Findings Of Fact The Petitioner, John C. Scott, has been a Career Service employee with the Department of Transportation for approximately ten years, assigned to the Centerline Maintenance Office in Pompano Beach, Florida. During all times material to these proceedings, Petitioner's immediate supervisor was Allen Thomas. Robert Lucas, Highway Maintenance Supervisor in charge of the District III Centerline Crew, is the Petitioner's second-level supervisor. Thomas and Lucas are the only individuals at the Centerline Maintenance Office authorized to approve leave for Petitioner. On May 23, 1987, the Petitioner was arrested for D.U.I. and placed in jail for fifteen days. After the Petitioner was arrested, he called his mother and asked her to inform his supervisor at work that he had some personal business to attend to and would need annual leave. On May 26, 1987, the Petitioner failed to report to work and had not previously requested leave from any of his supervisors. On the morning of May 26, 1987, Ms. Scott, the Petitioner's mother, called Mr. Lucas and told him that her son would need a couple of days off from work because of personal business. Mr. Lucas informed Mrs. Scott that annual leave could not be authorized over the telephone for personal business but that leave could be granted for an emergency situation. Ms. Scott reiterated that the Petitioner had some personal business to take care of. Mr. Lucas advised her that annual leave could not be authorized over the telephone under those circumstances. On June 1, 1987, Mr. Lucas was informed by Mr. Oshesky, the District Personnel Supervisor, that Petitioner's attorney had called and told him that Petitioner was in jail. The Petitioner was absent from work on May 26, 27, 28, and June 1, 2, 3, and 4, 1987. May 29, 30 and 31, 1987 were non-work days for Petitioner. At the time, the Petitioner's work week consisted of four ten hour days from 7:30 a.m. to 5:30 p.m. The last day that Petitioner actually reported for work was Wednesday, May 20, 1987. However, on Thursday, May 21, 1987, the Petitioner was absent from work on authorized annual leave, May 22-24, 1987, were non-work days and on Monday, May 25, 1987, the Petitioner was absent from work due to an official holiday (8 hours) and authorized annual leave (2 hours). On June 5, 1987, the Respondent advised Petitioner by certified mail, return receipt requested, that he was being terminated effective May 20, 1987, (Petitioner's last day at work) for abandonment of his position. The Petitioner's absence from work and involvement with civilian authorities were related to an admitted alcohol problem. Since the Petitioner was released from jail, he has participated in a twenty-day in-patient substance abuse program at John F. Kennedy Hospital and is presently involved with a Fort Lauderdale after-care program. The Petitioner had been provided with a Department of Transportation Employee Handbook by his employers. The Handbook outlined the requirements for annual leave and leave of absences without pay. The Handbook provides in part as follows: Annual Leave - Get your supervisor's approval before taking leave. If an emergency develops, tell your supervisor of the emergency and ask verbal approval to use annual leave. When you return to work complete the leave request form, as appropriate. Leaves of Absence Without Pay - Upon request, you may be granted leave without pay ... for a period not to exceed twelve calendar months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: The Department of Administration enter a final order finding that the Petitioner, John C. Scott, has abandoned his Career Service position with the Department of Transportation. DONE and ORDERED this 16th day of October, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2750 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. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Adopted in Finding of Fact 3. Adopted in substance in Finding of Fact 3. Partially adopted in substance in Findings of Fact 5 and 6. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as contrary to the weight of the evidence. Rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as subordinate and/or unnecessary. Partially adopted in Finding of Fact 11. Matters not contained therein are rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 3, 5, and 6. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 1 and 2. Adopted in Findings of Fact 4 and 5. Adopted in Finding of Fact 11. Adopted in Findings of Fact 7 and 9. COPIES FURNISHED: Vernon L. Whittier, Jr., Esquire Hon. Kaye N. Henderson Department of Transportation Secretary Room 562 Burns Building Department of Transportation Tallahassee, Florida 32399-0450 605 Suwannee Street Tallahassee, Florida 32399-0458 Patrick J. Curry, Esquire Attn: Eleanor F. Turner, 200 Southeast Sixth Street M.S. 58 Suite 200 Ft. Lauderdale, Florida 32301 Adis Vila, Secretary Department of Administration Thomas H. Bateman, III, Esquire 435 Carlton Building General Counsel Tallahassee, Florida 32399-1550 562 Haydon Burns Bldg. Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times material to this proceeding, Petitioner was employed by Respondent and supervised by Wilson Yawn, Maintenance Engineer, Chipley, Florida. On April 15, 1985, Petitioner signed an acknowledgment receipt indicating that: (a) he had received an Employee Handbook; (b) it was his responsibility to review the Handbook; and (c) he was to request clarification, if needed, from his supervisor. Petitioner knew, or should have known, since the Handbook explained job abandonment, that unauthorized leave of absence could result in the loss of his job through abandonment. Petitioner was absent from work without authorized leave on August 17, 18, 19, and 20, 1987. At no time relevant to this proceeding was any type of leave requested by Petitioner, or granted by Respondent. Petitioner was formally advised by certified letter dated August 21, 1987 that Respondent considered him to have abandoned his job and to have resigned from the Career Service.
The Issue Whether Petitioner abandoned her position and resigned from the career service.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: Petitioner, Betty Pigatt, was employed by the Division of Driver Licenses, Department of Highway Safety and Motor Vehicles (Respondent) from February 22, 1983 until January 21, 1988. Petitioner injured her lower back in an automobile accident on April 17, 1985. She was previously disabled from a work related injury and was awarded prior temporary total disability benefits. She returned to work on June 5, 1987. Her condition became progressively worse and she again ceased work on June 27, 1987. Petitioner complained of pain in her lower back going down her left leg and into her foot. She had limited ability to stand and sit, and complained of pain and limitation of motion in her neck. Petitioner was treated by Dr. Rosabal who discharged her in late July, 1987. She thereafter was treated by Dr. William Bacon, who has treated her since August 17, 1987. By letter dated September 24, 1987, Petitioner was advised by Respondent's Division Director, James H. Cox, (Cox) that her request for leave without pay was granted beginning September 2 thru November 30, 1987. She was further advised that Respondent "requested that she send a Doctor's statement to Mr. Richard Weaver, Bureau Chief of Field Operations, explaining your medical condition and an approximate date of when you will be able to return to work". (Respondent's Exhibit 1). Petitioner was aware that she was to submit a letter of explanation of her medical condition from her physician. Petitioner failed to submit such a letter. Thereafter, Petitioner requested additional leave without pay and Cox advised Petitioner as follows: Your recent letter requesting additional leave without pay cannot be given favorable consideration until you furnish Mr. Richard Weaver, Bureau Chief of Field Operations, with a statement from your Doctor explaining your medical condition and an approximate date of when you will be able to return to work. Respondent, by its Acting Regional Director, Martha A. Castro, advised Petitioner by letter dated January 21, 1988, that her request for an extension of leave without pay had been denied and she was directed to report for duty at her assigned office at 7:00 a.m., on January 13, 1988. Petitioner did not report to work as directed on either January 13, 14, or 15, 1988. Respondent advised Petitioner by letter dated January 21, 1988, of Fred O. Dickinson, III, Deputy Executive Director of the Department of Highway Safety and Motor Vehicles, that as she had not reported to work for 3 consecutive work days, in accordance with Rule 22A-7.010(2), Florida Administrative Code, she was considered to have abandoned her position and to have resigned effective immediately. Petitioner had received maximum medical improvement and was requested to return to work as of January 13, 1988. (Respondent's Exhibit 6). Petitioner was familiar with her rights and obligations as an employee and was responsible for knowing the contents of the Driver License Examiner's Manual. On page 240 of the Examiner's Manual which was in use during Petitioner's employment is the requirement that leave without pay must be authorized by the Director of the Division of Driver Licenses. Petitioner did not obtain authorized leave without pay from the Director of the Division of Driver Licenses as required.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Final Order be entered finding that Petitioner abandoned her position and resigned from career service, and denying Petitioner's request that she be reinstated to her position of employment. DONE and ORDERED this 17th day of October, 1988, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1163 Rulings on Petitioner's proposed factual findings: Adopted as modified, paragraph 1, R.O. Adopted as modified, paragraph 9, R.O. Adopted as modified, paragraph 4, R.O. Adopted as modified, paragraph 5, R.O. Adopted as modified, paragraph 6, R.O. Adopted, last sentence paragraph 6, R.O. Adopted as modified, paragraph 7, R.O. Adopted as modified, paragraph 8, R.O. First sentence adopted and the remainder rejected as irrelevant. COPIES FURNISHED: Suzanne G. Printy, Esquire Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A432 Tallahassee, Florida 32399-0504 Betty Pigatt 1262 Northwest 172nd Terrace Miami, Florida 33169 Michael Alderman, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0500 Enoch Jon Whitney General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0555 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issues presented in this case concern the question of whether Respondent has abandoned his position as a Highway Maintenance Technician I employed by Petitioner.
Findings Of Fact Prior to January 23, 1990 Respondent had been employed by Petitioner as a Highway Maintenance Technician I. He was a permanent employee. He did not report to work on that date or upon subsequent dates for which he was obligated to report, those dates being January 24 through 26, 1990 and January 29, 1990. The reason he did not report was based upon his incarceration for indecent exposure. Jessie Calvin Rhoden, Highway Maintenance Supervisor II and the immediate supervisor to Respondent, testified that the members of his crew, to include Respondent, were responsible for calling no later than one hour before their time to report for work if they intended to be absent. This is in keeping with the policy of the Petitioner as announced in an excerpt page from that policy found as Petitioner's exhibit 4. The employee handbook containing the policy statement was received by Respondent prior to the days upon which he was absent. In particular he had received the employee handbook on April 20, 1983 as evidenced by his signature on a copy of the acknowledgment of receipt of the employee handbook which is Petitioner's exhibit 5 admitted into evidence. Rhoden did not approve leave prior to January 23, 1990 that pertained to the days upon which the Respondent was absent, nor did he approve of that leave at any time during the absence or after the absence. No other official with Petitioner gave approval for Respondent to be absent. Respondent's sister contacted Rhoden at 7:45 a.m. on January 23, 1990 and asked if the Respondent had reported to work. Rhoden told the sister that if the Respondent contacted her that the Respondent should call personally to request leave time. On the evening of January 24, 1990 the Respondent's father, Shirley Odell Richardson spoke with Rhoden and told Rhoden that whatever the problems were that the Respondent was experiencing, that Respondent would be back to work on Thursday, January 25, 1990. Previous to this occasion when the Respondent wished to have leave he would ask for that leave a week or two in advance of the time that he expected to be absent from his job, unless some emergency arose and in those instances Respondent would call and request leave at the time of the emergency. Alex Hamilton Slaughter is a Highway Maintenance Supervisor III, who is in line of authority the supervisor of Rhoden. Ordinarily it is his responsibility to approve leave for Respondent. He also had a conversation with Respondent's father, as he recalls on January 23, 1990 at which time the father stated that the Respondent had gotten into some form of trouble. The father said that the problem would probably clear up quickly and Respondent would be back at his job on January 25, 1990. In this conversation Respondent's father made known the fact that the Respondent was in jail. A further conversation was held between Slaughter and the father on Thursday or Friday afternoon of the first week of Respondent's absence at which time the father said that the problem had not cleared up, but he expected the son to return to work momentarily. Larry Collins is the Assistant Maintenance Engineer who is the supervisor of Slaughter. He oversees all operations of Petitioner's Ellis Road Facility in Jacksonville, Florida where Respondent was assigned. He identified that at the time the Respondent was absent it was not the policy of the Petitioner to approve leave for individuals who had been incarcerated. He gave two specific examples of that policy that had transpired prior to the circumstance of the Respondent. They are outlined in Petitioner's exhibits 1 and 2 related to Gary D. Smith and Gregory E. McCray respectively. Those individuals were incarcerated and were relieved of their employment based upon the fact that they missed work due to incarceration and were considered to have abandoned their jobs. This policy of the agency is an acceptable arrangement in the circumstances pertaining to Respondent. That is to say, Petitioner is not obligated to approve leave for persons who have been incarcerated. This is particularly true in the instance where Respondent has accepted the reason for his incarceration as being legitimate. Petitioner through Mr. Collins identified that the agency considers that incarceration is not grounds for mitigation of the circumstance and an excuse for the absence. He draws the contrast between that situation and one in which a person has been hospitalized wherein the employee would probably have leave approved. Petitioner's exhibit 3 is a copy of the time sheet of the Respondent during the relevant time period showing his absence without authorized leave. In his remarks at hearing Respondent identified the fact that he had been arrested on January 23, 1990. He stated that the authorities would not allow him to contact his parents and tell them that he was being arrested. Eventually he was allowed to make contact with his family which led to his father's conversations with Respondent's supervisors to explain the absence. The father had talked to the supervisors about allowing Respondent to take leave during the incarceration, but that request was not favored. In his testimony the father identified the fact that he had contacted the employer to make known and have them understand the reason for his son's absence. As the father established, his son was in jail for one and a half weeks because he could not make bail. He then served three weeks house arrest at which time he could have returned to his job; however, this was beyond the time that would have been acceptable for the Respondent to take up his duties again as viewed by the Petitioner. On January 30, 1990 a letter was sent to the Respondent identifying the fact that the Petitioner deemed him to have abandoned his job position. A copy of that letter may be found as Petitioner's exhibit 6. It refers to Rule 22A-7.010(2)(a), Florida Administrative Code, as grounds for the action. It identifies the fact that the Respondent had missed five days and forty hours of work through unauthorized leave. Respondent sought a hearing from the Secretary, State of Florida, Department of Administration and the case was referred to the Division of Administrative Hearings for disposition. This led to the final hearing that has been described.
Findings Of Fact Acco Mechanical Contractors, Inc. is a subcontractor in the construction of a regional juvenile detection center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services was in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of this project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between April 10, 1977 and October 16, 1977, Charles G. Mathis was employed by Acco Mechanical Contractors, Inc. as a plumber on this project and paid at the rate of $7.50 per regular time hour and $11.25 per overtime hour. Between October 16, 1977 and June 25, 1978, Mathis was employed on this project as a plumber and paid at the rate of $8.25 per regular time hour and $12.37 per overtime hour. The difference between the amount paid Petitioner for regular time hours worked and the prevailing wage is $2.50 per regular time hour during the period he was paid $7.50 an hour and $3.85 per hour for the period he was paid $11.25 for each overtime hour. The difference between the amount paid Petitioner for regular time hours and the prevailing wage was $1.75 for the period of time he was paid $8.25 for regular time hour and $2.73 for the period he was paid $12.37 for each overtime hour. The evidence conflicts concerning the number of hours the claimant worked. The Hearing Officer finds that the records of the Respondent Company, Exhibit 6, accurately reflects the number of regular and overtime hours the claimant worked on this project. Exhibit 6 reflects that the claimant worked 891.5 hours at a rate $7.50 an hour and 23 hours at the rate of $11.25 an hour, overtime. Exhibit 6 further reflects that the claimant worked 1,172 hours at a rate of $8.25 an hour and 76.5 hours at the rate of $12.37 per hour, overtime. The Petitioner was underpaid the amount of $2028.75 for regular time hours worked at the rate of $7.50 per hour; $2,051.00 for the hours worked at the rate of $8.25 an hour; $208.85 at the rate of $12.37 an hour; and underpaid $88.50 at the rate of $11.25 an hour, for a total of $4,577.10. Petitioner complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount paid for said hours. Said affidavit was filed within the time prescribed by statutes. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is presently withholding $5,844.56 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Recommendation Based upon the foregoing Findings of Fact anus Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $4,577.10 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 Charles G. Mathis 942 Montego Drive West Palm Beach, Florida 33406
The Issue Whether the decision to reject all bids for Lease No. 800:0187 is illegal, arbitrary, dishonest, or fraudulent under the provisions of Section 120.57(3), Florida Statutes, or violates the terms of the Request for Proposal.
Findings Of Fact Prior to May 17, 1999, the Department issued a RFP for office space seeking to lease approximately 14,420 contiguous square feet of space located in Broward County, Florida. This lease, designated 800:0187 in this record, was to run for a basic term of seven years with three two-year renewal options. The RFP specified the lessor was to provide full services and 60 parking spaces. In response to the RFP, the Petitioner, Sunrise, and Intervenor timely submitted proposals. The space proposed by Petitioner complied with the requirements of the RFP. Additionally, the Petitioner's submittal was well within the Department's acceptable rate range. On May 17, 1999, the Department issued an intended award to Sunrise for lease 800:0187. Sunrise was deemed the lowest responsive bidder. All objections to the award to Sunrise were resolved or withdrawn. For reasons not clearly documented in this record, the Department withdrew its decision to award the lease to Sunrise. The agency action, posted on June 12, 2000, some 13 months after the initial posting, stated Sunrise had not performed and recommended Lauderdale as the second-ranked entity that had responded to the RFP. Both Sunrise and the Intervenor timely filed protests to the proposed award to Lauderdale. The Petitioner filed motions with the Department to dismiss and intervene in those protests. As of the date of the final hearing in the instant case, the Department had not resolved or referred those protests to the Division of Administrative Hearings. Instead, on July 24, 2000, the Department issued a notice stating it would reject all bids for lease 800:0187 and rescind the award to Lauderdale. In reaching this decision, the Department stated it "cannot determine its space needs until after the pending Department reorganization is complete." If the Department was being "reorganized" such reorganization would have been known to the Department on June 12, 2000. No legislative or administrative action was taken to require reorganization between June 12, 2000 and July 24, 2000. The Department determined that its decision of July 24, 2000, rendered the June 12 award to Lauderdale moot. The Petitioner, Sunrise, and Intervenor challenged the agency's decision to reject all bids. Section M of the RFP provides, in pertinent part: The Department reserves the right to reject any and all proposals when such rejection is in the best interest of the State of Florida. Such rejection shall not be arbitrary, but be based on strong justification. (Emphasis in original omitted.) Subsequent to the protests of the rejection of all proposals, Perry Anderson, a regional administrator for the Department whose region encompasses Broward County, drafted a memorandum dated September 22, 2000, to address the number of leases and unit requirements for service areas of Broward County. The proposals set forth in the memorandum have not been resolved. As of the date of the hearing, the Department did not present any definitive statement as to its leasing needs for Broward County or how and why the submittals for lease 800:0187 could not address the agency's need. The Department has not presented documentation for any agency plan or statutory mandate to reorganize or decentralize the office space encompassed by lease 800:0187. If decentralization is required, the Department has presented no studies to determine the location, service areas, or numbers of clients for such offices. Studies for demographics, travel times, accessibility to public transportation, client case loads, or how reorganization would better address such issues have not been presented. Moreover, the Department has not demonstrated how decentralization would be inconsistent with the award of lease space as designated by lease 800:0187. The only justification for the rejection of all proposals for lease 800:0187 was the alleged reorganization of the Department. The Department presented no factual information as to how the "reorganization" related to an emerging philosophy supporting decentralization or improved services to the client population.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order rescinding its decision to reject all proposals for lease 800:0187. DONE AND ENTERED this 27th day of July, 2001, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish 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 27th day of July, 2001. COPIES FURNISHED: Brian D. Berkowitz, Esquire Scott Wright, Esquire Office of General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert A. Sweetapple, Esquire Sweetapple, Broeker & Varkas 165 East Boca Raton Road Boca Raton, Florida 33432 Daniel H. Thompson, Esquire Berger, Davis & Singerman 215 South Monroe Street Suite 705 Tallahassee, Florida 32301 A. Margaret Hesford, Esquire 5648 West Atlantic Boulevard Margate, Florida 33063 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This controversy involves an allegation by petitioner, William E. Bergen (Bergen or petitioner), that respondent, BellSouth Telecommunications, Inc. (BellSouth), refused to reasonably accommodate his handicap. BellSouth is an employer that employs fifteen or more employees and thus is subject to the Florida Civil Rights Act of 1992. BellSouth denies the allegation, and a preliminary investigation by the Florida Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. Petitioner began his employment with BellSouth (then known as Southern Bell) in 1979. He was initially stationed in the Metro Dade service area (greater Miami area) but six months later was transferred to the North Dade service area. While employed in South Florida, Bergen briefly worked as an outside plant technician but soon changed to the position of service technician. In that position, he was required to install and repair residential and business telephone lines. In May 1990, Bergen moved to Gainesville, Florida, which lies within the North Florida Division of BellSouth. After taking a test, he began working in operator services on July 13, 1990. An operator generally assists customers in placing calls, arranges credit for misdialed numbers, assists handicapped customers in dialing numbers, answers customer inquiries and performs other related tasks. At the Gainesville office, an operator sits or stands at one of a number of unassigned work stations, all having a standard size desk with a computer terminal and keyboard. At least two work stations have stand-up desks for those operators who choose to work in a standing position. All operators generally work a seven and one-half hour shift with one-half hour for meals. In Bergen's case, he usually worked the 3:30 p. m. - 11:30 p. m. shift. Except for Bergen, who stands six feet four and one-half inches tall, all other operators working in the Gainesville office were less than six feet. Thus, Bergen could not fit his knees underneath the standard size desk and the computer screens were not at eye level. Also, because his hands were so large, Bergen used an erasor rather than his fingers to key the keyboard. Until October 1992, petitioner says that, except for absences due to injuries to his lower back and eye, his attendance had been "perfect" over the prior 13-year period, and BellSouth did not dispute this contention. BellSouth has a Benefits Administration Department, which makes determinations regarding an employee's disability status, as well as decisions regarding any medical restrictions that will be imposed upon an employee after returning to work. In doing so, that Department relies upon the treating physician's notes and "quite often" it requires the employee to have a functional capacity evaluation performed. In some cases, the employee is required to have an independent medical evaluation performed by another doctor. Finally, the Department relies upon advice from its own in-house medical consultant, Dr. Barry Kern, who is board certified in occupational medicine. As will be recounted in subsequent findings, in making a decision as to petitioner's status, the Benefits Administration Department relied upon the doctor's notes, a functional capacity evaluation, an independent medical evaluation, three work site evaluations by occupational therapists, and input from its in-house medical specialist. In the latter part of October 1992, petitioner woke up one morning with his shoulder and neck "bothering" him. He continued to work that week but the condition became progressively worse. He eventually went to the emergency room at a local hospital on Friday, October 23, 1992. Petitioner was given pain medication and told to put his right arm in a sling. The following Monday, October 26, 1992, petitioner visited his family physician (Dr. Guillen) who believed he might be suffering from a pulled muscle. After returning to work, petitioner had his computer and keyboard moved to the left side of his desk so that he could rest his right arm on the desk and "key" the keyboard using his left arm. Petitioner continued working with his left hand until Thanksgiving Day, November 26, but went home that day because he says he "couldn't stand the pain anymore." He called in sick the next day and began a week's vacation the following Monday. In early December, petitioner visited a chiropractic physician, who recommended that an MRI be performed and that petitioner consult a neurosurgeon. Accordingly, petitioner had an MRI performed and on December 3 visited a Gainesville neurosurgeon, Dr. Freeman. He was told by Dr. Freeman that he had probable cervical disc disease (multiple level cervical spondylosis), a condition that causes pain in the neck area, and a possible herniated disc in the C-5 and C-6 area. In layman's terms, cervical spondylosis means arthritis of the neck and wear and tear on the discs and small joints of the neck. It is a degenerative condition that comes with age and produces bony growth in the spine that can put pressure on nerves in the neck. Dr. Freeman suggested petitioner undergo physical therapy on a twice-weekly basis. Bergen did so beginning December 10. Because of his ailments, petitioner was placed on short-term disability leave with pay from December 7 until January 8, 1993. This type of leave is required when an employee is absent from work due to illness or injury more than seven consecutive days. By January 5, 1993, Bergen was no longer experiencing any neck pain and he was able to "use (his) arms." Accordingly, he asked Dr. Freeman for permission to return to work. Dr. Freeman prepared a disability certificate authorizing Bergen to return to work effective January 11 and assume his "regular" work duties with no restrictions. When he returned to work that day, petitioner asked his second level manager, Rebecca P. Leynes, if he could be "loaned" from the operator services section to "outside forces" but Leynes declined to do so. Bergen then assumed his regular operator job duties. Because of pain in his arm and neck, however, he again went on short-term disability leave on January 20 and remained on leave with pay until February 3. During his absence, petitioner was treated by Dr. Freeman, who suggested that an occupational therapist evaluate his work site to determine what changes could be made to alleviate some of his discomfort. The therapist visited the work site on January 25 and prepared a report the same date. The report recommended that BellSouth provide an anti-glare screen, provide a larger swivel desk chair at least twenty-two inches high, raise the desk to at least thirty-two inches to accommodate Bergen's height, place the keyboard at a forty-five degree angle, and "provide use of an adequate standing table daily." Petitioner returned to work on February 3 and was told to use the stand-up position as an accommodation to his ailment. After a heated conversation with Leynes because no work station had been modified, Leynes advised him that the Gainesville operator services center was slated for two adjustable work surfaces but they were delayed for budgetary reasons since the center already had two stand-up positions. Leynes then proceeded to modify a stand-up work station for Bergen by raising the CRT, keyboard and multileaf to a height that she says was "comfortable to (petitioner)." She did this in part by placing six or seven reams of paper under the computer screen to raise it to eye level. Even so, Bergen left work early that day because of pain. The next day, a nurse in the Benefits Administration Department telephoned Leynes and advised her that if Bergen had a disability, federal law required that his work station be modified. During a telephone conference call with the nurse and Leynes on February 5, Leynes' supervisor stated that if the company ordered special furniture for Bergen, it would have to accommodate every employee who had an injury. He raised the possibility of "effect(ing) a job change" for Bergen and changing the job requirements for an operator to exclude all persons over six feet. Finally, he told the nurse to advise her Department that he did not want to order the special equipment and set a precedent. On February 4 petitioner again visited Dr. Freeman, who agreed to prepare a note suggesting that certain medical restrictions be imposed. The note stated that, based upon the therapist's recommendations and Dr. Freeman's own evaluation, petitioner should "be placed in a work environment where he can frequently change positions," the computer terminal should be placed at eye level, his chair should be raised high enough to allow partial weight bearing by the lower extremities, and "the keyboard should be positioned so as to avoid continued cervical flexion and rotation while operating the keyboard and viewing the terminal screen simultaneously." Dr. Freeman also recommended that Bergen be allowed ten minute breaks every thirty minutes during working hours. This note was faxed by Dr. Freeman to the Benefits Administration Department. The same day, Bergen telephoned a representative of that Department, Kathy Green, who told him a ten minute break was "excessive" but he would be authorized to take five minute breaks every thirty minutes. Petitioner returned to work on February 5 and 6 and was counseled for poor attendance by his immediate supervisor. On those two days, he was given five-minute breaks every thirty minutes. On Monday, February 8, however, Leynes terminated the breaks since she says the Benefits Administration Department had never sanctioned them. When Bergen's union representative made a suggestion to Leynes that Bergen work only four hours per day, Leynes replied that such a restriction would have to come from his doctor. The next day, February 9, petitioner visited Dr. Freeman and obtained a "disability certificate" with the following restriction: "pt to work only 4 hours per day" in "light" as opposed to regular work duties. In a follow-up letter prepared on February 10, Dr. Freeman also suggested that BellSouth investigate the possibility of changing petitioner's job duties to provide him more mobility and less stress. The same day, a BellSouth nurse who observed Bergen at work commented that he was working in an incorrect job because of his size. The certificate of disability was given to Leynes, who referred it to the Benefits Administration Department for evaluation. That Department advised Leynes that such a restriction was not a "reasonable accommodation" under the Americans with Disabilities Act, it would reduce the productivity of the employee, and she should not honor the restriction. After returning to work on February 11 for one day, petitioner took "excused time and vacation days" and was absent for six days. During this absence, he had a second MRI taken which reconfirmed his earlier diagnosis. On February 17, he returned to work. On February 18, he left work due to pain and was taken to the emergency room of a local hospital. On the same day, he was given a written disciplinary warning by Leynes for unimproved attendance. In conjunction with a worker's compensation claim filed by Bergen against BellSouth on February 18, he prepared an affidavit which stated in part that "(o)n February 9, 1993, my desk was raised eight inches. My computer, keyboard and chair were not raised." A copy of the affidavit was given to Leynes. While absent on and off between February 3 and February 25, he continued to be paid on what is known as temporary partial disability. On February 23, Dr. Freeman prepared another letter recommending that petitioner refrain from working at his current operator job until he could be evaluated by an orthopedic surgeon for reconstructive surgery versus continuation of conservative therapy. This letter was given to Leynes. As it turned out, the orthopedic surgeon agreed with the continuation of conservative therapy as previously recommended by Dr. Freeman, and this opinion is embodied in a letter from the surgeon dated March 18, 1993. Finally, on March 1, 1993, Bergen's personal physician prepared a letter stating that prolonged standing by Bergen had caused "significant varicosities and leg edema" which would get worse without measures to correct the prolonged standing. With the approval of the Benefits Administration Department, Leynes began making modifications and ordering new equipment in order to accommodate petitioner's disability. Specifically, on February 9 the desk at one operator position was raised to thirty-two inches, a chair with a higher seat and larger seat pad was obtained as an interim measure, and a new, special adjustable chair was ordered on May 5. A glare-proof screen was obtained on February 16, the computer terminal was raised by placing several reams of paper under it, and the keyboard was placed at a forty-five degree angle. Finally, BellSouth created a modified stand-up position specially fitted for petitioner to allow him to alternate between a sitting and a standing position. Because these changes had not been completed by late February, and Bergen had missed his employer-arranged appointment with an ergonomics specialist as a follow-up to evaluate the changes to the work station, Bergen continued to be paid while on leave in February. On March 2, 1993, petitioner filed a complaint of discrimination with the Commission alleging that (a) he was disciplined for absences relating to his disability, (b) he was denied reasonable accommodation in his position, and (c) he was discriminated against due to his disability and sex. In his petition for relief filed on September 22, 1993, however, he alleged only that BellSouth "did not make requested medical modifications or adhere to (his) medical restrictions like they have for other employees with disabilities in (his) department." As clarified by counsel at hearing, petitioner now contends that BellSouth failed to reasonably accommodate his handicap, which prevented him from working a regular, full-time job. After the initial complaint of discrimination was executed by petitioner on February 25, 1993, he completely stopped working. At that time, Bergen was offered the opportunity to work only four hours per day, but he declined this offer saying he wanted to be paid disability leave for the other four hours and could not afford a part-time job. Thereafter, Bergen continued to be paid for his first seven days of absence, but he was then placed on furlough, which is a non-pay code, since he was not authorized by the Benefits Administration Department to be on sick leave. While absent from work in March, Bergen obtained a statement from a physical therapist recommending that he change his work position every thirty minutes and be granted a ten minute break twice an hour. In early April 1993, petitioner was at risk of being dropped from the payroll due to his excessive absences. Pending further medical evaluation, and the opportunity to fully assess petitioner's medical condition, and perhaps motivated by the discrimination complaint, BellSouth decided to temporarily loan Bergen to its engineering department where he served as an engineering clerk from April 12 until November 1993. Prior to then, BellSouth had not seriously explored whether there were other positions to which petitioner could be transferred. In any event, this satisfied petitioner's earlier request that he be temporarily placed in another job which allowed him to be more mobile. During one week in July, however, Bergen temporarily worked half a day as an operator and the other half as an engineering clerk. By then, the modifications to the work station were in place. Afterwards, Leynes asked for his comments on the work station modifications and Bergen complained that his operator desk was still not high enough, the computer screen was not at eye-level, and the keyboard needed to be moved. Also, there was no longer a standing position available for him. At the recommendation of Dr. Freeman, on August 18, 1993, petitioner was given an independent medical evaluation by Dr. Oregon K. Hunter, Jr., who specializes in clinical medicine rehabilitation. His diagnosis was cervical spondylosis without evidence of myeleopathy and possible bilateral cervical radiculopathy, which corresponded to Dr. Freeman's diagnosis. Because Dr. Hunter was unable to assess the modifications to Bergen's work station, he recommended that a further evaluation of Bergen's work station be made by an occupational therapist, and until that time, he be given "continued alternate duty." Also, he concluded that Bergen "will eventually be able to return to his operator duties, however, he may continue to experience pain and radicular symptoms even in a modified work station." BellSouth honored Dr. Hunter's recommendation and continued to allow Bergen to work as an engineering clerk pending the outcome of the work site evaluation. On September 24, 1993, a work site evaluation was conducted by an occupational therapist who evaluated the best suited position for Bergen given his height and the appropriate placement of the video display terminal (VDT). The therapist recommended that when Bergen returned to his work station, the following modifications be made: Two reams of paper be kept under the VDT: A neoprene wrist support be provided to the leading edge of the table work surface on which Bergen could rest his forearms; and A foot rest be provided to allow Bergen to rest his feet. This report was forwarded to the Benefits Administration Department, and copies were also given to Drs. Freeman, Hunter and Kern. In early November 1993, the Benefits Administration Department determined that petitioner was medically capable of performing in his job as an operator with the workplace modifications suggested in the most recent work site evaluation. That decision was made in consultation with Dr. Kern, who reviewed the medical information regarding Bergen, including the results of the independent medical examination by Dr. Hunter. Accordingly, on November 11, 1993, Leynes advised petitioner by letter that beginning November 28, 1993, he would be reassigned to his regular position in operator services. The letter noted that BellSouth had made the following accommodations: An adjustable sitting position with VOT height and wrist rest additions specified in the job analysis; A chair ordered specifically for his frame size; A foot rest; A glare-proof screen for his video display terminal; and Use of a standing position as needed for his comfort. The letter added that those accommodations would allow him to perform his job without special hours or work breaks. Petitioner was officially reassigned to his operator position on November 28, 1993. Because Bergen used vacation leave, his first day back at work was actually on December 18, 1993. Three days later, Bergen says he again started "having problems," and the same day he visited Dr. Freeman who prepared another disability certificate certifying that petitioner could only return to "light" work duties subject, however, to the restrictions as outlined in the physical abilities assessment performed on March 30, 1993. The earlier assessment had recommended part-time, light duties. When the certificate was presented to Leynes, she said she could not honor those restrictions since the Benefits Administration Department had not approved the same, and he must continue working a full tour. Because of continuing complaints by Bergen, BellSouth made arrangements for a functional capacity test to be given on December 28, 1993, by the Medical Rehab and Sports Medicine Center in Jacksonville to determine if permanent medical restrictions or limited work hours were appropriate. The report's assessment concluded in part that Bergen was functional to return to work within his demonstrated capacities; restricted heavy to very heavy labor category with unrestricted positional tolerances, although sitting as well as prolonged upper extremity forward reaching produces the greatest amount of pressure on the disc. His symptoms would be likely to increase with these positions/job tasks. In plainer terms, this meant that because petitioner's job category (operator) was considered "light," and the assessment indicated that Bergen could perform a job in the heavy labor category without restrictions, he could return to a modified work station without restrictions. In an addendum to the report issued on February 28, 1994, it was pointed out that "stationary static positions can result in limited flow of fluid through spinal facet joints and disc resulting in stiffness and decreased nutrition to joints and discs." Also, a recommendation was made that Bergen "frequently change position as frequently as possible, (i. e., every 30 minutes) and maintain an active exercise program." Otherwise, there was no impediment to Bergen assuming his regular duties. A copy of this report was given by BellSouth to Dr. Freeman, who was asked to consider the report in light of his most recent disability certificate prepared on December 21, 1993, and petitioner's continuing "complaints," even after modifications to his work station had been made. Based upon the results of this latest test, Dr. Hunter concluded in a letter dated March 15, 1994, that petitioner should "be released to work based on the level of function that he demonstrated within that evaluation." In a second letter dated March 29, 1994, he concurred with a recommendation of Dr. Freeman that "job duties which require the use of (petitioner's) arms held in an extended position would probably exacerbate his symptoms and this would best be modified appropriately." As clarified at hearing, Dr. Hunter explained that petitioner should not extend his arms straight out while working, and he could not sit in one place continuously for hour after hour without being able to change positions. With proper ergonomic modifications and a certain degree of mobility, however, Dr. Hunter was of the opinion that petitioner could assume his regular job responsibilities without exacerbating his condition. Dr. Hunter further concluded that the physical condition was permanent, and that petitioner would likely experience pain the rest of his life, no matter what he did at work. Although Dr. Freeman continued to recommend ten minute breaks every hour "if possible," he basically concurred in Dr. Hunter's ultimate recommendation and deferred to that doctor's judgment in terms of restrictions and limitations. At the same time, Dr. Kern concluded that ten minute breaks every hour are not medically necessary because petitioner's problem is in the neck and only neck mobility is required. According to Dr. Kern, petitioner has aggravated his condition by using improper work techniques at his work station, such as sitting with his arms outstretched. If this technique is corrected, petitioner should eliminate many of his problems. On March 2, 1994, the Benefits Administration Department advised Bergen by letter that in view of the various medical evaluations and modifications to his work site, permanent medical restrictions, including a ten minute break every thirty minutes, were not appropriate. It is noted that since December 1993, Bergen had been given ten minute breaks every thirty minutes even though such breaks had not been approved by the Benefits Administration Department. The letter added that this conclusion was based on the fact that he "demonstrated no inability to function in a heavy duty job, let alone a sedentary job such as (his) present assignment." This information was reconveyed to Bergen in a meeting with Leynes on March 28, 1994. At the time of hearing, BellSouth had only four operator vacancies in Gainesville and no vacancies in that office's engineering department. This is because there is relatively little employee turnover in the Gainesville office. Since 1993, petitioner has had on file requests (bids) to transfer to a position as an outside plant technician in Daytona, Gainesville, and Lake City, engineering clerk in Gainesville, and service technician in Gainesville. However, none of these positions have been open. In April 1994 the company offered to transfer Bergen to a vacant service technician position in Dade County but he declined to accept a transfer to that location. Since March 9, 1994, and through the time of hearing, all of Bergen's absences from work have been without pay and coded as "FMLA" (Family Medical Leave Act). Under that federal law, which became effective on February 5, 1994, covered employees are authorized absences due to medical reasons of up to ninety days without pay. Therefore, by now, petitioner's authorized absences have probably ended. In challenging the accommodations offered him, Bergen asserts that other BellSouth employees, all of whom happen to be female, were given accommodations consistent with the recommendation of their doctors after suffering injuries and illnesses. Such accommodations included part-time work and reassignment to other jobs within the company. All of these cases, however, are distinguishable from Bergen's situation. For example, Patricia Peres, formerly an operator but now a sales representative, received special accommodations after she suffered three ruptured discs and misaligned her pelvic area in an automobile accident in May 1989. Because of the severity of these injuries, Peres was absent from work for two months and then worked on a part- time basis for two weeks after returning. She reinjured her neck in another automobile accident in February 1994. At her doctor's request, and without requiring a second medical opinion, BellSouth allowed Peres to work only half days and take a five-minute break every thirty minutes until she fully recuperated. Another operator, Judy LaSalle, had surgery in 1991 on her arms due to Degarian's disease and was forced to wear casts for five months on both arms from shoulder to wrist. After she returned to work, BellSouth agreed to her doctor's suggested weight lifting limitations, it placed ergoarms on her desk to rest her arms, and it allowed her to work a four-hour shift the first week, a six-hour shift the second week, and a seven and one-half hour shift the third week. Also, it authorized her to take work breaks every thirty or forty-five minutes. She is now back to work full time without restrictions. Petitioner also noted that a former operator, Rosemary Jackson, was given medical restrictions in 1992. In that case, the employee had Crohn's Disease (an enlargement of the intestines) which necessitated numerous restrictions, and Jackson died a short time later. Finally, Linda Davis, a service representative, had a rheumatoid arthritis bilateral hip and was unable to climb stairs to her permanent job. Because of this condition, she was temporarily loaned for five months to another department where she was able to work on the ground floor. Although Bergen continues to experience some degree of pain, his latest functional capacity evaluation places him in the "very heavy labor" category without restrictions. This means that he can engage in that category of work without medical restrictions. As a consequence, his present ability to engage in major life activities, such as work, is not substantially limited by his medical condition. In some measure, however, he does not enjoy the full and normal use of his physical facilities, and Dr. Hunter has established that the condition is permanent. Therefore, under this latter test, Bergen is a person with a handicap.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 22nd day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER 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 22nd day of July, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5814 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 15. 4. Covered in conclusions of law. 5-7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11. Partially accepted in finding of fact 7. 12-13. Partially accepted in finding of fact 3. 14. Partially accepted in finding of fact 8. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17-18. Partially accepted in finding of fact 9. 19. Partially accepted in finding of fact 11. 20. Partially accepted in finding of fact 12. 21. Rejected as being unnecessary. 22-23. Partially accepted in finding of fact 12. 24. Partially accepted in finding of fact 13. 25-26. Partially accepted in finding of fact 12. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in finding of fact 13. 30. Partially accepted in finding of fact 15. 31. Partially accepted in finding of fact 13. 32. Partially accepted in finding of fact 16. 33-34. Partially accepted in finding of fact 17. 35. Partially accepted in finding of fact 15. 36. Rejected as being unnecessary. 37. Partially accepted in finding of fact 17. 38. Partially accepted in finding of fact 1. 39. Partially accepted in finding of fact 20. 40-42. Partially accepted in finding of fact 21. 43-44. Partially accepted in finding of fact 24. 45. Partially accepted in finding of fact 45. 46-47. Partially accepted in finding of fact 23. 48. Rejected as being cumulative. 49. Partially accepted in finding of fact 18. 50. Partially accepted in finding of fact 23. 51. Partially accepted in finding of fact 26. 52. Rejected as being unnecessary. 53. Partially accepted in finding of fact 26. 54-58. Partially accepted in finding of fact 28. 59. Partially accepted in finding of fact 30. 60-62. Partially accepted in finding of fact 29. 63. Rejected as being unnecessary. 64. Partially accepted in finding of fact 30. Respondent: Partially accepted in finding of fact 2. Rejected as being unnecessary. Partially accepted in finding of fact 7. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Partially accepted in findings of fact 4 and 6. Partially accepted in findings of fact 8 and 14. Partially accepted in finding of fact 17. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. Partially accepted in findings of fact 20 and 21. Partially accepted in finding of fact 25. Partially accepted in finding of fact 16. Partially accepted in finding of fact 26. 15-16. Partially accepted in findings of fact 23 and 24. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 George F. Schaefer, Esquire The Liberty House 1005 S. W. 2nd Avenue Gainesville, Florida 32601-6116 Paul T. Stagliano, Esquire Stephen T. Breaux, Esquire Suite 4300 675 West Peachtree Street, N. E. Atlanta, Georgia 30375
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 =================================================================
The Issue Whether Petitioner, Anthony McFarlane, was overpaid in the amount of $978.69 as a result of utilizing more administrative leave than that to which he was entitled.
Findings Of Fact Petitioner was an employee of the Agency's Central Office during the pay periods of February 14, 2014, to February 27, 2014; February 28, 2014, to March 13, 2014; and March 14, 2014, to March 27, 2014. Although the exact dates of Petitioner's employment by the Agency are unknown, he was also employed by the Agency and its predecessor entities prior to, and subsequent to, those dates for a total of approximately eighteen years. Petitioner retired from the Agency on April 4, 2014. Petitioner, prior to his retirement, attempted to use the surplusage of leave time he had accumulated for which he would not be compensated upon retiring. The Agency uses the People First system for the submittal of employee time sheets and tracking of individual employees' accrued paid leave time. The system maintains the amount of Annual Leave, Sick Leave, and Special Compensation Leave available to each individual employee. Further, although Sick Leave can be used at any time, Annual Leave cannot be used until Special Compensation Leave is depleted. Administrative Leave--Other is not maintained on an individual level and employees are not automatically prohibited from using more Administrative Leave--Other than that to which they are entitled nor are they required to deplete their Special Compensation Leave prior to using Administrative Leave. Administrative Leave--Other is made available to employees only in special circumstances such as an office closure due to a hurricane, plumbing leak, or air conditioner failure, or an unscheduled paid holiday authorized by the Governor. During the pay period of February 14, 2014, to February 27, 2014, Petitioner used sixteen hours of Special Compensation Leave (Code 0055) and sixteen hours of Sick Leave (Code 0052). During the pay period of February 28, 2014, to March 13, 2014, Petitioner used seventy-two hours of Administrative Leave-- Other (Code 0056). No special circumstances entitling Petitioner to take Administrative Leave--Other hours occurred during this pay period. During the pay period of March 14, 2014, to March 27, 2014, Petitioner used five hours of Special Compensation Leave (Code 0055) and seventy-five hours of Annual Leave (Code 0051). In February of 2015, the Office of the Inspector General published an audit of the Agency's human resources practices at its Central Office. The audit showed that seventy-two hours of Annual Leave were miscoded as Administrative Leave--Other, resulting in a $1,059.84 leave balance overpayment. The Agency then determined that Petitioner was the individual whose Annual Leave time had been miscoded as Administrative Leave--Other and had therefore been overpaid $1,059.84. After adjusting the amount for taxes and benefits withheld, the Agency concluded that the amount overpaid directly to Petitioner was $978.69. During the hearing, Petitioner for the first time realized and admitted that in his attempt to deplete his Special Compensation Leave before using his Annual Leave, he made an error in using Code 0056 (Administrative Leave--Other) when he intended to use Code 0055 (Special Compensation Leave).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner repay $100.00 per month to the Agency until the $978.69 balance is repaid in full. DONE AND ENTERED this 5th day of June, 2015, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2015. COPIES FURNISHED: Kurt Eric Ahrendt, Esquire Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Anthony McFarlane 7971 Northwest 11th Street Plantation, Florida 33322-5158 David De La Paz, Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Barbara Palmer, Executive Director Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed) Richard D. Tritschler, General Counsel Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 (eServed)
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes (2016), by failing to secure the payment of workers' compensation coverage, as alleged in the Second Amended Order of Penalty Assessment; and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. Respondent sells roof coating and provides installation services in the Bradenton, Florida, area. The Investigation On April 20, 2015, the Department received a public referral that Respondent was operating without a roofing license or workers' compensation coverage. The case was assigned by the Department to Compliance Investigator Germaine Green ("Green"). Green first checked the Florida Department of State, Division of Corporations, Sunbiz website to verify Respondent's status as an active corporation. Green then checked the Department's Coverage and Compliance Automated System ("CCAS") to see whether Respondent had a workers' compensation policy or any exemptions. An exemption is a method in which a corporate officer can exempt himself from the requirements of chapter 440. See § 440.05, Fla. Stat. CCAS is the Department's internal database that contains workers' compensation insurance policy information and exemption information. Insurance providers are required to report coverage and cancellation information, which is then input into CCAS. Green's CCAS search revealed that Respondent had no coverage or exemptions during the relevant period. Because Green was not aware of any specific job site at which Respondent was working, she issued a Business Records Request ("BRR") No. 1 to Respondent seeking records for an audit period of January 1, 2015, through April 29, 2015, to determine compliance. Respondent provided payroll records and bank statements. Respondent's president, Felecia Bly ("Bly"), contacted Green and described the nature of the business as a roof coating business that sells a sealant that coats roofs to seal leaks and extend their longevity. Bly explained that Respondent used commissioned salesmen to review the county assessor's website to determine the square footage of a residence. The salesman then contacted property owners to determine whether they experienced leaks and offered the product and installation. The salesmen did not go on the roofs. Respondent considered its salesmen independent contractors to whom they issued IRS Forms 1099. Respondent used subcontractors to perform the installations. According to Respondent, these workers had their own businesses or exemptions. Respondent also used the services of part-time workers for a short period that addressed and sent post cards marketing Respondent's business. Based on her conversation with Bly, Green determined that the business should be categorized as "roofing," which is classified as National Council on Compensation Insurance ("NCCI") class code 5551 and is considered a type of construction activity under Florida Administrative Code Rule 69L-6.021(2)(cc). Green also determined Respondent was non-compliant with the obligation to secure workers' compensation coverage for its workers. The corporate officers did not have exemptions, and several individuals, identified as sales and roofing subcontractors, did not have their own businesses or exemptions and, therefore, were employees. Petitioner did not issue a Stop-work Order because Respondent came into compliance on June 22, 2015, by securing exemptions for the corporate officers. Petitioner issued a BRR No. 5 for additional records from July 1, 2013, through June 21, 2015, to make a penalty calculation for the two-year period of non-compliance. Penalty Calculation The Department assigned Penalty Auditor Christopher Richardson ("Richardson") to calculate the penalty assessed against Respondent. Richardson reviewed the business records produced by Respondent and properly identified the amount of gross payroll paid to Respondent's workers on which workers' compensation premiums had not been paid. Richardson researched Respondent's corporate officers and Respondent's subcontractors to determine those periods when they were not compliant with chapter 440 during the audit period. Richardson determined that Respondent was not compliant for the period of June 22, 2013, through June 21, 2015. Respondent's compliant subcontractors (those with their own workers' compensation insurance or exemptions) were not included in the penalty. The business records ultimately produced by Respondent were sufficient for Richardson to calculate a penalty for the entire audit period. The initial OPA was in the amount of $257,321.16. After receiving and reviewing additional records supplied by Respondent, an Amended OPA was issued in the amount of $51,089.52. After a deposition of Bly's assistant, Sueann Rafalski ("Rafalski"), who provided additional details regarding those individuals and businesses identified in the Amended OPA, a 2nd Amended OPA was issued on July 18, 2016, in the amount of $43,542.16. During the hearing, Respondent disputed a few items that the Department subsequently voluntarily removed in the 3rd Amended OPA. The Department's Motion for Leave to Amend Order of Penalty Assessment was granted on September 29, 2016. Respondent disputed the inclusion of referral fees to Hicks and Campbell, a customer reimbursement payment to Robert Nyilas, payment to House Medic for work done on the Bly's home, and a loan repayment to the Bly's son, Brian Bly. The Department correctly removed any penalties associated with Hicks, Campbell, Robert Nyilas, House Medic, and Brian Bly. The Department also removed $14,200.00 from the penalty that Respondent disputed as repayments toward a $150,000.00 loan from its corporate officers. Respondent continues to dispute the penalty calculation for all others identified in the 3rd Amended OPA, except for the inclusion of the payment to Unexpected Blessings. For the penalty assessment calculation, Richardson consulted the classification codes listed in the Scopes® Manual, which has been adopted by the Department of Financial Services through rules 69L-6.021 and 69L-6.031. Classification codes are assigned to various occupations to assist the calculation of workers' compensation insurance premiums. Richardson assigned the class codes based on information provided by Bly. Richardson then utilized the corresponding approved manual rates for those classification codes and the related periods of non-compliance. Richardson applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)l. and rules 69L-6.027 and 69L-6.028 to determine the penalty. Penalty for the Blys Respondent admits that during the audit period, the business did not carry workers' compensation insurance coverage, and its corporate officers, Glenn and Felecia Bly ("the Blys"), did not have workers' compensation exemptions. Because neither Mr. nor Mrs. Bly was engaged in the application of the roofing materials, the Department correctly assigned class code 8742, for sales and marketing, to them. However, the Department miscalculated the gross income of the Blys. Respondent provided check stubs and its accountant's itemization of payments to the Blys, which constituted repayment of loans from Respondent to the Blys. No evidence to the contrary was presented to indicate these sums were anything other than loan repayments. The Department erroneously included these sums in its calculation of gross payroll to the Blys. Although the Department made a $14,000.00 deduction from gross income for the Blys during this period as "loan repayments," no explanation was provided regarding how this sum was ascertained and why the Department disregarded the information of Respondent's accountant showing repayments during the relevant period in the amount of $19,200.00. The Department obviously accepted the testimony of Bly that, in fact, a portion of what the Department previously concluded was gross income to the Blys, was rather repayments for loans made to Respondent. Accordingly, in the absence of any evidence by the Department of how it parceled out which portion of money paid to the Blys constituted wages and which portion was loan repayments, the Department failed to demonstrate clearly and conclusively that the penalty associated with payments to the Blys is accurate.2/ Penalty for Postcard Mailers Three women, Meghan Saulino, Kimberly Kalley, and Stacy Boettner, were identified by Bly as independent contractors she hired to address and mail postcards for Respondent. According to Bly and Rafalski, these workers were college students who did the work at home, on their own time, and were paid by the job. This arrangement did not last long because the women did not like the work, and the task was transferred to Minuteman, a printing and copying business. These women are included in the Second Amended OPA and are assigned class code 8742 for sales and marketing. Respondent contends they should not be included because they were not employees. No evidence was presented to refute that these three women were merely casual workers whose duties (addressing and mailing postcards) were not in the course of the trade, business, profession, or occupation of Respondent (selling and installing roof coating). Accordingly, the amount included in the penalty for their work, $78.18, should be excluded from the 3rd Amended OPA. Penalty for Commissioned Salesmen Respondent contends that its commissioned sales people are all independent contractors who performed jobs for others. These salespeople included Kevin Kalley, Robert Patton, Gino Barone, Scott De Alessandro, Scott Black, and Tim Paige. However, no evidence was presented of the independent contractor agreements for these individuals, certificates of exemption for them for the penalty period, or evidence that these individuals owned their own businesses. As such, the Department was correct in including the amounts received by the salespeople as gross income for purposes of the penalty calculations. Penalty for Roof Coating Installers Respondent similarly argues that its roof coating installers were independent contractors. The roof coating installers included Bill Boettner, owner of Unexpected Blessings who did not have an exemption during the penalty period, and his business, Unexpected Blessings. Again, no evidence was presented of certificates of exemption for the penalty period or evidence that Unexpected Blessings had coverage. As such, the Department was correct in including the amounts received by the roof coating installers as gross income for purposes of the penalty calculations. Penalty for Other Independent Contractors Respondent argues that Rafalski and Bobby McGranahan ("McGranahan") should not be included in the penalty calculation because they were independent contractors not directly associated with Respondent's business. Rafalski was hired by Bly to help with personal errands and to respond to the audit which serves as a basis for this action. McGranahan is alleged to have run errands for the roof coating installers and acted as a handyman for Respondent before becoming a salesperson for Respondent. It is undisputed that Rafalski and McGranahan performed duties directly related to Respondent's business. Although Rafalski testified at her deposition that she considered herself an independent contractor, it was clear she worked on-site and was the individual most familiar with Respondent's business operations and internal accounting practices. McGranahan's duties, of shopping for supplies for the roofing installers, and then selling for Respondent, were directly related to Respondent's business. No evidence was presented demonstrating that either Rafalski or McGranahan owned their own business or had an exemption. Accordingly, they were properly included in the Department's 3rd Amended OPA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order assessing a penalty against Respondent in the amount of $34,552.20. DONE AND ENTERED this 12th day of October, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 12th day of October, 2016.
