Findings Of Fact On approximately May 31, 1985, Petitioner, Maria Dejesus was employed as a public assistance specialist with Respondent, Department of Health and Rehabilitative Services. Petitioner continued in that employment through early June, 1986. On Friday, June 6, Petitioner and her children, while enroute to Petitioner's home, were injured in an automobile accident. On Monday, June 9, at approximately 8:30 a.m., Petitioner called Brian Leverrier a public assistance liability supervisor and Respondent's supervisor during that period, and advised that "she had been in an automobile accident and that she would not be in that day because she had to take one of her children to the doctor; ... that she was positive or sure that she would be in to work the next day and that was the end of the conversation." (TR-13). Petitioner did not return to work until the following Tuesday, June 17. During the period between June 9, and June 17. Petitioner did not report to work nor did she call and advise her supervisor on June 10, 11, 12, or 13, that she would not be reporting to work. Petitioner relied on Bayla Lipsitz, a co-worker, to advise her supervisor that she would not be returning to work until Monday, June 16. Mr. Leverrier denied that Bayla Lipsitz advised him that Petitioner would not be returning to work until June 16, and employee Bayla Lipsitz did not appear as a witness in these proceedings. 2/ On Monday, June 16, Petitioner telephoned her supervisor, Brain Leverrier to advise him that she would not return to work until Tuesday, June 17, because her ride did not pick her up. Barbara Chattin, public assistance specialist supervisor, was fielding calls for Mr. Leverrier on June 16, and took Petitioner's phone call. When Petitioner advised Ms. Chattin that she would not return to work until the following day, June 17, Ms. Chattin advised her that she failed to call in everyday as she was supposed to although she (Chattin) would relay her message to Brian Leverrier. On the following day, June 17, Petitioner reported for work and was directed to report to Patty Jolly, Human Services Program Administrator, South Services Area, Economic Services. Ms. Jolly is overall responsible for eight supervisors who in turn supervise approximately 60 odd employees including Petitioner. When Petitioner reported to Ms. Jolly, she was advised that in accordance with personnel rules and regulations, she had abandoned her job based on her lack of contact with her supervisor for more than three days. (TR 37). Petitioner did not offer any explanation or other reason for failing to advise her supervisor of her need to be absent from work. All employees are provided with a copy of HRS's pamphlet entitled Personnel Employee Handbook. (Respondent's Exhibit 1). Respondent acknowledged receipt of that handbook by executing an acknowledgment. (Respondent's Exhibit 3).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order denying Petitioner's petition for review. RECOMMENDED this 24th day of February, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1987.
Findings Of Fact Petitioner was employed by the City of Chipley from April 16, 1982 until July 1, 1983, when he was terminated. Petitioner was suspended prior to termination by his supervisor on June 23, 1983. During the period of his employment, Petitioner worked as a laborer in the Public Works Department. His duties required physical labor including heavy lifting. On January 28, 1983. Petitioner injured his thumb and was assigned to light duty when it became apparent that his regular duties aggravated the injury. Petitioner returned to regular duties, but on March 22, 1983, he injured his back while loading cement bags. He was again assigned to light duty. These were essentially "make work" assignments since virtually all duties in Petitioner's department were of a heavy duty nature. Thus, Petitioner was considered unproductive by his supervisor during such periods. On April 11, 1983, his supervisor advised him that his employment with Respondent "looks dim" and that he should seek other employment. Petitioner refused to do so in the belief that no one else would hire someone with a "bad back." Petitioner was informed by a coworker that the Public Works supervisor did not want injured employees working for him and "runs them off" when they get hurt. Although Petitioner's injury was a factor in Respondent's decision to terminate him, this hearsay testimony was not supported by other evidence. Rather, competent evidence was introduced which established that several employees who have been injured continued to be employed by Respondent in the Public Works Department. Petitioner's work with Respondent was generally satisfactory. He received routine raises and his annual evaluation carried an overall satisfactory rating. He had some difficulty getting along with his supervisor and fellow employees, and the quantity of work he performed was no more than average even during periods when he was not injured. Petitioner's supervisor, the Director of Public Works, presented him with his evaluation form in late June, 1983. He discussed the evaluation with Petitioner and asked him to sign it. Petitioner refused, which his supervisor believed to be unreasonable and insubordinate. The Director of Public Works then advised Petitioner that he was fired. Respondent's Public Works Supervisory Committee held a meeting thereafter where the decision to terminate Petitioner was upheld. The committee consisted of the Mayor, a city council member and Petitioner's supervisor. Petitioner was present at the meeting and was permitted to state his views. Petitioner unreasonably refused to sign his evaluation which was satisfactory even though it contained a few somewhat critical comments. The reason for requiring Petitioner's signature was explained to him as signifying merely that he had seen the evaluation and that all portions had been completed prior to his review. The immediate basis for discharge was Petitioner's refusal to sign the evaluation form. However, the other factors noted above contributed to the termination decision of Petitioner's supervisor and the local review authority.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Complaint. DONE and ENTERED this 6th day of September, 1985 in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of September, 1985. COPIES FURNISHED: Paul D. Srygley, Esq. 1030 East Lafayette Street Suite 101 Tallahassee, Florida 32301 William J. Mongoven, Esq. Post Office Box 187 Chipley, Florida 32428 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana, Esq. General Counsel 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether the Juvenile Welfare Board of Pinellas County (Petitioner) should have treated John Bucci as a mandatory member of the Florida Retirement System from April 1984, through July 1988, and therefore, should be required to submit retroactive adjustments for retirement and social security based upon his earnings during this period.
Findings Of Fact The Petitioner is an independent taxing district created by Special Act in 1945 to provide funding in Pinellas County for services to children. It timely filed a request for hearing on the Respondent's decision to consider John Bucci a mandatory member of the Florida Retirement System (FRS) from April 1984, through July 1988. The position of the Petitioner is that John Bucci was an independent contractor, and therefore, should not be considered a mandatory member of the FRS. Bucci worked as a janitor for the Petitioner between April 1984, and July 1988. He opened the building in the morning, deactivated the building alarm, made coffee, cleaned the employee restrooms, emptied waste baskets, vacuumed and dusted. From time to time, he also painted and made minor repairs in the building, and took mail to the post office when directed to do so. While Bucci did not receive daily assignments, his duties were routine and had been worked out with representatives of Petitioner when he was initially employed. If there were problems with his cleaning, he would be told to reclean an area, and he was expected to take care of the problem as soon as possible. The Petitioner provided Bucci with all supplies and equipment necessary to do his job. While he worked with the Petitioner, Bucci did not have a written contract, but rather, he had an annually renewable verbal contract. He was paid on an hourly basis, and submitted a monthly record of hours worked each day, which was reviewed and approved for payment by Petitioner. Bucci received annual increases from the Petitioner, but did not negotiate these increases. The Petitioner simply gave him what it considered to be a cost of living increase each year. According to Petitioner, Bucci was not in an established position, and therefore, did not receive fringe benefits. At the time, Bucci was the only person working with the Petitioner which it considered to be an independent contractor. Subsequent to his leaving, Petitioner bid, and now has a written contract for janitorial services with an agency in Pinellas County that offers employment opportunities to retarded citizens. That agency provides all equipment and supplies necessary for janitorial duties. After several counseling sessions with Carole Gunnels, Petitioner's operations manager at the time, Bucci was terminated because of continued problems with his work. Thereafter, it was determined by the Division of Unemployment Compensation, Department of Labor and Employment Security, that he qualified for unemployment benefits. The Comptroller's Office of the State of Florida has issued Memorandum No. 7 (1988-89) regarding determinations of a person's status as an independent contractor or employee. In pertinent part, that Memorandum sets forth twenty factors to be considered in determining if sufficient control is present to establish an employee-employer relationship, and states: The Internal Revenue Service has provided guidance in making this determination in Revenue Ruling 87-41. It provides generally, that the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but as to how it shall be done. In this connection, it is not necessary that the employer actually direct and control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The Respondent has adopted Rule 22B-6.001(15), Florida Administrative Code, which defines the term "independent contractor" as an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and does not receive the fringe benefits offered by the employer. A consultant or independent contractor usually: is compensated from another salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises. In order to determine if Bucci should have been considered to be an employee of the Petitioner, rather than an independent contractor, the Respondent provided Petitioner with a copy of its Employment Relationship Questionnaire, which Petitioner completed on or about April 10, 1989. The information provided by Petitioner on this Questionnaire indicates that Bucci was required to follow regular routines or schedules, the Petitioner could change the methods by which he performed his work or otherwise direct him in the performance of his duties, the work was to be performed by Bucci personally, the Petitioner could discharge him at any time, and he could quit at any time. It was also indicated that Bucci was not filling a regularly established position, but was retained under an oral contract to perform personal services. Bucci did not work full-time with the Petitioner. Rather, he worked an average of between 4 to 5 hours a day with the Petitioner. On rare occasion during the time he was employed with the Petitioner, he did take other part-time cleaning jobs with other employers. However, he did not have any occupational license as a janitorial service, did not advertise as such, had no yellow page listing for janitorial services, and did not have any equipment or supplies necessary to carry out his duties, other than what Petitioner provided him. The characteristics, terms and conditions of Bucci's employment with the Petitioner from April 1984, through July 1988, support the Respondent's determination that he was an employee, rather than an independent contractor, and that he was, therefore, a mandatory member of the FRS.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order concluding that John Bucci was a mandatory member of the FRS, and as such denying Petitioner's request for relief. DONE AND ENTERED this 8th day of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1989. APPENDIX (DOAH CASE NO. 89-4067) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as purely procedural matters and not a relevant proposed finding of fact. 3-4. Rejected in Findings of Fact 2-5, 8-10. The Respondent did not timely file Proposed Findings of Fact. COPIES FURNISHED: Terry A. Smiljanich, Esquire P. O. Box 1578 St. Petersburg, FL 33731 Stanley M. Danek, Esquire General Counsel's Office 440 Carlton Building Tallahassee, FL 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus Aikens, Jr., Esquire General Counsel 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue presented is whether Petitioner was a supervisory employee as defined by Section 110.205(2)(x), Florida Statutes (2001), and was therefore properly reclassified from Career Service to Selected Exempt Service effective July 1, 2001.
Findings Of Fact Petitioner became employed by the Commission as an Engineering Supervisor in 1984, and held Select Exempt status prior to 1991, when he was reclassified to a Career Service employee. From 1997 until his retirement, he held Position No. 00168, titled “Utility Systems/Communications Engineer Supervisor.” The first paragraph of his October 1, 1997, Position Description states: This is work supervising engineers in the Bureau of Economic Regulation. The primary duty of the employee in this position is to spend the majority of time communicating with, motivating, training and evaluating employees, planning and directing their work; and having the ability to effectively recommend to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward or discipline subordinate employees. The October 1, 1997, Position Description was in effect at the time Petitioner was reclassified to Select Exempt following enactment of the Service First Initiative. Following the decision of the District Court of Appeal in Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (1st DCA 2003), Petitioner was notified of his right to seek an administrative hearing for the purpose of challenging his reclassification. Petitioner timely requested a hearing on August 13, 2003. Petitioner does not dispute the supervisory nature of the job outlined in the Position Description. He claims that despite his Position Description, his position was not truly “supervisory” as a practical matter and thus did not fit within the authorized grounds for reclassification under Section 110.205(2)(x), Florida Statutes (2001). The Position Description alone is not controlling, because it is possible the actual nature of Petitioner’s job changed and the Position Description had not been amended to reflect that. It is therefore appropriate to look behind the Position Description to see whether the actual duties expected of Petitioner were supervisory in nature. To support his claim that his responsibilities had “eroded” to the point they were no longer supervisory in nature, Petitioner points to the hiring of several individuals to work in the section for which he was responsible. Several individuals (Ed Fuchs, Ted Davis, Gerald Edwards, and Jeanette Sickel) were hired to work under Petitioner by the Commission. Petitioner objected to the hiring of some of those persons on the ground that they lacked qualifications, educational and otherwise, for their positions, but they were hired nevertheless. Another individual, Wetherington, was hired with Petitioner’s assent after interviewing with Petitioner and the Bureau Chief. Once the individuals were hired, they worked under the supervision of Petitioner. He was responsible for approving their time sheets, conducting their annual evaluations, approving travel and leave requests, and training. Petitioner was responsible for assigning the work to employees Sickel, Munroe, Davis, Edwards, and Wetherington, and for monitoring its quality. It was Petitioner who the Commission held responsible for the work product of the section. Petitioner directed the manner in which the employees performed their work on a day-to-day basis. Petitioner answered to Marshall Willis, Bureau Chief of Rate Filings. Willis was responsible for evaluating Petitioner’s performance on the basis of how well Petitioner managed the performance of employees under Petitioner’s supervision, and Petitioner was rated and held accountable to communicate, train, direct, and assign work to subordinate employees assigned to him. Petitioner’s evaluation by Mr. Willis dated December 8, 2000, notes that Petitioner must put forth greater effort in reviewing the work of his engineering section and in improving the analysis reflected in written recommendations. Similar issues had been raised in an earlier evaluation. In response to a November 1998, evaluation of his performance by Mr. Willis, Petitioner acknowledged deficiencies in the performance of his engineering section, and provided assurance that he would “strive to do a better job of supervising my staff” in the future. At all pertinent times, Petitioner’s position was not of a routine, clerical, or ministerial nature, and did require the application of judgment. Petitioner had a significant role in personnel administration, as he served as the officer trusted by the state to verify the hours worked, to direct the amount and quality of work performed during those hours, and to be held accountable for the collective performance of the employees in the engineering section. Petitioner did lack the ultimate authority to hire and fire personnel, but that does not make his role in personnel administration insignificant. While hiring and firing are indeed important decisions, in state government the ultimate authority to hire and fire always resides with the agency head or office head. The bulk of the day-to-day management of personnel does not consist of hiring and firing, but rather of assigning the work and monitoring its successful completion. In addition to the expectations set out in the Position Description, the course of conduct and of communications received from his Bureau Chief establish that supervisory responsibility was in fact a requirement of Petitioner’s position. Petitioner was actually expected to spend a majority of his time communicating with, motivating, and training employees, and planning and directing their work. The clearly established expectations for Petitioner’s position would place upon the incumbent the responsibility for making effective recommendations for hiring, transfer, suspension, layoff, recall, promotion, discharge, assignment, reward, or discipline of subordinate employees. The instances of other Commission officials declining to follow Petitioner’s recommendations regarding hiring reflect the officials’ lack of satisfaction with the way Petitioner was carrying out those supervisory responsibilities, not an acknowledgement that those responsibilities do not exist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Public Service Commission enter a final order that Petitioner’s position was properly reclassified as Selected Exempt Service. DONE AND ENTERED this 18th day of December, 2003, in Tallahassee, Leon County, Florida. S S. SCOTT STEPHENS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 2003. COPIES FURNISHED: Robert J. Crouch 245 Pond Court Havana, Florida 32333 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32302-1906 Christiana T. Moore, Esquire Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Blanco Bayo Director of Records and Reporting Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 William D. Talbott, Executive Director Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850 Richard D. Melson, General Counsel Public Service Commission 2540 Shumard Oak Boulevard Tallahassee, Florida 32399-0850
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT 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 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 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 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, Kenneth Katsaris, is the duly elected Sheriff of Leon County, Florida. Respondent has its principle place of business in the City of Tallahassee, Leon County, Florida, where it is engaged in the business of operating a county-wide law enforcement agency, pursuant to the Florida Constitution and the applicable statutes promulgated thereunder. Charging Party, Perry Lawrence was employed by Respondent as deputy with the Leon County Sheriff's Department of approximately four years and seven months prior to his discharge on February 3, 1977. Charging Party, Michael Spiers was an employee with the Leon County Sheriff's Department for approximately four years and one month prior to his discharge on February 3, 1977. At times material herein, Gene Goodman was employed as a Captain with the Leon County Sheriff's Department and as such was an agent and a representative of the Respondent acting on its behalf, and/or a managerial employee. On February 3, 1977, and for sometime previous thereto, Joe E. Davis was employed with Respondent as a Sergeant and was the immediate supervisor of Deputy Perry Lawrence. Also on February 3, 1977, Wilford Jiles was employed as a Lieutenant with the Leon County Sheriff's Department and for approximately one week prior to the termination of Deputy Spiers, was his immediate supervisor. During the period during which Lawrence and Spiers was employed with the Leon County Sheriff's Department, both under former Sheriff Raymond Hamlin and the present Sheriff Kenneth Katsaris, neither received an oral or written reprimand regarding their conduct; nor had they been counseled by either Sheriff or any superior with regard to any type of attitude problem or complaints about their work performance. THE ORGANIZATIONAL EFFORTS The deputy sheriffs of the Leon County Sheriff's Department discussed and began to consider the possibility of organizing collectively in October or November of 1976. However, serious organizational efforts did not begin until January of 1977. On January 31, 1977, Perry Lawrence contacted union organizer James Mixon and established February 5, 1977 as the date for the initial organizational meeting of the Leon County Sheriff's Deputies. The record reveals that deputies Lawrence and Spiers spearheaded the organizational drive, however, they made no contacts concerning organizational activities with employees during their working hours or of the working hours of the deputy employees whom they solicited. The evidence reveals that solicitation efforts were made during the period January 31, February 1 and February 2, 1977, at which time the first meeting was scheduled for February 5 at deputy Lawrence's house. January 31 was the last day of the January pay period for the Leon County Sheriff's Department employees. Evidence further reveals that Respondent Sheriff first learned about the organizational efforts within his department in mid to the latter part of January, 1977. Nearing the end of January or the first of February, Sheriff Katsaris learned of the roles of Lawrence and Spiers in the organizational effort. It was during this time period that deputy Spiers was being considered for a position in the detective division by Captain Poitinger, a managerial employee who was first employed with the advent of the new administration on January 4, 1977. Following the defeat of the incumbent sheriff in November, 1976, by Sheriff Katsaris, he (Katsaris) conducted interviews with the deputy sheriffs appointed by Sheriff Hamlin in order to ascertain those individuals who would be retained on his staff. Both deputies Lawrence and Spiers were interviewed and indicated their desire to continue their law enforcement careers and pledged to support the new administration. Sheriff Katsaris, based on this interview, decided to retain both deputies Lawrence and Spiers. Sheriff Katsaris took office as the Sheriff of Leon County on January 4, 1977. Sheriff Katsaris testified that individuals whose name he could not recall, indicated that deputies Lawrence and Spiers were dissatisfied with his administration and they decided to try to organize the deputy sheriffs. Interestingly, it was about this same time period that Sheriff Katsaris began thinking about terminating deputy sheriffs Lawrence and Spiers. In this regard, Sheriff Katsaris, who had only been in office 10 to 14 days, testified that "he had been unhappy with the conduct of both of them for some time." The record is devoid of any specific incident which deputies Lawrence and Spiers had committed which would bring them under the Sheriff's scrutiny. However, it was revealed that the alleged discriminatees (deputies Lawrence and Spiers) as were numerous other deputies including Sergeant McDearmid, Spier's supervisor, indicated that it had taken a period of adjustment to adapt to the new administration; some deputies voiced their dissatisfaction with the administration and complained about the "colors of the cars, shining their shoes" and the "change in uniforms that was imminent." Based thereon, plus the fact that Deputy Spiers failed to speak to the new Sheriff on numerous occasions, Sheriff Katsaris had decided as of mid January that he know deputies Lawrence and Spiers could not remain with his administration. This decision was, according to his testimony, based on the above unspecified conduct by them during his two week's tenure which in his opinion was so reprehensible that termination of their employment was necessary. Deputies Lawrence and Spiers continued to work in their departments unaware that their conduct was below the expectations and standards of the new administration. Between 7:00 and 8:00 a.m. on February 3, 1977, Sheriff Katsaris discharged Deputies Lawrence and Spiers. The reasons assigned for the discharge of Deputy Lawrence was that his attitude was bad and his conduct was unethical and Deputy Spiers' assigned reasons for discharge were a "bad attitude"; "unability to adjust" and "poor work performance." As stated above, and as acknowledged by Sheriff Katsaris, neither Lawrence nor Spiers were ever counseled about their conduct, attitude, or work performance, nor were their supervisors consulted with regard to their conduct, attitude of work performance. The undersigned is mindful of Sergeant McDearmid's testimony that when Deputy Spiers initially came on board, he was over zealous. This, however, is not considered as a shortcoming in terms of ability to adequately perform. In any event, this matter was corrected at the outset of Spiers' employment. Aside from the unsubstantiated rumors received from unknown sources that Deputies Lawrence and Spiers were disgruntled with the new administration and were hampering the new administration's programs, the only specific action discernible in the record which is attributable to Deputy Lawrence is his failure to say "Hello" to the Sheriff on several occasions. Similarly, except for the rumors relied on by the Sheriff, the only two specific actions attributable to Deputy Spiers were: Stating, after the Sheriff inquired about his opinion of the newly painted police cars, that they looked like those on "TV, Adam-12"; and (b) advising the Sheriff that he had been offered a position in other police departments but had turned them down in hopes that he could get into the detective or narcotics unit with the Leon County Sheriff's Department. The record is barren of any further specific actions attributable to the alleged discriminatees. The evidence reveals that on January 26 - 28, 1977, Sheriff Katsaris attended a workshop of the Florida Sheriff's Association. At the workshop a session was held on dealing with unions. Following the session, the Sheriff concluded that under the circumstances it was time for him to deliver a message to the men as to how he felt about unions. On January 31, 1977, Deputy Lawrence contacted the union organizer, James Mixon and established February 5, as the date for the initial organizational meeting. During the period of January 31 through February 2, Deputies Lawrence and Spiers contacted all deputy sheriffs and sergeants, some 85 individuals about the union and the organizational meeting on February 5, 1977. On February 1, 1977, Captain Gene Goodman, a managerial employee of the Sheriff's Department called Deputy Sheriff Scott Key into his office. Among other things, Captain Goodman inquired about Key's knowledge about the union movement; whether Perry Lawrence was contacting the men; when the organizational meeting was being held; whether it was being held at Lawrence's home and what was Lawrence's home address. Captain Goodman indicated that Sheriff Katsaris might like to speak to Deputy Key immediately contacted Deputy Lawrence and advised him of the meeting because he (Key) thought Lawrence's position was in jeopardy. During the nights of January 31, 1977 and February 1 and 2, 1977, Sheriff Katsaris conducted several command staff meetings with his attorney. At the meetings several matters were discussed including union activities of employees and the names of Deputy Spiers and Lawrence were discussed at those meetings. On February 3, 1977, Deputies Lawrence and Spiers were terminated and on February 4, 1977, Sheriff Katsaris posted a no solicitation- no distribution rule and at the same time issued a departmental policy on unions and employee organizations. Included in the Sheriff's position letter was an expression of his feeling that union organization of the department's employees would not serve their best interests and will work to their substantial detriment of the high professional standards that [he] was seeking to achieve. He therefore concluded that it was his firm policy to oppose union organization of any group of the Leon County Sheriff's Department employees by every proper and legal means. (See Respondent's Exhibit #1, Attachment #2) Following the termination of Deputies Lawrence and Spiers the subsequent distribution of the Sheriff's no solicitation-no distribution rule and the position letter dated February 4, 1977, organizational activities within the Sheriff's Department ceased and testimony reveals that those employees who had signed authorization cards became disinterested and requested that they be returned to them.
Conclusions An examination of the above factors leads the undersigned to the conclusion that the Respondent's discharge of Deputies Lawrence and Spiers was discriminatorily motivated and undertaken based on anti-union sentiments. The Respondent was aware that organizational activities were occurring among its employees and that admittedly, Deputies Lawrence and Spiers were spearheading this activity. Respondent's knowledge was gained, at least in part, from its agent, Captain Goodman's interrogation of Deputy Scott Key. Without reciting her the details of Goodman's interrogation, it suffices to say that Respondent was much concerned about the on-going organizational drive. A reading of Respondent's position statement released the day following the discharges of Deputies Spiers and Lawrence unquestionable confirms this concern. Prior to these terminations, the organizational drive was mounting with great interest. However, following the terminations, those employees who had expressed organizational interests by executing authorization cards manifested no further interest and attempted to withdraw their support by requesting that their executed authorization cards be returned. Without question, at this point Respondent had driven home its point that those employees who cared to exercise their right to engage in collectively organized activities faced the ultimate penalty of discharge. The reasons advanced by the Respondent for the discharge of Deputies Lawrence and Spiers were considered and are rejected. The discriminatees had been employed for more than four years and at no time had either been disciplined, reprimanded or counselled about their work performance or attitude. The reasons rested on unsubstantiated rumors without any efforts to confirm that they (Deputies Lawrence and Spiers) were experiencing attitudinal problems. Nor were they given any opportunity to deny, admit or correct such problems. This entire matter hardly resembles the workings of an efficient law enforcement agency that prides itself (according to Respondent) with effective investigative techniques. Respecting Respondent's claim that they (Deputies Lawrence and Spiers) were not adjusting to the new administration, evidence reveals that employees are yet adjusting to the new administration. Indeed, Deputies Lawrence and Spiers had no idea (based on the benefit of consultations from their supervisors) that their performance was anything but satisfactory. To adjust to the new administration, they were given all of one month. Given these facts, the undersigned can only conclude that the reasons assigned by Respondent were merely a pretext and the real reasons that Deputies Lawrence and Spiers were discharged are accurately cited in the complaint herein and it is so concluded. The interrogation of Deputy Scott Key by Captain Goodman constitutes a violation of Section 447.501(1)(a) of the Act since the interrogation centered exclusively around the union activities of Respondent's employees. See e.g. Laborer's International Union, Local #666 v. Jess Parrish Memorial Hospital 3 FPER 172 (June 30, 1977). In the instant case, the Respondent, as was its right, expressed its position opposing unionization of its employees; the interrogation sought information which would lead one to reasonably conclude that such would form a basis for taking disciplinary action; the interrogator was a high-ranking staff personnel and the Deputy (Key) was called away from his duty station. Key's testimony reveals that it was indeed unusual for Captain Goodman to summon employees to his office except in matters of extreme importance. The fact that Deputy Key feared that disciplinary action would be taken is borne out by the fact that when Captain Goodman confirmed that Deputy Lawrence was active in the organizational drive, he advised Deputy Key that he thought that the Sheriff would like to know about that; and that (Key) should wait in his office until he could locate the Sheriff in order that he could be briefed on the matter. When the Sheriff was located, and the matter called to his attention, he told Captain Goodman that he was not interested in speaking to Deputy Key about the subject. Deputy Key spoke to Deputy Lawrence about the interrogation as quickly as he could after leaving Captain Goodman's office and attempted to convince Lawrence to "quit the organizing effort before he lost his job." It is apparent that the Sheriff recognized the dangers inherent in the situation, however, he did nothing to alert the other rank and file employees that he was repudiating the action of Captain Goodman. By failing to do so after learning of the interrogation, the Sheriff is held accountable for the acts and conduct of Captain Goodman. It is so recommended.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent cease and desist from engaging in unfair labor practices in violation of Chapter 447.501(1)(a) and (b), Florida Statutes, as required by Chapter 447.503(4)(a), Florida Statutes. Based thereon, it is further recommended that the Respondent be ordered to reinstate Deputies Perry Lawrence and Michael Spiers to their former or substantially equivalent position of employment and be reimbursed for all back pay with interest computed at 6 percent per annum beginning on February 4, 1977, in accordance with the formula set forth in Pasco County Teachers Association v. Pasco County School Board, PERC Order No. 76U-U75 (1976). It is further recommended that Respondent be required to post in each of its facilities in Leon County, Florida, on copies of an appropriate "notice to employees" for a period of sixty (60) days, a notice substantially providing that the Respondent will cease and desist from engaging in unfair practices within the meaning of Chapter 447.501, Florida Statutes. RECOMMENDED this 11th day of October, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, 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 11th day of October, 1977. COPIES FURNISHED: Gene L. Johnson, Esquire Staff Attorney Public Employees Relations Commission 2003 Apalachee Parkway, Suite 300 Tallahassee, Florida 32301 P. Kevin Davey, Esquire Post Office Box 1674 Tallahassee, Florida 32302 Jack M. Skelding, Jr., Esquire Post Office Box 669 Tallahassee, Florida 32302
