Findings Of Fact Respondent has been employed by the Pinellas County Sheriff's Office for approximately nine years. For the past four years and at all times material to this proceeding, Respondent was employed by the Pinellas County Sheriff's Office as a property clerk. Respondent's duties as a property clerk included the following: (1) taking physical custody of evidence, (2) assigning physical locations in alpha- numerically numbered "bins"; (3) recording the receipt of evidence and its physical location in the computer; (4) printing and affixing to the evidence, bar codes for identification of the evidence; and (5) placing the items in the appropriate bins. Also, in her role as a property clerk, Respondent was responsible for retrieving evidence from the bins for officials of the Sheriff's Office when such evidence or property was needed for court, analysis, or other purposes. In collecting and logging in items, property clerks follow a specified routine. Each item of evidence has a unique police report number for tracking purposes in the Sheriff's Office computers. Typically, the Property Section will receive an item of evidence from a law enforcement officer with identifying information contained on an adhesive "property and evidence" label. The label includes the police report number, date and place of collection, the officer's name and payroll number, and any special instructions. The collecting officer and the property clerk sign the label when the item of evidence is received by the property clerk. After the property clerk receives the item, the property clerk enters the information into the computer and assigns the item a physical location in the Section. Once the information is entered into the computer, the property clerk will command the computer to print a small adhesive paper label which contains a bar code, location number, and brief item description. The property clerk then affixes the label to the bag containing the item. Except for guns, drugs, and oversized materials, once items are processed, they are stored in cardboard boxes (or bins) in the Property Section's warehouse. The warehouse is located behind a secure door and contains items of property or evidence. The boxes are arranged alpha-numerically. For example, there is a rack in the warehouse containing the "Y" boxes, from Y-001- upwards. The boxes are filled sequentially. The property clerks process the items at a computer terminal located behind the glass partition separating the secure areas of the Property Section from the common lobby area. Typically, there are four boxes of different sizes on the table. Usually, the property clerks place evidence boxes on a table located directly behind them. Once an item of evidence is processed, it is placed in one of the four boxes on the table. The placement of items of evidence in one of these four boxes alleviates the need for the property clerk to shuttle each individually processed item of evidence to the warehouse. Once an evidence box is full, the property clerk takes the box to the warehouse and places it in the appropriate rack. Then the property clerk removes the next consecutively numbered empty box and takes it to the table in the processing area. On or about April 10, 1995, Sgt. Wallace Colcord, Section Commander of the Property and Evidence Section, Pinellas County Sheriff's Office, was notified by the supervisor of the midnight shift, Robert Bayer, of inquiries regarding missing pieces of property. Essentially, in looking for an item of evidence, a property clerk had failed to locate an item of evidence for a forensic technician. In this instance, the computer indicated that the item was located in a certain bin in the warehouse, but upon a search of the designated bin, the property could not be located. Based upon his investigation, Supervisor Bayer determined that the original bar codes indicated that the evidence had been initially processed by Property Clerk Betty Chandler. Bayer spoke with Chandler regarding the missing item and directed her to locate the property. After spending the entire weekend looking for the missing item of evidence, Chandler located the initial missing item as well as several others that had been relocated. What Chandler discovered were items that were mislocated and had new bar codes affixed over the original bar codes prepared by Chandler. However, it was determined that the computer entry for the items showed the original location. During the course of this investigation, it was discovered that seven items of evidence had been mislocated in this manner. The bar code printing machine maintains a continuous ribbon which was able to be examined. Through such examination, it was determined that the new bar codes on the mislocated items had been printed on the evening shift of April 1, 1995, during the time that only Respondent was on duty. On or about April 24, Sgt. Colcord and Richard Roberts, Respondent's immediate supervisor, met with Respondent Styers regarding the mislocation of items that occurred during her shift on April 1, 1995. Respondent initially indicated that she had heard something about the problem. Sgt. Colcord presented to Respondent two items of property which had been mislocated, two inmate knives. He then directed Respondent to inspect the items, the labels and the bar codes and asked her if she had anything to do with those items. Respondent denied knowing about or having anything to do with the items. After being told that it had been determined that the bar code ribbons indicated that she had printed the "new bar codes" for the two inmate knives, Respondent changed her story. Respondent stated that she had been working on a relocation to an "L" box in the presence of her husband and eight-year old daughter, who had come to the office to have dinner with her. She indicated that her daughter must have used the computer and mislocated the property while she and her husband were outside smoking. Sgt. Colcord then asked Respondent whether he could call her husband regarding his recollection of the events of April 1, 1995. Within a short time, Sgt. Colcord spoke to Respondent's husband by telephone regarding his recollection of the events. In this conversation, Mr. Styers did not recall that he and Respondent ever left their daughter in the Property Section Office alone. Also, Mr. Styers indicated that he did not believe that, without supervision, his daughter had the computer skills necessary to make the entries required to relocate property or evidence. After the telephone discussion with Mr. Styers, Sgt. Colcord and Roberts resumed their interview with Respondent. After learning that her husband's version of the events conflicted with hers, Respondent changed her story. Respondent then indicated that she had not left her daughter alone in the secure area of the Property Section. Respondent indicated that her daughter was interested in the "stickers" and based on her daughter's interest, Respondent showed her daughter how locations were done. According to Respondent, in demonstrating to her daughter how the labels were printed, Respondent took several items of property that were laying out on the counter and, in the computer, changed the location of the items, printed out the new labels showing the new location, and affixed these labels to the items of property. According to Respondent, she then went back to the computer and returned each item to its original location, but forgot to print corresponding stickers and "inadvertently" took these items and placed them in the bins as indicated on the stickers. Respondent Styers acknowledged making these mistakes, but indicated that the errors were accidental or inadvertent. Most of the items of evidence mislocated by Respondent had been originally processed by Property Clerk Chandler. At the time of the incident, both Chandler and Respondent were eligible for a promotion to a position soon to be vacated by the retirement of Supervisor Bayer. By creating the appearance of mistakes on the part of Chandler with regard to the handling of evidence, Chandler's promotional opportunities would be negatively impacted. Based on his conclusion that Respondent had been untruthful during the investigation and on her actions of mislocating property, Sgt. Colcord referred the matter to the Administrative Inquiry Division (AID) of the Sheriff's Office. During this investigation, Respondent was interviewed by agents of the Internal Affairs Section of the Pinellas County Sheriff's Office. At that time, Respondent told investigators that on the evening of April 1, 1995, she was demonstrating to her daughter how items were relocated both physically and through bar code changes in the computer. According to Respondent, she thought that she had returned the items used in the demonstration to their appropriate computer locations and had properly bar coded the items. During these interviews, Respondent again admitted that she was responsible for the errors but stated that the errors were simply mistakes and were not made intentionally. After completing its investigation, the AID presented its entire investigative file to the Chain-of-Command Board without conclusion or recommendation. The Chain-of-Command Board met and sustained the complaint. Specifically, Styers was charged with violations of four rules of the Pinellas County Sheriff's Office. The charges involve allegations that Respondent violated the following rules and regulations of the Pinellas County Sheriff's Office: (1) C-1,V.A,6,(006), relating to truthfulness; (2) C-1,V,A,14c.,(016), relating to conduct unbecoming a member of the agency; (3) C-1,V,C,5,(064), relating to performance of duty; and (4) C-1,V,C,19,(082), relating to the care, custody, and control of property and evidence. Pursuant to General Order B-15, violation of the rules cited above relating to truthfulness and conduct unbecoming a member of the agency are considered Level Five violations. Violations under the rules related to performance of duty and the care, custody, and control of evidence and property are considered Level Three violations. Under the Pinellas County Sheriff's Office Guidelines (Guidelines), a sustained finding of two Level Five violations is the basis for assigning sixty disciplinary points. A sustained violation of two Level Three violations is the basis for assigning twenty-five disciplinary points. The Sheriff's Office General Order B-15 does not contain a disciplinary range for a total point award of eighty-five points. However, consistent with the established Guidelines, the Chain-of-Command Board adjusted Respondent's total disciplinary point award at seventy-five points. For seventy-five (75) total points, the discipline imposed may range from ten days suspension to termination. Based on its findings, the Chain-of-Command Board recommended that Respondent be terminated. Petitioner concurred with the recommendation of the Chain-of-Command Board and terminated Respondent from her position as property clerk with the Pinellas County Sheriff's Office. Prior to the incident in this case, Respondent has not been the subject of an administrative investigation or any disciplinary action by the Pinellas County Sheriff's Office.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Civil Service Board of the Pinellas County Sheriff's Office enter a Final Order finding Respondent guilty of the conduct alleged in Counts I, II, III, and IV of the charging document and upholding Respondent's termination from employment as a property clerk with the Pinellas County Sheriff's Office. DONE and ENTERED this 10th day of July, 1996, in Tallahassee, Florida. CAROLYN S. HOLIFIELD Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0022 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-4. Accepted. Accepted and incorporated. Accepted. 7.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. Accepted. 14.-34. Accepted and incorporated to the extent not subordinate or unnecessary. 35. First sentence accepted and incorporated. Remainder of paragraph rejected as argument. 36.-41. Accepted and incorporated to the extent not subordinate or unnecessary. Respondent's Proposed Findings of Fact. Accepted. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted. 4.-6. Accepted and incorporated. 7. Accepted in part. Reject characterization of interview as "informal discussion" and statement that Respondent was not informed of the nature of the mislocation of items. 8.-9. Accepted and incorporated to extent not subordinate or unnecessary Accepted and incorporated to extent not subordinate or unnecessary. Reject characterization of discussion as "informal interview." Accepted and incorporated. Accepted except phrase "no evidence of such was presented" is rejected as not supported by the record. First sentence accepted and incorporated. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted. First two sentences accepted. Remainder of paragraph rejected as argument and/or legal conclusions. Accepted and incorporated. Rejected as argument and conclusions of law. First two sentences and last sentence accepted. Remainder of paragraph rejected as argument. Accepted and incorporated to extent not subordinate or unnecessary. 20.-23. Rejected as irrelevant and immaterial. 24. Accepted. COPIES FURNISHED: James M. Craig, Esquire ALLEY AND ALLEY/FORD AND HARRISON 205 Brush Street Post Office Box 1427 Tampa, Florida 33601 Joseph M. Ciarciaglino, Esquire CIARCIAGLINO AND COYLE, P.A. 200 Mirror Lake Drive St. Petersburg, Florida 33701 William Repper, Chairperson Pinellas County Sheriff's Civil Service Board Post Office Box 539 Clearwater, Florida 34617 B. Norris Rickey, Esquire Office of Pinellas County Attorney 315 Court Street Clearwater, Florida 34616
The Issue The issue is whether Respondent committed an unlawful employment practice when it terminated Petitioner's employment on July 20, 2001.
Findings Of Fact Based upon observation of the witnesses while testifying, exhibits admitted into evidence, stipulations and arguments of the parties, and evidentiary rulings made, the following relevant and material facts are objectively determined: Motion to Dismiss for Failure to Timely File Petition for Relief This case arises out of a Charge of Discrimination (Charge) filed by Petitioner (Mr. Tabak) with the Commission on July 19, 2002. Mr. Tabak alleged in the Charge that Respondent (Office Depot) discriminated against him based on his religion (Jewish), disability, and age (54 years) and retaliated against him for complaining of the same when it terminated his employment on July 20, 2001. Office Depot denied the allegations in the Charge and contends that it does not discriminate on the basis of religion, disability, age or any other factor. On March 12, 2004, a no cause determination was issued by the Commission after its investigation of the allegations in the Charge. The determination states that "there is no reasonable cause to believe that an unlawful employment practice has occurred." The no cause determination and the Notice were mailed to Mr. Tabak on March 12, 2004. The Notice informed Mr. Tabak of his right to request an administrative hearing by filing a petition for relief within 35 days of the date of the Notice (i.e. April 16, 2004), and it further informed Petitioner that his claim would be dismissed if it was not timely filed. The Commission received Mr. Tabak's Petition for Relief (Petition) on April 19, 2004, 38 days after the date of the no cause determination and Notice of March 12, 2004. Mr. Tabak gave no reason for the failure to timely file his Petition, other than "he put it in the mail and the postal services should have delivered it." Failure to Respond to Discovery Mr. Tabak acknowledged receiving Office Depot's First Request for Production of Documents and First Set of Interrogatories. Mr. Tabak acknowledged that he did not answer Respondent's discovery requests. Office Depot did not file a motion to compel or any other pleading to have Mr. Tabak's refusal to comply with discovery addressed by the undersigned prior to the hearing, and the noncompliance issues are now moot. Claim of Discrimination Mr. Tabak was hired by Office Depot on November 25, 1994, as a delivery driver at the satellite facility located in Fort Myers, Florida. Delivery drivers would report to the warehouse each morning to be assigned a "route" and/or "delivery" by the "lead" driver. The lead driver was an employee promoted from among the drivers. Drivers with the most experience and knowledge of the "delivery aspect" of the business, who had demonstrated an ability to manage other drivers and interviewed well as a potential leader, as determined by management, was promoted to lead driver positions. During Mr. Tabak's employment with Office Depot, a male and female were promoted to lead driver positions. At the time of hire, all of Respondent's employees, to include Mr. Tabak, were provided with a copy of Office Depot's employee handbook. Office Depot's employee handbook includes policies regarding equal employment opportunity, prohibition of unlawful harassment, and appropriate workplace conduct. The policies prohibit discrimination or harassment of employees on the basis of several factors, including religion, age, disability, sexual orientation, race, and national origin and require employees to treat one another with respect. The handbook provided the accepted method for employees to file their objections to all proposed disciplinary actions taken against them by management, at the time they were notified of adverse action impacting their employment status. On October 13, 1997, some 35 months after he was hired, Mr. Tabak applied for a lead driver position that was advertised. Mr. Tabak was interviewed, selected, and promoted to the lead driver position with an increase in pay and responsibilities. The overall responsibility of the lead driver was to ensure each day (1) that all vehicles were operative, that drivers were present and assigned delivery routes, and that drivers were scheduled to fill in for drivers who were on vacation and out sick. When necessary, the lead driver will drive for a driver who is out sick and no replacement was timely found. All Office Depot drivers understood that "the daily delivery of goods was the ultimate objective to be achieved." On or about May 11, 2001, driver Jamie Salazar radioed Mr. Tabak, his lead driver, informing Mr. Tabak that he ran out of gas while driving a delivery route. During their conversation on the office-to-truck radio, another driver, Daniel Vasquez, overheard Mr. Tabak tell Mr. Salazar, "if you have a fucking problem, say it to my face," or some vulgar statement to that effect. Mr. Salazar and Mr. Vasquez reported Mr. Tabak's vulgar comment to Jeff Parry, the satellite manager. Mr. Parry discussed Mr. Tabak's inappropriate conduct with his immediate supervisor, Tom Perrin, the district manager/supervisor. Mr. Parry and Mr. Perrin agreed that Mr. Tabak's comments and conduct were inappropriate and were a violation of Office Depot's policy and practice that required "employees to treat one another with respect." On May 11, 2001, Mr. Parry and Mr. Perrin concluded that Mr. Tabak would receive written counseling for his comment to Mr. Salazar, with the warning that the next policy infraction would result in a final written counseling warning and/or termination. The written counseling becomes a part of the employee's personnel file. Office Depot's Problem Resolution policy is included in the employee handbook. Through the Problem Resolution policy, employees may contest proposed disciplinary counseling or other adverse actions taken by Office Depot management. Mr. Tabak was given a Problem Resolution form at the time he was informed by management of the "written counseling warning," but he elected not to complete the form to contest the written counseling warning he received for his vulgar comment to Mr. Salazar. On May 11, 2001, Mr. Parry and Mr. Perrin gave Mr. Salazar a final written warning for running out of gas. This final warning was given because it was the responsibility of the driver, Mr. Salazar, to ensure that the truck assigned to him was fully gassed each morning before leaving the facility. On or about July 10, 2001, driver, David Tollison, reported to Mr. Parry that at the end of his delivery run he attempted check-in with Mr. Tabak, his lead driver, by giving his signed clipboard evidencing deliveries made. According to Mr. Tollison, Mr. Tabak shoved the clipboard back to him and said "fucking check yourself in." When confronted by management with this second complaint of using vulgarity to coworkers, Mr. Tabak denied using the specific word "fucking" but admitted he "may" have said "hell" or "damn" when he shoved the clipboard at Mr. Tollison. Again Mr. Parry discussed this incident with Mr. Perrin, and they agreed that Mr. Tabak's conduct was inappropriate and violated Office Depot's policies and practices requiring "employees to treat one another with respect" and that he should receive a final written counseling. On July 10, 2001, Mr. Tabak received his final written counseling for his inappropriate conduct toward Mr. Tollison. The final warning informed Mr. Tabak that the next infraction of Office Depot's employee policies would result in termination. Again, Mr. Tabak was given a Problem Resolution form at the time he was informed by management of the "final written warning," but he elected not to complete the form to contest the written counseling warning he received for his vulgar comment to Mr. Tollison. On July 18, 2001, Mr. Parry was advised that Mr. Tabak had made derogatory comments about the sexual orientation of Lisa Holmes, a lead driver. It was reported that Mr. Tabak, in the presence of drivers, Dan Mouser and Glenn Michalak, had on more than one occasion referred to Ms. Holmes as "that gay bitch." On two or more occasions Mr. Tabak made derogatory comments about Ms. Holmes in the presence of Vailoa Tavia, referring to Ms. Holmes as a "bitch" and stating that "she should not be working as a driver at Office Depot because she is a woman." Mr. Tabak, in the presence of Mr. Michalak, continued his barrage of derogatory comments about Ms. Holmes, referring to her as a "dike" and stating "we sure don't need any gay leads [drivers] around here." Mr. Tabak's derogatory comments about his coworkers were not restricted to just the sexual orientation of Ms. Holmes. In the presence of Mr. Michalak and on more than one occasion, Mr. Tabak expressed his opinion regarding his Mexican and Black American coworkers, to include the statement "if we could get rid of all the Blacks and Mexicans, this place would run better," and "we don't need Blacks and Mexicans, because they are lazy." Mr. Tabak's repeated inappropriate comments made about his coworkers in the presence of other coworkers, after two written warnings, were brought to the attention of Richard York, Office Depot's Regional Human Resources Manager, located in Atlanta, Georgia. Mr. York, through his own investigation of Mr. Tabak's comments regarding the race, national origin, and sexual orientation of other Office Depot employees confirmed repeated violations, after warnings, had occurred. On July 20, 2001, Mr. Tabak was terminated for repeated violations of Office Depot's policies concerning equal employment opportunities and non-harassment. Again, at the time of his termination for the third and last time, Mr. Tabak was given a Problem Resolution form to complete to contest his termination. Mr. Tabak did not, however, mention in his Problem Resolution any claims of religious, age, or disability discrimination; failure to accommodate; or retaliation. It is undisputed that Mr. Tabak's termination was the sole and direct result of his having made three or more derogatory statements about his coworkers in the presence of other coworkers, each such statement being a separate violation of Office Depot's policy regarding mandatory respect of each employee for coworkers. Mr. Parry terminated another employee, Mr. Mouser, for making derogatory remarks about Mr. Tabak's Jewish religion. He also terminated Michael Salters and Charles Wrotten for misconduct. Neither Mr. Mouser, Mr. Salters nor Mr. Wrotten was Jewish or disabled, and they were all in their early to mid 20's when terminated. Mr. Tabak was terminated solely for his repeated violations of Office Depot's employee policy consisting primarily of derogatory remarks and inappropriate conduct toward his coworkers and for no other reason as he alleged some three years after his termination. Religious Accommodation Claim Office Depot does not have nor does it observe any company-wide, close all stores, religious holidays. The policy of Office Depot was to accommodate any employee's request, should another employee be found to replace the absent employee, or the day off was one of those listed for all employees. No day off was given any employee merely because of that employee's religion or other personal traits and/or desires. Leave and vacation time was available should an employee plan his schedule and have eight or more hours leave available for any purpose the employee deemed appropriate. Mr. Tabak's claim of discrimination, to include religious discrimination, was filed on July 19, 2002, more than 1,000 days after he was required to come in to work on Yom Kippur in September of 1999. Mr. Tabak's requests for time off for religious holidays during his employment, beginning in November of 1994 through September of 1999, with Office Depot were granted without exception when another driver could and would be available to cover Mr. Tabak's assigned duties. Mr. Parry was Mr. Tabak's manager in 1999 and 2000 during both Jewish holidays, Yom Kippur and Rosh Hashanah. In 1999, Mr. Tabak was called in to work on Yom Kippur by Mr. Parry after his prior request for that day off had been granted. On that day, the unexpected absence of two drivers would have caused undue hardship on the operations of the facility where Mr. Tabak was employed as a lead driver. Mr. Tabak's suggestion that a driver could be requested from the Miami location to travel to Ft. Myers for one day's work that he might celebrate a religious holiday was rejected by Mr. Parry because had never requested driver assistance from Weston/Miami on the day of a crisis. Mr. Tabak was not called in to work on Jewish holidays in the year 2000 because no drivers called in sick. Religious Discrimination Claim Mr. Tabak's claim of religious discrimination was based on his not getting promoted to the Ft. Myers managerial position in November 1998 for which he also applied. Again, the religious discrimination claim was not raised in 1998. Mr. Parry's employment with Office Depot began in 1988, when Office Depot acquired Allstate Office Products, by whom Mr. Parry was already employed as a driver in Tampa, Florida. In 1993, Office Depot incorporated the Allstate Office Products Tampa office system for computer centralized customer delivery from the warehouses into the Fort Myers facility. In December 1994, one month after Mr. Tabak was hired, Mr. Parry was temporarily assigned to the Ft. Myers facility to set up and implement the computer centralized customer delivery system and to train its drivers. Tim Edwards, Office Depot's manager, made the decision to promote Mr. Parry because he felt that Mr. Tabak did not do well during his interview. Mr. Edwards gave Mr. Tabak an out- of-cycle pay increase in November 1998 of approximately six percent. Mr. Parry hired Jordan Silverstein, a Jewish driver, after Mr. Tabak's termination on July 20, 2001. At the request of Mr. Tabak, and as a part of its business practice of giving back to the community, Office Depot made two voluntary donations of $2,500 each to Mr. Tabak's Jewish Temple, once in 2000 and again in 2001. Considering all evidence of record favorable toward Mr. Tabak regarding religious discrimination, Mr. Tabak failed to establish a prima facie case that Office Depot discriminated against him because of his religion when he was not selected for promotion to the position of manager of the Ft. Meyers facility in November 1998. Mr. York was 53 years of age in July 2001 when he participated as a manager in the decision to terminate Mr. Tabak. Mr. Perrin was in his early 40's when he participated in the decision to discipline and ultimately terminate Mr. Tabak. Mr. Michalak was 51 years old in July 2004. During his employment with Office Depot, Mr. Michalak testified to never having experienced age discrimination and never having observed or heard of any age-related discriminatory remarks toward Mr. Tabak. Mr. Tabak's only evidence of age discrimination was his allegation that Mr. Michalak made the remark, which Mr. Michalak denies, that "an old fart like you is never going to make manager." Considering all evidence of record favorable toward Mr. Tabak regarding age discrimination, Mr. Tabak failed to establish a prima facie case that Office Depot discriminated against him because of his age, when he was not selected for promotion to a manager's position or because of an alleged statement made by Mr. Michalak. Disability Discrimination Mr. Tabak based his claim of disability discrimination on his alleged diminished hearing capacity. Mr. Tabak alleged that he suffered with diminished hearing that was corrected and restored to 100 percent when he would wear his hearing aid. Mr. Tabak's alleged diminished hearing did not interfere with or prohibit his performance of his job and duties while employed at Office Depot. Mr. Tabak passed his annual Department of Transportation hearing tests while he worked under Mr. Parry's management in the Ft. Myers facility. Mr. Tabak never personally made Mr. Parry aware of his diminished hearing, and, consequently, Mr. Parry was not aware that Mr. Tabak suffered with a hearing problem that was corrected with a hearing aid. Mr. Tabak offered no medical evidence in support of his "diminished" hearing allegation. Considering all evidence of record favorable toward Mr. Tabak, he failed to establish a prima facie case that Office Depot discriminated against him because of his diminished hearing that was corrected and restored to 100 percent when he would wear his hearing aid. Retaliation At no time during his employment or during his termination process, including his opportunity to identify and address his retaliation claim on his Problem Resolution form, did Mr. Tabak allege that not being selected to a position of manager and his termination were acts of retaliation. Indeed, when his termination was first and in the forefront of his concerns, Mr. Tabak did not complete his Problem Resolution form to raise a claim of retaliation or to contest his termination. Office Depot was first made aware of Mr. Tabak's claims of alleged religious, age, and disability discrimination; failure to accommodate; and retaliation on July 19, 2002, one year after his termination. Mr. Tabak failed to establish a prima facie case that Office Depot retaliated against him when they terminated his employment on July 20, 2001.
Recommendation Based upon the foregone, it is RECOMMENDED that the Commission issue a final order dismissing with prejudice the Petition for Relief and the Charge of Discrimination. DONE AND ENTERED this 1st day of October, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE 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 1st day of October, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alexander Tabak 214 Southwest 46th Terrace Cape Coral, Florida 33914 Joanne B. Lambert, Esquire Jackson Lewis LLP 390 North Orange Avenue Orlando, Florida 32801 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of his disability in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact In October 1995, Mr. Meiselman suffered a traumatic brain injury as a result of a serious automobile accident, caused by a drunk driver. Due to the traumatic brain injury, among other things, he suffers from short-term memory loss, seizures, and depression. Because of the short-term memory loss, tasks performed by Mr. Meiselman must be repetitive. Mr. Meiselman’s seizures are mostly petite-mal, not grand-mal, and he takes medication for them. When he has a seizure, he gets embarrassed about his disability and very frightened and does not want to be around people. Also, during a seizure, he thinks about the drunk driver who caused the accident and curses during the seizure. Further, when he has a seizure, Mr. Meiselman needs to “cool-down,” but, if that does not calm him and ease the seizure, an ambulance needs to be called. In September 1997, Mr. Meiselman was approved for social security disability by an administrative law judge of the Social Security Administration (SSA ALJ). At the hearing before the SSA ALJ, medical evidence was presented supporting an organic mental disorder, producing memory impairment and disturbance in mood; and supporting an affective disorder, producing major depression. The SSA ALJ found that Mr. Meiselman had “impairments” of a “closed head injury and major depression,” which were considered “severe”; and that the impairments prevented Mr. Meiselman from “maintaining appropriate levels of attention and concentration, and interacting with others on a sustained basis.” Additionally, the SSA ALJ found that Mr. Meiselman's activities of daily living (ADLs) were restricted or limited to the moderate level. It is not disputed that Mr. Meiselman suffers from a disability because of his memory and cognitive difficulties. On or about April 16, 2001, Mr. Meiselman completed an application for employment with the Clerk. At or about the time of his application, Mr. Meiselman submitted to the Clerk’s Human Resources office information regarding his approximate two-year lapse in employment and disability, as determined by the SSA, including his memory impairment and his suffering from seizures.2 However, Human Resources had no record of such information. On June 18, 2001, Mr. Meiselman was employed by the Clerk in the position of Archives Coordinator. He was placed in the Archives Department at the Clerk’s Deerfield location in the Warehouse. The manager of the Warehouse was Freddie Allen. Among other things, Mr. Meiselman’s work involved repetitive work and very little driving, both of which were needed in order for him to properly function in the position. No accommodation was requested by Mr. Meiselman. No accommodation was offered by the Clerk. Mr. Meiselman’s training for working in the Warehouse took six months. Normally, the training takes no more than one month. During Mr. Meiselman’s probationary period, he received monthly evaluations from Mr. Allen. No deficiencies were noted by Mr. Allen on the evaluations. Mr. Meiselman’s last evaluation in November 2001 reflected a ranking of above average in all of the categories being evaluated, except one, in which he received a ranking of excellent. After his probationary period, Mr. Meiselman received yearly performance appraisals. For the period of June 18, 2002, through June 18, 2003, his overall performance was rated as average. The performance appraisal reflects the Assistant Director of Support Services, Deborah Hitchcock, as the evaluator. Mr. Meiselman received an overall rating of average even though, on June 18, 2002, he received an “Oral Warning” for “unprofessional conduct” from Mr. Allen for an incident that occurred on May 28, 2002. Mr. Meiselman and another employee engaged in a verbal confrontation, but no physical contact, disrupting the work of fellow employees. Also, during that appraisal period, on February 12, 2003, Mr. Meiselman appeared to have experienced a medical incident that concerned Ms. Hitchcock to the degree that she authored an “Incident Report.” Mr. Meiselman was assisting in the unloading of boxes from a truck. Afterwards, Ms. Hitchcock observed him walking down a corridor; and he was pale, sweaty, incoherent, not responding to her attempts to talk with him, and repeatedly attempting to push open doors that required a key card to open. Other employees took measures to cool him down and paramedics were called. Mr. Meiselman was treated for heat- related problems and was permitted to drive himself home. Ms. Hitchcock was informed by Mr. Allen and another employee, Tom Williams, that they had observed Mr. Meiselman exhibiting the same conditions and behavior on prior occasions. Mr. Allen was aware of Mr. Meiselman's traumatic brain injury.3 Additionally, once, Mr. Allen observed Mr. Meiselman sweating abnormally and asked Mr. Meiselman whether anything was wrong. Mr. Meiselman responded that he was having a seizure, but Mr. Allen did not call an ambulance. The next day, February 13, 2003, Ms. Hitchcock asked Mr. Meiselman whether his conditions and behavior on the previous day were a health concern. He informed her that he believed that he had become overheated and that he was having a blood test performed later. Mr. Meiselman did not state to Ms. Hitchcock that he had suffered a seizure. Nor did he indicate to her that he suffered from seizures. On February 14, 2003, by memorandum, Ms. Hitchcock requested Mr. Meiselman to obtain clearance from his physician to return to work for full job-related duties at the Warehouse. Further, she informed him that he was not to use ladders and that she would also advise Mr. Allen of the restriction. On or about February 21, 2003, Mr. Meiselman obtained and submitted the clearance to return to “full activity at work” from his physician. He returned to work without any restrictions. For the period of June 18, 2003, through June 17, 2004, Mr. Meiselman’s overall performance was rated as needs improvement, with continued employment to be evaluated. The signature page was not attached to the performance appraisal. However, an inference is drawn and a finding of fact is made that Ms. Hitchcock was also the evaluator on this performance appraisal. On January 30, 2004, Ms. Hitchcock gave Mr. Meiselman an "Oral Warning" for his "quality of work" regarding a situation involving the destruction of public documents. Some boxes of parking citations were missing and could not be located. The subject boxes were public documents and, in compliance with Florida's public records law concerning retention, were not scheduled for destruction. Mr. Meiselman was in charge of the destruction of such boxes in compliance with Florida's public records law. The determination was made that the boxes had been destroyed and that they were destroyed contrary to Florida's public records law concerning retention. Mr. Meiselman was held responsible for the error. On March 5, 2004, Ms. Hitchcock gave Mr. Meiselman an "Informal Write Up" for his "quality of work" and "carelessness." The previous day, March 4, 2004, she was unable to locate a record disposition form in Mr. Meiselman's office that she needed. Ms. Hitchcock had previously advised Mr. Meiselman in writing about organizing and completing his disposition forms and files and reporting his dispositions in order for others to complete the tasks and to be able to locate documents in his absence. She informed him in the Informal Write Up that future issues in quality of work or carelessness would result in progressive discipline. On May 17, 2004, Ms. Hitchcock issued Mr. Meiselman a Corrective Action Statement (CAS) for his "carelessness" and "quality of work." She considered his work performance as inadequate. This action by Ms. Hitchcock was the first step of progression discipline. The CAS advised Mr. Meiselman, among other things, of the specific nature of his performance deficiencies and the detrimental effect of those deficiencies. Further, the CAS advised him that the consequence of his failure to improve his work performance would result in "continued progressive discipline, up to and including suspension or termination." Ms. Hitchcock met with Mr. Meiselman to review the CAS with him. In attendance, also, was Mr. Allen at Ms. Hitchcock's request. As Mr. Meiselman was reviewing the CAS, Mr. Allen observed a negative change in Mr. Meiselman's facial expression, which caused Mr. Allen to be concerned. Mr. Allen positioned himself between Mr. Meiselman and Ms. Hitchcock and asked Mr. Meiselman to calm down, which he (Mr. Meiselman) did. Even after the CAS, Ms. Hitchcock did not observe improvement in Mr. Meiselman's work performance. As a result, she prepared a second CAS and submitted it to the Clerk's Chief Director of Human Resources, Patricia Mosely, for review. After reviewing the pending second CAS, Ms. Mosely met with Mr. Meiselman. She reviewed the pending second CAS with him and indicated to him that it would jeopardize his continued employment. As an option, Ms. Mosely offered Mr. Meiselman a position in the Central Courthouse mailroom as a clerk. She advised him that, if he accepted the mailroom clerk's position, the pending second CAS would not be approved. The mailroom position was a lower position; but, it required repetitive tasks to be performed, which was what Mr. Meiselman indicated that he needed in a position, and was less demanding. Furthermore, he was able to perform the essential function required in the mailroom position. Additionally, during the meeting, Ms. Mosely asked Mr. Meiselman whether he was able to perform the physical aspects of his job in the Warehouse. He responded that he had a condition, but did not indicate what the condition was or whether the condition prevented him from performing his duties. Ms. Mosely provided the Clerk's "Physician's ADA [Americans with Disabilities Act] Questionnaire" to Mr. Meiselman and indicated to him that it needed to be completed in order for the Clerk to recognize a medical condition or disability. Mr. Meiselman accepted the position. The pending second CAS was not issued. The Physician's ADA Questionnaire was not returned to Ms. Mosely. On August 9, 2004, Mr. Meiselman began working at the mailroom. His supervisor was David Tomkins. Mr. Tomkins was already aware of Mr. Meiselman as a result Mr. Meiselman having worked at the Warehouse. Sometime after Mr. Meiselman began working at the mailroom, Mrs. Meiselman came to the mailroom and informed his co-workers about his seizures; this embarrassed him. She explained to Mr. Meiselman's co-workers what happens to him when he has a seizure and what they should do--let him cool-off and, if necessary, call an ambulance. Additionally, she provided the mailroom staff with her telephone numbers, which were placed in the mailroom. Mr. Tomkins had some knowledge of seizures because his wife suffered from grand-mal seizures, which were more severe than Mr. Meiselman's seizures. However, Mr. Tomkins had no knowledge of petite-mal seizures, which is the kind of seizure experienced by Mr. Meiselman. The Clerk did not offer and Mr. Meiselman did not request any accommodations at the mailroom when he began his new position. For the first month of his four-month probationary period in the mailroom clerk's position, Mr. Meiselman received a performance evaluation. For the period of August 9, 2004, through September 9, 2004, he received a performance rating of good, which indicated that he performed at a competent and dependable level and that he met the performance standards of the job. The performance evaluation was signed by the evaluator, Mr. Tomkins, on September 27, 2004, Ms. Hitchcock on September 28, 2004, and the Chief Director of Support Services, Crystal Pressey, on September 28, 2004. A few days later, on October 1, 2004, Mr. Meiselman signed the performance evaluation. He made comments on the evaluation, which included that he had a "disability of a traumatic brain injury," and that, because of his disability, he had problems remembering his duties that were not done repetitively. Mr. Meiselman did not request any accommodation for his disability. Again, he did not submit the Physician's ADA Questionnaire. The Clerk did not offer any accommodation for Mr. Meiselman's disability. Even though his first month's performance was rated as good, Mr. Meiselman's experienced subsequent problems. On November 15 and 16, 2004, Mr. Meiselman was late for work two hours and four and one-half hours, respectively. He advised Mr. Tomkins that he had a doctor's appointment on each of the days. However, Mr. Meiselman had neither called-in nor requested the time-off in advance, as he had been instructed to do. On November 17, 2004, Mr. Tomkins, along with Ms. Hitchcock, met with Mr. Meiselman regarding the proper procedure for requesting time-off and reporting emergency time- off from work. During the meeting, Mr. Tomkins requested Mr. Meiselman to read his (Mr. Meiselman's) calendar card, which contained two separate notations by Mr. Tomkins that Mr. Meiselman had been counseled by him (Mr. Tomkins) about requesting leave for medical situations. After reading the calendar card, Mr. Meiselman raised his voice, shouted, and became argumentative; he eventually calmed down, but, afterwards, said very little, mostly staring. The proper procedure for requesting time-off and reporting emergency time- off from work was explained to Mr. Meiselman, and he was provided with an application for leave. At the conclusion of the meeting, Mr. Tomkins requested Mr. Meiselman to initial the back of the calendar card to indicate that he (Mr. Meiselman) had read the calendar card; and that the meeting, regarding the proper procedure for taking time-off from work, had taken place. However, instead of initialing the back, Mr. Meiselman wrote a comment on the back and the front of the calendar card. On February 10, 2005, Mr. Tomkins sent an employee, Annie Baugh, to assist in the mailroom. Almost immediately after arriving in the mailroom, Mr. Meiselman accused her of being a spy for management and spying on him. Additionally, a mail basket was not in its usual location, and, while sorting some letters, Mr. Meiselman threw some of the letters on the floor and into Ms. Baugh's back. She requested Mr. Meiselman to pick-up the letters off the floor, so she would not slip and fall, and to stop hitting her in the back with the letters. Mr. Meiselman stopped hitting her in the back with the mail and began to pick-up the mail when he slipped and cut his arm. Mr. Meiselman wiped the blood from his arm on the edge of Ms. Baugh's desk; the blood being on the desk frightened her. Ms. Baugh reported the incidents. On February 11, 2005, a CAS was issued by Cathy Kellerman, the Court Operations Manager, to Mr. Meiselman, regarding the incidents on February 10, 2005, for "misconduct," "behavior," and "violation of personnel policies." Additionally, his previous violations of personnel policies were taken into consideration. This CAS was Mr. Meiselman's second CAS. He was given a two-day suspension and, among other things, as advised to seek counseling regarding his anger and provided contact information for counseling. Regarding the incidents on February 10, 2005, Mr. Meiselman denied and denies that he did anything in anger, but that he acted in a joking manner; and that he intentionally hit Ms. Baugh in the back with the mail, but that it was accidental. Further, he denied and denies that he put blood on the desk. The evidence is more persuasive that Mr. Meiselman committed the acts and conduct complained of on February 10, 2005. On May 2, 2005, Mr. Meiselman was counseled by Ms. Kellerman for taking inappropriate breaks. He was taking three, five-minute breaks in the morning and one in the afternoon. She advised him that he was entitled to only one, 15-minute break in the morning and in the afternoon. Mr. Meiselman informed Ms. Kellerman that he had submitted doctor's notes to Human Resources indicating that he needed the breaks that he was taking. On May 11, 2005, Ms. Kellerman checked with Human Resources, regarding the doctor's notes, but, no doctor's notes were on file. That afternoon, she saw Mr. Meiselman taking two breaks and, again, counseled him regarding the breaks. Further, she provided him with the Physician's ADA Questionnaire. About two days later, around mid-day on May 13, 2005, Ms. Kellerman was notified that Mr. Meiselman was having a seizure. She had no knowledge that he suffered from seizures. Immediately, Ms. Kellerman went to the mailroom. She found Mr. Meiselman sitting down at his desk, with his eyes closed. Ms. Kellerman got his attention, and he opened his eyes and told her that he had had a seizure, but did not need medical attention. Ms. Kellerman continued to try to talk to Mr. Meiselman when he began writing in a forceful manner on his desk with a pencil and stated that he was "going to kick their fucking asses." She became very concerned for Mr. Meiselman and the safety of the other workers. Ms. Kellerman tried to get Mr. Meiselman to stand-up in an effort to get him to Human Resources, but he could not stand. She then left the mailroom to get the assistance of the Assistant Director of Human Resources, Bob Hosto. Ms. Kellerman and Mr. Hosto returned to the mailroom and found Mr. Meiselman sitting at his desk, with his eyes closed. Mr. Meiselman opened his eyes; saw Mr. Hosto; and began stating over and over again that he did not want Mr. Hosto to be there, and, at the same time, pounding his fist on his desk over and over again and louder and louder. Eventually, without looking at anyone in particular, Mr. Meiselman shouted "get the fuck out of here." At that point, Ms. Kellerman was concerned for the safety of Mr. Hosto, herself, and the staff in the mailroom. She immediately left to get an officer from security or the Broward Sheriff's Office (BSO). Mr. Hosto also left the mailroom. Shortly thereafter, Ms. Kellerman and Mr. Hosto returned to the mailroom, but, Mr. Meiselman was gone. He had left the mailroom and clocked-out of work. On that same day, May 13, 2005, Mr. Meiselman's neurologist, Fernando Norona, M.D., provided a statement regarding Mr. Meiselman's brain injury. The statement indicated, among other things, that Mr. Meiselman suffered a traumatic brain injury, which caused Mr. Meiselman's current seizure disorder; and that Mr. Meiselman needed to take short frequent breaks during the day in order not to cause severe fatigue, which could trigger mini-seizures. No statement from Dr. Norona or any other physician, regarding Mr. Meiselman's traumatic brain injury, his seizures, and his need for frequent breaks, had been submitted to the Clerk prior to Dr. Norona's statement of May 13, 2005. On May 16, 2005, a third CAS was issued by Kathy Dean, the Director of Court Services, Division I, to Mr. Meiselman for "misconduct" and "behavior." The third CAS addressed the incident on May 13, 2005; the violations of the Clerk's written policies as a result of the incident; and the previous disciplinary actions taken against Mr. Meiselman. The final determination, based on progressive discipline, was the termination of Mr. Meiselman, on that same day, May 16, 2005; however, the third CAS indicated that he would be permitted to resign, if he so chose to do so. Additionally, on May 16, 2005, Mr. Meiselman wrote a statement on the third CAS. His statement indicated, among other things, that he had had two seizures on May 13, 2005; that he had become nervous and scared before Mr. Hosto arrived; that he had calmly told Mr. Hosto that everything was fine and requested Mr. Hosto to leave him alone, but that Mr. Hosto would not and kept pushing; and that he had a scheduled appointment with his doctor to have his medication increased, with the low dosage of his medication probably being the cause his seizures and behavior on that day. Mr. Meiselman was terminated on May 16, 2005. He was terminated in accordance with the Clerk's progressive discipline. At no time was the Physician's ADA Questionnaire returned to the Clerk. Mr. Meiselman's income for the year 2002 was $38,771; for the year 2003 was $39,114; for the year 2004 was $32,929; for the year 2005 was $8,881; for the year 2006 was $800; and for the year 2007 was $13,204, which was benefits paid from pension and annuities.
Conclusions For Petitioner: Glen Meiselman, pro se 8067 Mizner Lane Boca Raton, Florida 33433 For Respondent: Thomas H. Loffredo, Esquire GrayRobinson, P.A. 401 East Las Olas Boulevard, Suite 1850 Fort Lauderdale, Florida 33301
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the discrimination complaint of Glen Meiselman against the Broward County Clerk of Court. DONE AND ENTERED this 3rd day of September, 2010, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 3rd day of September, 2010.
Findings Of Fact The parties stipulated that respondent, Lavern W. Burroughs, began work with the Department of Health and Rehabilitative Services (HRS) on July 1, 1987, and that she was not present for work on July 22, 25, or 26 of 1988. Between March 3, 1988, and July 7, 1988, Ms. Burroughs, a clerk typist, was absent on fourteen occasions. Each time "LW" was entered beside her name on an attendance and leave sheet. "LW" is used when an employee has used up all sick and annual leave, but is nevertheless authorized to take leave. The designation LW means leave without pay, but it does not indicate whether leave was authorized or unauthorized. In December of 1987, Ms. Burroughs had received a "conference letter," HRS' Exhibit No. 1, after discussing her attendance problems with Mr. Weston and his immediate supervisor, Mr. Mathis. On April 15, 1988, Mr. Weston sent her a letter in 4 which he reprimanded her for being absent without leave. HRS' Exhibit No. 2. The letter stated: It is hoped that you will view this disciplinary measure in a constructive manner and there will not be a recurrence of this nature. However, you are cautioned that further offenses of this standard will result in more stringent disciplinary measure of a ten (10) days suspension without pay up to dismissal. Mr. Mathis testified that the ordinary practice, if petitioner's absenteeism had been handled as a career service matter, would have seen a ten (10) day suspension as HRS' next response, in the event of another unauthorized absence; and that dismissal would not have occurred, unless the ten (10) day suspension failed to cure the problem. On Thursday, July 14, 1988, Ms. Burroughs went to work, as it turned out, for the last time. The next morning she called in, shortly after 9:00 o'clock, to report that she had received notice of judicial proceedings designed to foreclose on her house. Unable to reach Mr. Weston, she asked for his supervisor, Mr. Mathis. Unable to reach him, she spoke to Ms. Evan Gibson, Mr. Mathis' secretary, and told her that she would not be coming to work. Ms. Gibson said she would relay the message. Ms. Burroughs left for Georgia in an effort to obtain money from a cousin with which to retain a lawyer to represent her in the foreclosure proceedings. The next Monday, July 18, 1988, Ms. Burroughs' daughter, Sheronda, telephoned HRS' Jacksonville offices. Apparently she spoke to Mr. Weston when she reported that Ms. Burroughs had trouble with her eye. On July 20, 1988, Ms. Burroughs telephoned herself. Again unable to reach Mr. Weston, she ended up telling Ms. Gibson that her eye was running and painful. Also on July 20, 1988, she visited the Riverside Clinic, received a prescription for erythromycin, and filled it that day. A nurse filled out a form employee's medical excuse saying that Ms. Burroughs had been under the care of a doctor at the clinic "and may return to work on 7/21/88." Joint Exhibit No. 1. Mr. Weston has never denied an employee's request for sick leave. Ms. Burroughs had been granted sick leave on more than three occasions and had produced a doctor's statement on each occasion. On Thursday, July 21, 1988, Ms. Burroughs called and spoke to Mr. Weston. In a telephone conversation that lasted perhaps two minutes, she told him about the problem with her eye, and also spoke to him about the threatened foreclosure. She did not say when she would return to work, but it was clear that she was not coming in that day. After Mr. Weston responded, "Okay," his only contribution to the conversation, Ms. Burroughs said goodbye and hung up. She did not explicitly ask for leave, even as she had never done before. Her eye stopped running on July 25, 1988, a Monday. On July 26, 1988, Ms. Burroughs set out for work, having spent, she testified, all her money, except for a quarter she had with her, on gasoline, for transportation to and from work that week. When her car overheated on 1-495 she was obliged to cut her journey short. She used her only quarter to telephone her brother's house, where a sister also lived. She asked this sister to call work to tell them what had happened. Instead, a friend, Wanda Stewart, learned the circumstances from Ms. Burroughs' sister, and made the telephone call to report why petitioner would not be in that day. Anna Williams, who worked in Mr. Weston's unit last summer, took the call. Because he was not in the office, she relayed the message to Mr. Mathis' secretary. When Ms. Burroughs' called herself, on July 27, 1988, she was informed she no longer had a job.
The Issue The issue to be determined is the penalty to be assessed for the admitted violation of chapter 440, Florida Statutes, by conducting business operations in the State of Florida without obtaining workers' compensation coverage for all employees that meets the requirements of chapter 440.
Findings Of Fact The Department is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers' compensation for the benefit of their employees and corporate officers. Respondent is an active Florida corporation whose principal office is located at 2159 St. Johns Bluff Road, Jacksonville, Florida 32246. Respondent was an active construction industry business in the State of Florida during the period of February 15, 2008, through December 22, 2010 (the audit period). On October 22, 2010, Investigator Lucio Cabrera began an investigation on Respondent's compliance with chapter 440, Florida Statutes. On that date, Respondent was the contractor of record for a construction project at 4160 Julington Creek Road, Jacksonville, Florida. During the audit period, which included October 22, 2010, Respondent had an active employee leasing agreement with SouthEast Employee Leasing, Inc. (SouthEast). On October 22, 2010, Noble Construction Group, Inc. (Noble) was a sub-contractor of Respondent. On October 22, 2010, Noble had an active employee leasing agreement with Convergence Employee Leasing, Inc. (Convergence). On October 22, 2010, Salvador Perez was one of Noble's employees. Prior to the commencement of work on October 22, 2010, Respondent did not receive a Certificate of Liability Insurance and a list of the employees leased to Noble from the professional employer organization or employee leasing company used by Noble. On October 22, 2010, Salvador Perez was not listed as an employee on the roster of leased employees between Noble and Convergence. Based upon the omission of Perez on the list from Convergence, Investigator Cabrera determined that Respondent was in violation of chapter 440 and issued a Stop-Work Order and Order of Penalty Assessment to Respondent, which was served on Respondent on October 27, 2010. On that same date, the Department served a Request for Production of Business Records for Penalty Assessment Calculation. The records requested were for the period from October 28, 2007, through October 27, 2010, and included all documentation identifying the legal business name and business form, including the Federal Employer Identification Number (FEIN); all business tax receipts, trade licenses or certifications, and competency cards held by the employer; all documents reflecting the payroll of the employer, including but not limited to time sheets, time cards, attendance and earning records, check stubs and payroll summaries, and federal income tax documents reflecting the amount paid or payable to each employee; account documents such as business check journals and statements for all business accounts; all records of each business disbursement; all contracts for work performed by the employer; workers' compensation policies and certificates of insurance; professional employer organization records; records related to all subcontractors used; and documentation of subcontractors' workers' compensation coverage. Respondent complied with the request for records by providing profit and loss detail reports for 2008, 2009, and 2010, as well as payroll summaries from SouthEast. While the Department reviewed the records provided, it did not interview anyone connected with Respondent regarding the records received. The records were provided to Department employee Cathy Ferguson for use in calculating the penalty owed. Fred Vining was an employee of Respondent during the period of February 15, 2008, through July 27, 2009. Mr. Vining was covered through Respondent's arrangement with SouthEast for workers' compensation coverage from February 15, 2008, through July 27, 2009. During Ms. Ferguson's review of the records provided by Respondent, she discovered that Mr. Vining received several disbursements characterized as "loans" from Respondent. While Mr. Vining was covered by Respondent's employee leasing agreement with SouthEast, the agreement provides that "Client represents and warrants that all wages (including bonuses) paid to any assigned employee are to be paid through SPLI and that any such assigned employees shall receive no additional wages in any form from Client. . . ". The amounts characterized as loans were not paid through SouthEast. Further, Ms. Ferguson was unable to find any records that indicated these amounts had been repaid in full or in part. However, she did not speak to anyone from Respondent to inquire about possible repayment. Moreover, the documents requested focus on disbursements by the company, as opposed to receipts and the types thereof. In calculating the penalty to be imposed, Ms. Ferguson used the worksheet authorized by Florida Administrative Code Rule 69L-6.027. With respect to Mr. Perez, she imputed the gross payroll by multiplying the average weekly wage as determined by the Agency for Workforce Innovation, for the audit period. Respondent does not dispute the imputed payroll or the amount of penalty attributable to the lack of coverage for Mr. Perez. Ms. Ferguson also calculated a penalty based upon the amount of the loans made to Mr. Vining. Respondent does not dispute the method of calculation or the assignment of the class code for Mr. Vining. Respondent's dispute is with considering the loans to be wages paid by the company, as opposed to personal loans made by Mr. Rohn, Sr., to Mr. Vining. W.R. Rohn, Inc., is a family-owned business run primarily by William R. Rohn, Sr. Mr. Rohn has known Fred Vining for over 25 years, and many of those years, Mr. Vining has been an employee. Mr. Rohn freely admits loaning Mr. Vining money, and doing so through the corporate account for Respondent. When asked whether the loans were from the company or from him, he stated, "Well, they were from me because I figure I'm the company. I'm me and it was my money. I do what I want to with it." Mr. Rohn and Mr. Vining testified that the loan was a personal loan, and that Mr. Vining had paid back a part of it when he received his income tax refunds. No records regarding these repayments were provided to the Department because Mr. Rohn did not consider repayment of what he viewed as a personal loan to be a business record. No record of payment was produced at hearing.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services enter a final order finding that W.R. Rohn, Inc., failed to secure the payment of workers' compensation insurance coverage for its employees with respect to Salvador Perez and Fred Vining, in violation of sections 440.38(1), 440.10(1) and 440.107, Florida Statutes, and imposing a penalty of $4,034.05. DONE AND ENTERED this 12th day of September, 2011, 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 12th day of September, 2011. COPIES FURNISHED: Barry A. Bobek, Esquire Barry A. Bobek, P.A. 503 East Monroe Street Jacksonville, Florida 32202 Jamila Georgette Gooden, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Julie Jones, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390
The Issue Whether Logistic Services International, Inc. (Respondent or LSI), discriminated against Gina A. Ruiz (Petitioner) in her employment with LSI on the basis of Petitioner’s race or because of unlawful retaliation in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact LSI’s Pensacola facility builds training devices for the U.S. Army by salvaging damaged aircraft and fashioning simulated parts to be used in military aircraft maintenance training. Petitioner is an African-American female who was employed by LSI’s Pensacola facility for 19 months, from February 17, 2015, to September 9, 2016. During her employment with LSI, Petitioner held three different positions: tools and parts attendant, shipping and receiving clerk, and procurement planner. Initially, from February 17, 2015, until approximately April 2015, Petitioner worked as a tools and parts attendant at the rate of $14.00 per hour. Beginning in approximately April 2015, Petitioner moved from her job as tools and parts attendant to a position in shipping and receiving. At the final hearing, Petitioner testified that her move to the shipping and receiving position was actually a demotion because it had a lower classification number than her previous tools and parts attendant position. Petitioner, however, liked the shipping and receiving position at the time and considered it to be a positive move based on her skills. Petitioner received a raise to $14.75 per hour with the move. In approximately May 2015, Petitioner received a 90-day appraisal report rating of 6.38 out of 10 from her then-LSI supervisor, Bernard Hill. Mr. Hill is African-American. While Petitioner testified that she does not believe that Mr. Hill’s appraisal of her was based on her race, she asserts that a director at LSI, David Corbisier, interfered with that appraisal. Petitioner testified that she was not happy with her 6.38 appraisal rating and thought that she should have received at least an 8 or 9 out of 10 for that appraisal. Petitioner admitted, however, that she does not know the significance of the numbers assigned under LSI’s employee rating system. The 6.38 employee rating received by Petitioner under LSI’s employee rating system translates to a “highly effective” performance rating. Petitioner never complained about Mr. Hill’s appraisal of her until after submitting a resignation from her employment with LSI on August 29, 2016. In October 2015, Petitioner was promoted to the position of procurement planner. With her promotion, Petitioner received an increase in compensation from $14.75 to $16.67 per hour. Petitioner was happy with her promotion. The position of procurement planner was a newly- created position at LSI. Both Petitioner and another employee, Patricia Koons, were assigned to work as procurement planners. Petitioner and Patricia Koons were the only two procurement planners. Initially, both Petitioner and Ms. Koons were supervised by Jason Delsandro. On October 16, 2015, LSI hired Petitioner’s husband, Victor Ruiz, as a government-furnished equipment clerk at the Pensacola facility. After approximately three months, Mr. Ruiz was promoted to the position of inventory control manager, where he understood he would be supervising Sheila Corbisier. Sheila Corbisier is the wife of David Corbisier. David Corbisier is, and was at the time, director of manufacturing for LSI’s Pensacola facility. In that capacity, Mr. Corbisier oversaw the Pensacola facility’s production and supervised Petitioner’s supervisor, Mr. Delsandro, as well as other supervisors at LSI. At some point, Mr. Ruiz became aware that Ms. Corbisier may have been abusing her overtime. He reported his suspicions to his immediate supervisors, Victor Wright and Bernard Hill. Mr. Ruiz did not tell Sheila Corbisier that he thought she was abusing overtime or that he would be reporting his concerns to anyone. Mr. Ruiz never reported his concerns to Mr. Corbisier. LSI production manager Mark Case testified that the issue was not with Ms. Corbisier’s abuse of overtime, but whether she would be given the opportunity to work overtime if authorized. To Mr. Case’s knowledge, Ms. Corbisier did not work any overtime. At some point after Mr. Ruiz reported to his supervisors his concerns about Ms. Corbisier’s overtime, Ms. Corbisier resigned from LSI. Mr. Ruiz does not know why Ms. Corbisier resigned. No evidence was submitted indicating the reason or providing an explanation of why Ms. Corbisier resigned, or whether it had anything to do with her overtime. Petitioner alleges that, because her husband, Mr. Ruiz reported his concerns about Ms. Corbisier to his supervisors, Mr. Corbisier retaliated against Petitioner by interfering with Petitioner’s appraisals and assigning her menial tasks of inventory control that were to be performed in areas without air-conditioning. Petitioner also contends that Mr. Corbisier took these alleged adverse employment actions against her because of her race. At the final hearing, Petitioner’s husband, Mr. Ruiz, could not say how Mr. Corbisier had retaliated against Petitioner. The evidence was otherwise insufficient to reasonably suggest that Mr. Corbisier retaliated against Petitioner or that Mr. Corbisier discriminated against Petitioner in her employment based upon her race. As to Petitioner’s alleged assignment to menial tasks of inventory control, the evidence failed to show that Mr. Corbisier assigned any tasks to Petitioner. In his capacity of supervisor over the two procurement planners, Mr. Delsandro, and no one else, decided which tasks were assigned to Petitioner and Ms. Koons. As procurement planners, both Petitioner and Ms. Koons were responsible for inputting requisitions into the system, gathering backup data for proposals, conducting inventory control, and timely planning and requisitioning parts for training devices. Inventory control requires the monitoring of inventory levels to ensure consistency with forecasted demand and inventory goals for common stock items. The procurement planner job description provides that the work is to be performed in office and production floor environments. As used in the job description, “production floor environment” refers to an area that is not air-conditioned. While procurement requisitions are prepared in air-conditioned office space, approximately 90 percent of the facilities at LSI’s Pensacola location are not air-conditioned. During his supervision, Mr. Delsandro had the intention of dividing work assignments equally between Petitioner and Ms. Koons. Ms. Koons, however, who had more procurement experience than Petitioner, ended up performing more requisitions than Petitioner, and Petitioner was assigned more inventory control. The inventory control function includes the counting of inventory. Petitioner and Ms. Koons were both involved in counting various items for inventory control. Mr. Delsandro also engaged in inventory control tasks. While Petitioner apparently had more assigned tasks in inventory control than Ms. Koons, Mr. Delsandro attempted to assign inventory control tasks to Petitioner and Ms. Koons as equally as he could, based on their availability. At least once, when Petitioner was performing inventory control tasks in an environment without air-conditioning, Mr. Delsandro offered to let Petitioner take the inventory items into his office to work in air-conditioning. Petitioner, however, elected to work on the floor instead. On at least one other occasion, Petitioner asked Mr. Delsandro if she could help her husband in the warehouse, which is not air-conditioned. Prior to Mr. Delsandro’s supervision, Petitioner had worked in the tool room, an area which is not air-conditioned. The evidence does not support a finding that Petitioner’s assignments to work in inventory control were influenced by Mr. Corbisier, or were the result of retaliation or racial discrimination. Regarding Petitioner’s appraisals, there is no evidence that Mr. Corbisier, or anyone else, retaliated or discriminated against Petitioner. As noted above, Petitioner’s first appraisal, a 90-day appraisal report conducted in May 2015, gave Petitioner a “highly effective” rating. Petitioner’s only other appraisal, dated March 2, 2016, resulted in an even higher rating of “outstanding.” Petitioner’s March 2, 2016, appraisal was prepared and approved in accordance with LSI’s procedures designed to promote consistency in the appraisal process. In accordance with that process, draft appraisals are first prepared by employees’ supervisors, and then shared with the supervisors of those supervisors; in this case, David Corbisier. If the supervisor’s supervisor agrees with the evaluation, then it would be approved. Otherwise, there would be some discussion that may lead to changes, for consistency purposes. Any appraisal recommending a merit pay increase of more than three percent required justification prior to approval. Even with this interaction, the individual supervisors are ultimately responsible for the final appraisals. Petitioner and Ms. Koons were the first employees that Mr. Delsandro had supervised, and the appraisals for those two employees were the first appraisals that Mr. Delsandro had prepared for LSI. In accordance with LSI’s procedures, and considering the fact the appraisals of Petitioner and Ms. Koons were Mr. Delsandro’s first appraisals, Mr. Corbisier met with Mr. Delsandro to discuss the appraisals. Mr. Delsandro’s draft appraisal for Petitioner gave Petitioner an overall “outstanding” rating and recommended a 3.5-percent merit pay raise. When Mr. Corbisier met with Mr. Delsandro to discuss Petitioner’s draft appraisal, there were some differences in opinion. Providing a score between 1 and 10 for each category on the draft appraisal, Mr. Delsandro had initially assigned Petitioner a rating of 7 for job knowledge, 7 for teamwork, 9 for accountability, 7 for communications, 7 for incentive, and 8 for quality; for an overall rating of 7.5 across the categories, which is an “outstanding” rating. On the other hand, Mr. Corbisier assigned Petitioner a rating of 6 for job knowledge, 6 for teamwork, 8 for accountability, 7 for communications, 7 for incentive, and 7 for quality; for an overall rating of 6.83 across the categories, which is a “highly effective” rating. The discussions between Mr. Delsandro and Mr. Corbisier resulted in Petitioner receiving an overall “outstanding” rating of 7.17, and Mr. Delsandro and Mr. Corbisier agreed that Petitioner’s merit increase would remain at 3.5 percent as initially recommended by Mr. Delsandro. After Petitioner’s appraisal report was approved by Mr. Corbisier, Mr. Delsandro met with Petitioner to review her evaluation. Petitioner accepted the appraisal report without objection. Based on Petitioner's overall rating of 7.17, as reflected in her March 2016 appraisal, Respondent received a 3.5-percent merit pay increase, from $16.67 per hour to $17.25 per hour.3/ On approximately August 1, 2016, while still serving as procurement planners, both Petitioner and Ms. Koons were transferred from supervisor Mr. Delsandro to a new supervisor, Victor Wright. That same month, Petitioner was reassigned to work in LSI’s newly acquired building. Some of the employees referred to the new building as “the penthouse” because everything was so new. Petitioner’s pay was raised to $17.53 per hour, effective September 1, 2016. At the time, Petitioner did not object to her reassignment and made no complaint while working in the new building. Petitioner considered Mr. Wright to be fair and did not have any issues with Mr. Wright. On August 29, 2016, Petitioner submitted her voluntary resignation with a two-week notice to LSI, indicating that her last day of employment with LSI would be September 9, 2016. Prior to submitting her resignation, Petitioner had never complained about her appraisals, job duties, or work environment, and had not alleged retaliation or discrimination. Petitioner worked during the two-week notice period from the date of her resignation letter on August 29, 2016, until September 9, 2016. Petitioner’s rate of pay never decreased during her employment with LSI. For the first time, on September 7, 2017, two days prior to her last day at LSI, in a telephone conversation with LSI’s director of human resources, David Edwards, Petitioner alleged retaliation and discrimination. During that conversation, Petitioner advised Mr. Edwards that she had been told that Mr. Corbisier had made a racial comment about her husband, Victor Ruiz. She advised Mr. Edwards that she also believed Mr. Corbisier had retaliated against her because her husband had reported an overtime issue concerning Ms. Corbisier. Petitioner did not hear the alleged racial comment and neither did her husband. Rather, Petitioner and her husband were allegedly told by Steve Lewis, who was a production manager at LSI, that Mr. Corbisier had made racial statements. After conducting an investigation to determine whether Mr. Corbisier made racial statements about Mr. Ruiz, Mr. Edwards determined that the allegation was without merit. According to Mr. Edwards, “Mr. Lewis was unable to specifically say that Mr. Corbisier had made any specific racial comments against [Victor Ruiz].” Steve Lewis, the only one who allegedly heard Mr. Corbisier make a racial statement about Mr. Ruiz, testified at the final hearing. Consideration of his testimony, in light of testimony of other witnesses and other evidence, casts doubt upon the credibility of Mr. Lewis’s assertion that Mr. Corbisier made a racial statement about Mr. Ruiz or anyone else. Although Steve Lewis was still employed at LSI at the time that Petitioner resigned, he later resigned from employment with LSI. According to Mr. Lewis, he resigned from LSI due to conflicts with David Corbisier. Mr. Lewis testified that, on just one occasion in Mr. Corbisier’s office, when just he and Mr. Corbisier were present, Mr. Corbisier made comments of a racial nature about Victor Ruiz.4/ During his testimony, however, Mr. Lewis could not recall the exact comment or comments that Mr. Corbisier allegedly made about Mr. Ruiz, but said that Mr. Corbisier had used the “N” word when referring to Mr. Ruiz. Mr. Lewis further testified that Mr. Corbisier had used the “N” word freely in another conversation when he and co-worker, Mark Case, were present. Mr. Lewis testified that, on that occasion, the “N” word was not necessarily directed at anyone. Although Mr. Lewis had received training on reporting discrimination as part of his management training with LSI, he did not report any racial comments by Mr. Corbisier at the time that they were allegedly made. Rather, Mr. Lewis did not discuss the allegations with LSI’s human resources department until after Petitioner had resigned from her employment with LSI. When Mr. Lewis finally spoke to LSI’s human resources department about the matter, he told Mr. David Edwards that he had heard Mr. Corbisier make a racial comment about Mr. Ruiz, but that he could not recall the comment. Mr. Edwards recalled that Mr. Lewis told him that he believed Mr. Corbisier’s racial comment about Mr. Ruiz was a one-time comment in the heat of the moment. Mr. Edwards testified that Mr. Lewis never told him that Mr. Corbisier used the “N” word. Mark Case also testified. Mr. Case did not hear Mr. Corbisier make any racial statements, at the workplace or socially. Melissa Griffith, LSI’s human resources generalist who is the human resources contact for LSI’s Pensacola facility, testified that she has never heard Mr. Corbisier make any racial comments about Mr. Ruiz or anyone else. In his testimony, Mr. Corbisier denied ever making a racial statement about Mr. Ruiz. He further testified that he has not used the “N” word regarding Mr. Ruiz, has not made racial comments in the presence of Mr. Lewis, and did not make a racial statement about Mr. Ruiz in an alleged one-on-one meeting with Mr. Lewis. Mr. Corbisier further testified that he does not have any hostility or resentment toward Mr. Ruiz and that he has no motivation to harm or retaliate against Petitioner based on anything concerning Petitioner or her husband. Mr. Corbisier’s testimony was credible and is credited. The evidence presented at the final hearing was insufficient to support a finding that Mr. Corbisier used racial slurs against Petitioner’s husband or retaliated against Petitioner. Moreover, the evidence failed to show adverse action against Petitioner. Both of Petitioner’s employment appraisals at LSI were positive. Her last appraisal resulted in a merit pay raise higher that her co-worker, Ms. Koons.5/ During her 19 months of employment with LSI, Petitioner received four salary increases. At all material times, LSI had a grievance procedure in its employee handbook that provided employees with a complaint procedure for reporting discrimination, retaliation, or harassment. Petitioner received training on LSI’s grievance procedures during her new employee orientation process with LSI, and signed an acknowledgement regarding her receipt of LSI’s employee handbook. Petitioner had no complaints at the time of her assignments to various jobs. In fact, prior to her resignation, Petitioner never once complained to her supervisors or human resources under LSI’s grievance procedures or otherwise. She liked her immediate supervisors. Mr. Corbisier’s interactions with Petitioner’s supervisors did not result in adverse consequences against Petitioner and lacked retaliatory or discriminatory intent. In sum, the evidence did not demonstrate that Petitioner was subjected to retaliation or unlawful discrimination while employed at LSI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 16th day of October, 2017, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 16th day of October, 2017.
The Issue The issues are whether Petitioner violated Chapter 440, Florida Statutes, and the Insurance Code by not securing workers’ compensation insurance or workers’ compensation exemptions, and if so, what penalty should be assessed.
Findings Of Fact Respondent is the state agency responsible for enforcing the requirement of workers’ compensation law that requires employers to secure payment of compensation for their employees. On June 26, 2006, Petitioner was operating in the construction industry installing drywall. At approximately 10:30 a.m., Respondent’s investigator, Vicki Chamelin, conducted a workers’ compensation compliance check at 5574 Hampton Hill Circle, Tallahassee, Florida. While at the site, Ms. Chamelin recorded the names of the workers who claimed to be or were claimed to be employed by Petitioner. The names of these individuals were Brandon Roberts, Kelvin Williams, Charles Carter, Willie Oliver, and Jerry Pompey. Next, Ms. Chamelin consulted Respondent’s Coverage and Compliance Automated System (CCAS). She then spoke with Christine Conley, branch manager of U.S. Labor, Inc./USA Staffing, the company that Petitioner contracted with to provide workers’ compensation coverage. Ms Chamelin concluded that Petitioner had not secured the payment of workers’ compensation for Brandon Roberts, Kelvin Williams, and Jerry Pompey. After consulting with her supervisor, Ms. Chamelin issued a Stop Work Order and Order of Penalty Assessment (hereinafter “Stop Work Order”). The Stop Work Order commanded Petitioner to cease business operations and assessed a $1000 penalty against Petitioner. In addition to the Stop Work Order, Ms. Chamelin served Petitioner with a Request for Business Records for Penalty Assessment Calculation (hereinafter “Request”). After serving Petitioner with the Stop Work Order and Request, Ms. Chamelin again verified with Christine Conley which employees were and were not covered by U.S. Labor, Inc./USA Staffing’s workers’ compensation insurance. U.S. Labor, Inc./USA Staffing is a staffing company whose employees must apply and be approved by USA Staffing prior to placement with client companies. Pursuant to the contract between USA Staffing and Petitioner, an employee is not covered by workers’ compensation insurance unless the employee applies to and is approved by USA Staffing prior to starting work. If an approved employee of USA Staffing does not work for USA Staffing for between two and four weeks, USA Staffing deactivates the employee from their payroll and notifies the client company. Inactivated employees are not covered by USA Staffing’s workers’ compensation insurance policy. Ms. Conley advised Ms. Chamelin that Kelvin Williams, Brandon Roberts, and Jerry Pompey were not being leased by Petitioner from USA Staffing on June 26, 2006. USA Staffing’s payment records reflected that no payroll was being run by USA Staffing for Brandon Roberts between the dates of April 6, 2006, and June 26, 2006. U.S. Staffing’s payment records reflected that no payroll was being run by USA Staffing for Kelvin Williams between the dates of March 2, 2006, and June 26, 2006. Jerry Pompey was never an employee of USA Staffing. In order to reactivate an employee, a client company must call USA Staffing and reactivate the employee prior to that employee commencing work with the client company. Ms. Chamelin called USA Staffing to investigate the coverage status of Jerry Pompey, Brandon Roberts, and Kelvin Williams before Petitioner called USA Staffing to reactivate the individuals. Petitioner did not provide Respondent with any of the documents identified in the Request. Because Petitioner failed to provide Respondent with the requested business records, Ms. Chamelin properly imputed Petitioner’s penalty. First, Ms. Chamelin imputed Petitioner’s payroll. Next, Ms. Chamelin divided the imputed payroll amount by 100, multiplied the quotient by the approved manual rate to arrive at the premium the Petitioner would have paid, then multiplied the product by 1.5. Petitioner entered into a Payment Agreement Schedule for Periodic Payment of Penalty by paying 10 percent of the total penalty with the balance due in equal monthly installments over 60 months. Petitioner was issued an Order of Conditional Release From Stop-Work Order after entering into the Payment Agreement Schedule for Periodic Payment of Penalty and demonstrating compliance with the coverage requirements of Chapter 440, Florida Statutes (2005). Respondent issued a Second Amended Order of Penalty Assessment to Petitioner. The Second Amended Order of Penalty Assessment adjusted Petitioner’s assessed penalty to $10,270.76.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order, affirming the Stop Work Order and Second Amended Order of Penalty Assessment that assessed a penalty of $10,270.76. DONE AND ENTERED this 8th day of March, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 8th day of March, 2007. COPIES FURNISHED: Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Stanley Roberts Forever Ready Drywall 272 Robert Willis Road Cairo, Georgia 39827 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue The issue is whether Respondent should be assessed a penalty of $150,707.39 as set forth in the Amended Order of Penalty Assessment dated February 13, 2007, for failure to secure the payment of workers’ compensation within the meaning of Subsection 440.107(2), Florida Statutes (2004 to 2006).1
Findings Of Fact The Department is the state agency responsible for enforcing the workers’ compensation coverage requirements pursuant to Section 440.107, Florida Statutes. Burton Construction is a corporation operating in the construction industry in Florida. The primary work of Burton Construction is framing. On November 11, 2004, Burton Construction entered into a contract with Administrative Concepts, a professional employee organization that provides workers’ compensation coverage and administrative duties for client companies. As part of the agreement, Administrative Concepts agreed to lease employees to Burton Construction, to provide workers’ compensation coverage for the leased employees, and to pay the leased employees. In order for a person to become employed by Administrative Concepts, the person must complete an application form and a W-4 withholding form prior to employment. Until Administrative Concepts receives the application and W-4, the person is not considered to be an employee of Administrative Concepts and is not covered for workers’ compensation. In return for Administrative Concepts’ services, Burton Construction agreed to reimburse Administrative Concepts for the payroll and workers’ compensation coverage and to pay a service fee. As part of the agreement with Administrative Concepts, Burton Construction agreed that all wages, including bonuses paid to any employee would be paid through Administrative Concepts. Each week Burton Construction was to provide Administrative Concepts a list of the employees who worked that week along with the number of hours which they worked. If Burton Construction failed to provide the list of employees and hours worked or paid the employees directly, the employees would not be considered to be leased employees and would not be covered by Administrative Concepts for workers’ compensation. As a result of an anonymous tip, John Kulha, an investigator for the Department, went to a construction site at 1675 Lakeport Street, Northport, Florida, where a crew of five workers was framing a house, to determine whether the workers had workers’ compensation coverage. He interviewed Mike Laveque, Todd Burton, Joe Guelfi, Jason Carey, and Jason Guelfi, who were working at the site. Joe Guelfi, Jason Carey, and Jason Guelfi were not employees leased from Administrative Concepts and had no workers’ compensation coverage. Mr. Kulha issued a Stop Work Order to Burton Construction and a Request for Production of Business Records for Penalty Assessment Calculation. Burton Construction produced the requested business records for 2005, 2006, and part of 2007.4 Mr. Kulha reviewed the records produced by Burton Construction and calculated a penalty of $150,707.39 for failure to obtain workers’ compensation coverage. Mr. Kulha based his assessment on the payments recorded in Burton Construction’s check register and on the employees who were working on the site on the day of his visit and were not listed with Administrative Concepts. Burton Construction does not contest that it should be assessed a penalty, but does contest the amount of the penalty. Mr. Kulha testified that that he determined the payroll for each of the employees being paid directly by Burton Construction. These employees did not have workers’ compensation coverage through Administrative Concepts, and Burton Construction had not otherwise secured workers’ compensation coverage for these employees. After determining the payroll for each employee, he used the SCOPES Manual to determine a class code for the type of work being performed. Mr. Kulha determined that the class code that identified the work being performed by Burton Construction employees was Class Code 5645, which is the class code assigned to framing. A dollar amount is assigned to each class code to calculate the premium for workers’ compensation coverage. The premium is based on the risk involved in the work. The manual rates for premium calculation change from year to year. The premium rate for framing in 2005 was $38.40. For 2006, the rate was $35.12, and for 2007 the rate was $27.21. The manual rates are the rates that would have been paid for each $100 of payroll. Mr. Kulha determined the premium that should have been paid for each employee paid directly by Burton Construction for 2005, 2006, and a portion of 2007. Each premium was multiplied by 1.5 to determine the penalty that should be assessed. Mr. Kulha used the correct method to determine the assessed penalty; however, based on Burton Construction’s check registers, which were entered into evidence, not all of Mr. Kulha’s payroll calculations were accurate and the class code for framing should not have been used for all employees as discussed below. Between January 2005 and February 2007, the following persons were paid directly by Burton Construction and did not have workers’ compensation coverage: Amanda Beal, Bill Malone, Brandon Burton, Brian Elswick, Carlos Fuller, Chad, Charlie McNealy, Cody Matson, Darrell Browning, David Carey, George Stevens, James Jacquet, Jason Carey, Jason Guelfi, Jason Moore, Jason Olis, Joe Guelfi, Josh Wright, Kyle Browning, Kyle Moore, Louis Scarsella, Michael Malinoswski, Nate, Robert Ward, Ron Pennington, Steve, Tammy Pennington, and Todd Burton. The amount of the gross payroll for the following persons as calculated by Mr. Kulha was supported by the evidence presented at the final hearing: Bill Malone, Ron Pennington, Tammy Pennington, Robert Ward, Todd Burton, Mike Malinoswki, Jason Moore, Kyle Browning, James Jacquet, David Carey, Cody Matson, Louis Scarsella, Brian Elswick, Carlos Fuller, Josh Rice, George Stevens, Mike, Nate, Jason Olis, Jason Guelfi, and Joe Guelfi. The gross payroll amount calculated for Darrell Browning for 2005 was supported by the evidence presented at the final hearing. The gross payroll amount calculated for Brandon Burton for 2005 was supported by the evidence presented at the final hearing except as noted below relating to the payments made to Amanda Beal. Mr. Kulha calculated the gross payroll for Darrell Browning for 2006 to be $6,262. The evidence presented at the final hearing establishes that the gross payroll for Darrell Browning for 2006 was $6,162. Brandon Burton is the son of Gary Burton, who is one of the owners of Burton Construction. Amanda Beal is the girlfriend of Brandon Burton and the mother of his child. At times, Gary Burton would write checks to Amanda Beal from the account of Burton Construction. These checks were to defray living expenses. However, Gary Burton would describe the checks in the check register as being for “sub work” for Brandon Burton, and Burton Construction would include these amounts in calculating income received by Brandon Burton for income tax purposes. On two occasions, Ms. Beal received checks from Burton Construction for cleaning. The money that Ms. Beal received for Brandon Burton's sub work should be included in the gross payroll for Brandon Burton at the class code for framing. The payments were treated as income for Brandon Burton, and there is no indication based on the records of Burton Construction that the payments were to be treated as gifts. The two checks that Ms. Beal received for cleaning should be calculated at a class code for cleaning and not for framing and included in the gross payroll for Ms. Beal. On March 24, 2006, Burton Construction made a payment of $204 to Kyle Moore for lawn and landscaping. The $204 should be included in the gross payroll for penalty assessment, but the class code used to determine the premium to be paid should be adjusted from framing to a class code for lawn and landscaping. By checks dated September 27, 2006, Burton Construction made payments to Steve and Chad for applying bath tiles. The payments should be included in gross payroll for penalty assessment, but the class code used to determine the premium to be paid should be adjusted from framing to a class code for laying bath tiles. By check dated August 17, 2006, Burton Construction made a payment of $205 to Charlie McNealy for washing and waxing trucks. The check should be included in the gross payroll amount, but the class code should be adjusted to reflect the work of washing and waxing trucks. Mr. Kulha calculated the gross payroll for Brandon Burton for 2006 to be $41,100.41. The check registers reflect total payments of $39,691.41. The penalty should be assessed based on a gross payroll for Brandon Burton in 2006 of $39,691.41.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered adjusting the penalty assessed as set forth in this Recommended Order. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 10th day of August, 2007.
The Issue The issues to be resolved in this proceeding are whether the Petitioner was terminated from his employment with the Respondent because of his race, his alleged disability and in alleged retaliation for filing a previous workers' compensation claim; and an alleged threat to bring a claim under the Americans With Disabilities Act (ADA).
Findings Of Fact The Petitioner, Ernest C. Curry (Curry), was employed at times pertinent hereto by United Parcel Service, Inc. (UPS). He was a driver operating from the UPS Pensacola terminal from 1976 through December 1996. The Respondent, UPS, is a parcel and freight delivery service operating nationwide. It uses drivers to deliver packages to the consumer, whether private individuals or businesses, who normally operate on discretely assigned routes. However, UPS often adjusts drivers; routes in order to accommodate the exigencies of daily delivery schedules, absent drivers, etc. Mark White was an employee of Mike's Gun Shop at times pertinent to this proceeding. Sometime in late July or early August 1996, Mr. White ordered a Dillon Re-loading Press (for re-loading pistol ammunition) to be delivered to him at Mike's Gun Shop, as a "collect on delivery" (COD) shipment. Mr. White had arranged with his employer, the store owner, to have the package delivered to the store and deposited the money to pay for the COD delivery, $258.00 in cash, with the store's bookkeeper, Faith Baumann. The re-loading press was to be delivered by UPS. On August 7, 1996, UPS assigned the Petitioner, Mr. Curry, to deliver the package sent from the manufacturer to Mike's Gun Shop and Mark White. In order to maintain appropriate scheduling and management of the daily fluctuations of package volume between its routes from the Pensacola terminal, UPS found it necessary, as it often does, to adjust the drivers' route assignments to accommodate the variation in volume of daily deliveries between routes. Although Mike's Gun Shop was not on Mr. Curry's normal route, he occasionally made calls to Mike's Gun Shop, while driving his normal route as well. Because of the package volume to be delivered that day, he was assigned to deliver White's package to the gun shop. On the morning of August 7, 1996, he delivered the package. He entered the shop through the front door with Mr. White's package, along with several others. Mr. White saw him arrive, noticed that Curry had his package and notified the bookkeeper, Ms. Baumann. She retrieved the money from her office and met both Curry and Mr. White at the front counter of the store. Ms. Baumann first counted the money and after making sure it was the right amount gave the $258.00 in cash to Curry. Mr. White witnessed Ms. Baumann giving the money to Curry at that time. Ms. Baumann recalls that the package had a COD label on it because she checked the label to make sure that Curry had received the correct amount of money. Mr. White witnessed Curry tearing the COD tag off the package and then Ms. Baumann signing for the package. It is standard practice in the conduct of UPS's package delivery business for its drivers, upon delivering a package, to enter a record of the delivery of that package on a hand-held computer called a "DIAD Board" (DIAD). The driver scans a bar coded label on the package into that computer. If the package has a COD tag, the driver enters the package as a COD package in the DIAD system, with the correct COD amount of money entered. The only way that the driver can determine if a package is a COD package is to locate and identify the COD label on the package. If the driver does not enter a COD amount, the DIAD Board automatically "defaults" that package, entering it as a "pre-paid package" meaning the price of the item and its freight has already been paid and no monies are due to be collected by the driver at the receiver end of the shipping transaction. In any event, this information is stored in the DIAD and at the end of the day is downloaded at the UPS terminal to the central computer system. That system is then able to print out a delivery record entered by the drivers. The delivery record, which has been entered in the central computer system, as recorded by the drivers, shows each package scanned and whether it was entered as a COD or pre-paid package. The delivery record for Mr. Curry, for August 7, 1996, shows that he scanned a package delivered to Mr. White but failed to enter that package as a COD package delivery. Therefore, his delivery record shows that he delivered the package to Mr. White but entered the package as a pre-paid package. Each driver must also sign a daily sheet showing the COD money collected that day. The COD "turn-in sheet" that day shows that Mr. Curry did not turn in any money for the package he delivered to Mr. White. Since it did not receive the COD money it was entitled to for the package sent to Mr. White, "Dillon Press" (the shipper), contacted UPS on October 10, 1996, in an attempt to locate the funds. UPS has a written procedure used by the delivery information centers to handle inquiries from shippers called the Tracer Information Processing System (TIPS). In a situation where the shipper states that he has not received COD money, the delivery information center first investigates to determine if the shipper actually sent the package as a COD. Once this is confirmed, the center will determine if the package has been delivered and who delivered it. The record showed that Dillon sent the package as a COD; that Curry, the Petitioner, delivered the package and that Mr. Curry entered the package as a pre-paid package on his DIAD Board. Once that processing center determines that the package was a COD shipment and that it was delivered it sends out a "driver follow-up." The driver follow-up is sent to the facility which delivered the package to the ultimate receiver or consignee. Once at the center, a center supervisor gives the driver follow-up to the driver who is scheduled to deliver to the consignee that day. In other words, if the driver who originally delivered the package to the consignee is not scheduled to deliver to that consignee on the day the follow-up is received, the driver who delivered the package will not receive the follow-up. In this case, the follow-up was sent to the Pensacola center on October 24, 1996, and given to Mr. Roberts, one of the drivers at the Pensacola center. Mr. Roberts contacted Mike's Gun Shop and was told that the consignee had paid $258.00 in cash. This information was then entered into the computer system by Mr. Roberts' supervisor, Mr. Stokes, at the Pensacola facility. According to standard UPS protocol under this situation, both the shipper and consignee were then contacted to verify the information obtained up until that time. It was confirmed that Dillon had sent the package, that the package had been sent as a COD shipment, and that Mr. Curry had entered the package as a pre-paid shipment in his DIAD Board system. The consignee did, in fact, remember paying cash for the COD package, and since the money had not been inadvertently turned in by someone else or credited to a different account, the processing center supervisor made the decision to refer the matter to the company's loss prevention division for investigation. Tom Odom is the loss prevention security representative who was responsible for loss prevention investigations at the Pensacola center at the time in question. Mr. Odom does not choose his assignments as to which cases he will investigate, but rather must investigate any matter assigned by his supervisor, as was done in the instant situation. Mr. Odom, by his standard procedures, did an internal review using information that UPS had entered in its computer data base in an effort to determine if the money may have been turned in but credited to another account. After this search was unsuccessful, Mr. Odom obtained basic information on the package. He determined from the delivery record that Curry had entered it as a pre-paid shipment. Mr. Odom determined from the shipper manifest that Dillon had sent the package to Mr. White as a COD shipment. Mr. Odom then determined from the COD "turn-in slip" that Curry did not turn in COD money for the package delivered to Mr. White. After reviewing this information Mr. Odom determined that he needed to contact the consignee, Mark White. Mr. Odom contacted Mr. White who told Mr. Odom that he specifically remembered paying for the package. Because Mr. White told Mr. Odom that he specifically remembered giving the money to Curry, Mr. Odom contacted Randy Cumberland, the division package operations manager to let him know of the potential seriousness of the matter. Mr. Cumberland told Mr. Odom to continue his investigation. Mr. Odom then visited Mr. White and Ms. Baumann. Both Mr. White and Ms. Baumann told Mr. Odom the events surrounding the package and that they specifically remembered giving Curry the money. Both gave Mr. Odom written statements verifying that they gave the COD money to Curry. Mr. Odom was then able to obtain the actual box that Curry delivered to Mr. White. By examining the box he determined that the bar code, which is necessary to deliver the package, was adjacent to the COD tag. Mr. Odom also determined that the only address label was the COD tag. Based upon this examination, Mr. Odom concluded that Curry did know that the package was a COD but intentionally decided to enter it as a pre-paid delivery. Based upon Mr. White's and Ms. Baumann's description of the events in question and after examining the box, Mr. Odom determined that the only logical conclusion was that Curry had stolen the COD money. He contacted Mr. Cumberland and told Mr. Cumberland of the details of his investigation and his conclusion. Mr. Cumberland contacted Emory Brawley, the labor relations manager. Mr. Cumberland reviewed with Mr. Brawley the information that Mr. Odom had told him. Mr. Cumberland and Mr. Brawley conferred and determined that Mr. Odom should interview Curry. Mr. Cumberland told Mr. Odom that if Curry could not offer a legitimate excuse he should be terminated in accordance with company policy. A meeting was set up with Curry as well as with Larry Lambert, the union steward at the Pensacola facility, and Larry Price, the center's manager. Mr. Price was included in the meeting because he was the person in the chain of command with authority to tell Curry, if necessary, that he was terminated. Mr. Lambert was present to act as Curry's union representative. At the meeting on December 2, 1996, Mr. Odom showed Curry the records, the actual package that had the COD tag and Curry's delivery record where he entered the package as a pre-paid shipment. Curry examined the box and records and did not dispute that he had delivered the package to Mr. White. Initially Curry claimed that he carried a lot of cash and could not be sure if he was given the money, and stated that if he owed the money he would pay it. Mr. Odom then asked Curry if he had received the money and, if so, what he did with it. Mr. Lambert then stated that the package may have been a "COD delivered-as-paid" meaning a package that the shipper meant to send as a COD, but one as to which either the COD tag fell off or the driver did not see the tag and therefore entered the package as a pre-paid package. Mr. Odom noted that the COD tag was still on the box and that the center portion of the COD tag, which the driver normally tears off when he delivers the package, was torn off of the box delivered to Mr. White. Therefore, the package did not appear to be a COD delivered-as-paid. Curry then stated that the consignee did not give him any money and that he would know if he had been given an extra $258.00. Mr. Odom believed that Curry had not offered any legitimate explanation for the fact that the package was clearly marked as a COD, or to counter the information from Mr. White and Ms. Baumann who stated that they gave the money to Curry. Because Curry could not offer any legitimate explanation, Larry Price discharged him under Article 51, of the Collective Bargaining Agreement (CBA) for committing a dishonest act. According to the CBA, Curry had the right to challenge the discharge. The CBA has a three-level appeal process. The first level is the local hearing which consists of an employee and a union representative and two members of the UPS management. No one person at the local hearing has the power to reinstate the discharged employee without UPS's consent. Curry, pursuant to the CBA, challenged his termination. On approximately December 13, 1996, he appeared at the local hearing. Curry was represented at the local hearing by Larry Lambert and UPS was represented by Emory Brawley and Randy Cumberland. At the local hearing Mr. Curry was allowed to present any evidence that he did not take the money. After the hearing no mutual decision was reached. If no mutual decision is reached at the local hearing, the employee is entitled to appeal the termination to a "full panel hearing." The "full panel" consists of three union representatives who are business agents of the union and three members of UPS management. The full panel must reach a joint resolution or the matter will be sent to an arbitrator for a final decision. None of the panel members are located in the district where the discharged employee is located. Mr. Curry appealed his termination to the full panel. The full panel hearing was initially convened; however, because the parties did not exchange information prior to the hearing, the hearing was postponed. In February 1997, the full panel met again to hear the case. Mr. Curry was then provided an opportunity to offer evidence to prove he did not take the COD money. At the conclusion of the hearing the full panel unanimously determined that UPS had properly terminated Curry for stealing. Prior to Curry's COD incident, on January 12, 1994, he was bitten by a dog and may have injured his back in the course of the incident, while delivering a package. UPS paid his resultant workers' compensation benefits from January 1994 to August 1994. He claims that he was to be paid sixty percent of his wage while on leave, but only forty percent once he reached maximum medical improvement. His doctor determined that he reached maximum medical improvement in June 1994. However, UPS overpaid Curry by $2,442.00, for workers' compensation benefits paid from June through August 1994. Curry claims that he attempted to return to work in August 1994. He maintains that Anthony Robinson, the Pensacola center manager at the time, initially refused to accept him because he had a three percent impairment rating. Curry claims that he thereafter hired an attorney and threatened to bring a claim under the ADA against UPS. No claim was ever filed. A mediation was conducted in May 1996. As part of the mediation, Curry agreed to repay UPS the $2,442.00 it had overpaid him in workers' compensation benefits, in installments, at $30.00 per month. The repayments were to begin in August 1996. Curry then returned to work at UPS to his prior position as a full-time package driver. Mr. Curry also claims that he sued the owner of the dog that bit him and that when he settled that suit in December 1997, he paid UPS the remaining balance of $2,442.00. The evidence shows that UPS and in particular the supervisory personnel involved in terminating Curry, had treated a situation similar to his in a similar manner. Mr. Odom thus testified that UPS has terminated two other employees that he was aware of for stealing COD money. Both of these employees, Joey Smith and Darnell Smith, are white. The record also establishes that Mr. Cumberland has terminated four other employees for dishonest acts besides Curry. All four of those employees are white. The UPS manager in Pensacola initially refused to hire Curry upon reaching maximum medical improvement from his injury from the dog bite and workers' compensation claim with a three percent impairment. Curry maintains that he was not then hired, and has since been discharged, due to his handicap. After the dispute arose over the overpayment of $2,442.00, in workers' compensation benefits, UPS initiated legal action to retrieve the overpayment. Thus, Mr. Curry believes that he was ultimately discharged due to his handicap or due to retaliation for bringing the workers' compensation action and causing the Respondent to initiate legal action against him to retrieve the overpayment related to it. Curry also believes he is being retaliated against because of (purportedly upon the attorney's advice), threatening to file an ADA claim against UPS. Curry, in short, maintains he was retaliated against based upon his position in the above-referenced collateral legal action and the threatened ADA claim. He supports that position by asserting that Emory Brawley, at some point during the dispute over the retrieval of the over-paid workers' compensation funds, stated that "Ernie we are going to get you," impliedly meaning that the company would get rid of him as an employee for costing the company money and difficulty in pursuing the collateral legal action and related mediation. Nonetheless, after the settlement was entered into regarding the workers' compensation dispute and Curry was permitted to repay the funds on an installment basis, Curry was fully reinstated as a UPS driver, performing his former duties.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses as well as the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999. COPIES FURNISHED: Cheryl J. Howard, Esquire 238 East Intendencia Street Pensacola, Florida 32501 Ronald H. Kent, Esquire Bradley, Arant, Rose & White LLP 2001 Park Place, Suite 1400 Birmingham, Alabama 35203-2736 Sharon Moultry, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue Whether the suspension of the Petitioner Nelson was based on just cause.
Findings Of Fact Allen T. Nelson, Petitioner, was employed by the Department of Education, Division of Universities, University of Florida, as a Career Service employee Custodial Worker in the Physical Plant Division. During a three and a quarter month period of time the official attendance record disclosed 20 attendance deficiencies ranging from 15 minutes tardy to unauthorized absences for a full day. The employee had received an oral reprimand on July 8, 1977 for unsatisfactory attendance; a written reprimand on July 29, 1977 for unsatisfactory attendance and on September 29, 1977 was advised that his probationary period as a Groundskeeper II was unsatisfactory because of his attendance record. Because his probation was unsatisfactory, he was returned to his permanent position as a Custodial Worker. Notwithstanding official reprimands as well as counseling from his immediate supervisor, Mr. Earl Davis, and the Personnel representative for the Physical Plant Division, Mr. Danny Busseni, the employee's pattern of poor attendance and tardiness continued. While suggesting that some of his tardiness was caused by transportation problems and some of his absences were caused by family sickness and personal business, the employee was unable to give any clear or convincing reason why his attendance patterns were in any manner excusable. The employee indicated that he felt that the agency had not treated him fairly and this was one of the reasons for his poor attendance. Documentary evidence submitted by the employer confirms the steps of progressive discipline taken against the employee in an effort to improve his attendance record. The Guidelines for Standards of Disciplinary Action promulgated by the University provide that for unsatisfactory attendance the first offense shall result in an oral reprimand, the second offense in a written reprimand and that following a third offense the employee may be suspended for one week or dismissed. 8, All employees were aware of the guidelines which were incorporated in an Employee Handbook, covered in employee orientation sessions as well as being posted in areas where Career Service Employees are employed. Competent substantial evidence exists to sustain the action of the agency and "just cause" for the suspension of the employee is evident.
Recommendation Sustain the decision of the Respondent University of Florida. DONE and ENTERED this 31st day of May, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Allen T. Nelson 227 N.W. 7th Avenue Gainesville, Florida 32611 Ashmun Brown, Esquire 207 Tigert Hall University of Florida Gainesville, Florida 32611 Mrs. Dorothy Roberts Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
