The Issue Whether Petitioner’s substantial interests are affected by the decision of the Nassau County School Board (School Board) to eliminate her paraprofessional position, and whether the School Board’s decision to terminate her was lawful.
Findings Of Fact Based upon the stipulation of the parties, as recited in their Joint Pre-hearing Statement, and the Stipulated Record submitted by the parties, the following facts are found: Respondent was an educational support employee for Petitioner from the 1999-2000 school year through the 2017-2018 school year, during which time she received annual performance evaluations of satisfactory or higher. Her evaluation for the 2017-2018 school year, signed by her supervisor on April 6, 2018, recommended another evaluation in 12 months. Respondent’s position is covered by the Collective Bargaining Agreement Between the School Board of Nassau County, Florida, and the Nassau Educational Support Personnel Association (CBA), which provides in Article VII(C): “Upon completion of the probationary period as provided herein, and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause.” Respondent became a post-probationary employee in August 2000. Respondent worked as a paraprofessional assigned to the guidance department of West Nassau High School (WNHS) from at least the 2011-2012 school year through the 2017-2018 school year, not as an instructional paraprofessional. In April 2018, WNHS Principal Curtis Gaus met with Respondent and told her that her position would be phased out as of the end of the 2017-2018 school year. Principal Gaus did not state that Respondent’s position was being terminated for a reason stated in the CBA, nor that Respondent’s employment was being terminated due to districtwide layoffs made for financial reasons. Respondent was not given written notice that her employment was being terminated for reasons outlined in the CBA, nor was she terminated for any such reason. Respondent was not relieved of her duties at the end of the 2017-2018 school year as part of a reduction in the number of employees on a districtwide basis for financial reasons. Superintendent Burns has never recommended to Petitioner that Respondent be terminated for just cause or for any other reason, nor has Petitioner itself taken official action to terminate Petitioner’s employment. Petitioner did not file a petition to terminate Respondent’s employment, stating the specific reasons Respondent was being terminated, or otherwise comply with the requirements of Florida Administrative Code Rule 28-106.2015. Respondent did not pursue arbitration or file a grievance, as permitted under the CBA. Petitioner has not identified what specific provision of the CBA Respondent could identify to support a grievance, if filed. The parties stipulated to the existence of certain portions of the CBA, but did not provide context that informs the scope of some of the provisions cited. Of particular relevance to this proceeding are the provisions contained in Article IV (Grievance Procedure); Article V (Vacancies, Transfers and Reduction of Personnel); and Article VII (Discipline of Employee). The pertinent portions of each are quoted below, with those portions to which the parties stipulated designated by italics, and those provision determined by the undersigned to be particularly relevant designated by being underscored. Article IV provides, in pertinent part: ARTICLE IV – GRIEVANCE PROCEDURE GENERAL The purpose of this procedure is to secure, at the lowest possible administrative level, resolution of any dispute which may arise concerning the proper interpretation and application of this contract. Both parties agree that these procedures will be kept as informal and confidential as may be appropriate at any level of the procedure. 1. Time limits. The time limits as called for herein shall be considered the maximum time limits to be used for grievance processing. Extensions may be granted by mutual agreement at level one or two. Each party shall attempt to expedite grievance processing. * * * 4. Processing. Grievances not timely filed or processed to the next step by the grievant, shall be considered settled. Grievances not timely responded to shall permit processing to the next step. * * * 6. Requirements. a. A grievance shall be filed in a timely manner and shall be an alleged violation, misapplication, or misinterpretation of a specific article or section of this Agreement. . . . * * * Procedures * * * 4. Step III Step III (Mediation of Termination) a. If the subject of the grievance is termination as the result of unsatisfactory evaluation [See Article VII section F] and the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may, within ten (10) working days, notify the office of the Superintendent using the district’s grievance form, that s/he is requesting grievance mediation by the Federal Mediation and Conciliation Service (FMCS). * * * Restrictions and Limitations Evidence not produced in Step I or II by a party shall not be offered in mediation. The judgment of the evaluator leading to the rating shall not be mediated. However, the process may be subject to review. The mediator shall not have the power to recommend an addition to, subtraction from, or alteration of the terms of the agreement or to recommend the alteration of the evaluation results of the grievant. The mediator shall only have the authority to mediate the termination issue presented for mediation by the parties and shall not have the power or authority to create or alter the issue of the parties or the issue as perceived by each party. The employment of the grievant shall not be extended beyond the end of the contract year as the result of the time required for the grievance and mediation procedure. The final results of the mediation process shall be presented to the School Board for its final decision. The decision of the School Board shall be final unless appealed by the grievant to Step III B, Binding Arbitration. Step III b (Binding Arbitration) a. 1) If the grievant is dissatisfied with the response at Step II or if no response is timely given, the grievant may within ten (10) working days notify the Superintendent using the District’s grievance form, that the grievance is being arbitrated. * * * e. Restrictions and Limitations of Arbitration Evidence not produced in Step I or II by a party shall not be offered in Arbitration. The Arbitrator shall not have the power to add to, subtract from, or alter the terms of the grievant. In the case of a termination grievance the arbitrator shall not have the power to extend employment beyond the term of the affected employment year for the grievant’s classification. (emphasis added). Article V of the CBA addresses Vacancies, Transfers and Reduction of Personnel. The relevant sections provide as follows: F. Reduction in Personnel Reduction in force shall take place when the Superintendent of Schools: Announces that a reduction in force is to take place. Determines and announces the type of reduction to take place as: System-wide Building-wide Departmentally Any combination of 1), 2), and 3) herein by title and/or position Notifies any employee or employees that an employee or group of employees is being dismissed under this provision. Finally, Article VII of the CBA addresses discipline of employees. It provides in pertinent part: A person employed after the effective date of this Agreement shall serve a probationary period of 365 calendar days. During such probationary period he/she serves at the pleasure of the Board and may be disciplined and/or terminated at the discretion of the Board without further recourse. Upon completion of the probationary period and during the term of the employee’s normal work year, he/she shall not be terminated except for just cause. Provided that in lieu of termination and with the written consent of the employee, the employee may be returned to probationary status. The judgment of the evaluator in the performance appraisal of an employee shall not be subject to the grievance procedure of this Agreement. In the event a non-probationary employee is terminated as a result of unsatisfactory evaluation, such termination shall be subject to the grievance procedure of this Agreement. 1. The Board/Superintendent reserve the right to take disciplinary action, up to and including dismissal, against any employee based on the seriousness of the offense and the employee’s record. The CBA does not address non-renewal of year-to-year employees outside the context of discipline or a reduction in force announced by the Superintendent. Article XII of the CBA provides that the CBA “shall supersede any rules, regulations or practices of the Board which will be contrary to or inconsistent with the terms of this agreement.” It does not by its terms supersede any rights created by statute.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Nassau County School Board enter a final order reinstating Respondent to her prior status as a non-probationary educational support employee with back pay and all other lost benefits she would have received had she not been improperly terminated. DONE AND ENTERED this 9th day of September, 2019, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 9th day of September, 2019.
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes, Respondent has forfeited his rights and benefits under the City of Tampa General Employees Retirement Plan (Fund).
Findings Of Fact The Fund is a public retirement system as defined by Florida law and is charged with administering and managing a pension fund for employees of the City. Respondent was employed by the City from February 2, 2000, until April 18, 2012, when he was terminated. He worked in various positions, most recently as Acting Lead Specialty Equipment Operator in the Solid Waste and Environmental Program Management/Quality Control program. By reason of his employment with the City, Respondent was enrolled in the pension plan administered by the Fund and was a vested participant. On April 18, 2012, the City terminated Respondent based on a violation of three items in the City's Personnel Manual: neglect of duty by using a City vehicle for an unauthorized purpose; moral turpitude involving the violation of the City Code relating to use of public property; and moral turpitude by engaging in an illegal enterprise. The events leading to his termination are described below. On July 11, 2011, City of Tampa Detective DeGagne was investigating environmental crimes (illegal dumping) in the East Tampa area. After being alerted that illegal dumping had occurred on a vacant lot in the Highland Pines neighborhood, and the debris was immediately picked up by a City vehicle, Detective DeGagne located the City truck involved. Because the truck was under the supervision of Respondent, Detective DeGagne spoke to Respondent who initially explained that code enforcement had told him to pick up the debris. Because Respondent could not identify anyone in code enforcement who gave him that instruction, he was arrested. During a recorded interview with Detective DeGagne later that day, Respondent admitted that on at least two occasions, he was paid $40.00 to pick up the illegally-dumped debris as a favor to a friend. This conduct is a violation of section 838.016(1), which makes it unlawful for a public employee to receive compensation for performing an illicit act. Based on his admission of guilt, the City terminated Respondent effective April 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the City of Tampa General Employees Retirement Fund enter a final order determining that Respondent has forfeited his rights and benefits in the pension fund. DONE AND ENTERED this 28th day of July, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 28th day of July, 2017. COPIES FURNISHED: Luis A. Santos, Esquire Ford & Harrison LLP Suite 900 101 East Kennedy Boulevard Tampa, Florida 33602-5133 (eServed) Natasha Wiederholt, CPA, GE Pension Plan Supervisor General Employees Retirement Fund City of Tampa 7th Floor East 306 East Jackson Street Tampa, Florida 33602-5208 Dwight Rivera 3324 West Kathleen Street Tampa, Florida 33607-1840
The Issue The issue in this case is whether Respondent's employment contract with Petitioner should be terminated for violation of School Board policies.
Findings Of Fact Petitioner is the local school board responsible for hiring, firing and overseeing all employees working for the School Board and/or within the Lee County Public School system (also called the "School District" herein). Respondent is an employee of the School Board, serving as an electronics field technician in the School Board's maintenance department. Respondent has worked for the School Board off and on since 1996, when he was a school bus driver. He has been an electronics technician since 2000. In that position, Respondent oversees the maintenance and repair of clocks, alarms, intercoms, scoreboards, sound and lighting systems, burglary systems, and the like for all schools within the School District. Respondent has never received any form of discipline from the School Board. His record is clear, and he has been commended for his work. His work ethic was viewed by others as consistent with that of similarly-situated employees (although Respondent may take more breaks than others). School District maintenance workers work an eight-hour work day, commencing at 7:00 a.m. (per provisions of the SPALC Contract and Collective Bargaining Agreement). Each worker is expected to arrive at the maintenance area on Canal Street (hereinafter "Canal Street") and be ready to commence work by 7:00 a.m., each morning. The work day generally starts with a briefing of sorts to make sure each worker is aware of his/her tasks for the day. After the briefing, workers pick up tools and supplies from various locations around the Canal Street area and then proceed to the first school site requiring performance of an assigned task. A work day for Respondent could involve driving to any one of the numerous school campuses within the School Board's jurisdiction. Workers are given 30 minutes for lunch each day, including the time it takes to drive to and from the lunch site. In addition, workers are allowed two 15-minute breaks, one in the morning and another in the afternoon. Again, the break time includes the time taken to drive to a break site, if the employee decides to take a break at other than the place he/she is working at that time. Employees are not permitted to do personal business or make unauthorized stops during the work day without prior permission from a supervisor. Respondent is a member of the U.S. Naval Reserve and currently holds the rank/level of E5. He attends regular weekend drills each month and also spends two weeks each year on temporary active duty. Respondent has been in the reserves throughout his tenure with the School Board. There has never been an issue between Petitioner and Respondent concerning Respondent's military status or his taking two weeks each summer to attend to his military duties. Respondent is proud of his military service, as evidenced by the fact that he wore his military uniform during both days of the final hearing.1 In May 2008, Respondent spent 17 days on active duty, serving in Bahrain. This was Respondent's active duty requirement for calendar year 2008. However, he then volunteered for an additional period of active duty in July 2008. This second active duty stint was done in furtherance of his military career and at the suggestion of a superior officer. It was strictly voluntary, but Respondent felt somewhat compelled to "volunteer" based on his superior's comments. Respondent then did his second active duty stint beginning June 28, 2008, and ending July 27, 2008. This period of time coincided with the maintenance department's busiest time for its electronics technicians. The maintenance department annually used the time in between school terms to get various maintenance items completed while it would be the least disruptive to students in the classrooms. The summer period is used to "clean up" things that remain pending from the school year. It is clear that Respondent's supervisors were not happy that Respondent had volunteered to be absent during this busy time, but Respondent was allowed to go on active duty anyway. This left the School Board short-handed as to its needed electronics technicians for that period of time. Respondent's supervisor expressed concern to Respondent about this second period of active duty, specifically that it was occurring during the summer break. Respondent recognized the strain this additional leave put on his co-workers and apologized for that fact. Respondent assured his supervisor it would not happen again. Upon his return from the voluntary active duty, Respondent was told that he was being placed on "suspension of driving privileges," meaning that he could not drive School Board vehicles until further notice. This suspension was based on information gleaned from review of data generated by a new tracking system being used in School Board maintenance vehicles (which will be discussed below). Respondent is of the opinion that the suspension was some sort of retaliation for his having gone on the second active duty tour during June and July. The Global Positioning System--Background Beginning in May 2008, the School Board decided to install global positioning system (GPS) devices in all of its maintenance vehicles. The installation began with 50 randomly selected vehicles of the 150-vehicle fleet. The purpose of the GPS devices was to track School Board vehicles and assure that all vehicles were being utilized properly and in accordance with School Board policies. This measure was prompted by repeated complaints from the public about maintenance vehicles being seen involved in non-school activities or at non-school locations. The GPS system in Respondent's maintenance vehicle was installed on May 22, 2008. The signal from the GPS was instantaneous, but required calibration and installation of certain software before it could be effectively utilized. The GPS became fully functional on June 20, 2008, at 10:07 a.m. The GPS system tracked the location, speed, and duration of stops for the vehicle. This data was maintained on a computer server which could print maps showing a vehicle's movements on any given day or time. The maps could be annotated with the vehicle's speed, length of stay at any one location, and actual driving route. On or about June 27, 2008, William G. Moore, director of School Support for the School Board, was being given a course on the use of the new GPS system and how it worked. During his training, Moore randomly selected some vehicles to review, solely for the purpose of ascertaining how the system tracked and recorded information. One of the vehicles Moore randomly selected was vehicle No. 423, which turned out to be Respondent's work van. Moore did not know Respondent personally and did not know to which of the 150 or so School Board vehicles any one person was assigned. Moore then selected June 26, 2008, randomly as a record to review as part of his training. The June 26, 2008, record for vehicle No. 423 immediately raised red flags in Moore's mind. He observed that the vehicle was at a non-school site for over three hours (although it was later determined to be a training site and a legitimate stop). The vehicle was also shown entering a residential community (although again it was later determined that the driver had permission for that trip). However, based on his initial determination that something was amiss and not having any explanation for those instances, Moore decided to more fully examine the route history for vehicle No. 423. First, he determined that this vehicle was assigned to Respondent. (The vehicle will hereinafter be referred to as the work van.) Moore's further investigation turned up a number of questionable stops and trips by the work van during the period June 20 through June 27, 2008. The findings of his investigation will be set forth in pertinent part below on a day-by-day basis, coupled with explanations from Respondent as to each day's activities. Friday, June 20, 2008 At 10:07 a.m. (when the GPS first started working), the work van was departing from Ft. Myers High School ("Ft. Myers High") en route to Estero High School ("Estero"). Upon arrival at Estero, the van remained parked for five minutes, then left the parking lot and drove around the building to the front entrance of Estero for a period of one minute. Leaving Estero, the work van headed to a residential neighborhood known as the Bimini Circle Subdivision, where it stayed for 11 minutes. The work van then proceeded to a 7-11 Store where it remained for 35 minutes. The next stop was back at Estero where the work van remained for one hour and 46 minutes. At 2:00 p.m., the work van left Estero, stopped briefly at the 7-11 Store, then returned to Canal Street at 2:59 p.m. The School Board perceived several violations of policy gleaned from the information on the GPS for the work van during the June 20, 2008, work day: First, the work van was at Estero for a total of two hours and 13 minutes on this date. The total time at Ft. Myers High for this date is not detailed by the GPS, but would presumably be approximately two and a half hours, i.e., allotting time for driving from Canal Street up until the GPS turned on at 10:07 a.m. Respondent's daily activity log indicates five hours at Estero and three hours at Ft. Myers High. Respondent took two unauthorized stops at a store, presumably for personal reasons, and then spent 11 minutes at a residence during work hours. Respondent took in excess of 30 minutes for his lunch hour (35 minutes at a location, plus an undisclosed amount of time driving to and from that location). Respondent took a longer route back to Canal Street than necessary, presumably wasting time. (Employees were expected to work the entire day, then return to Canal Street precisely at 3:00 p.m. A 30-minute debriefing session, return of tools, etc., would occur and then employees would be released from duty at 3:30 p.m. Employees were told repeatedly NOT to return to Canal Street until 3:00 p.m.) Respondent explained his actions and refuted the School Board's concerns as follows: Upon leaving Canal Street that morning, Respondent went directly to Ft. Myers High and remained there until 10:07 a.m. The rest of his day, approximately five hours, was dedicated to work at Estero, but included travel time, breaks, and lunch. The two hours and 13 minutes actually at Estero should be supplemented by driving time to the school from Ft. Myers, driving time to his breaks and lunch, driving time to and from his personal errand, and driving time back to Canal Street. Respondent remembers asking for and receiving permission to stop by his wife's house (the residence in the Bimini Circle Subdivision) to retrieve his wallet. The stops at 7-11 Stores were for lunch and two allowable breaks. The longer route back to Canal Street was taken in order to avoid an accident on the shorter route. During June of 2008, technicians would fill out their daily work logs using rounded estimates of time. They made no attempt to precisely state exact periods of time spent at any one job site. Rather, the daily logs were a very general statement of which job sites had been involved in the employee's work that day. (This procedure has subsequently changed, but was extant at all times relevant hereto.) It is clear Respondent took a longer than allowable lunch break on this date. Further, the time taken for breaks, if drive time was included, was in excess of the allotted amounts. It is clear Respondent was actually at Estero for only about half the time recorded on the daily work log. However, under the procedures in place at that time, the work log time entry was not dispositive of his actual time at the site. Monday, June 23, 2008 On this date, the School Board gleaned the following violations of policies from its review of the GPS log: Respondent was at Estero for two hours and nine minutes, but his daily work log indicates six hours at Estero and two hours at Gateway Elementary. The work van made stops at McDonalds and Bank of America on the way to Estero, then at the Bimini Circle address for eight and a half minutes after leaving Estero. Petitioner says any stops for personal business are strictly prohibited while in a School Board vehicle. After a 47-minute stop at Dairy Queen, the work van then proceeded to Gateway where it stayed for approximately two hours. Upon leaving Gateway, the work van stopped at Home Depot--an unauthorized stop--for about 18 minutes. Respondent provides the following explanation and rebuttal concerning the School Board's concerns for that day: Again, his work sheet indicates the correct amount of time actually at Gateway. The remainder of his day, including all travel, breaks, and lunch, was allocated on this time sheet to Estero no matter how long he was actually there. The stops at McDonalds and Bank of America were simply to allow his co-worker (Sheryl Reed) to get an iced tea and to get money for lunch. Respondent maintains that these types of stops were not specifically prohibited and were common practice. Respondent maintains the stop at his wife's house was his break time (although a stop at McDonalds and Bank of America had already occurred that morning). The 47-minute lunch hour was caused by Respondent simply losing track of time. That is, he admits that it was a longer lunch break than allowed, but it was not done intentionally. The stop at Home Depot was to obtain a coaxial wire needed for the Estero job, but the wire was not available. Employees are allowed to shop at local retail stores to acquire equipment or supplies not available through the School Board. However, all such purchases must be made by way of a purchase card (P-Card) so that purchases can be tracked. There is no P-Card receipt for the Home Depot visit on this date, but Respondent maintains that is because no purchase was made. That is, the coaxial wire he was looking for was not available. Reed said that Respondent made personal purchases from Home Depot and Lowe's on occasion during the summer of 2008 (because he was in the process of remodeling his house). He had purchased floor tiles and other items a couple of times a week that summer. However, she cannot remember whether he purchased anything on that particular date. Respondent admits that he did make purchases of home improvement products during work hours and transported the products in the work van to his house. He does not remember making any such stops for purposes during the week of June 20 through 27, 2008. Tuesday, June 24, 2008 On this date, Respondent's daily work log indicates three hours spent at Gateway and five hours spent at Island Coast.2 The GPS indicates the work van was at Gateway for three hours and at Island Coast for one hour and 40 minutes. The School Board also found the following other policy violations: A stop at Weaver's Corner for 36 minutes and 40 seconds, presumably a long lunch made longer by travel time to and from the lunch venue. An unauthorized visit for eight minutes and 40 seconds at a bank. A visit to a gas station for eight minutes, then a short drive to another gas station for five minutes. Respondent provides the following explanation and rebuttal to the School Board's findings: As before, the extended period of time for the Island Coast job site includes travel, breaks, and lunch. However, it would have been more accurate on this day to have split the two job sites equally. The stops at the gas stations were intentionally made so as not to return to Canal Street before the allotted 3:00 p.m., return time. Respondent does not provide any explanation for the longer than allowable lunch break. Wednesday, June 25, 2008 There were three stops on this date listed on Respondent's daily work log: Island Coast (4 hours), Dunbar Community (2 hours), and Ft. Myers High (2 hours). The GPS indicates the work van was at Island Coast for two hours and 11 minutes; at Dunbar Community for 11 minutes and 20 seconds; at Villas Elementary for one hour and 14 minutes; then at Ft. Myers High for four minutes and 40 seconds. Other perceived policy violations included: A short stop at a bank in the Wal-Mart parking lot upon leaving Canal Street. A lunch stop of 42 minutes and 30 seconds, not counting driving time to and from the restaurant. Another stop at Bank of America for in excess of ten minutes. A short, seven and a half-minute stop at a shopping center. Respondent provided the following in rebuttal and response to the School Board's perceived violations of policy: The quick stops at the banks were not prohibited and were common practice. They may have been part of Respondent's break time on that date. The lunch hour ran over, but was not excessive or intentional. It may have also included part of a break he never took that day. Thursday, June 26, 2008 This is the date that Moore initially reviewed in his training session that raised red flags concerning Respondent's time issues. On this date, the daily work log indicates seven hours in training and one hour at Villas Elementary. The School Board's concerns about this date are set forth above, but would also include: An authorized trip during the lunch hour for Respondent to retrieve a lap top which was being delivered by overnight delivery (so the computer would not be left sitting on the front porch). This trip which took approximately 18 minutes, of which 30 seconds was spent stopped at his house. Respondent also took time for lunch before returning to the training site. A circuitous, out-of-the-way route between the training site and the next job site (Villas Elementary). A short stop at a 7-11 Store and then a longer-than- usual route back to Canal Street. Respondent's explanation and rebuttal to the School Board's concerns were as follows: Respondent had permission to make a quick visit to his home during the lunch hour to see why his home alarm had activated. (He does not remember anything about a lap top or a need to retrieve it.) Respondent says that in the 30 seconds his work van was at the house, he exited the vehicle, walked to the house, unlocked the door and entered, turned off the alarm (which had been activated by his dog, who had escaped from his kennel), put his dog back in its kennel, re-set the alarm and left. Respondent was able to do his personal errand and get to the restaurant and eat lunch with his co-workers within the time (one hour) allotted for lunch that day by the trainer. The circuitous route was for the purpose of delivering some money to his daughter at her school. She was waiting for him outside, and he didn't even have to stop the work van to hand off the money. Rather, his daughter reached out and grabbed the money as he rolled past. The stop at the 7-11 Store was to use the rest room. Respondent's testimony concerning the stop at his house is not entirely believable. It would seem to take more than 30 seconds to accomplish the things that he did. However, inasmuch as he made the stop and was still able to join his co-workers in time for lunch, the reason for his home visit is immaterial. Also, the rolling delivery of money to his daughter is very unusual, but there is no evidence that the exchange did not take place in that fashion. Friday, June 27, 2008 This day's daily work log indicates three work sites: Dunbar Middle School (4 hours), Ft. Myers High (2 hours), and Cypress High School (Cypress High)(2 hours). The GPS indicates 33 minutes and 50 seconds at Dunbar; one hour and 47 minutes at Ft. Myers High; and five minutes and 50 seconds at Cypress High. The work van then went back to Dunbar for one hour, 51 minutes and 30 seconds. The School Board's other concerns about time and travel on this date are as follows: After leaving Canal Street that morning, the work van made stops at McDonalds for three minutes and at Lowe's for 15 minutes. There is a stop of one hour and eight minutes at a shopping plaza, presumably a long lunch hour. Respondent's response to the allegations of policy violations for this day are as follows: The McDonalds visit was again an allowable stop (as he understood the policies) for his assistant to get an iced tea. The Lowe's stop was for the purpose of getting concrete anchors needed for a School Board job, but none were available and so no purchase was made on the P-Card. The long lunch hour was just that; he was not thinking clearly because this was just one day prior to going on active duty and he was preoccupied with those thoughts. The extra driving time was due to the fact that after leaving Dunbar, Respondent was called on the radio to go back there for an emergency job. The daily work logs do not correspond exactly with Respondent's work day because that was not the purpose of the logs. The logs were, at that time, simply an indicator of which schools had been visited on any given day. There was no effort by anyone to be exact or precise with the times recorded on the daily logs. The daily logs are essentially of no value in determining where an employee might have been at any point in time on any given day. There is no way to reconcile the GPS times with the daily work logs. Each employee is expected to work a full day. If the number of tasks assigned during the morning meetings at Canal Street did not fill a technician's day, he/she was expected to locate additional work or do work on an on-going project to fill the day.3 Nonetheless, it is often difficult to coordinate a day's activities to make the assignments equate to the exact hours and minutes in a work day. A large part of an employee's time during the work day is spent driving his/her vehicle. The driving time is supposed to be factored into the time spent on a particular work site. Thus, if it took 30 minutes to get to a work site, that time would be added to the time spent actually at the site. Then, when driving to a subsequent work site, the drive time would be assigned to that next site, etc. Employees are on their honor to take breaks and lunch only when allowed and for the time allotted. There is no time clock, so each person must attempt to keep time themselves so as to honor the allotted times. This is often difficult due to slow service at a restaurant, inability to take breaks at a particular time, or other factors. The GPS system has provided the School Board with an effective tool for monitoring its employees' movements and location. However, at all times relevant hereto, the GPS system was in its infancy and the School Board was still learning how to assimilate and read the data generated by the system. Thus, Respondent's activities from June 20 through June 27, 2008, were examined in a way no other employee's had been looked at heretofore. It is, therefore, hard to make a comparative determination of Respondent's actions versus an established norm. Nonetheless, the School Board's findings are supported by the GPS data. That is, the daily work logs are not consistent with time actually spent at particular job sites. Respondent's lunch breaks exceed the allotted 30-minute time period almost every day that was examined. There are stops at local establishments that are not part of the employee's work duties. Some of the routes taken by an employee are not the shortest routes, although it is impossible to ascertain whether they are the best routes based on other extraneous factors. The time spent on breaks, versus travel time, is hard to ascertain with any degree of certainty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Lee County School Board, rescinding the notice of termination and imposing a less stringent penalty, e.g., a period of probation, a letter of reprimand and/or some remedial training, against Respondent, Christopher Rasmussen. DONE AND ENTERED this 22nd day of June, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN 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 22nd day of June, 2009.
The Issue The issue in this case is whether Respondent, Sunburst Construction, Inc. ("Sunburst"), failed to properly maintain workers' compensation insurance coverage for his employees and, if so, what penalty should be assessed.
Findings Of Fact The Department is the state agency responsible for ensuring that all employers maintain workers' compensation insurance for themselves and their employees. It is the duty of the Department to make random inspections of job sites and to answer complaints concerning potential violations of workers' compensation rules. Sunburst is a business created by Cecil Moore and has been in operation for 35 years in the construction industry. At all times relevant hereto, Sunburst was duly-licensed to do business in the State of Florida. Construction work is assigned a Class Code of 5651 for purposes of calculating workers' compensation insurance coverage. On April 30, 2014, the Department’s investigator, Stephanie Scarton, was driving on South Peninsula Drive in Daytona Beach, Florida, when she noticed what appeared to be construction activity going on. As she is charged with doing, Scarton went to find out whether people working at the construction site were legally covered by workers’ compensation insurance. She talked to four people at the job site and made a determination that workers’ compensation coverage was missing. Scarton’s and Sunburst’s statements of the facts surrounding the coverage are significantly different in detail. Each will be set forth below. Scarton’s Version of the Facts According to Scarton, she observed three people working at the site: Two men were engaged in carpentry, specifically, securing bolts to beams on a form used for pouring concrete. One man was grinding a screw or some other metal object. Scarton identified herself to the man who was grinding the metal object. The man was Carlos Barbecho. The man did not speak English very well, but conversed with Scarton, telling her that he (Barbecho) worked for Sunburst. According to Scarton, Barbecho also told her that the other two men, Edlezar “Eddie” Cano-Lopez and Jeronimo Cano-Lopez, also worked for Sunburst. Neither of the two men (who were brothers) spoke English. Barbecho acted as an interpreter for Scarton as she asked the brothers if they worked for Sunburst. They allegedly “shook their heads up and down,” i.e., they nodded affirmation. However, Scarton could not verify exactly what question Barbecho posed to the brothers in Spanish. Meanwhile, another man, Raley, showed up at the site on his bicycle. He reported that he was an independent contractor and was not related to Sunburst. He was doing some pressure washing on the house located at the site. The investigator then went to her vehicle to research Sunburst, finding it to be a duly-registered Florida corporation. She checked the building permit which had been issued by the City of Daytona Beach and found that it had been pulled by Sunburst. She then checked the Coverage and Compliance Automated System (CCAS) used by the Department to track workers’ compensation coverage by businesses and individuals. According to CCAS, there was no coverage for Sunburst but Moore had a personal exemption. When she found there was no coverage for Sunburst but that its employees were working at the job site, Scarton contacted Moore directly via telephone. Barbecho had provided Scarton with Moore’s number. Scarton testified that Moore admitted the men were his employees, but that he believed he had up to 24 hours to obtain workers’ compensation coverage for them. Scarton eventually ascertained that Sunburst did have appropriate workers’ compensation coverage for Barbecho through a leasing company, but neither of the Cano-Lopez brothers was on the policy. Sunburst’s Version of the Facts Moore has owned Sunburst for over 35 years. He has always maintained workers’ compensation coverage for his employees and has never been cited for failing to do so. In April 2014, Sunburst was in the midst of renovations at the South Peninsula Drive job site. Barbecho was the foreman on the job. He had been working for Sunburst for about two years as a foreman or job manager. Moore had obtained workers’ compensation coverage for Barbecho through a leasing company. On April 30, 2014, Barbecho was working at the job site when the Cano-Lopez brothers came up and asked if there was work for them to do. They had been referred to the site by Pillo, a man who had worked with Moore for many years and often found laborers for him. Barbecho called Moore to see if he wanted to hire the brothers or not. Meanwhile, the men stood around talking as they waited for a determination from Moore. Raley had also been at the site on that date. He was preparing to pressure-wash the outside of the house so that it could be painted. Just about the time he was leaving on his bicycle to retrieve a chair from his nearby home, the Cano-Lopez brothers arrived. Raley paid them no mind as he had never seen them before at the job site. When he returned with his chair, Raley met Scarton, who identified herself as an investigator for the Department. Although Raley told Scarton that he was an independent contractor, he was actually doing the pressure- washing because he owed a favor to Moore. Raley watched Scarton talk to the brothers and could see that there was a large communication problem based upon language. Scarton then began talking more to Raley because he spoke English much better than the other men there. Barbecho says he only met the Cano-Lopez brothers the morning that Scarton showed up at the work site. He did not have authority to hire them on behalf of Sunburst, but put a call into Moore to see if he wanted to hire the men. Barbecho maintains that he never told Scarton the men were employees of Sunburst. He does not remember being asked to ask the brothers, in Spanish, whether they were employees of Sunburst. The men had arrived on the job site just minutes prior to Scarton’s arrival, and Barbecho had not really talked to them at all other than to give a casual greeting. Edlezar Cano-Lopez says he is not now nor has he ever been an employee of Sunburst. He has never done any work for or received any money from Moore or Sunburst. (He was hoping that Moore would pay him for his time traveling to Tallahassee and appearing at the final hearing, but there was no specific agreement in that regard.) When Moore got a call from Scarton, he told her that he did not know who the Cano-Lopez brothers were, that they were not his employees, and that he had coverage for all of his bona fide employees. He has no recollection of telling Scarton that he believed he had 24 hours to get the workers covered by insurance. Scarton asked Moore to come to the job site and he complied with her request. At the job site, Scarton served Moore with a Stop Work Order (SWO) and explained that he needed to cease doing business until it was addressed. The basis of the SWO was that two putative employees, the Cano-Lopez brothers, did not have workers’ compensation insurance coverage. The Stop Work Order and Penalty Assessment At the same time, Scarton made a request for business records in order to determine what penalty should be assessed. The request had a list of various types of documents needed by the Department to make its penalty assessment. Moore was given 20 days to produce the records to the Department. Moore contacted his bank about obtaining the requested records. He was told that it would take five to seven days to pull the records together, but in fact it took more than three weeks. The records were therefore not timely submitted to the Department. Based upon the absence of business records, the Department calculated a penalty assessment which imputed income to the Cano-Lopez brothers for a period of three years. This assessment was in accordance with the Department’s rules and guidelines. A penalty assessment of $61,568.36 was imposed on Sunburst. After the penalty assessment was calculated by the Department, the requested business records were eventually received from the bank by Moore. The records contained summaries of statements, but did not include check images. The check images were provided at a later date. However, the check images showed a large number of checks made out to “cash” so the Department could not really ascertain whether any of them were for payroll or not. Moore explained that his employee leasing company required cash, so each week he would find out what amount was needed and issue a check made payable to “cash” and obtain the needed funds. Moore’s explanation is plausible. The Department did not take heed of the business records provided by Moore because they did not arrive within the prescribed 20-day window. The Department’s auditor did, however, create a draft penalty assessment based upon the records.1/ The Cano-Lopez Brothers The dispositive issue in this case appears to be the employee status of Eddie and Jeronimo Cano-Lopez. Eddie testified at final hearing (through an interpreter) that he has never been an employee of Sunburst. He and his brother were at the job site on April 30 for the purpose of obtaining employment, but they were never hired and have never been paid for doing any work for Sunburst. There are no check images or other business records that reflect Sunburst ever paid the Cano-Lopez brothers for doing work. Moore did not hire them and did not know they were at the work site on April 30 until advised by Barbecho and Scarton that very day. Moore’s denial that he told Scarton he was intending to add the Cano-Lopez brothers to his insurance coverage within 24 hours is credible. Scarton inspects 45 to 55 business sites per month and could easily be confused about who told her they were adding employees. After 35 years in the industry, it is unlikely Moore would be confused about the requirements for coverage of his employees. The foreman, Barbecho, met the Cano-Lopez brothers for the first time on April 30 at the job site. He knew that in order to work for Sunburst, the brothers would first have to fill out an application. In fact, the Cano-Lopez brothers filled out an application after the SWO had been entered. The applications were delivered to Sunburst’s employee leasing company the next day in hopes of alleviating the SWO. But as the SWO was still in place, the Cano-Lopez brothers never engaged in work for Sunburst, and have not to this day. And in the words of the Department’s investigator, “An employee is someone who is being paid by the business.” Scarton testimony, transcript page 46. The Department calculated its penalty assessment as follows: It ascertained the average wage for construction laborers and assigned that figure to each of the Cano-Lopez brothers. The appropriate class code was assigned. A period of three years of non-compliance was imputed, per rule. The gross payroll for that three-year period was assigned to each of the brothers. The gross payroll amount was divided by 100. The resulting sum was multiplied by the manual rate, resulting in a premium. The premium was then multiplied by 1.5 to reach the penalty amount. The calculation of the penalty was based upon the mistaken presumption that the Cano-Lopez brothers were employees of Sunburst. It is clear from the evidence presented that neither Eddie nor Jeronimo Cano-Lopez were ever employees of Sunburst. Scarton’s recollection of the events (without the benefit of any contemporaneous note) was refuted by the testimony of Moore, Barbecho, Raley, and Eddie Cano-Lopez, thus her testimony does not constitute clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Financial Services rescinding the Stop-Work Order and Amended Penalty Assessment. DONE AND ENTERED this 5th day of January, 2015, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2015.
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Respondent, Duval News Management Company, d/b/a Newsouth Distributors, has its main office in Jacksonville, Florida. Respondent has been in the wholesale magazine, book and news distribution business in Jacksonville for the past 80 years. The Ocala, Florida branch where Petitioner was employed has been in operation since approximately 1974. Respondent employed 15 or more employees at all times pertinent to this proceeding. Christine Rios is the Petitioner. She was hired on September 20, 1974 in the book return department of Respondent's Ocala operation. In 1977, Petitioner was promoted from that position to an office job as accounts receivable clerk in the Ocala office. As the result of an automobile accident on October 14, 1992, Petitioner suffered a dislocated shoulder, cracked ribs and a cervical sprain. She returned to work part-time on December 17, 1992. Petitioner resumed full-time work duties on February 18, 1993, subject to the restriction that she not lift over 20 pounds. Her duties as accounts receivable clerk did not require lifting weights greater than 20 pounds. On April 14, 1993, Gil Brechtel, President of Newsouth Distributors, met with all employees of the Ocala branch that worked inside the facility. Excluded from the meeting were route salesmen. At the meeting, Brechtel announced that non-supervisory employee jobs within the facility were to be eliminated. Each employee, inclusive of Petitioner, was given the opportunity to transfer to the Jacksonville office or, in lieu of transfer, accept severance pay and other benefits. Each employee was given a letter confirming this announced reduction in the work force. Subsequently, all employees who worked inside the facility, except the office manager, were laid off at various times between May 1, 1993 and May of 1994. Petitioner was laid off on September 27, 1993, at which time she was given a termination letter with an attached summary of benefits and a severance pay check. Petitioner's check was in the total gross sum of $5,722.34 minus deductions for a net sum of $3,980.93. At the time of her layoff, Petitioner was performing essential functions of her job without any accommodations by Respondent. After the announced reduction in work force, Respondent employed one part-time employee to handle warehouse duties requiring lifting up to 60 pounds plus some clerical duties that were formerly performed by Petitioner. Although she had stated to others that she needed to work full-time, Petitioner asked Ron Nichols, the Ocala branch manager, if she could be considered for the position. Nichols told her that she could be considered if the lifting restrictions imposed by her physician were removed. No further inquiry was made of Nichols by Petitioner and she never attempted to explain at any time to Nichols how she might be able to perform the job with reasonable accommodation. Several different employees at different times filled the part-time receiver/stocker job until the consolidation and reduction in work force had been fully carried out. At that time, the office manager assumed the duties of receiver/stocker and some of the clerical functions formerly performed by the accounts receivable clerks, although the bulk of account receivable clerk tasks were transferred to the Jacksonville office. No one was hired to replace Petitioner following her termination on September 27, 1993. No new accounts receivable clerks were employed in the Ocala branch following Petitioner's termination. As a result of the reduction in work force, 18 employees were laid off. The only person currently performing any warehouse duties or office clerical work at the Ocala branch is the office manager, MaeDean Crabtree. At the time of Petitioner's employment, Respondent had in effect an employee handbook containing a policy prohibiting discrimination in employment on the basis of handicap. The same handbook also provides a complaint resolution procedure. If an employee has a complaint, the employee is directed to contact the supervisor or manager to discuss the matter. At no time prior to her termination or filing of her charge of discrimination did Petitioner contact her supervisor, Crabtree, or the manager, Nichols, with any allegations of job discrimination or failure to provide reasonable accommodation. At the final hearing, Respondent's stated non-discriminatory reason for the elimination of Petitioner's position, consolidation of operations with a resultant reduction in work force, was not disputed or negated by Petitioner. Petitioner's contention was that she should have been allowed to work part-time in the receiver/stocker position and was not given reasonable accommodation by Respondent in that regard. Petitioner provided no evidence demonstrating that she requested the position subject to reasonable accommodation. Petitioner failed to demonstrate at the hearing that she could perform the duties of the part-time position which required the ability to lift up to 60 pounds. Currently, Petitioner is employed with a temporary job agency performing office/clerical work.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered dismissing the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 19th day of April, 1995. DON W. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-4. Adopted in substance, not verbatim. 5.-6. Subordinate to HO findings. 7. Adopted by reference. 8.-9. Rejected, weight of the evidence. 10. Rejected, relevance. Respondent's Proposed Findings 1.-10. Adopted in substance, not verbatim. COPIES FURNISHED: Michael B. Staley James P. Tarquin Attorneys At Law 2045 Northeast Second St Ocala, FL 33470 Allan P. Clark Attorney At Law 3306 Independent Square Jacksonville, FL 32202 Sharon Moultry Clerk Commission on Human Relations 325 John Knox Rd, Bldg. F, Ste. 240 Tallahassee FL 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, Fl 32303-4149
The Issue The issue in this case is whether the Juvenile Welfare Board of Pinellas County (Petitioner) should have treated John Bucci as a mandatory member of the Florida Retirement System from April 1984, through July 1988, and therefore, should be required to submit retroactive adjustments for retirement and social security based upon his earnings during this period.
Findings Of Fact The Petitioner is an independent taxing district created by Special Act in 1945 to provide funding in Pinellas County for services to children. It timely filed a request for hearing on the Respondent's decision to consider John Bucci a mandatory member of the Florida Retirement System (FRS) from April 1984, through July 1988. The position of the Petitioner is that John Bucci was an independent contractor, and therefore, should not be considered a mandatory member of the FRS. Bucci worked as a janitor for the Petitioner between April 1984, and July 1988. He opened the building in the morning, deactivated the building alarm, made coffee, cleaned the employee restrooms, emptied waste baskets, vacuumed and dusted. From time to time, he also painted and made minor repairs in the building, and took mail to the post office when directed to do so. While Bucci did not receive daily assignments, his duties were routine and had been worked out with representatives of Petitioner when he was initially employed. If there were problems with his cleaning, he would be told to reclean an area, and he was expected to take care of the problem as soon as possible. The Petitioner provided Bucci with all supplies and equipment necessary to do his job. While he worked with the Petitioner, Bucci did not have a written contract, but rather, he had an annually renewable verbal contract. He was paid on an hourly basis, and submitted a monthly record of hours worked each day, which was reviewed and approved for payment by Petitioner. Bucci received annual increases from the Petitioner, but did not negotiate these increases. The Petitioner simply gave him what it considered to be a cost of living increase each year. According to Petitioner, Bucci was not in an established position, and therefore, did not receive fringe benefits. At the time, Bucci was the only person working with the Petitioner which it considered to be an independent contractor. Subsequent to his leaving, Petitioner bid, and now has a written contract for janitorial services with an agency in Pinellas County that offers employment opportunities to retarded citizens. That agency provides all equipment and supplies necessary for janitorial duties. After several counseling sessions with Carole Gunnels, Petitioner's operations manager at the time, Bucci was terminated because of continued problems with his work. Thereafter, it was determined by the Division of Unemployment Compensation, Department of Labor and Employment Security, that he qualified for unemployment benefits. The Comptroller's Office of the State of Florida has issued Memorandum No. 7 (1988-89) regarding determinations of a person's status as an independent contractor or employee. In pertinent part, that Memorandum sets forth twenty factors to be considered in determining if sufficient control is present to establish an employee-employer relationship, and states: The Internal Revenue Service has provided guidance in making this determination in Revenue Ruling 87-41. It provides generally, that the relationship of employer and employee exists when the person or persons for whom the services are performed have the right to control and direct the individual who performs the services, not only as to the result to be accomplished by the work but also as to the details and means by which that result is accomplished. That is, an employee is subject to the will and control of the employer not only as to what shall be done but as to how it shall be done. In this connection, it is not necessary that the employer actually direct and control the manner in which the services are performed; it is sufficient if the employer has the right to do so. The Respondent has adopted Rule 22B-6.001(15), Florida Administrative Code, which defines the term "independent contractor" as an individual who: agrees to provide certain services; works according to his own methods; is not subject to the control of his employer, except as to the results of his work; and does not receive the fringe benefits offered by the employer. A consultant or independent contractor usually: is compensated from another salaries and wages account; does not earn annual or sick leave; and may frequently do a majority of his work in his own office rather than on the employer's premises. In order to determine if Bucci should have been considered to be an employee of the Petitioner, rather than an independent contractor, the Respondent provided Petitioner with a copy of its Employment Relationship Questionnaire, which Petitioner completed on or about April 10, 1989. The information provided by Petitioner on this Questionnaire indicates that Bucci was required to follow regular routines or schedules, the Petitioner could change the methods by which he performed his work or otherwise direct him in the performance of his duties, the work was to be performed by Bucci personally, the Petitioner could discharge him at any time, and he could quit at any time. It was also indicated that Bucci was not filling a regularly established position, but was retained under an oral contract to perform personal services. Bucci did not work full-time with the Petitioner. Rather, he worked an average of between 4 to 5 hours a day with the Petitioner. On rare occasion during the time he was employed with the Petitioner, he did take other part-time cleaning jobs with other employers. However, he did not have any occupational license as a janitorial service, did not advertise as such, had no yellow page listing for janitorial services, and did not have any equipment or supplies necessary to carry out his duties, other than what Petitioner provided him. The characteristics, terms and conditions of Bucci's employment with the Petitioner from April 1984, through July 1988, support the Respondent's determination that he was an employee, rather than an independent contractor, and that he was, therefore, a mandatory member of the FRS.
Recommendation Based upon the foregoing, it is recommended that the Respondent enter a Final Order concluding that John Bucci was a mandatory member of the FRS, and as such denying Petitioner's request for relief. DONE AND ENTERED this 8th day of November, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 1989. APPENDIX (DOAH CASE NO. 89-4067) Rulings on the Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected as purely procedural matters and not a relevant proposed finding of fact. 3-4. Rejected in Findings of Fact 2-5, 8-10. The Respondent did not timely file Proposed Findings of Fact. COPIES FURNISHED: Terry A. Smiljanich, Esquire P. O. Box 1578 St. Petersburg, FL 33731 Stanley M. Danek, Esquire General Counsel's Office 440 Carlton Building Tallahassee, FL 32399-1550 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus Aikens, Jr., Esquire General Counsel 435 Carlton Building Tallahassee, FL 32399-1550
The Issue Whether the respective bid protests should be upheld.
Findings Of Fact Section 7(b) of the Wagner-Peyser Act (the Act), 29 U.S.C. Section 49f.(b), is a federal grant source which provides certain funds for the funding of job placement services at the discretion of the Governors of the respective states. Included among such services are job placement services for groups determined by the Governor of Florida, in his discretion, to have special needs within the parameters set forth in the Act. These funds are commonly referred to as "the Governor's Discretionary Funds" or "the 10 percent program". In 1982, Congress passed the Job Training Partnership Act (JTPA), 29 U.S.C. Sections 1501 et seq., which amended the Wagner-Peyser Act so as to provide the 10 percent program referred to above and which also provided for separate JTPA programs. The provisions of 29 U.S.C. Section 1517, require that the "primary consideration" to be given in the procurement of services under JTPA grant programs is to "... be the effectiveness of the agency or organization in delivering comparable or related services based on demonstrated performance " The procurement of services under Wagner-Peyser grants are not governed by the provisions of 29 U.S.C. Section 1517, but are, instead, governed by what is referred to as "the common rule." Circular A-102, informally known as "the common rule", is codified at 29 CFR 97.36(d)(3)(iv), and provides that a state, in the procurement of services under the 10 percent program is to use the same policies and procedures it uses for procurement from non-federal funds. Respondent issued a Request For Proposals (RFP) on January 26, 1990, seeking proposals for projects to be funded through the 10 percent program. Before the deadline for the submission of responses of March 21, 1990, Respondent conducted three RFP workshops and distributed answers to questions raised at the workshops. Adults Mankind Organization submitted two proposals in response to the RFP. The Center for Independent Living in Central Florida, Inc. (CIL) and Goodwill Industries of Central Florida, Inc. (Goodwill Industries) each submitted one proposal in response to the RFP. Key personnel for both CIL and for Goodwill Industries were experienced in responding to the type RFP issued by Respondent. Both CIL and Goodwill Industries had, in prior years, been successful proposers and had successfully managed contracts with Respondent that were funded by the Act. Respondent selected a three person team to review all applications that were filed in response to the RFP. The rating system employed by the team was devised by the State Job Training Coordinating Council and was essentially the same system that had been used to rate applications in the previous program year. The process contemplated that the rankings and recommendations of the three person team was to be submitted to the Job Training Committee, a committee of the State Job Training Coordinating Council. The Job Training Committee would review the work of the three person team during a public meeting and thereafter make its recommendations to the State Job Training Coordinating Council. The State Job Training Coordinating Council would thereafter review the recommendations that had been made to it by the Job Training Committee and make its recommendations to the Governor. All proposals were evaluated and ranked, by the evaluation committee in the order of their respective cumulative scores. The more points a proposal received, the higher its ranking. The top ranked proposal achieved the highest number of points and was ranked number one. Following the first ranking of the applications, the top 31 ranked proposals were recommended for funding. There was insufficient funding for projects ranked lower than 31 and, consequently, no project ranked lower than 31 was recommended for funding. Following the first ranking, none of the proposals submitted by the Petitioners were ranked high enough to merit a recommendation for funding. CIL's project ranked 39. Goodwill Industries' project ranked 47. Adults Mankind's two projects ranked 51 and 53, respectively. The initial ranking of the applicants by the evaluation team was published on April 24, 1990, before the recommendations were submitted to the Job Training Committee. The maximum score an applicant could score for all categories was 100 points. One of the rating categories, worth a total of 10 points, related to the demonstrated capabilities of the proposing organization. In the first rating, each of the proposals submitted by the Petitioners received the maximum score of 10 in this category. However, any newly formed organization, regardless of the qualifications of the key employees of that organization, received no points in this category in the first rating of the proposals. Two days after the publication of the initial evaluation a member of the Florida House of Representatives, asked Director Johnston to visit with him about the RFP process. Ernest Urassa was present at this meeting. Mr. Urassa is a former employee of Respondent who has experience in providing the type services required by the Act. Mr. Urassa formed a new organization and, on behalf of that new organization, submitted proposals in response to the RFP. In the first rating of the proposals, Mr. Urassa's proposals received zero points in the organizational capability category. Mr. Urassa had complained to this Representative and to several of Respondent's employees about the rating of the organizational capability category. During this meeting, this Representative asked Director Johnston to explain the rationale behind the rating of the organizational capability category, but there was no evidence that this Representative was attempting to improperly influence the procurement process. Mr. Johnston thereafter determined that the organizational capability category had not been fairly rated by the evaluation team. He thereafter ordered the evaluation team to rerate that one category and make its recommendations based on the revised rankings. The evaluation committee was told to consider the experience of key individuals in rating the organization's capabilities, but there was no attempt to give one proposer an unfair advantage over another. The evaluation committee rerated all of the proposals and gave all proposers a rating of 10 in the organizational capability category. Following the second rating, the proposals submitted by these Petitioners were again below the cutoff for those projects that would be recommended for funding. CIL's proposal was ranked 44, Goodwill Industries' proposal was ranked 51, and Adults Mankind's proposals were ranked 57 and 58, respectively. No project ranked lower than 36 received a recommendation for funding. The evaluation committee thereafter submitted its rankings and its recommendations to the State Job Training Committee, a committee of the State Job Training Council. The fact that the proposals had been rerated in this one category and the reasons for the rerating were discussed in public meetings before both the State Job Training Committee and the State Job Training Council. The State Job Training Council decided to cut the funding of all projects that were recommended for funding by 25% so that none of the projects that would have been funded following the first rating would be totally excluded from funding after the second rating. This 25% funding cut did not effect any of the Petitioners since their projects were not selected for funding. Petitioners failed to establish that there was any illegality, fraud, oppression or misconduct involved in the preparation of the RFP, in the selection of the evaluation committee, in the instructions given the evaluation committee, or in the work done by the evaluation committee. Mr. Johnston acted within his discretion in reviewing the method by which this category was being evaluated, in determining that the committee was not fairly evaluating the category, and in ordering the committee to rerate the proposers in the way he thought the category should be rated.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the bid protests filed by the respective Petitioners in Cases 90-3543BID, 90-3544BID, 90-3545BID and 90-3546BID be dismissed. DONE AND ENTERED this 16th day of August, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASES 9O-3543BID, 9O-3544BID, 90-3545BID and 90-3546BID The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted July 27, 1990 (the proposed recommended order does not specify by whom it was submitted, but it is apparent that it was submitted by one or more of the petitioners): The proposed findings of fact in paragraphs 1-8, 13, and 15 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 9-12, 14, 16, 19, 20, and 22-25 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 17 are rejected as being unsubstantiated by the evidence. The proposed finding misconstrues Mr. Johnston's testimony. The proposed findings of fact in paragraph 18 are rejected as being unsubstantiated by the evidence and as being argument. The proposed findings of fact in Paragraphs 21 and 26 are rejected as being unnecessary to the conclusions reached and as being argument. The following rulings are made on the proposed findings of fact contained in the proposed recommended order submitted by Respondent: The proposed findings of fact in Paragraphs 1, 3-6, and 10-12 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 7 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 8 are adopted in part by the Recommended Order, and are rejected in part as being the recitation of testimony. The proposed findings of fact in paragraph 9 are rejected as being unnecessary to the conclusions reached or as being subordinate to the findings made. COPIES FURNISHED: David J. Bush, Senior Attorney Florida Department of Labor and Employment Security The Montgomery Building Suite 131 2562 Executive Center Circle East Tallahassee, Florida 32399-0657 Sara Bravo Executive Director Adults Mankind Organization, Inc. 1850 S. W. 8th Street, Suite 411 Miami, Florida 33135 Shelton Kemp Chief, Bureau of Job Training Florida Department of Labor and Employment Security Division of Labor Employment and Training The Atkins Building, Suite 300 1320 Executive Center Drive Tallahassee, Florida 32399-0667 Nan Griggs Executive Director Treasure Coast Private Industry Council, Inc. 3405 Northwest Federal Highway Suite 101 Jensen Beach, Florida 34957 Lee Ann Pendergrass Director Center for Independent Living in Central Florida, Inc. 720 North Denning Drive Winter Park, Florida 32789 Cherie Johnson Director of Rehabilitation Development Goodwill Industries of Central Florida, Inc. 6400 S. Orange Avenue Orlando, Florida 32859-0557 Hugo Menendez, Secretary Berkely Building, Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658
The Issue Whether Respondent's employment by the Petitioner should be terminated.
Findings Of Fact At all times pertinent to this case, Hodgson was employed by the School Board as a custodian. She has been so employed since 1981. In 1999, Hodgson became deficient in the most basic element of a custodian's job--the duty to show up for work at her assigned school, in this case Miami Park Elementary (Miami Park). By July 1, 1999, Hodgson had accumulated ten unauthorized absences, enough to draw the attention of Principal Henry N. Crawford, Jr. (Crawford), and enough, standing alone, to justify termination under Petitioner's contract with the American Federation of State, County, and Municipal Employees, Local 1184 (AFSCME) the bargaining unit to which Hodgson belongs. At this time Crawford did not seek to terminate Hodgson's employment, although he could have. Instead, he counseled her regarding the School Board's reasonable and lawful requirement that she, like all employees, had the responsibility to inform the school's administration in advance of an absence, or as soon as practicable in an emergency. Nevertheless, on July 30, 1999, Hodgson left work at 6:46 p.m. instead of at the end of her shift at 11:30 p.m. Her area of the building was not cleaned properly and she was docked one half day's pay. For a considerable time after that incident, Hodgson's attendance improved. But in March 2000, her attendance again became a problem. Hodgson was absent 13 times between March 3 and March 20. Crawford again attempted to work with Hodgson, authorizing six of those absences. At the same time, he informed her of the obvious: that this level of absenteeism impeded the effective operation of the worksite. Crawford encouraged Hodgson to consider taking advantage of the School Board's generous leave-of-absence policy in order to preserve her good standing at work while taking the time necessary to deal with the issues which were causing her to miss work. Respondent neither replied to Crawford's proposal that she consider a leave of absence nor improved upon her by now sporadic attendance. Thereafter, Crawford requested assistance from OPS. On April 11, 2000, OPS wrote to advise Hodgson that she was absent without authority and that her absences were deemed abandonment of position. She was directed to provide written notification to OPS to review her situation or her employment would be terminated by the School Board. For a short time, Hodgson took this threat seriously enough to improve her attendance, but by now Crawford had a much shorter fuse with respect to Hodgson's disregard for workplace policies regarding attendance. When, on May 11, 2000, Respondent was an hour and a half late to work, Crawford sent her a memorandum the next day, again reminding her that she must report to work on time and that she was to report any absences or tardiness to school administration in a timely manner. Crawford wrote two additional warning memos to Hodgson in June 2000, but was unsuccessful in persuading her to improve her attendance or to discuss her situation, including the advisability of a leave of absence, in a forthright manner. Finally, Crawford directed Respondent to attend a disciplinary conference known as a Conference for the Record (CFR) on July 3, 2000, to discuss her absenteeism. At the CFR, Crawford again gave Respondent face-to-face directives to be present at work and when absences were unavoidable, to call the school in a timely manner. Two additional formal disciplinary conferences were held between the July 3 CFR and Respondent's termination. Crawford, having been unsuccessful in his efforts to generate honest communication with Hodgson about why a 20-year employee had stopped fulfilling her most basic job requirement, attempted to refer her to the School Board's Employee Assistance Program (EAP). EAP offers employees assistance in resolving personal problems in a manner which allows the employee to also fulfill work obligations. If such accommodations cannot be made, EAP counselors assist in helping the employee separate from his employment in a manner which does not blemish his resume. Supervisors such as Crawford may make referrals to the EAP whenever they feel an employee can and should be helped, and EAP services are also available for the asking to any School Board employee who wishes to take advantage of those services. No one is required to use EAP services, and Hodgson declined to do so. Hodgson's by now chronic absenteeism persisted. Her colleagues on the custodial staff tried, some more graciously than others, to cover her assigned duties, but Crawford was fielding an increasing number of complaints from teachers regarding their classrooms not being serviced. Morale among custodians declined in the face of the administration's seeming inability to control Hodgson. During the last two years of Hodgson's employment, she had 175 unauthorized absences. Eighty-one of those occurred in the last 12 months prior to her termination. By way of defense, Hodgson said that she developed diabetes in the past three years and that most of her absences were medically necessary. She offered voluminous stacks of paper which she claims document legitimate medical problems which made it impossible for her to work. Additional exhibits relate to a young relative she felt obligated to drive to medical appointments during her work hours. These exhibits prove little, if anything. Individually and collectively they are neither self-authenticating nor self-explanatory, and many had not been previously provided to Crawford in connection with her failure to appear for work, nor disclosed to the School Board in compliance with the pre-hearing order in this case. But even if these documents had been properly authenticated and would have in fact justified an extended medical and/or family hardship leave of absence, the evidence fails to establish that they were tendered to Crawford at the time Hodgson was absent. Hodgson did not seek medical or disability leave, either individually or through her collective bargaining unit. Hodgson offered no testimony to contradict the School Board's evidence regarding the dozens of occasions on which she failed to show up for work. Neither did she offer any evidence that her repeated failure to comply with attendance policies was justified due to any misconduct on the part of any of Petitioner's employees. At all times material to this case, the School Board was in compliance with applicable statutory and contractual provisions concerning employee discipline and termination with respect to Hodgson.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered, sustaining Respondent's suspension without pay and terminating her employment. DONE AND ENTERED this 14th day of June, 2002, in Tallahassee, Leon County, Florida. FLORENCE SNYDER RIVAS 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 14th day of June, 2002. COPIES FURNISHED: Janice E. Hodgson 14020 Northeast 3rd Court, No. 5 North Miami, Florida 33161 Madelyn P. Schere, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue Suite 400 Miami, Florida 33132 Merrett R. Stierheim, Interim Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue Suite 912 Miami, Florida 33132 Honorable Charlie Crist, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400 James A. Robinson, General Counsel Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
