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.
Findings Of Fact Petitioner was, at all times pertinent to these proceedings, an employee of Respondent in its Miami District Office. Petitioner began her employment with Respondent on September 18, 1974, in the position of Secretary During her employment, she was promoted to Secretary II and then to Secretary III. The position of Secretary III was subsequently reclassified to the position of Secretary Specialist. Petitioner's immediate supervisor since 1982 was Dr. Arnold Cortazzo, Respondent's District Program Administrator. At the time of the alleged event of discrimination, Petitioner was employed as a Secretary Specialist and was under the immediate supervision of Dr. Cortazzo. On January 30, 1987, Respondent published a Job Opportunity Announcement for the position of Staff Assistant in the Miami District Office. Dr. Cortazzo prepared the Position Description which included the following descriptions of duties and responsibilities, and the respective percentages of time for each: 15% - Conducts client satisfaction surveys and reports on results to Program Manager. 15% - Conducts follow-up studies on Vocational Rehabilitation clients, compiles and analyzes results, and submits findings to Program Manager. 10% - Performs special assignments for Program Manager such as monitoring the action plans, surveys, and requests for information. 15% - Coordinates the work flow of the District XI Division of Vocational Rehabilitation Office. 05% - Orders forms and supplies of the District Program Office. 10% - Checks for accuracy monthly attendance and leave reports for District Program Office. Also keeps record of accumulative leave earned and used. Distributes monthly leave report to district offices. 25% - Acts as liaison to Support Staff Council, assists the training coordinator in training support and clerical staff. 05% - Other related duties as required. The Position Description for the Staff Assistant position set forth the following as being the knowledge, skills, and abilities necessary to perform the job: Knowledge of office procedures and practices. Knowledge of the principles and techniques of effective verbal and written communication. Knowledge of the methods of data collection. Knowledge of basic arithmetic. Ability to understand and apply applicable rules, regulations, policies, and procedures. Ability to deal with the public in a tactful and courteous manner. Ability to perform basic arithmetical calculations. Ability to work independently. Ability to utilize problem solving techniques. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. The Position Description for the Secretary Specialist position held by Petitioner in 1987 contained the following duties and responsibilities and the percentage of time for each: 35% - Transcribes dictation from dictating equipment or rough drafts from Program Manager. Types documents for Program Manager. 12% - Receives and reads incoming mail for Program Manager, screens items which can be handled personally, and forwards the rest to Program Manager. Screens Program Manager's incoming calls. 05% - Maintains calendar tickler file for Program Manager on important correspondence and documents, follows up on work in process to insure timely reply or action. 03% - Acts as office receptionist in the absence of other secretarial/clerical staff. 35% - Assembles and summarizes information upon request of Program Manager from files and documents in the office or other available sources. 05% - Composes and signs routine correspondence of a nontechnical nature from verbal instructions of Program Manager. 02% - Keeps Program Manager's calendar by scheduling appointments and conferences with or without prior clearance. 03% - Files Program Manager's correspondence and other materials and maintains the Program Manager's file. The following were listed as the knowledge, skills, and abilities required for the Secretary Specialist position: Knowledge of the techniques for handling telephone calls in a courteous and efficient manner. Skill in typing. Ability to transcribe dictation using notes or a dictating machine. Ability to organize files and other records. Ability to perform basic arithmetical calculations. Ability to use correct spelling, punctuation, and grammar. Ability to type letters, memoranda and other standar business forms in correct format. Ability to operate general office equipment. Ability to handle telephone calls in a courteous and effective manner. Ability to plan, organize, and coordinate work assignments. Ability to communicate effectively verbally and in writing. Ability to establish and maintain effective working relationships with others. At the times pertinent to this proceeding, Dr. Cortazzo was the Program Manager referred to by the job descriptions for both the Staff Assistant position and the Secretary Specialist position. The deadline for the filing of applications to fill the Staff Assistant position was set for February 12, 1987. Prior to the deadline, six applications for the position were received for the position. One applicant withdrew her application prior to the interview stage. Included among the applications received in a timely manner were the application of Petitioner and the application of Eulalia Diaz. The applicants were asked to resubmit their applications because the original applications were misplaced. Consequently, the applications in Respondent's files are replacement applications that were received after the advertized deadline. Dr. Cortazzo prepared a list of criteria to be used in the ranking of the applicants and a list of interview questions. Dr. Cortazzo thereafter interviewed the remaining five applicants and asked each of them the same interview questions. Dr. Cortazzo then selected three finalists for the position. Both Petitioner and Ms. Diaz were among the three finalists. Prior to his interviews, Dr. Cortazzo had asked that the four Human Services Program Administrators employed by Respondent in the District interview the top three candidates and to recommend to him their top candidate for the position. Dr. Cortazzo made no effort to influence the interview process followed by these administrators. These administrators were unanimous in their recommendation of Eulalia Diaz as the top candidate for the position. After receiving the recommendation from the four Human Services Program Administrators, Dr. Cortazzo ranked the three finalists using the criteria he had previously developed. Ms. Diaz received the highest ranking of the three finalists. Dr. Cortazzo thereafter made the decision to employ Ms. Diaz as the Staff Assistant. Petitioner's alleged handicap had no bearing on Dr. Cortazzo's decision to hire Ms. Diaz as the Staff Assistant. Petitioner has a congenital deformity of the right leg which resulted from her umbilical cord being wrapped around her right leg at birth. As a consequence, her right leg did not fully develop. She has circulation problems in her right leg and her right leg is both shorter and weaker than her left. Petitioner cannot sit, stand or walk for long periods of time. She wears an orthopedic shoe and walks with a slight limp and an unsteady gait. During the course of her employment with Respondent, she has had to utilize crutches on two occasions for brief periods of time after her right leg had become infected from a cut. Her condition has had, at most, a minimal impact on her ability to perform her job. During the period of time of July 1977 to October 1986, Petitioner received thirteen job evaluations. For each of these evaluations, Petitioner received an overall evaluation of either outstanding or exceeds performance standards. The last six of these evaluations were by Dr. Cortazzo. There was a conflict in the testimony as to the duties Petitioner was actually performing. Petitioner contends that the job description for the Secretary Specialist position does not adequately describe the duties she was actually fulfilling. Petitioner contends that she was essentially performing the duties and responsibilities of the Staff Assistant before the position was created. Respondent contends that the duties Petitioner was performing were primarily secretarial and that the job descriptions and the skills required to fill these positions are separate and distinct. This dispute is resolved by finding that the Secretary Specialist job description adequately describes the job Petitioner was performing and that she was not essentially performing the duties and responsibilities that were expected of the Staff Assistant.
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 charge of discrimination against Respondent. DONE AND ENTERED this 1st day of October, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-6823 The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. The proposed findings of fact in paragraphs 1 and 2 are rejected as being conclusions of law. The proposed findings of fact in paragraph 3 are adopted in part by the Recommended Order and are rejected in part as being conclusions of law. The proposed findings of fact in paragraph 4, 5, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 7 are rejected as being contrary to the greater weight of the evidence. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1-2, 4, 7, 9-11, and 13-19 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 3-6, 8, 12, and 20-21 are rejected as being unnecessary to the conclusions reached. (There are two paragraphs numbered 3, both of which are rejected as being unnecessary to the conclusions reached.) Copies furnished: Edward A. Dion, Esquire Assistant General Counsel Department of Labor and Employment Security 2562 Executive Center Circle West, Suite 131 Tallahassee, Florida 32399-0657 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road, Building F Suite 240 Tallahassee, Florida 32399-1570 Hugo Menendez, Secretary Department of Labor and Employment Security Berkeley Building Suite 200 2590 Executive Center Circle, East Tallahassee, Florida 32399-2152 Stephen Barron, Esquire General Counsel 307 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0658 Gladys Laroche 455 N.E. 159th Street North Miami Beach, Florida 33162 Arnold Cortazzo Department of Labor and Employment Security 401 N.W. Second Avenue, Room S221 Miami, Florida 33128 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road --Suite #240 Building F Tallahassee, Florida 32399-1570
Findings Of Fact The Public Works Department of the City of Margate has fifty-six established permanent positions and three part-time laborer positions. Six positions are unfilled at the present time. The department consist of the following employees: A director, a superintendent, a secretary, two clerk typists, an inventory clerk, a custodian, a foreman for grounds, a foreman for aquatic weed control, a foreman for buildings, a foreman for roads, a chief mechanic, ten equipment operators, two groundskeepers, three chemical applicators, four mechanics, two carpenters, one electrician, a painter, a mason, and twenty laborers (Exhibit 5). Each foreman has responsibility for a certain type of work and has from 8 to 12 employees working in his division. The chief mechanic has eight employees under him who operate on a shift basis in order that vehicle maintenance may be provided around the clock. The foreman and chief mechanic report through the superintendent to the director in a direct line of authority. The inventory clerk reports through the superintendent to the director (Exhibit 5). The Director exercises general supervision over all employees and the direction and administration of the department. Departmental responsibilities include the repair and maintenance of streets and sidewalks, city vehicles, city parks and pest control. Under the direction of the Mayor, the director is responsible for planning and administering the budget for the department, preparation of daily work schedules, preparation and submission of reports, procurement of supplies and materials, engineering and layout work and supervision of the repair and maintenance of property and equipment of the department. He is responsible for the formulation of policy of the department and has the primary role in personnel administration and employee relations for the department. Based upon interviews conducted by the superintendent, the director provides recommendations to the mayor as to the hiring and firing of personnel. He is empowered to take disciplinary action against employees. He holds weekly "foremens" meetings attended by himself, the superintendent, the inventory clerk, the four foremen, and the chief mechanic. At these meetings, various ideas are discussed and input is received from individuals attending the meeting as to their area of interest. It is primarily a meeting to discuss previous problems and solutions thereto and does not usually result in decisions involving policy affecting the entire department (Exhibit 6). The superintendent is the second in command in the department and serves as the acting director in the absence of the director. He exercises general supervision over all other personnel of the department and directs the daily activities of the department. He serves as the administrative assistant to the director and in this capacity is, in charge of personnel administration. He makes effective recommendations to the director concerning personnel and disciplinary matters, provides meaningful input into budget and policy formulation and reasonably can be expected to actively assist the director in the preparation for and conduct of collectively bargaining negotiations or to have a major role in the administration of any agreement resulting therefrom (Exhibit 7). The secretary is the personal secretary to the director who performs normal secretarial duties and also has access, to all confidential personnel files of the department. She takes and transcribes dictation of meetings at which confidential matters are discussed and would perform in a like manner to assist the director in confidential matters involving collective bargaining (Exhibit 8) One of the clerk-typists, similarly to the secretary, also has complete access to all budget policy and confidential personnel files in the same manner and virtually to the same extent as the secretary. The other clerk-typist position is under the Foreman for aquatic weed control and does not involve access to confidential information. The equipment operators, groundskeepers, chemical applicators, masons, carpenters, painters, electricians, and mechanics perform functions as are indicated by their titles. Groundskeepers normally are in charge of two or three men crews to cut and trim grassy areas and perform other duties in beautification of the city. They work alongside the laborers and are interchangeable with them. They exercise no real supervisory functions. In like manner, the equipment operators who drive the tractors, trucks and other mechanical equipment of the department are interchangeable with groundskeepers and perform basically the same functions. Chemical applicators mix and apply chemicals to canals and other bodies of water to destroy noxious weeds. They do not possess any special degree of expertise and merely carry out directions of their supervising foreman. Skilled personnel, such as masons, carpenters, painters, electricians, and mechanics perform maintenance work as required and do not exercise supervisory functions. The custodian is responsible for cleaning and maintenance duties at the city hall. Laborers perform unskilled labor on the grounds, roads, and buildings under the supervision of the foremen. The four foremen are each in charge of a division in the department. These divisions are grounds, roads, buildings and aquatic weed control. The first three are described as "area" foreman and basically perform interchangeable functions that generally include the maintenance and repair of all city-owned areas and properties including grass cutting, tree trimming, patching pot holes, painting, and major and minor repairs. They are immediately responsible to the superintendent and exercise general supervision over the employees assigned to their divisions. They attend weekly "foremens" meetings with the director as described heretofore and provide input at these meetings concerning their area of work. They directly assign jobs to the men under them and follow-up to insure that they have performed the task satisfactorily. They maintain hourly worksheets on the men and exercise first-line grievance functions. They resolve minor complaints independently, but can only make recommendations to the superintendent concerning major complaints and as to disciplinary sanctions. They have no effective role as to hiring or firing of personnel. They divide their employees into crews to cover the city in their particular area of responsibility. Although a crew in the grounds department, for example, would normally include the groundskeeper and a laborer or two laborers, the foreman determines the size of the crews and can use them in any manner he sees fit to accomplish the overall mission of the division. He prepares an evaluation on the performance of each employee every six months. Although the foremen work alongside of their men and were considered "working foremen" in the past, about six months ago it was determined that they should devote more time to supervisory responsibilities and do less actual physical labor. At this time, they still on occasion decide on their own to help out the workers under them. The foremen of the aquatic weed control division exercises somewhat more specialized functions than the other foremen in that he is required to be familiar with the mixing and dispensing of herbicides, pesticides, and algaecides for eradication of pests and aquatic plants in canals and waterways. Other than this specialized knowledge, he basically exercises the same responsibilities as the other foremen (Exhibits 8, 9, and 10). The chief mechanic is a "working" supervisor who oversees the servicing, overhauling, repairing, and preventive maintenance of the equipment, heavy vehicles and passenger cars of the city. He checks major equipment in the field to ascertain if repairs should be made there or in the shop, makes decisions as to what repairs should be done and where, decides what parts to replace, what parts to purchase, and those that should be built in the shop. He supervises the maintenance of various records pertaining to the vehicles and their use, replacement of tires and parts, and renders reports. He approves requisitions for parts and materials not carried in stock and ensures that work is covered by shop work orders. He plans the daily work program of his division, can adjust and readjust schedules to meet fluctuations and maintenance needs of equipment and availability of required personnel, and authorizes overtime. He administers his share of the department budget and sees that it is not exceeded. He has blanket authority to buy required vehicle parts and tools. He assigns work to three shifts in his division to maintain 24 hour repair capability. He is also responsible for the security of the Public Works building where offices are located and vehicles and equipment are kept. His supervisory functions are similar to those of the foremen with respect to assignment of work, responsibilities for accomplishment of his mission, input at weekly meetings concerning his area of responsibility and the like (Exhibit 12). The inventory clerk is responsible for dispensing all usable supplies on a day-to-day basis and maintains an inventory of all departmental supplies. He is responsible for the security of all items including vehicles and equipment. He receives, inspects and approves or disapproves all municipal deliveries. He advises the superintendent and director as to what materials have been used, how best the expenditure of supplies can be reduced, and maintains control records on time, materials, and labor for various jobs performed by the department. He makes an independent determination as to whether materials are available to other departments or if the request is unreasonable and then makes recommendations to the superintendent as to whether such request should be honored. He contributes suggestions for the conservation of supplies which normally are acted upon by higher authority. He exercises no supervisory functions and has no employees under him (Exhibit 11).
Findings Of Fact Robert Morse was a permanent Career Service employee, employed by the Department of Transportation as Records Manager. His performance evaluations indicated that he had received satisfactory or above satisfactory ratings from the time of his employment until December 1975, during which period he had not received any oral or written reprimands. As Records Manager, Morse's duties and responsibilities were as follows: To supervise the central files function for the Department of Transportation which maintains the depository of current Department of Transportation files which are not kept in the using office. To supervise the storage of engineering records of all types. To supervise the storage and disposal of bulk keypunch cards. To supervise the central file library. To supervise the microfilming of engineering plans and drawings. To serve as Records Liaison Officer between the Department of Transportation and the Secretary of State's Office and coordinate the inventorying, scheduling and planned retention/destruction of DOT records. In early 1974 Don Page was appointed the Director of Administrative Services for the Department of Transportation (DOT). Upon assuming this position he determined that DOT had not converted the Records Management System developed by the Secretary of state's Office. Page concluded that DOT should convert to the Records Management System developed by the Secretary of State's Office, and established this as one of several objectives of the Records Management function of DOT. As one of several objectives established for the Records Management function, conversion to the Secretary of state's Records Management System did not have particular management emphasis. However, after DOT had to move personnel from private office space into the Burns Building and experienced a critical space problem in 1975, management emphasis was placed on retiring and destroying outdated records. The retirement of theses records was seen as a major means of obtaining additional office space. The other organization objectives of Records Management were eventually accomplished, although several ran over into fiscal year. 1975. However, until 1975 little, if any, work took place on conversion to the Secretary of State's Records Management System. In order to retire and destroy records, it is necessary to prepare retention and destruction schedules for every records. These schedules must include a description of th record, its use and its useful life. The process for development of these schedules within DOT called for the office holding the record to prepare the initial schedule and transmit them to the Records Manager, Morse. Morse assumed responsibility of compiling, indexing and publishing these schedules in his capacity as Records Management Liaison Officer (RMLO) between DOT and the Secretary of State Office. In addition to his duties as RMLO, Morse remained responsible for supervising the various functions enumerated above. The evidence clearly indicates that as of the date of Morse's demotion, the retention and destruction schedules for DOT had not been completed and submitted to the Secretary of State's Office. The employee's failure to complete this objective is reflected in his Employer Evaluation dated September 24, 1974 by the comments included under quality of work and acceptance of responsibility. See referenced Employer Evaluation, Exhibit 5. The fact that the retention and destruction schedules had not been completed and that work continued on them is reflected in the employee's Employer Evaluation dated September 3, 1975 as indicated by the comments under quality of work, knowledge of job, and acceptance of responsibility. See referenced Employer Evaluation, Exhibit 5. Morse's continued failure to accomplish the objective of completing the retention and destruction schedule is reflected in his first conditional rating dated January 20, 1976. The comments in this conditional rating under quality of work, quantity of work, knowledge of job, acceptance of responsibility and attitude show that this conditional rating is primarily based upon Morse's failure to complete the retention and destruction schedules. See referenced Employer Evaluation, Exhibit 5. In his next mandatory evaluation dated March 16, 1976, the comments under quality of work, quantity of work, knowledge of job, acceptance of responsibility, and attitude also indicate that his conditional ratings is based upon his failure to complete important assignments. His supervisor's comments indicated that the assignments not completed were the preparation of a detail plan to expand the Records Management Program into the DOT district offices, and to identify in detail those tasks which should be accomplished before the Records Management survey was considered satisfactorily completed. See referenced Employer Evaluation, Exhibit 5. The conditional Employer Evaluation dated May 21, 1976 indicates some improvement on the part of the employed in completing his assignments in a timely fashion; however, the supervisor's comments indicate that Morse ha not yet completed developing the retention and destruction schedules for DOT records, an objective originally established in 1974. See referenced Employer Evaluation, Exhibit 5. The comments under quality of work, quantity of work, knowledge of job, and acceptance of responsibility on the Employer Evaluation dated July 20, 1976 indicate that Morse, while making some improvement, had failed to meet the objectives of completing the records retention and destruction schedules and publishing a records retention manual. Based upon this and the other referenced conditional ratings, Morse was demoted effective July 22, 1976. The evidence presented at the hearing indicates clearly that the objective of converting to the Secretary of State's Record Management System was established in 1974. The record further indicates that no work was accomplished in this regard until spring of 1975. Morse personally undertook to prepare the retention and destruction schedules, and the record indicates that 81 schedules were submitted by Morse to the Secretary of State's Office in 1975. His monthly report on the activities of his office indicate that only 683 cartons of records were retired in the year 1975, of which 527 were retired in December 1975. These monthly reports indicated that no records were retired during the critical summer months of 1975. Neither the records retention manual was prepared, nor was the report on which tasks were to be accomplished prior to completion of the records management survey. Morse introduced evidence that during the summer months of 1975 his normal complement of 10 employees was reduced to 8 employees through the loss of his central file room supervisor and senior file clerk. In addition, Morse was responsible for planning and supervising the relocation and movement of the central files repository within DOT which necessitated the transfer of some 2,100 cartons of documents to temporary storage in the Secretary of State's record repository. However, considering that Morse was solely responsible for the consolidation, indexing and publishing of the schedules prior to their submission to the Secretary of state's Office, there is no indication that these additional duties made accomplishment of the objective of preparing the schedules impossible, or that Morse advised his superiors of the necessity of additional personnel in order to assist him in accomplishing the various tasks assigned his unit. Although evidence was presented by both sides regarding the performance of the acting Records Manager subsequent to Morse's demotion, this evidence is irrelevant and immaterial to consideration of whether Morse's performance was satisfactory.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Career Service Commission sustain the action of the agency in demoting Robert Morse. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of August 1977. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August 1977. COPIES FURNISHED: Reynolds Sampson, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32304 Melvin R. Horne, Esquire 800 Barnett Bank Building Tallahassee, Florida 32304 Ms. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issue is whether the Amended Order of Penalty Assessment issued to Respondent, Dave's Tractor, LLC, on August 27, 2018, is correct.
Findings Of Fact Respondent is a limited liability company engaged in the construction business with offices at 434 Skinner Boulevard, Suite 105, Dunedin, Florida. It uses tractors and a grading process to prepare land prior to building construction for commercial clients. Its managing member is David Richardson. The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. To enforce this requirement, the Department conducts random inspections of job sites and investigates complaints concerning potential violations of workers' compensation rules. On May 25, 2018, Christina Brigantty, a Department investigator, conducted a routine inspection of a job site at 3691 Tampa Road, Oldsmar, Florida. She observed two men working in a ditch, one man mixing cement, the other man driving a tractor. Investigator Brigantty observed four individuals at the job site, including the two working in the ditch: Dylan Richardson; Ismael Demillon; Javier Mastica; and Jorge Duran. She was informed by the individuals that they worked for Richardson Trailers, LLC. Investigator Brigantty called Mr. Ramsey, corporate officer for Respondent, who confirmed that Respondent hired Richardson Trailers, LLC, as a subcontractor. She later confirmed through discussions with Dylan Richardson and the Coverage and Compliance Automated System that Richardson Trailers, LLC, had no workers' compensation insurance on its employees. The parties have stipulated that at the time of the inspection, Respondent had not secured workers' compensation for any of the four individuals observed on the job site. Investigator Brigantty received approval from her supervisor to issue Respondent a Stop-Work Order and Request for Business Records for Penalty Calculation (BRR). These papers were served on Respondent on June 30, 2018. The BRR requested numerous types of business records for the period May 26, 2016, through May 25, 2018, including business tax receipts (occupational licenses), trade licenses or certifications, and competency cards held by Respondent or any of its principals; payroll documents (time sheets, time cards, attendance records, earnings records, check stubs, and payroll summaries for both individual employees and aggregate payrolls, and federal income tax documents reflecting the amount of remuneration paid or payable to each employee, including cash); and account documents including all business check journals and statements, which would include cleared checks for all open and/or closed business accounts established by the employer. Respondent failed to provide any business records in response to the BRR to determine Respondent's payroll for the audit review period. Therefore, the Department proceeded to compute a penalty based on imputed payroll in accordance with section 440.107(7)(e), Florida Statutes. This formula produced a penalty assessment of $165,654.10. On August 27, 2018, the Department served Respondent with an Amended Order of Penalty Assessment totaling $165,654.10. Pursuant to Florida Administrative Code Rule 69L-6.028(4), the Department also gave Respondent 20 business days in which to provide business records that would confirm Respondent's actual payroll during the two-year review period. This meant the records were due by September 25, 2018. A final hearing was scheduled initially for January 24, 2019. By agreement of the parties, on January 4, 2019, the case was rescheduled to March 15, 2019. One ground for granting a continuance was that the parties were "waiting on outstanding discovery that is being located and is necessary for an amicable resolution," presumably referring to items listed in the BRR. The final hearing was conducted on March 15, 2019, or almost seven months after the Amended Order of Penalty Assessment was issued. A week before the final hearing, Respondent began providing business records to the Department, including bank statements and checks on March 8, 2019, and a general ledger on March 13, 2019. Given the time constraints, they were not reviewed by the auditor until the day before the final hearing. The auditor conceded at hearing that these records would result in a "significantly lower" penalty, and they were sufficient to recalculate the penalty. Even so, at this late date, the Department refuses to recalculate the assessment. Respondent's principal, Mr. Richardson, testified that he has "no way to pay" the penalty, it will force him out of business, and he will be required to terminate his employees. Mr. Richardson also testified that he requested the records from the bank on "numerous occasions," but the bank refused to provide them directly to the Department or referred him to other branch offices. However, bank records are not the only way an employer can demonstrate the amount of payroll. This also can be established by business taxes or other records described in the BRR. Mr. Richardson denied knowing that business taxes are an option if bank records are unavailable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, enter a final order finding that Respondent violated the workers' compensation laws by failing to secure and maintain required workers' compensation insurance for its employees, and imposing a penalty of $165,654.10. DONE AND ENTERED this 3rd day of May, 2019, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 2019. COPIES FURNISHED: Steven R. Hart, Qualified Representative Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Kyle Christopher, Esquire Department of Financial Services Hartman Building 2012 Capital Circle Southeast Tallahassee, Florida 32399 (eServed) Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed) Adrian Shawn Middleton, Esquire Middleton & Middleton, P.A. 1469 Market Street Tallahassee, Florida 32312-1726 (eServed)
The Issue Whether Petitioner committed the offenses alleged in the Administrative Complaint and, if so, what discipline should be imposed against Respondent's Pari-Mutuel Wagering Occupational License?
Findings Of Fact Respondent submitted an application to Petitioner, the Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering (Division) on or about October 6, 2004, for a pari-mutuel wagering occupational license. The Division issued license number 7244830-1021, at Ocala Jai-Alai to Respondent. The nature of the license is an "owner's license" regarding owning racehorses. The Division is the state agency charged with regulation of pari-mutuel wagering pursuant to Chapter 550, Florida Statutes, and is responsible for licensing employees of pari-mutuel facilities. The following question appeared on Respondent's application for licensure: Have you ever been convicted of a crime, found guilty, or entered a plea of guilty or nolo contendere (no contest) to, even if you received a withhold of adjudication? This question applies to any violation of the laws of any municipality, county, state or nation, including felony, misdemeanor and traffic offenses (but not parking, speeding, inspection, or traffic signal violations), without regard to whether you were placed on probation, had adjudication withheld, were paroled, or pardoned. If you intend to answer "NO" because you believe those records have been expunged or sealed by court order pursuant to Section 943.058, Florida Statutes, or applicable law of another state, you are responsible for verifying the expungement or sealing prior to answering "NO." YOUR ANSWER TO THIS QUESTION WILL BE CHECKED AGAINST LOCAL, STATE AND FEDERAL RECORDS. FAILURE TO ANSWER THIS QUESTION ACCURATELY MAY RESULT IN THE DENIAL OR REVOCATION OF YOUR LICENSE. IF YOU DO NOT FULLY UNDERSTAND THIS QUESTION, CONSULT WITH AN ATTORNEY OR CONTACT THE DEPARTMENT. If an applicant answers "yes" to the above question, he or she is then required to complete form 0050-1. Respondent answered "yes" to the question and submitted form 0050-1 which contained the following explanation: Offense: Tax Evasion County: New York State: New York Penalty/ Disposition: Restitution misdemeanor-probation Date of offense: 1985 Have all sanctions been satisfied: yes Description: Sold property failed to pay tax liens-ultimately bank was money damaged so I had to pay restitution + serve 2y probation.[1/] In April 1995, the United State District Court for the Western District of New York issued a Judgment against Respondent finding him guilty of the crime of Bank Larceny and Theft. The Judgment lists the date the offense concluded as "03/03/89." Respondent was ordered to pay a special assessment of $25, restitution in the amount of $59,000 in installments to Empire of America, and was placed on one year probation. Steven Toner is an investigator for the Division. He was assigned Respondent's case and conducted an interview of Respondent. During cross-examination, Mr. Toner described part of the interview: Q: Did Mr. Paradelo in the course of your interview in my office indicate to you that the entire thing on his application for 1985 tax evasion, which he stated to you for the 1995 conviction, was all a single case? A: It was told to me that it was a run-on. Now, I'm not trying to be evasive, but it was a run-on between the criminal and the civil matters that were in the Landlord/Tenant things that were going, that were happening during that period of time. Respondent described the general chain of events leading up to the 1995 Judgment: in 1985, the Internal Revenue Service (IRS) filed a tax lien against Respondent; in 1988 Respondent applied to Empire of America Bank to refinance apartments which he owned; at the closing for the refinancing, the tax lien was revealed to the bank and to Respondent; the closing went forward; Respondent filed for bankruptcy in 1991; the bank failed and was taken over by a trust company; in 1991, the IRS commenced foreclosure proceedings based upon the 1985 tax lien; the matter was ultimately resolved in the criminal case which resulted in the Judgment wherein Respondent was required to pay $59,000 in restitution. Respondent considers the Judgment as a continuation of, and not distinct from, the tax lien matter that initially arose in the 1980's. The undersigned finds Respondent's testimony in this regard to be credible. The details of the events leading up to the 1995 judgment are important to the extent that they lend support to Respondent's position that he did not falsify the license application. Respondent answered "yes" to the question that he had a criminal conviction. He disclosed that he sold property, had to pay tax liens, had to pay restitution, and was placed on probation. While Respondent's description of his criminal conviction was imprecise, it was not false.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the Administrative Complaint filed against Respondent. DONE AND ENTERED this 10th day of July, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 July, 2006.
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.
