The Issue The issues in this case are whether former Hillsborough County Administrator Patricia G. Bean (Respondent) violated section 112.313(6), Florida Statutes (2011),1/ and, if so, what penalty, if any, should be imposed.
Findings Of Fact Beginning in 2003, and at all times material to this case, the Respondent was employed as the county administrator for Hillsborough County, Florida. In Spring 2006, various departments of the Hillsborough County government were engaged in reviewing their responsibilities and developing proposals to increase efficiencies and reduce costs for upcoming budget years. An "executive team" of county employees met periodically to determine which of the proposals met or exceeded efficiency goals that were targeted towards reducing costs while maintaining services. In the Summer or Fall of 2006, the Respondent, Deputy County Administrator Walter Hill, and County Budget Director Eric Johnson began to discuss ways to encourage and reward department directors who met efficiency goals. At that time, the county government had three existing "award" options that could be used to reward employees for exceptional service. One award consisted of a paper certificate called the "Extra Mile Award." There was no monetary gain associated with receiving an "Extra Mile Award." The second award (the "Productivity Award") included a monetary bonus and was available to most employees (with some exceptions) for exceptional performance. The third award was the "Discretionary 1% Merit Increase" available to senior management employees. This award consisted of a one percent "merit" salary increase over and above any regular pay raise that the employee would have received. The Respondent, along with Deputy County Administrator Hill and County Budget Director Johnson, decided to use the "Extra Mile Award" and the merit salary increase to reward department directors who met efficiency goals. The Respondent was responsible for the final determination as to which employees would receive awards. The "Extra Mile Certificate" awards were announced at a budget "kick-off" meeting on the morning of February 1, 2007. After the meeting, the Respondent issued a written congratulatory memo to each employee who received a certificate. She also used the memo to notify those employees who had been awarded the salary increase. The Respondent's department met the efficiency goals. At the time of the budget kick-off meeting, the Respondent believed that her employment contract with Hillsborough County precluded her from accepting it, and she excluded herself from the salary increase. The Charter of Hillsborough County provided that the "compensation" for the county administrator "shall be fixed by the Board of County Commissioners by ordinance" and that such compensation "may be set by contract if allowed by and pursuant to ordinance." The Respondent's employment contract with Hillsborough County established her initial salary as $179,000. According to Section 6 of the contract, the Respondent was entitled to receive the same "annual market equity increase" provided to "all other unclassified managerial employees of the County." The section also stated that additional salary or benefit increases could be granted by action of the BCC within 60 days of her annual performance evaluation. Hillsborough County Attorney Renee Lee and Director of the Hillsborough County Environmental Protection Commission Richard Garrity also met the efficiency goals, but their employment contracts with the county contained provisions similar to those of the Respondent, and, so, the Respondent excluded Ms. Lee and Mr. Garrity from receiving the salary increase. Both received the "Extra Mile Award" at the budget kick-off meeting. After the meeting had concluded, Ms. Lee sent an email addressed to the Respondent and Deputy County Administrator Hill wherein she asserted that the terms of her contract allowed her to receive "the award." In the email, Ms. Lee cited a provision in her contract that referenced entitlement to "such other benefits" as were made available to other county employees. Although there appears to have been some confusion regarding the names of the awards available to recognize county employees for their performance, it was clear that the reference to the "Extra Mile Award" in Ms. Lee's email referred to the salary increase. The Respondent's employment contract contained language similar to that cited in Ms. Lee's email, whereby the Respondent was entitled to the "benefits" available to other managerial employees in the county. As the county attorney, Ms. Lee reported directly to the BCC and, pursuant to the county charter, was the chief legal advisor for the BCC on all matters of county business, including personnel matters. The Respondent had no managerial authority over the county attorney at any time relevant to this proceeding. There is no evidence that the Respondent discussed the matter with Ms. Lee. After receiving Ms. Lee's email, the Respondent directed Deputy County Administrator Hill to contact Christina Swanson (director of the Employee Benefits Division in the county's Human Resources Department) and ask her to evaluate Ms. Lee's email. Deputy County Administrator Hill apparently did so, and Ms. Swanson thereafter asked Ms. Lee to provide a written legal opinion addressing whether the salary increase could be awarded under the terms of the contracts. On February 2, 2007, Ms. Lee issued a written legal opinion addressed to Ms. Swanson, stating that both Ms. Lee and the Respondent could receive the salary increases under the terms of their respective contracts. Although she had received a law degree, Ms. Swanson had not worked as a practicing attorney. The issues of the whether the salary increases underlying this case constituted a "benefit" of employment with Hillsborough County, and whether Ms. Lee's written legal opinion was correct, are not at issue in this proceeding. After Ms. Swanson received Ms. Lee's written legal opinion, the Human Resources Department processed the forms required to implement the salary increases for the Respondent and for Ms. Lee. The Respondent testified that she discussed the matter with Ms. Swanson after Ms. Lee issued the legal opinion. Ms. Swanson did not recall the conversation. In any event, the evidence fails to establish that the Respondent directed Ms. Swanson, or any other employee in the Human Resources Department, to process the paperwork required to implement the salary increases. On February 7, 2007, George Williams, the director of the county's Human Resources Department, signed the form ("Report of Change of Status"), approving the one percent salary increase awarded to the Respondent. The Respondent's hourly salary rate was increased from $101.82 to $102.84, effective January 7, 2007. The Respondent did not receive a copy of the form. Deb Dahma, a staff member in the Human Resources Department, signed the form approving the one percent salary increase awarded to Ms. Lee. The signature on that form was undated. There is no evidence that the Respondent directed either Mr. Williams or Ms. Dahma to sign the forms. The executed forms were sent to the county's payroll department, and their salary increases were implemented. On February 8, 2007, Ms. Lee authored another email to Ms. Swanson wherein she opined that, upon review of Mr. Garrity's contract, he was also eligible for the salary increase. There is no evidence that the Respondent participated in any effort to award the salary increase to Mr. Garrity, or that he accepted or received the salary increase. Both the Respondent and Ms. Lee accepted the salary increases. The county administrator's staff was responsible for preparation of agendas for BCC meetings. The Respondent participated in the preparation process and could direct placement of items on the agenda. The Respondent did not provide the BCC with an opportunity to consider the salary increases referenced herein and did not seek the explicit approval of the salary increases from the BCC either prior to or after they were implemented. The Respondent believed that the Human Resources Department, which handled personnel matters, would seek any approval of the salary increases required from the BCC, but the Human Resources Department did not bring the matter to the BCC for review. Although the BCC approved the Respondent's salary, including the increase underlying this case, during the Respondent's subsequent performance review, the evidence fails to establish that the BCC was advised that the salary included an increase that had not been approved by the BCC. At some later point, the Respondent's salary increase apparently became a matter of conflict with the BCC, and her salary was reduced to negate the one percent increase. The Respondent reimbursed Hillsborough County for the funds she received through the salary increase. The Respondent's employment as the Hillsborough County administrator was eventually terminated. An investigation of the circumstances of the raise that was conducted by the Florida Department of Law Enforcement resulted in no criminal charges being filed against the Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Ethics enter a final order and public report finding that Patricia G. Bean did not violate section 112.313(6) and dismissing the complaint filed in this case. DONE AND ENTERED this 31st day of May, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of May, 2012.
Findings Of Fact Upon consideration of the relevant oral and documentary evidence, the following facts are found with regard to the issues in dispute. Overall organization. Exhibit No. 5, prepared by the City Manager, is an organizational chart of employees of the City. Excluding the first block of employees under the city commission, the office manager, library director, the police department chief and uniformed officers, the fire department (which consists of volunteers only) and the superintendents of the remaining five departments, there are approximately fifty-two employees of the City. The City Manager is the chief administrative officer of the City, and all employees are ultimately responsible to him. There is a uniform pay grade classification plan throughout the City and all full time employees work a forty hour week, though their actual working schedules may differ. There are two pay schedules. Most employees are paid weekly, though some, including the office manager department, are paid biweekly. Employees receive their pay checks either at the City Hall or the city warehouse, whichever is closer to their place of employment. If an employee desires to wear a uniform, the City pays one-half of the cost of such uniform. Office manager department staff. There are nine staff members of the office manager department who are hired and fired by the office manager. The basic function of this department is finance and accounting, and the employees do basically clerical type work.. Typical responsibilities of this department include preparation of the payroll, collection of utility bills, payment of bills for purchase and supplies, and record-keeping. Eight staff members work in City Hall and one works at the city warehouse. These employees share the same hours and fringe benefits -- vacations, sick leave policy, group hospitalization, retirement plan -- as other city employees, and are paid every other week. The office manager herself does the City Manager's confidential work. Another secretary of this department devotes approximately twenty-five percent of her time doing typing or other work for the City Manager. No college degree or other specialized training is required for a position within the office manager department. All office manager staff employees have access to city personnel records, as does everyone else who inquires. It was not known whether or not such employees would have access to labor relations policy data, inasmuch as the City has no prior bargaining history. Library assistants. There are two library assistants, one full time and one part time, under the direct supervision of the library director. The full time assistant works a forty hour week and participates in the same benefits as other full time city employees. The library is open a half day on Saturday. The old library building has been torn down and a new library building is planned. During the interim, one assistant is detailed to do clerical work in the city warehouse. The City Manager testified that there is presently no job description for library assistants, but that there is no educational or previous training requirement for the positions. Their duties include assisting the public and the library director. It was not known whether they actually and independently participated in the ordering of new books for the library. Radio dispatchers. There are six radio dispatchers who are housed in the police station and are under the direct supervision of the Chief of Police, who hires, fires and disciplines them. These employees share the same benefits and work the same number of hours as other city employees. They rotate their schedules so that one dispatcher is always on duty, twenty-four hours a day, seven days a week. All emergency calls, including police, fire and general government utility calls, are relayed through a radio dispatcher. Standard operating procedures are furnished them by the superintendents of the various departments. Dispatchers do not wear uniforms and do not carry weapons. There is no formal training requirement to qualify as a dispatcher, though apparently they must be federally registered in much the same manner as a CB operator. There is no ranking system among them and no head or chief dispatcher. While there is a jail at the police station, dispatchers have no contact with or authority over prisoners housed therein. The City Manager knew of no dispatcher duties other than receiving and relaying emergency calls. In accordance with F.S. s447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Done and entered this 2nd day of June, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack, Chairman Public Employees Relations Commission 2003 Apalachee Parkway Suite 300 Tallahassee, Florida Mr. Stanley E. Marable Frank and Meyer, P.A. 500 Flagship Bank Building Tampa, Florida 33602 Mr. Harrison C. Thompson, Jr. Shackleford, Farrior, Stallings & Evans, P.A. P.O. Box 3324 Tampa, Florida 33601
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is the amount of attorney’s fees and reasonable expenses to be awarded to Petitioner's counsel pursuant to section 766.31(1)(c), Florida Statutes.
Findings Of Fact As noted in the Preliminary Statement, the parties filed an Amended Joint Stipulation on May 20, 2015. The parties stipulated to the amount and manner of payment of an award to Petitioners. Specifically, the parties agreed to an award of: Actual expenses for ambulance in the amount of $320; lump sum award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury in the amount of $100,000; and a death benefit in the amount of $10,000. The parties further stipulated to Petitioners’ entitlement to $631.05 in costs which includes the $15.00 DOAH filing fee and $616.05 for medical records. The parties also stipulated that the only remaining costs which are at issue are costs for a nursing consultant in the amount of $1,200 for Karla Olson & Associates, LLC, and expert witness costs for Donald Hinkle, Esquire. Petitioners also seek reasonable attorney’s fees. In the Amended Joint Stipulation, Petitioners’ counsel agreed to withdraw their request for time expended in seeking attorney’s fees from NICA and preparing for the fee hearing. Despite this, the parties were still unable to agree on the amount of reasonable attorney’s fees. Petitioners’ attorneys assert an entitlement to attorney’s fees in the amount of $34,728.27; $1,870 for the services of a paralegal; costs for a nurse’s review of the medical records in the amount of $1,200; and an expert witness fee for Donald Hinkle, Esquire, in the amount of $2,400. The total amount of attorney’s fees sought by Petitioners is broken down as follows: 82.2 hours for Ellen Burno at a rate of $275.19 per hour; 20.2 hours for Peter Van den Boom at a rate of $350 per hour; 12.9 hours for David Anderson at a rate of $225 per hour; and 11.2 hours for Saray Noda at a rate of $190.64 per hour. In addition to seeking $2,400 for their expert witness, Donald Hinkle, and $1,200 for a nurse consultant’s review of medical records, Petitioners seek costs for paralegal Ruthie Romero, at $110 per hour for 17 hours. Ellen Burno is the sole attorney in the Gainesville office of Frost Van den Boom, P.A. She has been licensed as an attorney in Florida since 2013 and has been licensed to practice law in the state of Kentucky since 2004. She has represented clients in medical malpractice cases and has extensive experience in litigation and health care law. She first met with Petitioners in October 2014 after the case was transferred from the firm’s Bartow office by senior attorney, David Anderson. Ms. Burno’s initial meeting with Petitioners took place not long after the death of their infant son, Ryan Michael Jolley. According to the Petition filed in this case, the Petitioners resided in Lake City. It is noted that Gainesville is considerably closer to Lake City than Bartow. Despite having represented multiple personal injury and malpractice clients, NICA was a first impression issue for her and for the other attorneys with the firm. Ms. Burno collaborated with Mr. Anderson on the case until he left the firm on March 7, 2014, when Peter Van den Boom became the senior attorney and partner on the case. Mr. Van den Boom has been licensed as an attorney in Florida since 1998. He has considerable experience handling medical malpractice and personal injury cases, including catastrophic injury due to medical malpractice. Ms. Burno took a 12-week maternity leave in October 2014 at which time Saray Noda began working on the case. Ms. Noda has been a licensed attorney in Florida since 2013. NICA objects to portions of Petitioners’ request for fees on numerous grounds including: that much of the time billed by Petitioners’ attorneys was unreasonable and unnecessary; that reasonableness of the task and time billed by counsel cannot be ascertained because of vagueness or block-billing; that much of the time billed involves intercommunication among Petitioners’ four lawyers; that much of the time billed represented duplication of efforts; that Petitioners’ need for a particular structure of the settlement agreement in order to amicably split the award of NICA benefits should not be awarded; and that time billed by a paralegal was clerical in nature and should not be awarded. As stated previously, David Anderson initially received the case. Mr. Anderson has been licensed as an attorney in Florida since 2007. Mr. Anderson, who is no longer with the firm, seeks compensation for 12.9 hours of work from October 28, 2013, through February 13, 2014. Included in the 12.9 total is an entry for 2.0 hours for “review and analyze case law re: NICA statute” and 2.7 hours for “research regarding filing claim under NICA statute.” Mr. Anderson’s time entries begin October 28, 2013, and conclude on February 13, 2014. Mr. Anderson’s affidavit noted that the case was taken on a contingent fee basis. Ellen Burno initially met with Petitioners in the Gainesville office. She handled the bulk of the case after it was assigned to her by Mr. Anderson. Ms. Burno seeks compensation for 82.2 hours for time spent on the case from October 23, 2013, through October 7, 2014. Ms. Burno’s time entries include entries on October 23, 24, and 25 which all reference research of NICA statute and/or NICA case law. Time entries on December 20, 2013, and January 15, 2014, reference numerous tasks including review of NICA case law. These and many other time entries of Ms. Burno’s include multiple tasks. These entries do not set forth with particularity the nature of the service provided, making it impossible for the undersigned to determine reasonableness of the entries. A time entry on February 6, 2014, for 6.4 hours references “research NICA issues re nurse liability,” which is not related to a NICA claim for compensation. Mr. Van den Boom began working on the case about two months after Mr. Anderson left the firm. The first two time entries on Mr. Van den Boom’s time report reflect dates that are in error in that they reference time in 2012. Those first two entries totaling 0.5 hours must be excluded. The third time entry dated October 25, 2013, indicates that he expended two hours of time reviewing the NICA statute and case law. There are no time entries from the October 25, 2013, entry until an entry on March 25, 2014, described as “review file, NICA” reflecting 4.9 hours, until March 25, 2014, which contains an entry described as “review summary; legal research NICA; review file in its entirety. Telephone conference with EB” reflecting 8.6 hours expended. Following those entries, there are many entries from July 2014 through October 7, 2014, reflecting receipt and review of e-mails or telephone conferences with Ms. Burno, many of which match entries on Ms. Burno’s time sheet for times they were exchanging e-mails or having a telephone status conference. Thus these entries are duplicative. Moreover, while each attorney working on the case understandably wanted to be familiar with NICA law, the number of total hours for research was excessive. Ms. Noda seeks attorney’s fees for 11.2 hours. Her time entries begin November 4, 2014, through December 23, 2014. It is noted that all of the entries on Ms. Noda’s time report were made subsequent to the entry of the Summary Final Order on compensability entered on October 16, 2014. Some of her time entries concerned the settlement agreement which involved the uneven distribution of funds between the parents, who are not married.1/ In any event, since compensability had already been determined, Ms. Noda’s hours have been excluded in calculating the fee award. Petitioners seek paralegal fees for 17 hours of paralegal work by Ruthie Romero. Her time entries begin on October 28, 2013. Other than a final time entry for one hour on July 16, 2014, Ms. Romero’s time entries end on April 29, 2014, just prior to the filing of the Petition for Benefits. Virtually all of the time entries for Ms. Romero deal with requesting medical records, bates numbering of the medical records, and scaning, copying and redacting the medical records. These tasks are clerical in nature. Donald Hinkle, Esquire, testified as Petitioners’ expert witness on attorney’s rates and hours. Mr. Hinkle is a board-certified civil trial lawyer who practices law in Tallahassee. He has been practicing law since 1980. He is familiar with the NICA statutes and NICA cases and has testified in a previous NICA case as an expert witness. He specializes in civil trial practice, primarily in medical malpractice. Mr. Hinkle reviewed the file materials from the claimants’ file, but did not review the medical records. He also reviewed the time records of the four attorneys who represented Petitioners in this case, as well as the NICA statutes and case law. Mr. Hinkle opined that the time billed by all four of Petitioners’ attorneys was reasonable and that the respective rate for each attorney was reasonable, and actually low in comparison to fee awards given in the community to attorneys of comparable experience. Mr. Hinkle is claiming a rate of $600 per hour for four hours as his expert witness fee, despite the fact that he had already expended 4.2 hours on this case prior to the hearing, and was present throughout most of the hearing which lasted three hours. Petitioners seek $2,400 for his time which, taking into consideration the time he actually spent, comes to less than $350 per hour. Based on Mr. Hinkle's experience and expertise, a total fee of $2,400 is quite reasonable. Additionally, Mr. Hinkle is of the opinion that the hiring of a nurse consultant to review the medical records was reasonable to determine whether a birth-related neurological injury occurred. Regarding the paralegal fees, it was Mr. Hinkle’s opinion that the tasks performed were those typically done by a paralegal, but acknowledged that the tasks were not tasks that an attorney typically performs. John Kelner, Esquire, testified on behalf of the Respondent as an expert in attorney's fees. Mr. Kelner has been practicing law since 1980. He practices in the area of civil litigation, primarily medical negligence, and he has experience with NICA claims and also testified in a previous NICA hearing. Mr. Kelner approached the case from the aspect of what would be reasonable time to expend in light of the facts of the case. Mr. Kelner opined that it would be reasonable to allocate between 5 to 8 hours over the course of the case to communicate with Petitioners; it would be reasonable to allocate between 1 to 3 hours to researching the law pertaining to NICA; and it would be reasonable to allocate between 3 to 5 hours to reviewing pleadings filed. In total, Mr. Kelner opined that a reasonable amount of time to attribute to this case is 16 hours, and that a reasonable fee for an experienced attorney to handle this matter is $300 per hour. In reaching this opinion, Mr. Kelner took into consideration that there was no discovery conducted in this case, no depositions taken, and no hearings held. The Motion for Summary Final order was unopposed. Given the closeness of the hourly rates claimed by Petitioners’ attorneys, NICA urges that the average of $260 per hour should be assigned to Petitioners’ counsel’s work in this case. In consideration of Mr. Hinkle and Mr. Kelner’s testimony in this regard, that suggestion is accepted. However, since the fees attributable to Ms. Noda have been excluded, her rate has also been excluded in calculating the average fee rate. Petitioners’ counsel request $34,728.27 in attorney’s fees. NICA suggests an award of $3,536 in attorney’s fees. In consideration of the evidence presented by the parties, including the testimony of the respective fee experts and in light of the prevailing case law which will be more fully explained in the Conclusions of Law, and having removed excessive, vague, block- billed, intercommunication, and duplicative time, the undersigned finds that Petitioners’ counsel is entitled to 58.5 hours of time at $283 per hour for a total of $16,555.50 as attorney’s fees from NICA. Respondent does not object to the following expenses incurred by Petitioners: $15 for the DOAH filing fee and $616.05 for medical records, for a total of $631.05. Petitioners seek payment of $2,400 to Donald Hinkle, Esquire. The undersigned agrees that Petitioners are entitled to these expert witness fees. Petitioners seek payment of $1,200 for a nurse consultant. Mr. Kelner noted that the nurse’s review of the medical records was conducted after the claim was filed, indicating that she may have been hired for reasons other than compensability. Mr. Hinkle acknowledged that he would have had the nursing expert review done before filing the Petition. The undersigned notes that within Ms. Burno’s time records are found entries regarding research on issues regarding “nurse liability.” This indicates that the nurse consultant was, at least in part, advising on matters not related to a NICA claim for compensation. The undersigned concludes that Petitioners are not entitled to the $1,200 sought for the nurse consultant.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is now, and was at all times material to the instant case, including June 28, 1993, through January 27, 1994, an employee of the Department working in the economic services unit of the Department's District XI (hereinafter referred to as the "District"). In 1990, Petitioner occupied a PAS (Public Assistance Specialist) I position that, in or around June of that year, was one of 182 such positions in the District to be reclassified to a PAS II position as part of the Department's implementation of the new FLORIDA computer system. 2/ Those employees occupying these reclassified positions (hereinafter referred to as the "upgraded employees") whose salaries were below the minimum salary for a PAS II received a salary increase to raise their salary to the minimum. Petitioner was among the employees who received such a salary increase. Such action was taken in accordance with the following Department policy set forth at page 11 of HRSP 60-1: When an employee is promoted, a salary increase to at least the minimum salary of the higher level position will be made. How- ever, an increase of up to ten percent above the current base salary or ten percent above the minimum for the new class may be approved. An increase of up to ten percent of the current base salary is normally used when the employee's salary is the same or nearly the same as the minimum for the new class. An increase of up to ten percent above the minimum for the new class may be granted when an employee possesses training or experience substantially above the minimum training and experience required for the higher class and it is determined that the employee is exceptionally well qualified for the position. These increases must be approved by an assistant secretary or district administrator. Because of funding constraints that existed at the time, no other salary increases were given to the upgraded employees. Funds for such additional salary increases became available toward the end of the 1992-1993 fiscal year. The increases were approved at both the Department and District level. Petitioner and the other upgraded employees were advised of the increases by a memorandum dated July 7, 1993, from the District XI District Administrator. The District Administrator's memorandum read as follows: Your position has been identified as one which was upgraded as a result of the FLORIDA implementation in 1990/1991. At the time, our records indicate that you received a partial increase, or none at all, because of budgetary constraints. Due to the identification of available monies prior to the end of the Fiscal Year, we are pleased to inform you that you will be receiving a pay increase in your salary warrant on July 9, 1993. The amount of the increase will be either 10[percent] or the difference between what you received in 1990/1991 and 10 [percent], and was effective June 28, 1993. Should you have any questions about this increase or how it was calculated, please call Arelis Valero at 377-5197. Your continued dedication and service to HRS is sincerely appreciated. District personnel miscalculated the amount of Petitioner's approved salary increase (which was "the difference between what [she had] received in 1990 . . . and 10[percent]" of her pre-reclassification base salary). As a result, following June 28, 1993, the effective date of the increase, for the pay periods ending January 27, 1994, Petitioner was overpaid a total of $1,144.72. The District discovered the error and revised its payroll records to reflect Petitioner's correct salary. In addition, by memorandum, it notified Petitioner of the mistake that had been made and advised her that it was her responsibility to repay the amount she had been overpaid. By letter dated November 1, 1995, the District XI District Administrator informed Petitioner that the overpayment would be recovered through payroll deductions beginning January 12, 1996, amounting to "10[percent] of [her] gross salary each pay period, unless [she] prefer[red] a single lump sum, until the balance [was] paid." The letter further provided, in part, as follows: If you do not dispute the overpayment, but feel that the repayment schedule of 10 [percent] of your gross salary per pay period is overly burdensome, please call Thomas Franklin at 377-5055 Number135 and he will review with you what must be documented and submitted to the Comptroller's Office (Capitol Building, Suite 1201, Tallahassee, Florida 32399-0350) to request a modification. While the total amount eventually repaid to the State cannot be adjusted, the Comptroller may be convinced to lengthen the repayment schedule by lessening the percentage withheld each pay period. If you do not agree that you were overpaid this amount, you have the right to an adminis- trative hearing under 120.57(1) or (2), Florida Statutes, and Rules 10-2.036 and 28-5, Florida Administrative Code. You may request a formal or an informal hearing. If a request for a formal hearing is made, your petition must be in compliance with Rule 28-5.021, Florida Administrative Code. Please note that Rule 28-5.201(2) specifies that your petition should contain a concise discussion of the specific item in dispute. Informal hearings are governed by Rules 28-5.501-503, Florida Administrative Code. Your request for either a formal or informal hearing must be received by this office, attention Thomas Franklin, within thirty (30) days of your receipt of this letter, in accordance with Rule 10-2.036, Florida Administrative Code. Failure to request a timely hearing shall be deemed a waiver of your right to hearing. Petitioner subsequently requested, by memorandum, a formal hearing on the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department: find that, from June 28, 1993, until January 27, 1994, Petitioner was overpaid a total of $1,144.72; notify the Department of Management Services of this finding; and refer the matter to the Comptroller so that the Comptroller may take appropriate action to recover these moneys owed to the state. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of April, 1996. STUART M. LERNER, 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 29th day of April, 1996.
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2010), by discriminating against Petitioner on the basis of age or sex, or by retaliating against Petitioner, and if so, what remedy should be ordered.
Findings Of Fact The City of High Springs is a Florida municipality that employs over 15 employees. During fiscal year 2009-2010, the City of High Springs had three supervisory positions in Public Works. A Streets, Parks, and Cemeteries Superintendent, and an Utilities Superintendent each reported to the department head, the Public Works Director. During the summer and early fall of 2010, the City was dealing with revenue shortfalls when preparing the 2010-2011 budget. The Commission chose to address these budgetary concerns in part by reorganizing city government and eliminating some staff positions. In budget meetings leading up to the adoption of the 2010-2011 budget, the Commission heard testimony that stated the city was "top-heavy" and urged the elimination of purely managerial positions in favor of having supervisors who could do the actual work as well as supervise. Petitioner and most other employees of the City of High Springs understood that under the City Charter, the City Commission did not have authority to direct the hiring or removal of any specific city employee, with the exception of a few charter officers, such as the City Manager and City Attorney. On September 9, 2010, the City Commission of High Springs voted to cut the existing Public Works Department in half to create two new departments: Public Utilities and Public Works. The new departments were to have separate superintendents that would directly report to the City Manager, effective October 1, 2010. Some facilities maintenance functions were to be added to the old Streets, Parks and Cemeteries functions along with some new administrative duties to create the responsibilities of a new Public Works Superintendent. Some new administrative duties were to be added to the Public Utilities Superintendent. This new structure would allow elimination of the position of Public Works Director, which previously had been the department head over both of these areas. Although the authority of the City Commission was to eliminate positions, as opposed to individuals serving in those positions, the City Commissioners knew which individuals were serving in the Public Works supervisory positions at the time they voted to eliminate positions. They were aware that Petitioner Jerry Bratcher was the Streets Superintendent, Mr. Don Deadwyler was the Utilities Superintendent, and Ms. Laverne Hodge was the Public Works Director. Commissioners and the City Manager were aware that under the City Charter, it is the responsibility of the City Manager to hire and fire city employees consistent with applicable personnel rules. After the Commission vote, and prior to September 17, City Manager James Drumm was considering which of the three existing Public Works supervisors would remain as the two new department heads. Although the Commission had voted to eliminate the position of Public Works Director, Mr. Drumm believed he could retain Ms. Hodge by placing her in one of the new positions. At this time, Mr. Bratcher was a 56-year-old male, Mr. Deadwyler was a 71-year-old male, and Ms. Hodge was a 58-year-old female. Petitioner Bratcher was the lowest-paid of the three Public Works supervisors: Ms. Hodge was paid the greatest amount; Mr. Deadwyler was paid about $6,000 less than Ms. Hodge; and Mr. Bratcher was paid about $18,000 less than Ms. Hodge. Petitioner had more seniority with the City of High Springs than Ms. Hodge. He had worked nearly 14 years for the City, while Ms. Hodge had been employed only about 6 and one- half years. Mr. Deadwyler also had more seniority with the City of High Springs than Ms Hodge. Ms. Hodge and Mr. Deadwyler both held water and waste water certifications issued by the State that allowed them to operate the City's water and wastewater treatment facilities. Mr. Bratcher did not hold such certifications. On September 17, 2010, City Manager Drumm notified Petitioner by letter that he had been selected for layoff after reviewing the personnel files, education, technical skills, administrative skills, State licenses, certificates, and work experience of all three of the existing Public Works supervisors, as well as the financial impact on the operations of the two new departments. The effective time of the layoff was 4:00 P.M. on October 1, 2010. On September 27, 2010, the City Commission approved the budget and also placed City Manager Drumm on administrative leave with pay pending a hearing to be held on October 21, 2010, to consider his termination. The Commission also appointed Deputy City Clerk Jenny Parham as Acting City Manager at that time. The day following the Commission's action placing City Manager Drumm on administrative leave, Ms. Hodge notified Acting City Manager Parham in writing that she was offering "to be laid off, voluntarily" from her position as the City of High Springs Director of Public Works, effective 5:00 p.m. on September 30, 2010. Sometime after Ms. Hodge notified Acting City Manager Parham that she would accept a voluntary layoff, Ms. Parham telephoned Petitioner to ask if he would be interested in returning to work as the Public Works Superintendent if that was made available to him. Petitioner said he would. Ms. Parham had called Petitioner to understand what options were available to her in filling the positions in the new structure. On September 29, 2010, Acting City Manager Parham notified Ms. Hodge that she accepted Ms. Hodge's offer to be voluntarily laid off the following day. City of High Springs Personnel Policy 5.2 provides that if an appropriate job becomes available within 18 months after layoff, the former employee will be notified. An appropriate job is one for which the laid-off employee has adequate job-related skills. Petitioner had adequate job-related skills to serve as the Public Works Superintendent. It was Acting City Manager Parham's understanding of City Personnel Policy 5.2 that it only required a laid-off employee to be notified of any advertised position. If the position was not advertised, but was instead filled by the transfer of an existing employee, she believed no notification was required. It was further her understanding that the Policy does not require that a laid-off employee be rehired after notification, but instead requires only that a former employee who applies will be treated as any other applicant and must compete with other applicants for the position. If Ms. Parham was to staff the new organizational structure on October 1, she had to make some decisions in light of Ms. Hodge's layoff. She logically decided to make Mr. Deadwyler the new Utilities Superintendent, as he was the only person remaining with the City with water and wastewater treatment facility certifications. As for the Public Works Superintendent position, Mr. Bratcher had effectively been gone for two weeks. While Ms. Parham might have rescinded the layoff, which had not yet taken effect, she instead considered that everything had been "settled" and did not want to take such a major step in her position as interim City Manager. More importantly, at this point Ms. Parham was aware of rumors that Mr. Drumm was coming back. She did not know if he would in fact return. Mr. David Benton was the only person other than Petitioner in Public Works that had both supervisory experience and knowledge of that department. Mr. Benton was a 39-year-old man who was not a high school graduate. He did not have a FEMA certification at the time he was placed in the position. Mr. Benton did not have state water or wastewater certifications. Mr. Benton had less education, less experience, and fewer certifications than Petitioner, but he was qualified to hold the position. He was a good employee with broad experience. Mr. Benton was transferred from his position to fill the Public Works Superintendant position on an interim basis. On October 1, 2010, when Acting City Manager Parham transferred Mr. Benton into the Public Works Superintendent position, Petitioner was on his last day of employment with the City and could have been similarly transferred into that same position if his layoff had been rescinded. Petitioner was as qualified or more qualified than Mr. Benton to hold the position of Public Works Superintendent. Not only were the responsibilities of the new position substantially similar to those of his position before the reorganization, he had performed maintenance of park facilities in his earlier position as Recreation Director. After October 1, Acting City Manager Parham had a meeting with City employees to explain the new organization. She was asked, "Since Laverne Hodge quit, does that mean Jerry will be returning?" or words to that effect. Ms. Parham replied that it would be up to the next City Manager to make that decision. Ms. Parham knew that City Manager Drumm had earlier chosen to lay off Petitioner. She believed that there was a possibility that Mr. Drumm would be restored to his duties as City Manager, as she had heard rumors to that effect. Mr. Drumm's employment with the City terminated on October 21, 2010. Some weeks later, Petitioner set up an appointment with Acting City Manager Parham to find out what was to be done to permanently fill the Public Works Superintendent position. During Petitioner's meeting with Ms. Parham, she stated that she had heard that Petitioner had personally contacted City Commissioners asking them to fire Mr. James Drumm and Ms. Laverne Hodge. Petitioner told Ms. Parham at this meeting that he believed he had been discriminated against by sex and age and that now he thought he would be retaliated against because Ms. Parham believed he had been telling the City Commissioners that they should fire Mr. Drumm and Ms. Hodge. He assured Ms. Parham that he had not done that. Petitioner had not personally contacted City Commissioners to ask them to fire Mr. James Drumm or Ms. Laverne Hodge. On November 17, 2010, Ms. Parham notified Mr. David Mastellar, a utilities service worker, by letter that he would be laid off effective December 3, 2010. On November 30, 2010, Ms. Parham was made permanent City Manager to fill out the remaining term of former City Manager Drumm. Mr. Benton was made permanent Public Works superintendent effective December 6, 2010. Ms. Hodge made the statement, "I'm going to have his job" or words to that effect, referring to Mr. Bratcher. Her statement that she did not "recall it right now" was not credible. Her testimony that she would need to know the circumstances under which it was said, or the context in which it was said, was clearly evasive. However, the statement was not said in conjunction with any of the alleged acts of discrimination at issue, but was said much earlier before Petitioner was moved from his position as Recreation Director. The statement, and Ms. Hodge's overall testimony, reflect some personal hostility towards Petitioner, but do not indicate that this hostility was in any way predicated upon Petitioner's gender or age. Further, Ms. Hodge did not make any of the personnel decisions under challenge.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered dismissing Petitioner's complaint. DONE AND ENTERED this 28th day of September, 2011, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 2011. COPIES FURNISHED: Jerry W. Bratcher 355 Southwest Tiffany Court Fort White, Florida 32038 Timothy M. Warner, Esquire Warner Law Firm, P.A. 519 Grace Avenue Post Office Box 1820 Panama City, Florida 32402 Thomas DePeter, Esquire City of High Springs 23327 Northwest County Road 236, Suite 30 High Springs, Florida 32643 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Jurisdiction The Respondent, a special district, is engaged in the operation of a hospital in New Smyrna Beach, Florida. Based on the pleading and the admissions contained therein, I find that the Respondent is a public employer within the meaning of Chapter 447, F.S., and was such at all times material herein. The Labor Organization Involved The Florida Nurses Association, hereinafter sometimes called FNA or the Association is, based on the pleadings and the admissions contained therein, an employee organization within the meaning of Section 447.203(10), F.S. The Alleged Unfair Labor Practices Introduction Briefly this case concerns itself, in the main, with the measures taken by Respondent in the promulgation of its no solicitation - no distribution rule and secondly whether or not the employees were unlawfully denied a cost of living increase in an effort to thwart their organizational activities. The complaint alleges, and the General Counsel and the Association contend that the no solicitation rule is invalid on its face in that it contains an absolute prohibition on solicitation during working hours without any clarification or distinguishing of the phrases "working hours" and "working time", citing Essex International, Inc., 211 NLRB No. 112, 86 LRRM 1411, 1412 (1974) and May Department Stores, 15 LRRM 173 (1944). The contention is additionally made by the General Counsel that while the NLRB has recognized exceptions to a general rule containing a broad restriction in the interest of business justification to facilitate production and discipline, no such showing or justification has been made by the Respondent in this case and therefore employees are denied an opportunity to discuss organizational activities at any time at their place of work. The General Counsel distinguishes the Respondent's defense that its no solicitation - no distribution rule is protected by Section 447.509, F.S., since it makes no differentiation between 447.509(1)(b), F.S., since distribution is forbidden in every part of the hospital including areas where employees do not perform official duties such as the cafeteria and lounge. Next the General Counsel contends that the Respondent unlawfully denied employees the annual cost of living increase because of their, organizational activities in a departure of its previous grant of such annual increases based solely on employees organizational activities and its effort to thwart such. While the General Counsel concedes that a clarifying statement was made with regard to merit increases, the contention is advanced that no such explanation was given to the statement concerning cost of living increases. During the fall of 1975, the FNA began discussions of organizing the subject employees for collective bargaining purposes. As far as the record reveals, since January 1, 1974, Respondent's policy handbook contained a provision urging its employees to participate in the annual United Fund Campaigns. The section further adds that "all other solicitations are prohibited throughout the year." (See General Counsel's Exhibit No. 1 incorporated by reference.) Thereafter in March, 1975, the rule contained in the policy handbook prohibiting solicitation was amended to read, as stipulated by the parties, Solicitation and Distribution: We cannot afford to have outside activities interfere with patient care. Therefore, the following rules concerning these matters will be enforced: Employees may not solicit funds or support for any fund, drive, cause of organization during working hours. Employees may not distribute literature on behalf of any fund, drive, cause or organization during working hours or in areas of the hospital where employees work. Persons not employed by the hospital are prohibited from entering the premises to solicit funds or support for or distribute literature on behalf of any fund, drive, cause or organization. The referenced rule is still in effect and the Respondent as far as the record reveals, enforces the rule as written. Hospital employees take a 30 minute unpaid lunch period and the record clearly established that except in emergency situations, a registered nurse may not leave the hospital during a meal period without prior authorization. Sometime during the months of January or February, 1975, Francis Doggett, Respondent's nursing director, first learned that the FNA was organizing in the hospital. In mid March, 1975, a meeting was held of all head nurses and supervisors including the nurses director, Respondent's attorney William E. Sizemore, and approximately ten (10) nurses. A sign-in sheet was used to record attendance. William Schneider, Respondent's administrator asked the head nurses and supervisors whether any of them had signed authorization cards and those in attendance responded. Only two nurses, Ms. Hadlow and Ms. Lewis, responded that they had signed authorization cards. Immediately after the meeting, Mr. Schneider met with Ms. Hadlow and Ms. Lewis and encouraged them to withdraw their authorization cards from the FNA. To accomplish this, on March 19, the following day, Shirley Reynolds, Respondent's Personnel Director, typed two letters at the request of Schneider on hospital stationery and received into evidence as General counsel's Exhibit No. 4 requesting that the designation of FNA as a bargaining agent be returned to June M. Hadlow and Evelyn M. Lewis. Shortly after the March 18 meeting, the Administrator met with the other registered nurses in the hospital's conference room in two different sessions. Attendance was required and based on the evidence it is clear that it was not the normal practice of Mr. Schneider to meet with RN's and in fact none of the nurses had ever met with him previously. Mr. Schneider inquired of the nurses what their problems were, why they were organizing and why they felt they needed a third party to intervene on their behalf. He showed the nurses and attendants a copy of a resolution, adopted by the Board of Commissioners of the Hospital District, opposing collective bargaining by hospital employees. Ms. Doggett, who was also in attendance expressed her displeasure that the registered nurses would be the first employees to try to organize for collective bargaining purposes. Thereafter on or about April 15, a memo was posted on the hospital's bulletin board stating that the medical staff had adopted a policy in opposition to collective bargaining. Three days later, on April 18, the FNA filed an RC petition for certification with PERC seeking to represent all registered nurses. On May 7, 1975, the hospital's Administrator held another mandatory meeting for RN's in a classroom in the old section of the hospital and for those nurses who were not on duty. They attended and were paid for the time spent at the meeting. Two sessions were held and Mr. Schneider, Ms. Doggett, Mrs. Reynolds and Mr. Sizemore, Respondent's attorney, represented management. Discussions by management concerned itself with the ramifications of the RC Petition filed by FNA and Mr. Schneider informed the nurses that the administration was planning a nurses lounge for them. Thereafter, Ms. Doggett told employees that the RN's would not receive a cost of living raise because they were organizing. One nurse asked if the nurses would receive merit raises whereupon Ms. Doggett replied no. Mr. Sizemore, seeking to clarify Ms. Doggett's statement, stated that the nurses would receive merit raises because it was an established hospital practice. The testimony reveals that hospital employees have received annual budgetary increases for eight of the last nine years and the year in which no increase was given was occasioned by the wage and price freeze. All nursing personnel who testified received some type of non-merit upward adjustment in their salary in every year except the year of the freeze. As stated, the Respondent takes the position that its solicitation- distribution rule tracks 447.509, F.S., and is not a violation of it inasmuch as the legislature cast aside the policy that has prevailed for many years in the private sector. Respondent adds that the General Counsel of PERC seeks to totally ignore this intended departure and simply graft the Federal Rules on Florida Law. Section 447.509, F.S., provides in pertinent part that employee organizations, or any persons acting on their behalf are prohibited from: (a) soliciting public employees during working hours of any employee who is involved in the solicitation and (b) distributing literature during working hours in areas where the actual work of public employees is performed, such as offices, warehouses, schools, police stations, fire stations and any similar public installations. This section shall not be construed to prohibit the distribution during the employees' lunch hour or in such areas not specifically devoted to the performance of the employee's official duties. Respondent cites the U.S. Supreme Court's decision in Republic Aviation Corp. v. N.L.R.B., 324 US 793, 16 LRRM 620 (1945), a case which addressed at length the issue of solicitation. The court in that case noted that a balance must be struck between "the undisputed right of self organization" and the "equally undisputed right of employers to maintain discipline in their establishments." The NLRB traditionally struck that balance by prohibiting employers from restricting solicitation except when the employee is actually engaged in the job function he performs. Thus, the employer is allowed to restrict activities only during "working time" and during break time or lunch time, even though paid for by the employer, an employee is free to solicit for a union. As Respondent notes, there have been literally hundreds of NLRB cases affirming this rule and striking down rules restricting activity during "working hours". The NLRB has long held that restrictions on employees' solicitation, or distribution of literature, in non-work areas, when employees are not actually working are presumptively invalid. The NLRB also presumes that a rule limiting solicitation during the time when an employee is working is for the maintenance of production and discipline and is valid, even though it is a restriction on Section 7 rights. 2/ If a rule is ambiguously phrased so that it may be interpreted as prohibiting legitimate activity, it is invalid. In Essex International, 211 NLRB No. 112, the board dealt with rules against solicitation during "working time" and distribution during "working hours". A board majority concluded that there is a clear distinction between "working hours" and "working time". The term "working time" or "work time" connotes the time spent on actual job duties. The board considers rules prohibiting solicitation during "working time" or "work time" to be valid presumptively, but the presumption can be overcome by extrinsic evidence that the rule was communicated or applied in such a way as to convey an intent to restrict or prohibit solicitation during break time or other periods when employees are not actively working. A study of the rule in question indicates that it is clearly a departure from Section 447.509, F.S., because Section 1(b) thereof indicates that the Section shall not be construed to prohibit the distribution during the employees' lunch hour or in certain areas not specifically devoted to the performance of the employees' official duties. Turning to the rule in question, solicitation and distribution is banned in all areas including the cafeteria and other places in the hospital where employees work. Since the Employer has not issued any clarifying statement and is susceptible of an interpretation which implies an overly broad restrictive reach, the Employer, by not electing to clarify the rule must bear the burden of the unlawfulness inherit in the ambiguity since it cannot be said that the ban on soliciting and distributing literature applies only to working areas during working time. The undersigned is of the opinion that the rule in question is a prohibition of solicitation during "working hours" and is presumptively invalid, and that the presumption should be applied in the absence of an affirmatively established clarification by the Employer which was not done in this case. See for example, John H. Swisher and Son, 211 NLRB no. 114 Pepsi Cola Bottling Company of Los Angeles, 211 NLRB no. 132; Groendyke Transport, 211 NLRB no 139. For discussion of a rule which was found valid and lawful which restricted employee activity during working time, see for example, General Motors Corporation, 212 NLRB no. 45. Based thereon, I shall therefore recommend that the Respondent's solicitation- distribution rule in this case, violates Section 447.509, F.S. The second issue raised is whether the Respondent violated Section 447.501(1)(a), F.S., by threating its registered nurses by informing them that they would not receive the annual cost of living increases because of their organizational activity. The alleged threat occurred during the May 7 meeting of all registered nurses. William Schneider testified that the annual salary adjustments were not tied to any cost of living index but rather came as a conclusion of wage survey and budgetary processes. Accordingly, the raises varied in amounts from year to year, the raises varied from position to position and the raises varied among the various departments with particular nursing skills. The General Counsel concedes that a clarifying statement was made with regard to merit increases but that no explanation was made concerning cost of living increases. Respondent's attorney, Sizemore, who was present at the May 7th meeting, clarified the statement by Ms. Doggett to the effect that merit increases would be given inasmuch as it was an established practice but that cost of living increases would not be given due to the absence of an established policy. It is clear that the meeting centered around the discussion of annual raises, merit raises and a new employee lounge and the effects it could have once a petition was filed and during collective bargaining. It is significant to note that no employee witness testified that the annual increases were tied to any cost of living increases. Rather it appears that the annual wage increases were tied to factors cited by Respondent such as its concern about remaining competitive with other employers in the area and its ability to be able to attract and retain employees with specialized training. It is further clear that the employer's counsel discussed the annual raise and the employees who testified did not deny that counsel did so. There was no evidence that the employer had withheld increases that it had previously promised employees but rather it appeared that the employer continued to grant what had been given in prior years except that the issue of cost of living increases was one which was not an established practice and therefore would arguably violate Section 447, F.S., if the employer were to bestow it to employees during the pendency of an RC petition. Based on these facts, it appears that as the Respondent urges in its defense, it was merely trying to inform the employees of the legal implication of granting the wage increase alleged to be violative while an RC petition was pending. In these circumstances, I shall therefore recommend that the General Counsel has failed to prove a violation based on the evidence presented as it relates to withholding of an annual cost of living increase because of alleged organizational activity. I shall therefore recommend that this allegation be dismissed.
Recommendation Based on the above findings and conclusions of law, I recommend, that the Respondent be ordered to cease and, desist from enforcing and retract its existing solicitation-distribution rule and that it post an appropriate Notice to employees to such effect. In all other respects, I recommend that the complaint be dismissed. DONE and ENTERED this 15th day of September, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY 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 day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
The Issue Whether the Respondent discriminated against the Petitioner on the basis of national origin, in violation of the Florida Civil Rights Act of 1994, Section 760.10(1), Florida Statutes (2005).1
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, and on the entire record of this proceeding, the following findings of fact are made: According to the Charter of the City of North Miami ("City Charter"), the City has a "council-manager" form of government. All powers of the City are vested in an elected City Council, including the power "to enact legislation, adopt budgets, and determine policies." The City Council also appoints the City Manager to administer the City's government.2 The City Council consists of four council members and a mayor. The mayor presides at the City Council meetings and is "recognized as the head of the city government for all ceremonial purposes . . . and shall have a voice and vote in the proceedings of the council, but shall have no regular administrative duties."3 The City Manager "shall be the chief administrative officer of the city, responsible to the council for the administration of all city affairs placed in the manager's charge by or under" the City Charter. Among those powers is the power to "[d]irect and supervise the administration of all departments, offices and agencies of the city, except as otherwise provided by the charter or by law."4 The City's Police Department is an administrative department of the City, and the Police Chief, as head of the Police Department, supervises and controls the department "subject to the city manager."5 The City Attorney is the head of the City's Department of Law and is appointed by the City Council. The City Attorney's salary is fixed by the council and included in the budget.6 The Department of Law is not an administrative department subject to the direction and supervision of the City Manager.7 The City Manager is responsible for proposing salary increases to the City Council for the department heads under his supervision, which includes the Police Chief. The heads of the various administrative departments are responsible for proposing salary increases to the City Manager for the employees under their supervision. The City Attorney is responsible for proposing salary increases to the City Council for the employees under his supervision, which includes the Deputy City Attorney. The salaries of all City officers and employees, including the City Manager and the City Attorney, must be within the ranges provided in the City's pay plan. If someone is hired at a salary outside the salary range for the position in the pay plan, or if someone is promoted or given a salary increase that is outside the salary range in the pay plan for the position, the pay plan must be amended by the City Council to re-classify the position or to increase the maximum salary for the position. Ms. Boyd was hired as the City's Police Chief in January 2002 at a pay grade of 39-9, the maximum salary for the position. Consequently, she had received only cost-of-living raises since January 2002. In October 2003, after the City Council appointed Ms. Boyd as Interim City Manager, John Dellagloria, then the City Attorney, prepared a Letter of Understanding at the direction of Mayor Celestin to address Ms. Boyd's salary and benefits while serving as Interim City Manager. Ms. Boyd spoke with Mr. Dellagloria as he was preparing the Letter of Understanding and told him that she wanted him to include a provision increasing her salary upon her return to her position as Police Chief. After talking with Mayor Celestin, Mr. Dellagloria included a provision specifying the salary that Ms. Boyd would receive when she left the position of Interim City Manager and returned to her position as Police Chief. Mayor Celestin and Ms. Boyd executed the Letter of Understanding on October 23, 2003. Mayor Celestin's signature on the Letter of Understanding signified his intention that Ms. Boyd would receive a salary increase when she returned to her position as Police Chief. Mayor Celestin understood, however, that he could prepare letters of understanding that implemented resolutions of the City Council that he did not have the power to bind the City by his signature on a document in the absence of a City Council resolution or other directive. The City Council action appointing Ms. Boyd Interim City Manager did not include anything related to her salary when she returned to her position as Police Chief. The salary increase included in the Letter of Understanding for Ms. Boyd when she returned to her position as Police Chief exceeded the maximum salary range specified in the City's pay plan for her pay grade of 39-9. Rebecca Jones, the City's Director of Personnel, noticed this when she prepared the Personnel Action Form to send to the City Manager for his approval of the salary agreement with Ms. Boyd when she became Interim City Manager. Ms. Jones advised Mayor Celestin that the raise could not be given without the City Council's approval of an amendment in the pay plan, but she did not discuss her conclusion with Ms. Boyd as Interim City Manager; Ms. Jones considered that improper because the matter concerned Ms. Boyd. After he executed the October 23, 2003, Letter of Understanding, Mayor Celestin was advised by someone in the Legal Department that he did not have the authority to increase the salary for the head of an administrative department such as the Police Chief. He was told that this authority was vested in the City Manager because the City Manager directly supervised the Police Chief. Clarence Patterson was appointed City Manager by the City Council in January 2004. He took office in late February 2004, and Ms. Boyd returned to her position as Police Chief at the salary she had received before she was appointed Interim City Manager. During the time she served as Interim City Manager, Ms. Boyd served on the screening committee for applicants for the position of City Manager. The committee was to review the qualifications of the applicants and determine those candidates who were minimally qualified for the position. Ms. Boyd presented the report of the committee at the January 27, 2004, meeting of the City Council, and reported that the committee had found only one highly-qualified candidate. Only two candidates attended the January 27, 2004, meeting, Nadine Pierre Louis and Clarence Patterson; Mayor Celestin supported Ms. Louis, and Mr. Patterson was backed by another City Council member. When asked by the City Council if these two candidates were qualified for the position, Ms. Boyd reported that they were not: Ms. Louis did not have the required municipal job experience, and Mr. Patterson did not meet the educational requirements. Ms. Louis and Mr. Patterson were offered to the City Council for a vote; Mayor Celestin walked out of the council room and did not vote; Mr. Patterson was selected by vote of the City Council. Mr. Patterson was aware that Mayor Celestin did not support his candidacy. Shortly after Mr. Patterson began as City Manager, Ms. Jones brought the October 23, 2003, Letter of Understanding between Mayor Celestin and Ms. Boyd to his attention. He reviewed the city charter and advised Mayor Celestin that he did not have the authority to give Ms. Boyd a salary increase. Only the City Manager has that authority under the charger. Mr. Patterson also discussed the matter of the salary increase referenced in the third paragraph of the October 23, 2003, Letter of Understanding with Ms. Boyd. He told her that Mayor Celestin did not have the authority to effect such a salary increase, and he also told her that he was not going to recommend to the City Council that it increase her pay grade to accommodate the salary increase promised by Mayor Celestin. Having reviewed the pay grades of the administrative department heads, Mr. Patterson did not consider a raise for Ms. Boyd appropriate at the time. Because he had been advised that the Police Chief was directly supervised by the City Manager and that only the City Manager had the authority to recommend a salary increase for the Police Chief, Mayor Celestin did not propose to the City Council that it either increase Ms. Boyd's salary as Police Chief or amend the City's pay plan to increase the pay grade for the Police Chief so that Ms. Boyd could receive the salary increase included in the Letter of Understanding dated October 23, 2003. Mayor Celestin did, however, assure Ms. Boyd several times that he would "take care of it." At the last meeting of his tenure as mayor, Mayor Celestin proposed to the City Council that Ms. Saint Vil- Joseph receive a salary increase so that she could retain the same salary when she returned to her position as Deputy City Attorney that she received while serving as Interim City Attorney. Mr. Patterson did not oppose the proposal because the salary increase for Ms. Saint Vil-Joseph was not a "pay raise" as such, but, rather, implemented a prior decision of the City Council to achieve parity between the Deputy City Attorney and Deputy City Manager.8 An amendment in the pay plan to increase the pay grade for the Deputy City Attorney was passed by the City Council by a vote of 4 to 0, and the Personnel Action form dated May 2, 2005, reflecting a change of pay grade for the position of Deputy City Attorney was approved by Hans Ottinot, City Attorney; Ms. Jones, personnel directory; and Mr. Patterson, City Manager. Ms. Saint Vil-Joseph is a Haitian American. In October 2005, Ms. Boyd's pay grade was increased from 39 to 41, and she received a concomitant salary increase. Ms. Boyd presented the following testimony as evidence that the City's legitimate, non-discriminatory reason for failing to increase her pay grade and salary when she returned to her position as Police Chief in February 2004 was a pretext for discrimination on the basis of national origin:9 Q.[by Ms. Whitfield] And that's really your issue here, isn't it? You believe that he [Mayor Celestin] violated his letter of understanding with you, correct? He violated his letter of understanding and he's discriminated against me because of the clashes that we had pertaining to the hiring of Haitian African, the clash that we had over his referring to some of my directors are racist, and because I would not void a ticket that was given by another white officer, and the fact that I would not hire some of the people that he -- Q. Well, let me ask you this. When all of that happened, was that before he signed a letter of understanding with you or after? A. It was afterwards. Q. Was is [sic] before you went back to being police chief or after? A. It was during the period. Q. So it was during that period? A. It was before I returned to my position as police chief. Q. Okay. So when? When was it? A. There were several incidents. A couple of police applicants who he referred, one was a personal friend and I had to find out why they were turned down. Another incident pertaining to the -- he thought we weren't doing enough to hire Haitian applicants and wanted me to do away with the -- Q. Let me ask you this. You were both the interim city manager and the police chief at the same time? A. No. I was not. Q. Okay. Who was head of the police department then? A. I had my two assistant chiefs to alternate service as the acting police chief. Q. So as acting police chief, they would be responsible for making recommendations and hiring decision to take to the city manager? A. No. What they would do, if [sic] they would do the complete background process and they will [sic] decide on who was qualified and who was not, and because a couple of people did not get hired the mayor asked me about this and I had to meet with the assistant chief to find out why those individuals were disqualified. And they were for valid reasons, but the mayor did not want to believe me. He thought we were just not doing enough to hire Haitian Africans and made a suggestion -- or made the remark that he was going to bring Guy Eugene (phonetic_. who is a police lieutenant, Haitian police lieutenant with Miami, that maybe he would want my job as police chief. Q. Do you have any documentation or anything else to corroborate what you're telling use was said by Mayor Celestin about your hiring of Haitians or not hiring of Haitians? A. Only the testimony of my staff at the police department. Q. My question is, do you have any documentation here -- A. I didn't write that down. I didn’t -- discussions every day because I was trying to just get through the interim period and returning to be police chief.
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 from Unlawful Employment Practice filed by Gwendolyn Boyd. DONE AND ENTERED this 4th day of March, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 4th day of March, 2008.
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of marital status in terminating his employment.
Findings Of Fact For several years, Petitioner was employed as the Fire Marshall and Fire Inspector for Respondent. He worked in Respondent's Fire Department where he had been employed for some time. His responsibilities included a variety of fire safety matters, including actual firefighting. In April, 1990, the Code Enforcement Officer became ill, and the then- City Manager asked Petitioner to assume these duties. This job required the inspection of properties in the City and issuance of warning and citations for unsafe conditions, such as dilapidated buildings, abandoned cars, and overgrown vegetation obstructing traffic visibility. Petitioner assumed the Code Enforcement duties and typically worked 60 hours per week in discharging all of his responsibilities. A promised raise never materialized, so when a new Fire Chief was hired, Petitioner asked him to try to obtain a raise for Petitioner. By this time, the City had also hired a new City Manager, George Von Drok. Petitioner performed his job duties in an outstanding manner. He got along well with the Fire Chief and Mr. Von Drok, although he may have created some opposition in the community through his vigorous, but fair, enforcement of the City Code. During 1990, Mr. Von Drok lost his administrative assistant due to budgetary pressures. Possibly in response to the Fire Chief's raising the issue of a salary increase for Petitioner, Mr. Von Drok discussed with Petitioner the possibility of a salary raise concurrent with the creation of a new Department of Code Enforcement. Mr. Von Drok was thinking about possibly having Petitioner serve part-time as Mr. Von Drok's administrative assistant. Petitioner agreed to head the new Code Enforcement Department, which was established by act of the City Council on February 24, 1991. Petitioner's typical workday now ran from 8:00 am to 6:00 or 7:00 pm, plus firefighting on weekday nights and weekends. Nothing unusual occurred during the first 60 days of the new department's existence. Although the City was facing budget problems, Mr. Von Drok discussed with Petitioner ideas about making his one-man department more efficient, but he never mentioned the possibility of eliminating the new department. On April 24, 1991, when Petitioner arrived at work, he received a notice of suspension. Petitioner had just discovered that he had been named as a defendant in a civil action alleging that his wife had embezzled $130,000 from a bank where she had worked and alleging that Petitioner knew or reasonably should have known about the embezzlement. Petitioner had learned from the authorities of the alleged embezzlement only a day or two earlier. In fact, Petitioner had no knowledge about any embezzlement committed by his wife, who had suddenly disappeared. His wife had embezzled the money, which Petitioner helped to find and return to the bank. Petitioner himself was never criminally prosecuted, but his wife was convicted of the charges. Mr. Von Drok suspended Petitioner because of the civil charges against him. The suspension was without pay. Mr. Von Drok assured Petitioner that, if the allegations against him were cleared up, he would be reinstated to his job with back pay. In the next few days, it became apparent that Petitioner had had no knowledge of his wife's activities and was entirely innocent. On the afternoon of May 9, 1991, Mr. Von Drok, the Fire Chief, and Petitioner met and discussed the duties of the Fire Marshall, Fire Inspector, and Code Enforcement Officer. Mr. Von Drok indicated that he wanted to move Petitioner back into the Fire Department and transfer the Code Enforcement duties elsewhere. Petitioner responded that that was fine with him. The suspension was lifted May 10, 1991. But when Petitioner returned to work on the morning of May 10, he found that his department had been eliminated and his employment with Respondent terminated. Pursuant to the latest directive of Mr. Von Drok, Petitioner received full pay through that date, so that the suspension was effectively with pay. Mr. Von Drok testified that Petitioner was terminated for budgetary reasons. Mr. Von Drok assigned the Code Enforcement responsibilities to the Police Department and the Fire Marshall and Fire Inspector duties to the Fire Department. The Fire Chief has had to assume the Fire Marshall and Fire Inspector duties because only the Fire Chief and Petitioner had the necessary training and certification to perform these duties. Mr. Von Drok's testimony concerning why he eliminated Petitioner's department is not credible. The department was only created in late February, 1991. Mr. Von Drok testified that another department head, the Superintendent of Parks and Recreation, was terminated due to fiscal pressures on March 7, 1991. If fiscal pressures were already dictating the termination of department heads by the first week of March, it is unrealistic that Mr. Von Drok would have been creating new departments just a couple of weeks earlier. Respondent offers no evidence of unexpected financial pressures suddenly appearing in the two weeks between the creation of Petitioner's new department and the termination of the Superintendent of Parks and Recreation or later March, when Mr. Von Drok testified that he first considered the elimination of Petitioner's new department. In fact, the Superintendent of Parks and Recreation was terminated because of unsatisfactory job performance. He had left keys to a City truck in the ignition. He had failed to open park restrooms before a major event. He had played basketball on City time. And he had never finished his two-year degree as he had promised when he took the job. Likewise, Mr. Von Drok terminated Petitioner for reasons having nothing to do with financial pressures. Respondent terminated Petitioner due to his marital status. If Respondent had not been married to an embezzler, he would not have been terminated. There was no legitimate business reason for the termination of Petitioner. Petitioner lost gross wages and benefits of $88,434.44 and received in other employment and unemployment compensation a total of $16,794.11 for a net loss of $71,640.33. However, these figures are somewhat overstated. The claim for $2500 per year for two years for the loss of the use of a City-supplied car is not allowable because the City-supplied car would have been available only for City business or commuting--neither of which affected Petitioner following his termination. The claim for $9225 in retirement benefits is not allowable because Respondent shall reinstate Petitioner with full credit, in terms of accrued benefits and vesting, under the City retirement plan for the time lost. The claim for $584.44--evidently in uncovered medical expenses--is not allowable because Petitioner has failed to show that these expenditures would have been covered under a medical policy or, if covered, would not have represented deductible amounts. The claims for $300 for school and $2225 in mileage expenses in searching for work are not allowable as they are not a component of back pay. Last, the claim for an additional $1500 in salary for the second year is not allowable given the absence of evidence of such an across-the-board salary hike during the time in question. The allowable claim for back pay is therefore $52,805.89. Petitioner also obligated himself to pay his attorney a reasonable hourly rate plus costs.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order determining that the City of Avon Park committed an unlawful employment practice against Petitioner, prohibiting the commission of such a practice, awarding back pay of $52,805.89, requiring that Petitioner be hired for the next available job in the Avon Park fire department with pay and responsibilities generally commensurate with either of the last two jobs that Petitioner held with the City of Avon Park (or such lesser-paying, less responsible job that becomes available until such higher-paying, more responsible job becomes available), and awarding attorneys' fees and costs in the prosecution of the above-styled case. ENTERED on April 26, 1993, in Tallahassee, Florida. ROBERT E. MEALE 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 on April 26, 1993. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Robert H. Grizzard, II P.O. Box 992 Lakeland, FL 33802-0992 Michael M. Disler Trombley, Lobozzo, et al. 329 South Commerce Ave. Sebring, FL 33870
