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 for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.
The Issue The issues to be resolved in this proceeding concern whether the Respondent has committed an act of employment discrimination by totally reducing the employment hours of the Petitioner, such that the Petitioner was constructively discharged and whether such action was on account of his race, in the manner proscribed by Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Lavon A. Baker, was employed by the Respondent at a convenience store which operated in Jackson County, Florida, at times pertinent hereto. He performed various jobs involving cooking, cleaning, cashier duties, checking and maintenance of inventory at the "Jr. Food Store" involved. His employment record is without blemish, having no disciplinary incidents on his record with that employer, the Respondent. The Petitioner's immediate supervisor and employment decision-maker was Dina C. Bonine, the manager of the store involved. The Respondent, Jr. Food Mart of America, Inc., is a corporation headquartered in Jackson, Mississippi, which owns and operates convenience stores in various locations, employing more than 15 employees. The Petitioner is a black man. He was employed at the Respondent's store until October 1992 with no difficulties with his employer. His work record was good and free of disciplinary incidents. Beginning in early October 1992, he began to have his hours of employment per week reduced in number. This became a problem for him because he was earning insufficient income to meet his monthly expenses. He discussed the possibility of obtaining a second job so that he could earn sufficient income, but his supervisor, Ms. Bonine, advised him that he had to work "at her convenience" and would risk termination if he took a second job. Upon his hours of employment at the Respondent's place of business being reduced to approximately 8-10 hours per week, he was forced to take a second job at the Pizza Hut. He began working at the Pizza Hut for 28 hours per week at the minimum wage rate of $4.65 per hour, beginning in March of 1993. Although his supervisor, Ms. Bonine, cautioned him against taking a second job at the risk of being terminated from his job with the Respondent, she allowed a white female employee, Becky Baxter, and a white male employee named "Bobby", who were more recently hired than the Petitioner, to get additional hours of employment, while the Petitioner's hours were being reduced. At the same time, she allowed these two white employees to work at a second job with another employer, as well. Both Ms. Baxter and "Bobby" had been discharged by the Respondent, or Ms. Bonine, in the past, but had been rehired by her and given preferential treatment, in terms of working hours and accommodation of a second job, which treatment was not accorded to the Petitioner. In fact, Ms. Baxter worked in a second job at the Pizza Hut at the same time the Petitioner did, but received the overtime hours formerly given to the Petitioner at the Respondent's place of employment, while the Petitioner's hours were cut to nothing. The Petitioner testified that "she was already at 40 hours and she just got more". These employees, hired since the Petitioner, got all the working hours they wanted from the Respondent and convenient working time schedules, as well, compared to the Petitioner's hours. Ultimately in April of 1993, the Petitioner's working hours were totally eliminated and therefore his employment was effectively terminated. Upon taking the second job at the Pizza Hut, his employer at that facility allowed him to schedule his hours at the Pizza Hut so that he could still obtain all of the working hours he needed at the Respondent's facility. Nevertheless, his hours were constantly reduced by Ms. Bonine to the point that, in April, he had no hours scheduled for several weeks, effectively resulting in his termination. Debra McDaniel is a home health aide and certified nursing assistant. She is a friend of the Petitioner, and when he lost his automobile due to his reduced working hours and reduced income, she often transported him to and from his job. She therefore was able to observe on several occasions the work schedule placed at the Respondent's facility. She observed, for several weeks at a time, that the Respondent had given the Petitioner no working hours. She testified that Ms. Bonine told the Petitioner that she would post a new schedule with his working hours on it, but that never occurred. This observation was made sometime in April of 1993. Ms. McDaniel's testimony thus corroborates that of the Petitioner. Up until the first of October of 1992, the Petitioner earned $160.00 per week at the Respondent's employment facility, without overtime hours calculated in that figure. There is no evidence of what he earned in terms of overtime hours. His employment hours at the Respondent's facility were reduced to 8 hours per week by March 1, 1993. At that point in time, he took the job at Pizza Hut at 28 hours per week at a rate of $4.25 per hour. He worked at that job at Pizza Hut at the rate of 28 hours per week until the end of November, 1993. He was out of employment and looking for work until December 18, 1993, when he became employed with "Seminole Outdoors", at the rate of $5.00 per hour for 32 hours per week. He remained with that employer at that rate until February 28, 1994, when he resigned to return to school full time. He is in a law enforcement education program at Chipola Junior College. The Respondent adduced no evidence in this proceeding and failed to appear. The notice of hearing was issued on April 11, 1994 and served on the Respondent at its address of record, as previously mentioned in the above Preliminary Statement.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations finding that the Petitioner has established that he is a victim of employment discrimination in the form of constructive discharge, following discriminatory reduction of his hours of employment, and opportunity to hold non-conflicting outside employment, all on account of his race, and that he be reinstated in his position with the Respondent and awarded back pay in an amount reflective of the above Findings of Fact and Conclusions of Law. DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 10th day of August, 1994. COPIES FURNISHED: Mr. Lavon A. Baker Post Office Box 1276 Sneads, FL 32460 Ms. Cheryl Little Administrative Assistant Jr. Food Mart of America, Inc. P.O. Box 3500 Jackson, MS 39207-3500 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Petitioner is capable of returning to suitable gainful employment through vocational services, as proposed by Respondent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Katherine L. Cronk, who sustained an on-the-job injury, challenges a preliminary decision by Respondent, Department of Labor and Employment Security, Division of Workers' Compensation (Division), that she is able to return to employment in the same field in which she suffered an injury. Cronk contends that due to surgery on both hands for bilateral carpal tunnel syndrome, and recurrent pain and swelling in her hands, she cannot return to the same type of work. As relief, she has asked that she be given an opportunity to enter the Division's retraining program to obtain new job skills for another type of employment. At the present time, she is driving a limousine on a part-time basis to avoid further injuries to her hands and to provide income since her workers' compensation benefits have been terminated. Petitioner, who graduated from high school in 1977, and received vocational training in the field of civil engineering, worked in hand drafting until 1990. At that time, she began working in computer-assisted drafting and design (CADD) for a Jacksonville engineering firm, Prosser, Hallock, and Kristoff. On February 19, 1997, she sustained a workers' compensation injury and was treated by Dr. Steven Lancaster for bilateral carpal tunnel syndrone. On November 7, 1997, she reached maximum medical improvement with a nine percent permanent impairment rating. She was assigned permanent work restrictions by Dr. Lancaster which included: May frequently lift and carry up to ten (10) pounds with occasional lifting and carrying up to twenty (20) pounds. Restrictions on repetitive hand activities (simple grasping, pushing/pulling and fine manipulation) can do some of this to a mild degree - to pain tolerance. In a follow-up report issued on December 8, 1997, Dr. Lancaster noted that Petitioner should not do "repetitive typing or keyboard activities." In his latest medical report dated January 27, 1999, he stated that "recommendations and limitations are unchanged from before and need to restrict on repetitive movements/keyboarding, etc." In order to be eligible for Division services, an injured employee must be "medically stable," must have reached maximum medical improvement, and must have assigned medical limitations. Petitioner had met all of these criteria when she first contacted the Division's office in Jacksonville, Florida, by telephone on December 3, 1997. She requested information regarding the services that the Division provided. Petitioner was instructed to attend an orientation on December 18, 1997. A screening process was then begun on January 28, 1998. When Petitioner approached the Division, she was under the impression that the Division would provide her with a "retraining program." This impression was probably the result of conversations with a former co-worker, Mike Meadows, who had also been injured on the job and had received approval to complete, at Division expense, the necessary course work (54 hours) for his engineering degree at the University of North Florida. The Division, however, essentially provides a "return- to-work" program for injured employees, rather than a program for a career change. This is accomplished in one of three ways. First, if the employee has good transferable skills and limitations which permit him or her to return to the workforce and to gain suitable employment, the employee is returned to work through a direct placement. Alternatively, the Division may contract with an employer to provide the employee with on-the-job training for a specific job. Finally, if the first two options are not viable, the Division will consider providing the employee with formal training and education. Under this latter alternative, the insurance carrier for the employer is required to pay temporary total rehabilitation payments (equaling approximately 2/3 of the prior average weekly wage) to the injured employee to cover living expenses during the retraining period, for a maximum of 52 weeks. When a counselor first spoke by telephone with Petitioner on December 3, 1997, Petitioner indicated that she "[thought] she [could] do CADD," and she would like "the opportunity of trying to return to work." In a follow-up meeting with David E. Miller, a counselor, on February 27, 1998, Petitioner expressed an interest in being trained as a psychotherapist. On March 27, 1998, Petitioner was given a series of tests designed to identify potential careers in which she might be successful. She had mainly flat clusters, which meant she had no special interest in any vocation. After the final medical reports were received, the Division held a "staffing" in May 1998 for the purpose of determining employment opportunities. Because her former employer did not have an open position, the Division referred Petitioner to Jerry Albert, a certified vocational evaluator under contract with the Division who assists injured employees in finding suitable gainful work. At that time, Miller advised Albert that there was voice- activated software (VAS) for CADD systems, and it might be "something worth exploring" given Petitioner's medical limitations, her years of experience in the field, and the Division's goal of returning her to work. When Petitioner and Albert first met on July 6, 1998, Petitioner expressed a desire in becoming a private investigator. Albert arranged a job interview with a private investigator, and Petitioner was offered an on-the-job training position. However, she declined the offer. After several more meetings with Petitioner that same month, Albert issued a Vocational Evaluation on July 27, 1998, in which he recommended that Petitioner return to suitable gainful employment in some aspect of CADD, using VAS equipment and training paid for by the Division. The Division adopted this recommendation in its proposed agency action issued on August 13, 1998. Petitioner disagreed with this proposal and has initiated this proceeding to contest that action. Petitioner basically fears that a return to CADD will cause her to suffer even more injuries to her hands. While she concedes that she can do "a minimal amount of computer work," Petitioner contends that, given her medical restrictions, she cannot return to CADD work, even with VAS, because of the hand work required by CADD. Instead, she has asked that she be allowed to enroll at Florida Community College at Jacksonville and pursue a degree in business management. She then intends to use her degree in operating a limousine service. At the time of hearing, she had not formulated a specific business plan for such a business, nor was there any competent evidence that a two-year degree was a prerequisite to successfully starting and operating that type of business, or that another limousine service is even needed in the Jacksonville area. Absent this type of information, the Division would be less than prudent in agreeing to pay for a college education. Unfortunately, Dr. Lancaster did not testify in this proceeding (either live or by deposition) so that he could explain the exact restrictions he had in mind for Petitioner when he prepared his reports. Petitioner asserts that in her consultations with Dr. Lancaster, he specifically forebade her to return to any type of keyboarding. This interpretation of the limitations is found to be the most logical and reasonable since Petitioner suffers from pain and swelling in her hands even after minimal amounts of keyboarding. On the other hand, the Division interprets the medical restrictions as permitting Petitioner to return to some aspect of CADD, using VAS. On this issue, Dr. Lancaster does state, rather clearly, that Petitioner should engage in "no . . . repetitive typing," which supports Petitioner's assertion. Therefore, the undersigned finds that Petitioner is medically restricted from engaging in any type of repetitive typing or keyboarding. In addition, Petitioner's testimony that she cannot tolerate the duties of her former job has been accepted as being the most credible on this issue. As noted above, she now experiences pain and swelling whenever she utilizes a keyboard for even a short period of time. Also, she cannot write for long periods of time without extensive pain. Indeed, she indicated that it took her hours just to complete a multi-page letter to the Division. The Division points out, however, that when she performed a five-minute manual speed and dexterity test for the Division, she completed the test with remarkable speed and accuracy. After the test, though, Petitioner suffered pain and swelling in her hands for several days. Petitioner established that even if she is trained at Division expense in VAS for CADD, she still must use graphics, an essential part of CADD, which requires that she use her hands to make drawings and other renderings. Given her present limitations, this is not practicable. At the same time, VAS does not eliminate all of the repetitive keyboarding. Even the Division concedes that, at best and without considering graphics, VAS would eliminate no more than eighty percent of repetitive keyboarding. Given these circumstances, to recommend that Petitioner focus on an area of CADD where she could maximize voice-recognition is not realistic and would be contrary to Dr. Lancaster's recommendation. Therefore, it is found that when considering Petitioner's physical restrictions, a return to work in the CADD area is "employment that is [not] reasonably attainable." Another return-to-work alternative is more appropriate. At hearing, Albert concluded that, based upon his study of VAS and Petitioner's medical limitations, it was feasible for Petitioner to return "to some aspect" of CADD. This conclusion was based upon his interpretation of the medical limitations, which has been rejected above, and other considerations. Among these was a single testimonial he found in the Internet by a resident of Alaska who had successfully returned to her cartography job using VAS. He also relied partly upon conversations with several Jacksonville area employers who indicated they would "consider" someone for a CADD position who utilized VAS. Since none had ever hired an injured employee using VAS, there is no indication whether such an arrangement has been sucessful. Further, there is nothing of record to show the amount of hand work required for each of those positions. Albert further relied in part on information obtained from sellers of VAS, all of whom have an obvious self-interest in promoting their products. These shortcomings undermine the credibility of his assessment. Finally, Albert was critical of Petitioner's vacillation on career goals in the short time since her injury. This is understandable, though, given the fact that Petitioner has suffered a career-ending injury and must now enter a new field of employment in mid-life.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a final order determining that Petitioner cannot be returned to her original job due to permanent medical restrictions, and that she is entitled to further Division services for placement in a specific job through on-the-job training, or if that alternative is not feasible, that formal training and education for a new career be considered. DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 23rd day of March, 1999. COPIES FURNISHED: Katherine L. Cronk, Esquire 2051 Southhampton Road Jacksonville, Florida 32207-8733 Nancy Staff Slayden, Esquire Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 Mary Hooks, Secretary Department of Labor and Employment Security Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a Hispanic male. Respondent is an 860-unit apartment complex in Ocala. Petitioner was employed by Respondent as a full-time maintenance technician from 2001 through September 28, 2007. His job responsibilities included performing repairs and general maintenance work on the insides of the apartments. Petitioner’s starting wage in 2001 was $9.00 per hour. He received annual raises from 2001 to 2004, at which point his wage was $11.75 per hour. Petitioner did not receive any raises from 2004 through 2007. He was still earning $11.75 per hour when he was fired on September 28, 2007. Starting in 2004, Respondent did not give raises to any maintenance technicians who were not HVAC-certified. This policy applied equally to all maintenance technicians, including non-Hispanics, and was intended to encourage them to get HVAC- certified. HVAC certification was important to Respondent because the air conditioning systems at the apartment complex were getting older and were requiring more frequent repairs. Respondent provided the necessary study materials for the HVAC certification exam and paid for the exam. Petitioner is not HVAC-certified. He took the certification exam once, but he did not pass. He did not take the exam again, even though Respondent would have paid for him to do so as it did for other maintenance technicians. HVAC certification is not required to perform all types of work on air conditioners, and Petitioner continued to do some work on the air conditioners at the apartment complex after 2004 even though he was not HVAC-certified. Petitioner was characterized as a “fair” employee who did “okay” work. His supervisor, a Hispanic male, testified that there were some jobs that he did not assign to Petitioner, that Petitioner frequently got help from other employees, and that he received a couple of complaints from other maintenance technicians about Petitioner’s work. Respondent does not have an employee handbook, and the only written policy that Respondent has is a policy prohibiting sexual and other harassment. Respondent’s executive director, Laura Smith, testified that she expected employees to use “common sense” regarding what they can and cannot do at work. Respondent utilizes a system of progressive discipline, which starts with warnings (oral, then written) and culminates in dismissal. However, the nature of the misconduct determines the severity of the discipline imposed, and a serious first offense may result in dismissal. On October 5, 2006, Petitioner was given an oral warning for “improper conduct” for visiting with a housekeeper multiple times a day for as long as 20 minutes at a time. The housekeeper also received an oral warning for this conduct. On May 15, 2007, Petitioner was given a written warning for the same “improper conduct,” i.e., wasting time by going into an apartment to visit with a housekeeper. Petitioner acknowledged receiving these warnings, but he denied engaging in the conduct upon which they were based. His denials were contradicted by the more credible testimony of his supervisor and Ms. Smith. Petitioner was fired on September 28, 2007, after a third incident of “improper conduct.” On that day, Petitioner left the apartment complex around 10 a.m. to get gas in his truck. He did not “clock out” or get permission from his supervisor before leaving the apartment complex. Petitioner was away from the apartment complex for at least 15 minutes, but likely no more than 30 minutes. Even though Respondent does not have written policies and procedures, Petitioner understood, and common sense dictates that he was supposed to get his supervisor’s approval and “clock out” before he left the complex on a personal errand. Petitioner also understood the procedure to be followed to get the 14 gallons of gas per week that Respondent provided for maintenance technicians. The procedure required the employee to get the company credit card from the bookkeeper, get the gas from a specific gas station, and then return the credit card and a signed receipt for the gas to the bookkeeper. Petitioner did not follow any aspect of this procedure on the day that he was fired. He had already gotten the 14 gallons of gas paid for by Respondent earlier in the week. Petitioner’s supervisor, a Hispanic male, compared Petitioner’s actions to “stealing from the company” because he was getting paid for time that he was not at the apartment complex working. He also expressed concern that Respondent could have been held liable if Petitioner had gotten in an accident on his way to or from getting gas because he was still “on the clock” at the time. Petitioner testified that he and other maintenance technicians routinely left the apartment complex to fill up their cars with gas without “clocking out” or getting permission from their supervisor. This testimony was corroborated only as to the 14 gallons of gas paid for each week by Respondent. There is no credible evidence that other employees routinely left the apartment complex to do personal errands without “clocking out,” and if they did, there is no credible evidence that Respondent’s managers were aware of it. There is no credible evidence whatsoever that Petitioner’s firing was motivated by his national origin. His supervisor is Hispanic, and he and Ms. Smith credibly testified that the fact that Petitioner was Hispanic played no role in her decision to fire Petitioner. Petitioner claimed that he was “harassed” by Ms. Smith and that she accused him of having sex with a housekeeper in the vacant apartments. No persuasive evidence was presented to support Petitioner’s “harassment” claim, which was credibly denied by Ms. Smith. Petitioner also claimed that he was disciplined differently than similar non-Hispanic employees, namely James Stroupe, Jason Head, and Willie Hutchinson. Mr. Stroupe is a white male. He worked on the grounds crew, not as a maintenance technician. In May 2007, Mr. Stroupe was given a written warning based upon allegations that he was making explosive devices at work, and in September 2007, he was given an oral warning for “wasting time” by hanging out in the woods with Mr. Head. Mr. Head is a white male. He worked on the grounds crew, not as a maintenance technician. In September 2007, he received a written warning for “wasting time” by hanging out in the woods with Mr. Stroupe. Mr. Hutchinson is a white male, and like Petitioner, he worked as a maintenance technician. In September 2007, he was arrested for DUI. Mr. Hutchinson was not disciplined by Respondent for this incident because it did not happen during working hours and it did not affect his ability to perform his job duties as maintenance technician. The grounds department (in which Mr. Stroupe and Mr. Head worked) was responsible for maintaining the landscaping around the apartment complex, whereas the maintenance department (in which Petitioner and Mr. Hutchinson worked) was responsible for maintaining the insides of the apartments. The departments had different supervisors. Petitioner was initially denied unemployment compensation by Respondent after he was fired, but he successfully appealed the denial to an Appeals Referee. Petitioner received unemployment compensation through April 2008. On April 11, 2008, Petitioner started working for Holiday Inn as a maintenance technician. He is employed full time and his wage is $11.50 per hour. Respondent placed an advertisement in the local newspaper after Petitioner was fired in order to fill his position in the maintenance department. The advertisement stated that Respondent was looking for an applicant who was HVAC-certified. Respondent hired Javier Herrera to fill the position. Mr. Herrera, like Petitioner, is a Hispanic male.
Recommendation Based upon the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 16th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 September, 2008.
Findings Of Fact The Other Eligibility Criteria The Petitioner is a corporation formed in 1984, whose sole stockholder, only Director, and President is Kathleen Weber, a minority person. Respondent, Department of General Services (DGS) concedes that Petitioner corporation meets all eligibility criteria for certification as a Minority Business Enterprise (MBE) except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility in this regard hinges on the employment of "25 or fewer permanent full-time employees." Petitioner engages in the provision and installation of plumbing, HVAC ventilation, fire protection, process piping, and potable and waste water systems in the commercial construction field. Permanent, Full-time Employees Ms. Weber claims no part-time employees and considers all employees to be full-time. That is, all employees work, when they work, for a full forty hours per week. However, Ms. Weber classifies her employees, as of date of formal hearing, into two categories of full-time employees: office employees and field employees. Petitioner asserts that the office employees are permanent, while the field employees are not permanent. At the time of the hearing, petitioner had twelve permanent office employees whose positions included Ms. Weber, six project managers, accounting and estimating personnel, and clerical help. Office employees are paid for holidays, sick leave and vacation, and insurance. They are paid a salary on a monthly basis. They are covered by written corporate employment policies. The number of field employees fluctuates between sixty and ninety. Their number and makeup are determined on an "as needed" basis, depending upon the securing by petitioner of a construction contract upon which they can be employed, the size of the "job" and the stage of completion of each job undertaken by Petitioner at any given time. As individuals, these employees do not work on a guaranteed, regular, or predictable basis. The corporation does not have or display any written employment policies concerning them. Sometimes, field employees are hired through a labor company. Usually, as with most non- union construction companies, they are hired upon word of mouth, reputation, and as they present themselves at the job. Field employees are paid only for the hours that they actually work. They may be moved from job to job to accommodate the schedule on each job and to avoid Petitioner laying off personnel that may be needed again soon. Their pay scale ranges from $6.00 to $14.00 an hour with $8.00 being an average. Field employees' wages are set by Bob Pacitti, the head project manager. When a man in the field feels that he is entitled to a raise and asks for it, then a form is filled out by a superintendent who gives it to Bob Pacitti who approves or disapproves the raise. Final approval of a wage increase is made by Ms. Weber. There is no set beginning wage for field employees. Their hourly rate depends on the experience of the worker, the type of work, how badly an employee is needed, add if there is a labor crunch or not. There is no set review period for deciding whether a field employee is entitled to a raise. Field employees are not paid for sick time, holidays, or vacation time. The company designates a field worker, who is called a "foreman" for each job in progress. The "foreman" telephones on a daily basis to the office personnel to inform them of the time worked for all field workers on his particular job/site. After working for the company for one month, field employees are eligible to join the major medical group health insurance plan. The employee is automatically put on the insurance and the company pays the premium for an individual employee. Once an employee has stopped working for two weeks, he is taken off the insurance, retroactive to the last day he worked, and sent a letter indicating that he can assume the insurance premium payment himself through petitioner. Although there is no direct-testimony to that effect, it can be inferred from Ms. Weber's testimony that the health insurance premium for the company is somehow calculated on a regular basis to anticipate at least some number of continuously, employed field employee positions. Two separate payroll ledgers are generated by petitioner: one for field employees and one for office employees. Superintendents Frank Llama and Don De Silva are included in the field employees' weekly computerized payroll but are nonetheless considered by Ms. Weber as permanent employees. The monthly office employee payroll is done by hand. There were about ninety field employees on the last field employee payroll before the date of formal hearing. As of the date of formal hearing, Petitioner was working on twelve projects. The twelve projects have a contract amount ranging from $123,000 to $6,200,000, which may last from a few months to almost two years. The total contract amount for the twelve contracts is in excess of $14,000,000. Each project is assigned one of the six project managers who oversee the job. Frank Llama is a superintendent who is in charge of field operations. He travels from job to job making sure that things are done the way they are supposed to be done Don De Silva performs the same supervisory function, but his work is generally limited to supervision of the air conditioning aspects of the projects. There were thirty-three individual field employees (not counting superintendents Llama and De Silva) who were listed on the applicant's payroll as of 6/19/86 who were also listed on the last payroll for 1986. These employees were continuously employed throughout that time frame. There were twenty-two individual field employees (not counting Llama and De Silva) who were listed on the Petitioner's first payroll for the year 1987 and who were also listed on the last payroll for 1987. Most of these field employees were continuously employed by Petitioner for all or a significant part of that year. There were forty-seven field employees (not counting Llama and De Silva) who were listed on the first payroll for 1988 and who were also listed on the 9/08/88 payroll. Some non-supervisory field employees were employed continuously from one year to the next, and a few were continuously employed for all or the better part of the two or three years. Each had federal income and FICA taxes deducted from his salary while employed by Petitioner. During 1986, 1987, and the first two quarters of 1988, the Petitioner reported the following number of office and field employees on the initial Florida Employer's Quarterly Wage and Tax Report, for Florida Unemployment Compensation purposes: 1986 1987 1988 Jan. 77 74 97 Feb. 1st 91 79 105 March 93 81 107 April 116 96 96 May 2nd 117 98 96 June 108 105 96 July 127 122 August 3rd 100 122 Sept. 106 112 Oct 91 108 Nov. 4th 74 110 Dec. 68 110 Petitioner's gross receipts in the fiscal year ending March 31, 1986, were $5,702,138. Its gross receipts for 1987, $3,466,926. Its gross receipts for 1988, were $3,917,190. Non-Rule Policy Petitioner's initial application for MBE certification was deemed incomplete by DGS. The application did not respond to the question that says, "state-the number of current, full-time, permanent employees ", on page 3 of the Certification Application Form 1704. It did not give the name, home address, home telephone number and length of service for each current, full-time, permanent employee on an attached sheet of paper, also as required by the application form. It did not attach a copy of one or more of the following items: W-4 Social Security form for each current full-time employee. The most current Florida Quarterly Unemployment Report. The most current Federal Annual Unemployment Report. (R-13) Ms. Weber filled out only the questions relating to minority status. By letter dated December 15, 1988, Ms. Weber was requested to provide this information by Lloyd Ringgold, Minority Business Assistance Labor Employment and Training Field Representative of the Minority Business Enterprise Office. By letter dated December 23, 1986, Ms. Weber replied, "Falcon Mechanical, Inc., has 22 full-time, permanent employees. Ms. Weber also included an employee roster showing a list of twenty- two employees. When that employee roster was submitted to the MBE office, twelve of the employees on that roster were paid on a monthly basis and ten were paid on a weekly basis. At the time of the hearing, the applicant no longer employed eight warehouse employees from that roster, who had been paid on a weekly basis. (See Finding of Fact 11). Without needless elaboration, it is found that Mr. Ringgold and Ms. Weber did not have a meeting of the minds when, during an on-site interview, he requested her to define "full-time employee" and "permanent employee." Her responses then are not inconsistent with her testimony at formal hearing nor with the facts as found supra. Petitioner's President clearly always viewed the field employees as a transient, very flexible, changing labor force who were not office personnel and who did not individually work on both a regular and a predictable basis, whether they worked 40 hours a week in stretches or not. DOS personnel, however, did not understand her responses at the interview this way and applied what Mr. Ringgold thought Ms. Weber meant to both of the Petitioner's payroll ledgers to reach the conclusion that Petitioner employed more than twenty-five permanent full-time employees. DOS does not have a duly promulgated rule defining the term "permanent employee" which is a crucial component of the element, "permanent full-time employee," within the statutory MBE criterion "small business' which is here at issue. DOS also has no written statement of its policy with regard to such a definition but it asserts it has an unpublished, not publicly declared definition or method for determining the number of permanent full-time employees. DOS admittedly did not explicate, announce, or publish this method to Petitioner or anyone else. When an agency makes such an assertion, it must explicate and demonstrate the reasonableness of its non-rule policy on a case- by-case basis. MacDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977); Florida Medical Center v. Department of Health and Rehabilitative Services, 463 So.2d 380 (Fla. 1st DCA 1985). This is a heavy burden, and the non-rule policy does not have the presumption of validity which is afforded formally promulgated agency rules. Barker v. Board of Medical Examiners, 428 So.2d 720 (Fla. 1st DCA 1983). From the testimony of Lloyd Ringgold, and the testimony of his supervisor, Marsha Nims, DGS Employment and Training Manager, it was established that DGS uses the information provided by the applicant on the application form, the Employer's Quarterly Wage and Tax (Unemployment) Reports, and other employee records to initially consider whether an applicant employs twenty-five or fewer permanent full-time employees. What formula, if any, is applied at that stage of agency review, other than a general discussion between DOS employees, was not fully explicated at formal hearing. However, after the first stage of review, if the reviewer has a question as to whether an applicant has more than twenty- five permanent full-time employees, DOS then conducts an on-site interview as it did in this case and relies on the applicant's definition of "permanent" and "full-time" employee given in that interview. The reasoning behind this approach by the agency is apparently that someone within DOS believed such an approach to be the fairest method for judging MBE applicants who represent diverse types of businesses, not all of which businesses are susceptible of easy analysis. No non-speculative rationale was advanced for this method of defining "permanent, full-time employee." This method has built-in external inconsistency and subjectivity as between applicants and is subject to manipulation and control by every applicant. Moreover, as the foregoing findings of fact demonstrate, ordinary conversational misunderstandings subject the method to internal inconsistencies in actual practice. The method/policy does nothing to apply presumed agency expertise to a program the agency is mandated by statute to administer. The method also was not demonstrated to conform with any generally recognized MBE or employment planning and reporting considerations. Therefore, DOS failed to explicate its non-rule policy and failed to demonstrate its reasonableness.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's request for certification as a Minority Business Enterprise be DENIED. DONE and ENTERED this 24th day of February, 1989, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 24th day of February, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 87-1950 The following constitute specific rulings pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF 1-3,5. Accepted in substance but not adopted where subordinate, unnecessary, or cumulative to the facts as found or never at issue. 4,7. Accepted. 6. Rejected as a FOF: covered in conclusions of law (COL). 8-9. Rejected as mere statements of position or argument. To the extent they address the evidence presented and are contrary, they are rejected for that reason. The non-rule policy is addressed within the RO and FOF made therein that conform to the greater weight of the evidence as a whole. 10-16. Accepted in substance but not adopted as cumulative, subordinate, and unnecessary to the facts as found. 17-18. Rejected as cumulative, subordinate, and unnecessary to the facts as found and portions are also mere argument or statement of position. 19. Accepted as Petitioner's classifications only. The second sentence is modified to conform to the relevant and material evidence as a whole. Respondent's PFOF 1-14. Accepted in whole or in substance except where subordinate, unnecessary, or cumulative. A portion of PFOF 3 has been rephrased so as not to constitute an ultimate conclusion of law. Mere recitations of testimony have been rejected as-such. 15-20. Generally accepted; what is rejected is rejected as contrary to the evidence, cumulative in part, and in part as mere recitations of testimony. Further explanation and rulings are contained within the RO itself. 21-23,25. Accepted in substance, modified to clarify or conform more closely to the record evidence as a whole. 24. Accepted in substance but conformed to the greater weight of the evidence as a whole in FOF 15. During year 1987, Respondent does not state that employees Budgett and Ocasio were not employed for a significant number of pay periods and seems to have confused Ruben Ocasio (59415) and Jose Ocasio (59400) throughout the pay periods as well as with regard to the first and last payrolls. In 1988, Figueroa and Zager were not employed for a significant number of pay periods. The Hearing Officer has read composite exhibit 6 with diligence and has conformed the FOF to the evidence, without cumulative verbiage. COPIES FURNISHED: Gerald G. Sternstein, Esquire MacFarlain, Sternstein, Wiley & Cassedy, P.A. Suite 600 First Florida Bank Bldg. Post Office Box 2174 Tallahassee, Florida 32316-2174 Sandra D. Allen, Esquire Office of General Counsel Department of General Services 200 East Gaines Street Room 452 Larson Building Tallahassee, Florida 32399-0955 Ronald W. Thomas Executive Director Department of General Services 133 Larson Building Tallahassee, Florida 32399-0955
The Issue Whether Respondent discriminated against Petitioner in its employment practices contrary to Chapter 760, Florida Statutes.
Findings Of Fact Respondent produces drawn and extruded aluminum products. Petitioner was hired as a saw operator in the Drawn Tube Department in 1997. Her supervisor was Sherry Hontz. Petitioner was promoted to Quality Auditor Technician in a different department in August of 1998. Her supervisor was Nick Newinski. On December 14, 1998, Petitioner complained to Roger Penn, the Plant Manager, about sexual harassment on the job. Penn told Petitioner to take her complaint to Joe Roberts, the Human Resources Manager. At Roberts' request, Petitioner provided him with a handwritten complaint. Petitioner complained that two co- workers had called her derogatory names, "Boom Boom" and "Big Tits," and had started rumors of alleged sexual relationships she was having with co-workers. She also complained that her former supervisor, Sherry Hontz, had been unfair to her after Petitioner dated a former boyfriend of Hontz. Petitioner stated that she was humiliated by the name-calling and rumors. Roberts investigated the complaint, and interviewed nine employees, in addition to Petitioner. All those with whom Roberts spoke had been identified by Petitioner in her written complaint. Based upon his investigation, four employees, Don Carver, Sherry Hontz, Frank Small, and Carolyn Whitecloud, received written reprimands on December 21, 1998, for either the use of offensive names, gossiping, or failing to stop the conduct. The letter to Whitecloud, the operations manager for drawn tubing, specifically cautioned her as the manager to ensure that no retaliation, direct or indirect, was taken against Petitioner. Petitioner felt that Roberts' investigation was over- broad and touched on her personal life more than was necessary; however, there was no evidence of this beyond her allegations. Roberts retained, in accordance with his standard practice, Petitioner's complaint and the notes of his investigation in a file separate from Petitioner's personnel file. In what may have been retaliation, two female co- workers complained to Roberts that Petitioner had rubbed her breasts against a male employee. Roberts interviewed the male employee, who denied the allegation, and Roberts took no further action. In 2000, Troy Turlington, a male, complained to Roberts that Petitioner had made a sexual comment to him, but was adamant that he did not want any action taken. Roberts made a confidential record of the complaint. There was no evidence that Roberts investigated the allegation or took any action against Petitioner. Following the official reprimands from Respondent, no one made sexual comments in Petitioner's presence, although there were "whisperings" and other indications of co-worker displeasure with Petitioner's complaint and the outcome. Petitioner stated that she did not have as much opportunity to earn overtime following the reprimands; however, this was not demonstrated. Petitioner did not complain again to management of being subjected to name-calling or of retaliation. As a quality control technician, Petitioner occasionally placed holds on material that she determined did not meet specifications. This was part of her assigned duties. However, this frequently upset the production personnel, who were frequently disrespectful and made snide remarks about her competence. Her supervisor, Newinski, reviewed her work on one occasion and instructed her to pass the material. Petitioner disagreed with Newinski, and refused to remove the hold she had placed on the parts over her own signature. Newinski and Moreno, a higher-level manager, discussed her actions, which they deemed insubordination. Petitioner felt that she was being placed in an unfair position and was not supported in her determination by management. There was no evidence this was retaliation related to her prior complaint or was otherwise discriminatory. Newinski and Moreno counseled Petitioner on another occasion for spending time socializing with the other employees when she was supposed to be working. Petitioner did not agree with this characterization of her actions. Again, this was not shown to be discriminatory. In early March 2000, Petitioner declined to discuss with Newinski an incident involving another employee engaging in lifting heavy materials by himself, which Petitioner viewed as a potentially dangerous situation. The employee's direct supervisor, Sherry Hontz, arrived at about that time, and Petitioner let her handle the matter without raising the issue with Hontz. She testified that Newinski's inquiry was vague and she did not feel inclined to mention matters unless he could be more specific about the incident. Newinski and Moreno sought Roberts' involvement to force Petitioner to discuss the incident. Petitioner refused to go to Roberts' office, and was suspended from work. Petitioner presented testimony that indicated that she had spoken with the head of the company, Al Styring, who had indicated that she should take up issues involving her employment to David Black, the vice president of Human Resources, at a level above Roberts. Although Roberts testified that he did not know about this, Petitioner's contention was not rebutted. Petitioner complained that following her complaint of sexual harassment she was not considered for promotions. Respondent offered evidence that Petitioner was considered for promotions; however, persons with greater experience were promoted to these positions. This was not shown to be discriminatory. On March 27, 2000, Petitioner slipped in a bathroom while at work and sustained soft tissue injuries. Petitioner received treatment from various health care providers during the course of her recovery, to include, Dr. Green, Dr. Noran, and Dr. Pham. Eight days after the injury, on April 4, 2000, Petitioner's treating physician released her to return to work on light duty with no bending and no lifting greater than fifteen pounds. Respondent returned her to light duty work within these limitations; however, she suffered severe pain from leaning over and could not do the work. The medications that she was prescribed made her groggy and lethargic, and dizzy. Although Petitioner wanted to return to work and Respondent wanted to bring her back to work, Petitioner could not perform the duties available and needed more time to heal. On May 23, 2000, Petitioner's physician again released her to return to work with the specific restriction of no overhead lifting and no lifting over ten pounds. Petitioner was unable to lean over and measure the materials required. She complained to Newinski, who assigned her to completing paper work. Again, after one day at work, Petitioner was unable to continue. Respondent presented evidence that it eliminated her job on July 13, 2000 after she had been on medical leave for over twelve weeks. This, however, conflicts with its records that show Petitioner was not terminated until August of 2001. Neither of these actions was communicated to Petitioner. It can only be concluded that Petitioner's employment status remained unchanged, although her job slot had been eliminated. On November 13, 2000, Dr. Noran released Petitioner to return to work with restrictions based upon Petitioner reaching maximum medical improvement. Her restrictions at that time limited overhead work and limited cervical flexion. On November 13, 2000, Petitioner met with Wayne LaPierre, the safety and environmental manager, to discuss her limitations. She indicated that she was still having trouble bending over and working. LaPierre felt that the doctor's restriction of "limited cervical flexion" were not in line with her complaints of pain while working bending over. He requested the workmens' compensation insurer, Fireman's Fund, to obtain a clarification from Petitioner's treating physician. Fireman's Fund advised LaPierre that it had tried unsuccessfully on many occasions to obtain a clarification from Dr. Noran. No effort was made with Fireman's Fund to have Petitioner assessed by an occupational therapist or otherwise intervene to establish the practical limits of her condition. Respondent's efforts centered on having Petitioner obtain this information from the same physician(s) with whom Fireman's Fund had been unsuccessful. This continued until August of 2001. On August 13, 2001, Petitioner dismissed her workmens' compensation action, and on August 27, 2001, Respondent officially terminated Petitioner without having resolved her job limitations, although it did not communicate this to Petitioner.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the FCHR enter its order dismissing Petitioner's Amended Petition for Relief. DONE AND ENTERED this 26th day of April, 2004, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of April, 2004. COPIES FURNISHED: Sharon L. Harris 3606 Fort Peyton Circle St. Augustine, Florida 32086 Alexandra K. Hedrick, Esquire Hedrick, Dewberry, Regan & Durant, P.A. 50 North Laura Street, Suite 1600 Jacksonville, Florida 32202 Ralph Humphries, Esquire 2700-C University Boulevard, West Jacksonville, Florida 32202 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
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.
