The Issue The issue is whether Petitioner filed his complaint against Respondent for race discrimination more than 180 days after the occurrence of the alleged unlawful employment practices contrary to Section 760.10(10), Florida Statutes (1989).
Findings Of Fact The parties' Stipulated Statement of Undisputed Material Facts constitute the following findings of fact: The Petitioner, Floyd Peacock, Jr., a black male, was hired by the Respondent, Air Products and Chemicals, Inc., on August 22, 1980. The Petitioner was initially hired and employed by the Respondent as a maintenance mechanic at the hire (entry) level. On August 22, 1980, James Coleman, a white male, was hired by the Respondent as a maintenance mechanic. On August 25, 1980, Elvin Higgins, a white male, was hired by the Respondent as a maintenance mechanic at the second year step level. The Respondent has had two means of filling the vacancies that arose in the plant. First, whenever someone left the Respondent's employ due to retirement, a voluntary discharge, or involuntary termination, that vacancy would be posted on a job board on the Respondent's premises. Employees wishing to transfer to the department where the vacancy arose were then allowed to apply, or bid, for the posted vacancy. Bids are awarded based upon job skills and seniority. For positions within the operations department, seniority is determined by the amount of time the employee had with the company. For maintenance positions, seniority is determined by the amount of time the employee had with the maintenance department. The second method used by the Respondent to fill vacancies was a "back- fill" procedure. When an employee's bid was awarded and that employee then transferred to another department, the vacancy created in the transferring employee's department was "back-filled" with a new hire from outside of the company. Additionally, a position that was opened for bids but not bid upon was also back-filled with new hires from outside of the company. In 1982, the Petitioner, whose pay level as a mechanic with the Respondent was at the "second step/year level," became interested in a three- year position in the ammonia methanol area and inquired about bidding for the job. He was told by the personnel manager, Laura Finn, that since he was at the two-year level, he did not qualify for the three-year position. The Petitioner did not bid for the job. Two white males, Roy Mony and Clayton Perry, who were previously employed as mechanics with Carroll Construction, as had the Petitioner, were hired at the "third step/year level" and placed in the two "third step/year level" mechanics jobs. The Petitioner filed no charge or complaint with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission concerning his not bidding for the "three step/year level" mechanics position or the hiring and assigning of the two white males "three-step" mechanics to those positions in 1982. At the time of his "fifth-year step" mechanic's interview in 1985 for obtaining his "five year/step" pay increase, the Petitioner confirmed with his supervisor that James Coleman had been made senior mechanic and had been advanced to the "senior mechanic" pay level. The Petitioner was given a "fifth year/step" mechanic's pay increase. Soon after the 1985 pay increase interview, the Petitioner went to the Respondent's Personnel Department with his supervisor to inquire about why James Coleman had been made a senior mechanic before the Petitioner. When the personnel manager was unable to provide the reason, the Petitioner talked with a staff member of the Escambia-Santa Rosa Human Relations Commission about his being given a "fifth year/step" mechanic's pay increase while James Coleman received a senior mechanic's title and pay increase. However, the Petitioner did not file any complaint with that agency or with the Florida Commission on Human Relations or the Equal Employment Opportunities Commission. In June, 1986, the Respondent had a reduction in force (RIF) that resulted in some employees' employment being terminated and other employees being reassigned to other lower level and lower paying jobs. The following actions were taken as part of the RIF process in June, 1986: Maintenance mechanics hired prior to June 10, 1977, continued in their positions. Maintenance mechanics hired after June 20, 1977, but before the Petitioner's date of hire of August 22, 1980, were assigned permanent operator positions. Fifteen or sixteen maintenance mechanics who had been hired on or after the Petitioner's date of hire were placed in a temporary job position designated as "utility operators." Among the mechanics retained in the employ of the Respondent but assigned as utility operators was Elvin Higgins, a white male senior mechanic, and the Petitioner. The remaining mechanics were discharged as a result of the RIF in June, 1986. Among the mechanics who were discharged at that time were Roy Mony and Clayton Perry, whose hiring dates were after the Petitioner's date of hire. The utility operator position was a new, temporary position created in response to the RIF. In lieu of being discharged, fifteen employees, including Petitioner, were placed in the utility operator position. Utility operators worked at reduced pay, performing work previously accomplished by independent contractors. As vacancies arose in other departments of the company, one by one, each of the utility operators were to fill these vacancies until no one remained in the utility operator position. The respondent provided the utility operators with two means of transferring out of the utility operator position into a regular, higher paying position. First, utility operators were allowed to bid on any position that was subject to the Respondent's customary bid procedure. The second means that the utility operators had for leaving the utility operator position was through the assignment of a "back-fill" position. Instead of back-filling positions with new hires from outside of the company, as was the procedure before the RIF, utility operators were to be assigned to the back-fill positions. A utility operator would be back-filled into any vacancy that had been opened up for bids under the customary bid procedure, but on which no one had bid. Second, utility operators could be back-filled into a secondary vacancy created when another employee transferred from one position to another. The utility operators were to back-fill these non-bidded [sic] positions and secondary vacancies in order of seniority with the company (i.e., by date of hire). In June, 1986, when Elvin Higgins was reduced from senior mechanic to a utility operator because of the reduction in force (RIF), the Petitioner first became aware that Elvin Higgins had previously received senior mechanic status. On July 28, 1987, Aubry Garrett, one of the utility operators, used the normal bid procedure and successfully "bid-out" of the utility operator's position and took an operator's position. The Petitioner did not bid for this position. Between the time of the RIF in June, 1986, and the time the first back-fill position arose in September, 1987, the Respondent had not provided its employees with a finalized written or oral statement about how the back-fill positions would be administered after the RIF; however, during this period before the Petitioner refused the first back-fill position, when asked about this procedure by employees, Ernest Labadie, the personnel manager, told them that utility operators would be assigned back-fill positions in the order of the employees' length of service with the company. In September, 1987, two operator positions became available for utility operators to "back-fill" as secondary vacancies. The Petitioner, as the most senior utility operator based on date of hire, was offered one of the positions, but he refused the job because it was rotating shift work and he desired to work only "day hours" like he was working as a utility operator and had worked as a maintenance mechanic. Elvin Higgins and Gene Moore, the next senior utility operators based on date of hire, accepted the "back-fill" positions and were assigned those positions in early October, 1987. At the time of the Petitioner's refusal to "back-fill" and accept the available advancement to operator, the Petitioner was informed by Ernest Labadie, the personnel manager, that the Petitioner would be placed at the bottom of the list of the utility operators for future "back-filling" of jobs by utility operators. The Petitioner made no complaint to anyone or any agency about his being placed at the bottom of the list of utility operators for "back-filling" purposes in September, 1987, and believed at that time that his placement at the bottom of the list was fair and not discriminatory. Gary Kent is a white male who is senior the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department. Before the reduction in force (RIF) in June, 1986, Mr. Kent was a mechanic, but as a result of the RIF, he was transferred to an operator's position in the amines area of the company. The amines job was not shift work. On November 24, 1987, Mr. Kent bid for an operator's position in the PVC area and received the job on December 8, 1987. His move to the PVC area from the amines area resulted in an operator vacancy (secondary vacancy) in the amines area that would be "back- filled" from the utility operators' list (i.e., without the need for bidding for the vacant position). On December 8, 1987, the vacant operator position in the amines area was "back-filled" by David Hart, who was the next utility operator on the "back- fill" list since the Petitioner was at the bottom of the list. The Petitioner became aware of this assignment, or surmised that the assignment of Mr. Hart to the amines area would occur, before the announcement of the assignment was posted and when he heard that Mr. Kent had bid for the PVC area operator position. In November or December, 1987, the Petitioner spoke with the personnel manager, Mr. Labadie, about the Petitioner's chances of getting the vacant amines area operator position that was to be "back-filled" since Gary Kent had bid for the PVC operator's position. The Petitioner was interested in this operator position because it was not a rotating shift job. The Petitioner was told that consistent with the personnel manger's discussions with the Petitioner in October, 1987, the Petitioner was not eligible to "back-fill" the position because he was at the bottom of the "back-fill" list. The Petitioner accepted the explanation and understood the policy and procedure for "back-filling." The Petitioner made no complaint to anyone about assigning the amines area operator's job to Mr. Hart instead of to the Petitioner. In January, 1988, Bruce Holiday, a white male who is senior to the Petitioner by amount of time in the Respondent's maintenance department and who has been working as an operator after the reduction in force, bid for and received on February 1, 1988, the assignment back into the maintenance mechanic. The Petitioner had bid for this position but has no complaint of racial discrimination about his not being awarded the position because Mr. Holiday was a senior to the Petitioner for the maintenance mechanic position by the amount of time in the maintenance department. In February, 1988, the Petitioner and the other two last remaining utility operators, Randy Mock and Lawrence Pearce, were assigned and "back- filled" to operator positions. The Petitioner made no complaint and has no complaint about this assignment. In November, 1988, Gary Kent, who was also senior to the Petitioner both by date of hire and by amount of time in the Respondent's maintenance department, bid for and received on November 20, 1988, an assignment back into the maintenance department as a maintenance mechanic, a position subject to the customary bidding procedures. The Petitioner had also bid for this position. The announcement of Mr. Kent's assignment was posted on the bulletin board for employees to see. The Petitioner became aware of the assignment of Mr. Kent to maintenance on or before the posting of the announcement on November 16, 1988. On or about November 16, 1988, the Petitioner discussed with Mr. Labadie, the personnel manager, Mr. Kent's bidding and being assigned into the maintenance department as a mechanic. The Petitioner complained that since Mr. Kent had previously bid and received the PVC position in December, 1987, Mr. Kent, in the Petitioner's view, had decided at that time that Mr. Kent did not want to go back into the maintenance department. Therefore, the Petitioner surmised that, even though Mr. Kent would later be the senior person eligible to be awarded a maintenance mechanic job if he had bid it, Mr. Kent should have been "placed at the bottom of the list" for purposes of bidding on any maintenance mechanic positions. The Petitioner asserted that this would be consistent with his being placed at the bottom of the "back-fill" list when he refused to accept the "back-fill" assignment in September or October, 1987. Mr. Labadie asserted in response to the Petitioner that there was nothing inconsistent since Mr. Kent's assignment was pursuant to and consistent with the Respondent's bidding procedures and policies for maintenance department positions which were in effect and used both before and after the RIF (and under which the Petitioner was allowed to bid and did bid for mechanic's positions); while the Petitioner's assignments from utility operator to the operator positions were governed by the "back-fill" procedure. The Petitioner personally did not agree with and did not accept this explanation, although he understood the two different procedures, and told Mr. Labadie that it was Petitioner's opinion that the bidding and "back-filling" should operate the same way. In January, 1989, the Petitioner again had a similar conversation with Mr. Labadie about Mr. Kent's bidding and being assigned a maintenance mechanic's job and the Petitioner's being put at the bottom of the "back-fill" list for assignment to operator positions. In late February, 1989, Ricky Cook and John Rink, both white males who are senior to the Petitioner by the amount of time in the Respondent's maintenance department and who had been working as operators after the June, 1986 reduction in force, bid for and received assignments back into the maintenance department as mechanics. The Petitioner has no complaint, based on racial discrimination or otherwise, as to these assignments. The Petitioner's employment discrimination charge was filed with the Florida Commission on Human Relations on March 27, 1989, and filed with the Equal Employment Opportunity Commission on March 31, 1989. On or about March 29, 1989, the Petitioner bid for and received assignment to maintenance mechanic in the Respondent's maintenance department, along with Larry Perritt, who is a white male and who was a senior to the Petitioner by the amount of time in the Respondent's maintenance department. The Petitioner was assigned the job on April 16, 1989, at the senior mechanic pay level. The Petitioner has no complaints about any of these assignments. The Petitioner received a pay increase at the "top level" of senior mechanic in October, 1989, after serving six (6) months in that position. In October, 1989, Elvin Higgins, after bidding for the position, was assigned to maintenance mechanic at the senior mechanic pay level.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charges. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of June, 1995. SUZANNE F. HOOD, Hearing Officer 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 19th day of June, 1995. COPIES FURNISHED: Richard E. Johnson, Esq. Spriggs & Johnson W. College Ave. Tallahassee, FL 32301 Ralph B. Peterson, Esq. Beggs & Lane P. O. Box 12950 Pensacola, FL 32576-2950 Sharon Moultry, Clerk Human Relations Commission John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149 Dana Baird, Esq. Human Relations Commission 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32303-4149
The Issue The issue in this proceeding is whether the Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act.
Findings Of Fact Remedy provides staffing services for temporary employment positions with a variety of independent business clients. The relationship between Remedy and its clients is governed by contracts it has entered into with those clients. Towards that end, Remedy solicits applications and/or maintains an applicant pool of people known as “associates” for temporary work assignment to Remedy’s clients. However, Remedy does not operate or manage its clients' business or employment decisions. At the commencement of an associate’s staffing relationship with Remedy, all associates are required to review Remedy’s policies and procedures, including its Discrimination and Harassment Policy. Under that policy, a Remedy associate who believes he or she has been discriminated against while performing an assignment for a Remedy client is encouraged to notify Remedy of the perceived discrimination. After notification, Remedy investigates and advises the client of its findings. After investigation, if a Remedy associate engaged in misconduct while at a temporary assignment, Remedy is entitled to take disciplinary action against the associate, including removal of the associate from the assignment. However, Remedy cannot take disciplinary action against a direct employee of the client, nor can it require the client to take disciplinary action against the client’s direct employee. Similarly, if a client demands that a Remedy associate’s assignment be terminated, Remedy has no authority to second-guess that decision or to refuse to terminate the associate’s assignment with the client. Importantly, when a Remedy associate’s assignment with a client is terminated early by the client, the associate’s relationship with Remedy remains in place unless and until either party expressly advises the other that the relationship is being terminated. In this case, Remedy had a contract with Trane, a manufacturer of air conditioning units. Under its contract with Trane, Trane notified Remedy of temporary assignments that needed to be filled at its manufacturing plant in Panama City, Florida. Upon such notification, Remedy identified qualified associates for Trane’s consideration for work at its plant. On or about February 8, 2013, Petitioner submitted an application to Remedy, seeking consideration for assignment to an open temporary position with Trane. He was selected by Trane for the position and began working as a Production Technician for Trane on March 4, 2013. In performing the duties and responsibilities of his position as a Production Technician, Petitioner was subject to the supervision of Trane management, including Group Leader, Shirley Gunn, and Operations Leader, Jesse Arnold. On or about May 30, 2013, Petitioner advised Remedy’s Staffing Coordinator, Jaime Chapman, that he needed to take medical leave due to a growth on his finger. The growth was unrelated to his employment at Trane. Petitioner was granted leave by Trane. On June 17, 2013, while on medical leave, Petitioner provided a doctor’s note to Ms. Chapman, which indicated that Petitioner was capable of returning to work in a light-duty capacity. The note imposed various restrictions on Petitioner’s permissible work duties, including, but not limited to, “no machine, manipulator, compressor, wall rear, no lifting above 15 lb.” Ms. Chapman passed Petitioner’s leave request to Trane. However, Trane's policy did not permit light duty assignments for non-work related injuries or medical issues and the request was denied by Trane. There was no evidence that Trane’s policy was based on discrimination or that Remedy had any input or control over Trane’s light-duty policy. As such, Petitioner’s allegations that denial of such light duty was discriminatory should be dismissed. Ms. Chapman advised Petitioner of Trane’s policy on light-duty assignments and explained to him that he must remain on leave until he was medically cleared to return to full work duties. On or about June 27, 2013, Petitioner provided Ms. Chapman with a new doctor’s note, stating that Petitioner had undergone surgery for his medical condition, and would be unable to work in any capacity from June 27, 2013, until July 1, 2013. Four days later, on July 1, 2013, Petitioner provided Ms. Chapman with medical clearance to return to full work duties. That same day he returned to his job as a Production Technician at Trane. Clearly, neither the growth on Petitioner’s hand nor its subsequent medical treatment significantly impaired a major life activity of Petitioner since he recovered and returned to work. Moreover, there was no evidence that demonstrated Petitioner’s medical issue with his hand or treatment thereof constituted a disability that significantly impaired a major life activity or was seen as such by Respondent or Trane. Given this lack of disability, Petitioner’s allegations regarding discrimination based on disability should be dismissed. At 2:00 a.m., on July 2, 2013, Ms. Chapman received an email from Ms. Gunn, the Trane manager with supervisory authority over Petitioner, indicating that during the July 1 night shift, Petitioner and Remedy Associate Tarmecia Jackson, who is Black, were involved in a verbal altercation with Ms. Jackson calling Petitioner an “asshole.” In the email, Ms. Gunn requested that Ms. Chapman counsel Petitioner as well as Ms. Jackson regarding the need for each of them to improve their level of professionalism during their co-worker interactions. The evidence demonstrated that the name-calling incident was only a verbal feud between co-workers. There was no evidence that demonstrated such name-calling was discriminatory or had its aegis in discrimination. Ms. Chapman complied with Ms. Gunn’s request, and conducted separate counseling sessions with Petitioner and Ms. Jackson. During Ms. Jackson’s counseling session, Ms. Chapman advised her that the conduct she exhibited during the July 1, 2013, incident was unacceptable and would not be tolerated going forward. In response, Ms. Jackson apologized for her conduct and assured Ms. Chapman that she would comply with Trane’s conduct requirements going forward. During Petitioner’s counseling session, Ms. Chapman advised him that he must refrain from arguing with co-workers at the Trane worksite, and that if he had any additional issues with co-workers, he must report those issues to Remedy. Petitioner accepted Ms. Chapman’s counseling, without objection. At no time during the counseling session did Petitioner express a perception that he was being treated unfairly or discriminatorily. On July 12, 2013, Ms. Chapman received a second email from Ms. Gunn stating that Petitioner and Ms. Jackson were once again involved in an altercation. However, in the latest instance, Ms. Gunn determined that Petitioner was responsible for instigating the conflict, noting that his conduct had left Ms. Jackson “in tears.” The email went on to state that when Ms. Gunn attempted to counsel Petitioner in the wake of the second incident, Petitioner continually interrupted her and refused to allow her to proceed with the counseling. On the morning of July 12, 2013, in addition to reviewing Ms. Gunn’s email, Ms. Chapman received a telephone call from Trane’s Operations Leader, Mr. Arnold, who advised her of Trane’s decision to request the termination of Petitioner’s assignment. Prior to the start of Petitioner’s shift on July 12, 2013, Ms. Chapman called him and notified him of Trane’s decision to end his assignment. The evidence was clear that Remedy did not participate in and was not responsible for Trane’s decision to terminate Petitioner’s assignment with it. Moreover, the evidence was clear that Remedy did not make any adverse decision regarding Petitioner’s employment with Trane.1/ Remedy simply advised Petitioner of Trane’s termination. In fact, in light of Petitioner’s continuing status as a Remedy associate, Ms. Chapman advised Petitioner that he should continue to update Remedy regarding his interest and availability for future assignments, and likewise, Remedy would continue to consider him for future assignments with Remedy clients. In essence, Petitioner’s status with Remedy did not change. Based on these facts, Petitioner failed to establish that Remedy discriminated against him when it informed him of Trane’s decision to terminate his assignment and the allegations in regards thereto should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter an Order dismissing the Petition for Relief. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 31st day of December, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31, 1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED. DIANE D. TREMOR 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 11th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606 The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner: The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing. The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted. Respondent: (NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.) 23 and 24. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: E. D. Wiggins 4843 Campenella Drive Jacksonville, Florida 32209 Kathryn M. Lancaster, Esquire 501 First Avenue North Suite 626 St. Petersburg, Florida 33701 Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact The Petitioner filed its original petition with PERC on February 12, 1976. (Hearing Officer's Exhibit #1). An amended petition which includes attachments describing a proposed collective bargaining unit by reference to job descriptions was subsequently filed. (Hearing Officer's Exhibit #2). The Intervenor filed its Motion to Intervene with PERC on February 19, 1976. (Hearing Officer's Exhibit #6). The Motion to Intervene was granted by order entered April 19, 1976. (Hearing Officer's Exhibit #7). The final hearing was scheduled to be conducted on May 6, 1976, by Notice dated April 21, 1976. (Hearing Officer's Exhibit #3). The Hillsborough County Board of County Commissioners is a public employer within the meaning of Florida Statutes s447.002(2). (Stipulation, Transcript page 7 1/ ) The Petitioner is an Employee Organization within the meaning of Florida Statutes 447.002(10). (Stipulation, TR 8). Intervenor is an Employee Organization within the meaning of Florida Statutes s447.002(10). (Stipulation, TR 8). There is no contract bar to holding an election in this case. (Stipulation, TR 9). PERC has previously determined that the Petitioner is a duly registered Employee Organization. (Hearing Officer's Exhibit #4). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Petitioner filed the requisite showing of interest with its petition. (Hearing Officer's Exhibit #5). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Intervenor is a duly registered Employee Organization. (Hearing Officer's Exhibit #8). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. PERC has previously determined that the Intervenor filed the requisite showing of interest with its petition for intervention. (Hearing Officer's Exhibit #9). No evidence was offered at the hearing to rebut the administrative determination previously made by PERC. The parties stipulated that those employees who hold the positions or job titles listed in the "raw data" section of Public Employer's Exhibit #1 with the letter designation "M", "C", "P", or "T" to the left of the job title should be excluded from any collective bargaining unit ultimately certified by PERC. The "raw data" section of Public Employer's Exhibit #1 includes a listing of all job titles under the Public Employer. The organizational structure of the Public Employer is accurately depicted in an organizational chart which was received in evidence as Public Employer's Exhibit #3. The Board of County Commissioners is the Public Employer's legislative body. The County Administrator is the Chief Executive Officer. The Public Employer is organized under the county administrator form of government. This structure was adopted in April, 1974. The seven major division heads answer directly to the County Administrator. There are 128 employees in the office of the County Administrator. Approximately half of the employees could be classified as "blue collar", and half as "white collar". A civil service system has been established in Hillsborough County. The system has the comprehensive responsibility for employee benefits and terms and conditions of employment. The system provides a uniform personnel system for all units of government in Hillsborough County, including the Public Employer in this case, the Airport Authority, the Hospital Authority, the Sheriff's Department, and others. Employees of each of these units of government participate in the same civil service system, and transfers from one unit to another occur without any loss of seniority and with aid benefits being retained. The act creating the civil service system and the rules of the civil service system were received in evidence at the hearing respectively as Public Employer's Exhibits #4 and #5. Transfers of employees among the various divisions of the Public Employer are common and under the civil service system all benefits including seniority rights are retained. The County Commission has the authority to overrule action taken by the civil service board, but that authority is rarely exercised. The civil service board would not have the authority to grant an across-the-board raise to employees covered by the system without approval of the Board of County Commissioners. The civil service board could, however, uplift a given classification without such approval. Job descriptions are prepared by personnel of the civil service board. All established positions of the Public Employer are classified by the Board. The job classifications and descriptions were received in evidence at the hearing as Public Employer's Exhibit #2. Reclassification is an ongoing process. In order to classify a position, the civil service board initially makes a study to determine what the employee does. The employee and his supervisor are interviewed. The job descriptions accurately reflect the qualifications, duties, and responsibilities of persons employed by the Public Employer. Both "blue collar" and "white collar" employees are covered by the civil service system. Terms and conditions of employment are established uniformly under this system. In recent history salary increases for employees of the Public Employer have been given on an across-the-board basis. Increases or changes in leave time, and vacation time, have similarly been acted upon on an across-the-board basis. It is difficult to determine whether some employees are "white collar" or "blue collar". For example, a Storekeeper II (classification number 0722) might be considered either white collar or blue collar. The civil service system has paygrades 10 - 37. Both blue collar and white collar employees might fall within these pay grades. Blue collar and white collar employees do not perform the same job tasks. There is some interchange of work among blue collar employees. When necessary a blue collar employee will perform the job tasks of another blue collar employee. There are a variety of persons employed by the Public Employer whose salaries are paid under various federally funded programs. There are a variety of grants with separate rules and regulations governing these employees. Federally funded employees are not classified under the civil service system. The salaries of such employees are determined by the Public Employer with the recommendation of the appropriate federal agency. Typically the pay rates are squared with the civil service equivalent, but this is frequently not possible either because of a lack of funding, or because of applicable federal regulations. Termination or disciplinary procedures for employees under federally funded programs are frequently set by federal regulation. Petitioner and the Public Employer have engaged in collective bargaining in the past. The bargaining unit used in past collective bargaining has included both blue collar and white collar employees. It appears, however, that this sort of unit was not a subject of active negotiation between the parties. ENTERED this 2nd day of July, 1976, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent discriminated against Petitioner on the basis of her age, as stated in the Petition for Relief, in violation of Subsection 760.10(1), Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is a Caucasian, female who, at the time of the alleged employment discrimination, was 42 years old. Petitioner was an employee of Kelly Services, an agency that supplied temporary employees to Respondent. At the time of the alleged incident, Petitioner was filling the position of material handler in Respondent’s warehouse. Her job title, pay, and hours worked did not change during her period of employment with Kelly Services at Respondent's warehouse. She received her pay from Kelly Services. When she decided to terminate her employment at Respondent's warehouse, she advised Kelly Services that she was quitting, not Respondent. There were three or four employees at the warehouse who were employees of Respondent. In addition, there were several temporary employees at the warehouse. No evidence was presented as to the total number of employees employed on either a permanent or temporary basis by Respondent. Petitioner began her employment with Kelly Services at Respondent's warehouse in late August 2002. For approximately two weeks prior to October 23, 2002, Petitioner was being trained to operate a forklift. She was the only temporary employee being so trained. On October 23, 2002, Jason Titra (Titra), a warehouse employee of Respondent, commented to Petitioner that it was easier to train a young person to operate a forklift than an older person. He analogized that "if you were training his niece and his grandmother to operate a forklift, who do you think would learn more quickly?" Petitioner was offended by this comment, thinking it derogatorily referred to her age. Titra was not authorized to make employment decisions by Respondent although he exercised supervisory authority over temporary employees, including Petitioner. Following the October 23, 2002, comment made by Titra, Petitioner refused to train to operate the forklift even though encouraged to train on the forklift and given the opportunity to do so by Respondent’s management representative. On November 18, 2002, Tim Staab (Staab), Respondent’s operations plant manager, sought out Petitioner and asked why she wasn’t training to operate the forklift. She told Staab about the comment made by Titra. Respondent immediately investigated the incident; as a result of Respondent’s investigation, Titra was disciplined for making inappropriate comments. Titra attempted to apologize to Petitioner; however, Petitioner refused to accept his apology. The October 23, 2002, comment by Titra is the only basis for Petitioner’s claim of age discrimination. There is no evidence that Titra repeated the comment or any similar comment, nor did any other employee. Nor is there any suggestion that the work environment became hostile. Petitioner acknowledged that Staab “tried to make it right”; Petitioner was repeatedly given the opportunity to train to operate the forklift, but she refused. Neither Petitioner’s pay or hours changed after the incident was reported. Late in January 2003, Petitioner voluntarily left the employment of Kelly Services and her assignment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order granting Respondent's Motion to Dismiss and finding that Petitioner failed to present a "prima facie" case. DONE AND ENTERED this 17th day of February, 2004, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 17th day of February, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Frances Ann Ratliff 1101B North Hoagland Boulevard Kissimmee, Florida 34741 Jeffrey L. Thompson, Esquire Constangy, Brooks & Smith, LLC 577 Mulberry Street, Suite 710 Macon, Georgia 31201 Robin Sheridan Parcel Direct, LP N63W23075 Main Street Sussex, Wisconsin 53089 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was terminated from his employment by the Respondent based on discrimination because of his race in violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner is an African-American male. He was employed at times pertinent hereto until his termination, by the Respondent Mold-Ex, L.L.C. The Respondent is a manufacturing company located in Milton, Florida, which operates a manufacturing facility and operation on a multi-shift basis, engaged in the manufacturing of various plastic and rubber products, particularly automotive-related parts. The Petitioner began employment with the Respondent on September 8, 1989, as a press operator. He also worked as a machine operator for about four months and was promoted to Second Shift Supervisor in the injection department. This is an injection molding operation which molds plastic and rubber parts. The Petitioner was a Second Shift Supervisor in that department for eight and one- half years. The Petitioner reported to Jerry Decker, who was his supervisor. The Petitioner is an employee and the Respondent company is an employer within the meaning of Section 760.10, Florida Statutes. The Petitioner's duties included monitoring overall operation of the machinery, training, new employees, setting up machines and jobs, completing attendance reports and holding employee meetings. As many as twenty-three employees were supervised by him on the second shift. The Petitioner was the only black supervisor at Mold-Ex. The Petitioner was terminated from his employment on December 4, 1998. He was told by Mr. Decker, his supervisor, that he was being terminated because the company was "down-sizing" or reducing positions and the number of employees due to financial difficulties. The Petitioner elected to contest this by filing a Charge of Discrimination with the Commission, claiming that he was harmed because he was discharged because of his race. Beginning in early 1998, the corporate parent company which owned Mold-Ex, L.L.C., was experiencing significant financial difficulties. This resulted in part from the "reservoir seal project" which involved a contract for a certain part that the Respondent was to manufacture for the Delphi Division of General Motors Corporation. There were difficulties in manufacturing the reservoir seal successfully, it was difficult to manufacture and required extra labor. It was termed by the Respondent's president as a "real disaster" which caused serious financial drain on the company. The company had a great deal of difficulty in successfully manufacturing the part to the correct specifications and lost much revenue due to unfilled orders and/or improperly manufactured parts which had to be replaced. Additionally, and related to these difficulties, the parent company was having great difficulty meeting its debt service obligations. In fact, the parent company never actually recovered from the financial difficulties from 1998, such that ultimately the Respondent was sold to another corporation. These financial difficulties throughout 1998 resulted, by the fall of that year, in the parent corporation putting significant pressure on the Respondent's management in Milton to reduce costs substantially, including labor costs. The Respondent considered and implemented several ideas for cutting costs, including restructuring the supervision of the operation and otherwise seeking to reduce labor costs. In September of 1998, the Respondent employed an excess of people over those needed to operate efficiently. At that time the Respondent employed approximately three-hundred workers. Because there was an excess of employees and, therefore, payroll expense, a hiring freeze was instituted. This resulted in a steady reduction of employees through not filling positions that were voluntarily vacated by employees leaving the company, as reflected in the Respondent's Exhibit 10 in evidence. The overall operating officer of the Milton facility, Vice President Ettelson, established in his testimony that in late November of 1998, the hiring freeze resulted in a reduced head count which saved the company substantial amounts of money. Thus, by the end of 1998, the company employed only approximately 280 persons instead of the 300 who were employed in September of 1998. By April of 1999, the employment roster was down to approximately two hundred and fifty persons. The Respondent additionally restructured supervision in order to save money and to operate more efficiently, in terms of simply more effective manufacture and filling of orders, as well as in the saving of personnel and related expenses. This restructuring involved combining supervisory positions and re- allocating duties, such that one plant superintendent was placed in charge of all of the operations on the second shift rather than having approximately three supervisors overseeing the individual business units operating on the second shift. The Petitioner was a Second Shift Supervisor whose position was eliminated in this restructuring. His duties were distributed among Mr. Don Brumley, who was a long-experienced employee who was re-hired out of retirement and who became the Second Shift Plant Superintendent; an employee in the injection and molding department, referred to as a "lead-employee" and also to certain individuals on the first shift. The restructuring resulted in a savings of approximately $40,000.00 as to salaries by eliminating three positions and selecting Mr. Brumley as the plant superintendent for the second shift. The re-structuring concentrated on the second shift because the other two shifts required the management personnel that were currently in place. On the first shift, various improvement projects and process development efforts required more intense, active supervision and supervisory personnel that were already in place. On the second shift, because no improvement projects were being conducted, the differences in activity between the second and first shift allowed the company to supervise that entire shift, as to all departments, by placing a strong effective plant superintendent in charge of that entire shift; eliminating three supervisory positions for a substantial savings in expenses. On the third shift, no re- structuring occurred because it was only a small operation of approximately twenty-five employees. The highest management personnel present for that shift was already a lead person in the mixing department and a supervisor in the injection molding department. Additionally, the company management recognized a strong need for a superintendent such as Mr. Brumley who had a record of implementing better disciplinary measures and who could ensure consistency and efficiency of operation in all of the operating departments on the second shift. The re-structuring effort resulted in a change in the reporting system or "chain of command" as well. Prior to re- structuring, three managers, one for each of the three business units (profile extrusion, molding, and reinforced hose), reported directly to Vice President Ettelson. Below these three managers were the supervisors in charge in each individual department within the three business units. For example, in the molding department where the Petitioner worked as Injection Molding Supervisor on the second shift, supervisors in injection molding on the first and third shifts as well as a first shift supervisor in the trim department, for a total of four supervisors, reported directly to molding manager Jerry Decker. Four supervisors reported to the Reinforced Hose Manager, Sidney Hood. Two supervisors reported to Profile Extrusion Manager Steve Wieczorek. Those three managers reported to Vice President Ettelson. After the re-structuring, supervisors remained in place on the first and third shifts, but on the second shift no supervisors remained who would be reporting to the department managers Decker, Hood and Wieczorek. Instead, Don Brumley, re- hired from retirement as the second shift plant superintendent, reported directly to Vice President Ettelson. Don Brumley was therefore in charge of all three business units during the second shift. His duties were much more substantial than the Petitioner's. He managed approximately 60 people while the Petitioner had managed approximately 20 to 23 people. Mr. Brumley had more administrative duties than did the Petitioner. He had hiring and firing authority that the Petitioner did not have and had the responsibility for adherence to company policy on the entire second shift rather than in only one department. Molding Manager, Jerry Decker, established that the re-structuring organization functioned effectively. It resulted in the elimination of the Petitioner's position on or about December 4, 1998. Additionally, two white males in supervisory roles were terminated by the Respondent because of the re-structuring. The Petitioner maintained that one of those terminated white individuals, Dan Lowery, had been out of work seven months with tuberculosis and was permanently disabled and, therefore, was terminated because he was not qualified to perform his job duties. However, the Human Resources coordinator, Nick Bores, the person with probably the most knowledge and insight concerning Mr. Lowery's employment capabilities, established in a credible fashion that Mr. Lowery had indeed been on leave for a few months due to his illness but returned to his employment duties with a full clearance from his physician to perform all of his duties. This testimony was corroborated by that of molding manager Jerry Decker and Vice President David Ettelson and is accepted. The Petitioner also contended in his testimony, in essence, that racially discriminatory motivation for his termination existed as shown by two incidents. One incident in 1997 involved an employee who had been disciplined in some way by the Petitioner, who then purportedly placed a "swastika" symbol on the Petitioner's car in the parking lot. The Petitioner asserts that the employee was not disciplined for that act, which he contends was indicative of racially discriminatory animus toward him by the Respondent's management. In fact, however, the Respondent did not discipline that employee because, upon questioning, he denied the conduct. The Respondent had no independent proof that he was guilty of the act. The Petitioner himself was not disciplined on an occasion when he was accused of sexual harassment by a female employee, because he denied it and the Respondent had no independent proof that he was guilty of the alleged conduct. Moreover, at about the same time as the "swastika incident" the Petitioner received a written commendation, signed by CEO Thomas Henry and Vice President Ettelson. These facts, considered together, tend to show lack of racial animus by the company management. The other incident described by the Petitioner related to management reaction to observing an employee under the Petitioner's charge failing to wear safety goggles. Mr. Ettelson purportedly told the Petitioner he would "kick his butt" if his employees again failed to wear protective goggles. This statement, if made, may be coarse or harsh, but was not shown to be other than an isolated occurrence. Moreover, it does not evince a racially discriminatory motive or attitude on the part of an employment-related decision-maker. The Petitioner maintained that his replacement, Don Brumley, was not qualified for the position created by the re- structuring and that his "lead man," Eddie Byers, was the only person in the department who could have performed the duties that the Petitioner had performed. This testimony, however, is rebutted by the testimony of witnesses Decker, Ettelson and Thomas Henry, the CEO of the company. Their testimony establishes that Mr. Brumley was well-qualified to assume management of the entire second shift operations as Plant Superintendent which included the scope of the Petitioner's job but included other substantial duties and responsibilities as well. In fact, with the exception of being retired for approximately one year, Mr. Brumley worked for the Respondent since 1963 and was the company's first employee after it was founded by Mr. Henry, his father and Mr. Henry's brother. Prior to his retirement, Mr. Brumley functioned as Compression Molding Manager, which was a position above the Petitioner's position level in the hierarchy of the company and at the same level as the Petitioner's former supervisor, Jerry Decker. In fact, Mr. Brumley, at one time, had a supervisory role over the Petitioner. The Petitioner's experience was limited to one department during his tenure with the company. Mr. Brumley, however, had worked in all departments in his 36 years with the Respondent. Mr. Brumley knew the operations of the company very well and bringing him back to the company to function as the Second Shift Plant Superintendent, with his skills and experience, saved the company substantial expenses by allowing it to avoid the necessity of retaining other employees. Additionally, Mr. Brumley had a reputation as a strict disciplinarian and Mr. Ettelson and the company management felt that stricter discipline was required for the operations on the second shift. When the Petitioner was terminated he was offered a severance package of four weeks' pay at the time of termination, but elected not to accept that offer. He was not offered a different employment position with the Respondent because no suitable options, in terms of his skills and qualifications and in relation to his salary level, were available with the company at that time. The Petitioner was earning $7.80 per hour, at the time of his termination and his annual salary, without overtime, was $16,234.00. During 1998, which was his best year in terms of income, he earned approximately $27,000.00 when overtime was added to his regular salary. The Petitioner earned a total of $13,175.72, in 1999 and earned $3,117.00 in unemployment compensation in 1999. He earned $7,513.51, when employed by Britt Landrum Temporaries, Inc., in 1999, and earned $1,608.01 when employed by Interim Services, Inc., in 1999. Additionally, he was employed by Transport Leasing Contract, Inc., in 1999 and earned $937.20 with that employer. Since approximately January 2000, the Petitioner has been working at the Waterfront Mission and earned $6.50 per hour, and then in September 2000, was raised to $7.00 per hour. The Petitioner concedes that with his qualifications and experience he could obtain employment at more than $7.00 per hour, which he makes at the Waterfront Mission. He chose to work at the Waterfront Mission because that employment is compatible with his calling to be a minister. He desires to have work which is compatible with his duties as a pastor for two churches in the area. He has earned about $375.00 per month as a pastor for his two churches since approximately May 2000. The Respondent presented evidence by witnesses Ettelson, Decker and Bores, the Human Resources coordinator, all of whom testified that the re-structuring plan, which included the elimination of the Petitioner's position, was for the purpose of serving the above-referenced financial business needs in relation to reducing costs, as the reasons which led to the Petitioner's termination. All testified that the primary goal was reducing costs in order to help the company to survive its business downturn, including the fact, established by Mr. Henry's testimony, that the United Auto Workers strike of the Delphi Division of General Motors began in the summer of 1998. This caused a loss of approximately one-million dollars per month. That is the reason that the re-structuring was effected which allowed them to bring in a more experienced man, Mr. Brumley, who was qualified to run the entire department at lower costs as the Plant Superintendent on the second shift, rendering the Petitioner's job and position unnecessary. Their testimony that these business reasons were the cause of the re- structuring and the Petitioner's termination is accepted, rather than the Petitioner's contention that the reasons for his termination involved his race.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of April, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501 Heather Fisher Lindsay, Esquire Gordon, Silberman, Wiggins & Childs, P.C. 1400 South Trust Tower Birmingham, Alabama 35203 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
Findings Of Fact Petitioner is a corporation formed in 1972, whose majority stockholder and president is Ima Jean Strickland, a minority person. The parties have stipulated that Petitioner corporation has in the past and continues to meet all eligibility criteria for MBE certification except for the number of permanent, full-time employees, which statutory component is the sole focus of the dispute in this cause. Eligibility for recertification in this regard depends on whether or not Petitioner continues to employ "25 or fewer permanent full-time employees." Petitioner engages in the provision of electrical work for commercial and residential construction and in electrical services for business and residential customers. Approximately ten percent of its business is the service work for residential and business customers and residential construction. The remainder of its business consists of new construction. On its recertification application, Petitioner claimed to have only eight permanent full-time employees and at the time of formal hearing, testimony of its witnesses acknowledged only 9-10 permanent full-time employees. Petitioner considers an employee to be "permanent full-time" only when that employee has been with the company for at least five years. Only after an employee has been with Petitioner for five years does Petitioner pay the premiums on that employee's health insurance and give that employee a paid annual one week's vacation. (See Finding of Fact No. 8, infra.) By Petitioner's interpretation, a "permanent employee" is a different category-than a "full-time employee." In Petitioner's parlance, "full-time" refers to how many hours the specific employee works per week; whereas, "permanent" refers to an employee with a long-standing relationship with the Petitioner and who has attained full benefits. As of the date of formal hearing, only ten of Petitioner's employees were vested its profit and pension plan. (See Findings of Fact Nos. 46-47, infra.) Petitioner's hiring goals and employment practices emphasize long-term employment. Such policies benefit Petitioner by the retention of accessible, qualified labor in an industry with consistently high employee turnover. Petitioner's employees normally work 7:30 a.m. to 4:00 p.m. When possible, such employees are allowed to make up the hours when they have been absent without pay and where a job/project has been closed for a hcffliday All of Petitioner's employees are subject to a 90- day probationary period during which they are observed for performance and attendance. Petitioner encourages new employees to attend its apprenticeship program at Lively Vo-Tech. If the employee gets past the 90-day probationary period, his employment continues until he voluntarily terminates the employment relationship or until Petitioner terminates his employment due to his failure to perform adequately. If residential jobs/ construction projects are not awarded to Petitioner, the employee may not be able to work but would be encouraged to return to Petitioner when work again becomes available. All Petitioner's employees are eligible to participate at their own expense in the company-sponsored group health plan after 90 days of employment. When an employee can become eligible to join the group medical insurance plan at his own expense is tied to the probationary period. When the company pays an employee's group health plan premiums is tied to his attaining "permanent" status at the five years' employment stage. DGS duly promulgated Rule 13-8.005(4) (c) F.A.C. in November 1988 in order to establish uniform review of MBE applicants on the "25 or fewer permanent full-time employees" statutory criterion contained in Section 288.703(1) F.S. In applying Rule 13-8.005(4)(c), DGS considers the number of permanent full-time employees that the applicant acknowledges to be permanent and full-time and the number of positions the applicant needs to actually carry out its work. However, DGS does not add these two figures because it wishes to avoid "doublecounting" positions. This agency policy/procedure/ interpretation of the rule has been consistently applied to all MBE applicants since the rule has been in effect and was applied to this Petitioner. In determining the number of employees Petitioner actually needs to carry out its business, DGS considered its annual gross receipts, the number of supervisory positions that are used, and the quantity of work it performs. The rule permits this latitude. In determining the number of permanent full-time employees who are employed by the Petitioner, DGS reviewed its Florida State Unemployment Compensation reports, payroll ledgers, financial statements, listing of projects, and listing of managerial supervisory employees. In practice, DGS considers "permanent" to mean the number of positions that an employer uses on a regular and predictable basis to carry out its work. In practice, DGS personnel make a distinction between "full-time" and "permanent" employees. In evaluating the Petitioner, DGS evaluated two criteria: 1) the continuum or permanency, that is, the regularity and predictability with which a position appears, and 2) the length of service given by that position in a particular quarter--12 to 13 weeks being the cutoff for the count. Only when those two elements are met simultaneously does DGS count a position for purposes of applying Rule 13-8.005(4)(c) F.S. The agency does this as a result of two final orders addressing the number of employees for MBE certification. See, Dees, Inc. and Falcon Mechanical, Inc., supra. Contractors determine the number of people they need to do a project by reviewing the specific plans and specifications for each job/project. In preparing bids, contractors determine how much work is involved in a given job and how long it is going to take to accomplish it. It is DGS' experience that contractors will know how many employees they need to hire for any particular job/project/contract and that the number of employees needed will be represented on the contractors' Florida Employer's Quarterly Wage and Tax Reports (unemployment compensation tax reports) Petitioner's reports, like those of every other applicant, list all employees who worked for the company during each 13-week period, regardless of duration of employment. Bobby Strickland, Petitioner corporation's minority qualifying person's husband, is qualified to determine the number of employees Petitioner needs on each job. He has held a master electrician's license for 18 years and has been involved in the electrical contracting business for 31 years. He currently determines the amount and cost of materials involved and the number of employees required to complete each contract by reviewing the plans. In submitting Petitioner's bids, he has taken into account how many persons he will need to carry out each contract, understanding that some employees on any given job on any given day may not report for work. The rule does not require that DGS make a determination of how many employees are needed to perform each job/project/contract on the basis of such plans, and DGS does not review any plans, does not assess the complexity of any contract, and does not substitute its judgment call for that of the contractor applicant on that basis. Rather, it reviews documents prepared by the contractors indicating actual number of employees used and revenues generated. See also, Finding of Fact 29, infra. The number of employees Petitioner needs on each job depends in part on the quantity of work subcontracted out. Petitioner contracts out certain portions of its construction contracts. All witnesses concur that it is reasonable to count the subcontractors as independent contractors and not as employees. Subcontractors and their employees do not appear on Petitioner's payroll as its own employees and there has been no demonstration that they appear on any of the other forms/ documentation listed in Rule 13-8.005(4)(c) F.A.C. The number of employees and the names of the employees whom Petitioner had on its payroll for any given quarter is reflected in its Florida Employer Quarterly Wage and Tax Reports (unemployment compensation reports). During 1986, 1987, 1988 and the first three quarters of 1989, Petitioner reported the following number of employees on its Florida Employer's Quarterly Wage and Tax Reports: MONTH QUARTER 1986 1987 1988 1989 January 39 44 51 6 February 39 32 55 64 March 1st 40 39 55 53 April 39 62 56 51 May 43 67 57 58 June 2nd 46 65 57 49 July 46 67 61 46 August 46 57 73 40 September 3rd 43 54 66 44 October 45 53 57 November 49 50 60 December 4th 45 46 60 The total number of employees on Petitioner's payroll fluctuated from a high of 73 to a low of 32 between the quarters ending 3/31/86 and 9/30/89. In the last three years, Petitioner employed a total of 273 different persons. Two hundred thirty-three of these 273 persons worked less than one year. Stated differently, in that period, at least 40 persons were employed by Petitioner for a duration of one or more years. On October 9, 1989, Petitioner employed 36 people, which it admittedly needed to keep its business going in terms of the construction projects it had at the time. By the date of the formal hearing, Petitioner had increased the number of its employees to 38; 22 field workers were spread among five construction jobs, plus two service staff employees, two warehouse staff employees, and three office/clerical staff employees. The balance may be supervisory staff. Of the 38 employees paid by Petitioner's October 24, 1989 payroll, nine had been employed more than three consecutive years. At no time between the quarter ending 3/31/86 and the quarter ending 9/30/89 did Petitioner employ fewer than 26 employees who were working from 12-13 weeks in any quarter. The least number of employees working full-time for a minimum of 12 weeks in any particular quarter for the quarters ending 3/31/86 through 9/30/89 was 26, and the largest number was 49. Twenty-six employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/87 also appeared on the unemployment tax report for the quarter ending 12/31/87. Thirty employees, excluding Bobby and Ima Jean Strickland, who were listed on Petitioner's unemployment tax report for the quarter ending 3/31/88 also appeared on the unemployment tax report for the quarter ending 12/31/88. Thirty employees were listed on Petitioner's payroll for the quarter ending 3/31/89 who were also listed on the payroll as of 10/31/89. In determining the number of employees that an MBE applicant needs to carry out its business, DGS also considers the number of projects the applicant enters into and the quantity of work performed because it is DGS' experience in investigating businesses in the construction industry that the greater the number of contracts an applicant has, the greater its revenues and the greater the number of employees an applicant will need to carry out its business. The rule permits this latitude. Bobby Strickland conceded that the amount of work and the number of employees the Petitioner needs fluctuates with the number of contracts it has and the amount of work required under those contracts at any given time. According to J. Kinson Cook, however, gross revenue is not determinative of the number of employees required to complete a contract. J. Kinson Cook, Inc., a general construction firm, has 12 "permanent full-time employees," as Mr. Cook personally defines that term, and its contracts total an average of $20 million per year. However, J. Kinson Cook, Inc. is not a certified MBE, and Mr. Cook's opinion as an expert in the construction field was not rendered on the basis and criteria established by Rule 13-8.005(4) (c) F.A.C. In 1986, Petitioner had 32 commercial construction contracts totalling $4,760,539. In 1987, Petitioner had 10 commercial construction contracts totalling $814,593.90. In 1988 Petitioner had 16 commercial construction contracts totalling $2,143,412. As of the date of formal hearing in 1989, Petitioner had 13 commercial construction contracts as follows: Dittmand Chemistry $ 8,295 Sugar Creek Theatres 150,000 Village Green 12,961 Sewage Pumping Stations 155,986 Koger-Osborne Building 182,000 Wal-Mart 187,000 Mayo Building 29,000 FSU-Sports Complex 925,000 Kentucky Fried Chicken n/a Hartsfield Elementary School 190,000 Victoria's Secret 13,700 John Wurst n/a $1,853,942 Some of the contracts listed for 1986-1989 include projects that have extended (will extend) into later years. Beyond construction income which has been reviewed supra., Petitioner also performs residential and commercial service work, the income from which was $354,076.56 in 1986; $268,718.42 in 1987; and $375,157.94 in 1988. Petitioner projects its income produced from service work in 1989 to be $200,000. Petitioner's residential service work includes the electrical work on the construction of new homes. On October 9, 1989 Petitioner had eight residential construction projects. Petitioner does repeat business in its commercial service work and in the construction of new homes (residential service work). Petitioner's gross receipts were $4,193,064 in the fiscal year ending July 1, 1989 and $2,150,289 in the fiscal year ending July 1, 1988. Petitioner's gross revenues for the fiscal year ending in July 1987 were $2,156,722. Petitioner projects its gross revenues for the fiscal year ending July 1990 will be between 2.5 and 3.0 million. Petitioner has nine supervisory employees: six construction foremen, one warehouse supervisor, one office supervisor (Ima Jean Strickland), and one field supervisor (Bobby Strickland). Petitioner conceded that each supervisor must have at least one subordinate to supervise, but it is also clear that the number of persons supervised fluctuates with the skill of the workers and the complexity of the jobs in progress. As of the date of hearing, foreman Ronald Fraser was supervising nine employees on the Wal-Mart project. At the time of his deposition, October 12, 1989, he was supervising eight employees on that project. He supervised approximately twenty-five employees on the Department of Education Building and anticipated that he would supervise 10 employees on the Hartsfield School project. As of the date of hearing, foreman Kenneth Cushing was supervising four employees on the Koger Center project. Ima Jean Strickland regularly supervises the two office employees. At the time of his October 12, 1989 deposition, foreman Charlie James was supervising three employees, which is the average number of employees he supervises. As of she date of his October 12, 1989 deposition, foreman Donald Metcalf was supervising five employees redoing the fire alarms at Florida State University. On an average, Mr. Metcalf supervises 4-5 employees. Foreman John Garrett Hemanes normally supervises one employee, on average. As of the date of formal hearing, Bobby Strickland was responsible for supervising all of the field employees. His is a higher level of supervision than that of the respective construction foremen and their chain of command often passes through him. Therefore, his position should be counted only once. Thomas J. Strickland, a/k/a Jeffrey Strickland, supervises one employee. He is the warehouse supervisor. None of Petitioner's employees are eligible for paid sick leave; however, all employees may take unpaid sick leave with Bobby Strickland's approval. Petitioner's employees are eligible to participate in an employer-sponsored profit sharing plan after six months of employment. Vesting in the pension plan is determined by federal regulation, not company policy. After an employee has been with the company for 12 months of continuous service, the employee can benefit from profit sharing in the form of a cash bonus. Additionally, an employee who has not had an accident during a 12-month period is entitled to a safety bonus. During the years 1986-1989, Petitioner's contracts have primarily been in Leon County and the surrounding area, and therefore, it has been able to circulate staff from project to project for its own advantage. By so doing, Petitioner encourages good employees to stay with Petitioner longer. In order to keep an ample amount of work going, Petitioner continuously reviews potential jobs and prepares and submits bids. On an average, Petitioner bids 3-4 contracts a month. Petitioner's decision to bid is affected by the amount of work in progress and whether or not it has adequate manpower. If it has more work than it can handle, Petitioner does not bid up more.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of General Services enter a final order which: Dismisses that portion of the Petition addressing the constitutionality of the statute, Finds Petitioner to employ more than 25 permanent full-time employees, and Denies Petitioner recertification as a Minority Business Enterprise under Chapter 288 F.S. DONE and ENTERED this 9 of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9 day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-4402 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 4, 7-10 and 12-14 are accepted. 2, 3, 5-6 and 11-17 are accepted as modified to conform to record as a whole. is rejected as a FOF and as a Conclusion of Law (COL) and as contrary to the record as a whole. and 18 are rejected as immaterial since this is a de novo proceeding. See the COL. Moreover, presentation of Summary 15 in the de novo proceeding is sufficient, in light of the Petitioner's burden of proof. 19 is rejected as immaterial and as legal argument in light of the duly promulgated rule. 20-23 are rejected as stated as immaterial since this is a de novo proceeding. See the COL. Some of this material has been incorporated in substance into the Recommended Order so as to demonstrate that application of the rule relies upon applicant- generated information after the applicant has assessed its own needs, and that such needs are not "second-guessed" by whoever applies the rule. Respondent's PFOF: 1-3, 5, 11-18, 20-22, 26-36, 40-44, 46-56, 59, 62, and 64-66 are accepted. 4, 6-9, 19, 24-25, 37, 39, 45, 57-58 and 60-61 are accepted as modified to clarify the concept, and to eliminate unnecessary, subordinate or cumulative material and mere description of testimony or exhibits. 10 is rejected as unnecessary. 23 and 63 are accepted as modified to eliminate legal argumentation and to reconcile the testimony and evidence as a whole. 38 is rejected as unnecessary and unduly speculative. COPIES FURNISHED: E. Thomas Brushwood, Esquire Brushwood and Gruver, P.A. Post Office Box 10117 Tallahassee, Florida 32302-2117 Susan B. Kirkland, General Counsel Alma Gonzalez-Neimeiser, Staff Attorney Department of General Services 2737 Centerview Drive-Suite 309 Tallahassee, Florida 32399-0950 Ronald W. Thomas Executive Director Department of General Services Knight Building Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
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.
Findings Of Fact The Orlando Police Department is organized on paramilitary lines and headed by a Director of Public Safety. Directly under him comes the Chief of Police who is the principal administrative officer of the department. His immediate staff which consists of 1 captain, 7 lieutenants, sergeants and patrolmen, includes an Administrative Aide who holds the rank of lieutenant and attends all staff meetings conducted by the Chief. In such position he is privy to all classified information received by the Chief and would appear to fit the definition of "confidential employee" under Section 447.02(5), Florida Statutes. Also in the Chief's Staff is a Research and Development Section and a Special Investigative Services Division. The former is headed by a lieutenant and is primarily responsible to research, develop and prepare all directives, regulations and general orders for the Department. The Special Investigative Services Division is headed by a Captain and contains an Internal Affairs Section, a Staff Inspection Section and an Intelligence Section, each headed by a lieutenant. The Internal Affairs Section handles all internal investigations of a confidential nature and monitors all disciplinary cases involving the police department. The staff Inspection Section conducts routine inspections of police units to insure compliance with guidelines and orders of the department. The Intelligence Section gathers information on organized crime and criminal acts on a larger scale than those routinely handled by the C.I.D. They interface with law enforcement agencies of the Federal government and keep the Chief apprised of developments. The Administrative Service Bureau is headed by a major and staffed with two captains, two lieutenants, 3 sergeants, seven patrolmen, sixteen civilians, cadets, and recruits for training. From this Bureau is assigned a patrolman as aide to the Mayor. This Aide attends all meetings involving the Mayor and the police department and is privy to all disciplinary actions within the police department that reach the attention of the Mayor. He also acts as courier between the Mayor and Police Department for confidential police records. Within the Administrative Services Bureau are numerous divisions and sections. The Personnel and Training Division handles personnel accounting, payroll records, training and records of personnel in detached service. Under this division is the Community Relations Section, Training Section and Personnel Section. The general function of the Community Relations Section is to handle public relations for the police department. This involves presentations at schools, civic associations, press releases, etc. The Training Section conducts recruit training and provides range the target practice ranges. Recruits are graded by the training officers, and these grades are based upon written exams given to all recruits. Similarly, the scores attained on the firing range are certified by the range officer and become part of the personnel record of the individual. The staff Support Bureau is headed by a major and includes two captains, one lieutenant, five sergeants, 14 patrolmen and 70 civilians. A forthcoming reorganization will reduce the number of patrolmen to two. Numerous divisions and sections come under the staff Support Bureau. In all of the above Bureaus, the personnel of which the City seeks to have excluded from the approved bargaining unit, the police officers generally wear civilian clothes and work a regular 40 hour workweek, 8:00 A.M. to 5:00 P.M., Monday through Friday. In this regard they differ from the uniformed personnel in the Field Operations Bureau who maintain personnel on duty 24 hours per day 7 days per week. The Field Operations Bureau contains the majority of the sworn officer personnel and is comprised of 1 major, 2 captains, 15 lieutenants, 44 sergeants and 285 patrolmen. In addition, there are 18 civilian positions consisting of secretarial personnel and parking meter attendants. A patrolman is assigned as aide to the major. He prepares written orders and letters put out by the major and reviews all disciplinary actions within the Bureau. One patrolman is assigned as court liaison and assists the State Attorney's office in scheduling witnesses and performing general liaison between the department and the State Attorney's office. The Field Operations Bureau consists of the Criminal Investigative Division (C.I.D.) and the Uniform Division. The former are plain clothed police officers divided into a youth section, vice section, crimes-again-person section, crimes-against-property section and the general assignment section. The latter encompasses the control section, jetport section, special operations section, and traffic section. Watches are maintained with 60-80 patrolmen assigned at one time who stand an 8-hour tour of duty with three watches assigned daily. Each watch has seven squads or sections with a sergeant in charge of each squad. The Detention Bureau has 1 lieutenant, 6 sergeants, and 61 civilians assigned. The sergeants work regular 8-hour shifts and review every arrest report to determine appropriateness and legality. One sergeant is responsible for the protection and custody of evidence in criminal cases and control of lost and found property. They supervise the performance of the assigned civilians. Since the duties and responsibilities of the various ranks are a necessary ingredient in the determination of their exclusion or inclusion in the appropriate bargaining unit, the evidence relating thereto will next be presented. Sergeants are the lowest rank the City contends should be excluded for the reason that there would be a conflict of interest between sergeants and patrolmen if they are in the same bargaining unit. Accordingly these duties and responsibilities will be first discussed. Sergeant's duties and responsibilities are generally contained in Section 100, Regulations of the Orlando Police Department Exhibit (7) which list them under Supervisory Members of the Department. Supervisors are therein described as employees having as one of their major responsibilities the general authority in the interest of the Orlando Police Department to direct other employees or members, to review grievances or the recommendations of such action, and to make effective recommendations regarding disciplinary matters, transfers, dismissals, etc. In carrying out their assignments sergeants prepare evaluation reports on patrolmen assigned under them. In order for patrolmen drawing specialist pay to continue to do so they must receive satisfactory performance ratings. Unfavorable efficiency reports affect eligibility for promotion exams and rank certification. Sergeants have authority to mete out punishment for minor transgressions. The highest level of punishment that can be awarded by a sergeant is a letter of censure which is placed in the personnel record of the recipient. The sergeant in charge of a patrol section prepares the zone assignment sheet (Ex. 31) wherein he assigns sectors and duties to the patrolmen in his section. In making these assignments independent judgment is exercised. In the event a patrolman reports out of uniform or is otherwise unprepared for assignment to duty the sergeant has the authority to relieve the man from duty without pay and send him home to get into proper uniform. Personnel requests such as transfers, leave, etc. are endorsed by those in the chain of command until they reach the approving authority. The sergeant's endorsement is effective in approving or disapproving the request. Sergeants can submit recommendations for commendation of the patrolmen under him. He also has authority to authorize up to one hour overtime without higher approval and to grant compensatory time off. Sergeants and above do not qualify for overtime pay. When the Lieutenant Watch Commander is absent from duty the senior sergeant assumes command and exercises the watch commander's authority. Sergeant's uniforms were changed from brown to white shirts in late 1974. At the same time they were authorized to discipline patrolmen for minor transgressions. Uniforms of lieutenants and above have consisted of white shirts for many years. On the other hand all members of the police force are paid at the same interval, have the same fringe benefits, all must maintain the same basic training standards, all are classified by the Civil Service System as "police officers", all are eligible for revenue sharing incentive pay from the State, all are paid from the wage classification plan, and all have the same powers of arrest. Article XIII of the Orange County PBA By-Laws provides for grievance procedures whereby a patrolman could file a grievance against a fellow member in the same union who disciplined the patrolman and seek to have the fellow member removed from the union. Art. XIII Section 2 provides: Any member of this association who voices criticism of another member, group of members or the association itself, without first seeking recourse through the provisions of Section 1 of this Article, shall be sub- ject to suspension of his membership, or ex- pulsion from the association..." This provision has not been exercised in the Orlando Police Department and the president of petitioner stated the interpretation of the bylaw provision is that grievance there refers to social rather than departmental action. Other members of petitioner testified that they didn't feel that membership in PBA would interfere with their carrying out duties that involved disciplining a fellow member of the PBA. With respect to those ranks above sergeant, little evidence was presented of specific duties and whether these duties required a finding that these officers are managerial employees. The general duties of these ranks were presented in Section 100, Exhibit 7. Furthermore, throughout the testimony was the clear import that majors had more authority and responsibility than captains who had more authority and responsibility than lieutenants who had more authority and responsibility than sergeants.
Recommendation In The Matter of City of Bridgeport (Police Department) and Bridgeport Local No. 1159, Selected Decisions [paragraph 49,868] the Connecticut Board held that the fact that sergeants, lieutenants, and captains of a city's police department exercised supervisory functions did not exclude them from the benefits of Connecticut's Municipal Employees Relations Act (MERA). Here these same officers had voted a year earlier not to be included in the overall bargaining unit and the Board appears to have affirmed the prior determination that the MERA did not preclude supervisory employees from being in the same bargaining unit as rank and file employees. The provisions of the MERA so construed does not appear in the decision. In Town of Stratford and Stratford Police Union, No. 407, 63 LRRN 1124 (1966) the Board determined that an election was proper for the captains and lieutenants to vote whether they wanted to be included in an overall police unit or to be separately represented by a unit of supervisors. The expressed policy of the Board in determining appropriate bargaining units is that the unit should be the broadest possible which will reflect a community of interest. At the same time it respects the special interests of certain groups of employees. I am not aware that such a policy has been announced by PERC. In the Matter of Borough of Rockway and Patrolmans Benevolent Association, Local 142, LLR paragraph 49,999 A.22 the New Jersey Board held that lieutenants and sergeants were properly included within a bargaining unit with patrolmen. The Board found that the lieutenants and sergeants lacked an authority to effectively hire, fire or discipline patrolmen. In the Matter of Kalamazoo Township and Lodge No. 98 F.O.P., L.L.R. paragraph 49,996.20 (1969) the Board held that although corporals had the authority to suspend patrolmen for breach of department duties this was always reviewed by higher authority; and since corporals were engaged in the exact same work as police patrolmen for the majority of their working time, they did not identify or align themselves with management. Therefore, they were not supervisors and were properly included within the proposed unit with the patrolmen. In accordance with Section 447.009(3)(a), Florida Statutes, no recommendations are submitted. DONE and ENTERED this 30th day of June, 1975. K. N. Ayers Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida
