Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. Contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to the provisions of Section 215.19(1)(b), the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco Mechanical Contractors, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour for regular time and $10.50 per hour for overtime. From January 1, 1978 until April 30, 1978, John W. Culp was employed as a plumber at the rate of $7.50 per hour for regular time and $11.25 per hour for overtime. While making $7.00 per hour, Culp was paid $3.07 per hour less than the prevailing wage for regular time hours worked and $4.60 less than the prevailing wage for overtime hours worked. During the period January 1, 1978 until April 30, 1978, Culp received $2.57 less than the prevailing wage for regular time hours worked and $3.95 less than the prevailing wage for overtime hours worked. The figures presented by the Respondent and those of the Petitioner do not agree concerning the number of hours worked. Exhibit 7 reflects that Culp worked a total of 856 hours at $7.00 per hour and 8 hours of overtime at $10.50 per hour. Exhibit 7 further reflects the Culp worked 683 hours at $7.50 per hour and 47.5 hours at $11.25 per hour. The amount Culp was underpaid prior to January 1 is equal to the sum of the regular hours worked times $3.07 and the overtime hours worked times $4.60 per hour. The amount Culp was underpaid subsequent to January 1, 1978, is equal to the sum of the number of regular hours worked times $2.57 and the number of overtime hours worked times $3.95. The amount that Culp was underpaid prior to January 1 is $2,664.72 and subsequent to January 1, $1,942.94 for a total of $4,607.66. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was filed within the time prescribed by statute. Pursuant to the provisions of Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Services is currently withholding $4,779.74 from Acco Mechanical Contractors, Inc. while awaiting the decision of this administrative hearing.
Conclusions Petitioner has established that he was hired by and worked for Acco, Inc. as a plumber and that he was paid $7.00 per hour from July 17, 1977 until January 1, 1978 and that he was paid $7.50 per hour from January 1, 1978 until April 30, 1978. The prevailing wage for plumbers on the Juvenile Detention Center project was $10.07 per hour. Petitioner John W. Culp is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the, prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employer be paid "not less than the prevailing wage". Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage rate for the total number of hours worked at a rate less than the prevailing wage. Therefore, the Petitioner is entitled to $4,383.23. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff, et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rate, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay to the Petitioner, from the amount it is withholding in this claim, the amount of $4,383.23 and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32301 Telephone No.: (904) 488-7396 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr., Esquire Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 Luther J. Moore, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 Thomas A. Koval, Esquire Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 Stephen F. Dean, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter is order directing the contracting authority to pay the employee the sum of $4,607.66 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 L. Byrd Booth, Jr. Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR JOHN W. CULP, Petitioner, vs. CASE NO. 78-1281 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978, in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: This cause was presented on a claim filed by John W. Culp against Acco, Inc. alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, John Culp, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between July 17, 1977 and January 1, 1978, John W. Culp was employed by Acco, Inc. on this project as a plumber. During this period of time, Culp was paid at the rate of $7.00 per hour. From January 1, 1978 until April 30, 1978, Petitioner was employed as a plumber at the rate of $7.50 per hour. Exhibit No. 7, the Weekly Time Reports of John W. Culp, establish that Culp worked a total of 856 hours at the rate of $7.00 per hour and 8 hours at $10.50 per hour. Furthermore, the Reports establish that Culp worked 683 hours at the rate of $7.50 per hour and 47.5 hours at $11.25 per hour. Prior to January 1, 1978, the difference between what Petitioner was paid end the prevailing wage was $3.07. After January 1, 1978, the difference was $2.57. The total difference between what Petitioner was paid and the prevailing wage for the time Culp was employed by Acco, Inc. is equal to 856 hours multiplied by $3.07, plus 683 hours multiplied by $2.57. The total difference is $4,383.23. Petitioner has complied with the provision of Section 215.19(3)(a) 1 and 2, Florida Statutes, by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid. This affidavit was timely filed. Pursuant to Section 215.19, Florida Statutes, the Department of Health and Rehabilitative Services is withholding $4,779.74 from Acco, Inc. pending the outcome of this claim.
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
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 Petition for Relief filed by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner was a lead operator on the first shift of the data entry section of Respondent company. Mr. John Goolsby was also a lead operator but on the second shift in the data entry section. Petitioner was discharged due to elimination of the position of lead operator and Mr. Goolsby was not. During the period encompassing the elimination of Petitioner's job, Respondent reduced its staff from 73 to 57 people and the data entry staff was reduced from 12 to less than 8 people. The decision as to which lead operator in the data entry section would be released from employment was based upon a decision to keep the most productive employee on the basis of quality and quantity of work. Although both the Petitioner and Mr. Goolsby were satisfactory employees, the most productive individual was identified through a series of evaluations by interviewing management personnel to Mr. Christman, Respondent's Executive Vice-President. Probably the most significant- input in the decision-making process was from Sandra Howell, immediate supervisor of both Petitioner and Goolsby, and the tabulations and comparisons of data were done by Walter E. Wilfong, Operations Manager. They all identified John Goolsby as the most productive individual and the decision to release Petitioner was made by Mr. Christman. At the time she was released, the company had no alternative position to offer Petitioner. She has since been offered reemployment in a different position. Petitioner was unable to establish that in making their recommendations to Mr. Christman either of the middle managers gave special or undue consideration to Mr. Goolsby's school schedule. Petitioner never received any written complaints or warnings or reprimands about her work performance and it was unrebutted that her job performance was satisfactory. Petitioner testified that the comparison of production between herself and Mr. Goolsby was invalid because Mr. Goolsby worked the night shift and Petitioner worked the day shift. Witnesses for the Respondent conceded that the night shift was generally not as productive as the day shift. However, the immediate supervisor of both the Petitioner and Mr. Goolsby both before and Mr. Goolsby after Petitioner's termination testified that Mr. Goolsby's work quality and quantity was superior to that of the Petitioner. This testimony was unrebutted. In addition, it was unrebutted that Mr. Goolsby had been nominated for company-wide awards for his quality as an employee on several occasions both before and after the Petitioner's termination and the Petitioner had never been nominated. Although there is some indication in Mr. Wilfong's testimony that Mr. Goolsby had the "edge" with him because Wilfong wanted someone who could communicate with Wilfong for liaison between various shifts, the evidence falls short of establishing this consideration was a deciding factor or that any edge was given Goolsby in the evaluation reports. Further, Wilfong attempted to compensate for Goolsby's showing greater productivity due to the "less people- more work" element of the night shift by reviewing Petitioner's productivity records from then she had previously been on the night shift, which did not compare favorably with Goolsby's for quantity. There is no competent evidence that Respondent terminated Petitioner on the basis of her gender, female, by the ruse of eliminating her position. Further, at the date of formal hearing, Mr. Goolsby's supervisor remained female (Sandra Howell) and there are 6 female/6 male supervisors and a higher female to male ratio of the total 57 retained employees.
Recommendation It is recommended that the Human Relations Commission enter a final order dismissing the Petition/Complaint herein. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 4th day of November, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-2866 All of the Respondent's Proposed Findings of Fact are accepted. All are adopted, as modified to conform more closely to the record in this cause. COPIES FURNISHED: Ms. Terri Tibble 3040 Aloma Avenue, Apt. J-9 Winter Park, Florida 32791 Thomas R. Pepplar, Esquire Graham, Clark, Pohl & Jones 369 New York Avenue Post Office Drawer 1690 Winter Park, Florida 32790 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32299-1570
The Issue The issue for determination is whether Petitioner abandoned her position of employment in the career service system of the State of Florida.
Findings Of Fact Petitioner is Helen L. Chappell, a career service employee of Respondent with the Polk County Public Health Unit at all times pertinent to these proceedings. Petitioner worked sporadically in Respondent's employment during the month of March, 1989. She was credited with a total of 28 hours of work during that month. Respondent's records reflect that Petitioner did not actually work any hours in the months of April or May, 1989. On May 5, 1989, Respondent received notification from personnel of the Division of Risk Management of the Department of Insurance that Petitioner, a recipient of workers compensation benefits, had reached maximum medical recovery from a previous injury. Shortly thereafter, the Division provided Respondent with a copy of a medical report documenting the extent of Petitioner's recovery. The medical report, while noting Petitioner's recovery, also restricted her employment activities to preclude activities involving "a lot of head and shoulder movement." By certified letter dated May 11, 1989, the acting administrative director of the Polk County Health Unit informed Petitioner of the receipt of the medical report and the medical restrictions contained in the report. Further, the letter set forth Respondent's position that such restrictions would not interfere with Petitioner's performance of her duties as a clerk specialist. The letter concluded by directing Petitioner to return to work immediately to avoid the presumption that she had abandoned her position of employment with Respondent. The letter's certified mail return receipt reflects that Petitioner received the letter on May 15, 1989. In the course of a telephone conversation with the acting administrative director on May 25, 1989, Petitioner was informed that she must return to work no later than June 2, 1989. Petitioner did not return to work on June 2, 1989, or at any time thereafter. On June 15, 1989, the acting administrative director notified Petitioner by certified mail that Petitioner was presumed to have abandoned her career service employment position with Respondent as a result of the failure to report to work within three days of the June 2, 1989 deadline. The certified mail return receipt documents delivery of the letter on June 20, 1989. On August 1, 1986, Petitioner acknowledged receipt of a copy of Respondent's employee handbook. Employees are placed on notice by contents of the handbook that any employee who is absent without authorization for three consecutive workdays may be considered to have abandoned his or her employment position.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period June 2-June 15, 1989. DONE AND ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-4183 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. None submitted. Respondent's Proposed Findings. 1.-5. Adopted in substance. Rejected, unnecessary. Adopted in substance. COPIES FURNISHED: Jack E. Farley, Esquire HRS District 6 Legal Office 4000 West Buffalo Avenue Fifth Floor, Room 500 Tampa, Florida 33514 Helen L. Chappell Post Office Box 109 Lake Wales, Florida 33859 Larry D. Scott, Esquire Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-0450 Aletta L. Shutes Secretary Department of Administration 438 Carlton Building Tallahassee, Florida 32399-0450 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue Whether or not Petitioner was terminated from her position with the Alachua County Metamorphosis Program because of her race and sex.
Findings Of Fact 1. Petitioner is a black female. She is, accordingly, an employee member of the protected classes, black and female. 2. Petitioner was employed by Respondent Alachua County’s Metamorphosis Program from April 20, 1984 until August 30, 1989. The Metamorphosis Program is a multi-disciplinary residential treatment facility for recovering drug addicts. There is no dispute that Petitioner was terminated by the Respondent employer. 3. Petitioner was discharged by Respondent after a long and stressful employment history. The Respondent advanced a cornucopia of cumulative and escalating reasons for Petitioner’s final termination in 1989. Petitioner countered with her belief that all of Respondent’s grounds for termination were not true and valid but were pretextual coverups for discrimination against her upon the bases of race and sex. 4. Petitioner’s allegation of a pretextual termination depends upon several theories. First, she proved that there was some degree of racial and gender-biased verbal slurring going on between and among employees and clients in the program. Second, she was under the impression that some of her disciplinary warnings/penalties had been administratively "removed" from her personnel record and therefore could not be "counted" against her. Finally, she also "pelieved" there was a statute of limitations on how far back the Respondent could go to "accumulate" offenses against her. The last "belief" was never proven by any competent evidence. See, Finding of Fact 8. Her first two theories were not substantiated for the reasons set out infra. 5. Respondent has had, at least since December 15, 1987, a very structured Equal Employment Opportunity policy, disciplinary policy, and employee appeal procedure. For employees like Petitioner, who did not qualify for the grievance procedures under the County’s collective bargaining contract, the procedure for challenging any proposed disciplinary action permitted the threatened employee three stages of appeal in which to resolve the issue. First, the employee was issued a Notice of Proposed Disciplinary action setting out the personnel rules offense charged against the employee and stating what the proposed discipline would be. This document also provided notification to the employee of the three-tier appeal process. Employees who elected to do so, could appeal to the supervisor proposing the disciplinary penalty, then to the Department Head, then to the Personnel Advisory Committee (PAC). PAC was made up of five citizens who advised the County Manager, but the County Manager still made the ultimate decision if an appeal went as far as PAC. Respondent’s disciplinary policy normally imposed escalating penalties against the offending employee for repetition of offenses over a period of time, but more severe offenses usually drew more severe penalties than less severe offenses did, regardless of where they fell in an employee’s chronological employment history (See Finding of Fact 22) 6. Petitioner was sequentially charged with offenses which were not always the same or similar offenses, but ones which together fell in the disciplinary policy’s groupings of wrong-doing which could result in dismissal. Contrary to her testimony, which is not credible on this issue, it is found that Petitioner received notice of every offense charged, and she appealed every intended penalty in some manner or other. 7. Respondent based its decision to terminate Petitioner upon its finding that Petitioner was guilty of a Group III (1) violation of a clearly documented history of abuse of rules, regulations and/or policies; and Group I offenses number 1, number 8 and number 15. 8. More specifically, the first basis Respondent relied upon to terminate Petitioner was a disciplinary action effective June 12, 1985, which resulted in Petitioner being suspended for three days. The discipline was based upon a requirement that Petitioner attend a family violence seminar held from 8:00 a.m. until 5:00 p.m. on May 22, 1985. Although directed by her supervisor to attend the conference in its entirety, she did not do so. Petitioner did not think this offense should be part of the Respondent's ultimate decision in 1989 to terminate her because it was "beyond a statute of limitations." Although the offense preceded the adoption of Respondent’s formal disciplinary policy, Petitioner could point to no limitation or laches policy, provision, or habit of practice which would prohibit Respondent considering the 1985 offense along with later, more serious disciplinary problems. 9. The second basis given by Respondent for terminating Petitioner was 4 disciplinary action taken against Petitioner effective April 14, 1988, resulting in a letter of instruction for her refusal to participate in supervision. Although Petitioner claimed that Respondent withdrew the April 14, 1988 disciplinary action, the documentary evidence does not support such a construction of events. Another earlier disciplinary action against Petitioner was, in fact, purged from her personnel file and was not part of the termination decision. 10. The third basis for the termination was Petitioner’s absence without authorization from June 9 through June 11, 1988, relating to an eye examination. Petitioner failed, upon demand from her superiors, to provide a verifiable physician’s certificate stating the medical reason for her absence on the above dates. Petitioner’s conduct resulted in a written warning. Although Petitioner claimed this disciplinary action was also withdrawn, Respondent’s Personnel Director was unaware of any requests before her termination to remove that particular disciplinary action from Petitioner’s personnel file. 11. A physician’s certificate indicating Petitioner had been unable to work from June 9 through June ii, 1988 was admitted in evidence, but that certificate is dated November 16, 1989, more than a year after the event and two and one-half months after Petitioner had been terminated by Respondent. That exhibit alone is not persuasive of Petitioner’s position that her absence June 9 through June 11, 1988 was excused or excusable, because that certificate was presented so late, and because there is contrary evidence that Petitioner could have worked at least part of the three days in question. Petitioner’s 1989 doctor’s note was never seen by Petitioner’s supervisor until it was presented in the formal hearing in this cause, and it appears to be contradicted by Respondent’s Exhibits 14B and 14A, which make reference to the same time period but indicate "this [sic] is to verify that Hattie Green was in my office on 6/9/88 and is able to return to work and her eye exam posed no problem to her working abilities." (Emphasis supplied] Although the Metamorphosis staff repeatedly asked Petitioner to document this absence, she did not do so until after she was ultimately terminated. Therefore, at the time of termination it was still an appropriate consideration of her accumulated disciplinary record. 12. Respondent’s fourth reason for Petitioner’s termination was a disciplinary action for making unsubstantiated 6 allegations (December 19, 1988) against a fellow employee involving payroll fraud. A contemporaneous investigation of that situation resulted in management’s determining that Petitioner’s allegations were completely unfounded, and she was issued a written warning January 11, 1989. Petitioner presented no evidence of payroll fraud in the instant formal hearing. 13. Respondent’s fifth reason for terminating Petitioner was a disciplinary action dated January 30, 1989, resulting in a written warning for a Group I offense, absence without authorization, issued to Petitioner by Mr. Santangelo, Metamorphosis Program Coordinator and Petitioner’s second level supervisor. He is a white male. His warning was for Petitioner’s failure to provide medical documentation for sick leave. Mr. Santangelo had requested an actual doctor’s note, but Petitioner never brought one in. The issue went to an internal appeal procedure. Management still asked Petitioner for a doctor’s note, but one was never provided, and the disciplinary action remained in place. In September 1989, approximately eight months later, the matter went to the PAC, which was Step III in the appeal process for employee discipline. At that hearing, Petitioner produced for the first time the requested doctor’s note. PAC recommended that the disciplinary action be withdrawn. PAC’s recommendation was upheld by the County Manager. However, that hearing and the withdrawal of that disciplinary action did not occur until after Petitioner had already been terminated. Therefore, when Petitioner was terminated, it was still an appropriate consideration of her accumulated disciplinary record. 14. The sixth reason for Respondent’s termination of Petitioner was a disciplinary action against her dated June 5, 1989, which resulted in a ten-day suspension. That action arose ultimately from events occurring approximately April 11-14, 1989 wherein a client alleged that Warren McCluney, a black male Drug Counselor Aide, had behaved sexually inappropriately. 15. Petitioner’s discipline on this occasion was based upon several considerations and perceptions of Petitioner’s superiors. Whether their perceptions were accurate or not, their considerations and perceptions had nothing to do with either Petitioner’s race or her sex. 16. First, there was a finding regarding Petitioner’s Group II offense (threatening, intimidating, using abusive language, or obstructing the work of others) which was based upon Petitioner’s conduct in trying to find out whether or not the allegation made by the client against Warren McCluney were true. The client had spoken to Jim Santangelo and alleged that Mr. McCluney had engaged in sexual misconduct with him. Mr. Santangelo then talked to two clients who were involved and told them he would pass the information on to his superior, Scott Simmons, who was then in the position of Community Program Supervisor. Mr. Simmons, a plack white male, was Petitioner’s third level supervisor. Mr. Santangelo also represented to the concerned clients that Mr. Simmons in turn would pass the information on to Mr. Byrd, the Corrections Director, a_black male. The clients involved were subsequently instructed by Mr. Santangelo not to speak to anyone about such information until an investigation could be conducted. 8 17. Subsequently, Mr. Santangelo discovered that when Petitioner came on duty, she somehow found out about the allegations made by the clients and she had confronted them. Petitioner, in either the mindset that prior supervisors’ instructions meant that Mr. McCluney had a right to defend himself against accusations made by manipulative recovering drug addicts or just to further agitate the situation, then contacted Mr. McCluney and advised him of the clients’ allegations against him. Rightly or wrongly, Mr. Santangelo believed that Petitioner’s action in alerting Mr. McCluney and breaching confidentiality with the clients was done just to agitate the situation and that it caused one of the clients to contact police and hide in a closet for fear of having to confront Mr. McCluney once Mr. McCluney knew the client had made the allegation against him. 18. Regardless of what prior oral instructions, if any, may have led Petitioner to take the actions she did, it is clear that on this occasion, she did not follow Respondent’s written protocol and policies which required contacting a supervisor concerning any client allegations of misconduct by a staff member. Instead of following the chain-of-command, Petitioner had turned over the information she had to the accused lower level staff member, with the result that patient treatment, confidentiality, and supervisors’ investigation of the allegations were compromised. 17. Contrary to her behavior in informing the accused, Petitioner also refused to comply with written or oral instructions of higher level supervisors to inform them. Petitioner refused to give any information to Scott Simmons, when he called her to investigate the foregoing incident. When Mr. Simmons was advised of the incident at approximately 1:20 a.m. on April 13, 1989, he called Petitioner at her home. Mr. Simmons asked Petitioner an open-ended question--whether anything unusual had happened on her shift that night. Petitioner would not give him a @irect answer and then said she was putting her husband on the telephone line. Mr. Simmons told Petitioner not to include her husband in their conversation because the conversation involved confidential client-related matters. Mr. Simmons then renewed his objections to both Petitioner and her spouse, and eventually her husband got off the telephone line. Then, Mr. Simmons again asked Petitioner if anything had come up on her shift regarding Warren McCluney. She responded "Yes, it did and you know what it is. And I told Mr. McCluney everything". Petitioner thereafter refused to give Mr. Simmons any further response and hung up on hin. 20. On April 14, 1989, Program Coordinator Santangelo put a note in the pass-on log. The pass-on log was the document wherein the rotating shifts of Metamorphosis employees left information for each other about client treatment and activities on their respective shifts. Mr. Santangelo’s note informed the Metamorphosis staff that an investigation was going to be conducted. It further ordered that until the investigation was completed, the staff was not to talk about the allegations against Mr. McCluney among themselves or with clients. Mr. 10 Santangelo put a box on the pass-on-log for each staff member to initial after having read his order/instruction. All staff members signed the acknowledgment box except for Petitioner. However, Petitioner was clearly on notice of Mr. Santangelo’s instructions, because Petitioner signed onto the log immediately following Santangelo’s note and on the same day. 21. Petitioner was not confused by contrary instructions from supervisors. She was uncooperative when she initially became privy to the client’s allegations; she did not follow the Respondent’s policy by immediately notifying a supervisor; she refused to discuss relevant information with a supervisor; and, although there was another supervisor’s, Mr. Santangelo’s, note in the pass-on log ordering staff members not to discuss the investigation with clients or co-workers and directing staff members to sign, Petitioner did not sign to acknowledge receipt of Mr. Santangelo’s instructions. 22. Respondent rarely employs a ten-day suspension. Generally, an employee is given graduated discipline, from milder to more severe, starting with a written warning, then a one-day suspension, then a three or five day suspension, and only then, a termination. (See, Finding of Fact 5) This time, her immediate supervisors wanted to fire Petitioner outright. 23. Although the events related to the June 1989 disciplinary action were serious, given Petitioner’s length of employment, Respondent’s white female Personnel Director recommended that, rather than termination, Petitioner be given a ten-day suspension. This recommendation was adopted and Petitioner was only suspended for ten days. 121 24. Thereafter, Director Walter Byrd met with Petitioner and her attorney to discuss measures that could be taken to assure that when Petitioner returned to work there would be a better working relationship with her supervisors and colleagues. 25. Director Byrd had a subsequent meeting with Petitioner and Ms. Rawls-Reynolds, Respondent’s black female Equal Opportunity officer, to again discuss the importance of Petitioner getting off on the right foot and returning to productive employment at Metamorphosis. 26. Petitioner was warned by Walter Byrd that if further violations of policy continued she would be terminated. 27. The seventh basis for Petitioner’s termination was an incident on July 23, 1989. An emergency coverage counselor policy had gone into effect in June 1989. The policy was disseminated to staff members sometime between the 15th and 20th of June 1989. Each staff member was given a procedure manual and asked to sign acknowledging receipt of the manual. The policy was written whereby Drug Counselor I’s and Drug Counselor II’s would each carry a beeper for one week of each month on a rotating basis. There was a written schedule indicating who was on-call during each specific period of time. Petitioner, in fact, received the procedure manual on June 20, 1989. On July 23, 1989, Petitioner, a Drug Counselor I, was scheduled to be the emergency coverage counselor as reflected on the pertinent schedule. The schedule was posted in the Metamorphosis facility at least a week prior to becoming effective. After midnight on 12 July 23, 1989, it became apparent that the emergency coverage counselor, in this case, Petitioner, would have to come in on- call. At approximately 12:30 a.m., Mr. Santangelo called Petitioner to come in. The telephone was answered by Petitioner’s husband. Mr. Santangelo believed Petitioner would be given the message by her husband and would report to work. Petitioner did not arrive at Metamorphosis. After a reasonable period, Petitioner was again called at home. Again, Petitioner’s spouse answered the telephone and it was then understood that the Petitioner would not respond. In fact, Petitioner never reported for work. Petitioner’s superiors concluded that Petitioner had failed to make adequate provisions to ensure that she could be contacted in the event she was called upon to perform her scheduled duty as the emergency coverage counselor. 28. The Petitioner ultimately testified herein that she never got the telephone message. Based on that information, it is clear that her superiors correctly concluded that she should have made some other arrangements to fulfill her "on-call" employment obligations. Although Petitioner put forth that her white male counterpart, Robin Robinette, did not always personally cover his own "on-call" shift and was not disciplined for it, she conceded that Robinette always arranged for his shift to be covered by someone. 29. Petitioner also related that she had never seen the “on-call" schedule. When confronted with the schedule at formal hearing, Petitioner suggested obliquely that, had she seen the schedule, she, Hattie Ruth Green Matthews, could have been 13 confused that the "HR" notation thereon was for "Hattie Ruth" or for "Heidi Ramsay" and not considered that the "HM" notation was for "Hattie Matthews." This is not just incredible testimony, it is complete nonsense and jabberwocky, since the schedule also indicates that "Hattie" was the employee on call 2200 hours Tuesday 7/18 to 2159 hours Tuesday 7/25. 30. The eighth basis for termination was Petitioner’s failure to attend a scheduled staff meeting on July 25, 1989. The Metamorphosis program had a schedule of regular staff meetings every Tuesday. The staff meeting was normally scheduled from 3:00 p.m. to 7:00 p.m. on Tuesday as a standard procedure and marked on the posted weekly schedule. On July 25, 1989, a Tuesday, everyone except Petitioner attended the staff meeting. No one on staff advanced any reason for Petitioner’s absence. 31. At approximately 4:00 p.m., Scott Simmons located Petitioner at the Criminal Justice Services building and had her come to the telephone. According to Petitioner, her first level supervisor, Mr. Whitaker, a white male, had previously told her she could be off duty and Mr. Simmons only told her over the phone that she was not off duty, to which she replied that she was off duty. According to Mr. Simmons, he ordered Petitioner to report back to the Metamorphosis facility for the last couple hours of the staff meeting. Given the fact that the staff meeting is the nucleus of Metamorphosis’ multi-disciplinary program and the process that brings all disciplines together to "staff" each client weekly, and considering the candor and demeanor of both witnesses, it is found that regardless of what 14 words Mr. Simmons used, Petitioner knew she was supposed to return to the Metamorphosis facility for staff meeting. It is also found that she did not do so, thereby legitimately incurring another disciplinary situation. 31. The ninth basis for the termination of Petitioner concerned Petitioner’s memorandum dated July 21, 1989 and Petitioner’s memorandum dated August 4, 1989. Both memoranda were from Petitioner to Jim Santangelo, Program Coordinator. prior to terminating Petitioner, her superiors determined these memoranda contained false, unsubstantiated statements and/or allegations that Mr. Santangelo was harassing Petitioner. 32. Although the Petitioner’s specific allegations against Mr. Santangelo in those memoranda and his written retorts to her and defenses of himself are complicated, convoluted, and confusing, it is fair to say that this incident was again based on what each one thought the other had said to or about the other one concerning treatment of a particular client and which of them had spoken to a County Commissioner and the Mayor. This was not a reasonable “whistle-blowing" situation wherein Petitioner was persecuted. The evidence suggests merely a daily disagreement on treatment and client protocol. 33. Regardless of who was “right" about what was or was not said or done with regard to this client, Petitioner’s memorandum to Santangelo dated August 4, 1989 is, on its face, intemperate and inappropriate in language and tone to be sent by a subordinate to a supervisor. It was further inappropriate to send copies of the memorandum to others in the chain-of-command, which Petitioner also did. 15 34. Based upon the incidents of July 23rd and July 25th and the memoranda noted above, Petitioner was provided a notice of proposed disciplinary action on August 15, 1989, proposing termination. Petitioner refused to sign the form to acknowledge receipt. Thereafter, on August 29, 1989, Walter Byrd, Corrections Director, held a hearing concerning the proposed disciplinary action with Petitioner and Petitioner’s attorney present. Thereafter, Department of Corrections Director Byrd reviewed all the information that had been collected, compared it with the charges, and made the decision that termination was the appropriate action. 35. Mr. McCluney, a black male, testified that he had heard many racist and malicious statements between August 1986 and May 1988, while he was employed at Metamorphosis. He said that a white male Drug Counselor I named Robin Robinette called him a "f------ nigger" and told racially offensive jokes at his expense. Robinette also allegedly made insensitive, gender biased statements about women clients’ "periods being on" if they complained about Robinette "causing racial tensions." When shifts changed, Mr. McCluney also twice found extremely opprobrious black-stereotype caricatures on a blackboard with the figures labelled with his and Petitioner’s names. He believed Robin Robinette was responsible for these even though Robinette denied it and blamed the clients. Robinette was Mr. McCluney’s superior but he had no authority over Petitioner, who was Robinette’s female counterpart Drug Counselor I. Mr. McCluney complained about Robinette to James Whitaker, his and 16 Petitioner’s first level white male supervisor. Upper management sent out memoranda commanding that there be no more racial slurs, put Mr. McCluney was not satisfied. He wanted Mr. Robinette to be formally disciplined. Jim Santangelo testified that he had issued a warning to Robinette for the sexual remark and made him publicly apologize. 36. Petitioner testified that no white male was formally disciplined for the same named offenses for which she was eventually terminated, but she was unable to demonstrate a reasonable comparison between her overall disciplinary record and that of any other employee. She did not testify concerning any racial or sexual slurs, jokes, or cartoons. 37. Mr. Whitaker, a white male, was married to a black woman named Sandra. Mr. McCluney took it as a racial slur that Mr. Whitaker said Sandra had thieves, drug addicts, and pregnant teenagers on her side of the family when he never said such problems existed on his own side of the family. Mr. McCluney also objected to all employees using the expression, "we have to get that street out of them," in relationship to shaping up client behavior, if the client being referred to were black. Mr. McCluney also complained that he never heard anyone say of white drug addicts, twe have to get the country out of them." He felt blacks should be allowed to wear hats inside if whites were allowed to wear cowboy poots, because both were cultural affectations. Mr. McCluney’s reactions to these comments was oversensitive. It is hard to assign racial prejudice against blacks to one whose spouse is black. Mr. McCluney also did not 17 know whether Mr. Whitaker, indeed, had any similar social problems among his white relatives. Many people, regardless of race, would not look favorably on a man wearing his hat in a house or during a job interview, and black or white persons who always speak in "street" slang are less likely to be employable than those who use good English. Among other things, Metamorphosis was designed to make recovering drug addicts employable. 38. Mr. McCluney was fired from Metamorphosis and his evidence was tainted by the animosity he demonstrated over that incident. 39. However, one incident related by Mr. McCluney does appear to have had overtones that could not be described as "harmless." On one occasion, Mr. Santangelo lost patience with Mr. McCluney in a staff meeting and called him a "f--~-~-- junatic." Mr. McCluney claimed that Mr. Santangelo was also referring to Petitioner with that comment. Petitioner did not testify herein that this remark was ever made directly to her. It also was not shown how such a remark was specifically racially or sexually opprobrious, rather than simply being personally offensive. Mr. McCluney admitted that Mr. Santangelo came to Mr. McCluney on his own the very next day and apologized. An internal EO investigation did not find sexual or racial discrimination as a result of Mr. Santangelo’s comment even if it had been made to Petitioner and Petitioner admitted in that investigation that Mr. Santangelo had apologized to her. 18
Conclusions FOR PETITIONER: Bruce M. Smith, Esquire - Post Office Box 450 Gainesville, Florida 32602 FOR RESPONDENT: Mary Marshall, Esquire and Robert C. Ott, Esquire Post Office Box 2877 Gainesville, Florida 32602-2877
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order that the Petition be dismissed. 22 DONE and ENTERED this if aay of August, 1992, at 1 Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Divisign of Administrative Hearings this ai) aay of August, 1992. NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You shoulda consult with the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order Should be filed with the agency that will issue the final order in this case. Copies furnished to: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire and Robert Cc. Ott, Esquire Rlachua County Attorney’s Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 23 APPENDIX TO RECOMMENDED ORDER CASE NO. 91-0007 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties’ respective proposed findings of fact (PFOF): Petitioner's Respondent’s PFOF: All of Petitioner's Respondent’s proposals are accepted in substance, but they have been modified to eliminate unnecessary, subordinate, or cumulative material, and to eliminate any fact proposed only upon uncorroborated hearsay or material not admitted in evidence, and to eliminate any proposal supported only by legal argument. Respondent+s Petitioner’s PFOF: Respendent Petitioner waived filing posthearing proposals. 24
The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for his filing of a national origin discrimination complaint with the Florida Commission on Human Relations on August 17, 1988.
Findings Of Fact The Southland Corporation, d/b/a Southland Distribution Center, is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Guillermo A. Barbosa was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately sixteen (16) years. The Division of Administrative Hearings has jurisdiction over the subject matter of these proceedings and the parties involved. All procedural prerequisites and requirements have been duly accomplished or satisfied. The Petitioner, Guillermo A. Barbosa, is fully competent to represent himself on a pro se basis. He exhibited clear understanding of the procedural requirements at the formal hearing and the legal import of his burden of proof on his claim of an unlawful practice against the Respondent. Petitioner exhibited comprehension of the English language, both spoken and written, and exhibited fluency in the speaking of English in the interrogation of witnesses at the formal hearings. Respondent, The Southland Corporation, d/b/a Southland Distribution Center, functions as a warehousing and distribution complex for a number of commercial customers including 7-Eleven convenience stores and restaurant chains such as Steak & Ale, Bennigan's, TGI Friday's, Krystal and others. In order to service its regional territory of four states, it employs approximately 630 employees in a large 440,000 square foot warehousing facility located on Sand Lake Road in Orlando, Florida. Respondent's warehouse operates 24 hours a day five (5) days per week. Respondent's work force stores a variety of goods and products and, upon order or request from a given customer or account, selects the indicated goods, packs them in appropriate containers and loads the order on tractor trailer rigs for transport and delivery to the final destination point. The Respondent places great emphasis upon the importance of time and schedules. Timely reporting for work and attendance as scheduled is emphasized by the Company so that the closely integrated operation of the complex can be maintained with efficiencies of labor and close coordination of schedules between warehouse operation, the transportation link and the store hours of the customer. The policies, procedures and work rules of the Company provide incentive programs to reward employees who report to work as scheduled in a prompt and consistent manner. Conversely, through its work rules, the Company provides that employees who demonstrate a pattern of tardiness or absence may be disciplined or discharged. For these same reasons, the work rules published to the employees and acknowledged by each worker also stress that a failure to report to work when directed or as scheduled for a period of 48 hours (no show/no call) will result in automatic termination of employment. The Respondent views employee reliability for reporting to work as scheduled and on time as a fundamental condition of employment. On August 11, 1988, Petitioner reported an on-the-job injury and was relieved of duty and, under directions from the Respondent's occupational health nurse, treated by an outside physician. On August 17, 1988, while on the medical leave of absence due to the work-related injury, Petitioner filed a discrimination charge alleging denial of transfer or promotion due to his national origin. A notice of the charge of discrimination was directed to the attention of the Personnel Manager of the Respondent and was received on September 7, 1988. On Friday, September 16, 1988, Petitioner was released by the treating physician and given "return to work orders" instructing him to return to work without restrictions. The following work day, Monday, September 19, 1988, the Petitioner resumed his normal duties and work routine. However, after approximately one to one and one half hours of work, Petitioner reported that he had either re- injured himself or had aggravated the prior injury for which he had been treated. The Respondent again placed Petitioner on medical leave of absence due to the work-related injury and directed him for treatment to the outside physician. On Friday, September 30, 1988, Petitioner was again released by the treating physician without limitations or restrictions and given instructions to return to work. On the next workday, Monday, October 3, 1988, Petitioner failed to show up at his scheduled time. After being absent without authority or explanation for five consecutive work days, the Warehouse Manager, Mr. Julius Dix, mailed a letter to Petitioner. The letter explained that pursuant to Rule 12 of the Company's "working conditions", specifically failure to report to work as directed and being absent without explanation or authorization for five consecutive work days, the Company was placing Petitioner on suspension pending further review. Although dated October 5, 1988, the letter drafted by Mr. Julius Dix was actually written and sent on Friday, October 7, 1988. However, the date of the letter was made retroactive to the actual point of job abandonment pursuant to the so-called "48- hour rule". On October 17, 1989 Petitioner mailed a copy of a medical form from an outside physician indicating that Petitioner had been disabled from working from October 13 to October 25, 1988. It was received by an employee of Respondent on October 19, 1988. A similar form was mailed October 26, 1988 and received on October 28, 1988. There was no letter or personal explanation accompanying the medical form. Petitioner stated that upon being released by the treating physician, he contacted the Warehouse Manager, Mr. Julius Dix, and upon explaining that his injury continued to disable him from returning to work, was given permission to continue on medical leave and seek treatment by another physician. However, Mr. Dix testified that he had never given such permission or directions, nor had he received any communications or contact from Petitioner on Friday, September 30, or during the subsequent week. The more credible testimony is that Petitioner made no communication with his employer during the week of October 3, 1988. Following corporate review, required for long-term employees, Petitioner's employment was formally terminated for violation of the "48-hour rule" (no show/no call) under a subsequent letter from Mr. Julius Dix dated October 25, 1988. On November 8, 1988, Petitioner filed a charge of discrimination alleging retaliation. The Petitioner's work history demonstrates his knowledge of the 48- hour rule and prior compliance under similar circumstances. The 48-hour rule of Respondent has been applied in a consistent and uniform manner to a substantial number of other employees during a period of time immediately prior to the action taken with regard to the administrative termination of Petitioner's employment. The administration of this rule by the Company has resulted in termination of the non-complying employees.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That a Final Order be issued which denies the Petition for Relief. DONE AND ENTERED this 17th day of November, 1989, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1989. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner did not file proposed findings of fact. Respondent's Proposed Findings of Fact: Paragraphs 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 (sic) -- accepted in substance. Paragraphs 7 and 8 -- rejected as not relevant. COPIES FURNISHED: Guillermo A. Barbosa Dana Baird 854 Long Bay Court General Counsel Kissimmee, Florida Human Relations Commission 325 John Knox Road Thomas C. Garwood, Jr., Esquire Building F, Suite 240 Garwood and McKenna, P.A. Tallahassee, FL 32399-1925 322 East Pine Street Orlando, Florida Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner based on her race in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is an African-American female. Respondent initially hired Petitioner through a temporary labor service. Petitioner worked for approximately 60 days as a temporary employee in the position of a medical transcriptionist preparing medical chronologies. At the end of the 60-day period, Respondent decided to eliminate Petitioner's position. Petitioner decided to enhance her career opportunities by applying for a position as a paralegal with Respondent. In a letter dated June 19, 1996, Petitioner expressed her interest in working for Respondent as a full-time employee. According to the letter, Petitioner had worked for over 20 years as a secretary/administrative assistant, including some experience in the areas of management and supervision. The letter, together with Petitioner's resumé, indicated that she had experience as a legal secretary. In a letter dated August 26, 1997, Respondent offered Petitioner a job as a paralegal. Petitioner accepted the offer. Randy Fischer, Esquire, explained the duties of a paralegal to Petitioner and gave her a copy of a paralegal's job description. The duties included, but were not limited to, the following: (a) drafting pleadings and correspondence; (b) drafting discovery requests; (c) organizing files and preparing file indexes; (d) investigating cases; (e) scheduling depositions; (f) attending document productions, exhibit exchanges, and pretrial conferences; and (g) assisting in legal research. Respondent gave Petitioner an employee handbook. The handbook included, among other things, information about attendance, discipline, and the firm's anti-discrimination policies and procedures. Petitioner also received a paralegal manual and billing guidelines. Respondent's anti-discrimination policy communicated to employees that sexual harassment, racial discrimination, or any other type of discrimination would not be tolerated. Respondent had an "open door" policy by which employees could report discrimination to the office manager or the office-managing partner. At all times material here, Mr. Fischer was the office-managing partner, and Janet Siefert was the office manager. Petitioner never took advantage of the opportunity to report any alleged racial discrimination to anyone on Respondent's staff. From the beginning of her employment as a paralegal, Mr. Fischer communicated to Petitioner that she would be expected to schedule, coordinate, and calendar activities for attorneys. He frequently was critical of Petitioner's performance because she failed to meet these expectations. There is no persuasive evidence that Mr. Fischer's criticisms were racially motivated. Respondent regularly provided written performance evaluations of employees. Petitioner's first review took place in December 1997. The evaluation indicated that Petitioner's attendance or dependability and teamwork were "highly acceptable." Her performance in oral expression, writing ability, decision-making ability, work product accurateness, and work product volume was "acceptable." Petitioner "needed to improve" in the following areas: (a) knowing subject matter; (b) analyzing problems; (c) obtaining information; (d) meeting deadlines; (e) performing assignments resourcefully and creatively; (f) recording billable time; (g) showing initiative; and (h) following through on assignments. Petitioner's overall rating on the evaluation was "acceptable." During the evaluation, Mr. Fischer counseled Petitioner about her job deficiencies. He particularly discussed Petitioner's need to follow appropriate guidelines for billing. This was important because Respondent routinely had to reduce Petitioner's excessive billing time in some areas. There is no persuasive evidence that Petitioner was singled out in terms of having billing time entries removed from the timesheets. In February 1998, Petitioner began having problems with her attendance and low work productivity. A written disciplinary action dated February 11, 1998, outlined the following deficiencies: (a) inattention to detail in handling files by failing to schedule the continuation of a deposition; poor performance in handling the Angela Davis file; leaving the building during work hours without proper authorization; (d) being late for work on numerous occasions; and (e) taking numerous personal absences. Regarding the Angela Davis file, Petitioner's failure to follow instructions adversely affected Mr. Fischer's handling of the file. Mr. Fischer became angry because it took Petitioner two hours to drive from Ocala, Florida, to Gainesville, Florida, with only a portion of the Angela Davis file that he had requested. However, there is no evidence that Mr. Fischer's anger was racially motivated. Petitioner admits that she occasionally left the building during her work breaks to go to the bank or for other personal reasons instead of spending that time in the employees' break room. She asserts that she did not know she had to have permission to do so and that she had to sign in and out. According to Petitioner, other employees were allowed these privileges without being reprimanded. Petitioner's testimony in this regard is not credible. Petitioner admitted during the hearing that her attendance record was problematic due to personal problems. On at least one occasion, Mr. Fischer agreed to let Petitioner make up some of the time she had lost. There is no persuasive evidence that Respondent's attendance policy was applied more rigidly to Petitioner than to any other employee. More importantly, Petitioner admitted that she was not qualified to perform all of the duties of a paralegal when she accepted the position. It is clear that she had difficulty learning "on-the-job." On February 20, 1998, Mr. Fischer wrote Petitioner and another paralegal a note regarding the importance of pulling a file together and following directions. Mr. Fischer had gone to mediation without the necessary file documents because Petitioner and her co-worker had not followed his directions. On March 12, 1998, Mr. Fischer reminded Petitioner and another paralegal about the importance of providing him with daily timesheets in a timely manner. Petitioner and her co-worker were at least a week behind in providing him with their timesheets. On March 26, 1998, Petitioner used the firm's copy machine and other supplies for personal reasons. On April 8, 1998, Petitioner was late to work due to a flat tire. In May 1998, Petitioner requested a more flexible work schedule so that she could attend class in Orlando, Florida, one afternoon each week. Mr. Fischer responded that her billing hours were already low and that she was routinely late to work. However, Mr. Fischer agreed to give her the time off for a 30-day period if she documented her time at the office, improved her productivity, and billed a minimum of 25 billed hours per week. In June 1998, Mr. Fischer had to remind Petitioner again about the importance of keeping calendars for the attorneys. Because Petitioner failed to follow instructions, no attorney from Respondent's office attended a scene viewing. In July 1998, Mr. Fischer sent Petitioner an e-mail message criticizing her for not properly issuing a subpoena and deposition notice. When he realized that Petitioner was not at fault, he promptly apologized in a subsequent message. On August 18 and 19, 1998, Petitioner received two personal facsimile transmissions at the office. On August 25, 1998, Mr. Fischer gave Petitioner a written disciplinary action and placed her on probationary status. The discipline was based on the following reasons: (a) Petitioner had been out of the office for various personal reasons 31 times in the last 90 days; (b) Petitioner had provided Respondent with inaccurate or incomplete reasons for those absences; (c) Petitioner's productivity was below office standards; (d) Petitioner had failed to properly schedule activities and calendar events for an attorney; (e) Petitioner had failed to follow repeated instructions in relation to file handling, scheduling depositions, and scheduling meetings; (f) Petitioner had used firm time to receive and review personal facsimile transmissions, to discuss personal information, and to participate in personal telephone calls; and (g) Petitioner had inappropriately used firm resources. On September 16, 1998, Mr. Fischer gave Petitioner another written disciplinary action. The memorandum outlined continued problems with Petitioner's performance. One example of Petitioner's poor performance involved her failure to properly arrange for a deposition. Other examples involved excessive billing for making summaries of records; the lack of time billed for other case activities, such as setting and noticing depositions and hearings; failure to resolve unpaid costs on a case; and modification of timesheets after they had been edited. The September 16, 1998, disciplinary action also reviewed continued problems with Petitioner's attendance and attitude. Respondent's paralegals are required to bill 100-105 hours per month. Some examples of Petitioner's billing hours are as follows: (a) March 1998, 97.3 hours; (b) April 1998, 58.9 hours; (c) May 1998, 74.3 hours; and (d) June 1998, 69.7 hours. Respondent fired Petitioner on September 25, 1998. Her termination was based on cumulative reasons, including low productivity, failure to be attentive to detail in the handling of files, and frequent absences and tardiness. During the time that Petitioner worked for Respondent, Mr. Fischer fired Robin Carr, a white female, for similar reasons that Petitioner was terminated: excessive absences, inappropriate use of personal time in the office, and excessive personal telephone calls. Mr. Fischer also fired Art Monig, a white male, for low work productivity. Ms. Carr and Mr. Monig both worked as paralegals. Petitioner testified that, on one occasion, Ms. Carr and other employees were in the employees' break room discussing the turnover of staff in the office. Petitioner testified that Ms. Carr made the statement that Petitioner did not have to worry about losing her job because she was a "token." In the Petition for Relief, Petitioner alleges that Ms. Seifert made this comment. Ms. Carr did not testify at the hearing but Ms. Seifert did testify and denies making such a statement or ever hearing it made. Similarly, Jennifer Whitehead, who was Mr. Fischer's secretary from February 1997 through May 2001, testified that she never heard anyone in the office make a statement that Petitioner was a "token" or a "quota." Nevertheless, Petitioner's testimony in this regard is persuasive. Petitioner admits that she never reported the statement allegedly made by Ms. Carr to anyone in Respondent's office. She admits that Mr. Fischer never made inappropriate racial comments in her presence. Mr. Fischer's dissatisfaction with Petitioner's performance may have caused Petitioner to be uncomfortable from time to time, but there is no evidence that his reactions to her poor performance were racially motivated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of May, 2003, in Tallahassee, Leon County, Florida. 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 23rd day of May, 2003. COPIES FURNISHED: Dorine Alexander 1421 Southwest 27th Avenue Apartment No. 1807 Ocala, Florida 34474 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy Fischer, Esquire Boehm, Brown, Fischer & Harwood, P.A. Post Office Box 4140 Ocala, Florida 34478 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner was first employed with the State of Florida, Department of Management Services, Division of Facilities Management, Bureau of Maintenance (DMS), in 1979 or 1980. Her date of retirement was February 19, 1993. Petitioner graduated from Florida A&M high school and attended Florida A&M University for approximately one and one-half years. Between 1950 and 1979 or 1980, Petitioner was primarily a homemaker but also worked in various clerical positions until starting work with the Department of Management Services as a custodial worker. Petitioner began working as a custodial worker at the Twin Towers Building in Tallahassee, Florida. In that capacity, Ms. Lewis was responsible for dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. During her tenure at the Twin Towers Building Ms. Lewis received the following discipline: Oral reprimand for excessive absenteeism, on September 20, 1982. Written reprimand for excessive absenteeism; on September 15, 1983; and Suspension for three workdays for the third offense of excessive absenteeism on September 5, 1984. Additionally, around April 30, 1985, the building superintendent at Twin Towers gave Ms. Lewis a memorandum of concern about her absenteeism. Around April 23, 1987, she was given a memorandum of concern about tardiness in reporting to work because she had been late to work twelve times in the three month period prior to the memo. Ms. Lewis seemed to improve her daily attendance at work but, the problem of tardiness to work continued. Petitioner began working as a night shift custodial worker at the Capitol in May of 1988, when she was transferred from the Twin Towers Building. The transfer was necessary because all of the full-time custodial positions at the Twin Towers Building were changed to halftime positions. DMS custodial workers at the Capitol on the night shift were responsible for cleaning of the public areas and offices of the capitol complex, including dusting, vacuuming, trash removal, and spot cleaning furniture, walls and doors. Generally, four employees work as a team to quick clean certain areas and do more thorough cleaning in other areas each night as assigned by that shift's custodial supervisors. All members of the general cleaning teams were expected to arrive at work at 5:00 p.m. and work until 1:00 a.m. The lunch break was considered work time for the employees and was therefore paid. Upon joining the custodial workers at the Capitol, Ms. Lewis was assigned the task of dusting the historic capitol building. Her performance appraised by Tommy Denis, Custodial Supervisor III, indicated that she was a good worker with attendance and tardiness problems. Eventually, Petitioner, at her request, was moved to work with a team on the plaza level at the Capitol. Her duties consisted of dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. She continued to receive good appraisal ratings with the problems of attendance and tardiness noted. Another change in duty assignment placed Ms. Lewis with a team working on multiple, upper floors of the Capitol. Her principal duty continued to be dusting with occasional vacuuming and emptying of small office trash cans which weighed less than 10 pounds into large trash containers on wheels. Ms. Lewis reported to her doctor that she was assigned the duty of dusting. Petitioner testified she could empty the small office trash cans. Ms. Lewis was not assigned to lift recycle paper and not assigned to pull bags of trash out of the large trash barrels on wheels. Additionally, Ms. Lewis, along with other custodial workers were instructed not to lift anything that was too heavy and to call for help when such a situation was encountered. At some point in her employment, Ms. Lewis injured her back while lifting trash. Because of the injury she experienced recurrent pain in her right leg and lower back. In August of 1989, Ms. Lewis had surgery for her back problem. Soon after the surgery in September of 1989, Ms. Lewis fell out of bed onto her hip. The fall delayed her in recovering from the surgery mainly due to new pain in her hip. The pain for which she had the surgery was absent. However, Ms. Lewis did not communicate with DMS regarding her status and her ability to return to work. Since her medical condition was unclear to Building Superintendent Boynton, he requested the assistance of the Bureau of Personnel Management Services. Bureau Chief Dave Fulcher wrote Ms. Lewis to ascertain her status. She solicited her surgeon, Dr. Geissinger, to respond to Mr. Fulcher. Dr. Geissinger evaluated the duties of the position held by Ms. Lewis from her position description. On November 30, 1989, Dr. Geissinger wrote Mr. Fulcher that Ms. Lewis could be expected to perform the duties of her position. Dr. Geissinger also attached a copy of his office notes dated 11/30/89, which indicated Ms. Lewis still experienced some pain but that she was not in acute distress. In November 1989, Dr. Geissinger did not specify "light duty" for Petitioner but at other times, Dr. Geissinger and other doctors specified a weight limit for Petitioner's lifting. The suggested limits did not exceed the lifting requirements of Petitioner's position. Dr. E. E. Lowder sent the last "light duty" restriction for Ms. Lewis. He limited her lifting to 10 - 15 pounds and indicated that her release from doctor's care was pending. Importantly, there was no evidence which indicated that Petitioner's back problem amounted to a condition which impaired any major life function of Petitioner. Moreover, there was no evidence that DMS perceived Petitioner's back problem as a handicap. In fact, the evidence presented at the hearing demonstrated Petitioner's condition was not a handicap and was not perceived as such by her employer. During the six month period from 5/8/92 to 11/5/92, Ms. Lewis was tardy 46 times by eight minutes or more. During the eight month period from 6/20/90 to 2/28/91 Petitioner was tardy 46 times. Following 2/28/91, Ms. Lewis was tardy at least 5 more times. On April 11, 1991 Ms. Lewis received an oral reprimand for her tardiness. Ms. Lewis was again tardy two more times and received a written reprimand for excessive tardiness on May 7, 1991. Later, Petitioner received a three workday suspension for tardiness which was served on January 12, 13, and 14, 1993. Ms. Lewis did not deny that she had been tardy. Other employees, males and females, were disciplined for excessive absenteeism and tardiness. After the suspension was served in January, 1993, Ms. Lewis was tardy 15 times in the next 18 days, nine days of which were 8 minutes or more. The fact that some of the days Petitioner was late were for less than seven minutes does not eliminate the tardiness. DMS rules on the subject only address when an employee's wages can be docked for such lateness. Since Ms. Lewis continued to be tardy, Allen Dallis, Maintenance Supervisor, initiated the first step of a recommendation to dismiss Ms. Lewis for continuing tardiness. Ms. Lewis gave reasons for being tardy which included, being stuck in traffic, doctors' appointments, her ride to work being late, caring for her grandchildren, and sickness of her daughter. Often she was late simply because, for unknown reasons, she waited outside her place of employment before coming into work. At no time in the disciplinary process leading up to the suspension or after the suspension did Ms. Lewis assert that she was being singled out due to her sex or handicap. In fact, Ms. Lewis would not talk with her supervisors about her tardiness or her assignments. In general Ms. Lewis did not communicate well with her supervisors and had formed the habit that if they said something to her, she would walk off and not respond. Generally, Ms. Lewis did not notify her supervisors ahead of time that she would be tardy even though she knew in advance when her tardiness might occur. She occasionally called Mr. Rivers, a custodial supervisor, on the same day that she would be tardy to tell him she would be late. Mr. Rivers was not available for calls until 5:00 p.m. each day after the shift had begun. Occasionally, Ms. Lewis would advise her supervisors the evening before that she would be late the next day. After July 12, 1990, Ms. Lewis received leave without pay (LWOP) when she was more than seven minutes tardy and she had not brought in medical certification. Tardiness of custodial workers presented problems in scheduling the work because the workers were organized in teams whose members moved together doing their tasks. If one of the usual team members was absent or late at the beginning of the shift, the supervisors would organize the employees who were present into different teams in order to try to cover all areas with the available workers and have no one working alone. Frequently it was not evident whether Ms. Lewis was tardy or absent for the evening. Ms. Lewis asked that if she were tardy in reporting to work, she be allowed to make up the amount of time she had been tardy on the same night. She did not request a change in her schedule. Her choice of make up time was during the lunch break when her time was already counted as work-time, or after 1:00 a.m., when all workers and supervisors were gone from the building. The request was denied because a daily schedule which changes as the employee chooses would not fit the staffing organization of the custodial work force in the Capitol. Additionally, a worker could not stay in the Capitol past the end of the shift at 1:00 a.m. with no supervisors present. No employee was permitted to adjust their daily schedule in such an unpredictable manner. A few years ago, Dunk Chambers, at the time a custodial worker on a floor team, and Johnny Pease, at the time a Custodial Supervisor I, had flexible schedules in which they reported to work at 5:30 p.m. each day except Wednesday. On Wednesdays they reported to work early enough to make up time missed during the week. These schedules were predictable and set well in advance. Currently, Mr. Chambers, Custodial Supervisor II, and Mr. Pease, Custodial Supervisor III, currently follow the regular night shift schedule. Presently, two female custodial workers at the building where Tommy Denis is supervisor, follow a schedule in which their arrival and departure from work is different from that of other employees. Again these schedules are predictable and are set well in advance. The denial of Ms. Lewis' request to make up time when she was tardy was not due to a medical condition, handicap or sex. At least one other female employee who had no medical problem was disciplined for excessive tardiness to work. Allen Dallis asked Ms. Lewis if she wanted to work part-time as a suggestion of a possible change that would enable her to report to work on time, but she walked off with no answer. The option of retirement was offhandedly mentioned to her also. During these conversations, there was no coercion, duress, misinformation or deception by the supervisors and there was no indication that Ms. Lewis was in any way harassed by her supervisors. During her tenure with DMS, Ms. Lewis did not present any medical justification for nor request any specific accommodation for her back problems other than temporary light duty for a condition from which she would soon be released. The evidence was very clear that Petitioner was only doing light duty work which work could not be lightened further. Finally, there was no evidence that Petitioner was subjected to any discrimination based on sex or handicap. Finally, the evidence did show that Petitioner's discipline was justified, that she was not constructively discharged, and that Petitioner chose to retire in February 1993. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that she was discriminated against because of her sex or handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE and ORDERED this 30th day of November, 1994, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 30th day of November, 1994. APPENDIX TO DOAH CASE NO. 94-3996 The facts contained in paragraphs of 1, 2, 4, 5, 6, 7, 8, 9, 10, 11, 12, 16, 17, 18, 19, 20, 22, 23, 34, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 44, 45, 46, 47, 48, 49, 52, 54, 55, 57, 60, 62, 63, 64, 65, 66 and 68 Respondent's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3,,, 13, 14, 15, 21, 25, 39, 40, 41, 42, 43, 50, 51, 53, 56, 58, 59, 61, 67, 70, 71, 72 and 73 of Respondent's proposed findings of fact are subordinate. The facts contained in paragraphs 4, 5, 6, 7, 10, 14, 43, and 44 of Petitioner's proposed findings of fact are adopted in substance insofar as material. The facts contained in paragraphs 3, 9, 11, 18, 13, 18, 20, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35, 40, 45, 46 and 47 of Petitioner's proposed findings of fact are subordinate. The facts contained in paragraphs 8, 15, 16, 17, 19, 21, 28, 36, 37, 38, 39, 41 and 42 of Petitioner's proposed findings of fact were not shown by the evidence. COPIES FURNISHED: Joan Van Arsdall Department of Management Services Suite 309 Knight Building 2737 Centerview Drive Tallahassee, FL 32399-0950 Marie Mattox 3045 Tower Court Tallahassee, FL 32303 Helen Burgess AFSCME Florida Council 79 345 South Magnolia Drive Suite A-13 Tallahassee, FL 32301 Ms. Sharon Moultry Clerk Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Florida Commission on Human Relations Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
Findings Of Fact Respondent contracted to build a gymnasium and a science research center on the campus of Florida Technological University. petitioner was among the people respondent hired to perform this contract, which had project number BR-FTU-172. Petitioner began working for respondent on or about January 12, 1976. At that time, respondent's agent Ward hired petitioner as a carpenter's helper with the understanding that petitioner would be paid at the laborers' rate of five and thirty hundredths dollars ($5.30) per hour. The prevailing wage for carpenters on project number BR-FTU-172 was eight and thirty-five hundredths dollars ($8.35) per hour. As reflected in their respective proposed recommended orders, the parties are in agreement that petitioner worked for respondent doing carpentry from March 31, 1976, until his employment ended, and it is so found as a fact. From March 31, 1976, until petitioner left respondent's employ, petitioner worked as a carpenter for one thousand five hundred eighty-three hours during regular working hours and for ten and a half hours overtime. At the same time that petitioner was hired, one Lester Dove was hired as a carpenter. Petitioner worked with Lester Dove as a carpenter's helper for their first full two weeks on the job, at the end of which Lester Dove was laid off. Petitioner helped Lester Dove erect wooden forms for the pouring of concrete columns. Afterwards, he continued to work at erecting wooden forms for concrete columns. The forms consisted of two plywood halves, approximately sixteen feet long and weighing approximately one hundred pounds each. It took more than one man to stand the forms upright. After the forms were in place, they had to be clamped together Carpenters built the column forms on the job site, but outside the building under construction. Petitioner worked inside, placing the forms in position. Sometimes the forms had to be shortened or otherwise altered "right there on the floor, not back at the saw." Testimony of Carlo Rinaldi. Generally, however, it was a matter of transferring measurements from blue- prints to the floor, nailing a template to the floor, fitting the form halves together around the template, clamping the form together, then checking to make sure the column was plumb and the corners were square. After Lester Dove's departure, petitioner, Ralph Pierson, whom respondent hired as a carpenter, and one Carl, whom respondent hired as a laborer, worked together as a team erecting forms for pouring the concrete columns through March 30, 1977. During this time petitioner worked not as a carpenter, but as a carpenter's helper, paid at the prevailing rate for laborers. For the entire time petitioner worked for respondent, he was paid at the rate for laborers. STATEMENT REQUIRED BY STUCKEY'S OF EASTMAN, GEORGIA v. DEPARTMENT OF TRANSPORTATION, 340 So.2d 119 (Fla. 1st DCA 1976 Paragraph one of respondent's proposed findings of fact has been adopted, in substance, as has been paragraph two of respondent's proposed findings of fact. Petitioner's testimony was that he worked for respondent from mid-January 1976 to mid-January 1977. Petitioner's composite exhibit No. 1 contains xeroxed reproductions of 49 paycheck stubs. Petitioner's affidavit alleges that he worked a total of 2,031 3/4 hours during regular working hours. Respondent, in paragraph five of its proposed findings of fact, concedes that petitioner worked 1,583 1/2 hours during regular working hours from and after March 31, 1976. Between January 12, 1976, and March 30, 1976, inclusive, there were 57 working days, or 456 working hours. Adding 456 to 1,583 1/2 yields 2,039 1/2. Thus the parties are only eight and one quarter hours, or approximately one working days apart and it is respondent who gives petitioner credit for the longer total work time. Petitioner claims more work time before March 31, 1976, than respondent concedes, but respondent's proposed finding of fact as to the starting date is more favorable to petitioner. Paragraph two of petitioner's proposed findings of fact has been adopted, in substance. Paragraph three of petitioner's proposed findings of fact has not been adopted because the testimony as to general carpentry, as opposed to erecting column forms, did not go to "the entire period of employment." Paragraph four of petitioner's proposed fact findings has not been adopted, either as to regular hours or as to overtime hours. Respondent's concession of ten and a half hours overtime has been accepted as true. Paragraph five of petitioner's proposed findings of fact has been adopted, in substance. Paragraph one of respondent's proposed findings of fact has been adopted, in substance. Paragraph three of respondent's proposed findings of fact has been adopted, in substance. Petitioner as much as conceded that he worked as a carpenter's helper or laborer until Dove left. After that, until the end of March, he continued doing essentially the same work. The hearing officer was faced with the question whether the three man team putting up column forms consisted of a carpenter and two helpers or a helper and two carpenters. Petitioner did not meet his burden to show that he was one of two carpenters rather than one of two helpers. Paragraph four of respondent's proposed findings of fact has been adopted, in substance, except that no findings have been made as to the date of petitioner's first written claim to respondent or as to the contents of respondent's bookkeeping records, because no evidence was adduced on these matters. Paragraph five of respondent's proposed findings of fact has been adopted, in substance.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority pay petitioner the sum of four thousand eight hundred seventy-seven dollars and seventy-one cents ($4,877.71). That the contracting authority pay respondent the balance of moneys heretofore withheld, pursuant to Section 215.19 ()(b) Florida Statutes (1975), with respect to project number BR-FTU-172. DONE and ENTERED this 28th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. T. M. Woods, Esquire Suite 1465, CNA Tower 255 South Orange Avenue Orlando, Florida 32801 Mr. Bromley Dyson Dyson and Company Post Office Drawer F Pensacola, Florida 32581 Mr. Patrick G. Emmanuel, Esquire Post Office Drawer 1271 Pensacola, Florida 32596 Mr. Jack C. Koons Department of General Services 512 Larson Building Tallahassee, Florida 32304 Mr. Luther Moore Administrator of Prevailing Wage Department of Commerce Division of Labor 1321 Executive Center Drive - East Tallahassee, Florida 32301
