The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of October, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Prior to her termination and at all times material hereto, Petitioner was employed as a Secretary Specialist for Respondent. In December 1988, Petitioner planned a trip to Haiti to be married and requested annual leave for the work period of December 9 through December 14, 1988, which was approved. Although she was aware of the political unrest in Haiti, Petitioner departed on December 16, 1988 with the intent to return on December 19, 1988. When she returned to the airport on December 19, 1988, she was told that she could not obtain a boarding pass and the next available flight was not until December 22, 1988. Realizing that the delay would result in her absence for three consecutive work days without approved leave and her possible termination, Petitioner attempted to telephone her immediate supervisor. She was told that outgoing calls were limited. At around 7:00 p.m. on December 9, 1988, she was successful in placing the call; however, her call was not answered. She next called her next level of supervisor who also did not answer. Finally, she reached her sister who was to relay the circumstances of her delay to Petitioner's supervisor. Yet, when Petitioner's sister attempted to call the supervisor, she was unable to reach him and did not try again. On December 22, 1988, Petitioner returned to Miami and was informed that she did not have a job. Although Petitioner's airline situation might have been considered an emergency which might have allowed her leave to be continued, reasonable notice to her supervisor of her plight was still required unless the prohibition of notice itself was the emergency. Here, notice by telephone was possible. Petitioner's attempts to contact her employer, although stringent under the circumstances, failed because she did not verify that her message had been received. Thus, Petitioner's absences on December 19 through 21, 1988, were unauthorized; Petitioner abandoned her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration issue a final order that the Petitioner abandoned her position and resigned from the Career Service System as contemplated by Rule 22A-7.010(2)(a), Florida Administrative Code. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June 1989. JANE C. HAYMAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1184 Respondent's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. Addressed, in part, in paragraphs 2 and 4. Subordinate to the result reached. Subordinate to result reached. Addressed in paragraph 5. Addressed in paragraph 5. Not supported by competent and substantial evidence Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. Subordinate to the result reached. COPIES FURNISHED: Ms. Doris B. Cantave Dorcilin 1238 N.E. Krome Terrace Apartment 1 Homestead, Florida 33030 Perri M. King, Esquire Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Alkens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 =================================================================
Findings Of Fact Mr. Vann was employed by the Department as a counselor for its Division of Children Youth and Family. On August 8, 1987, Mr. Vann was involved in an accident in which a truck hit the car he was driving. He had an acute cervical and lumbar sprain of the back and contusions of the right arm and right foot; he had no fractures or dislocations. He received workers' compensation benefits as the result of his injuries. He was treated by an orthopedic surgeon, Dr. Pedro Bermann. By January 21, 1988, Dr. Bermann was of the opinion that Mr. Vann had reached maximum medical improvement. On March 27, 1988, Mr. Vann was admitted to the University of Miami Comprehensive Pain and Rehabilitation Center at South Shore Hospital and Medical Center for an intensive treatment program. For two weeks he was treated as an in-patient, for the following two weeks he was treated on an out-patient basis. When Mr. Vann was discharged from the Pain and Rehabilitation Center he had a zero percent impairment rating. When released from that program, Dr. Serge Podrizki wrote a letter stating that Mr. Vann had "successfully completed treatment at our center for a work-related injury and was able to resume full- time employment. He is being discharged with no restrictions according to the guidelines of his job requirements. We would suggest that his driving be limited for at least the first month." Mr. Vann then returned to his work as a counselor for Children Youth and Family on April 25, 1988. Mr. Vann's supervisor wrote a memo to him on May 20, 1988, which reassigned cases to him based on Dr. Podrizki's April 23, 1988 letter. He was not required to drive, which was consistent with Dr. Podrizki's recommendation. Problems with Mr. Vann's job performance resulted in a memo from his supervisor dated May 13, 1988, requiring him to sign in and out each day, to inform his supervisor of doctor's appointments and to provide copies of any doctor's reports to his supervisor. On June 8, 1988, Mr. Vann reported to work but he did not report to work at any time thereafter. Mr. Vann never was authorized to take leave and never provided any doctor's statements justifying his absence from work on the grounds that he was unable to work. Mr. Vann maintains that he was unable to work due to his injuries. The depositions of three doctors who treated Mr. Vann are the only medical evidence in the record. In their opinion, Mr. Vann is able to work. The greater weight of the evidence shows that there is no medical reason why Mr. Vann could not perform the duties of his job as a counselor in June 1988. On June 16, 1988, Vann received a letter advising him that he was not authorized to be absent from work and directing him to report for work. Mr. Vann did not respond to this letter. On September 27, 1988, another letter was sent to Mr. Vann advising him that because he had failed to contact the Department since June 9, 1988, or to report for work since that time, his resignation from the career service had been accepted under Rule 22A- 7.010(2)(a), Florida Administrative Code. Mr. Vann was absent from work without authorized leave for more than three consecutive work days beginning June 8, 1988.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered by the Secretary of the Department of Administration finding that Mr. Vann abandoned his career service position. DONE and ENTERED this 28th day of April, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 1989. APPENDIX The following are the rulings on proposed findings required by Section 120.59(2), Florida Statutes. Petitioner's Proposed Findings Adopted in finding of fact 1. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 4. Covered in finding of fact 4. Rejected as unnecessary. Covered in finding of fact 5. Covered in finding of fact 6. Covered in finding of fact 6. Covered in finding of fact 8. Covered in finding of fact 8. Covered in finding of fact 8. Rejected as unnecessary. Adopted in finding of fact 9. Respondent's Proposed Findings Respondent submitted a letter rather than findings of fact. The contention that this proceeding is an attempt to avoid the Department's duties under the workers compensation laws is rejected as unsupported in the record. The medical evidence Respondent refers to in his letter was not submitted at the hearing; the evidence submitted by the Department was persuasive. COPIES FURNISHED: Carmen Dominguez Frick, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue Suite 5424 Miami, Florida 33128 Herman Lewis Vann 671 Northwest 179 Street Miami, Florida 33169 Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R.S. Power, Esquire Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of Petitioner's gender and national origin by engaging in the adverse employment actions alleged in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is engaged in the business of manufacturing and selling mobile homes. Respondent operates in several locations in the state with a substantial number of employees. Respondent maintains a progressive discipline policy. The policy progresses from counseling or verbal reprimand, to written reprimand, to suspension, and then to termination. Respondent prohibits discrimination, including that based on national origin and gender. The prohibition against discrimination and the progressive discipline policy, are published in an employee handbook and posted by the time clock at each plant. Petitioner is female and Vietnamese. Respondent first employed Petitioner in 1982. Since then, Petitioner has worked in the Molding Department doing trim work (a "molder"). Petitioner has not applied for any promotions with Respondent. Petitioner has not lost any pay as a result of the alleged discriminatory conduct by Respondent. Petitioner is paid comparably with other employees in her department. Mr. Matt Minter, Respondent's Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Minter has never taken any employment action against Petitioner on the basis of Petitioner's gender or national origin. Mr. Larry Godair, Respondent's Assistant Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Godair has never taken any employment action against Petitioner because of her gender or national origin. None of Respondent's other employees have ever made a specific reference to Petitioner's national origin. None of those employees have taken any employment action against Petitioner because of her gender or national origin. Petitioner fell at work and bruised her knee on November 16, 1996. Respondent completed an accident report for the injury. Due to various injuries, Respondent assigned Petitioner to light duty at different times during her employment. The light duties included filing, painting, and cleaning up the parking lot. Respondent assigns the same light duty work to both male and female employees. Mr. Lydon Allred, Respondent's Utility Supervisor, gave Petitioner a written reprimand for bringing a camera to work. The reprimand was not issued because of Petitioner's gender or national origin. Time-out Requirements Respondent prescribes the time in which each day's quota of finished goods should be out the factory door and ready for market ("time-out requirements"). Personnel who fail to meet time- out requirements without good cause are subject to discipline. Mr. Allred issued two separate written reprimands to Petitioner because she failed to meet her time-out requirements without good cause. Mr. Allred did not issue either reprimand because of Petitioner's gender or national origin. Mr. Allred issued written reprimands to other members of the molding department. At the time, all other members of the molding department were female and U.S. citizens. Prior to the written reprimands, Mr. Allred issued verbal warnings to Petitioner and the other members of her department for failure to meet time- out requirements without good cause. Ms. Patricia Pipkin is the Assistant Supervisor for Respondent's molding department. She has been Petitioner's direct supervisor for several years. Ms. Pipkin issued two written warnings to Petitioner for failure to meet her time-out requirements without good cause. On both occasions, Ms. Pipkin issued written warnings to other employees in the molding department. The other employees were female and U.S. citizens. Ms. Pipkin did not discipline Petitioner because of her gender or national origin. Ms. Pipkin has never heard Mr. Minter threaten to terminate Petitioner or to make an example of her. Mr. Minter has never engaged in either act. Light Duty Assignments Petitioner had multiple accidents on the job that required her to perform light duties consistent with the restrictions prescribed by her health care provider. Respondent gave Petitioner light duties including office work and clean up such as picking up trash, nuts, and bolts in the parking lot. Mr. Godair assigned light duties to employees from April, 1994, through July, 1995. Light duties routinely included office work and clean up in and around the plant. Clean up included picking up nuts and bolts in the parking lot and painting. Mr. Godair did not consider the national origin or gender of employees when assigning light duties. The only criteria Mr. Godair considered were the restrictions placed on each employee by his or her health care provider. Mr. Godair sometimes contacted the treating physician for clarification and further direction before assigning light duty tasks. On one occasion, Mr. Godair clarified Petitioner's light duty restrictions with her treating physician. Mr. Godair's clarification of light duty restrictions for Petitioner was not motivated by Petitioner's national origin or gender. Petitioner never complained to Mr. Godair that she was being treated differently from other employees in connection with her light duty assignments. Respondent did not consider Petitioner's national origin or gender in assigning light duties to Petitioner. Respondent did not treat Petitioner differently from other employees with similar medical restrictions. Mr. Glen Combs is male, a U.S. citizen, and supervises the carpet department. He was restricted to light duty on at least one occasion. Respondent required Mr. Combs to pick up trash in the parking lot including screws, nuts and bolts, and paper. Respondent also required Mr. Combs to paint indoor and outdoor areas of the Auburndale plant. Mr. Steven Wade is male, a U.S. citizen, and a cab setter for Respondent. He was restricted to light duty on two occasions. Mr. Wade's light duty assignments included picking-up screws and painting lines in the parking lot. Mr. Wade also painted a number of other areas in the Auburndale plant including interior walls, racks, and the floor. Mr. Wade's light duty assignments sometimes required him to use a latter. Mr. Robert Peterson is male and a U.S. citizen. He is a former employee of Respondent and was restricted to light duty on one occasion during his employment. Mr. Peterson's light duty assignments included front office tasks and yard duties. Yard duties included picking up debris and metal objects in the parking lot. Cameras At Work Respondent's policies and procedures prohibit cameras at work without the permission of management. Appendix D of the employee handbook in Plant Work Rule No. 17 prohibits, ". . . cameras on the premises without authorization from management." The purpose of the prohibition against cameras is to protect production processes that Respondent believes provide a competitive advantage. All employees, including Petitioner, receive a copy of the employee handbook, including Appendix D. Respondent maintains a model home center in Plant City, Florida. On one occasion, Respondent instructed Petitioner and Ms. Evelyn Scott to set up a model home at the Plant City facility. Ms. Scott is a molder who works with Petitioner. She is female and a U.S. citizen. Petitioner took a camera to the Plant City facility and took pictures without the permission of management. The action violated Respondent's policy and procedures. Mr. Allred gave Petitioner a written warning for bringing the camera to work. Mr. Allred gave Ms. Scott a verbal warning and counseled her because she did not actually bring the camera to work. Neither Petitioner nor Ms. Scott photographed any production process that gives Respondent a competitive advantage. Mr. Allred has worked for Respondent for approximately 16 years. During that time, Mr. Allred has been Petitioner's immediate supervisor as the Assistant Supervisor and Supervisor of the Molding Department. Mr. Allred never took any employment action against Petitioner because of her gender or national origin. Lost Tools Respondent owns the tools that employees use in the performance of their duties. Respondent requires employees who lose tools to pay for the tools. Petitioner lost a tool on the job, and Respondent required her to pay for it. Respondent did not require Petitioner to pay for the tool because of her gender or national origin. Other employees required to pay for lost tools include Eric Mitchell, Chris Spring, Mike Church, Pat Gay, David Scott, Bob Barker, Rosa Linda, Keith Johnson, Scott Pollard, Randall Huggins, Robert Allen, and Eugene West. Those individuals are male and U.S. citizens except for Ms. Linda who is female Hispanic. Multiple Accidents Respondent applies its progressive discipline policy to employees involved in multiple accidents. A safety committee composed of employees from each area of a plant investigates each accident. The committee prepares an accident investigation report and recommends appropriate disciplinary action, if any. Petitioner has had multiple accidents on the job. When Respondent began applying its progressive discipline policy to employees with multiple accidents, Mr. Minter met with Petitioner because he was concerned about Petitioner's accident history and wanted to make sure she understood the new policy as well as existing safety policies, procedures, and rules. Mr. Minter did not give Petitioner a verbal warning concerning her accident history. He did not threaten Petitioner's job if she had one more accident or threaten to make an example of Petitioner. Mr. Minter did not take any employment action against Petitioner because of her gender or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of her gender or national origin. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Tanya Baxla, pro se 2204 Ivey Lane Lakeland, Florida 33801 Charles A. Powell IV, Esquire Zinober and McCrea, P.A. 201 East Kennedy Boulevard, Suite 850 Tampa, Florida 33602
Findings Of Fact Petitioner is a black female. She was employed by Respondent Alachua County from April 20, 1984 to August 30, 1989, in the Metamorphosis Program as a Drug Counselor I. At all times material, the Metamorphosis Program was a seven day a week, 24-hour per day residential drug treatment program which provided treatment and counseling for male and female adults. Organizationally, it is now under Respondent's Criminal Justice Services Department f/k/a the Department of Corrections. The employees at the Metamorphosis Program consisted of, in descending rank, the Program Supervisor, a Program Coordinator, two Drug Counselor II's, two Drug Counselor I's, and two Drug Counselor Aides. Briefly, at some point in time, there was also a Case Worker position which was "lost" for lack of funding. From 1984 to 1986, James Whitaker, a male, directly supervised Petitioner. From 1986 to 1988, Tootey Richey, a female, supervised her. The remainder of her employment, Petitioner was again supervised by James Whitaker. Robin Robinette, a male, was a Drug Counselor Aide from 1984 to 1988. From 1988 on, the only other Drug Counselor I besides Petitioner was Robin Robinette. Another female Drug Counselor I was employed before that. There were also four female Drug Counselor Aides (Duncan, Johnson, Spence, and Goodman) who worked at various times from 1985 to 1989. There were two females (Hague and Richey) in different supervisory positions at various times from 1985 to 1988. Petitioner testified that "generally" and "quite often" during the whole of her employment with Metamorphosis from 1984 to 1989 she was required to work weekends and a lot of midnight to 8 a.m. shifts and 16 hour shifts and that her male counterparts were not required to do so. Petitioner thought that sometimes she had only four hours off between two eight hour shifts. However, Petitioner's testimony with respect to her hours of work was vague and indefinite. For instance, Petitioner did not know the hours or days of the week she worked in 1984, except that she often worked more than 40 hours per week without being paid overtime. She also maintained that she had no steady or specifically assigned work hours in any week and never had an identical work week. She felt that in 1985 she had worked Saturday noon to midnight (which is 12 hours) or eight a.m. until four p.m. (8 hours) or midnight to eight a.m. (8 hours) some days; that in 1986 she worked mostly Saturdays and worked some Sundays "as needed," but not half of all the Sundays in that year; that in 1987, she generally worked Monday through Saturday, not Sundays. For all of 1988, she would only state, "I cannot be specific on those dates and times." Mr. Warren McCluney testified on Petitioner's behalf to the effect that while he had been employed as a Drug Counselor Aide at Metamorphosis between August 1986 and May 1988, Petitioner was the only Metamorphosis employee who was required to work a sixteen hour shift. He based his testimony in part on having heard Petitioner's oral complaints to supervisors in weekly staff meetings, read her requests for schedule readjustments in the program log books wherein all events of each shift were supposed to be recorded, and, he said, having relieved as many as three different white males who had had to split up Petitioner's sixteen hour shift when she was unable to come in on a weekend due to illness. Since he, a male employee, was never required to work a 16 hour shift, Mr. McCluney viewed Petitioner's schedule as discriminatory to her as a female. Mr. McCluney conceded that he was hired to work only 30 hours a week in the first place. Mr. McCluney's explanation of how he knew Petitioner regularly worked sixteen hour shifts or that three males often split up her sixteen hour shifts was vague and/or unconvincing. Giving Mr. McCluney every benefit of the doubt and reconciling the contradictory portions of his testimony as much as possible, he relieved Petitioner at the Thursday p.m./Friday a.m. midnight shift change and at the Friday p.m./Saturday a.m. midnight shift change, and he thought that Petitioner was working some Saturdays from noon to midnight, which is actually 12 hours, not the 16 hours to which he testified. He thought she worked noon to midnight Saturdays, because Petitioner relieved him some Saturdays at noon and he knew she worked until the Saturday p.m./Sunday a.m. midnight shift change. None of these shifts, as described by Mr. McCluney, totalled over 12 hours. However, he also testified that when Petitioner did not come in at noon Saturday, he had to call for backup. Therefore, it would appear that any knowledge Mr. McCluney had about how Petitioner's subsequent shift was finally divided up in her absence depended on the logs he saw or something he had been told when he came back on duty several days later since he did not relieve Petitioner at the Saturday p.m./Sunday a.m. midnight shift change. Mr. McCluney admittedly relieved only one person each shift change. The pass logs in evidence do not substantiate either Petitioner's or Mr. McCluney's testimony that Petitioner ever consistently worked sixteen hour shifts except on an emergency, "as needed," or rotational basis. See infra. All credible evidence shows that at least after February 8, 1988, Petitioner regularly worked approximately 4:00 p.m. Thursday to midnight, approximately 4:00 p.m. Friday to midnight, and then, after 12 hours off duty, she worked approximately noon Saturday to midnight, when she was relieved by Jaime Goodman. This schedule was part of a formal plan which went into effect February 8, 1988 and which is described in greater detail, infra. Although characterizing the number of times Petitioner was called in on an "as needed" or "emergency basis" as an "excessive" amount over her male counterparts, Mr. McCluney was not able to specify when Petitioner was called in with any degree of accuracy. Again, giving him the benefit of the doubt, Mr. McCluney apparently meant that Petitioner was often called in "early" to cover the three or four hour period from Saturday noon to 3:00 p.m. or Saturday noon to 4:00 p.m., since he admittedly thought Petitioner's regular sign-in time was 3:00 or 4:00 p.m. Saturdays as well as on Fridays. However, he also had no way to judge how often this occurred. Mr. McCluney could also have been confused by an occasional rotational 16 hour shift spanning some Tuesdays and Wednesdays which was part of the formal plan (see infra.), but if so, he never made that clear. Also, Mr. McCluney had been terminated by Respondent from his Drug Counselor Aide position for alleged misconduct. His candor and demeanor while testifying bespoke of considerable bias against his former superiors. For this, and for all the foregoing reasons, his testimony is not fully credible or convincing. James Santangelo, a male, is currently Metamorphosis Program Coordinator. He assumed that position in September 1988. He was previously employed at Metamorphosis as a Drug Counselor II from 1985 to 1988. According to his testimony, prior to a reworking of the work hours schedule in early 1988 by Mr. Scott Simmons, no one's schedule regularly required working sixteen hour shifts. However, given the nature of the Metamorphosis program, which required staff coverage on a round-the-clock basis, every Metamorphosis employee, including but not limited to Petitioner and Mr. Santangelo, had been required to work some sixteen hour shifts in emergency situations or when another employee called in sick or was on pre-approved vacation. From 1985 to 1988, the schedule was done in a "helter-skelter manner at best" and all job classifications of employees worked interchangeably, with the big problem being weekends, which were "hit or miss." Although Mr. Santangelo "assumed that they [supervisors] tried to inconvenience everybody equally," employees who answered their phones on weekends were usually the ones required to fill in for emergencies. Mr. Santangelo also conceded that prior to 1988, people who had a regular shift of 4:00 p.m. to midnight might have had to stay an additional eight hours (totalling 16 hours on duty at a stretch) more frequently than employees in other shifts if a replacement could not be reached in an emergency or when someone was on vacation. Mr. Santangelo recalled one three day period in 1988 when he had had to cover for Petitioner when she called in sick and many similar situations before 1988 when he had been called in to "cover" for her, although he, also, was vague on when those occasions occurred. Mr. Santangelo felt that Petitioner's outside activities, including child care and illness, scrambled the work schedule more, both before and after the 1988 schedule change, than did the outside activities of any other employee. However, he was not specifically familiar with Petitioner's schedule prior to the 1988 change by Mr. Simmons. Charles Scott Simmons, a male, has had continuous supervisory oversight of Metamorphosis since August 1987. When Mr. Simmons came on board, he noted that the chain of command was cumbersome, redundant, and "messy". The work schedules of employees were also "messy." At that time, all employees reported directly to the Program Coordinator which resulted in supervision problems. To provide better supervision of employees by their direct supervisors and better interaction between employees and supervisors, Mr. Simmons implemented a new work schedule. The new schedule provided for the two Drug Counselor I's to report to a Drug Counselor II and the two Drug Counselor Aides to report to the other Drug Counselor II. The individual employee work hours were scheduled to implement the reporting system. The new schedule allowed supervisors and those supervised to have regular interaction and the opportunity for supervision and input. It was also equitable in that the two Drug Counselor Aides split the weekend up evenly and the Drug Counselor I's split the week up evenly. The intent was to make mirror images of similar employees' schedules. One weekend out of every month someone would have to wear a beeper and be "on call" to go in to "cover" whatever emergency came up. Otherwise, no one was tied to the phone or likely to get haphazardly tapped for extra duty hours on the weekends. The new work hours schedule was not implemented until after all employees had had an opportunity for input. Petitioner's written input or feedback came late (December 29 instead of December 21, 1987) on Mr. Simmons' proposed time line for discussion at the December 22, 1987 staff meeting. Petitioner's proposed alternative schedule allowed for some sixteen hour shifts, but it did not permit all employees to work regularly scheduled hours. It lacked clarity and was not "holistic" in that it had some full-time employees working more than 40 hours per week and other full-time employees working less than 40 hours per week, and it did not accommodate the weekly staff meetings which were central to Metamorphosis' therapeutic program. Therefore, all of Petitioner's suggestions were not included in the final schedule. However, the final standard work hours schedule did adopt Petitioner's request not to work Sundays on a regular basis due to her church activities. The new standard work hours schedule was finally implemented only after posting, feedback, finalization of schedule, re-posting, and one month preparation time to allow employees to change around their personal affairs to accommodate the new schedule. The new schedule became effective on February 8, 1988 and continued in effect the remainder of the time that Petitioner was employed with Metamorphosis, except for some minor fine tuning of a half hour here or there, which is immaterial here. Under the new work schedules, Petitioner's work hours were: Thursday 4:00 p.m. to 12:30 a.m. (midnight) Friday 4:00 p.m. to 12:30 a.m. (midnight) Saturday 12:30 p.m. (daylight) to 12:30 a.m. (midnight) Under the new work schedule, on Wednesday, Petitioner, who was the female Drug Counselor I, rotated on a quarterly basis with Robin Robinette, the male Drug Counselor I, the hours of 12:30 a.m. (midnight) to 8:00 a.m. OR 4:00 p.m. to 12:30 a.m. (midnight). [See Findings of Fact 25-29]. Under the new work schedule, Petitioner also was required to attend a staff meeting on Tuesday from 3:00 p.m. to 7:00 p.m. The staff meeting was mandatory for all Metamorphosis staff members. Under the new work schedule, Petitioner had Sunday and Monday off. Under the new work schedule, Robin Robinette's work hours were: Monday 4:00 p.m. to 12:30 a.m. (midnight) Tuesday 4:00 p.m. to 12:30 a.m. (midnight) Sunday 12:30 p.m. (daylight) to 12:30 a.m. (midnight) Like all employees, Mr. Robinette was also required to attend the mandatory staff meeting from 3:00 p.m. to 7:00 p.m. Tuesdays. Under the new work schedule on Wednesday, Mr. Robinette would rotate quarterly with Petitioner by working either the 12:30 a.m. (midnight) to 8:00 a.m. shift OR the 4:00 p.m. to 12:30 a.m. (midnight) shift. The midnight shift on Wednesday morning was an "odd duck" because Mr. Simmons was trying to split seven 24 hour periods equally between two people in each job description. The result was that when the quarterly rotation occurred, there would be a sixteen hour shift. This worked out to someone working Tuesday 4:00 p.m. to 12:30 a.m. (midnight) and then Wednesday 12:30 a.m.(midnight) to 8:00 a.m. Mr. Simmons testified at one point that he never intended Petitioner to draw that quarterly sixteen hour shift on Wednesday (12:30 a.m. to 8:00 a.m.) following a Tuesday shift of 4:00 p.m. to 12:30 a.m. and that as he planned it, that should not have happened. However, his testimony is confused or contradictory on this issue in some places and some exhibits suggest that Petitioner did have to pull this sixteen hour shift, alternating with Mr. Robinette. Nonetheless, this discrepancy is largely irrelevant because either Petitioner (a female) did not regularly pull this "odd duck" shift or she pulled it no more frequently than did her male counterpart, Robin Robinette, the other Drug Counselor I. The fact that Drug Counselor Aides below her job classification and Drug Counselor II's above her job classification did not pull the same or similar shifts is immaterial because they were not similar male employees, that is, they were not her "job counterparts". Respondent's witnesses testified credibly that on an "as needed" basis or "in an emergency," all employees, regardless of gender or job classification, had undoubtedly been required to pull some 16 hour shifts even after the new work schedule went into effect in 1988, but that these were rare occasions such as when another employee called in sick. Because Drug Counselor I's and II's were "exempt" (or salaried) positions, these positions, whether occupied by a male or a female, never drew overtime pay. Therefore, neither Petitioner nor her male counterpart, Mr. Robinette, nor any of their superiors, drew any overtime pay, ever. Also, every possible arrangement was utilized to avoid calling in those employees who were not exempt, such as Mr. McCluney, because if such employees were worked overtime, they would have to be paid overtime. All concerned, including Mr. McCluney, concur that Mr. McCluney was only scheduled for, and only actually worked, 30 hours per week. Petitioner's claim herein was limited to the allegation that she was discriminated against by consistently having to work sixteen hour shifts and work on weekends when no similar male employee did so, but Petitioner and Mr. McCluney also advanced considerable information to the effect that Petitioner was frequently denied requests for sick leave for herself or her children's special care, that she was treated rudely on these occasions, and that she was derided by supervisors when she reiterated her requests and complaints in writing in the pass logs and orally in staff meetings. In response, Respondent submitted evidence of Petitioner's sick leave usage, showing that she used 334.50 hours of sick leave for the period of January 26, 1988 to March 21, 1989. This amounted to Petitioner using twice as much sick leave as the next highest user in the Division. If anything, this evidence confirmed Mr. Santangelo's testimony that some employees had to work extra hours outside their standard work schedules to accommodate Petitioner's frequent absences, at least during that period of time. Although the format of this evidence does not readily convert into which genders and job classifications took up the slack for Petitioner or how long their shifts were, it may be reasonably inferred that Petitioner was reciprocally accommodated by others working extra hours at least as much as she accommodated them during that period of time. While there is some evidence that Petitioner was subjected to a requirement of submitting doctors' excuses in some situations when other employees were not, this appears to have been a function of haphazard on-site management and on-going personality conflicts within the organization, not the result of any sexual bias. In fact, when Petitioner complained to the Respondent's internal Equal Employment Opportunity Office and upper management was made aware of the situation, efforts were made to adjust the problem. However, this also was not an issue under the terms of this case. Both Petitioner and Mr. McCluney testified that their male supervisors and Robin Robinette abused sick leave and vacation time. Their testimony was so vague as to have proven nothing, but it was also irrelevant to the narrow issue of this cause--whether or not excessive weekend shifts and excessive work hours were imposed on Petitioner because of sexual discrimination. It was, however, established that, having obtained prior approval from his superiors, Mr. Santangelo was permitted to take off time to teach a 2:00 to 3:00 p.m. class at Santa Fe Community College each Monday through Friday in 1986 and was further permitted to make up the work time. It was also established that Mr. Santangelo was allowed to come in late and work late to make up about fifteen minutes he missed each of his regularly scheduled work days by arriving late from teaching an 8:00 to 9:00 a.m. class Mondays through Fridays during 1987 and 1988. This does demonstrate some minor disruption of the work schedule by a male supervisor, but it falls short of establishing any disparate treatment between Petitioner and her male employee counterpart or any disparity of treatment of Petitioner by causing or requiring Petitioner to work extra hours or different hours on the weekend due to her sex.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order that the Petition be dismissed. DONE and ENTERED this 24 day of July, 1992, 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 24_ day of July, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-7298 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: 1-3, 8-10 Accepted except for subordinate, unnecessary, or cumulative material 4-5, 11-13, Accepted as modified for clarity, to more 15 closely conform to the record and to address the issues raised herein. 76 [sic], 7, Accepted in substance, but modified for greater 14 accuracy and to eliminate legal argument. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
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
The Issue The issue for determination is whether Petitioner has just cause to terminate Respondent's employment as a custodian.
Findings Of Fact Petitioner is responsible for hiring, overseeing, and terminating employees in the school district. Respondent has been employed by Petitioner as a custodian since September 13, 2002. Respondent worked at Dunbar Middle School (Dunbar) until August 6, 2010, when she was involuntarily transferred to Lexington. Respondent worked at Lexington from August 2010 until her suspension on April 2, 2013. Respondent's personnel file documents that throughout her employment as a custodian, she has had problems with displays of disrespect and insubordination to her fellow employees and superiors. Respondent's disrespect and insubordination have been a consistent theme in written warnings and reprimands, incident reports, and conference summary reports. Respondent has been repeatedly advised in writing of the concerns with her behavior, instructed to stop the unacceptable behavior, and advised of disciplinary consequences if the behavior did not stop. The writings in turn refer to verbal communications with Respondent about the same subject addressed in the writings. The writings also reflect a consistent theme of Respondent's problematic behavior arising when a superior would attempt to address a problem with Respondent's job performance. For example, Respondent would be told to clean certain areas, but Respondent would fail to follow the directives, and then Respondent would become agitated and loud when confronted regarding her failure to follow the cleaning directives. The first memorandum, dated January 9, 2004, was issued by Respondent's then-supervisor, Carlos Morales: Despite previous conversations regarding your job responsibilities as a member of the custodial staff at [Dunbar], it has become necessary for me to apprise you in writing of a serious concern regarding your insubordination . . . On Monday, January 5, 2004, you were asked to vacuum all offices, rooms, and hallways of the administrative wing. Upon checking the administrative wing on the morning of January 8th, many areas appeared in need of vacuuming. During my discussion with you regarding this matter, your verbal, agitated response became loud, accusatory and insubordinate . . . It was then noted you were approaching other school personnel regarding the discussion and your accusations. Employees who are insubordinate are subject to disciplinary action. I sincerely want you to be successful at [Dunbar,] but this requires more effort in your assigned duties. The teachers, staff, and students depend on you to do your part in making this a clean and safe learning environment. Respondent's performance evaluation for the 2003-2004 contract year echoed Mr. Morales' concern, by finding that Respondent "inconsistently practiced" effective communications with co-workers and supervisors. The comments informed Respondent that she needed "to work on her communication in times of questions of job requirements." The same inconsistent rating in the same category, with similar comments, appeared in Respondent's evaluation for 2004-2005. Respondent received good performance evaluations for contract years 2005-2006 and 2006-2007. No behavior problems were documented in her personnel file during that time. Respondent's performance evaluation for 2007-2008, completed in March 2008, found that although Respondent's job performance was "adequate," her punctuality and attendance "continue to be" areas needing improvement. Later that same year, in June 2008, an incident report was prepared by the assistant principal to document an incident between Respondent and her then-supervisor, Pete Torres. According to the report, Mr. Torres tried to discuss a concern with Respondent about her chronic tardiness, but Respondent "became very loud and disrespectful towards her supervisor, Mr. Torres." The assistant principal met with Respondent to discuss the incident, and determined that Respondent "was disrespectful towards her supervisor. Disrespect towards any school employee will not be tolerated. Any type of future disrespect will result in [a] documented performance letter." Respondent was advised that a documented incident report would be placed in Respondent's personnel file. Respondent's performance evaluation for 2008-2009 found Respondent's performance inconsistent in the areas of punctuality and communications with co-workers and supervisors. The comments noted inconsistencies with Respondent's "interpersonal skills and attendance issues." Shortly after this performance evaluation, on July 23, 2009, the assistant principal prepared another incident report to document an incident involving Respondent. According to the documentation, at a mandatory meeting and training session for all of the custodians with district zone manager Debbie Greene to review summer cleaning processes and procedures, Respondent "became very loud, disrespectful and belligerent towards her direct supervisor, head custodian Randy McMillan." The assistant principal held another meeting with Respondent to discuss the incident, and he determined that Respondent was disrespectful towards her supervisor. He also reminded Respondent that "this was the second documented incident involving disrespect towards a supervisor in the past two years." Respondent was told again "that this behavior is unacceptable and would not be tolerated." Respondent was advised that this documented incident report would be placed in her personnel file. For the 2009-2010 contract year, Respondent's performance evaluation continued to reflect issues in the communications areas. Respondent was rated as "inconsistent" in the following areas: "responds appropriately to praise and constructive criticism"; and "communicates effectively with coworkers, supervisors, and school-based staff." The comments regarding these ratings were: "Ms. Rice continues to have trouble responding appropriately to constructive criticism. Cooperating with supervisors continues to be an area of focus." The documentation in Respondent's personnel file from her years at Dunbar portrays a pattern of similar behavior by Respondent in her dealings with a number of different supervisors. This documentation put Respondent on notice that her behavior was not acceptable. Nonetheless, Respondent did not take away from her years at Dunbar that her behavior was not acceptable and needed to change. When Respondent was asked if she recalled having problems with her supervisors and other employees at Dunbar, she responded: Of course I've had problems with -- from the other school, but it was only by speaking my opinion because if someone asked me something I'm going to tell them how I feel, but it's not nothing about like cursing them or whatever, just let them -- I'm giving them my answer. And then the way I talk, they say that I be disrespectful to them because I have a hot-pitched tone voice, but I don't mean no harm on nothing I say. I just trying to express my opinion. Even when I talk, I talk with my hands and it don't mean that I'm trying to be rude or nothing, I'm just used to expressing my feelings. Respondent was involuntarily transferred to Lexington shortly after the beginning of the 2010-2011 contract year. The circumstances of this transfer were not established in the record. Respondent began working as a custodian at Lexington on August 9, 2010. She worked during the day over the summer, as did all of the custodial staff. When school was in session, Respondent was assigned to what was variously described as the afternoon, evening, or night shift (hereafter referred to as the "night shift"), working from 2:00 p.m. until 10:00 p.m. At Lexington, the building supervisor was in charge of the custodial department, and was the direct supervisor of the custodial staff. The work hours for the building supervisor position were from 8:30 a.m. to 4:30 p.m. Therefore, during the school year, the building supervisor's work day overlapped with the night shift by only two and one-half hours. After the building supervisor left for the day, the head custodian served as acting supervisor of the night shift custodians. The head custodian was considered the liaison between the building supervisor and the custodians. The head custodian would receive instructions and directives from the building supervisor in the afternoon, and the head custodian was responsible for giving directives to the night shift custodians and supervising their work to ensure that they carried out the directives. The head custodian position at Lexington was not a managerial position; the head custodian did not have authority to discipline the other custodians. However, by all accounts, the head custodian was vested with authority to give directives to the custodians working the night shift. The head custodian was reasonably expected to act as supervisor of the night shift custodians after the building supervisor left each day. Otherwise, these employees would be left unsupervised for two- thirds of their work day. During Respondent's first year at Lexington, the building supervisor was Jack Duffy and the head custodian was Rosa Valentin. According to Respondent, that year was "okay," in that she did not have any problems at work. However, according to Respondent's performance evaluation, which recorded her absences and tardy days through March 2011, Respondent missed a lot of work. In fact, the evaluation comments refer to a meeting with Respondent in February 2011 to address concerns with her attendance; improvement in Respondent's attendance was noted in the month following that meeting. Respondent had only been working at Lexington for seven months when assistant principal Jason Peters drafted Respondent's performance evaluation for the principal, Linda Caprarotta, to review and sign, in accordance with the standard practice. For this short period of time, during which Respondent frequently was absent and late, Respondent's performance was found inconsistent in the areas of using leave only when necessary and punctuality, but her job performance otherwise was found to be effective. However, the Lexington principal was not satisfied with the overall performance of the custodial department for the 2010- 2011 contract year, because the school was not being cleaned well. Ms. Caprarotta determined that the building supervisor, Mr. Duffy, lacked appropriate management skills. She found him to be too lax with the custodial staff. He was not comfortable supervising, giving directives, or confronting the custodians when their work was unsatisfactory. Therefore, Mr. Duffy was let go at the end of the 2010-2011 contract year. On July 6, 2011, Ms. Caprarotta hired Mack Farmer to replace Mr. Duffy as the Lexington building supervisor. Mr. Farmer had the management experience Ms. Caprarotta was looking for, having run his own cabinet manufacturing company for 25 years. Ms. Caprarotta informed Mr. Farmer of her expectations for better-quality cleaning services for her school, and her expectation that he would exercise stronger supervisory responsibility than the prior building supervisor to ensure that custodians were doing their jobs. The credible evidence supports a finding that before Mack Farmer was hired, the custodial staff at Lexington had a relatively easy time, with little expected or demanded of them by the building supervisor. The night shift workers, including Respondent, essentially had free rein to do things their own way, but their own way was not getting the job done. As Respondent put it, "Really I wasn't sure that they was watching me or anything, but they never told me that I wasn't -- that I needed to do better or anything[.]" Although Respondent's attendance had improved after a meeting was held in February 2011 to address the problem, the improvement was short-lived. In addition, problems had become apparent with Respondent's performance when she was there working. On July 13, 2011, Ms. Caprarotta and Mr. Peters held a meeting with Respondent "to address absenteeism/tardiness and work performance." The meeting was documented in a conference summary performance report and placed in Respondent's personnel file. According to the report, with regard to Respondent's work performance issues, Respondent was reminded that she was "expected to work thoroughly and continue to work/clean during her designated work times." Respondent testified that everything fell apart after Mr. Duffy was replaced with Mr. Farmer. Respondent was not happy with the change, and did not agree with it: Q: You heard Ms. Caprarotta, she wasn't happy with Mr. Duffy, she didn't think that he was requiring satisfactory services from the custodial staff, you heard that, right? A: Yes, I did. Q: And do you agree that it's the principal's choice as to who she wants as the building supervisor? A: Well, I don't agree, but I know that that's what I heard that that's mandatory that the principal have all the say-so on who she wants to be hired in her system. * * * Q: Okay. So whatever reason she had for replacing Mr. Duffy, is that your concern? A: No, it's not my concern, but it come down to my concern whenever she replaces Mr. Duffy and end up -- it's a stress-free environment and then it's very stressful on the people that I'm working under. According to Respondent, Mr. Farmer approached her on his first day of work and told her that he knew who she was and that she had better be careful because they were trying to get rid of her. The more credible testimony was a bit different from Respondent's description. Ms. Caprarotta credibly testified that when Mr. Farmer was first hired, she talked to him about the broader issue of the lack of cleanliness and need for better management of the custodial staff. She briefed Mr. Farmer about all of the staff members whom he would be supervising; Respondent was included, but not singled out. Mr. Farmer credibly testified that he spoke with Respondent not on his first day, but shortly thereafter, to tell her that she needed to change her behavior and improve her performance or she was going to lose her job. He had many conversations with Respondent, trying to get her to do her work, be a team player, and improve her behavior. Respondent acknowledged that she took away from Mr. Farmer's comments to her that she needed to improve: "I figure I better do a good job." In August 2011, shortly after Mr. Farmer began as building supervisor, Respondent was involved in an altercation with Rosa Valentin, then-head custodian. Respondent was called in for a conference with the principal, assistant principal, and Mr. Farmer. A conference summary performance report dated August 10, 2011, documented the incident and the conference, at which Respondent was reminded that one of her job requirements was that she must have the ability to work well with others, and that Respondent was expected to do so. Respondent was informed that her failure to comply will result in further disciplinary actions. The altercation addressed by the August 2011 conference summary performance report was described in somewhat-conflicting terms by several witnesses. The more credible testimony established that Respondent confronted Ms. Valentin, who was weeding the flower beds next to the school building. Another custodian was standing next to Ms. Valentin. Respondent made negative comments critical of Ms. Valentin, questioning why Ms. Valentin was not making the other custodian help with the weeding, and suggesting that Ms. Valentin would have made Respondent help if it were Respondent standing next to her. Respondent and Ms. Valentin argued, and Respondent called Ms. Valentin a "b****." Ms. Valentin went inside to the main office to report the incident to the principal. Respondent followed Ms. Valentin into the main office, where Respondent resumed her verbal assault on Ms. Valentin. Respondent was the instigator and the aggressor, and her behavior was completely inappropriate. Respondent did not deny the essential facts of this altercation. She did not deny having called Ms. Valentin a "b****." This incident stands in marked contrast to Respondent's testimony that she was never disrespectful and was just expressing her opinions. A custodian calling a head custodian a "b****" is no mere expression of opinion. Respondent's friend, Claytrina Griffin, another custodian who was with Respondent during the altercation, testified without a great deal of credibility that she did not see anything wrong with Respondent's comments. However, Ms. Griffin admitted that, unlike Respondent, she did not say anything to Ms. Valentin because whether Ms. Valentin required the other custodian to help her weed or not was none of Ms. Griffin's business. Shortly after this incident, Ms. Valentin requested to be moved to the day shift for personal reasons, even though that would mean she could no longer be the head custodian whose job was to supervise the night shift custodians. Ms. Valentin's request was granted, and her position was downgraded to a regular custodian at a lower pay grade. After advertising and interviewing candidates for the head custodian position, Jeff Hancock, who was a custodian at a different school, was hired as Lexington's new head custodian. Mr. Farmer and Mr. Hancock had specific ideas about how the cleaning should be done by the custodians. Just as Respondent expressed her dislike for the new, more demanding building supervisor, Respondent also made clear that she did not like the new head custodian. Ms. Griffin echoed Respondent's sentiments, complaining that Mr. Farmer and Mr. Hancock were demanding. Ms. Griffin complained that Mr. Hancock would spend too much time (which she quantified as five minutes), hanging around to tell Ms. Griffin what to do and how to clean, and repeating the same directive over and over. Both Respondent and Ms. Griffin testified that Mr. Farmer and Mr. Hancock had their own ideas regarding how they wanted the custodians to clean and neither Mr. Farmer nor Mr. Hancock liked it when Respondent or Ms. Griffin would clean their own way, as they apparently had been able to do when they had enjoyed lax supervision or no supervision at all. The key difference between these two custodians, however, is that Ms. Griffin would keep quiet and would just do her work in the way that Mr. Farmer and Mr. Hancock wanted it done. As a result, Ms. Griffin was able to finish her assigned cleaning duties by the end of her shift, even when she and the other custodians at work had to absorb extra duties because of absent workers. Respondent did not respond appropriately to being told how to do her work by Mr. Farmer and Mr. Hancock. Instead, Respondent responded with displays of the same type of behavior for which she had been taken to task when she worked at Dunbar. On December 16, 2011, Ms. Caprarotta issued a letter of reprimand to Respondent for being insubordinate and disrespectful to her supervisor, Mack Farmer, on December 7, 2011. Mr. Hancock was out that day, so Mr. Farmer stayed at work for the night shift. Mr. Farmer gave Respondent specific directions regarding cleaning her assigned rooms, telling her that she was to go into each room and clean it completely before going to the next room. Instead of following directions, Respondent went up and down the hallway, complaining and yelling at Mr. Farmer. Mr. Farmer directed Respondent to stop, but she continued. Respondent yelled at Mr. Farmer from one end of the hallway to the other, and followed him until she was in his face, yelling at him that he gave her too much work. If Respondent had not wasted the time she should have spent cleaning to walk up and down the hallway, loudly "expressing her opinion" to her supervisor, she might have found there was not too much work. That same night, in the middle of her shift, not during a break, Respondent went to Mr. Farmer's office to fill out a vacation request. Mr. Farmer instructed her to stop; he told her that she should not take the time to fill out a vacation request when she had not finished her cleaning assignments. Respondent ignored his directive, and kept filling out her request. As Mr. Farmer aptly described it, "This was [Respondent] doing what she wanted to do instead of doing her job." As a result of Respondent's failure to follow Mr. Farmer's multiple directives on just this one day, Respondent failed to complete her cleaning duties by the end of her shift. In the December 16, 2011, letter of reprimand, Ms. Caprarotta noted that Respondent had engaged in the same kind of insubordinate and disrespectful behavior on January 5, 2004, June 26, 2008, July 23, 2009, and August 8, 2011, and each time, Respondent's outbursts targeted a different supervisor. Ms. Caprarotta gave Respondent the following directives: Effective immediately, you are expected to treat your supervisor with respect. At no time should you be screaming or yelling in the work environment. You are expected to follow directives given to you by your supervisors. You are expected to finish all work assigned. Failure to comply with this directive will result in further disciplinary action up to and including termination. Despite the directives in the December 16, 2011, letter of reprimand, Respondent engaged in the same type of behavior, which was the subject of another conference summary performance report issued on February 16, 2012, and placed in Respondent's personnel file. The subject of this conference was Respondent's disrespect toward Jeff Hancock, the head custodian, described in the summary as Respondent's "Designated Supervisor . . . when the Building Supervisor is not present." When Mr. Hancock had given Respondent directives, she refused to listen to him and was rude and disrespectful. Respondent had to be reminded again that she was required to work well with others and was required to respect her designated supervisor by following directions. In the early spring of 2012, Mr. Peters drafted Respondent's performance evaluation for the 2011-2012 contract year. This evaluation reflected a marked deterioration from the prior partial-year's evaluation, consistent with the documented problems added to Respondent's personnel file. Respondent did not improve in the dependability section, receiving two inconsistent ratings. In the job skills section, Respondent's performance was deemed inconsistent in all five areas measured. Likewise, Respondent's performance was inconsistent in five of the seven areas in the interpersonal skills section; her two effective ratings in this section did not involve communications or interactions with others; instead, Respondent was found effective in dressing in an appropriate manner and being clean and neat in appearance. The evaluation comments reflected that Respondent "had issues with respecting authority," although, as before, she had shown improvement following the most recent meeting. In addition, Respondent was told that she needed "to improve her quality of work and be more efficient." Finally, her problems with tardiness and absences were noted. In May 2012, the Lexington principal made a referral to the DPSE to investigate Respondent for misconduct, including excessive absenteeism, disrespect, and insubordination. The principal testified that she made the decision to make the referral to the district level because all of the school-level meetings, discussions, written reports, and reprimands had been ineffective in bringing about sustained improvement in Respondent's behavior and performance. The details of the 2012 investigation were not established in the record. However, in accordance with the collective bargaining agreement between Respondent's union, the Support Personnel Association of Lee County (SPALC), and Petitioner (hereafter referred to as the SPALC agreement), the investigation file was provided to Respondent and her union representative, and then a predetermination conference was held. The predetermination conference in July 2012 was attended by Ranice Monroe, director of the DPSE, Respondent, and her union representative, Mr. Rushlow. In the predetermination conference, Respondent and her representative were given the opportunity to respond to the investigation material. The 2012 investigation concluded with a finding of probable cause to take disciplinary action against Respondent. Respondent received a formal letter of reprimand as disciplinary action for excessive absenteeism. In addition to the formal disciplinary action, Petitioner took other action to address Respondent's disrespectful and insubordinate behavior. Mr. Rushlow and Ms. Monroe went to Lexington to work with Respondent for the purpose of retraining, or "coaching," her. They gave Respondent instructions on how to relate to, and communicate better with, people. As Ms. Monroe recently reminded Respondent (in the 2013 predetermination conference that was the precursor to this disciplinary action), the hope was that Respondent would respond to this informal coaching assistance by improving her behavior.2/ Instead of improving her behavior in response to the coaching assistance, Respondent made no effort to change, because she continued to deny that there was any problem with her behavior: Q: Do you remember Mr. Rushlow and others coming out to the school and to try to coach you on how to relate to other people? A: They had to come and coach me simply because they was making false accusations so I had to go to the meeting and attended the meeting. That don't mean that happened. That do not mean that I talk back to them and that don't mean that happened. The ones that say that I talked back, it was just that I was expressing and giving them my point of view. But disrespecting them? That wasn't really no disrespect[.] According to the Lexington principal, after the July 2012 predetermination conference, Respondent had clear instructions to return to work, work hard, and keep her comments to herself; however, Respondent did what she was told for only about two weeks. She then fell into her old pattern of refusing to take instruction from her supervisors, Mr. Farmer and Mr. Hancock, and talking back to them. As an example, Ms. Caprarotta got involved in an incident in September 2012 when Respondent would not listen to Mr. Hancock's instructions regarding the order in which Respondent was supposed to clean her assigned rooms. On several occasions, the kitchen science teacher had complained that her room was not being cleaned and she had to sweep and mop it herself. Meanwhile, Respondent was not able to regularly finish her cleaning assignments by the end of her shift, but Mr. Hancock would require her to clock out and leave her work unfinished, because overtime pay was not allowed without prior approval. In an attempt to partially address these problems, Mr. Hancock instructed Respondent to clean the kitchen science classroom first, but Respondent responded rudely, yelling at him. Ms. Caprarotta was informed, and spoke with Respondent about the incident. Respondent told the principal that "that man does not have to tell me what I need to do; you should hear what he says to me, he treats me like a slave." When Ms. Caprarotta asked what exactly she meant by that, Respondent replied: "He keeps trying to tell me what to do." Ms. Caprarotta informed Respondent that Mr. Hancock is her supervisor during the night shift and she had to listen to him and comply because her rooms were not getting clean every night. At this point, Ms. Caprarotta instructed Mr. Hancock to keep Mr. Farmer, Mr. Peters, and herself informed regarding Respondent's behavior and job performance. In addition, she and Mr. Peters began following up to inspect areas where cleaning problems were called to their attention, so that they could judge for themselves. While Respondent contends that she was being unfairly targeted for scrutiny, the credible evidence established that Respondent's performance was reasonably subjected to scrutiny, brought on by Respondent's own failure to perform well, and by her inappropriate outbursts directed to her supervisors when they tried to address the problems with her work. On November 20, 2012, Mr. Farmer inspected the school and provided Mr. Hancock with an inspection report that listed items and areas not cleaned sufficiently during the previous evening shift. The boys' and girls' bathrooms on the first floor, which were Respondent's assigned areas, were on the report, with specific items listed that were not cleaned.3/ Mr. Farmer also reported the cleaning deficiency to Mr. Peters, and had Mr. Peters personally inspect the first floor bathrooms. Mr. Peters agreed with Mr. Farmer's report that the bathrooms had not been cleaned properly. Mr. Hancock gave Respondent the list of items that she had failed to clean adequately the previous day. Respondent did not complete the items on the list that day, and Respondent took leave the next day, so Mr. Hancock had to finish the cleaning. Although Respondent first claimed that she was completely unaware that there were any problems with the quality of her cleaning in the fall semester of 2012, she admitted that she remembered Mr. Hancock going over a list of things that had not been cleaned in the bathrooms. Respondent minimized the problems, claiming that they were nothing substantial. Respondent's claim was not credible; Mr. Farmer observed such problems as not emptying and cleaning the feminine sanitary receptacles, and not cleaning dirt and grime on stall doors and door handles that was built up to the point where it was clear that the cleaning had not been done properly in weeks. On one afternoon after school in mid-October 2012, then-assistant principal Lisa Eastridge went to the "time-out room" to return some books. She found the room locked, with the lights off. She unlocked and entered the room, and started walking across to put away the books she was returning, when she was startled to see that Respondent was there, seated at a student desk, with her head down on the desk. At about the same time, Respondent realized that Ms. Eastridge was in the room and jumped up. Ms. Eastridge asked Respondent if she was all right, and Respondent said she was fine. Ms. Eastridge put the books down and left. Thereafter, she checked with Mr. Farmer to find out if Respondent was on her break at the time, and confirmed that it was not Respondent's break time. The next day, after Respondent learned that Ms. Eastridge had spoken to Mr. Farmer about the incident, Respondent sought out Ms. Eastridge to tell her that she had not been sleeping. Ms. Eastridge told Respondent that she did not tell Mr. Farmer that Respondent had been sleeping, but told him that she found Respondent in the time-out room with the door locked and lights off, and Respondent's head down on the desk. At the hearing, Respondent claimed that Ms. Eastridge was lying about this encounter, although Respondent offered no reason why Ms. Eastridge would lie. Respondent claimed that the actual encounter between herself and Ms. Eastridge in the time- out room was over the summer, that there were no desks in the time-out room because they had been removed so the floors could be done, that Respondent was in the bathroom off of the time-out room, and that Ms. Eastridge found her there when she exited the bathroom. While the encounter Respondent described may have also occurred, Ms. Eastridge's description of a different encounter in mid-October 2012 was credible, and not credibly refuted by Respondent. Later in October 2012, Ms. Eastridge was exiting a stairwell when she observed Respondent in a confrontation with Mr. Farmer. They had their backs to her, and so they did not see her. Mr. Farmer was speaking politely and softly, attempting to go over the cleaning procedures with Respondent, explaining that she needed to clean the home science classroom first and then make sure the bathrooms are clean. Respondent responded loudly and disrespectfully, yelling at Mr. Farmer that she knew what she was supposed to be doing, and arguing with him as he was gently trying to explain why she needed to clean the areas in a certain order. Ms. Eastridge stood there for a moment to see if she needed to intervene, but Respondent and Mr. Farmer proceeded down the hallway away from Ms. Eastridge, so she just went on her way. Ms. Eastridge also observed Respondent in similar confrontations with Mr. Hancock. On one occasion during the 2012 fall semester, Ms. Eastridge came upon Respondent and Mr. Hancock in the hallway outside of the custodial office. Mr. Hancock was trying to talk to Respondent about making sure to clean the bathrooms properly. Respondent, however, was being very loud and argumentative, yelling and screaming at Mr. Hancock. Ms. Eastridge stopped to ask Mr. Hancock if she needed to intervene and assist. Respondent attempted to downplay the confrontation, saying that they were just having a conversation. Ms. Eastridge advised Respondent that she needed to conduct her conversations in a peaceful, quiet, respectful tone of voice, not yelling and screaming at Mr. Hancock. Respondent was involved in another confrontation with Mr. Hancock on December 19, 2012. At the beginning of her shift that day, Respondent had cleaned the courtyard adjacent to the cafeteria, wiping down the outdoor tables and removing the trash. She then joined the other custodians to clean the cafeteria. Respondent noticed that teachers were bringing food out to the courtyard, and she learned that they would be meeting with parents for a parent-teacher organization (PTO) meeting. Respondent got angry and started yelling at Mr. Hancock across the cafeteria that she was not going to clean up again after the teachers were done. Respondent admitted that she asked Mr. Hancock "what type of head custodian are you," and told him that it was dumb to send her out to clean the courtyard when the teachers were going out to mess it up again.4/ Respondent did not believe she was disrespectful to Mr. Hancock: "I'm only expressing and all I told him was that was a dumb -- you know, like that was a bad choice that you made[.]" After Respondent "expressed her opinion" that Mr. Hancock was a bad head custodian who made dumb choices, Mr. Hancock just walked away. Respondent followed him to make sure he was not going to report what she had said to the principal. Mr. Hancock testified credibly that Respondent was shouting at him that he had better not report her to the principal. On December 21, 2012, Mr. Farmer inspected the classrooms before the winter break. He found that several classrooms in Respondent's assigned areas had not been dusted, cleaned, or vacuumed for quite some time. Mr. Farmer had Ms. Caprarotta inspect the rooms, and she found them noticeably dirty, with corners full of dust, dirt, and paper scraps, and shelves and counters "filthy with dust." When Mr. Farmer spoke with Respondent about these problems, Respondent blamed the teachers for doing things in the classrooms to make them so dirty. Mr. Farmer ended up cleaning the rooms himself. Mr. Farmer testified credibly that Respondent was repeatedly insubordinate to him by refusing to follow his directives, and by telling him that he was not her boss and could not tell her what to do. When Mr. Farmer tried to tell Respondent to do her job, she would laugh at him and tell him that she was going to bring harassment charges against him. Respondent denied that she ever told Mr. Farmer he was not her boss, but admitted telling him that "he really not no professional on being no building supervisor. He might have supervised where he had his cabinet shop, but you're not doing it right." Respondent also denied laughing at Mr. Farmer, but admitted threatening him with harassment charges when he would tell her to do her job. As evident from the following exchange, Respondent ultimately admitted that she did not accept direction from either Mr. Hancock or Mr. Farmer, even though she acknowledged that Mr. Farmer was her direct supervisor; Respondent then tried to blame the union for her own refusal to follow Mr. Farmer's directions, as if the union somehow had led her to believe she could be insubordinate: Q: Barbara, do you not believe that a supervisor or boss should be able to direct the people that they supervise? A: I believe so. That's why I give Ms. Caprarotta so much respect because she's our boss, but because she acted like a boss, she performed like a boss. But Mr. Farmer and Mr. Hancock, they didn't perform like they should be telling me nothing, and I should have went to the principal. I didn't never do it. I should have went to the principal with all of this, but I never did it. * * * Q: Doesn't it mean anything to you based on the respect that you have for Ms. Caprarotta that she hired Mr. Farmer and that should mean something? A: Well, as we talking now it means something now. I have respect now. But then I wasn't thinking that way. I wasn't thinking that way. I was only thinking that she's just my boss, no one else, because the union kept throwing in my face that John [sic: Jeff] Hancock, he's not your boss, he can't tell you this, and this all I was going on. You know, you know, like miss -- like Bob Rushlow said, oh, I'm gonna file a grievance I don't even know what all the half of this stuff is. Q: Do you feel like the union misled you? A: That's right. I feel like they did. Maybe I wouldn't be doing the type of acts like I was doing. Ms. Caprarotta credibly testified to the lengths that Lexington personnel went to in their attempts to curb Respondent's misbehavior and improve her work performance, including in the performance conferences detailed above and in informal conferences with Respondent and union representatives. In one of the informal conferences with Respondent and her union representative during the 2012 fall semester, attended by Ms. Eastridge, Respondent got angry and belligerent in response to Ms. Eastridge's description of Respondent's confrontation with Mr. Farmer (addressed in paragraph 50 above). Respondent slammed her hands on the table angrily and yelled at Ms. Eastridge that she was not even there. Ms. Caprarotta personally met with Respondent many times to address the numerous incidents brought to her attention during the 2012-2013 contract year. Ms. Caprarotta tried to coach, counsel, and direct Respondent to control her temper, listen to her superiors, and just do her work. Ms. Caprarotta told Respondent that if she did not heed the warnings she had been given time and time again, she was going to lose her job. Ms. Caprarotta testified that she liked Respondent and tried hard to get her on track. For a brief period after each time they met, Respondent's performance and attitude would improve. However, Respondent would always slide back into the unacceptable pattern of disrespect and insubordination directed to the head custodian and the building supervisor, and not doing a good job cleaning her assigned areas. On January 9, 2013, Ms. Caprarotta gave Respondent a 30-day notice that she would be reassigned to the day shift. The principal made this decision because she believed it was necessary to micromanage Respondent, keeping her under the watchful eyes of the principal, assistant principals, and building supervisor. There was not really a day-shift position for another custodian, and the reassignment would leave the night shift short one custodian. This move was, therefore, not so much of a solution or chance for redemption as it was a gesture of defeat. Before the reassignment went into effect on February 11, 2013, the Lexington principal made a referral to the DPSE, requesting that Respondent be investigated for insubordination and inadequate job performance.5/ As Ms. Caprarotta explained to the DPSE investigator: I have been in an administrative position for the past 16 years. I have spent more time dealing with [Respondent] than I have with any others combined. The situation is continual with little to no progress. . . . [When the shift change goes into effect], I will have to micromanage her all day every day. . . . I do not need her during the day and the night shift will now be a person short, however, I will not tolerate the insubordinate and unprofessional behavior towards my staff any longer. Respondent was under the impression that she was doing well on the day shift. However, the arrangement could not last; Respondent's job position was needed for the night shift, for cleaning empty classrooms and bathrooms when students and teachers were gone for the day. Respondent made clear in her testimony at the hearing that she is unwilling to change her behavior. During the 2012- 2013 contract year, up to the date of her suspension, Respondent was repeatedly confrontational and disrespectful with her direct supervisor, with the head custodian when he was her acting supervisor, and with at least one assistant principal. Respondent repeatedly refused to follow reasonable directives from her direct supervisor. Respondent repeatedly refused to follow reasonable directives from the night-shift acting supervisor. Respondent repeatedly refused to follow reasonable directives from the principal, such as the directive that Respondent must take direction from the head custodian. Respondent attempted to establish at hearing that the 2013 investigation took her by surprise, because she had no idea that anyone had a problem with the quality of her work or with her behavior during the 2012-2013 contract year. This claim was not credible, and was refuted by Respondent's own testimony that was diametrically opposed to the claim of surprise. Respondent testified that she knew that her performance was under scrutiny, because Mr. Farmer and Mr. Hancock watched everything she did and picked on every little thing. Quite plainly, then, Respondent was aware that her supervisors were not pleased with the quality of her work, but she did not attempt to address their criticisms. Instead, Respondent viewed the criticisms and cleaning directives as provocation for her to respond angrily and disrespectfully. According to Respondent, Mr. Farmer and Mr. Hancock made her be disrespectful and insubordinate to them; they knew that if they gave her directions, she would "snap" and refuse to follow their directions. As Respondent described it: It was always whatever you have to do they would -- while I'm doing it they would steady coming in repeating the same thing over just torturing me when I already done heard them say it. And so that make me -- provoke me to snap and say I done heard that, just get out of my face, I done heard that or something like that. It's just like it was a ongoing, never stop situation on just nagging me, that's all. So it made me felt like . . . I was doing my job, but how can I finish in time if they steady come every other 30 minutes in the room saying speed up or saying the same thing over, I want you to do this or then the next one will say the same thing. Notwithstanding Respondent's perception, a supervisor's directives to a subordinate employee regarding how the supervisor wants the employee to carry out his or her job does not constitute "nagging." Rather than treating such directives as nagging or as provocation that had to be met with a harsh response to "get out of my face," Respondent should have curbed her tongue, accepted the supervision, and followed the directives as part of Respondent's job responsibility. Respondent was not entitled to free rein to work in the manner she saw fit, nor was Respondent entitled to harshly criticize her supervisors when they sought to direct Respondent in the manner in which she was to carry out her job. No credible evidence was presented to establish that the directives given to Respondent by either Mr. Farmer or Mr. Hancock were unreasonable. Instead, Respondent just disagreed with how her supervisors wanted her to perform her assignments, and bristled simply because they would tell her what they wanted her to do. For example, when Respondent was having trouble cleaning all of her assigned rooms by the end of her shift, Respondent was directed to clean her rooms in a certain order so that the most important rooms, or the rooms that had been the subject of complaints (such as the home science classroom), would be done first. Respondent disagreed with this directive, and rather than simply following orders, she argued with the directive, violated the directive, and then argued some more. Respondent told her supervisor, Mr. Farmer, that he was not qualified for his job and had no business telling her how to clean. At the hearing, Respondent stubbornly stuck to the mantra that she was only expressing her opinion when asked, and did not intend any disrespect. Respondent's claim was not believable. Surely, Respondent does not expect anyone to believe that Mr. Farmer asked Respondent for her opinion regarding whether he was qualified to supervise her. Respondent's comments were blatantly disrespectful and grossly insubordinate. Perhaps Respondent was capable of doing a good job cleaning, but with all of the time and energy she spent complaining, criticizing, and talking back to her supervisors, she proved incapable of doing her work in the remaining time. And even though Respondent acknowledged that she had problems finishing her assigned work by the end of her shift, Respondent reacted badly whenever her supervisors would tell her to hurry up, that she needed to pick up the pace in order to finish in time. Respondent reacted to such comments as provocation for another round of angry responses, yelling at her supervisors that she did not need to hear "that junk" and that they should "get out of her face." Respondent attempted to blame her inability to finish her assigned cleaning duties by the end of her shift on the extra cleaning duties she had to absorb when other custodians were absent or tardy. Respondent attempted to prove that the custodial staff at Lexington had an unusually high number of absences and tardy days during the 2012-2013 contract year, and therefore, her inability to finish her cleaning was the fault of administration for not hiring more staff. The credible evidence did not prove Respondent's theory. Attendance data was offered only for the 2012-2013 contract year; no comparative data was submitted for other years. Testimony by school officials was that the custodial staff always took a good number of days off, especially near weekends and holidays, and they were entitled to their leave time; 2012-2013 was not considered to be an unusual year in this regard. Although the attendance data offered by Respondent showed a fair amount of absences in 2012-2013, most of the absences by night shift custodians did not take place until after February 8, 2013, which was Respondent's last day working the night shift. Respondent pointed to one custodian, in particular, who missed many whole and partial days due to an on-the-job injury. However, most of those absences were after February 8, 2013. Therefore, the absences of custodial staff were not shown to be the cause of Respondent's recurring inability to finish her assigned cleaning duties when she was on the night shift through February 8, 2013. Significantly, the only other regular night shift custodian to testify, besides Respondent, said that she has always finished her assigned cleaning duties by the end of her shift, even when she has extra cleaning duties to make up for other custodians who are not working. During the 2012-2013 contract year, up until Respondent's suspension, Respondent repeatedly was told of the shortcomings in the quality of her work, from not cleaning the bathrooms properly, to not vacuuming and mopping the home science classroom floors, to not vacuuming and dusting her assigned classrooms, to not finishing her assigned cleaning duties by the end of her shift. Moreover, Respondent was well aware of the repeated confrontations she had with the head custodian, custodian, with the building supervisor, and with assistant principal Eastridge.6/ Respondent has no one but herself to blame for minimizing or trivializing these incidents, and ignoring the many warnings and chances she was given. Inexplicably, despite all the warnings Respondent had been given that her misbehavior was unacceptable and could result in termination, Respondent decided that she did not have to take the warnings seriously, because she did not think her misbehavior was unacceptable as she had been told repeatedly: I felt like disrespecting wasn't -- if you disrespect somebody, you got to be really cursing somebody out, or this here and that, or if for me to get to get to this far I have to done stole something or demolished the school or something. In terms of process, the evidence established that Petitioner followed the procedural requirements of section 7.10 of the SPALC agreement, by conducting an investigation in early 2013 upon request of the Lexington principal, by providing the investigative file to Respondent and her union representative in advance of the predetermination conference, and by conducting a predetermination conference on March 14, 2013, at which Respondent and her representative had the opportunity to respond to the investigation material. The result of that process was the Petition, and Respondent has had every opportunity in this proceeding to put Petitioner to its burden of proof and to present evidence in defense of the charges against her. As is evident to some extent from the hearing transcript, Respondent's testimony and demeanor at hearing only served to corroborate the testimony of Lexington personnel describing Respondent's chronic misbehavior. Despite numerous instructions by the undersigned and by Respondent's own lawyer, Respondent comported herself as follows: she would not listen to questions; she gave answers that did not match the questions or that went far beyond the questions; she criticized questions directed to her instead of answering; she repeatedly offered comments when there was no pending question; she repeatedly interrupted; she was angry and belligerent at times, and impatient at other times, at one point announcing to her own lawyer in the middle of his questioning: "I want to go home."7/ Respondent's lack of self-control on display at hearing added credence to the testimony of numerous witnesses describing Respondent's chronic misbehavior that was at the heart of the charges against her.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Lee County School Board enter a final order terminating the employment of Barbara Rice. DONE AND ENTERED this 20th day of December, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of December, 2013.
Findings Of Fact Petitioner: was employed by Respondent as a counselor at the Palm Beach Juvenile Detention Center. In an effort to break up a fight among teenagers while employed on April 14, 1986, Petitioner was pushed against a wall at the Detention Center and sustained an impact injury to the upper portion of his right shoulder and its superior aspect. When Petitioner commenced his employment with Respondent on July 18, 4983, he signed a statement acknowledging receipt of the Department's employee handbook and acknowledging his personal responsibility to review the contents thereof. (Respondent Exhibit 1). That handbook provided, in part, as follows: If you expect to be absent from work for any reasons, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work, you must notify your supervisor. Absence without approved leave is cause for disci- plinary action. If A you are absent for 3 consecutive work days without authorization, you may be considered to have abandoned your position and thus resigned. Following the injury, Petitioner was referred for physical therapy consisting of, among other things, ultra sound and hot packs to the neck and back. Petitioner convalesced from the time of injury during April, 1986 through November 13, 1986 at which time he was released and authorized to return to work by his treating physician. Also, on November 13, 1986, Workers Compensation advised Petitioner that based on his release by his physician, he would not therefore receive further compensation benefits and was therefore to return to work. Petitioner was advised to report for work on November 14, 1986. Petitioner did not heed that directive and report for work. By certified letter dated November 25, 1906, Petitioner was again advised by Karen Christian, Assistant Detention Center Superintendent, that "if we do not hear from you within five (5) days after date of this letter, it will appear that you have abandoned your position". (Respondents Exhibit 3). Petitioner acknowledged receiving the referenced letter from Karen Christian. Petitioner did not return to work as directed and was terminated from employment on December 10, 1986 based on his failure to report to work and his failure to obtain authorized leave from his supervisor to be absent from work. Karen Christian would have offered Petitioner either reduced hours or sedentary duties to accommodate him if, as he contends, he was unable to stand for extended periods or to use his right upper extremity. Petitioner contends that he was unable to report to work inasmuch as the injury he sustained during April, 1986 left him without use of his right arm. Based on Petitioner's claimed loss of use of his right arm, he was referred to three physicians who conducted an extensive examination of Petitioner to determine evidence of any anatomical or physical impairment of Petitioner's upper extremity. All of the examining physicians found no anatomical defect consistent with Petitioner's clinical presentation. Petitioner offered no believable explanation for his failure to report to work on December 8, 9 and 10, 1986 or to otherwise obtain authorized leave for the above-referred three consecutive work days.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner abandoned his position of employment with Respondent and resigned from the career service. RECOMMENDED this 8th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of July, 1987. COPIES FURNISHED: Eddie Harris Post Office Box 9224 Riviera Beach, Florida 33419 K. C. Collette, Esquire Department of HRS 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Villa, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Respondent, Michael J. Osborn, has been employed by the City of Clearwater for 9 years, first as a Service Worker I and then a Service Worker II for the Water Division. He began work with the city on December 5, 1983. He was so employed at all times pertinent to the matters at issue herein. Before coming to work for the city he was employed as a construction worker and has an 8th grade education. His general duties with the Water Division ran the gamut of physical stress and included digging, jack hammering and other tasks of a like nature. Respondent admits that over the years, he has reported a number of injuries to his back. Records of the city reflect 11 reports of incidents involving such injuries. The first took place in March, 1986 and the most recent is the one in issue here. He claims the most serious of his injuries resulted from an automobile accident he had on duty in 1988 when he was rear- ended by a vehicle traveling at a speed of more than 40 miles per hour while he was driving a city truck. As a result of that injury, he was out of work for 3 or 4 days and while he underwent no surgery as a result thereof, he was given treatment and medications for it. When released by the physician, he returned to his regular duties but has complained of continuing soreness in his lower back. After that accident, Respondent complained to his supervisors about his back problems on 3 or 4 occasions and was given intermittent time off. He was also placed on light duty up to December, 1992. This included painting fire hydrants and line spotting, neither of which gave him any trouble unless it involved physical digging. However, he was also assigned to painting lockers and other areas which did cause him pain when it was necessary for him to stretch or bend to reach areas to be covered. He claims never to have been totally free of back pain and discomfort since the 1988 accident. However, he persisted in doing his work because it was his job to do and he claims he didn't want to complain. This latter assertion, however, is contradicted by the testimony of his coworker, Mr. Baxter, who related Respondent was always complaining about something. In any case, Respondent never sought lighter work and no one ever suggested it. On the morning of January 4, 1993, Respondent reported to work as usual. Though his associate, Mr. Baxter, was the one who usually filled the water cooler on their truck, on this morning Respondent did so. He took the cooler, which was about 2 - 3 feet tall, off the truck, dumped out the old water, and refilled it with ice and fresh water. When he thereafter stooped with bended knee to pick it up and carry it back to the truck, he experienced a shooting pain down his left leg. This had happened before, but on this occasion the pain was unusually bad. He immediately told Mr. Baxter what had happened and suggested the incident be reported. When he saw the supervisor, he was told to fill out the required paperwork and then see the nurse, which he did. When Respondent told the nurse what had happened, she questioned him about the incident and then sent him to the walk-in clinic to whom all mobile injured employees are sent. She did not offer him transportation so Mr. Baxter took him there in a city truck. The doctor at the clinic, after examining him, told him there was nothing they could do for him there and referred him to Dr. Sena, an orthopedic surgeon. Respondent's request to see a chiropractor was refused. When the clinic doctor released Respondent, Mr. Baxter drove him back to the city nurse's office where he picked up the paperwork to take to Dr. Sena's office when he met his January 7, 1993 appointment. In the interim, between January 4 and January 7, Respondent stayed at home and took it easy, taking the medications which had been prescribed for him. On January 7, 1993, Respondent drove himself to Dr. Sena's office, even though he had been told not to drive, because he had no other way of getting there. Usually, he did not see Dr. Sena but saw Dr. Rehme, Sena's associate, and also a qualified orthopedic surgeon, instead. After the examination on January 7, 1993, Respondent was given a duty excuse until January 13, 1993, reflecting a total disability. He took that document back to the city nurse's office and went home. The physician's notes of that first examination reflect a diagnosis of acute back strain and spondyolesythesis. He was placed on bed rest and given a duty excuse for one week along with appropriate medications. While Dr. Sena indicated in his testimony that he considered bed rest to mean staying in bed except for meals, toilet, and personal hygiene, Respondent claims he did not understand the doctor's instructions to mean staying in bed for longer than one night. He also asserts the doctor did not tell him what activities he might perform. In any case, he was scheduled to begin physical therapy after his next visit scheduled for January 13, 1993. On that visit, the physical therapy appointment was set up, and he commenced that regimen right away. The doctor's notes concerning the January 13 visit again reflect the Respondent was not to return to work. Dr. Sena indicated that the diagnoses rendered and course of treatment prescribed by either him or Dr. Rheme were based on the representations made as to his condition by the Respondent. Respondent was referred to Ms. Pearson, the physical therapist who first saw him and conducted an initial evaluation and assessment of his condition at her facility on January 27, 1993. At that time, Respondent showed an increased pulling in his lower back muscles, and he was complaining of back pain and pain down his left leg. He said he could not lift or work at that time. As a result, she prescribed very gentle exercises for him and scheduled him for a return visit on January 29, 1993. When she saw him that date, he claimed he had increased pain after exercise and soreness in his buttocks and legs. She repeated the previously prescribed exercises and added some new ones and started him on the treadmill to strengthen his muscles. On his next visit to Ms. Pearson on February 1, 1993, Respondent continued to complain of mid to low back pain and on that date and again on his February 3, 1993 visit, she continued the course of treatment. On the latter date, however, Respondent complained of pain in his left hip when standing or walking but he indicated his leg weakness was decreasing and his back felt stronger. During his visit on February 5, 1993, Respondent reported his back was still painful. He said he had seen the doctor that morning and was given a work excuse for an additional 3 weeks. During their conversation, Respondent said he was worried he would hurt himself more if he went back to work. When he came in on February 8, 1993, Respondent complained he had had pain all weekend and that walking was painful. On February 10 and February 12 Respondent cancelled his appointments due to a head cold and Ms. Pearson did not see him again until February 15, 1993 when he indicated his back was stiff and sore but his leg was "OK." On that date, Ms. Pearson observed him limping on his left leg. On his February 17 visit to the physical therapist, Respondent complained of continued back stiffness and soreness but claimed his leg pain was less. On the 19th he complained of a lot of back pain and spasm. Ms. Pearson verified the spasm through palpation of the muscles but his pain reports are based on his comments. Nonetheless, on February 22, Respondent reported being somewhat better. Ms. Pearson continued the exercises she had prescribed. On February 24, when he came in, he said his back pain was a lot less severe. He related he had been working around the house and on his trailer and reported he thought he'd been videotaped while doing so. At that point, Ms. Pearson advised Respondent that if he had been working on his trailer, he could go back to work and he agreed he could do light duty. He also claims that at one point, on or before February 15, 1993, before he knew he had been video taped, he advised Ms. Pearson he was starting to work on his trailer and she allegedly said it was a good idea. Nonetheless, he failed to show up for his scheduled February 26, 1993 appointment or thereafter. Ms. Pearson's prescribed treatment exercises contained neither lifting nor more than very light exercising. There was nothing she prescribed that was comparable to lifting a small child, pushing down on a seesaw, or unloading or lifting full sheets of plywood. None of those activities would be consistent with what Respondent reported of his condition or what she observed regarding him. For example, muscle spasm is not something that can be faked. If she palpated and felt spasm or no spasm, she would note as appropriate. Her records of Respondent's treatment show a fairly consistent hardness of muscle, more or less, most of the time she observed him. Respondent indicates, however, that he was usually supervised, during his therapy, by Pearson's assistant since Pearson was not there all the time. When he spoke with her, their conversation was casual. Her testimony as to continuing spasm is not particularly persuasive, therefor, and in any case, muscle spasm alone does not necessarily preclude all activity. During the course of his physical therapy, Respondent continued to be seen by the orthopedists. On January 22, the doctor noted he was improving nicely and noted the possibility he could return to work in 2 weeks. On February 5, the doctor continued the prescription for physical therapy and bed rest. Between that visit and the Respondent's next scheduled appointment on March 1, 1993, Dr. Sena was furnished the video tape of Respondent's activities which had been taken between January 13, and February 23, 1993 by a private investigator hired by the city to conduct a surveillance on the Respondent. When Mr. Osborn came in for the scheduled visit, the doctor noted that his lumbar strain was resolved and he could return to full time regular duty. Osborn indicates that when, toward the end of his series of visits, the doctor suggested he might go back to light duty, he, Respondent, said there was no such thing, and the doctor agreed to keep him off work for a few more weeks. This was the only time either doctor suggested he go back to work, however, prior to the termination of his duty excuse. In that regard, Respondent claims he had been placed on light duty after previous injuries and ended up in more pain than before. He claims he was required, as a part of his "light" duties, to bend and stretch, during painting, all of which, he contends, aggravated his condition. Respondent also admits to having been asked to give his testimony by deposition with regard to another litigation to which he is a party. Though his counsel in that action claims Respondent refused to attend the deposition because he was on bed rest, Respondent denies having given that reason. He claims he refused to be deposed because he felt that to do so might create a conflict in the lawsuit. The counsel's testimony, and that of her paralegal who also spoke with Respondent and recalls much the same as counsel, is considered the better evidence on that issue and it is so found. Respondent admits to having worked on his trailer but claims that at that time, when he was taped, he was recovered and felt he could return to full duty after he saw the doctor on his next scheduled visit. Because of this, he was trying to get himself into shape to go back to work. By that time, he claims he had no further physical problems and felt he was cured. With regard to the trailer work, however, Respondent claims someone else took the old paneling off and he was putting new paneling on. The trailer was parked in his front yard and he was making no effort to conceal what he was doing. As to the other matters appearing on the video tape, Respondent denies having pushed the child up and down on the seesaw. Though someone may have been assisting on the child's end, the tape clearly shows Respondent to be bending down and up repeatedly with his hands on the end of the seesaw. This tape, recorded on several different days over the period January 13, through February 23, 1993 shows Respondent walking without any evidence of a limp or of pain, even on the earliest date recorded. He is shown to bend over from the waist, and to squat to place a tag on his auto license plate. On February 15th he is seen carrying 2 filled large trash containers out to the curb, one in each hand and to bend over at the waist to pick up the newspaper. About the same time, he is seen reaching above his head with both arms to affix something to his trailer. Around the same time, he is shown lifting his young granddaughter from the ground, using his arms, and is observed repeatedly climbing up to the top of a slide to help her slide down. He used his arms and his back to push the child up and down on a seesaw, but in all fairness, it must be said he appeared to have been helped in that effort by someone else on the other end. On February 23, 1993, while at the city dump, he is shown to climb into the bed of his pickup truck and pull trash and scrap lumber, including what appear to be numerous 4 by 8 foot sheets of plywood, out of the truck by himself and toss them into the pit. Later that same day, he was observed working on the reconstruction of his trailer, carrying full sheets of plywood and affixing them to the trailer's frame without assistance. He used hand and power tools in his work and repeatedly sat, squatted, got down on his hands and knees, twisted his back and waist and did other things apparently inconsistent with his claimed condition, all without apparent pain or discomfort. His activity was not consistent with his continued limping and claims of pain to Ms. Pearson as she reported it. Dr. Sena opined, from his review of the video tapes referred to above, that if Respondent could do the things he was observed to be doing on the tapes, he would be capable of performing his regular duties and was not temporarily totally disabled from the first day shown on the tapes, January 13, 1993. The functions which Respondent could perform, consistent with his initially reported condition and the instructions as to bed rest given him by the doctor, would include driving to and from the doctor's office and light physical interaction with his grandchild. If Respondent could do those things other than driving to the office visits, however, in the doctor's opinion, he could do light duty. On the other hand, however, he should not be able to work on his trailer if that work included lifting and placing heavy sheets of plywood. If Respondent could accomplish the letter acts, he would most likely suffer no disability and could work at his regular job. It should be noted that none of the notes prepared be either doctor who saw Respondent, Rheme or Sena, specifically indicated what Respondent represented or portrayed his physical condition to be to them or the office staff. The notes are not detailed and reflect only diagnosis, and prescribed treatment. In light of Dr. Sena's comments that the physicians' notes are based, in great part, on what the patient relates to them, it must be found that Respondent made representations consistent with their diagnosis of continued pain and disability. These representations would appear, at least from February 15, 1993 on, to have been less than accurate. On January 4, 1993, Respondent filled out a notice of injury for Josephine Dixon, Water Distribution Operations Supervisor for the city, and a superior in Respondent's chain of supervision. She has observed Respondent come to the work place during his recuperation period driving his pickup truck with his lawn maintenance equipment in tow. He admits he operates a limited lawn maintenance service for four clients in his off-duty time, but denies having engaged in any lawn maintenance activities during the period in question however and there is no evidence he did. Ms. Dixon reiterates Respondent's long series of back injuries and indicates that in the year prior to the instant injury it was sometimes difficult to find a partner for him because of his reputation for not carrying his share of the workload. The only coworker to testify at the hearing was Mr. Baxter who related nothing either to confirm or contradict this allegation. The performance report rendered on Respondent just prior to the injury in question, however, reflects an overall rating of I. (Improvement Needed). Mr. Hackett, Respondent's overall supervisor, discussed his performance with Respondent's immediate supervisor. The general opinion is that while Respondent is technically very capable, he has a history of being somewhat lazy, and many employees did not want to work with him because he did not carry his share of the load. Mr. Hackett has no knowledge of any specific representations Respondent made to his doctor. However, when considering the Respondent's history of repeated back injuries; his apparent lack of disability shown in the tapes recorded by the private investigator, and the indications by coworkers that Respondent did not pull his share of the load, Hackett and other responsible city officials concluded that Respondent's claim was without merit. At this juncture he admits perhaps Respondent should have been counselled on his ability to do his job earlier on, but this was not done. In deciding to initiate the termination action, he coordinated with and secured the concurrence of the city's risk management staff. This action was approved by Richmond Smith, the city's Assistant Director of Public Works who saw Respondent on several occasions when he would come into the building to pick up his check. At no time did Respondent appear to him to show any major evidence of injury. It was Mr. Smith's decision to terminate the Respondent from his city employment for falsifying city records and for making a false claim. His decision was based in large part on his review of the video tapes previously discussed. He asserts, however, that if Respondent had come in with a supported determination that because of this injury he could not do his job, city personnel could and would have made an accommodation and given him alternative work. The initiative for this option rests with the employee, however, and Respondent at no time sought it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent herein, Michael J. Osborn, be terminated from employment with the City of Clearwater for cause, as outlined in the Record of Personnel Action dated March 18, 1993, effective March 26, 1993. RECOMMENDED this 27th day of October, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2819 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel submitted a Proposed Order which contains Proposed Findings of Fact which are not numerically identified. For the purpose of reference herein, they have been numbered in sequence from 1 to 42 as they appear. Upon review of each individual proposal, they have been accepted and, as appropriate, have been incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. First sentence rejected. Balance accepted. First sentence accepted. Second and third sentences rejected. Fourth and fifth sentences accepted. Sixth sentence modified. Doctor's notes show Respondent to be improving nicely Respondent to be "improving nicely." Doctor's comments from notes accepted. Balance accepted. First through third sentences accepted. Fourth sentence rejected in part as it asserts the tapes serve as foundations of the city's charges. This is not totally accurate. They serve as evidence of Respondent's condition which appears inconsistent with the information given by his to his physicians. Balance accepted. First through fourth sentences are a restatement of testimony, not proper finding of fact. Fifth and sixth sentences are a comment on the evidence. Balance, through second next to last sentence, is a restatement of the testimony. Next to last and last sentences are comments on specific testimony. Paragraph is no more than a restatement of evidence. Rejected as contra to the better weight of the evidence. Rejected. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Barry M. Salzman, Esquire Chambers, Salzman & Brannon Post Office Box 1191 St. Petersburg, Florida 33731-1191 Michael J. Wright City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Gary Fernald, Esquire 501 South Ft. Harrison Clearwater, Florida 34616
