Findings Of Fact The Alarm Association of Florida, Inc. ("Association") is a trade association that was incorporated on July 12, 1976, as a Florida not-for-profit corporation. The Association was organized to provide an opportunity for its members to exchange ideas and share information concerning trade practices, business conditions, technical developments, and related subjects concerning the electrical protection industry. The Association has two primary types of membership. Regular Membership is open to any individual, partnership, firm, or corporation engaged in the business of installing or providing alarm service in the electrical protection field for one year preceding the application. Associate Membership is open to any individual, partnership, firm, or corporation that is not engaged directly in the electrical protection business, but may supply goods or services to Regular Members. Officers and directors of the Association are selected by the voting members, which are limited to Regular Members. About 25 percent of the Association membership consists of nonvoting members. Sometime prior to November 1, 1985, a representative or representatives of the Association requested Dealers Association Plan ("DAP") to make a presentation concerning an employee benefit plan that the Association was considering establishing. The Association had previously formed a committee to investigate the feasibility of sponsoring such a plan, which its members could join. DAP is licensed in Florida to administer self-insured and insured health insurance programs, including the type in which the Association was interested. The Association thereafter decided to sponsor an employee benefit plan and use DAP as the plan administrator. DAP prepared or caused to be prepared the necessary documents. These documents included a trust agreement between Ronald D. LaFontaine, John Black, Robert Neely, Robert Adams, and Terry Akins, as trustees ("Trustees"), and the Association ("Trust," or "Trust Agreement"); the Alarm Association of Florida Health and Welfare Benefit Plan ("Plan"); and the Administrator Agreement between the Association and DAP. Each document was executed and delivered on November 1, 1985. The Trust Agreement states that the Trust was to be funded by the contributions made by the members of the Plan and the Trust funds would be maintained as a reserve against claims by Plan participants. The Trust Agreement provides that the Association may remove a Trustee at anytime and replace a Trustee who has resigned or been removed. The Trust Agreement states that the Plan Administrator, which was designated as DAP, shall administer the day-to-day operations of the Trust, including the payment of claims, providing of "consulting and actuarial services necessary for the continuing successful operation of the Plan," and establishment of procedures for "Employee Contributions." "Employees" are "all qualified members of the Association and their employees." The Administrator Agreement, which is authorized by the Trust Agreement, provides that DAP could use the Trust funds to review and pay claims and pay premiums on policies purchased by the Plan or Trustees. The Administrator Agreement authorizes DAP to negotiate and purchase reinsurance contracts to provide stop-loss coverage or avoid catastrophic losses, as well as spread the risk of excessive claims. The Administrator Agreement states that DAP is to receive 20 percent of the monthly contributions as its administrative fee. The Plan provides a detailed statement of the available benefits and various administrative matters, including claim procedures. In general, the Plan covers a wide range of medical, accident, and dental expenses. In capital letters on the first page, the Plan states: This is a self-funded, trade association member employee benefit plan established under Public Law 93-406 [Employee Retirement Income Security Act ("ERISA")], available only to qualified participating employers and their qualified employee participants. It is not available for individual coverage. The Trust Agreement likewise states that it "shall be interpreted in a manner consistent with its being ... a Welfare Benefit Plan pursuant to ... ERISA..." Each Association member enrolled in the Plan makes a monthly contribution, which is paid to DAP. The contribution is equal to the number of employees of the enrollee who have elected to participate in the Plan multiplied by the contribution rate. The Trustees set the contribution rate based upon the advice of DAP. On at least one occasion, the Trustees increased the rate upon the advice of DAP. At all times, the Trustees and DAP have intended to keep the Plan and Trust actuarially sound. DAP uses the contributions to pay claims that it has received. As long as DAP has determined that the claims are valid, the Trustees do not review the claims. The Trustees consider a claim only when a participant appeals a rejected claim. DAP uses the contributions to pay itself its 20 percent administrative fee. DAP pays any remaining funds to the Trustees, who hold such funds in the Trust as reserves against future claims. The Trust is liable for all claims. If the valid claims presented to DAP exceed the contributions received for that month, the Trust provides the difference. However, the Trustees have reinsurance under which third-party insurers are liable to pay any claim in excess of $25,000, but not more than $1,000,000. Since the Plan has been adopted, DAP and the Association have solicited enrollees. The most important source of solicitation has been by direct mail, for which DAP is responsible. In the case of new enrollees that are not already members of the Association, DAP may take a Plan application and Association membership application at the same time. In April, 1988, the Association comprised 425-450 members. A couple of years ago, the Association had only about 65 members. About 85 members have enrolled in the Plan. These enrollees are all employers. About 300 employees participate in the Plan. All of these employees are employed by enrolled employers. The record fails to disclose whether all of the enrollees are voting members of the Association. Petitioner's Exhibit Number 5 lists the names of the enrollees. It appears from the names of the businesses that all, or nearly all, of them qualify for voting membership in the Association. The Plan has never obtained a certificate of authority from Petitioner, pursuant to the Act, to operate the Plan. The Plan, the Association, and DAP have never attempted to comply with any provision of the Act, based on the position that ERISA preempts all or part of the Act. The Plan is not fully insured and has no exemption from the Secretary of Labor, as these terms are discussed below.
Recommendation Based on the foregoing, it is recommended that a Final Order be entered finding Respondent guilty of failing to hold a subsisting certificate of authority while operating or maintaining a multiple-employer welfare arrangement, ordering Respondent to cease and desist from writing any new or renewal business and accepting any contributions or premiums from current or prospective enrollees or participants, and imposing an administrative fine against Respondent in the amount of $5000. ENTERED this 1st day of June, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3046 Treatment Accorded Petitioner's Proposed Findings 1-4. Adopted. Rejected as unsupported by the evidence. The exhibit discloses the names of about 85 employers. Rejected as unsupported by the greater weight of the evidence. The Plan documents limit enrollees to employers. Adopted. Rejected as irrelevant and not a proper finding. The proposed finding goes to the weight of other testimony. Adopted, except that the second to last sentence is rejected as unsupported by the greater weight of the evidence. Adopted. First two lines are rejected as unsupported by the greater weight of the evidence. The remainder is adopted. Adopted. Adopted in substance. 14-18. Adopted. 19. Rejected as irrelevant. 20 and 23. Adopted in substance. 21-22, 24-25. Rejected as irrelevant and, in the case of paragraph 22, legal argument. Treatment Accorded Respondent's Proposed Findings All of Respondent's proposed findings are rejected as legal argument, except that paragraph 1 and the first sentence of paragraph 2 are adopted. COPIES FURNISHED: R. Terry Butler, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-8300 Geoffrey B. Dobson, Esquire Meredith & Dobson 77 Bridge Street St. Augustine, Florida 32804-1957 Honorable William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Don Dowdell General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue The issues in this case are whether Respondent, Raul A. Correa, M.D. (Dr. Correa), failed to provide workers' compensation coverage, and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing section 440.107, Florida Statutes (2013). That section mandates, in relevant part, that employers in Florida secure workers’ compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. At all times relevant, Dr. Correa was a Florida small business engaged in the practice of medicine, with his principal office located at 2505 Manatee Avenue West, Bradenton, Florida. Dr. Correa is not incorporated. On February 12, 2014, Ms. Green conducted an on-site workers’ compensation compliance investigation (compliance investigation) of Dr. Correa’s office. After identifying herself to the receptionist, Ms. Green met Dr. Correa and explained the reason for her presence, a compliance investigation. Dr. Correa telephoned his wife who handles his office management from their residence. Mrs. Correa immediately faxed a copy of the liability insurance policy to the office. However, that liability policy did not include workers’ compensation coverage. After a telephonic consultation with her supervisor, Ms. Green served a Request for Production of Business Records (Request) on Dr. Correa at 11:50 a.m. on February 12, 2014. This Request encompassed records from October 1, 2013, through February 12, 2014, for all of Dr. Correa’s payroll documents, account documents, disbursements, and workers’ compensation coverage policies. Ms. Green consulted the Department’s Coverage and Compliance Automated System (CCAS) database to determine whether Dr. Correa had secured workers’ compensation coverage or an exemption from the requirements for coverage for his employees. CCAS is a database Ms. Green consults during the course of her investigations. Ms. Green determined from CCAS that Dr. Correa did not have any current workers’ compensation coverage for his employees and he did not have an exemption from such coverage from the Department. The records reflected that Dr. Correa’s last active workers’ compensation coverage was in 2004. Dr. Correa obtained workers’ compensation coverage on February 20, 2014. Approximately one month later, Ms. Green served a Request for Production of Business Records for Penalty Assessment Calculation on Dr. Correa. Dr. Correa produced the requested records. These records were given to Lynne Murcia, one of the Department’s penalty auditors, to calculate the penalty. Ms. Murcia determined that the appropriate classification code for Dr. Correa’s employees was 8832, which incorporates physicians and clerical workers. This code was derived from the Scopes Manual, which lists all of the various jobs that may be performed in the context of workers’ compensation. The manual is produced by the National Council on Compensation Insurance, Inc., the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. Dr. Correa listed seven employees on the Florida Department of Revenue Unemployment Compensation Tax (UCT-6) form for the time period of the non-compliance. The UCT-6 form lists those employees who are subject to Florida’s Unemployment Compensation Law. Ms. Murcia reasonably relied upon the UCT-6 filings for the relevant time period to calculate Dr. Correa’s gross payroll in Florida. Using Dr. Correa’s payroll chart, the UCT reports, and the classification codes for each employee, Ms. Murcia calculated the penalty assessment for the three-year penalty period preceding the investigation. This three-year period is the allocated time for reviewing coverage for those who do not have the appropriate workers’ compensation coverage. On April 9, 2014, Ms. Murcia determined the penalty to be $4,287.12. However, upon receipt of additional information regarding a former employee of Dr. Correa, an Amended Order of Penalty Assessment of $3,898.77 was issued on July 28, 2014. Dr. Correa’s position is that his practice is a small “mom and pop” operation. He employs members of his family to run the business side of his practice. His daughter, Antonia, works as Dr. Correa’s “doctor’s assistant.” She works at the various nursing homes that Dr. Correa services. Antonia believed that the nursing homes’ liability insurance would cover her, and she was not subject to workers’ compensation coverage. However, she was, in fact, paid by Dr. Correa. Dr. Correa’s daughter-in-law, Valeria, works from her home computer completing the medical billing for her father-in- law. She has been working in this capacity for approximately 14- 16 years, and it never occurred to her that she needed workers’ compensation coverage. She was paid by Dr. Correa. Dr. Correa’s brother-in-law, Mr. Collado, runs all the errands for the practice. He may go to the bank, take care of car maintenance, buy office supplies or fix things, all in support of Dr. Correa’s practice. Mr. Collado receives regular pay checks from Dr. Correa. Dr. Correa testified that his wife is his office manager and has been since he opened the practice in 1978. Mrs. Correa works from their home, in a small home office. She does all the paper work related to the practice. Dr. Correa firmly believed that he did not require workers’ compensation coverage because some of his employees were “independent contractors” or never worked in his office, but at other locations (individual homes, nursing homes, or just outside the office). Dr. Correa believed his insurance agent who did not think Dr. Correa needed the workers’ compensation coverage. Based upon the testimony and exhibits, the amended penalty assessment in the amount of $3,898.77 is accurate.
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, issue a final order upholding the Amended Order of Penalty Assessment, and assessing a penalty in the amount of $3,898.77. DONE AND ENTERED this 24th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 24th day of September, 2014.
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue Whether Respondents have violated Florida's Fair Housing Act by refusing to rent an apartment to Petitioner because of her mental disability and familial status. If so, whether Petitioner should be granted the relief she has requested.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is a single parent. She has three sons, aged 10, 12, and 14. At all times material to the instant case, her sons have lived with her in the same household. At all times material to the instant case, Petitioner has suffered from phobias and from anxiety and panic attacks. At all times material to the instant case, Petitioner has received social security disability benefits from the federal government based upon her mental disability. Summer Lakes is a rental apartment community in Oakland Park, Florida. Petitioner lived in an apartment at Summer Lakes with her three sons from June of 1994 to January of 1995. During the period of her tenancy, Petitioner experienced financial problems. As a result, she had difficulty making her rent payments. In January of 1995, she was evicted from her Summer Lakes apartment for nonpayment of rent. Following her eviction, she and her sons lived with her mother in her mother's house (where Petitioner and her sons still live). Petitioner's financial situation improved following her eviction. By August 12, 1996, she had been able to save a substantial sum of money. On or about that date (August 12, 1996), Petitioner returned to Summer Lakes to inquire about again renting an apartment in the community. Flags outside the rental office indicated that apartments were available for rent. Upon entering the rental office, Petitioner was greeted by Vicki Atkinson (now Keating), Summer Lakes' manager. Summer Lakes had had another manager when Petitioner had lived there previously. Petitioner filled out an application to lease an apartment in the community and handed it to Ms. Atkinson. She also presented to Ms. Atkinson various documents in an effort to show that she would be financially able to make the required rent payments. Among these documents were bank statements which reflected that Petitioner had approximately $25,000 in the bank. Petitioner, in addition, showed Ms. Atkinson paperwork Petitioner had received from the federal government regarding her social security disability benefits. The paperwork indicated that Petitioner had been awarded these benefits (monthly payments of $910.00) based upon the finding that she had a mental disability. Immediately after reviewing the paperwork, Ms. Atkinson told Petitioner, "We don't want your kind here." Petitioner pleaded with Ms. Atkinson to let her rent an apartment in the Summer Lakes community. She even offered to have someone co-sign her lease. Ms. Atkinson was unmoved. Claiming that Petitioner's income was insufficient, she refused to rent an apartment to Petitioner. Her refusal was actually based upon her desire not to rent to a person with a mental disability. In refusing to rent an apartment to Petitioner, Ms. Atkinson was acting on behalf of the owner of Summer Lakes, Pittco Summer Lakes Associates, Ltd. (Pittco). Pittco no longer owns Summer Lakes and Ms. Atkinson no longer is its manager. Pittco sold Summer Lakes to SummerLake Oakland Park, Ltd., on or some time before July 1, 1998.
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 finding that, although Ms. Atkinson and Pittco committed a "discriminatory housing practice" by refusing to rent an apartment to Petitioner because of Petitioner's mental disability and familial status, the Commission is without authority to grant the relief Petitioner has requested. DONE AND ENTERED this 1st day of October, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1998.
The Issue The issue in this proceeding is whether Petitioner was the subject of an unlawful employment practice by Respondent based on her sex.
Findings Of Fact Bay is a nursing home and rehabilitation center for those in medical need of such services. It is located in Port. St. Joe, Florida. The facility has a number of residents staying at the facility who require help with mobility, standing and walking. The payroll services for Bay are performed by Signature Payroll Services, LLC, which is affiliated with Bay through a parent company. Bay offers all employees a package of employment benefits, including disability benefits. Section 7.2 of the Stakeholder Handbook states: Short & Long Term Disability In the event Stakeholders become disabled due to sickness, pregnancy or accidental injury, the company offers disability insurance . . . Short Term Disability provides for 60% of the Stakeholder's gross weekly wages up to a maximum of twenty four (24) weeks post fourteen (14) days of accident/injury. Long Term Disability provides for 60% of the Stakeholder's monthly wages up to one hundred eight[sic] (180) days after exhausting the Short Term Disability benefit. Please see Human Resources to review detailed summary plan documents for maximums. All new employees are offered the opportunity to enroll in Bay's employment benefit package for 90 days after their employment date. Each employee must affirmatively elect the employment benefits they wish to have and must pay any premiums for those benefits. After 90 days, an employee can only make changes to his or her benefit plan during the employee's annual enrollment period. In addition to the benefit plan, Bay also offers all employees Family Medical Leave for up to 12 weeks and/or a personal leave of absence when the employee is not eligible for leave under other company policies. Leave is addressed in section 8 of the Stakeholder Handbook. Petitioner is a Certified Nurse Assistant (CNA). She was employed by Bay on August 25, 2007. As a CNA, Petitioner was responsible for the direct care of residents at Bay. Her duties included lifting and moving residents as needed. Because of her duties, Petitioner was required to be able to lift a minimum of 50 pounds. Over that amount of weight, Petitioner had extra help and devices to assist with lifting. Throughout her employment, Petitioner was considered a diligent employee that performed her duties well. When Petitioner was hired, Bay offered her the opportunity to enroll in all of the benefits in its employment benefit plan, including disability insurance. Petitioner elected to enroll in life, health, dental and vision insurance. At the time of her hire, the only disability insurance offered to any employee by Bay was insurance under a MetLife group policy for Disability Income Insurance: Long Term Benefits issued to Signature Payroll. There was no evidence of any short-term disability insurance benefit offered to any of Bay's employees other than the MetLife policy described above. Given that there was no short-term disability insurance available to Bay's employees, it was not a discriminatory act for Respondent to not offer Petitioner short-term disability insurance. The insurance was simply not part of the benefit package offered by Bay at the time Petitioner was hired and Petitioner did not elect to enroll in either short term or long-term disability insurance. Petitioner did not change her enrollment elections during the 90-day period after her employment. She was therefore not eligible to add disability insurance to her benefit plan until late 2008. In November or December 2007, Ms. Mills sometimes worked with another CNA named Courtney Preston. At the time, Ms. Preston was pregnant. When Petitioner asked for some help lifting a resident, Ms. Preston told Petitioner that she was on light-duty due to her pregnancy. The charge nurse for the unit, who is the unit supervisor for any given shift, confirmed that Ms. Preston was on light-duty. However, the charge nurse had no authority to place an employee on light-duty. Additionally, there was no evidence in Ms. Preston?s personnel file that she had officially been placed on light-duty by anyone with the authority to do so. At best, it appears that Ms. Preston was simply being treated kindly by her fellow employees and was not officially placed on light-duty by a person with authority to do so. Ms. Preston eventually lost her baby while Petitioner was employed at Bay. The evidence was not clear as to the cause of Ms. Preston's miscarriage. However, the evidence established that Ms. Preston had a risky pregnancy of which the staff at Bay was aware. Later, Ms. Preston again became pregnant and again had a risky pregnancy. She was counseled on several occasions for her excessive absenteeism. In order to help Ms. Preston with her absenteeism, she was offered on-call status with less duty hours if she wanted it. Eventually, sometime after April 30, 2008, Bay terminated Ms. Preston for excessive absences caused, in part, by her pregnancy. On the other hand, Ms. Preston was clearly accommodated during both of her pregnancies while she was employed at Bay. In January or February 2008, Petitioner became pregnant. On February 15, 2008, Petitioner visited her doctor and was given a doctor?s note to limit her lifting to no more than 20 pounds even though she was not having any difficulty performing her job duties. The evidence was unclear as to why the doctor placed Petitioner under lifting restrictions since the doctor, within one to two weeks, raised those restrictions to not over a minimum of 50 pounds after Petitioner told him about the impact the lower-weight restrictions had on her job with Bay. On February 16, 2008, Petitioner gave a copy of the doctor?s note with the 20-pound lifting restrictions to the personnel department. On February 18, 2008, she discussed the lifting restrictions with her supervisors, Cathy Epps and Shannon Guy. They thought light-duty work could be arranged. On February 20, 2008, she discussed the lifting restrictions with David Kendrick, the corporate director of human resources, who was visiting Bay that day. He also thought that some light- duty work might be arranged. However, all of these supervisors wanted other higher-level corporate officials to have input on whether light-duty work was available. Eventually, the corporate legal counsel and the corporate risk manager were consulted on the issue of whether light-duty work was available. Petitioner did not receive light-duty work. Instead, on February 21, 2008, Petitioner was called into a meeting with Cathy Epps and Shannon Guy. Ms. Guy was very upset and tearfully told Petitioner that no light-duty was available and that Petitioner was terminated. Ms. Guy was upset because Petitioner was a good employee that she did not want to lose. Ms. Epps also wanted to keep Petitioner as an employee. Ms. Guy explained that someone from the corporate office decided Petitioner was terminated because they were afraid Petitioner was too much of a risk to employ since she could not meet the minimum-lifting requirements and "as a CNA she would be expected to assist residents, and . . . if we had a resident who was falling and she would be presented with a choice of either go to help the resident or run the risk of hurting herself or, . . . not helping the resident and, . . . allowing something to happen." Ms. Guy told Ms. Mills that she could return to work once her pregnancy was over. Importantly, Petitioner had been performing her normal duties without any problems or need for assistance throughout the several days that the corporate office was making a decision about whether light-duty work was available to Petitioner. This activity alone shows Petitioner was still qualified for her job since she continued to perform her job duties. During this period, no one from the corporate office or on the facility's premises expressed any concern that Petitioner continued to perform her regular job duties. Clearly, no one was relying on the restrictions in the doctor's note. There was no evidence to suggest that Petitioner would ignore any resident's needs while she was pregnant or would try to protect herself more than any other employee at the facility did. As indicated, Petitioner was simply terminated. There was no consideration given to whether she could still perform her duties as she clearly could do. She was not offered any leave time or even allowed to request leave as mentioned in Section 8 of the Stakeholder Handbook. The abruptness of the termination when Petitioner could still perform her job duties and the failure to offer leave were discriminatory acts on the part of Bay against Petitioner based on her pregnancy. Around February 29, 2008, eight days after her termination, Petitioner called David Kendrick to ask him about receiving light-duty. He told her that light-duty was available only for employees injured on the job. This policy is neutral on its face and there was no evidence that demonstrated the restriction of light-duty work to employees who are injured on the job had a disparate impact on pregnant women. Petitioner told Mr. Kendrick that her doctor had raised her lifting restrictions to 50 pounds. However, the new restriction did not satisfy the corporate perception that she was too much of a risk and could not perform her required duties even though she met the minimum job qualifications and had been a good employee. In ignoring the fact that she was qualified to perform her duties, Mr. Kendrick's reasoning is further evidence of Respondent's earlier intent to discriminate against Petitioner based solely on her pregnancy. Mr. Kendrick also advised Petitioner that she could not obtain the disability insurance employee benefit because she had not been an employee for more than a year and had not elected to enroll in the coverage during the 90-day period from when she was hired. There was no evidence that demonstrated Bay's denial of disability insurance coverage to Petitioner was a discriminatory act since Petitioner, like all of Bay's employees, had been offered the insurance when she was hired, had not selected the insurance as a benefit within 90 days after her hire date, and could not make changes to her benefit plan until sometime in late 2008. On or about April 28, 2008, Ms. Mills filed a complaint with FCHR/EEOC alleging gender discrimination based on sex due to her pregnancy. In early May 2008, Ms. Mills suffered a miscarriage and lost her baby. Sometime around June 1, 2008, a few weeks after her miscarriage, Ms. Mills returned to Bay and met with Cathy Epps and Gayle Scarborough. She asked to be rehired since she was no longer pregnant. Both were aware of the Petitioner's pending EEOC/FCHR complaint. Ms. Scarborough told Petitioner that she could possibly be rehired if she dropped her EEOC claim. Later, Ms. Scarborough called Ms Guy and spoke with her about rehiring Petitioner. Ms. Guy asked David Kendrick, who inquired further in the corporation. Ms. Guy does not recall receiving a response to her inquiry. However, she later called Petitioner asking if she would display a negative attitude if she were rehired and asking if she had dropped her EEOC claim. Petitioner was so discouraged by the phone call that she did not pursue getting rehired further. Because she was not rehired by Bay, Petitioner was out of work for an extended period of time. She eventually was hired and has continued her employment with a variety of employers. She was and is required to travel some distance to maintain her employment at greater expense than if she were employed in Port St. Joe. Because she lives in Port St. Joe, she wants to be reinstated to her earlier position. Petitioner is entitled to reinstatement as a CNA and to back wages and benefits until she is reinstated, less any unemployment compensation, wages and benefits earned during said period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a Final Order requiring: Reinstatement of Petitioner's employment with Respondent with all seniority and benefits as if she had not been terminated; and Payment of lost wages to Petitioner from the date of termination to reinstatement less any unemployment compensation, wages and benefits she received during the same period. DONE AND ENTERED this 7th day of October, 2010, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of October, 2010. COPIES FURNISHED: Sandra Adams, Esquire Home Quality Management 2979 PGA Boulevard Palm Beach Gardens, Florida 33410 Ashley Nicole Richardson, Esquire McConnaughhay, Duffy, Coonrod Pope & Weaver, P.A. 1709 Hermitage Boulevard, Suite 200 Tallahassee, Florida 32302 Cecile M. Scoon, Esquire Peters & Scoon 25 East Eighth Street Panama City, Florida 32401 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Prior to commencement of the hearing, the parties stipulated and agreed to the following matters, which are incorporated into and made a part of the Findings of Fact: Petitioner has a two-person household; Petitioner made application for low income energy assistance benefits; Petitioner's total monthly income in the month of application was $535, which consisted of $143.70 SSI, $276.90 Social Security disability benefits to Petitioner and $141.50 Social Security benefits to Petitioner's daughter: The maximum monthly income a two-person household may receive and be eligible for benefits is $418; Except for exceeding the maximum income limit, the petitioner is otherwise eligible for low income energy assistance benefits; and Petitioner's application was received as Petitioner's Exhibit 1. The Petitioner also testified concerning her expenses in the month in which she applied for benefits. Her expenses were $45 for medication for both Petitioner and her daughter, $10 for batteries for her daughter's hearing aids, $10 for counseling for her daughter, $25 for doctor's bills, $390 for rent, $40 for utilities, $72 for telephone (the average bill would be approximately $30, but Petitioner had surgery in that month and it was higher), and $150 for food. Petitioner's bills for the month of application were $742. Petitioner has emphysema and cancer, and her daughter has a breathing disorder and is deaf. Her electric bills have jumped from $30 to $190. Petitioner's income and expenses were carefully compared with the rules governing this program to determine whether any portion of her income was excludable or any portion of her expenses could be deducted from her income in determining her eligibility. None of her income was excludable, and none of her expenses could be deducted. Copies of the Department's rules were introduced as Respondent's Exhibit 1, together with its policy outlining excludable income, Respondent's Exhibit 2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer recommends that the Department of Health and Rehabilitative Services deny Petitioner's application for low income energy assistance benefits. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 25th day of September, 1981. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1981 COPIES FURNISHED: Mrs. Bette Kaufman 950 NE 171st Street North Miami Beach, Florida 33162 Leonard Helfand, Esquire Department of HRS Room 1040, Rhode Building 401 NW Second Avenue Miami, Florida 33128 Alvin J. Taylor, Secretary Attn: Susan B. Kirkland, Esquire Department of HRS Building One, Room 406 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The ultimate issue for determination is whether the Petitioner's discharge by the Respondent constituted discrimination on the basis of handicap within the meaning of the Florida Human Rights Act.
Findings Of Fact Having considered all of the evidence in the record, the Hearing Officer makes the following findings of fact: Petitioner was hired as a Mechanic II (Electrician) by Respondent on January 25, 1982 in the Plant Engineering Department. The term "Mechanic II" denoted Petitioner's pay grade. The term "Electrician" designated Petitioner's speciality. Petitioner's pay grade was changed to Electrician and the Mechanic II pay grade was eliminated by Respondent for all such employees on or about November 16, 1983. Petitioner's duties as an Electrician included ladder work, running conduit and wire, repairing laundry and laboratory equipment and appliances, changing ballasts, and repairing electrical beds and nurse-call equipment. Petitioner performed all of the duties of an electrician, including ladder work until approximately November 27, 1985. Three months after he was employed in 1982, Petitioner injured his back while repairing electrical beds. Repairing electrical beds required much bending and stooping. Petitioner filed for Worker's Compensation benefits for the injury he sustained in repairing electrical beds. Petitioner suffered an off-the-job injury in 1983. Respondent permitted Petitioner to go on medical leave for two months. Petitioner again injured his back while working at the Hospital on or about November 27, 1985. Due to his injury, Petitioner was on leave of absence from November 30, 1985, through December 11, 1985. Petitioner returned to work but again went on leave of absence from January 9, 1986, through February 17, 1986. Petitioner returned to work subject to a "light duty" restriction imposed by his physician. On or about June 10, 1986, Petitioner's physician released him for full duty subject to a 15 pound restriction on any lifting. In September, 1986, Petitioner's physician indicated that it was "probably best" for Petitioner to work only 4 hours per day. The Respondent again allowed Petitioner to work 4 hours per day even though he occupied a full-time, 8 hour per day position. In early October, 1986, Petitioner was released by his physician to perform full duty work, even though Petitioner was restricted to half days. Frank Kleese, Petitioner's foreman, asked Petitioner to investigate a problem with an overhead light. Petitioner refused Kleese's directive and stated that, even though he had been released for full duty work, he would not climb a ladder unless his doctor approved it. Petitioner argued with Kleese and used "strong language". Petitioner became belligerent. Petitioner received reprimands for insubordination. When Petitioner refused Kleese's second request to do ladder work, Petitioner received a reprimand for refusing to do the job assigned to him. Both reprimands were discussed with Petitioner. Petitioner later presented a doctor's note stating he could "return to full active duty," but could work only half days with no ladder work. As a result of Petitioner's half day schedule, other electricians were required to do more work. The department as a whole fell behind in its work. Furthermore, light duty work was not always available for Petitioner. While working half days in late 1986, Petitioner was late to work on three occasions. Petitioner's reason for being late, as explained to Frank Kleese, his foreman, was that Petitioner's injury made it difficult for him to get out of bed in the morning. In November, 1986, Clark, Kleese, and Kunz met with Petitioner and advised him that he could not remain on half days indefinitely. Petitioner was advised that unless his condition was found to have improved by his upcoming doctor's appointment on December 1, 1986, he would be placed on medical leave. On December 1, 1986, Petitioner visited his physician, Dr. Richard D. Strain, Jr. Dr. Strain stated that there was no reason to think that Petitioner's condition would change quickly. Dr. Strain was going to send Petitioner home and put him on physician therapy (i.e., not allow him to work at all). Petitioner asked Dr. Strain if he could work half days, and Dr. Strain agreed. Kleese, Kunz, and Clark met with Petitioner and informed him that he would be placed on medical leave as a result of the Petitioner's medical condition. Continuation of his half-day status without any foreseeable cutoff date was not acceptable to the Respondent. On December 4, 1986, Respondent Benefits Supervisor Ralph Rettig advised Dr. Strain that Petitioner had been placed on medical leave of absence because there were no part-time positions available in Petitioner's department. Rettig requested Dr. Strain to advise him as to whether Petitioner's condition was the result of his injury at work and whether Petitioner would ever improve to the level where he could work more than half day duty. Dr. Strain responded to Mr. Rettig in a letter dated December 22, 1986, which indicated that Petitioner's condition was partially caused by degenerative changes. Dr. Strain further stated: Mr. Cabany tells me he is unable to work more than a half day, and I think that is a reasonable thing for him to do. Certainly, a man of his elderly years with the degenerative changes that he has, with super imposed trauma, that would be a good way to go. Petitioner went on medical leave beginning December 17, 1986. Prior to the beginning of his leave, Petitioner failed to fill out the leave of absence request form. When this came to Rettig's attention, Rettig requested that Vernon Clark send Petitioner the form. Clark wrote to Petitioner and informed him that he must fill out the leave of absence request form Clark had enclosed. Clark further informed Petitioner that he would have to request renewal of his leave when it expired in mid-January, 1987, in accordance with Respondent policies. During a telephone conversation several days prior to the expiration of Petitioner's leave, Clark reminded Petitioner that he still had not sent in the original request form for the leave he was then under. Clark also reminded Petitioner that, if he wished to extend his leave, Petitioner would have to submit a written request for extension. Petitioner eventually sent in the signed request form for the leave of absence which he was then under. The signed form stated: "If I do not request an extension of my Leave prior to expiration . . . my employment at Memorial Respondent will be terminated. . . ." Petitioner never submitted a request for an extension of his leave, and Petitioner was terminated. In February, 1987, Ralph Rettig became aware of a part-time porter position in the Respondent's Dietary Department. Mr. Rettig contacted Petitioner and asked him to meet with Joseph Marino, Administrative Director of Food and Nutrition Services, with regard to a job in the Dietary Department. Marino offered Petitioner a porter position which required only half days and involved no bending or lifting of heavy objects. Marino explained the duties and responsibilities of the position to Petitioner and showed him the work area. Petitioner refused the position because he felt it was "beneath his dignity". Petitioner said virtually the same thing to Rettig. Hospital Benefits Supervisor Rettig, a quadriplegic, was involved throughout in dealing with Petitioner's medical situation. Rettig testified that he has never witnessed discrimination by the Respondent based upon handicap and felt that the Respondent reasonably accommodated Petitioner's back problem. Eighty percent of an Electrician's work at the Respondent involved the use of a ladder. Petitioner could not do ladder work. Petitioner also could not work on ceilings or do much bending or lifting. Petitioner cannot work at all now, still has pain, and has not worked since leaving the Respondent's employ. Petitioner did not know of any available half-day jobs he could have performed at the Hospital other than the porter position that was offered to Petitioner by Mr. Marino. Prior to his 1985 injury, Petitioner had repeatedly requested to work part time as an Electrician because his wife had arthritis and he needed to care for her. Petitioner was consistently turned down because no such part-time position existed in his department. During his employment with Respondent, a few half-day positions existed throughout the Hospital as PBX Operators, Cashiers, and Porters. No part-time Electrician positions in the Plant Engineering Department where Petitioner was employed were ever available. Petitioner occupied a full-time position even though he worked only part-time. Sandy McNeil, a former Electrician, is now a Systems Technician/Welder who works full days on a part-time basis. Mr. McNeil operates a lathe and works full weeks when needed. Petitioner is not a welder and could not perform the duties required of Mr. McNeil. Richmond Blatch is a painter who works a full week every other week. Petitioner is not a painter and could not perform Mr. Blatch's duties. Tom Nottage, another individual who had been working in the Engineering Department, obtained a courier position with the Hospital. For a brief period, Mr. Nottage worked 2 full days a week in the Engineering Department and 3 days week as a courier. Since mid-January, 1987, Mr. Nottage has worked full-time as a courier. His job requires driving over 25,000 miles per year, lifting mail tubs weighing between 20 and 50 pounds, often lifting heavier packages, and getting in and out of his car between 20 and 40 times per day. Petitioner could not perform the duties required of Mr. Nottage. A part-time position could not be created for an Electrician. Electricians are given jobs which frequently carry through from day to day. Permanently employing someone on a half-day, health-restricted basis presented scheduling and work load problems. Jobs that do not carry through from day to day are frequently comprised of so-called bench work. Some bench work requires an entire day to complete. There was not always a half-day's worth of bench work available. During his employment with the Respondent, Petitioner had been receiving Social Security pension benefits. In 1987, Petitioner would have been required to reimburse Social Security for a portion of his pension benefits if he earned more than $8,000,00. Half day employment would have afforded Petitioner the ability to earn the maximum allowed by Social Security. Because Petitioner refused to accept a job for which he was physically qualified, the worker's compensation benefits begun as a result of his injury on the job in 1982, were stopped. If Petitioner had accepted the porter position offered to him by Mr. Marino, his worker's compensation benefits would have compensated him for the wage loss resulting from the lower paying job. Petitioner's termination had no effect on the worker's compensation benefits Respondent was paying Petitioner. Respondent would have gained a financial benefit from retaining Petitioner as a part time Electrician because there would have been less of a wage loss to make up through worker's compensation benefits. Glen Mora and Luis Villanueva, two other Electricians, were injured while Petitioner was working half days. Both individuals were allowed to take medical leave, and return to work on light duty until they returned to full duty status. Both individuals in fact returned to full duty status. Petitioner received a merit pay check from Respondent in 1986 even though Petitioner had not achieved the requisite "fully proficient" rating in his evaluation. Vernon Clark, Director of Plant Engineering, intervened on behalf of Petitioner. Mr. Clark recommended that Petitioner receive the merit pay because Petitioner would have received a higher rating had it not been for Petitioner's injury.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Human Rights Commission issue a Final Order that Respondent is not guilty of discharging Petitioner in violation of the Human Rights Act. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 1989. APPENDIX Petitioner submitted no proposed findings of fact. Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection NONE The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Included in Findings 1, 2 2-3 Rejected as irrelevant 4-9 Included in Findings 3-10 Included in Finding 35 Included in Finding 11 Included in Finding 25 Included in Finding 26 Included in Finding 31 15-17 Included in Findings 27-30 Included in Finding 17 Included in Finding 36 Included in Finding 32 21-28 Included in Findings 12-21 29 Included in Finding 22 30-31 Included in Findings 33-34 Included in Finding 22 Included in Findings 15, 17 34-35 Included in Findings 23, 24 COPIES FURNISHED: George Cabany 3905 Garfield Street Hollywood, Florida 33021 James S. Bramnick Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P. A. Hollywood Memorial Respondent Suite 3600 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2338 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Adele Conover is a veteran's widow whose regular income consists of a widow's pension of $277 per month and food stamps. She owns her home and is the sole member of her household. On March 19, 1982 Petitioner submitted an application for benefits under the low-income home energy assistance program. She listed her income as $277 from the veteran's widow's pension. In March 1982 Petitioner was given a part-time job by the Department of Health and Rehabilitative Services as a clerk typist at an hourly rate of pay of $3.58. (Exhibit 1) Pay for the work performed at HRS in March was received by Petitioner on April 1, 1982. Respondent's denial of Petitioner's application for low-income home energy assistance benefits was based upon the salary earned by Petitioner while working for HRS in March 1982. The salary, when added to her unearned income of $277, exceeded the $359 per month income limit for eligibility for low-income energy assistance for single member households.
Findings Of Fact The Respondent is an agency of the State of Florida. The Respondent has adopted Fla. Admin. Code Rule 8B-5.11(5)(a), a rule governing practice and procedure before Appeals Referees in appeals from the grant or denial of unemployment benefits by Claims Examiners. This rule provides: Copies of the Notice of Hearing shall be mailed by first class mail to all inter- ested parties and their attorneys or autho- rized agents of record at least seven (7) days in advance of the hearing. Hearings held pursuant to Fla. Admin. Code, Chapter 8B-5 are hearings de novo. The Florida Administrative Procedure Act requires that agencies give not less than fourteen (14) days notice of hearing in all proceedings in which the substantial interests of a party are determined by an agency. Section 120.57(1)(b)2, Fla. Stat. (1978). The Respondent is not exempt from this requirement, and has obtained no waiver of this requirement. Petitioner, MARIE LOUISNE, resides at 19315 S.W. 117th Court, Miami, Florida. Petitioner filed a claim for unemployment benefits on or about February 28, 1978. Her claim was denied by a Claims Examiner, and Petitioner timely appealed this decision. On Nay 24, 1978, the Respondent mailed Petitioner a Notice of Hearing, informing her that a hearing on her appeal would be held before an Appeals Referee on May 31, 1978. That Notice was given pursuant to the challenged rule. Petitioner received that Notice on May 25, 1978. Petitioner contends, and Respondent now agrees, that this Notice is inadequate. Section 120.57(1)(b)2, Fla. Stat. (1978) Petitioner filed this action on May 30, 1978, alleging that she was a party to the scheduled proceeding, and that her substantial interests would be affected at the hearing scheduled for May 31, 1978, in that her entitlement to unemployment benefits depended upon the outcome of that hearing. The Respondent has stipulated to these allegations. The parties have stipulated to the Petitioner's standing to maintain this action.
Findings Of Fact On July 16, 1981, Petitioner, Fay Ola Hartley, filed a household application for cooling assistance under the Low Income Energy Assistance Program with Respondent, Department of Health and Rehabilitative Services. Petitioner resides in Columbia County, Florida, which is part of the North Cooling Climatic Region for purposes of determining the level of assistance to be given claimants. Respondent reviewed Petitioner's application, and because she lives in housing that is subsidized by the Columbia County Housing Authority (CCHA), determined that Petitioner lives in a household that is partially vulnerable to the rising cost of cooling energy. This means the governmental entity is partially responsible for paying a portion of her energy bill. According to Department regulations, Petitioner was entitled to only $40 in energy assistance, and a check was issued to her for that amount. Applicant is the only member of her household. Her total monthly countable income is $262.70 which falls within acceptable income limitations prescribed by the Department. Except for living in a partially vulnerable household, Hartley was otherwise qualified to receive $143 in cooling assistance benefits. Respondent failed to contact the CCHA when it processed Hartley's application to determine whether it actually paid a portion of her utility bill. Hartley could neither confirm or deny that CCHA provided such assistance. By agreement of the parties, the record was left open to enable Respondent to verify its earlier determination. A subsequent inquiry by Respondent revealed that Hartley lives in a household fully vulnerable to the rising cost of cooling energy and is eligible for $103 in additional cooling assistance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner, Fay Ola Hartley, be given $103 in additional cooling assistance in accordance with Department regulations. DONE and ENTERED this 18th day of November, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1981. COPIES FURNISHED: Mrs. Fay Ola Hartley 2794 East Duval, Trailer 11 Lake City, Florida 32055 Joseph E. Hodges, Esquire Department of HRS 2002 N.W. 13th Street - 4th Floor Gainesville, Florida 32601
