Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Adis 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 Petitioner, Douglas L. Adams, has been an inmate in the DOC system since prior to his arrival at UCI in January, 1984. Before coming to UCI he was confined at Baker Correctional Institution. When he was transferred to UCI he was expecting legal mail from the Florida Attorney General's Office which was to contain certain transcripts relating to a case he had before the courts. The package was received at Baker Corrections Institution after his departure and was forwarded to him at UCI. When it arrived, because it was not first class mail, there was postage due for the forwarding in the amount of $2.85 and the package was held at the Post Office in town for payment. He did not have the money to pay to pick it up at the time or for several weeks and prison scrip was not acceptable. Because he was unable to arrange to pick up the package within a reasonable time, the package was returned to the sender from which it was ultimately again sent with sufficient postage. By the time it got to him, however, the brief for the preparation of which he was going to use the transcript had already been filed. Because of the lack of the transcript, the brief was inadequate, however, and his appeal was unsuccessful. Prior to April 15, 1986, officials of DOC developed a proposed rule to be incorporated in Rule 33-3.005, Florida Administrative Code, dealing with the handling of inmates' legal mail. This rule was proposed because the DOC had received a complaint from a court of this State that some legal mail sent by the court to inmates was not being forwarded to the inmate who had been reassigned and was being sent back) to the court to the detriment of the inmate. This was a situation similar to that described above relating to the Petitioner herein. To correct this situation, this rule was developed calling for the forwarding of all legal mail, whenever received, to the inmate addressee wherever the inmate is located. Now, all legal mail will be forwarded by the receiving institution to the inmate at his new institution. Non legal mail is not. Since legal mail is generally first class mail, which is, under current DOC regulations, not opened before delivery unless contraband is suspected, there is no additional cost for the forwarding of this mail. There are certain cases, however, when the legal mail is in the form of a package containing a transcript or something of a similar nature, which cannot go first class mail, and in that case, additional postage is required. In that case, it has been the policy of the DOC, which is now formalized in the proposed rule, to forward the mail to the new installation through the postal system, with the result that postage due is to be collected from the inmate at the new institution. Even if the legal mail were to be collected, placed in a DOC envelope, and then forwarded to the new institution, it would still have to go through the U.S. mail system since DOC does not operate an internal courier system. This has constituted a problem for some inmates who do not have access to funds with which to pay postage due fees. Mr. Singletary, DOC's Assistant Secretary for Operations, when made aware of this situation at the hearing, committed the Department to amend the proposed rule immediately to provide that if postage becomes due as the result of forwarding legal mail, the DOC will assume the cost of that additional postage. DOC will not assume the cost of postage due if the legal mail is sent originally with insufficient postage, however. As a result of this stipulation, therefore, the policy now to be followed in DOC, which will be formalized immediately in an amendment to the proposed rule, will be that all legal mail addressed to inmates who have been transferred from one institution within the Department to another will be forwarded to the gaining institution without any limitation as to time and any additional postage due on the bona fide legal mail arising solely because of the forwarding will be assumed by DOC and not the inmate to whom the mail was addressed.
The Issue Whether the Petitioner abandoned his position as a state employee.
Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, Petitioner William Grimsley was a Career Service Employee, employed by the Department of Health and Rehabilitative Services at Fort Myers, Florida, as a Public Assistance Specialist I. On January 4, 1989, the Petitioner learned that his father's brother had died in Georgia. Petitioner Grimsley requested one day of authorized leave from his supervisor in order to drive his father to the funeral in Colquitt, Georgia. The Petitioner's father was unable to drive himself to Georgia because of his heart condition, and the extreme stress he was under due to the fact that his wife's two children were in critical condition in Shand's hospital in Gainesville, Florida, during this time period. The Petitioner's father had recently suffered a heart attack, and was under doctor's orders not to drive alone for extended periods of time. When the Petitioner requested one day's leave for January 5, 1989, he anticipated that he would be able to return to work on January 9, 1989. The Petitioner was on a four-day work week, and the one day's leave gave him the opportunity to accomplish his task within a four-day time period. After the Petitioner and his father arrived in Georgia, they learned that there had been two other deaths in the family. On Saturday, January 7, 1989, the Petitioner attended his cousin's funeral. On Sunday, January 8, 1989, the Petitioner attended his uncle's funeral. On Monday, January 9, 1989, he attended his great aunt's funeral. As the family lives in a rural and impoverished area in Georgia, the Petitioner did not have access to a telephone until he drove into Bainbridge, Georgia, on January 9, 1989. The Petitioner was without money during his attempts to telephone his office from Bainbridge, Georgia. According to Petitioner, his money was stolen from his wallet by one of his deceased uncle's children during the funeral services. The Petitioner did not tell his father of the incident due to the current tension between his deceased uncle's children and the uncle's widow regarding the disposition of life insurance proceeds. The Petitioner's father was under enough stress, and the Petitioner believed he could contact his office without having to spend money. The Petitioner's attempt to charge the call to his home phone was unsuccessful because there was no one at his home to verify that he was authorized to charge calls to that telephone number. The Petitioner's attempt to place a collect call to his employer was unsuccessful because the Department refused to accept the collect call placed by the Petitioner. The Petitioner then placed a collect call to his mother's home in Fort Myers, Florida. Once his call was accepted, the Petitioner asked to speak to his sister, Iris Hill. Ms. Hill was instructed to contact the Petitioner's supervisor to inform her of the situation in Georgia. The Petitioner had to attend three funerals as opposed to one funeral, and his uncle's widow was in need of his father's assistance. No time frame was given to the Petitioner's sister regarding his anticipated return. His sister assured him that she would contact his supervisor to relay his message. The Petitioner's sister attempted to contact his supervisor by telephone several times, as she had been instructed. However, she was unsuccessful, and did not make contact until after her brother had returned to work on January 12, 1989. During her conversation with the supervisor, Petitioner's sister, Miss Hill, was surprised to learn that the Petitioner had returned to work that morning after driving from Georgia earlier that day. Upon his return to work, the Petitioner was informed that a Notice of Abandonment had been filed, and that he had been separated from his employment with the Department due to his absence without authorized leave for three consecutive work days. The Petitioner did not intend to abandon his position when he remained in Georgia for three additional days in order to assist his father in family matters. The Petitioner reasonably believed his supervisor had been informed of the reasons for his absence on Monday, January 9, 1989, and that he would return to work as soon as possible.
Recommendation Based upon the evidence, it is RECOMMENDED: That the Secretary of the Department of Administration issue a Final Order that Petitioner did not abandon his position in the Career Service System. That the Petitioner be reinstated to his position as a Public Assistance Specialist I with all rights and privileges attendant to that position before the dismissal date of January 11, 1989, and subsequent to that date. DONE and ENTERED this 9th day of August, 1989, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1183 Petitioner's proposed findings of fact are addressed as follows: Accepted. See HO #1. Accepted. See HO #2 and #3. Accepted. See HO #2. Rejected. Irrelevant. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Accepted. See HO #4. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO #5. Accepted. See HO #6 and #7 Accepted. See HO #8. Accepted. See HO #8. Accepted. See HO #9. Accepted. See HO #10. Accepted. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #10. Accepted. See HO #11. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Irrelevant. Rejected. Improper summary. Respondent's proposed findings of fact are addressed as follows: Accepted. See HO #1 and #2. Accepted. See HO #3 and #4. Accepted. See HO #5, #6 and #8. Accepted. See HO #9 and #10. Accepted. Accepted. Accepted. Accepted that Petitioner arrived at work on January 12, 1989. The rest of paragraph 8 is rejected as improper summary. Rejected. Witness incompetent to make legal conclusion. Rejected. Irrelevant. COPIES FURNISHED: James A. Tucker, Esquire Florida Rural Legal Services 2209 Euclid Avenue Fort Myers, Florida 33901 Anthony N. DeLuccia, Jr., Esquire District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 06085 Fort Myers, Florida 33906 R. S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Andrew J. McMullian General Counsel Interim Secretary Department of Health and Department of Administration Rehabilitative Services 435 Carlton Building 1323 Winewood Boulevard Tallahassee, Florida Tallahassee, Florida 32399-0700 32399-1550 =================================================================
Findings Of Fact Petitioner, a black (Afro-American) female, was employed from July 1987 to January 1993 as a clerk-typist in the Economic Services Division of the Department of Health and Rehabilitative Services (HRS) District II, located in Tallahassee, Florida. In that position, she performed primarily clerical tasks, including typing for seven persons and answering phones. HRS' District II headquarters for Economic Services oversees the operation of HRS field offices providing benefits for state and federal entitlement programs over a fourteen county area. Economic Services Program Administrator Donna McKenzie is in charge of HRS' District II Economic Services office. During 1992, the staff in the District Economic Services office under Ms. McKenzie's supervision consisted of twenty workers, some of whom were clerical staff. Emma Harrell, Ms. McKenzie's personal secretary was classified as a Secretary Specialist, also considered clerical staff. Four other female clerical staff, designated Clerk-Typists, were Betty Simmons, Sheila Bethea, Petitioner, and Janna Lewis-Harrell. Of these five, only Ms. Harrell is white (Caucasian). The other clerical staff are black (Afro-American). At all times material, Janna Lewis-Harrell was physically located in the Economic Services Division but was technically a part-time employee of another division. At all times material, Emma L. Harrell was the only clerical person responsible primarily to just one supervisor, Ms. McKenzie. Except for Emma Harrell, all the clericals were responsible to numerous "professionals" in the HRS chain of command. Emma Harrell was employed at a higher grade than all the other "clericals" except Betty Simmons, who was employed at a grade higher than Ms. Harrell. Sheila Bethea and Petitioner were employed at grades lower than Ms. Simmons. Normal working hours in the HRS Economic Services office were from 8:00 a.m. to 5:00 p.m., with a one hour lunch break, Monday through Friday. However, at least two HRS employees, one black clerical and one white clerical, were approved to work flex-time. In both situations, their flex-time requests were required to be in writing and were approved not by Ms. McKenzie, but by Ms. McKenzie's supervisors. From October 1991 through June 1992, Emma Harrell (a white clerical) was authorized to work on Mondays, Wednesdays and Fridays from 7:30 a.m. to 4:30 p.m. with a one hour lunch, and on Tuesdays and Thursdays from 7:30 a.m. to 4:00 p.m. with a half hour lunch. Ms. Harrell had applied for this as an open-ended arrangement on October 21, 1991, because it was the only way to adequately coordinate parental supervision with the activities of her then fifteen year old son. Apparently, Ms. Harrell minimally abused this first flex-time authorization, because she testified that at all times, she was the only person who had a set one hour lunch period from 12:00 noon to 1:00 p.m. Subsequently, when Ms. Harrell's son's circumstances changed, she applied June 5, 1992 for another change of schedule. On June 9, 1992, Ms. Harrell was authorized to work every day from 7:30 a.m. to 4:30 p.m. with a one hour lunch break. Ms. Harrell worked this schedule partly to accommodate Ms. McKenzie, who worked 7:30 a.m. to 4:30 p.m. On June 26, 1990, Betty Simmons (a black clerical) had applied retroactively for a differential schedule limited to the period of June 25 - August 31, 1990. This also was to accommodate child care considerations. The last paragraph of her request read, "If you see that this time change is for the betterment of the agency, I would like for my hours to remain the same after this period." On July 3, 1990, Donna McKenzie's supervisors approved Betty Simmons' request upon the following terms, "begin the workday at 8:00 a.m., observe a 30 minute lunch period and complete the workday at 4:30 p.m. This approval will be for June 25 through August 31, 1990, only." The approval either overlooked or denied Ms. Simmons' request to leave the change in place indefinitely. Janna Lewis-Harrell's (a black clerical's) work schedule was also adjusted at her request by her supervisors. Responsibility for answering the phone fell on the five clericals, including part-time worker Janna Lewis-Harrell. Under the monthly phone duty schedules, each clerical staff member was assigned primary duty to answer the phone one day a week, and was assigned backup duty another day of the week. Usually, a person's "primary" day immediately followed her "back up" day on the planned schedule. Staff with primary duty would be responsible for answering the phones on their designated day, while the back up staff would answer the phones when the primary staff member was unavailable for reasons including, but not limited to, chores such as photocopying, which took them away from their respective desks. This setup gave the impression that some people would have two busy phone days in a row, depending on respective work loads and the number of phone calls that came in on any given day. Office policy dictated that the phones be answered between 7:30 a.m. and 5:00 p.m. Although the prescribed schedule was posted weekly and in advance, the schedule was aspirational, not mandatory. Clericals were free to trade primary and backup duty days with another clerical without their supervisors' permission, and they did so on a frequent basis. The expectation was that each clerical requesting such a trade off would make up the time traded to her during the month by working the time-slot traded to her by the clerical who had covered for her. The need for phone coverage from 7:30 a.m. to 8:00 a.m. was not instrumental in either of Ms. Harrell's adjustments of hours. However, both by aspiration and in practice, Ms. Harrell usually answered the phones between 7:30 a.m. and 8:00 a.m., every day Monday through Friday. On the days Ms. Harrell was authorized to leave at 4:30 p.m., her backup was routinely required to handle the phones until 5:00 p.m. That meant that routinely Emma Harrell's backup, which backup rotated among the other four clericals, was required to answer phones for an extra hour or half hour at the end of Emma Harrell's primary days and no clerical staff member except Emma Harrell had to answer phones before 8:00 a.m. any day. Since the other clericals did not arrive until 8:00 a.m., they saw only that Emma Harrell left early, requiring them to provide her backup. They did not understand or believe that she was also arriving at work early. Sometimes, Mr. Jimmy J. Cozart and others also answered phones before 8:00 a.m. (See FOF 25). Mr. Cozart was an intermediate "professional" and a mid-level supervisor between clericals Petitioner, Sheila Bethea, Betty Simmons, and Division Administrator Donna McKenzie. By all accounts of all witnesses (white, black, professional, or clerical) the aspirational phone rotation system never functioned ideally. It was an ongoing source of disgruntlement to everyone in the office, but it was most especially vexing to the five clericals responsible for answering the phones. There was constant chatter and commentary by the clericals concerning the failure of certain people, most notably Emma Harrell, to cover the phone on their primary or backup days because they were away from their desks on other employment related tasks. Ms. Harrell's insistence on taking lunch at a set time and her abuse of taking one hour instead of thirty minutes Tuesdays and Thursdays from October 1991 to June 1992 probably aggravated matters (See FOF 8). In the months immediately prior to August 1992, some clerical staff, most notably Petitioner, complained orally to Mr. Cozart and to Ms. McKenzie that it was unfair for Ms. Harrell to leave early, requiring one of the other four clericals to answer the telephone from 4:30 p.m. to 5:00 p.m. and that Ms. Harrell was "not pulling her fair share." No one specifically complained to Mr. Cozart or Ms. McKenzie that on certain weeks Ms. Harrell had no phone duty, that Ms. Harrell disregarded or refused to answer phones on days when she had primary coverage, that Ms. Harrell refused to honor her promises to take another's phone duty when she and a coworker had traded phone coverage days, or that she was regularly abusing her lunch hour privileges. Oddly enough, events seem to have reached a fever pitch after Ms. Harrell reverted on June 9, 1992 to a uniform 4:30 p.m. departure time with a one hour lunch period. In July 1992, the black clericals, that is, all the clericals except Emma Harrell, requested a meeting to resolve phone coverage issues. Donna McKenzie met with each of the five clericals individually instead of in a group because, as Ms. McKenzie testified at formal hearing, "It seemed like they were all ganging up on Emma." Petitioner construed Ms. McKenzie's refusal to hold a group meeting of the clericals as racially based and racially biased. She sent Ms. McKenzie a July 28, 1992 letter expressing dismay that the black clericals' request for a group meeting had not been granted, in her opinion, in order to protect the white employee from meeting with black clericals in a group to discuss the phone coverage. On August 12, 1992, Ms. McKenzie did hold a group meeting of the entire office staff, white and black, clerical and professional, to go over the phone situation. Although Ms. Harrell was not singled out in a negative manner, the need for everyone to work as a team was stressed in a positive manner and a written memorandum of detailed phone duties was circulated to all personnel. During the meeting, Mr. Cozart made a comment to Petitioner when she tried to ask a question. Petitioner testified that she took Mr. Cozart's remark to be derogatory of herself personally, because it was not directed at Ms. Simmons (black) or Ms. Harrell (white), who also had asked questions. Petitioner was not satisfied with the interracial group meeting. She prepared a letter dated August 12, 1992. That letter, which is long and disjointed in its approach, stressed that everyone, including Emma Harrell, should leave at the same time, preferably 5:00 p.m., or that everyone should rotate the privilege of leaving early. The letter also peripherally alluded to Ms. Harrell's temper and bad attitude and asserted that the office was run on coloring. Petitioner clearly stated that until that situation was corrected, Petitioner refused to cover the phone for the white clerical, Emma Harrell. Although Petitioner, Ms. Simmons, and Ms. Bethea testified that the phone rotation system was racially biased and that their superiors "letting [Ms. Harrell] get away" with abuses of the rotation schedule was racially motivated, their testimony was not persuasive. Ms. McKenzie tried to respect Ms. Harrell's phone schedule, but sometimes chores had to be done away from Ms. Harrell's desk. The office diagram in evidence does not show that any of the three black clericals who testified had a desk situated so that she could tell at all times when Ms. Harrell was legitimately away from her desk and phone on necessary work-related chores. The unrefuted evidence showed that Ms. Harrell's phone abuses, if any, never increased anyone's hours of work; that no one ever worked more than forty hours a week; and that no one ever had to work later than her normal quitting time as a result of Ms. Harrell's alleged abuses. Petitioner apparently decided that Ms. Harrell was not answering telephones before 8:00 a.m. because a few times she called in between 7:30 and 8:00 a.m. and other people answered the phone. The credible evidence of Ms. Harrell, Ms. McKenzie, and Mr. Cozart is that anyone who was present before 8:00 a.m. answered the phones on a first come/first served basis (See FOF 16). Petitioner also testified that when she complained to Ms. McKenzie about being Ms. Harrell's primary backup just before the Cozart incident, Ms. McKenzie agreed to accommodate her request for a change (TR 99), and when she complained about Ms. McKenzie not calling a biracial meeting, Ms. McKenzie did so. Ms. McKenzie just did not call the meeting to Petitioner's exact specifications. This is accounted for by managerial "style" rather than racial bias (See FOF 23). It is therefore found that the phone rotation as a racially discriminatory factor was perceptual, not factual. On Friday, August 14, 1992, Emma Harrell was "primary" on the printed phone schedule and scheduled to leave at 4:30 p.m., as usual. Janna Lewis- Harrell was her "backup." For reasons not fully disclosed in the record, Janna Lewis-Harrell (black) was not expected to "cover" for Emma Harrell (white) from 4:30 to 5:00 p.m. that day, and Emma Harrell's offer to stay to "help out" was rejected by Mr. Cozart. Under the circumstances, Mr. Cozart's duty was to find alternative phone coverage for the period between 4:30 and 5:00 p.m. He did not want to do it himself because he was suffering back pain and wished to go to a pre- scheduled chiropractic appointment. First, Mr. Cozart tried to persuade Ms. Simmons and Ms. Lewis-Harrell to cover the phone, but was informed that both were going home early that day. Around 3:50 p.m., Mr. Cozart went to Sheila Bethea's office, where he spoke with Ms. Bethea and Petitioner, requesting that one of them answer the phone after Emma Harrell went home at 4:30 p.m. Ms. Bethea refused Mr. Cozart's request outright. Petitioner also refused Mr. Cozart's request outright. Rather than simply ordering one of them to cover the phones since their work day did not officially end until 5:00 p.m. anyway, Mr. Cozart started to explain their job descriptions, then stopped and started to exit Ms. Bethea's office. What happened next was the subject of a great deal of testimony. After consideration of all the evidence, it is here found that Mr. Cozart believed Petitioner was impeding his access to the doorway, and he struck the back of Petitioner's shoulder at least three times with a shoving motion sufficient to cause a sound and a mild stinging sensation to Petitioner's back, repeatedly saying "Let's go. Let's go. Let's go!" In doing so, his only intent was to get Petitioner to precede him out of the office doorway and go back to her own work station or at least to get Petitioner out of his way so that he could go back to his own work. Petitioner was never bruised, abraded, or incapacitated in any way by Mr. Cozart's forceful touching. She did, however, utter an angry verbal retort. Mr. Cozart's unrefuted testimony that he never saw Petitioner's August 12, 1992 letter before this incident, and that he would never have asked Petitioner to stay until 5:00 p.m. to answer phones on August 14 if he had known Petitioner previously had written that she henceforth refused to cover for or backup Emma Harrell, is accepted as credible. Mr. Cozart's testimony that he was anxious to get out of Ms. Bethea's office because he thought the conversation with Petitioner was going to evolve into some religious discussion with Petitioner which he did not want also is accepted as credible. In further analysis of the evidence, it is also found that the forceful shoving by Mr. Cozart was not racially or gender motivated and was not intended as a battery to do physical harm to Petitioner. It was, however, of greater impact than Mr. Cozart intended it to be or thought it was at the time, and it constituted a totally unacceptable touching of a subordinate by a supervisor. In making the foregoing findings, the undersigned has carefully considered the testimony of all four witnesses who offered any direct evidence concerning the actual incident: Petitioner, Cozart, Bethea, and Simmons. The credibility or lack thereof of the witnesses' respective versions of the event has been weighed. Specifically, the candor and demeanor of each witness has been assessed and the consistencies and inconsistencies of Petitioner's and Cozart's testimony have been compared with the testimony of Sheila Bethea, the only other eye witness, and the testimony of Betty Simmons, who overheard part of the immediate verbal aftermath of the incident. Petitioner's minor son, who reportedly heard what Mr. Cozart said while touching Petitioner and Petitioner's oral retort, did not testify. Petitioner returned to her desk after the altercation with Mr. Cozart in Sheila Bethea's office and immediately typed up her impressions of what had occurred in Ms. Bethea's office. She did not hand this item, dated August 14, 1992, to Mr. Cozart. Instead, she gave him a multi-page document she had prepared the previous day, August 13, 1992. Petitioner's August 13, 1992 missive is disjointed and verbose. It is filled with vague accusations that Cozart, McKenzie and others have harassed Petitioner and with Biblical quotations and prophetic statements of judgment, retribution, and doom against those who have allegedly harassed Petitioner and against the children of the alleged harassers. Emma Harrell's name is mentioned, and the word "prejudice" appears several times in this item but one would be hard-pressed to figure out it was a complaint about a racist phone situation or about Emma Harrell, specifically. Although persons of Petitioner's unique religious bent might see her August 13, 1992 letter as proclaiming peace and joy, most readers would not reach that interpretation of its contents. Indeed, it would not be stretching a point to see the August 13, 1992 letter as a hostile and threatening letter. Petitioner's testimony characterized this letter as "letting [Mr. Cozart] know that what goes around comes around." Mr. Cozart skipped his chiropractic appointment and answered the office phones himself until 5:00 p.m. on August 14, 1992. Two calls came in. The incident between Mr. Cozart and Petitioner was made known to Ms. McKenzie upon her arrival at 7:30 a.m. on Monday, August 17, 1992. At 8:30 a.m., Mr. Cozart also phoned in and told Ms. McKenzie what had happened. Shortly thereafter, Ms. McKenzie heard that the police were coming to see Petitioner. Ms. McKenzie then called Petitioner to see if the police had arrived. Ms. McKenzie then spoke with the District II Personnel Office, which instructed her to speak with Petitioner. Ms. McKenzie approached Petitioner and asked what had occurred the previous Friday. Petitioner stated only that her civil rights had been violated, and refused to discuss the particulars of the incident. Ms. McKenzie backed off from further "pushing" Petitioner to answer her either at Petitioner's desk or to speak privately with her in Ms. McKenzie's office because of Ms. McKenzie's past experience with Petitioner that Petitioner became easily "upset" and "had a tendency to file grievances," and due to Petitioner's current attitude. Acting pursuant to further instructions from the Personnel Office, Ms. McKenzie interviewed Ms. Bethea and Mr. Cozart separately on August 18, 1992. Ms. McKenzie's supervisors then instructed her to get written statements from each participant. Accordingly, Ms. McKenzie instructed Mr. Cozart, Ms. Bethea, and Petitioner to explain in writing what had happened. Petitioner and Mr. Cozart complied immediately. Petitioner's written statement was the one she had typed on August 14, 1992, immediately after the Cozart incident (See FOF 31). It did not mention Ms. Simmons as a potential witness, but did show Petitioner's son had heard, but not seen, the incident. Ms. Bethea did not provide a written statement until urged to do so in late November 1992 (See FOF 43). Ms. McKenzie did not press Ms. Bethea for a statement because, upon consultation with HRS District Program Manager Ralph D. Harmsen, Ms. McKenzie was instructed that, since the police were investigating the incident, Ms. McKenzie was not to pursue the matter at least until after the police finished. Some of Mr. Harmsen's reasoning on this matter seems to have been that since he knew Petitioner had previously filed internal agency grievances against supervisors and had not done so in this instance, she had made some sort of election to only pursue a criminal action. Petitioner was interviewed by a female police officer in the HRS offices on August 17, 1992 and a written report was filed that day. Petitioner and Sheila Bethea gave sworn affidavits to the police on August 20, 1992. None of these items named Ms. Simmons as a potential witness. Petitioner's affidavit stated her son had heard it all but saw nothing. Mr. Harmsen's initial directive to Ms. McKenzie had been to interview and get written statements from all witnesses. Ms. McKenzie admittedly did not interview either Betty Simmons or Petitioner's minor son, each of whom overheard some of the altercation, but there is no evidence Ms. McKenzie understood that either Ms. Simmons or Petitioner's son had any useful evidence, and she at least orally suggested to a police investigator at some point that Petitioner's son might be a witness. In late August 1992, Hurricane Andrew swept through South Florida. Because of the crisis, HRS actively sought volunteers from HRS offices statewide to go to Miami and assist with the problems caused by the hurricane. Petitioner and Ms. Bethea volunteered and left for south Florida on September 2, 1992. Ms. Bethea returned in two or three weeks. Petitioner stayed in south Florida until early October 1992. Concerned about the time Petitioner was spending in south Florida, Ms. McKenzie telephoned in late September 1992 to ask when Petitioner would be returning. During this conversation, Ms. McKenzie suggested to Petitioner that everyone, including the police, were anxious to conclude the criminal matter. Petitioner told Ms. McKenzie that she planned to drop the charges against Mr. Cozart. When Ms. McKenzie inquired further, Petitioner stated "I wanted to teach Mr. Cozart a lesson." Petitioner phoned the police to drop the charges the same day. However, the police "investigation," as such, had actually concluded on September 8, 1992, after interviews with, and/or statements from, Petitioner, Ms. Bethea, and Mr. Cozart. The police report stated that Donna McKenzie had stated that no other witness had seen the incident, as was, in fact, true. Petitioner's son and Ms. Simmons were not interviewed by the police. As of September 8, 1992, the authorities had concluded that criminal prosecution was not feasible since the case hinged on Mr. Cozart's intent and it was his word against Petitioner's. Petitioner returned to the HRS District II Office in early October 1992. She inquired repeatedly in the HRS Personnel Office concerning the status of HRS' investigation of the August 14, 1992 incident with Mr. Cozart. In response, HRS' Personnel Office instructed Ms. McKenzie to turn in all written witness statements. Since Ms. Bethea still had not provided her statement to HRS as instructed by Ms. McKenzie, Ms. McKenzie repeated her instruction to Ms. Bethea, who then turned in her written statement. Ms. McKenzie forwarded the three written statements of Petitioner, Cozart, and Bethea to the Personnel Office. Ms. McKenzie was informed that management would review the statements and make a decision. On December 10, 1992, Petitioner filed her original discrimination complaint with the Florida Human Relations Commission. Mr. Harmsen reviewed all the information he had, which included the three written eyewitness statements, none of which mentioned a racial issue; the police report; and Petitioner's hostile August 13, 1992 letter (See, FOF 32). He did not have a copy of Petitioner's July 28 or August 12, 1992 letters which more clearly related the phone situation to race. He did have Petitioner's August 14, 1992 statement (See, FOF 31) which also does not allude to any racial problem about the phones. There had been no previous written allegations concerning discrimination from any other blacks, and historically, Petitioner generally perceived everything she considered negative in the office as related to racial discrimination. Accordingly, Mr. Harmsen did not believe Petitioner's charges to be credible or believe the cause of the phone coverage discontent had a racial component or that the August 14, 1992 incident had been racially motivated. Petitioner has charged that Donna McKenzie intentionally misled Mr. Harmsen when she failed to focus his attention on the black clericals' oral complaints and give him Petitioner's earlier letters charging that the phone rotation system was racially motivated. However, based upon what Ms. McKenzie knew of the phone situation (See FOF 19 and 25), the lack of clarity on this point in all three witnesses' incident statements, and Petitioner's initial lack of cooperation (See FOF 35), this accusation was unproven. Mr. Harmsen felt he could discern no real way to determine who was right or wrong, or even what happened with regard to the incident on August 14, 1992. Although he had Ms. Bethea's statement, from his point of view, the situation presented a "swearing contest" between Petitioner and Mr. Cozart, with Ms. Bethea's statement not clearly supporting either side. Even the Tallahassee Police Department, which was better equipped and trained to ferret out the truth, had not reached a conclusion as to what really happened sufficient to prosecute Mr. Cozart for battery upon Petitioner. Mr. Harmsen, like the police, concluded that there was no way to decide whether Petitioner or Mr. Cozart was right or wrong in their descriptions of the August 14, 1992 incident. Nonetheless, he decided that Mr. Cozart should be disciplined for the incident to prevent any future such incidents. He instructed Donna McKenzie to "counsel" with Mr. Cozart as a means of discipline and to record the counseling in Mr. Cozart's personnel file. This method of discipline is one of the prescribed methods of discipline under the State's personnel rules. On or about December 18, 1992 Ms. McKenzie counselled with Mr. Cozart and filed a memorandum in his personnel file that stated, During your many years with this agency, you have demonstrated an ability to approach staff on all levels in an appropriate manner. It is expected this ability to effectively relate will continue. Harmsen, McKenzie, and Cozart perceived the foregoing as a disciplinary action against Cozart, however mildly worded. Nevertheless, Mr. Harmsen perceived that it had become impossible for Petitioner, Cozart, and McKenzie to work together harmoniously. Mr. Harmsen was authorized to reassign employees within 50 miles of their current work site. In deciding who to reassign, Mr. Harmsen had to consider the following factors: The person reassigned should have the same degree of responsibility in his or her new position and cannot lose salary as a consequence of the reassignment. Management should try to find the best fit between knowledge, skills and abilities of the person reassigned in his or hew new position. Management must avoid if possible the loss of valuable experience as a result of the reassignment. Management must consider the likelihood of finding a replacement of comparable experience, knowledge, skills and abilities of the person reassigned. In the instant situation, Mr. Cozart had thirty-three years experience and Ms. McKenzie twenty-seven years experience as professionals in the economic services area. No available position existed to which they could be reassigned without placing them in a position in which they would be grossly over qualified. Moreover, the likelihood of finding a suitable replacement for Mr. Cozart and/or Ms. McKenzie was slim, and failure to do so would seriously impede the productivity of the District II Economic Services Division. Reassigning Petitioner on the other hand, presented a different picture. There was an available clerical position at Florida State Hospital which fit nicely with her pay grade and her knowledge, skills and abilities. Furthermore, Petitioner's work site at Florida State Hospital was thirty to forty-five minutes closer to her home than the District II Economic Services office in Tallahassee. On January 5, 1993, Petitioner was reassigned to the personnel office at Florida State Hospital in Chattahoochee, Florida. Mr. Harmsen, who ultimately decided this action, did so because of the remaining personnel problems in the Economic Services office, not in any racial retribution against Petitioner. Petitioner claimed at formal hearing that her educational development was impeded by the transfer of job location sites because she was enrolled in a Lively Vocational Technical course in Tallahassee which began shortly after she got off work, but Petitioner did not protest to Mr. Harmsen concerning her reassignment for any reason at the time it was made. Between the date of Petitioner's reassignment and the date of formal hearing, Mr. Cozart retired and legislative budget cuts eliminated Petitioner's former position in the Economic Services office. The possibility this cut could occur existed at the time of Petitioner's reassignment and was known to Mr. Harmsen. There is every likelihood that, because of the cut, Petitioner would have been reassigned to a different, less desirable, location by a "bumping" procedure, had she remained in the Tallahassee office.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Petition for Relief and its underlying discrimination claim be dismissed. RECOMMENDED this 2nd day of February, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1994. APPENDIX TO RECOMMENDED ORDER 93-2252 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1-3 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 1-6, 12-14 and 44. 4 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 18, 19, 21, 23, 25, 45 and 55. 5-6 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 3, 17 and 54. 7-9 Accepted that these witnesses so testified, but rejected in part upon credibility grounds and in part because this perception was not fully conveyed to appropriate HRS personnel. Covered in FOF 4-6, 18-25, 36-38 and 45-48, especially 19 and 21. 10 Rejected as stated as not supported by the greater weight of the credible evidence. Covered in FOF 18-25, 36-38, and 45-48, especially FOF 19 and 21 and 45-48. 11-12 Accepted. Unnecessary, subordinate or cumulative material has not been utilized. Covered in FOF 22-24. Accepted in part and rejected in part upon the greater weight of the credible competent evidence as covered in FOF 26-31, espcially 29-30. Rejected as stated because as stated, it is misleading and mere argument. Covered as proven in FOF 18, 19, 21, 23, 25-30, 36-38, and 43-48, especially 21, 25, and 45-48. Accepted that testimony conflicted on this issue but otherwise rejected as covered in FOF 8 and 25. Rejected as stated, because as stated it is misleading and not supported by the greater weight of the credible competent evidence. Covered in FOF 7-12 and 25. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See FOF 8-9, 15-16, and 25. Accepted as covered more accurately in FOF 35-39 and 43-48. 19-20 Accepted in part and rejected in part as covered more accurately in FOF 25, 34-39 and 43-48. Also, the footnote is rejected as not accurate as stated and as non-determinative. Mr. Harmsen had seen many hostile discrimination allegations and religious exhortations of Petitioner before, and this history, rather than Ms. Harrell's rank or her being placed in the phone rotation mix, influenced him. See FOF 4-6 on actual ranks. 21-22 Rejected as not supported by the greater weight of the credible competent evidence. See, FOF 19-25, and 35- 48. As to the last clause of the last sentence of PFOF 21, the record actually shows that Ms. Bethea "waffled" on this issue and Ms. McKenzie could not recall if she had told Sheila Bethea at any point that her statement was not needed, but same is still immaterial because both HRS and the police obtained a written statement from Ms. Bethea. The PFOF is rejected as mere argumentation and as not supported by the greater weight of the credible competent evidence. See FOF 35-39 and 42-48. The footnote is accepted at FOF 34. Rejected as mere argumentation and as covered in FOF 29-30, upon credibility. Accepted. Unnecessary, subordinate or cumulative material has not been utilized. See, FOF 48-50 and 56. Respondent's PFOF: 1-2 Accepted in FOF 2-5. Unnecessary, subordinate or cumulative material has not been utilized. 3-4 Accepted except that Janna Lewis-Harrell's employment has been more accurately conformed to the record evidence in FOF 5 and 12, work hour situations and who approved flex-time have been more accurately conformed to the record in FOF 7-11, Ms. Harrell's motives are in FOF 9 and 15. 5-6 Accepted in FOF 13-16. Unnecessary, subordinate or cumulative material and argumentation has not been utilized. 7 Accepted in FOF 18-25 and 43-48, especially 19 and 25; footnote covered in FOF 17. Unnecessary, subordinate or cumulative material has not been utilized. 8 Accepted in FOF 20, 25-26, 35-38 and 43-46. Unnecessary, subordinate or cumulative material and mere argumentation has not been utilized. Accepted in FOF 27. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in part and rejected in part after reconciling where possible and weighing the credible evidence in FOF 28-30. Accepted in FOF 33. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 34. Accepted in FOF 35. Accepted in FOF 36-39 and 43-48. Accepted in FOF 40. Accepted in FOF 41. Accepted in FOF 43, except for the last sentence, which is deemed out of chronology, or mere argumentation. Accepted as modified for acuracy in FOF 48. Unnecessary, subordinate or cumulative material has not been utilized. Rejected in favor of greater accuracy in 49-50. Argumentation has not been utilized. Accepted in FOF 56 except that introductory, unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 45-48. Unnecessary, subordinate or cumulative material has not been utilized. Accepted in FOF 51. Accepted in FOF 52. Accepted in FOF 53. Accepted in FOF 54. Accepted in FOF 55. Accepted as modified in FOF 58 to more accurately reflect the record. COPIES FURNISHED: John R. Perry, Esquire DHRS District 2 Legal 2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32399-2949 Jack McLean, Esquire Legal Services for North Florida 2119 Delta Way Tallahassee, Florida 32303-4220 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues for disposition in this case are whether Respondent committed willful violations of section 106.07(7), Florida Statutes (2014), when its campaign treasurer failed to notify the filing officer that Respondent had not received funds, made contributions, or expended reportable funds during four 2014 reporting periods; and, if so, whether Respondent is subject to civil penalties in view of the holding in PAC for Equality v. Department of State, Florida Elections Commission, 542 So. 2d 459 (Fla. 2d DCA 1989).
Findings Of Fact Petitioner is the entity responsible for investigating complaints and enforcing Florida's election and campaign financing laws, chapters 104 and 106, Florida Statutes. § 106.25, Fla. Stat. Respondent is a political committee organized for the purpose of sponsoring and supporting a constitutional initiative to conserve and protect Florida’s scenic beauty, which is primarily directed to restrictions on billboards along Florida highways. Respondent has been a registered political committee since 2002. Prior to 2014, Respondent suspended its campaign to gather petitions to place the constitutional initiative on the ballot. Respondent has not abandoned the campaign, and the initiative remains legally active. Prior to 2014, Respondent’s most recent financial activity was an expenditure of $61.25 in the first quarter of 2011. Respondent’s assets during 2014 consisted of $157.50 held in a bank account. There were no contributions received or expenditures made by Respondent during the times pertinent to this proceeding. Respondent’s treasurer is Mr. Crescimbeni. Mr. Crescimbeni acknowledged his responsibility as treasurer to accurately report to the Division of Elections the contributions received and expenditures made by Respondent, and the dates of each. The reporting requirements were contained in a political committee handbook and copy of the Florida statutes that are provided by Petitioner to all political committees. Mr. Crescimbeni acknowledged having received and read both documents. Although some reporting requirements have changed since Mr. Crescimbeni’s receipt of the political committee handbook, Mr. Crescimbeni believed that he understood the reporting requirements. Mr. Crescimbeni understood that, since Respondent neither received contributions nor made expenditures, the requirement to submit a treasurer’s report was statutorily waived, though there was a requirement to notify the filing officer that a report was not being filed. In 2013, section 106.07 was amended, creating 33 reporting periods for calendar year 2014, significantly more than existed prior to the amendments. Ch. 2013-37, § 9, Laws of Fla.3/ Reports for the 33 reporting periods in 2014 were statutorily waived pursuant to section 107.07(7), inasmuch as there were no contributions or expenditures. Notifications of no activity were filed for each of the 33 reporting periods in 2014, all of which were timely, except the four identified in the Order of Probable Cause. The M5 Filing Period The notification of no activity for the 2014 M5 reporting period of May 1 through May 31, 2014, was due by midnight on June 10, 2014. The notification of no activity for the 2014 M5 reporting period was filed on Saturday, June 14, 2014, at 11:50:59 a.m. On the morning of Saturday, June 14, 2014, Mr. Crescimbeni picked up Respondent’s mail from the post office. He then traveled to his office, where he opened the mail. Among the items received was a notice from the Division of Elections advising Respondent that its M5 report had not been received by the filing deadline. The letter was dated June 11, 2014, and bore a postmark of June 12, 2014. When Mr. Crescimbeni realized his error, he immediately uploaded the report of no activity at 11:50 a.m. on the morning of June 14, 2014. Mr. Crescimbeni testified credibly that “[m]y delayed filing of the M5 notification of no activity was neither deliberate nor a repeated failure. It was simply an oversight and nothing more.” The P1 Report The notification of no activity for the 2014 P1 reporting period of June 1 through June 20, 2014, was due by midnight on Friday, June 27, 2014. The notification was filed on Saturday, June 28, 2014, at 9:34:11 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the PI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The G1 Report The notification of no activity for the 2014 G1 reporting period of August 23 through 29, 2014, was due by midnight on Friday, September 5, 2014. The notification was filed on Saturday, September 6, 2014, at 3:52:33 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the GI notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. The D2 Report The notification of no activity for the 2014 D2 reporting period of October 25, 2014, was due by midnight on Sunday, October 26, 2014. The notification was filed on Monday, October 27, 2014, at 10:12:15 a.m. The notification was filed without any form of notification from Petitioner. Mr. Crescimbeni indicated that the late filing of the D2 notification of no activity, which occurred within hours of the time due, was not deliberate, and was unintentional and an oversight. As to each of the four notifications of no activity referenced above, Mr. Crescimbeni credibly testified that the delay was: [T]he result of my temporary inattention and each such delay was a simple and inadvertent omission on my part that was promptly remedied . . . . I was never indifferent to the required filings of notifications of no activity. Each such delay by me in making such filing of said notification was not intentional. Each such delay was not deliberate, purposeful, or with any intent or consciousness on my part to avoid the notification of “no” activity. Mr. Crescimbeni’ testimony is accepted. There was no evidence adduced at the hearing suggesting there to have been any financial or political advantage or benefit that could reasonably be derived from the late filing of the four notifications of no activity referenced above. The Commission does not investigate willfulness and does not make a finding of willfulness until after the determination of probable cause in a Probable Cause Hearing.
The Issue Whether the Respondent engaged in an unlawful employment practice by discharging the Petitioner and setting different standards of employment for the Petitioner because of her race?
Findings Of Fact The Petitioner is an African-American, female who was employed by the Respondent from May 5, 1998, until she was discharged on April 14, 2003. The Respondent is a hospital serving the general public in Pensacola, Florida, and is an employer under the provisions of Chapter 760, Florida Statutes. In 2002, Carolyn Schuster was the assistant director of the radiology department. In February of 2002, the director of the radiology department left, and Schuster became the interim director and in July of 2002, she became the director. She was the director of the radiology department at all times pertinent to the disciplining and discharge of the Petitioner. Vicki Orcutt, a white female and the operations manager of the radiology department, was the Petitioner's direct supervisor, and the person who was directly responsible for her discharge. The Petitioner previously had had attendance problems related to her mother who was sick and, in 2002 she again had attendance problems arising out of a bad personal relationship with a boyfriend. As a result of these problems, she was moved from the early shift to the late shift. The Petitioner reacted very angrily to this change, and this led to a verbal exchange with Vicki Orcutt and to the Petitioner's getting a final warning letter. A final warning letter is a disciplinary written warning that any additional employment violations will result in the violator's discharge. Vicki Orcutt testified that she would have discharged the Petitioner for this verbal exchange had she been able. The basis for this animus was in no way racial. The offense for which the Petitioner was ultimately discharged was for falsifying a time card. The Petitioner was originally entitled to take an hour for lunch. The manner in which the individuals accounted for their lunch breaks varied, dependent upon whether they ate in the hospital, on campus, or left the facility. If they left the facility, employees were expected to clock out; however, trips to the credit union across the street were considered to be on campus. If the employees stayed on campus, they did not have to make any adjustment to their time cards and their lunch hour was automatically deducted from their hours worked. If they left the campus, as mentioned above, they were expected to clock out. In June of 2002, Orcutt instructed the payroll department to change the Petitioner to a thirty-minute lunch break. There was no evidence of how this was communicated to the Petitioner or that it formally was communicated to her; however, examination of the payroll/pay record would have revealed the change. On April 3, 2003, the Petitioner received a check, which her boyfriend brought to her at the hospital. She needed to cash this check at the credit union, and left the hospital with her boyfriend in his car to cash this check. Before she left, there was a confrontation with the boyfriend, which caused the involvement of a hospital security guard, and this was brought to Orcutt's attention together with the fact that the Petitioner had left in the car. Orcutt believed that the Petitioner went from the credit union to her father's house to deliver the money to him. There was conflicting testimony about whether the Petitioner left the campus, but Orcutt believed that she had. Subsequently, on April 10, 2003, the Petitioner's boyfriend had an accident in the Petitioner's automobile and called the Petitioner to have her bring him proof of insurance to the scene of the accident. She called a cab, and left the campus to take him the proof of insurance. In her haste to leave, she did not clock out. During the same week, the Petitioner's co-worker was out on leave. During this period the Petitioner did not eat lunch on some days or brought her lunch back to her work station to eat. During her absence, Orcutt covered the Petitioner's workstation. As a result, Orcutt has a good idea of the Petitioner's working during the pay period. At the end of the pay period, Orcutt called the Petitioner as Orcutt was reviewing and approving the time records and questioned her about her time records. Orcutt believed that the Petitioner had left the campus and had not clocked-out on April 3, 2003. A telephone conversation took place between Orcutt and the Petitioner regarding the Petitioner's time records for the pay period. Orcutt queried the Petitioner about her lunch breaks. Although Orcutt believed that the Petitioner had left the campus on April 3, 2003 and not signed out, Orcutt asked if the Petitioner wanted her to put down as "no lunch" for the whole week. The Petitioner responded that Orcutt knew she had taken lunch breaks because Orcutt had covered for her. Orcutt indicated to the Petitioner that she had gone right down and come right back, and that she was going to put down "no lunch" for those days. The Petitioner indicated that the record was right. Based upon the Petitioner's response, Orcutt initiated disciplinary action and discharge proceedings against the Petitioner for falsifying a time card based upon the Petitioner leaving the campus on April 3, 2003. Subsequently, when confronted about the time card, the Petitioner mentioned the April 10, 2003, incident; however, Orcutt had no prior knowledge of the April 10 absence prior to initiating charges. There was no proof presented that the Petitioner left the campus on April 3, 2003, except Orcutt's testimony about a statement made by the Petitioner when confronted that she had taken the money to her father. The Petitioner admitted that she had failed to clock-out on April 10 in her haste to get to the accident scene; however, she offered no explanation regarding why she did not report the matter when called by Orcutt. There was a great deal of testimony regarding other alleged disparate treatment of the Petitioner; however, it does not appear from the record that any of the allegations about pay differences had any basis in fact. It was admitted that the Respondent counseled the Petitioner about covering up a tattoo she had on her neck; however, it was not demonstrated that she was treated differently from other employees who held similar positions. It was admitted that the Respondent counseled the Petitioner for soliciting contributions to a political campaign based upon its non-solicitation policy. The Petitioner did solicit contributions, and the Respondent differentiated those solicitations from those for schools (candy sales), cosmetic sales, etc. Political activities are distinguishable from the other forms of solicitation. No disciplinary action was taken against the Petitioner. Evidence was received that employees of all races and backgrounds were routinely discharged for time record violations.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the Petition for Relief filed by the Petitioner. DONE AND ENTERED this 30th day of December, 2004, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN 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 30th day of December, 2004. COPIES FURNISHED: Nicole Brandon 314 East Blount Street Pensacola, Florida 32503 Russell F. Van Sickle, Esquire Beggs & Lane LLP Post Office Box 12950 Pensacola, Florida 32591-2950 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner should impose a fine upon Respondent as set forth by the Notice of Intent to Impose Fine dated March 9, 2009.
Findings Of Fact At all times material hereto, West Broward was licensed as a home health agency, having been issued license number 21289096. At all times material hereto, West Broward was located at 4534 North University Drive, Lauderhill, Florida 33351. By Notice of Intent to Impose Fine dated March 9, 2009, AHCA notified West Broward that it (AHCA) was imposing a fine of $5,000, pursuant to Section 400.474(6)(f), Florida Statutes, against West Broward for failing to submit the home health agency quarterly report within 15 days after the quarter ending September 30, 2008. Section 400.474, Florida Statutes (2008), provides in pertinent part: (6) The agency [AHCA] may deny, revoke, or suspend the license of a home health agency and shall impose a fine of $ 5,000 against a home health agency that: * * * (f) Fails to submit to the agency, within 15 days after the end of each calendar quarter, a written report that includes the following data based on data as it existed on the last day of the quarter: The number of insulin-dependent diabetic patients receiving insulin-injection services from the home health agency; The number of patients receiving both home health services from the home health agency and hospice services; The number of patients receiving home health services from that home health agency; and The names and license numbers of nurses whose primary job responsibility is to provide home health services to patients and who received remuneration from the home health agency in excess of $ 25,000 during the calendar quarter. The first quarterly report, which was for the period from July 1 to September 30, 2008, was required by AHCA to be e- mailed to it (AHCA). Even though some first quarterly reports were sent by fax or next-day delivery, not e-mailed, those quarterly reports were also accepted by AHCA. The first quarterly report form for West Broward reflects, among other things, that the period of time of the quarterly report was “Quarter July 1 to September 30, 2008” and that it was to be e-mailed to AHCA at homehealth@ahca.myflorida.com by 5 p.m. on Wednesday, October 15, 2008 to avoid a $5,000 fine.3 No dispute exists that the e-mail address is correct. West Broward’s heath care consultant, Laurie Ramos, testified at hearing. She prepared West Broward’s first Quarterly Report, which indicates that, on September 30, 2008: (a) no insulin-dependent diabetic patients were receiving insulin injection services from West Broward; (b) no patients were receiving home health services from West Broward and licensed hospice services; (c) six patients were receiving home health services from West Broward; and (d) no professional nurses (RNs or LPNs), whose primary job responsibility was to provided home health services to patients, received remuneration from West Broward in excess of $25,000 between July 1, 2008 and September 30, 2008. Ms. Ramos testified that she e-mailed the first Quarterly Report to AHCA on October 14, 2008, from her computer. She further testified that, even though her computer had the capability, she did not set her computer to receive a message when the e-mail was read by the recipient, and that, therefore, she had no return message that the e-mail, containing the Quarterly Report, was read by AHCA. Ms. Ramos did not send the first Quarterly Report by any other method of delivery, only e-mail. Ms. Ramos did not contact anyone at AHCA to verify that the first Quarterly Report was received. Ms. Ramos’ computer crashed approximately nine months subsequent to the due date of the first Quarterly Report. At her request, the company, which was repairing her computer and recovering data, searched Ms. Ramos’ hard drive for an e-mail message from her regarding the first Quarterly Report. The company provided Ms. Ramos with a document showing an e-mail message, dated October 14, 2008, at 11:34 a.m., regarding West Broward’s Quarterly Report, to the e-mail address designated for AHCA to receive quarterly reports. The company’s document was forwarded to AHCA. From the company’s document, AHCA’s information technology experts were unable to verify that Ms. Ramos had e-mailed the first Quarterly Report. According to AHCA’s information technology expert, due to the technological aspect of e-mails, a very small statistical number of e-mails that are sent are not received. Additionally, AHCA requested Ms. Ramos to forward to it an electronic version of the e-mail. With an electronic version of an e-mail, documentation of the date and time of an e-mail could be ascertained by AHCA’s information technology expert. No electronic version of the e-mail was provided, and, therefore, no documentation of the date and time of Ms. Ramos’ e-mail could be ascertained by AHCA. Ms. Ramos testimony is found to be credible. A finding of fact is made that she sent the first Quarterly Report to AHCA on October 14, 2008, by e-mail. AHCA maintains that it never received West Broward’s e- mailed first Quarterly Report. AHCA has no record of receiving the e-mailed first Quarterly Report. The evidence demonstrates that AHCA did not receive the e-mailed first Quarterly Report. AHCA interprets the term “submit,” in Section 400.474(6)(f), Florida Statutes (2008), to mean that the quarterly report must be “received” by it. AHCA determined that, beyond the date of October 15, 2008, there was no opportunity available to West Broward to correct or cure the absence of AHCA’s receipt of the first Quarterly Report. Furthermore, AHCA determined that it had no choice, pursuant to Section 400.474(6)(f), Florida Statutes (2008), but to impose a $5,000 fine.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Notice of Intent to Impose Fine against West Broward Referral and Nurses Agency, Inc. DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010.
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN 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 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
