleton. The memorandum was then returned to Petitioner by the company's chief executive officer with a notation that the matters contained in the memorandum should be handled through Singleton. Two days later, on February 1, 1980, Singleton asked Petitioner for the memorandum. When Petitioner could not locate the memorandum, and offered to discuss the details of it with Singleton, Singleton advised her that there was no basis for conversation if she could not produce the memorandum. As noted above, Singleton had seen and read the memorandum two days previously when it was shown to him by Eugene Crist. Upon W. J. Crist's return to Florida, Singleton advised him that Petitioner had submitted a memorandum directly to the company's chief executive officer, and that when Singleton asked Petitioner to see the memorandum, she advised him that she had misplaced it. On February 8, 1980, W. J. Crist circulated a memorandum to the Hygroponics, Inc., executive staff concerning Petitioner's ". . .insubordination, poor attitude [and] defiance of executive orders. This memorandum provided, in part, as follows: It is my understanding that Carolyn recently drafted a memorandum on her proposed changes in office duties for many people, changes in accounting procedures, etc. I have been informed that she: "by-passed you, her immediate superior and by-passed me, her next-in-line superior." and delivered this memo directly to Gene, our CEO. Then when Gene informed her to "discuss the memo directly with you," she advised you "she did not even have the memo anymore." I find these actions, on Carolyn's part very distressing and feel we must take disciplinary actions with her. So - what are the problems. Her "uncooperative" and "attitude" problems outlined in your personnel evaluation of her on December 11, 1979 (which she acknowledged) when you put her "on probation," the first time, still persist. She demonstrated anything but teamwork in by-passing her two immediate superiors and going directly to our CEO. This is very bad for an employee to do but even worse for her since she is suppose [sic] to be a leader of our people in her slot as Office Manager. Her disregarding Gene's directive to discuss the memo with you was corrected only by your insistance[sic] that the two of you discuss it. Her statement to you that "she no longer had the memo" is also distressing. Has she destroyed it? This additional negative certainly weakens her argument that "she went directly to Gene because he was going out.[sic] (Original emphasis.) The above-referenced memorandum solicited the views of the company's executive staff as to whether to terminate Petitioner, discipline her in some fashion, or give her an opportunity to resign. The decision was unanimous among all five members of the executive staff to terminate Petitioner. No member of the executive staff questioned Petitioner before concurring in the decision to discharge her. Such a memorandum of concurrence was not the company's standard practice in discharging employees, which generally was for the discharge decision to be made by the employee's supervisor alone. Hygroponics, Inc., was, at all times material to this proceeding, a rather small organization, numbering at the most approximately fifty employees. As a result, many of the internal functions of the company were informal in nature. For example, there were no strict lines of authority for secretarial staff to air grievances or make suggestions. There was, however, a generalized procedure for employees to approach their immediate supervisor with any employment-related problems. There is no direct substantive evidence in the record in this cause from which it can be concluded that Petitioner was terminated from her employment because she was either female or pregnant. Further, whatever circumstantial evidence there is in this record to support such a contention is overcome by Respondent's demonstration that Petitioner was at best an employee of average ability who management viewed at times to be a problem employee. It appears, therefore, that the reason for Petitioner's discharge was an accumulation of events, culminating in her memorandum of January 30, 1980, being submitted to the company chief executive officer, and not for any reason relating to her sex.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the State of Florida, Commission on Human Relations, dismissing the Petition for Relief, and denying the relief requested therein, with prejudice. DONE AND ENTERED this 2nd day of March, 1983, at Tallahassee, Florida. WILLIAM E. WILLIAMS 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 2nd day of March, 1983. COPIES FURNISHED: James H. White, Jr., Esquire 229 McKenzie Avenue Panama City, Florida 32401 John F. Daniel, Esquire Post Office Box 2522 Panama City, Florida 32401 Dana Baird, Esquire Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Richard E. Williams Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301
The Issue The issue in this case is whether Petitioner has forfeited his rights and benefits under the Florida Retirement System pursuant to Section 112.3173, Florida Statutes (2008).
Findings Of Fact Based on the record in this proceeding, including the evidence presented at the formal hearing and the joint pre- hearing stipulation1 of the parties, the following Findings of Fact are made: The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. Respondent, Department of Management Services, Division of Retirement (Respondent or Division), is charged with managing, governing, and administering the FRS. Petitioner, Mr. Johnson Holsberry, Jr. (Petitioner or Mr. Holsberry), was formerly employed as a teacher at the West Area School of Choice by the Palm Beach County School Board (PBCSB). By reason of his employment with the PBCSB, Mr. Holsberry became a member of the FRS. As a teacher, Mr. Holsberry was subject to the Code of Ethics of the Education Profession in Florida found in Rule 6B- 1.001, Florida Administrative Code. As a teacher, Mr. Holsberry was subject to the Principles of Professional Conduct for the Education Profession in Florida found in Florida Administrative Code Rule 6B-1.006. On or about December 5, 2000, Mr. Holsberry resigned his teaching position with PBCSB. On or about October 24, 2001, Mr. Holsberry was charged, by amended information, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, with one count of child abuse, a third degree felony, in violation of Section 827.03(1), Florida Statutes. The same amended information is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. The victim of the alleged crime, R.D., was a female student at the Area School of Choice. In Palm Beach County, Florida, between the dates of January 1, 1999, and December 31, 1999, Petitioner, while teaching in a position of parental responsibility, was alleged to have had contact with R.D. and to have acted in such a manner as to cause mental injury to said child. On or about October 24, 2001, Mr. Holsberry entered an agreement with the State Attorney's Office wherein he agreed to plead guilty as charged in the amended information. The same plea agreement is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF- 001185. Mr. Holsberry's guilty plea was made freely and voluntarily. Mr. Holsberry pled guilty because he was in fact guilty. On or about October 24, 2001, Mr. Holsberry was adjudicated guilty. The same judgment is filed in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, in State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. On or about January 8, 2001, Mr. Holsberry applied to the Division for early service retirement from the FRS and began receiving retirement benefits. The Division suspended payment of Mr. Holsberry's monthly retirement benefits in June 2008. By certified letter dated June 13, 2008, Mr. Holsberry was notified of the Division's intended action to forfeit his FRS rights and benefits as a result of his guilty plea in the case styled and numbered State of Florida v. Johnson Leo Holsberry, Jr., Case No. Ol-CF-001185. At the hearing, Mr. Holsberry testified that R.D. was in his classroom a few times, but that he was not sure of the year, frequency, or why she was there. He testified that he does not remember taking a picture of R. D. sitting at his desk, but that might have taken place. Mr. Holsberry also testified that he does not recall permitting R. D. to access her email from his classroom, or inviting her to join him on trips, to come to his home, or otherwise to meet him any place outside of the school. Mr. Holsberry testified that he does not recall giving R. D. his home telephone number. He recalls having an email screen name of Sameagle1, but does not recall whether he emailed R. D. from that email address or whether he had another screen name, Gutster. He testified that he does not recall referring to himself as H-Man (although he said some students called him "Mr. H.") or referring to R.D. as "Dukey Dufus." In general, Mr. Holsberry's testimony that he does not recall his actions that ultimately ended his career as a teacher is not credible. Mr. Holsberry noted that R.D. was not officially assigned to any of his classes, so that he was not responsible for her education, nor was he involved with her in any after school program that would have made him responsible for her welfare. Mr. Holsberry testified that he probably would not have met R.D. but for his position as a teacher at her school. He also recalled having being interviewed by an investigator named Green. Angelette Green, an employee of the Palm Beach County School District for 15 years, was the investigator assigned to Mr. Holsberry's case. Detective Green testified that Mr. Holsberry admitted that he helped R. D. set up an email account, communicated with her by email, including having sent by internet a picture of her taken in his classroom. She also testified that she remembers emails inviting R. D. to go somewhere. She said Mr. Holsberry called R. D. "Dukey Dufus" after he sent her an email and she questioned who it was from. On July 30, 2002, an Administrative Complaint was filed by the Commissioner of Education seeking disciplinary sanctions against Mr. Holsberry's license based on allegations of professional misconduct. Mr. Holsberry did not contest the disciplinary matter, having already agreed to surrender permanently his teaching certificate as a part of his plea agreement. The Education Practices Commission entered a final order permanently revoking his teaching certificate. On October 24, 2001, a plea conference was held on the following charge: Amended Information For: CHILD ABUSE In the Name and by the Authority of the State of Florida: BARRY E. KRISCHER, State Attorney for the Fifteenth Judicial Circuit, Palm Beach County, Florida, by and through his undersigned Assistant State Attorney, charges that JOHNSON LEO HOLSBERRY JR. on or between January 01, 1999 and December 31, 1999, in the County of Palm Beach and State of Florida, did knowingly or willfully, intentionally inflict physical or mental injury upon R.D., a child, {or} did an intentional act or actively encourage another to do an act that results or could reasonably be expected to result in physical or mental injury to R.D., a child, contrary to Florida Statute 827.03(1). (3 DEG FEL) At the plea conference, the following exchange occurred: [By Mr. Jaegers, Assistant State Attorney:] The defendant will be adjudicated guilty of the offense; he will be placed on five years probation. There will be no early termination contemplated. The defendant will be required to pay Court costs in the amount of $261.00, $50.00 to the Drug Trust Fund, $50.00 cost of prosecution. The defendant must undergo a psychological evaluation and successfully complete any recommended treatment. * * * The defendant is to surrender all and not seek at any time in the future any teaching certificates in any jurisdiction in the world. There will be no contact with children under 18 unless they're in the presence of an adult who is aware of these charges. And those are the terms of the negotiated settlement. The facts in this case, Judge, are that the defendant, Johnson Leo Holsberry, Jr., did in Palm Beach County, Florida, on, between the dates of January 1, 1999 and December 31st, 1999, while teaching in a position of parental responsibility, in that capacity had contact with a juvenile female by the name of, or by the initials of SRD, I think it's on the plea sheet. MR. WILINSKEY [Counsel for Mr. Holsberry] That's right. MR. JAEGERS: -- RD, and did act in a manner such as to cause mental injury to said child. The -- those are the facts that occurred in Palm Beach County. THE COURT: Sir, raise your right hand, please. JOHNSON LEO HOLSBERRY, JR. BEING FIRST DULY SWORN BY THE COURT, TESTIFIED AS FOLLOWS: THE COURT: Your name? THE DEFENDANT: Johnson Leo Holsberry, Jr. THE COURT: How old are you? THE DEFENDANT: 62 * * * THE COURT: Do you understand what the things are you have to do? THE DEFENDANT: Yes, sir. THE COURT: Are you pleading guilty because you are guilty? THE DEFENDANT: Yes. THE COURT: Do you agree with the facts the State Attorney gave me as the basis for your plea of guilty? THE DEFENDANT: Yes, sir.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order finding that Petitioner was convicted of a specified offense pursuant to Section 112.3173, Florida Statutes, and directing the forfeiture of his FRS rights and benefits. DONE AND ENTERED this 24th day of July, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 2009.
Findings Of Fact Petitioner, John F. Morack, is a member of the Teachers Retirement System (TRS). The TRS is administered by respondent, Department of Administration, Division of Retirement (Division). On April 18, 1988, petitioner began working for a new employer and concurrently filled out an application form to enroll in the Florida Retirement System (FRS), a plan also administered by the Division. By letter dated June 27, 1988, the Division, through its chief of bureau of enrollment and contributions, Tom F. Wooten, denied the request on the ground Morack failed to qualify for such a transfer. Dissatisfied with the agency's decision, Morack initiated this proceeding. Petitioner first enrolled in the TRS on September 18, 1970, when he began employment as a dean at Broward Community College. At that time, he had no option to enroll in any retirement program except the TRS. Under the TRS, an employee did not have to make contributions to social security and earned "points" for calculating retirement benefits at a rate of 2% for each year of creditable service. In contrast, under the FRS, which was established in late 1970, members earned benefits at a rate of only 1.6% per year but were participants in the social security program. Finally, a TRS member could not purchase credit for wartime military service unless he was an employee at the time he entered the military service and was merely on a leave of absence. On the other hand, an FRS member could purchase credit for military service after ten years of creditable service as long as such military service occurred during wartime. When the FRS was established in late 1970, members of the TRS were given the option of transferring to the newly created FRS or remaining on TRS. Morack executed a ballot on October 15, 1970 expressing his desire to remain on the TRS. In November 1974, the Division offered all TRS members an open enrollment period to change from TRS to FRS. Morack elected again to remain on the TRS. In the latter part of 1978, the Division offered TRS members a second open enrollment period to switch retirement systems. On November 21, 1978, Morack declined to accept this offer. On January 1, 1979 Morack accepted employment with the Department of Education (DOE) in Tallahassee but continued his membership in the TRS. He remained with the DOE until July 1981 when he accepted a position in the State of Texas. However, because Morack intended to eventually return to Florida, he left his contributions in the fund. Approximately two years later, petitioner returned to Florida and accepted a position at Florida Atlantic University (FAU) in Boca Raton as assistant vice president effective July 11, 1983. About the same time, he prepared the following letter on a FAU letterhead. To Whom it May Concern: This is to indicate that I elect remaining in TRS rather than FRS. (Signature) John F. Morack The letter was received by the Division on July 19, 1983, and the enrollment form was processed on November 2, 1983. Although Morack stated that he was told by an FAU official that he could not transfer plans at that time, there is no competent evidence of record to support this claim since the testimony is hearsay in nature. On November 18, 1985, Morack requested the Division to audit his account for the purpose of determining how much it would cost to purchase his Korean War military service. On January 24, 1986, the Division advised Morack by memorandum that because he had "no membership time prior to (his) military service, that service is not creditable under the provisions of the Teachers' Retirement System." During the next two years Morack requested two audits on his account to determine retirement benefits assuming a termination of employment on July 31, 1987 and June 30, 1988, respectively. On April 14, 1988, Morack ended his employment with FAU and began working on April 18, 1988, or four days later, at Palm Beach Junior College (PBJC) as construction manager for the performing arts center. When he began working at PBJC he executed Division Form M10 and reflected his desire to be enrolled in the FRS. As noted earlier, this request was denied, and Morack remains in the TRS. The denial was based on a Division rule that requires at least a thirty day break in service with the state in order to change retirement plans after returning to state employment. Because Morack's break in service was only four days, he did not meet the requirement of the rule. At hearing and on deposition, Morack acknowledged he had several earlier opportunities to transfer to the FRS but declined since he never had the benefits of the FRS explained by school personnel. As retirement age crept closer, petitioner began investigating the differences between the TRS and FRS and learned that the latter plan was more beneficial to him. This was because the FRS would allow him to purchase almost four years of military service, a higher base salary would be used to compute benefits, he could participate in social security, and there would be no social security offset against his retirement benefits. Also, petitioner complained that school personnel were not well versed in retirement plans and either were unaware of alternative options or failed to adequately explain them. As an example, Morack points out that when he returned from Texas in 1983 he was not told by FAU personnel about the change in the law now codified as subsection 121.051(1)(c). Finally he thinks it unfair that the Division counts four days employment in a month as a full month's creditable service for computing benefits but will not count his four days break in service in April 1988 as a full month for computing the time between jobs.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request to change retirement plans be DENIED. DONE AND ENTERED this 7th day of November, 1988, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4183 Respondent: 1. Covered in finding of fact 6. 2-4. Covered in finding of fact 7. 5. Covered in finding of fact 10. 6-7. Covered in finding of fact 11. Covered in findings of fact 8 and 11. Covered in findings of fact 1 and 10. COPIES FURNISHED: Mr. John F. Morack 10474 Green Trail Drive Boynton Beach, Florida 33436 Stanley M. Danek, Esquire 440 Carlton Building Tallahassee, Florida 32399-1550 Andrew J. McMullian, III State Retirement Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Adis Maria Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire general Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact EXCEPTION: Petitioners argue that estoppel should be applicable because of the telephone call between Mrs. Martin and some employee of the Division. RESPONSE: a) This argument is also rejected by the Division. The substance of what Mrs. Martin recalled was so speculative so as to be of no use. This has been discussed infra. In fact, the Division receives dozens of calls a day about membership of agencies and individual members. It is not physically possible and the law does not require that the Division do any more than answer the inquiry as given. It is entirely up to the agency or the person to follow up in writing if they believe that they have been denied or are eligible for some benefit. Findings of Fact No. 25, et seq., of the Hearing Officer were supported by competent, substantial evidence and are adopted by the Division. b) The Findings of Fact No. 25 et seq., are supported by competent, substantial evidence and are adopted by the Division.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by Respondent which changes the retirement status of Commissioner Marinelli from the regular class to ESCOC, which permits Commissioner Marinelli and the individual commissioners in CATEGORY 1 to upgrade their service by purchasing additional credit pursuant to Section 121.052(5), Florida Statutes (1991), and which denies the remaining Petitioners eligibility for membership or benefits under the ESCOC. DONE AND ORDERED this 22nd day of December, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 22nd day of December, 1992.
The Issue Whether petitioner should be removed from the Florida Retirement System, as of July 1, 1979, on grounds of ineligibility.
Findings Of Fact Petitioner, a licensed attorney, practices law in Clewiston, Hendry County, Florida. Since at least September 1, 1970, he has continuously engaged in the private practice of law in Clewiston. On September 1, 1970, the Glades County School Board ("School Board" or "Board") hired him as the School Board attorney, a position which he continues to hold. This is a part-time position, since the Board has no need for a full-time attorney. The School Board is headquartered at Moore Haven, 16 miles northwest of Clewiston, in neighboring Glades County. The terms and conditions of petitioner's employment with the School Board have remained virtually unchanged since he was originally hired. Each year, the School Board sets his salary consisting of a monthly retainer or salary, plus a fixed amount per hour for any additional professional services or litigation required by the School Board. For the 1979-80 school year, the Board set his salary or retainer--terms which the School Board used interchangeably-- as shown by the Minutes of the July 11, 1979, meeting: 3. SALARY/SCHOOL BOARD ATTORNEY - 1979-80 Chairman Hilliard opened the floor for discussion on the salary for the school board attorney for the 1979-80 school year. After some discussion between the board and Mr. Potter, the board proposed a retainer of $750.00 per month. (annual salary of $9,000.00) plus $50.00 per hour for additional pro fessional services or litigation required by the board. ON MOTION by Sapp, seconded by Johnson, the board approved this pro- posal for school board attorney for the 1979-80 school year. (Vote: Arnold, yes; Johnson, yes; Taylor, yes; Sapp, yes; Hilliard, yes.) His salary is paid from the School Board's regular employee salary account. But as the School Board's attorney, unlike other School Board employees, he does not accrue annual leave, sick leave, or pay during vacations, holidays or illness, though when he is sick or on vacation, there is no adjustment to his salary. He is reimbursed for work-related travel and meals at the rates provided by Section 112.061, Florida Statutes (1983), and is covered by the School Board's group health and life insurance, and Workers' Compensation. Since 1970, the Board has withheld his Social Security contributions from his fixed monthly salary payments; has paid the employer's Social Security contributions on his salary payments; and has annually reported his monthly salary payments on Internal Revenue Service Form W-2. To this extent, the School Board considered him an employee and treated him the same as it treated its other employees. The legal services which he furnished the School Board are described in his employment agreement and the School Board's job description for the position: TYPICAL DUTIES: Attend all regular Board meetings and such special meetings as deemed advisable by Board Chairman or Superintendent. Be available for routine telephone or personal consultations with Board Chairman, Superintendent and Staff members. Perform legal research. Prepare or approve leases or agreements prior to execution by Board. Prepare and prosecute law suits in behalf of Board and defend law suits against Board, including any actions against Superintendent, Staff or other school district employees allegedly arising etc., unless special counsel is deemed necessary by Board Attorney with Board's concurrence. Attend the quarterly seminars/meetings of Florida School Board Attorneys Association; and any other approved by Board. Represent Board and/or Superintendent in personnel matters where appropriate, as well as student discipline matters. School Board meetings, held monthly, last approximately one and one-half hours. Litigation, although described as a typical duty, is considered extra work, and an hourly rate is charged over and above the monthly salary. Petitioner agrees that he would not knowingly accept any new clients which would cause a conflict of interest with his School Board employment. Although he has been free to turn down work assigned by the School Board, he never has--at least through 1976. As explained by Mr. Strope, Superintendent of Schools from 1968 to 1976, although petitioner was free to turn down work, he "shouldn't have." Petitioner is not required to maintain any set office hours, and his monthly salary does not vary with the number of hours' work. He is not furnished office space by the School Board. The majority of his legal work for the Board is performed at his private law office, in Clewiston. The cost of operating his law office is not a budget item in the School Board's budget. Under his employment arrangement with the School Board, he furnishes all personnel, equipment, and facilities needed to perform his services. He is responsible for supervising the secretaries who work in his private office. Occasionally, when he is at School Board headquarters in Moore Haven he will ask a School Board employee to type a document. At his request, however, the School Board will furnish him pencils, legal pads, legal periodicals and stationery. It also pays for his travel; for per diem expenses incurred while attending legal seminars or meetings; and for long distance telephone calls made in connection with his School Board employment. He is neither responsible for, nor supervises, any employee of the School Board. The School Board does not furnish him any legal secretaries or part-time attorney assistants. He has not shown what percentage, or amount, of his working hours are devoted to performing legal services for the School Board, as opposed to legal services which he performs for his other clients. Other than assigning specific legal tasks, the School Board exercises no more control over the means, methods, and manner by which petitioner performs the legal work given him than is ordinarily exercised by any client over an attorney. Because of ethical constraints and the nature of legal work, petitioner must exercise independent professional judgment. Since September 1, 1970 2/, petitioner has been enrolled in the FRS. This was accomplished by his filling out a prescribed form which the School Board then filed with the Division. The Board then began reporting him on its employee rolls. There is no evidence that the initial FRS entry form, filed with the Division, described petitioner's work duties or the nature of his employment with the School Board. Both the Board and the Division enrolled him in the FRS, believing that he was eligible for membership. The Division did not question or investigate the nature of his employment relationship with the Board until 1983. From his initial enrollment until January 1, 1975, when FRS became a non-contributory system, petitioner contributed one-half of the the required FRS contribution, while the School Board contributed the other half. Since January 1, 1975, the School Board has contributed 100 percent of his contributions to FRS. During the 1970s petitioner's membership in the FRS prevented him from participating in any other tax sheltered retirement plan. 3/ Since July 1, 1979, the Division has, by rule, given notice that consultants and other professional persons contracting with public employers are, ordinarily, ineligible for membership in the FRS. All public employers, including the School Board, have been asked to remove such persons from their retirement payrolls. Since at least July 8, 1981, petitioner was on notice that his status as an employee, and his eligibility for continued membership in the FRS, were in question. Both the parties stipulate that part-time electricians, plumbers, painters, combustion engine mechanics, air conditioning mechanics, janitors or sewage plant operators (and even other occupations) employed in 1983 by the Glades County School Board on a year-round salary basis (i.e., at least 10 consecutive months), and paid out of the School Board's regular salary and wage account, would be mandatory members of FRS by statute. (Prehearing Stip., para. E. 6)
Recommendation Based on the foregoing, it is RECOMMENDED: That the Division enter an order removing petitioner from membership in the Florida Retirement System, as of July 1, 1979; and That the Division return to petitioner and the School Board their respective FRS contributions, mistakenly made to his account. DONE and RECOMMENDED this 14th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 14th day of February, 1984.
The Issue Whether Petitioner is "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Prior to July of 2000, Petitioner worked on a permanent part-time basis as an adult education teacher for the Miami-Dade County School Board (School Board), accumulating 7.10 years of retirement credit. On Sunday, July 2, 2000, Petitioner was hospitalized because of a "blood disorder." Since his hospitalization on July 2, 2000, Petitioner has been under a doctor's care and has not been physically able to return, and therefore has not returned, to work. Petitioner was hospitalized again in 2001 and for a third time in 2002 for the same ailment. After each visit he has made to the doctor during the time he has been out of work, Petitioner has apprised the principal of the South Dade Adult Education Center (South Dade), where he had worked before his July 2, 2000, hospitalization, of his condition. It is now, and has been at all times following his July 2, 2000, hospitalization, Petitioner's intention "to return to work upon clearance from [his] doctor." Petitioner has not been paid by the School Board during the time he has been out of work. In April of 2001, Petitioner spoke separately with a representative of the United Teachers of Dade (UTD) and with a School Board staff member concerning his employment situation. The UTD representative advised Petitioner that Petitioner "was on an approved leave of absence." The School Board staff member told Petitioner that he "should be on an approved leave of absence"; however, she was unable to "find that authorization in the computer." She suggested that Petitioner go to School Board headquarters and inquire about the matter. Petitioner went to School Board headquarters, as the School Board staff member had suggested. The persons to whom he spoke "couldn't locate the [leave] authorization either." They suggested that Petitioner contact the principal of South Dade. Taking this advice, Petitioner wrote two letters to the principal inquiring about his employment status. He received no response to either letter. During the summer of 2001, Petitioner contacted the Division to ask about his eligibility to receive retirement benefits. Lisa Skovalia, a Benefits Specialist with the Division, responded to Respondent's inquiry by sending him the following letter, dated August 22, 2001: Our records indicate that you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date. As such, you must return to active employment, to earn one additional year of service credit, before you will be vested in the Florida Retirement System and eligible for retirement benefits. I have enclosed a copy of the FRS Retirement Guide for the Regular Class for your information. Please call or write if you have any further questions. In February of 2002, Petitioner again made contact with School Board personnel and "was told that [his] name [had been] removed from the computer (school records)." In July of 2002, Petitioner wrote United States Senator Bob Graham "seeking [Senator Graham's] assistance in helping [Petitioner] get [his] retirement form Miami-Dade Public Schools." Petitioner's letter to Senator Graham was referred to the School Board's Superintendent of Schools, who responded by sending the following letter, dated August 29, 2002, to Petitioner: Your letter . . . to Senator Bob Graham was referred to me for response. A review of our records indicates that your earnings as a part-time teacher ended in July 2000. As a part-time employee, you were not eligible for a Board-approved leave of absence. You were notified by letter (copy attached) dated August 22, 2001 from Ms. Lisa Skovalia, Benefits Specialist, State of Florida, Division of Retirement, that because ". . . you were neither actively employed (physically working and earning salary) as of July 1, 2001, nor on a school board approved leave of absence through that date," you would have to return to active employment and earn one additional year of service credit before being vested in the Florida Retirement System. The State of Florida Division of Retirement is solely responsible for developing rules and procedures for implementing changes in the retirement law. If you disagree with their determination, you may request an administrative hearing by sending a written request to the Bureau of Retirement Calculations, Cedars Executive Center, 2639 North Monroe Street, Building C, Tallahassee, Florida 32399. On September 12, 2002, Petitioner sent a letter to the Division's Bureau of Retirement Calculations (Bureau) "seeking [its] assistance in helping [him] get [his] retirement from Miami-Dade Public Schools." The Bureau responded to Petitioner's letter by providing him with the following Statement of Account, dated September 20, 2002: We audited your retirement account and you have 7.10 years of service through 07/2000. Please note that the vesting requirement for FRS members has been changed to 6 years of creditable service effective July 1, 2001 for those members who were actively employed on that date or on a board approved leave of absence. Former members with 6 years, but less than 10 years of creditable service who were not employed with a participating FRS employer on July 1, 2001, must return to covered employment for one year to become eligible for the six-year vesting provision. Per Maria Perez at the Miami-Dade County School Board you were not on a board approved leave of absence on July 1, 2001, nor were you eligible for a board approved leave of absence due to your position as a part time adult school instructor. Although your school may have allowed you to take a leave of absence, only board approved leaves fulfill the vesting requirements required by law. On November 15, 2002, Petitioner sent the Bureau a letter expressing the view that it was not "fair that, after all [his] efforts as a teacher, [he] should lose out [on his] retirement" and requesting "an administrative hearing concerning [his] efforts to get retirement benefits from Miami-Dade Public Schools." The State Retirement Director responded to Petitioner's letter by sending him the following letter, dated December 18, 2002: This is in response to your recent letter concerning your vesting and eligibility for retirement benefits. You currently have 7.10 years of retirement credit through July 2000, your last month of employment in a Florida Retirement System (FRS) covered position. [Section] 121.021(45)(b)1, F.S., states that "Any member employed in a regularly established position on July 1, 2001, who completes or has completed a total of 6 years of creditable service shall be considered vested. . ." An FRS employer (Dade School Board) last employed you in a regularly established position in July 2000 and you were not granted a leave of absence to continue the employment relationship. Dade School Board has informed us that as a part-time teacher, you were not eligible for an approved leave of absence. Therefore, you do not meet the statutory requirement for coverage under the six year vesting provision. [Section] 121.021(45)(b)2, F.S., provides the vesting requirement for members who were not employed on July 1, 2001, as follows: "Any member not employed in a regularly established position on July 1, 2001, shall be deemed vested upon completion of 6 years of creditable service, provided that such member is employed in a covered position for at least 1 work year after July 1, 2001 (emphasis supplied). It is certainly unfortunate that you had to leave your employment because of your illness, but the current retirement law requires that you must return to covered employment and earn one year of service credit to be vested and eligible for retirement benefits. This letter constitutes final agency action. If you do not agree with this decision and wish to appeal this action, you must file a formal petition for review in accordance with the enclosed Rule 28-106.201, Florida Administrative Code (F.A.C.) within 21 days of receipt of this letter. Your petition should be filed with the Division of Retirement at the above address. Upon receipt of the petition, you will be notified by the Division or the Administrative Law Judge of all future proceedings and hearings. If you do not file an appeal within the 21-day period, you will waive your right to request a hearing or mediation in this matter in accordance with Rule 28-106.111, F.A.C. By letter dated January 2, 2003, Petitioner "appeal[ed]" the "final agency action" announced in the State Retirement Director's December 18, 2002, letter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division issue a final order finding that Petitioner is not "vested," as that term is defined in Subsection (45) of Section 121.021, Florida Statutes. DONE AND ENTERED this 31st day of March, 2003, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 31st day of March, 2003.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that: The Career Service Commission find that there was no just cause for the written reprimand concerning the charge of "leaving the assigned work station without authorization," and expunge said written reprimand from respondent's personnel file; and The Commission affirm the thirty day suspension without pay for insubordination and committing this offense while supervising children. Respectfully submitted and entered this 15th day of April, 1977, in Tallahassee, Florida. COPIES FURNISHED: William Park, Esquire 4000 West Buffalo Avenue Tampa, Florida 33614 Freemon A. Mark, Esquire 1577 North Dixie Highway Post Office Box 1991 Pompano Beach, Florida 33061 Mrs. Dorothy Roberts Appeals Coordinator Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 Mr. Conley M. Kennison State Personnel Director Room 530, Carlton Building Tallahassee, Florida 32304 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 1977. =================================================================
The Issue This matter was referred by the Public Employees Relations Commission to the Division of Administrative Hearings for hearing to determine: Whether the Respondent, Seminole County, is a Public Employer within the meaning of Chapter 447, Florida Statutes. Whether the Petitioner, Union, is an employee organization within the meaning of Chapter 447, Florida Statutes. Whether there has been a sufficient showing of interest has required for the filing of a representation election petition under Chapter 447, Florida Statutes. Whether the employer organization is a properly registered organization with the Public Employees Relations Commission. What is the appropriate unit of public employees within the Public Employer? PRE-HEARING MATTERS Prior to the commencement of the hearing, Respondent filed the following motions with the Hearing Officer who made the indicated disposition of the motion: Motion for Discovery; denied on the basis of prior PERC rulings. Motion to Transfer Jurisdiction to Local PERC; denied because the local ordinance had not been approved by the Public Employees Relations Commission. Motion for Oral Argument on Motion to Transfer Jurisdiction; denied, see Petitioner's Motion to Amend, below. Motion to Dismiss Based on Employer Not Having Denied Recognition; denied. Motion to Dismiss or Limit Hearing on the Basis that Local PERC Ordinate Controls; denied. Motion to Dismiss on the Basis of Inappropriateness of Units Sought; denied. Motion to Quash Hearing on Basis that Acting Chairman Lacked Authority to Notice Hearing; denied. Motion to Dismiss on Basis of Lack of Due Process and Lack of Authority; denied. The Petitioner moved orally in response to the suggestion that paragraph 11 of the Petition indicated concurrence in local PERC authority to amend paragraph 11 to "no". Motion was granted by the Hearing Officer. After having presented its motions the Respondent thereafter filed its Answer, asserting therein certain affirmative defenses. Succinctly stated the position of the Respondent was that the county had defined the appropriate units within the Public Employer by local ordinances as professional, supervisory and blue collar, and that the unit sought by the Petitioner did not conform to the units the County had defined by ordinance. The Petitioner sought all employees of the Road and Arthopod Divisions of Seminole County excluding officers, clericals, supervisory and guard employees.
Findings Of Fact The Hearing Officer directed the Employer to go forward and present its evidence in support of its definition of the units. The Employer sought to call Pat Hill and Jack McLean, both previously subpoenaed by the Employer. Neither of the individuals were present in the hearing room. The Hearing Officer, noting that the time had not expired to oppose the subpoenas but that no opposition had been filed, allowed the Employer to proffer the testimony these witnesses would have given if present. The Hearing Officer notes that subsequently these subpoenas were quashed. Therefore, the proffered testimony will not be considered by the Hearing Officer. The Hearing Officer would, in light of the fact that the Commission's file was not present at the hearing, direct the Commission's attention to the proffer as it relates to the Commission's file for resolution of any matters appropriately raised. The Employer then called Carl Crosslin who was present but whose subpoena had been timely opposed by his Counsel. The subpoena having been issued by the Acting Chairman, the Hearing Officer deferred to the Acting Chairman for his ruling on the subpoena in question. The Hearing Officer allowed the Employer to proffer the testimony which would have been presented by Carl Crosslin and Commissioner Paul Parker. Thereafter, the Employer moved for a continuance which motion was denied by the Hearing Officer. The Employer then made a demand for presentation of the authorization cards, which were not present at the hearing. The Employer then sought to introduce the affidavit of Chris Haughee which was rejected by the Hearing Officer. The Employer then filed its motion for Determination of Managerial and Confidential Employees. This motion is preserved for consideration by the Commission. It is appropriate to note at this point that upon the conclusion of the taking of testimony the Petitioner amended its petition to seek a unit composed of non-exempt employees of the Road Construction and Maintenance Division, the Heavy Equipment and Vehicle Maintenance Division, and Arthopod Division of the Public Works Department of the County of Seminole, or in the alternative, all non-exempt employees of the Public Works Division and as a final alternative, a unit of all blue collar workers of the Public Employer who are in construction, maintenance and trades, but excludes clerical, secretarial and similar positions. The parties also stipulated to the managerial status of division directors within the Administrative Services Department and their secretaries. However, in light of the fact that not all division directors within the employ of the Public Employer were not included within the stipulation, and further, because the Employer has filed a motion for Determination of Managerial and Confidential Status and because the stipulation between the parties would not be binding upon others who might have an interest, the facts relating to the duties and functions of division directors and similar positions are set forth so that the Public Employees Relations Commission may resolve the status of these employees as it relates to the motion filed by the Public Employer. The general organization of the Public Employer is indicated on Exhibit 6. The Board of County Commissioners, as the elected representatives of the citizens of Seminole County, head the Public Employer. An executive assistant manages the office and staff of the Board of County Commissioners and functions as general coordinator for the other department heads of the county government. Each of the several departments of government is headed by a department head. Each department head is directly responsible for the management of his department to the Board of County Commissioners. Although the executive assistant, as a coordinator, would have some coordinating function with the department heads, the department heads are the first level of management below the Board of County Commissioners. The department heads prepare the budgets for their department, manage and direct their personal staffs and their division heads, make policy within their department, and participate in the resolution of grievances. They have the authority to hire and fire all employees making less than $10,000 per year and they participate in evaluations of all employees. Department heads have the ability to effectively recommend the employment and discharge of division heads and employees making more than $10,000 per year. All of the department heads meet on Mondays to discuss their joint duties and coordinate their activities. The division heads or directors have the authority to effectively recommend hiring and firing of personnel. The division heads assign work and determine the manner in which work shall be done by their subordinates. The division heads have the authority to discipline their personnel or effectively recommend disciplinary measures dependent upon the action taken. Division directors prepare and submit budget data to the department heads upon which the departmental budget is based. The division heads constitute the second level of supervision or management in county employment. Among their other functions they make determinations regarding the manner in which programs will be accomplished and participate in the resolution of grievances. In all but the smallest divisions and in all of the departments, the department heads and division directors have secretaries assigned to them to handle their personal correspondence, In the larger divisions and in the majority of the departments there are additional clerical personnel assigned to handle general typing and filing and to maintain fiscal records. The parties with regard to the RC petition in question have stipulated that the secretaries to the department heads and division directors should be excluded as confidential. There are divisions within the county government whose function is primarily administrative and whose employees perform administrative duties. These divisions or activities would include the Personnel Division, Microfilm Division, Division of Manpower Planning, Purchasing Division, Office of Management and Evaluation, Veterans' Service Officer, Division of Social Services and Seminole County Industrial Development Authority. In the aforelisted activities, all of the personnel are involved in totally administrative functions. In addition to these totally administrative divisions or activities, there are additional divisions in which there are mixed administrative and other functions. The administrative employees of these divisions would include Switchboard Operators and the Mail Clerk in Support Services Division; the Biologists in Operations Division of the Department of Environmental Services; the Operator Inspector, Pollution Control Technician, Account Clerk in the Division of Environmental Control of the Department of Environmental Services; Cashiers within the Division of Motor Vehicles of the Department of Public Safety; the Deputy Civil Defense Director in the Division of Civil Defense, Department of Public Safety; Permit Clerks and a Secretary II of the Building Division of the Department of County Development; two Secretaries and a Site Planner within the Office of the Land Development Administrator, Division of Land Development, Department of County Development; a Secretary, two Draftsmen, two Planners, Drafting Technician II, Planner (current plans), Senior Planner, Principal Planner and County Planner within the Planning Division of the Department of County Development. The following personnel hold positions within the county government below that of division director and perform functions which are not clerical or administrative in nature. These remaining personnel will be discussed by division. Within the Building Maintenance Division there is a Supervisor of Custodial Services, Supervisor of Courthouse Custodians, and Building Custodian Supervisor, all of whom report to the Director of Building Maintenance. The Supervisor of Courthouse Custodians directly supervises the fifteen custodians assigned to the Seminole County Courthouse. The Supervisor of Custodial Services supervises the custodians assigned to the maintenance of the other county buildings. The Building Custodian Supervisor supervises the electrical, carpentry, plumbing and air conditioning foremen under whose direction maintenance workers perform such maintenance as is required upon the various county buildings. These three supervisors have the authority to effectively recommend hiring, firing and disciplinary action and assign specific work to those employees under their direction. These supervisors constitute the first level of direct supervision over the county employees for although there are trades foremen designated they function as lead workers. Within the Support Services Division there are three Night Watchmen who are responsible for security of the County Courthouse and one Senior Night Watchman who assigns the work shifts of the Watchman. The testimony would indicate that the Senior Night Watchman functions in the role of a lead worker. It should be noted that this Division does not have a division director but is under the control of the acting executive assistant. Within the Division of Human Services is the Office of Animal Control which is headed by the Animal Control Officer. The Animal Control Officer is responsible for the operation of the County Pound and the supervision of the work of the four Animal Control Officers. He is assisted in his functions by the Animal Control Supervisor who is specifically charged with maintenance of the County Pound. The Animal Control Officer has authority to recommend hiring, firing and discipline of these employees who he evaluates. Within the Operations Division of the Department of Environmental Services there is a Chief Operator and three Operator Trainees who are responsible for the operation and maintenance of the county's water and sewage treatment facilities. The Operator Trainees are under the direct supervision of the Chief Operator whose responsibility is to train then to operate the system and to assign their duties. The Operator Trainees perform maintenance, read meters, and perform such other duties as the Chief Operator assigns necessary to the operation of these facilities. Within the Office of the Director of Public Safety and under the Director's control is Fire Prevention and Arson Investigator, a Training Officer, and two Mechanics. The Investigator and the Training Officer are trained firefighters. The two Mechanics are physically located at Station 14 and are responsible for the maintenance of the County Fire Department's Vehicles. The Fire Department is divided into three shifts or platoons. Each shift or platoon being supervised by a Sector Fire Coordinator. The Sector Fire Coordinator prepares the budget for his shift, establishes field operating procedures, and directs fire fighting, and has access to the personnel files of the employees. Also within the Department of Public Safety is the Communications Division which at present relates primarily to the Fire Department but which will in the future also encompass the 911 telephone number. The Communications' personnel are under the supervision of the Communications supervisor. The Communications' personnel are generally not firefighters, but receive emergency calls and dispatch equipment. Within the Motor Vehicle Inspection Division of the Department of Public Safety there are three Inspection Stations located within the county. The Motor Vehicles Inspection function is under the supervision of the Motor Vehicles Inspection Supervisor who acts as a division director and effectively recommends hiring and firing and discipline of employees and who helps prepare the budget for the Motor Vehicles Inspection activities. He is also responsible for work assignments and development of work procedures. Each Inspection Station is under the direction of a Chief Inspector who is responsible for assigning work at each station and responsible for the function thereof. There are four Motor Vehicle Inspectors at each Inspection Station and one Cashier. Within the Division of Parks and Recreation of the Department of County Development there is a Parks Coordinator/Designer who can effectively recommend hiring and firing and disciplinary action of personnel within the Division. The Parks Coordinator/Designer is also responsible for the direct or specific supervision of work. He functions as an assistant division director. The Parks Supervisor is also able to effectively recommend hiring, firing and disciplinary action. The Parks Supervisor provides direct supervision of the five Maintenance Workers, the Equipment Operator II, and three Trades Workers assigned to the Parks and Recreation Division. In addition to the positions enumerated above there are an additional twenty-nine CETA Workers assigned to Parks and Recreation primarily in the grades of Maintenance Worker and Equipment Operator. Within the Building Division of the Department of County Development the construction inspection function within the county is the responsibility of the Building Official who functions as the division director of the Building Division. He is assisted in his duties by the Plans Examiner who functions as the Deputy Building Official. Both employees have the authority to effectively recommend the hiring, firing and discipline of their subordinate employees. The actual inspection of construction is carried out by one of ten inspectors. There are three Chief Building Inspectors; one assigned to general construction, one to electrical, and one to plumbing, There are six Inspectors who work under the three Chief Inspectors and one Trailer or Mobile Home Inspector who reports directly to the Building Official. Within the Land Development Division of the Department of County Development is the Zoning Department. The Land Development Administrator functions as the division director. He is assisted in his Duties by the Zoning Administrator who acts as the Assistant Division Director. Both employees have the authority to effectively recommend hiring, firing and disciplinary actions. There are three Inspectors assigned to the Land Development Division. One inspects for compliance with the County Tree Ordinance, one inspects with regard to commitments made to the county by developers and the third inspects for violations of the county zoning code. The Engineering Division of the Department of Public Works is responsible for three basic functions: Traffic engineering, design and survey, and survey and inspection. The Traffic Engineer is responsible for the traffic engineering activity and supervises the other employees directly. Signs are prepared in the County Sign Shop which is under the supervision of the Sign Shop Foreman. An Electrician is also assigned to this activity together with an Electronics Technician. They are responsible for the installation and maintenance of traffic signals. A Radio Technician is also assigned to the Traffic Engineer activity. The Radio Technician is responsible for the repair of all county radios. The Design and Survey activity consists of a Design Engineer and a Design Technician who design and draft plans for county construction projects. The Assistant County Engineer heads up the survey and inspection type activity for the Engineering Division. He is responsible for the county's two survey crews which are made up of a Party Chief and three to four crew members. The Assistant County Engineer is responsible for directing the work functions and activities of his subordinates and has the authority to effectively recommend hiring, firing and discipline. The Assistant Road Superintendent is in charge of the Road Construction and Maintenance Division of the Department of Public Works. He is assisted in the performance of his duties by two foremen and three to four crew leaders. The Road Maintenance function contains three supervisors, two of which supervise a foreman and two crew leaders and the third supervisor who supervises a crew leader. Under each crew leader there are from four to six maintenance workers or equipment operators. The Assistant Road Superintendent and the three supervisors in maintenance all function in assigning work to crews and individuals and supervising the work activity. In addition, the Assistant Road Superintendent acts as the assistant to the Road Superintendent who functions as the division director. Both men would have authority to effectively recommend hiring, firing, and disciplinary action together with the three supervisors, The Division of Heavy Equipment Maintenance is under the supervision of the Shop Foreman who functions as a division director, He is assisted by the Parts Manager who acts as the assistant division director. The position of Chief Mechanic is currently vacant and the duties are being performed by the Assistant Chief Mechanic. The primary function of the Parts Manager is the purchasing and stockage of spare parts. The Shop Foreman, Parts Manager and Assistant Chief Mechanic all have the authority to effectively hire, fire and recommend discipline. These three individuals would also provide evaluations of the mechanics, mechanic helpers and equipment servicemen assigned to the Heavy Equipment Maintenance Division. The Arthropod Division of Seminole County is responsible for refuse disposal. The division director is the Refuse Superintendent. Working under him are the Refuse Supervisor and a Landfill Foreman. The Landfill Foreman is responsible for supervision of the actual landfill operations and directly is responsible for three Equipment Operator III's and an Equipment Operator IV. The Landfill Foreman is also responsible for supervision of truck drivers while they are at the landfill area. The Landfill Foreman, Refuse Supervisor and Refuse Superintendent (division director) all have the authority to effectively recommend hiring, firing and discipline and to make work assignments and to evaluate performance. There were approximately twenty-eight employees within the Arthropod Division at the time of hearing. With regard to the employees of the county generally the testimony indicates that all employees of the county are entitled to the same vacation, retirement, and insurance benefits and that their salaries are established within the framework of the pay classification plan. The Petitioner has argued that each division is a totally independent unit, therefore, a unit composed of employees of the Arthropod and Road Construction and Maintenance Divisions of the Department of Public Works would be appropriate. The Employer has urged that the employees of the county be divided into three units: (1) all professional employees (2) all supervisory employees and (3) all employees not contained in the first two units. The Employer's proposal would appear to lump all the clerical employees, all custodial and maintenance employees, and certain highly skilled or specially trained employees in the same unit. The record does not support the Petitioner's contention that the divisions of Seminole County government are independent. The record clearly indicates that divisions are subordinate to the departments of which they are a part. The record further indicates that even departments are not totally independent or autonomous since the department heads are responsible to the County Commission which in turn establishes the salaries and other benefits of employment for all employees of the county. The record clearly indicates that a unit limited to the Arthropod and Road Divisions or even to the Public Works Department would not encompass many employees with essentially the same job functions and in some instances the same job titles and pay classifications. There are maintenance workers, equipment operators and certain custodial personnel and mechanics located in other divisions of county government. The position of the Employer fails to recognize the disparity of interest between the employees which would be "left over" and compose the third unit it has proposed. The record indicates that there are essentially three types of employees below the grade or position of division director as follows: (1) Clerical, (2) Maintenance/Custodial, and (3) Highly skilled. A large portion of the total number of county employees would fall into the clerical category to include secretaries, clerk typists, filing clerks, and fiscal assistants. The maintenance/custodial category would appear to be the next largest grouping of employees and would include custodial and maintenance workers, vehicle operators, watchmen, and mechanics. The highly or specially skilled category would include various planners, biologists, draftsmen, personnel specialists, zoning and building inspectors, and the highest level of skilled trades workers and sanitariums. Based upon the foregoing categorization of county employees, the unit composed of maintenance/custodial employees would encompass all of the job titles and job classifications sought by the Petitioner within the Department of Public Works and consolidate a substantial portion of the total number of county employees who share similar duties and work environments. A unit composed of this category would be almost identical to the last alternative unit sought by Petitioner. At the same time it would prevent fractionalization within county government and better meet the criteria stated in Section 447.009(4), Florida Statutes. This report is respectfully submitted this 11th day of April, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Thomas J. Pilacek, Esquire Bowels & Pilacek 131 Hark Lake Street Orlando, Florida 32803 David Richeson, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Henry Swann, Esquire Alley, Alley & Blue 205 Brush Avenue Tampa, Florida Chairman Public Employees Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32304 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue Whether Brian Cattaneo can return to suitable gainful employment without further training and education.
Findings Of Fact Brian Cattaneo, a 39-year-old male, was employed by Petitioner, Roadhouse Grill, from March 1995 in various management positions in Jacksonville and Orlando, Florida. He sustained a worker's compensation injury on or about March 25, 1998, while working as a kitchen manager for Petitioner. Cattaneo sustained a low back injury resulting from the consistent lifting and carrying of objects. His duties as a kitchen manager included loading ice baths into sinks located 12 inches from the floor, loading 50 pound bags of flour, and carrying and organizing cases of frozen foods and canned goods. Cattaneo was diagnosed with a herniated disk and placed on light duty. He was given restrictions on lifting, twisting, and bending. Upon returning to work the employer returned Cattaneo to the same duties he had when he was injured. The work he did fell outside of his restrictions as he was required to bend, twist, and lift, and he was provided with no accommodations for his restrictions. During this period, Intervenor was re-injured and was later diagnosed with a ruptured disk. Intervenor underwent a diskectomy. After time off for surgery, Intervenor returned to work with a six-hour working restriction and restrictions for bending, lifting, twisting, and climbing. After working for a while, Cattaneo was experiencing too much pain and was placed on off-duty status. After reaching maximum medical improvement, Cattaneo was given restrictions of no walking, sitting, or standing for more than two hours at a time, and no consistent bending, sitting, twisting, or climbing. Cattaneo was unable to reach his pre-injury earnings due to his inability to fully perform the duties of a manager. He was told by Petitioner that his restrictions would have to be lifted in order to return to full management wages. During his employment with Petitioner, and while on off-duty status, Cattaneo temporarily worked at Financial Mortgage Planning from October 1998 to February 1999. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment. Suitable gainful employment is meant to get an employee as close as possible to the wages he or she was earning at the time of injury and with the permanent physical restrictions resulting from the industrial accident. This includes any benefits, such as medical benefits and commissions, the employee was earning at the time of injury. Suitable gainful employment is defined to mean "employment or self-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 as nearly as possible to his or her average weekly earnings at the time of injury." Section 440.491(1)(g), Florida Statutes. The Division of Workers' Compensation (Division) goes through a process to determine whether an individual merits re- employment services. The process begins with orientation, in which the employee is given a DWC-23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time. Shortly after orientation the Division requests medical records from the carrier to determine the employer's restrictions. Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education. The Division also does a transferable skills analysis where the claimant's educational background, hobbies, and interest are evaluated to determine the best way to return the injured employee to work. In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee. Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum of 52 weeks of benefits while the injured employee is in retraining. Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident. A transferable skills analysis determined what jobs Cattaneo would be able to perform with his current medical restrictions, educational history, and previous work history. Short of retraining, there were no jobs within Cattaneo's restrictions which would return him to his pre-injury wages of $959.00 per week. As a result of Intervenor's high pre-injury earnings and restrictions, it was recommended that Intervenor pursue a career in human resources through the bachelor in human resource management program at the University of Central Florida. Since Cattaneo had already completed his core requirements through his previous education, it would only take him two years to complete the degree. Cattaneo's background in personnel and dealing with people, coupled with the fact that he had already completed his core classes from his previous education indicated that the bachelor of human resource management degree would be an appropriate choice for Cattaneo. A labor market survey for positions utilizing a bachelor's degree in human resources indicated that five or more current positions which utilized the bachelor's degree in human resources management were available within the last six months. Due to a change in the statute in 1996, one of the options for retraining is to place an employee in a baccalaureate program. Cattaneo was approved for retraining in the bachelor's degree program in human resources at the University of Central Florida. The Division argues that Cattaneo fell within the ambit of Section 228.041(22)(a)3., Florida Statutes, due to the degree program's use of current skills in the hospitality industry, abilities, and interests, along with returning him to his pre- injury earnings. The reliance of Section 228.041(22)(a)3., Florida Statutes (Supp. 1996), by Respondent does not contradict its prior admission to Petitioner dated March 31, 2000. Respondent answered the following request for admission: Admit that the University of Central Florida Human Resources Management Program is not a career education program as defined under Section 228.041(a), Florida Statutes (1999). The response: "There's no definition of career education program in Section 228.041(a). However, we admit that the University of Central Florida Human Resources Program is not a career education program as defined under Section 228.041(22)(a)." Petitioner Roadhouse Grill fails to note that Respondent did not admit that the University of Central Florida human resource management program is not a career education program under Section 228.041(22)(a)3., Florida Statutes (1996 Supp.), which was one of the retraining options listed in Chapter 38F-55 of the 1996 Florida Administrative Code and which was in effect at the time of Cattaneo's approval for retraining in the program. The rule and statute section clearly controlled at the time of Cattaneo's approval and the Division was well within its authority to designate such bachelor degree programs for potential retraining of employees. Based on Intervenor's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return Cattaneo to suitable gainful employment is through retraining. Petitioner never informed the Division indicating whether it had suitable employment within Intervenor's restrictions. Returning Cattaneo to work with Roadhouse Grill is not a viable option. Intervenor's employment with Roadhouse Grill would not return him to suitable gainful employment given that he was earning less than half of his pre-injury average weekly earnings of $959.85. Cattaneo was limited to a salary of $400 per week by Roadhouse Grill due to the restrictions limiting his ability to return to full management status and the resulting full management salary. Cattaneo's restrictions prevent him from returning to the occupation of a restaurant manager. Managers in the hospitality industry are more active and hands-on. While categorized as a light-duty position in the Director of Occupational Titles, the manager position encompasses duties beyond a light-duty demand. Given his restrictions of never bending, twisting, and lifting over twenty pounds, Cattaneo could not return to suitable gainful employment in a manager's position. Several factors led to the determination to place Cattaneo in the human resource management program at the University of Central Florida. Intervenor's interest in the area, his experience in the hospitality industry, his experience as a manager and supervising others, and dealing with personnel made placing Cattaneo in the program a reasonable alternative. Further, testing done by Esther Levensohn, as well as the demand for experienced individuals in the hospitality and tourism industry, indicated that the program was a viable alternative for Cattaneo. Petitioner Roadhouse Grill claims that Cattaneo had a job available to him with Petitioner because he was working with Petitioner after his work-related accident. The mere fact that Cattaneo had a job with Roadhouse Grill or any other employer is not enough. It must be established that the job was at or near Intervenor's pre-injury average weekly earnings and within his restrictions. Cattaneo did have the capability to obtain a job at any point. However, the Division's goal, as mandated by statute, is to assist Intervenor in obtaining employment at or near his pre- injury average weekly earnings of $959.00. Petitioner's assertion that Levensohn's recommendation to place Cattaneo in the human resource management program was based purely on subjective considerations is without merit. Levensohn performed various tests to determine Intervenor's aptitudes and transferable skills. Levensohn also went on to state that while interest is considered, the primary bases for placing an employee are transferable skills and results of vocational testing. She further testified that in her opinion as a vocational evaluator, interest in one's work is important to the individual in order to be a good employee. Trey Webb, Regional Director for Roadhouse Grill, failed to show that Roadhouse Grill made a serious effort to accommodate Cattaneo's restrictions. While Webb testified that an assistant manager or general manager position did not require heavy lifting, documentation from Roadhouse Grill's personnel file describes the duties of an assistant manager, which mandate that he "must be able to exert well paced mobility for periods of up to four hours in length and have the ability to lift 10 pounds frequently and up to 50 pounds occasionally. Must have the stamina to work at a minimum of 50 to 60 hours a week." Webb himself acknowledged that managers, in the course of their duties would bend, twist, stoop, squat--all of which are outside Cattaneo's restrictions. In addition, the light-duty position eventually created for Cattaneo did not allow him to earn his pre-injury wages. Cattaneo testified that he was told he could not earn his pre-injury wages unless his restrictions were lifted, enabling him to perform full managerial duties. Finally, the lack of accommodation of Cattaneo's restrictions is illustrated by the fact that he was re-injured after he was initially placed on light-duty while employed with Roadhouse Grill. Dan Dittleberger's testimony also failed to establish that Petitioner Roadhouse Grill accommodated Cattaneo's restrictions. He acknowledged that as a general manager, he himself did heavy lifting and was injured. While lifting a 50- pound bag of potatoes, the same weight requirements given in the assistant manager job description, Dittleberger's condition and restrictions were identical to those of Cattaneo, especially given the fact that Dittleberger did not undergo surgery while Cattaneo had surgery to his back. Petitioner also presented testimony from Lynn Esko, who was accepted as an expert in the field of vocational evaluation. Esko testified that she never interviewed or even met Cattaneo. She also testified that she did not perform any test on Cattaneo or produce a report of any of her findings concerning Cattaneo, but merely conducted a file review of Cattaneo's case based on material submitted to her from Petitioner's counsel. Esko's testimony failed to establish that Cattaneo could return to suitable gainful employment without retraining. Finally, Petitioner failed to show that retraining Cattaneo through the bachelor's degree program in human resource management will not return him to suitable gainful employment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered denying the relief requested by Petitioner. DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of July, 2000. COPIES FURNISHED: Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld and Rubin 652 West Morse Boulevard Winter Park, Florida 32789 Elana J. Jones, Esquire Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189 Irvin A. Meyers, Esquire Meyers, Mooney, Stanley and Hollingsworth 17 South Lake Avenue Orlando, Florida 32801-2797 Mary B. Hooks, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 303 Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
The Issue Has Respondent committed an "unlawful employment practice" against Petitioner, pursuant to Chapter 760, Florida Statutes, based upon a Petition for Relief dated October 13, 1997, referred to the Division of Administrative Hearings by the Florida Commission on Human Relations?
Findings Of Fact Respondent stipulated to jurisdiction, and the evidence demonstrates that by number of employees, Respondent is an "employer" as defined in Chapter 760, Florida Statutes. Respondent is a freight company which ships and receives living nursery stock by truck through a depot/warehouse. Petitioner was employed there from 1993 until June 16, 1995. In the course of formal hearing, Petitioner waived his Charge of Discrimination on the basis of his national origin (United States citizen). (TR-116). There is no evidence the Respondent employs anyone other than United States citizens. The remainder of Petitioner's allegations were that Respondent failed to accommodate one or more handicaps and subjected Petitioner to disparate treatment from similarly situated black employees. Petitioner also related a series of remarks and one personnel action that he considered to be harassing and abusive due to his handicaps. The "handicaps" that Petitioner testified to were high blood pressure, an undefined heart condition requiring medication, "bad knees," and problems with his back. At formal hearing, no medical physician or health care professional corroborated the foregoing conditions. However, it is undisputed that on or about January 9, 1995, Petitioner presented a physician's excuse to Respondent's Warehouse Supervisor, Jeff Bradner. That physician's excuse stated that Petitioner could return to work on that date, working 10 hours per day, 5 days per week, doing medium lifting, that is, "lifting 30 pounds and frequently lifting and/or carrying objects weighing 25 pounds." The excuse further stated that Petitioner was to avoid squatting, kneeling, and climbing. Mr. Bradner informed Eddie Payne, Petitioner's immediate supervisor, that the foregoing January 9, 1995, medical restrictions were to be observed for Petitioner. Attached to both Petitioner's initial Charge of Discrimination and his later Petition for Review was another physician's letter dated January 29, 1993. It stated, in pertinent part: [Petitioner], patient of record, suffers from high blood pressure, anxiety, and arterial coronary disease. These conditions are aggravated by the stress caused by problems he has with his teenage son. Also attached was a March 3, 1994, doctor's letter stating that Petitioner had a spine and knee injury. It contains the same restrictions as the January 9, 1995, letter. Because the 1993 and 1994 letters are part of the record herein, (attached to the Charge of Discrimination and Petition for Relief), I have taken official recognition thereof and find that they supplement or explain Petitioner's oral testimony at formal hearing to the effect that Petitioner was suffering from high blood pressure, anxiety, and arterial coronary disease in 1993, and from a knee injury in 1994. However, these letters were not introduced in evidence at formal hearing, and Petitioner did not testify that he ever presented any such written medical confirmations of these conditions to any of Respondent Employer's supervisory personnel. Mr. Payne and Mr. Bradner denied that any oral or written requests for accommodation had been received from Petitioner other than the January 9, 1995, doctor's excuse listing specific restrictions. Contrary to Petitioner's testimony, Mr. Payne denied knowing of Petitioner's heart condition. There also is no corroboration of Petitioner's testimony that he orally requested any accommodation specifically because of his high blood pressure or heart condition at any material time. Furthermore, and most importantly, the 1993 letter places no restrictions on Petitioner in the workplace, and the 1994 letter imposes the same restrictions as the 1995 letter, which is in evidence. The only medical condition any of his co-workers ever heard Petitioner complain about was his "bad knees." Upon the record as a whole, it is inferred that Eddie Payne also knew Petitioner complained of "bad knees." At all times material, both before January 9, 1995, and afterwards, Petitioner worked for Respondent as a "checker." Checkers have the most physically non-taxing job in Respondent's operation. They make sure that "wheelers" or "loaders" place unloaded freight on pallets in the correct location in the warehouse and that "loaders" load the correct freight from the warehouse or warehouse dock into the correct truck. In this capacity, the bulk of Petitioner's work was carrying a clipboard, making notations thereon, and orally directing others where to put boxes. Petitioner testified that due to his blood pressure and back condition, he "needed" to sit down for 15 minutes' rest every 20 minutes after January 9, 1995. The evidence as a whole does not indicate that Petitioner clearly enunciated this "need" to any supervisor. Moreover, the credible evidence supports the inference that no one could work effectively as a checker while taking 15 minute breaks as frequently as every 20 minutes, because each truck needed to be loaded or unloaded as a component, so as to avoid shipping errors. Therefore, substituting other checkers every 20 minutes would have adversely affected Respondent's business and would constitute an unreasonable accommodation for Petitioner and undue hardship for the Employer. Either substituting another checker or waiting on Petitioner to rest every 20 minutes would have been unduly costly, burdensome, or substantially disruptive and would have altered the nature of Respondent's business. Prior to January 9, 1995, Petitioner worked at least a 40-50 hour week and was paid by the number of hours he worked. Due to the nature of Respondent's business and the hours when freight was received, Petitioner's usual hours before January 9, 1995, were from approximately 4:00-4:30 p.m. until 9:30 a.m. (17- 18 hours) three days a week, mostly Monday, Tuesday and Thursday. At all times material, both before and after January 9, 1995, only twenty-five percent as much freight came in on Wednesdays and Fridays as came in on the other three work days of each week. Therefore, all employees were not needed for a 17-18 hour day on those days, and employees had the option of working at whatever was available on those days to "make their hours" for pay purposes. At all times material, on Wednesdays and Fridays, all employees who wanted to work took turns digging weeds out of the cracks in the Respondent's paved parking lot with a claw on a broom handle or the edge of a shovel; picking the weeds up with a shovel; and throwing them away. Sometimes a blower was used. In accord with the January 9, 1995, physician's written restrictions, Eddie Payne accommodated Petitioner by assigning him to work from 10:00 p.m. until 8:00 a.m., so that Petitioner would only be working 10 hours per day. This assignment had Petitioner working the hours during which the employer needed the most men because those were the hours when the workload was the heaviest. Petitioner complained because Mr. Payne would not let him work his 10 hours from 4:30 p.m. to 2:30 a.m., a less busy time, but he complained only because those hours were more convenient for him. Petitioner related that after January 9, 1995, he was made to lift more than 30 pounds of parking lot weeds at a time, with the shovel, after getting on his hands and knees to dig the weeds out, and always in the hot sun, which aggravated his undisclosed heart condition. He also related that he never got to use the blower like other employees. His testimony on this issue is not credible in light of the contrary testimony of all the other witnesses. Even if credible, Petitioner was not forced to do this work. He was permitted to do this "make work" during slow days so that he would earn at least 40 hours per week. Witnesses confirmed that another "make work" project on a single occasion was digging muck out of a ditch. Petitioner testified that he was required to dig more than 30 pounds of muck in each shovelful that he lifted out of the ditch. His description was neither corroborated or refuted, but again, Petitioner was the one who controlled the content of each shovel, and he could have declined to work at that "make work" project. According to Petitioner's time cards, from which information Petitioner received his pay, Petitioner usually worked only 10 hours or less per day after January 9, 1995. Occasionally, he worked more than 10 hours, but less than 11 hours per day. Petitioner and Eddie Payne were fishing buddies outside of work, and on at least one occasion, Eddie Payne treated his subordinates, including Petitioner, to a night-clubbing expedition. Petitioner asserted that on the job, Eddie Payne had used derogatory and profane language to him, on account of his handicaps. Once, when Petitioner wanted to punch-out early, Mr. Payne supposedly said, "Go home if you need to, you crippled old pussy." Once, Mr. Payne allegedly called Petitioner "a crippled old Mother F-----." Mr. Payne denied ever using such language either socially or on the job. Mr. Bradner testified that he had instructed his subordinates against profanity on the job, and related that Mr. Payne had a reputation for not using profanity. No other witness corroborated Petitioner's testimony that any such language had ever been addressed to Petitioner. Petitioner called Matthew Hickox, a co-employee, as a witness. Mr. Hickox related that Petitioner would often "act goofy," by doing a "Quasimodo imitation," twisting his arm, making a face, and dragging one leg behind him. When Petitioner did this, other employees would "make cracks." Petitioner claimed that dragging his leg behind him was evidence of his handicap. Mr. Hickox's opinion was that "disabled don't give you the right to act like a nut and then people not make some comment." Petitioner testified that he had only become entirely disabled since leaving Respondent's employ June 16, 1995. Although Petitioner moved slowly and evidenced pain on rising and sitting, he was able to move around and approach the witness stand at formal hearing. The undersigned observed no twisted arm, facial contortions, or dragging leg. It is inferred from observing the candor and demeanor of all the witnesses, including Petitioner, and from the whole of the evidence, but particularly from Mr. Hickox's testimony, that on such occasions as Petitioner performed his imitation on the job, Mr. Payne or Mr. Bradner may have vehemently ordered Petitioner back to work and warned him to cut out the horseplay. Petitioner claimed to have received only a fifteen-cent per hour raise when other employees received more. According to Petitioner, the other employees, including Mr. Gonzalez, were raised by twenty-five cents per quarter hour for a $1.00 per hour raise. What anyone was being paid before this raise is not in evidence. Since no evidence indicates whether this raise occurred before or after January 9, 1995, when Respondent's management clearly knew of any of Petitioner's restrictions, there was no nexus between the lack of raise and handicap discrimination.2 Petitioner also developed no nexus between this raise and racial discrimination. According to Eddie Payne, Petitioner was a sub-average worker. According to Eddie Payne and Jeff Bradner, they frequently had to instruct Petitioner to resume work. Mr. Bradner related an incident when Petitioner was leaning on a shovel in the parking lot, so Mr. Bradner sarcastically commented, "You're not getting much work done leaning on that shovel," but this motivational comment was not directed at a handicap. No employee testified that any supervisor's instructions to Petitioner, which they observed or overheard, were offensive or otherwise inappropriate. On one occasion, Petitioner was told by Mr. Bradner to stop kicking a "basketball of tape" around; throw it away; and get back to work. No employee other than Petitioner found this instruction offensive. On another occasion, Petitioner was given a written reprimand when a truckload of freight was sent to the wrong location. Petitioner attributed the error to a black "loader" named James Oliver and perceived the reprimand as discriminatory because Mr. Oliver was not reprimanded. Petitioner's superiors reprimanded Petitioner as a formal personnel action instead of Mr. Oliver because they considered Petitioner responsible for the error and resultant costs since Petitioner was in the superior position of checker. Petitioner suffered no loss of pay, hours, or seniority as a result of the reprimand. Petitioner's assertions that he was required to climb tall ladders to change light bulbs in the warehouse, to squat to lift boxes, and to kneel to pull weeds were denied by management witnesses and uncorroborated by Petitioner's witnesses. On one occasion, Petitioner had just come on duty and was having a coke and a cigarette, when Mr. Bradner told him to get to work helping a black loader named "Willie T." unload a truck. On this single occasion, Petitioner may have been asked to lift boxes in excess of 30 pounds, but the boxes also may have weighed as little as 20 pounds. This incident may have occurred before Mr. Bradner knew of Petitioner's medical restrictions on January 9, 1995, but it was probably afterwards. If so, this single incident was contrary to Petitioner's doctor's instructions, but Petitioner admittedly never complained to Mr. Bradner about this one-time incident in terms of "lack of accommodation" for his physical limitations. On the same occasion, Willie T., who already had been loading the truck for three hours, took a coke and cigarette break a half an hour after Petitioner began to help him unload the truck. Willie T. asked Petitioner to join him on his break, which Petitioner did. Mr. Bradner spotted them and instructed Petitioner to return to loading the truck because he felt Petitioner was not entitled to a break after only a half an hour of work, but did feel that Willie T. was entitled to a break after three full hours of work. This was a bona fide business consideration of Respondent. Petitioner failed to establish a nexus of racially discriminatory intent on the basis of this incident. On June 16, 1995, Petitioner was sweeping the warehouse floor, leaving trails of residue behind. Petitioner intended to go back and sweep up the residue, but before he could do so, Mr. Bradner told him that he was leaving trails and that he should do a better job. Petitioner considered this instruction to be demeaning and discriminatory, but he did not reply to Mr. Bradner. Mr. Bradner noted that Petitioner began to do a better job of sweeping, and Mr. Bradner left the area. Petitioner perceived that his co-workers were laughing at the incident and became upset. Petitioner finished sweeping one section of the warehouse and asked Eddie Payne if he could clock-out. He assumed that Eddie Payne knew he was upset because of Mr. Bradner's comment but did not tell him so. Eddie Payne authorized Petitioner to clock-out. Petitioner clocked-out and never returned to work for Respondent
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Human Relations Commission enter a Final Order denying and dismissing the Petition for Relief on all issues. DONE AND ENTERED this 15th day of October, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of October, 1998.
