The Issue The issue is whether Respondent discriminated against Petitioner in her employment based on her gender or disability, in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Respondent had employed Petitioner as a Toll Equipment Technician/OMST III for over ten years at the time of her termination. Her responsibilities included maintaining the equipment at the toll plaza, troubleshooting shop work, traveling to various work sites, and communicating with the public. On November 17, 1998, while working in the vicinity of traffic at a toll plaza, Respondent was struck by a passing truck. Petitioner went to a clinic where her injuries were examined. When Petitioner returned to work about three days after the accident, she performed light duty for three days. After three days, Petitioner worked without restrictions and performed her full job functions. On January 16, 2000, Petitioner reinjured her back while attempting to lift a monitor over her head while at work. On March 28, 2000, Dr. Hubert Aronson performed a surgery on Petitioner for a herniated disc. On June 6, 2000, Dr. Aronson determined that Petitioner had reached maximum medical improvement, and he rated her with a permanent partial physical impairment of seven percent. He ordered a functional assessment test to identify any work restrictions, prior to releasing her for work. On June 22, 2000, staff of HealthSouth Rehabilitation Hospital conducted a functional assessment test on Petitioner. Based on the assessment, by note dated July 31, 2000, Dr. Aronson returned Petitioner to regular work duties, without restrictions, as of August 1, 2000. Unsure that Petitioner's physician understood the physical demands of Petitioner's job, Mr. Ayala ordered that the Division of Risk Management obtain another functional assessment of Petitioner. By report dated August 18, 2000, Options Plus noted that it had documented the demands of Petitioner's work and presented this material to Dr. Aronson, who again released Petitioner to return to her regular job. Although Mr. Ayala was doubtful of her ability to perform her regular job duties, Petitioner performed her work until Christmas 2000, when she went on leave. While on leave, Petitioner reinjured her back. Petitioner called in sick on January 7, 2001, and informed Mr. Ayala that her back was hurting. A workers' compensation representative called Petitioner and suggested that she visit Dr. Bernard Chapnick, who examined Petitioner on January 9, 2001. Dr. Chapnick restricted Petitioner to light duty and stated that she was not to work, if no light duty were available. Dr. Chapnick made a follow-up appointment for Petitioner on January 16, 2001. When Petitioner returned to work and gave Mr. Ayala the doctor's note, he responded that he had no light duty. He made an imaginary swing with a golf club, implying that Petitioner had injured her back while playing golf. Respondent then placed Petitioner on unpaid medical leave, and Mr. Ayala informed Petitioner that she would be required to resume her regular duties on April 23, 2001. On April 23, 2001, Dr. Aronson released Petitioner for work, but still on light duty. When Petitioner returned to work seeking light duty, Mr. Ayala informed her again that none was available. He offered her another period of unpaid medical leave, but Petitioner declined the offer. By letter dated May 10, 2001, Respondent informed Petitioner that it intended to dismiss her, effective no sooner than ten days from the date of the letter. The reason for dismissal, as stated in the letter, is Petitioner's inability to perform her duties and absence without leave for three or more workdays. Following a Predetermination Conference, by letter dated June 27, 2001, Respondent advised Petitioner that she was terminated, effective June 29, 2001, due to her inability to perform the duties of her position and absence without leave for three or more workdays. Petitioner's complaint that a disabled male coworker received preferential treatment is groundless. At all material times, he was medically cleared to lift up to 50 pounds, which was considerably more than was permitted by Petitioner's light duty.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of October, 2003, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 2nd day of October, 2003. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Roselisa Cocalis 15471 Southwest 110th Terrace Miami, Florida 33196 J. Ann Cowles Assistant General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact Respondent Pace is an employer who is subject to the provisions of Section 760.10, Florida Statutes, in its Florida operations. The company sells retail goods at discount prices to buyers who qualify for membership in the shopping program. During the Christmas merchandising season, it was decided that Respondent Pace would add temporary security staff in Tampa, Florida, until the close of the season. Six people were to be recruited for the positions. Petitioner White, a black male, was hired to fill one of these temporary positions beginning October 25, 1989. The employment contract clearly advised Petitioner the position was temporary, but it was anticipated that the job would last approximately ten weeks. Pursuant to the contract, Petitioner could resign at any time and Respondent could terminate the relationship at any time, with or without cause. Three of the people hired were black, one was Hispanic and two were white. All six temporary employees signed the same type of employment contract. About one month after Petitioner was hired, the front end supervisor observed that the store did not need all six temporary security guards for the season as originally anticipated. It was decided that one of these employees would be terminated. During Petitioner's employment, both the front end supervisor and the assistant front end supervisor found working with him to be difficult. Petitioner often challenged the directives given to him by his two supervisors and was critical and argumentative. He complained about scheduling, objected to break procedures and voiced protest about the small amount of time allowed for breaks. Of all of the temporary employees, Petitioner White was the most obstreperous in his relationship with supervisors and other employees. After discussion between the two supervisors, it was decided that he would be the employee asked to leave. On Friday, December 1, 1989, the front end supervisor resolved that Petitioner would be dismissed before the week was out. The work week ran from Monday through Sunday. In an unrelated event that took place after the termination decision was made, Petitioner White and another temporary security employee had an argument during their shift together. The squabble took place in the presence of customers at the front of the store. It was quickly suppressed by the assistant front end supervisor. After the front end supervisor became aware of the incident, she decided to complete the planned dismissal of Petitioner before his shift ended on that day because his disruptiveness was interfering with employee relations to a greater degree. Her decision was communicated to the store manager and he agreed to be close by when she discharged the Petitioner. When Petitioner was told that his employment was terminated because there was not enough work for six temporary employees, he did not believe the stated reason. He erroneously assumed the adverse personnel action was based solely upon the earlier embroilment with his co-worker. This argument hastened the planned termination by two days, but it was not the deciding factor. Overhiring of temporary seasonal employees is a legitimate, nondiscriminatory reason for termination of temporary employees. There has been no showing that the reason stated for the termination was pretextual. The store manager approached Petitioner and the supervisor after the termination was announced but before the Petitioner had ended his loud protest of his supervisor's decision. The store manager told Petitioner to keep quiet and that he was "damn fired." Petitioner responded to the store manager's pronouncement by saying, "Brother, don't use no damn to me." The store manager then asserted they were not brothers. He called Petitioner a "damn nigger." Petitioner left the workplace, even though he had not cleaned out his locker and his shift had not ended. The derogatory comments relating to race were abusive and took place in the working environment while Petitioner was still in the status of an employee who was going through the discharge process. The use of the racial epithet by the store manager was demeaning and disconcerting. The next day, when Petitioner returned to clean out his locker, the store manager attempted to apologize for his derogatory comment. Petitioner did not accept the apology. Respondent Pace has well established policies which prohibit harassment in the work place. These policies include a prohibition against verbal comments that are derogatory in nature relating to another's race. Harassment of this type is not tolerated at any level of the company and will result in severe disciplinary action, up to an including termination of offending persons. Respondent Pace was not made aware of the store manager's use of the racial epithet except through this proceeding. The front end supervisor removed herself from the discussion between Petitioner and the store manager. She did not overhear the racial epithet. The use of the racial epithet was an isolated event, according to the facts adduced at hearing.
Recommendation Accordingly, it is recommended that the Human Relations commission enter a Final Order dismissing the Petition as an unlawful employment practice has not been demonstrated in this case. RECOMMENDED this 17th day of September, 1991, 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 17th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-3618 Petitioner's proposed findings of fact are addressed as follows: Rejected. Contrary to fact. See HO #9. Rejected. Contrary to fact. See HO #5 - #7. Accepted. See HO #6. Rejected. Irrelevant. Petitioner was a temporary at will employee who was not subject to the company's personnel guidelines for company employees. Rejected. Contrary to fact. See HO #7 and #9. Accepted. Accepted. See HO #15. Rejected. Contrary to fact. See HO #9. Rejected. It was not proved that additional security employees were hired after Petitioner was terminated. In addition, seniority was not the criteria used for termination. The proposed finding is contrary to fact. See HO #5 - #6. Respondent's proposed findings of fact are addressed as follows: Rejected. Irrelevant. Accepted. See HO #3. 3. Accepted. 4. Accepted. See HO #6. 5. Accepted. See HO #7. 6. Accepted. See HO #8. 7. Accepted. See HO #10. 8. Accepted. See HO #13. 9. Accepted. See HO #14 and #15. COPIES FURNISHED: ALBERT A WHITE 809 GRANITE RD BRANDON FL 33510 DONALD C WORKS III ESQ RUDEN BARNETT McCLOSKY SMITH SCHUSTER & RUSSELL 200 E BROWARD BLVD PO BOX 1900 FT LAUDERDALE FL 33302 RONALD M McELRATH EXECUTIVE DIRECTOR FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570 DANA BAIRD ESQ GENERAL COUNSEL FLORIDA COMMISSION ON HUMAN RELATIONS 325 JOHN KNOX ROAD BLDG F SUITE 240 TALLAHASSEE FL 32399-1570
The Issue Whether the suspension of Petitioner was authorized by statutes and rules and was for "good cause shown."
Findings Of Fact Petitioner, Mary Futch, has been employed as a Resident Life Assistant by the Sunland Center in Orlando, Florida, for six (6) years. She has attained permanent status in that classification. Mary Futch was suspended without pay from 2:45 P.M., Friday, January 21, to 11:15 P.M., Thursday, February 3, 1977, for confining a resident to a hazardous area resulting in injury to the resident. The letter of suspension was by certified mail, dated January 21, 1977, and signed by Noel Windsor, Superintendent. Delores Holmes has been a resident of the Sunland Center at Orlando since 1974. She is a well-developed white female weighing approximately 110 pounds. She is a "self-abuser" in that she violently abuses herself. When she is abusing herself, injuring herself, it is difficult to control her actions. On the evening of January 12, 1977, Delores Holmes was violently abusing herself. In the course of self-abuse, Miss Holmes was injured by breaking a window. The Petitioner, Mrs. Futch, had placed the resident, Miss Holmes, in a corner of the ward in order to keep her calm and quiet. She placed a floor mat in front of the resident to try to prevent her movement and to keep her in a quiet corner. One side of the corner of the room was a wall; the other side of the corner in which Miss Holmes was placed was a large window area. Some time after Miss Holmes had been placed in the corner, she screamed and broke the glass in the window. Petitioner heard the scream and the breaking of glass and rushed to her aid and called two others. The three tried to hold Miss Holmes and to put cold compresses on the wounds, but a doctor was needed to treat the injuries. The Petitioner, Mrs. Futch, had a good relationship with the resident, Delores Holmes. She had taught her to be affectionate, to dress herself, among other simple tasks. Prior to being placed in Mrs. Futch's care, she was unable or unwilling to perform these acts. The mat which was placed across the corner of the room in which Miss Holmes had been placed was a floor pad which measures approximately 5 feet by 6 feet and is made of a lightweight material. The mat was placed in front of Miss Holmes to prevent her from abusing herself or leaving the corner. However, it was not such a barrier that would have confined Miss Holmes had she chosen to leave. 7 . The room in which the residents lived had three large windows, including the window that was located in the corner in which the Petitioner had plated the resident, Delores Holmes. The area in which the Petitioner, Mrs. Futch, had placed Miss Holmes was no more hazardous than the other areas at the room. Obviously the room was not intended as a place in which retarded residents would live, but had not been considered as a hazardous area.
Recommendation Reverse the suspension of Petitioner, Mary B. Futch. DONE and ORDERED this 10th day of November, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1977. COPIES FURNISHED: Mrs. Dorothy Roberts Appeals Coordinator Department of Administration 530 Carlton Building Tallahassee, Florida 32304 Douglas Whitney, Esquire 1350 North Orange Avenue Winter Park, Florida 32789 Ben R. Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303
The Issue The issues are whether the Respondents committed unlawful employment practices against Petitioner, and if so, to what relief is she entitled.
Findings Of Fact In the spring of 1994, Respondent CSD began operating a residential detention program for juvenile offenders pursuant to a contract with the Department of Juvenile Justice. The purpose of the program, commonly known as Hamilton House, was to provide redirection to the lives of its youthful residents/clients. Hamilton House had 48 beds divided between two dormitories. Respondent CSD assigned each resident to the appropriate dormitory, level six or level eight, depending on the type of security and rehabilitative services required. The program included an educational program as well as facilities for vocational and recreational activities. Respondent CSD employed Petitioner, a 51 year-old white female, as a resident advisor at Hamilton House from March 24, 1994 through June 30, 1996. Petitioner initially worked the 11:00 p.m. to 7:00 a.m. shift in the level six dormitory. At times she served as the acting shift supervisor though she was not paid a supervisor's wages. When Petitioner began working for Respondent CSD, she lived with her elderly mother, Lotus Musgrove, whose colon cancer was in remission. At that time, Mrs. Musgrove was able to live independently and did not need a caretaker. On April 24, 1994, some of the clients managed to gain access to a bottle containing an alcoholic beverage. Petitioner and other employees received a verbal warning for failing to adequately monitor the behavior and movement of the clients. A training letter was placed in each employee's personnel file. In May of 1995, Respondent CSD hired Bobby Williams, Sr., as a resident advisor in the level eight dormitory. Mr. Williams is a black male. He eventually assumed the position of shift supervisor for the entire facility. There is no evidence that Petitioner sought this full-time position or a similar supervisory position at any time during her employment with Respondent CSD. In October of 1995, some of the clients accused Petitioner and another staff member of inappropriate conduct including, but not limited to, furnishing them with prohibited magazines and movies. As a result of the allegations, Respondent CSD suspended Petitioner and her co-worker without pay on October 18, 1995. By letter dated October 20, 1995, Respondent CSD advised Petitioner in writing that there was insufficient evidence of misconduct to warrant termination of her employment. However, the letter stated that Petitioner had violated company policy and procedure by allowing a youth to leave his room for extended periods after curfew. Respondent CSD paid Petitioner and her co- worker for the time they were suspended during the internal investigation. Respondent CSD subsequently reassigned Petitioner and her co-worker to work in a different dormitory and on a different shift. The change in time and location of their work shift was necessary to ensure there was no contact between them and the clients who had accused them of improper conduct. Petitioner was assigned to work the 3:00 p.m. - 11:00 p.m. shift in the level eight dormitory. In a written statement dated October 23, 1995, Petitioner objected to the change in her shift. She preferred to continue working the 11:00 p.m. - 7:00 a.m. shift. She asserted that, during the day, she took care of her 78 year-old mother who had cancer. Respondent CSD did not immediately honor Petitioner's request. On or about November 24, 1995, Petitioner voluntarily purchased some supplies in the amount of $20.98 from a retail store. The supplies included the following: hand sprayers, cotton swabs, hydrogen peroxide, rubbing alcohol, highlighters, marker, Sharpies, and other miscellaneous items. Petitioner requested reimbursement from Respondent CSD because she intended to use the supplies at work. Respondent CSD declined to reimburse Petitioner for the supplies. There is no evidence that Respondent CSD ever authorized the purchase of the supplies. On December 11, 1995, a resident in the level eight dormitory attempted to discard a container of contraband tobacco. Petitioner detected his effort and responded appropriately. She received a letter of commendation for exemplary action which was placed in her personnel file. On January 23, 1996, the Office of the Inspector General of the Department of Juvenile Justice made a formal and final determination that "[i]t is inconclusive that staff members Julie Toughton and Alice Musgrove engaged in improper conduct with clients." On or about February 1, 1996, Petitioner took a box of pens and pencils from a client's desk. The client became upset and exhibited inappropriate behavior toward Petitioner. As a result of the client's tantrum, Petitioner took token-economy points from the client. Petitioner filed a written complaint dated February 4, 1996, with Respondent CSD after learning that one of her supervisors, Mike Myers, changed the client's point sheet. Petitioner's February 4, 1996, statement also asserted that Supervisor Myers was mishandling clients' mail. She complained that he was logging clients' mail and making the clients read their personnel mail to him. According to Petitioner, handling client mail was the responsibility of "line staff." On one occasion in February 1996, Petitioner was 30 minutes late reporting to her assigned duty station in the dormitory. She spent that time in the administration building because she refused to work with one of her co-workers. Supervisor Myers was responsible for changing Petitioner's time sheet to reflect a 30-minute deduction in regular time. On another occasion in February 1996, Petitioner and other employees worked two hours of overtime due to a crisis situation with one of the clients. Petitioner elected to "bank" the overtime rather than receive time-and-one-half of overtime pay. The other employees chose to receive overtime pay. Petitioner was off from work on February 22-23, 1996. When Petitioner arrived at work on February 24, 1996, her time sheet was not with the time sheets of other employees. Petitioner's time sheet was locked in a supervisor's office until February 26, 1996, because the supervisor was not at work. There is no indication in the record whether Petitioner's time sheet was locked up inadvertently or due to a dispute over Petitioner's wages. On March 1, 1996, Petitioner filed a written grievance with Respondent CSD regarding her pay. She claimed that Supervisor Myers was harassing her and discriminating against her by changing her time sheet without her knowledge. Specifically, Petitioner complained that Mr. Myers cheated her out of 30 minutes of regular time on one occasion and two hours of overtime on another occasion. She complained that her time sheet was locked in a supervisor's office for four days. On March 4, 1996, the Program Director, Dale Edwards, agreed that Petitioner should not be penalized for one-half hour of regular pay because she was in the administration building during the disputed time. Additionally, Mr. Edwards directed Supervisor Myers not to change an employee's time sheet without prior approval. He also requested that Petitioner furnish documentation that the company owed her for the two hours of overtime. Mr. Edwards was under the mistaken impression that the dispute over Petitioner's time sheet had been resolved. In March of 1996, Petitioner was working the midnight shift in dormitory eight consistent with her written request dated October 23, 1995. On March 18, 1996 and March 27, 1996, Petitioner made written requests for a change to the 7:00 a.m. - 3:00 p.m. shift. Petitioner specifically wanted to replace a Ms. Aikens on the morning shift. Respondent CSD did not honor Petitioner's request. However, there is no evidence showing that Ms. Aiken's position was ever filled, and if so, whether Respondent CSD selected a person of a different race or a younger to file the position. Petitioner was absent from work between April 8, 1996, and April 16, 1996, on April 22, 1996, and on April 29, 1996, due to illness and/or medical appointments. While she was absent, her inner-office mail box became so full that the mail had to be removed. The administrative manager gave Petitioner's mail to her supervisor. On April 23, 1996, Supervisor Myers completed Petitioner's annual performance appraisal for the period March 14, 1995 through March 14, 1996. Petitioner disagreed with the determination that she had difficulty communicating with others. Petitioner's mental health counselor, Christine Clark, sent Mr. Edwards an unsolicited letter dated April 23, 1996. According to the letter, Ms. Clark was treating Petitioner for family/employment related stress reduction. The letter states as follows in pertinent part: Due to the demands of her home environment, caretaking of her elderly mother who is dying from colon cancer, I am recommending that Ms. Musgrove be reassigned new working hours, namely a day schedule of approximately 8:00 AM until 5:00 PM in order to effectively and efficiently facilitate the evening and night care of her mother. In addition, Ms. Musgrove appears to have unresolved issues regarding her personnel file and salary still due to her for 30 minutes or .5 hour pay as well as two hours uncompensated work from several weeks ago. I personally read your approval for this compensation but apparently this has still not yet been indicated on her pay check. There also remain the allegations of her misconduct charges that appears not to be fully resolved. As an employee she does have the legal right to have these fully addressed and challenged. From my understanding that although the misconduct charges have been dropped, there are still areas that compromise Ms. Musgrove's reputation as a resident advisor. Mr. Edwards did not disclose the contents of Ms. Clark's letter to any employee of Respondent CSD other than his superiors, who advised him to get a release from Petitioner before responding to the letter. After receiving Ms. Clark's letter, Mr. Edwards had a telephone conversation with Petitioner's mother because Petitioner was not at work or at home. During the conversation, Mr. Edwards inquired about the mother's health. Mr. Edwards learned that Mrs. Musgrove's cancer had been in remission since 1993 and that she no longer required assistance with daily living activities. Mr. Edwards did not disclose any information regarding Petitioner's employment status, medical condition, or personal business to Mrs. Musgrove. Petitioner's sister placed an unsolicited telephone call to Mr. Edwards several days after he talked to Mrs. Musgrove. The purpose of the call was to thank Mr. Edwards for his concern over Mrs. Musgrove's health. During the telephone call, Mr. Edwards and Petitioner's sister did not exchange any information relating to Petitioner's employment, medical condition, or personal business. On April 29, 1996, all staff at Hamilton House received a memorandum advising them as follows, in pertinent part: As a result of the recent competitive bid conducted by District 3, Department of Juvenile Justice, Gator Human Services has been awarded the contract to operate the Hamilton County Youth Treatment Complex starting July 1, 1996. The memorandum also included information regarding the transfer of operations to the new service provider. Respondent CSD advised employees that, if requested, it would supply Gator Human Services the name, position title, hire date, and current salary of each employee of record. Respondent CSD stated that no other information would be given to the new organization without the consent of the employee. On May 1, 1996, Mr. Edwards wrote two memoranda regarding Petitioner's pay. First, Mr. Edwards directed the administrative manager to pay Petitioner for .5 hours of regular wages out of the company's petty cash fund and to get a receipt for the payment. Second, he directed the resident life manager to allow Petitioner to leave work two hours early (with pay) at a time of her choosing within the next work week. Petitioner could not "bank" the time indefinitely because Respondent CSD's contract was scheduled to expire on June 30, 1996. Mr. Edwards phoned Petitioner at home on May 2, 1996, to request a written release so that he could respond to Ms. Clark's letter. Petitioner wrote that release on May 3, 1996. The release gave Mr. Edwards permission to disclose confidential information to Ms. Clark. On May 3, 1996, Petitioner signed a written acknowledgment that receipt of $4.06 in payment for .5 regular hours would end the issue of the .5 regular hours owed to her. On May 10, 1996, Respondent Gator informed the staff at Hamilton House of the procedure for handling applications for employment with Respondent Gator's new program, Tiger Success Center. Applications were due on or before May 28, 1996. Interviews were to be scheduled between May 28, 1996, and June 7, 1996. Applicants would be advised of the final selections and employment offers by June 14, 1996. Respondent Gator requested that each applicant take a copy of their most recent performance appraisal to their employment interview. By letter dated May 13, 1996, Mr. Edwards responded to Ms. Clark's inquiry. First, he explained that questions regarding Petitioner's compensation had been resolved. Second, he stated that letters from the Department of Juvenile Justice and from the Office of the Inspector General had been added to Petitioner's personnel file, clearing her of all misconduct allegations. Third, he explained that the day shift would be the least desirable shift in terms of stress reduction because the activity level of the residents is highest during the day. Mr. Edwards also revealed that Petitioner's mother was treated successfully for cancer in 1993 and that her current health failed to support the need for a change in Petitioner's shift. Finally, Mr. Edwards noted that he had to consider the needs of the residents and other staff. A copy of Ms. Clark's inquiry and Mr. Edwards' response were placed in Petitioner's personnel file. Neither of the documents were disclosed to unauthorized persons. On May 22, 1996, the employees at Hamilton House received another memorandum advising them that after June 30, 1996, Respondent CSD would no longer operate the facility. The employees were encouraged to apply for employment with the new organization. Petitioner was scheduled for an employment interview on May 30, 1996. However, the interview was rescheduled because she was unable to keep the appointment. Petitioner's application for employment with Respondent Gator is dated May 31, 1996. She also furnished Respondent Gator with copies of three performance appraisals. Petitioner's signature on the application authorized Respondent Gator to make inquiries of references and former employers regarding her general character and past performance. There is no evidence that Respondent Gator ever made any such inquiries about Petitioner. A panel of three people representing Respondent Gator interviewed Petitioner. The panel asked her the same questions that they asked other applicants. Petitioner was very negative and critical of the existing program and Respondent CSD during her interview. After the interview, each member of the interview panel tallied their score sheets independently. All three agreed that Petitioner should not be given further consideration for employment with Respondent Gator because of her negative attitude and low interview scores. On June 13, 1996, Petitioner received a memorandum from Respondent Gator stating that the company was unable to offer her a position of employment. That same day, Respondent Gator offered employment to every other Hamilton House staff applicant except one black male, Mr. Humphrey. Respondent Gator hired a black female, Latasha Bristol, who worked in the level eight dormitory with Petitioner. Ms. Bristol is younger than Petitioner. However, she was not hired to replace Petitioner. Respondent Gator hired Ms. Bristol to work in the level six dormitory. Respondent Gator offered an employment position to a white female, Lucy Oxendine. Ms. Oxendine was over 60 years old at the time. She declined to accept a job with Respondent Gator for personal reasons. Mr. Edwards was hired by Respondent Gator to continue as program director after July 1, 1996. However, neither he nor any other employee of Respondent CSD shared any information about Petitioner with Respondent Gator or had any input into Respondent Gator's decision not to hire Petitioner. Respondent Gator based its decision not to employ Petitioner solely on the results of her interview which was very negative. On June 14, 1996, the staff at Hamilton House received a memorandum stating that anyone interested in accepting employment with Respondent Gator must sign up on June 19, 1996. On June 14, 1996, Petitioner's doctor faxed a medical excuse to Respondent CSD stating that Petitioner could not return to work for an undetermined period of time. The document indicates that Petitioner's diagnosis involved anxiety, depression, and work-related stress. The doctor commented that Petitioner was the primary caretaker of her mother who was terminally ill with cancer. The doctor's June 14, 1996, fax was received by Respondent CSD in the administrative manager's office. It was on her desk for a brief period of time before it was delivered to Mr. Edwards. There is no credible evidence that any employee of Respondent CSD disclosed the contents of the fax to unauthorized persons. Petitioner's doctor did not give her permission to return to work until after July 1, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that FCHR enter a Final Order dismissing Petitioner's Charges of Discrimination against both Respondent CSD and Respondent Gator. DONE AND ENTERED this 23rd day of July, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1998. COPIES FURNISHED: H. B. Stivers, Esquire Levine and Stivers 245 East Virginia Street Tallahassee, Florida 32301 Faye Musgrove Post Office Box 657 Live Oak, Florida 32064 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether Respondent had a sufficient amount of workers’ compensation coverage during the time period in question; and, if not, what penalty should be imposed.
Findings Of Fact The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Kent Howe works for the Division as a compliance investigator based in Orlando, Florida. As part of his job responsibilities, Mr. Howe visits construction sites in order to verify that employers in the construction industry have obtained workers’ compensation coverage for their employees. Mr. Kehr was the owner and sole corporate officer of JNK. Mr. Howe visited a construction site in Port Orange, Florida, on the morning of December 10, 2015, and saw Mr. Kehr and two other men building the interior walls/frames of a house. Mr. Howe talked to the two men (James Hicks and James Garthwait) working with Mr. Kehr, and they reported that Mr. Kehr was paying them approximately $8.00 an hour. Mr. Kehr told Mr. Howe that Messrs. Hicks and Garthwait had been working for him for approximately two hours that morning. Mr. Kehr also stated that he had not obtained workers’ compensation coverage for Messrs. Hicks and Garthwait. Following those conversations, Mr. Howe returned to his car and accessed the Division’s Coverage and Compliance Automated System (“CCAS”) and learned that JNK had no workers’ compensation coverage. Mr. Howe also determined from CCAS that Mr. Kehr had obtained an exemption from workers’ compensation coverage that had been in effect from November 18, 2014, through November of 2016.2/ After relaying that information to his supervisor, Mr. Howe received authorization to serve Mr. Kehr with a Stop- Work Order, and he did so on December 10, 2015. That Stop-Work Order required JNK to “cease all business operations for all worksites in the State” based on the Division’s determination that JNK had failed to obtain workers’ compensation coverage. In addition, the Stop-Work Order stated that JNK would be penalized an amount “[e]qual to 2 times the amount [JNK] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it [had] failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order, Mr. Howe also served a “Request for Production of Business Records for Penalty Assessment Calculation” (“the BRR”) on Mr. Kehr. In order to ascertain JNK’s payroll disbursements during the relevant time period and the resulting penalty for JNK’s failure to obtain workers’ compensation coverage, the BRR requested that JNK remit several different types of business records covering the period from November 10, 2014, through December 10, 2015. Mr. Howe explained during the final hearing that the Division usually reviews business records pertaining to the two years preceding the Stop Work Order.3/ Because JNK came into existence on November 10, 2014, the Division’s review was limited to examining the period between November 10, 2014, and December 10, 2015. The business records sought by the Division included items such as time sheets, payroll summaries, check journals, certificates of exemption, and evidence that any JNK subcontractors had obtained workers’ compensation coverage. Section 440.107(7)(e) provides that if an employer fails to provide business records sufficient to enable the Department to ascertain the employer’s actual payroll for the time period in question, then the Division will estimate the employer’s actual payroll for that time period by imputing the employer’s payroll based on the statewide average weekly wage. The Division then multiplies that amount by two. JNK did not provide business records typically sought by the Division. Instead, JNK responded to the BRR by producing a written statement from Mr. Kehr indicating that he founded JNK in November of 2014, but did no work until July of 2015. That initial job involved fixing a set of stairs for $200. Afterwards, Mr. Kehr performed three separate small jobs between July and November of 2015, earning approximately $550. Because the Division could not ascertain JNK’s actual payroll from the documentation provided by JNK, the Division imputed JNK’s payroll for the time period in question and issued an Amended Order of Penalty Assessment on January 19, 2016, seeking to impose a penalty of $61,424.04. Phillip Sley calculated the aforementioned penalty amount by filling out a worksheet that has been adopted by the Division through Florida Administrative Code Rule 69L-6.027. The first step in completing the worksheet required Mr. Sley to assign a classification code to the type of work that Mr. Howe witnessed Messrs. Kehr, Hicks and Garthwait performing at the Port Orange worksite on December 10, 2015. Classification codes come from the Scopes® Manual, which has been adopted by the Department through rule 69L-6.021. Each code within the Scopes® Manual pertains to an occupation or type of work, and each code has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. The imputed weekly payroll for each employee and corporate officer “shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” See Fla. Admin. Code. R. 69L-6.028(3)(d). In the instant case, Mr. Sley determined “5645” was the appropriate classification code. According to the Scopes Manual, [w]hen all of the carpentry work in connection with the construction of residential dwellings not exceeding three stories in height is performed by employees of the same carpentry contractor or general contractor responsible for the entire dwelling construction project, the work is assigned to Code 5645. This includes the construction of the sill, rough framework, rough floor, wood or light-gauge steel studs, wood or lighted-gauge steel joists, rafters, roof deck, all types of roofing materials, sidewall sheathing, siding, doors, wallboard installation, lathing, windows, stairs, finished flooring, cabinet installation, fencing, detached structures, and all interior wood trim. Mr. Sley’s next step in calculating the penalty amount was to determine the period of non-compliance. With regard to Mr. Kehr, the Department asserted that JNK failed to have workers’ compensation coverage between the date of JNK’s inception (November 10, 2014) and the date that Mr. Kehr received an exemption from the workers’ compensation coverage requirement (November 18, 2014). Despite having no evidence that Messrs. Hicks and Garthwait worked for JNK on any day other than December 10, 2015, the Division’s penalty calculation was based on an assumption that Messrs. Hicks and Garthwait worked for JNK from November 10, 2014, through December 10, 2015. Mr. Sley’s next step was to calculate JNK’s gross payroll for the time period in question. Because JNK did not provide the Division with business records that would have enabled the Division to calculate JNK’s actual payroll, Mr. Sley based JNK’s payroll on the statewide average weekly wage determined by the Department of Economic Opportunity for the time period in question.4/ Mr. Sley then multiplied that amount by two.5/ After converting the payroll numbers into a percentage, Mr. Sley multiplied the payroll amounts by the approved manual rate. As noted above, every classification code is associated with a particular manual rate determined by the Office of Insurance Regulation, and a manual rate corresponds to the risk associated with a particular occupation or type of work. Manual rates associated with potentially dangerous activities will have higher manual rates than activities with little or no potential danger. Mr. Sley’s next step was to calculate a premium for obtaining workers compensation coverage for Messrs. Kehr, Hicks, and Garthwait. Mr. Sley then multiplied that premium by two in order to calculate the individual penalties resulting from JNK not having workers’ compensation coverage for Messrs. Kehr, Hicks, and Garthwait. The sum of those amounts was $61,424.04. The evidence produced at the final hearing established that Mr. Sley utilized the correct class code, average weekly wage, and manual rates in his calculation of the penalty set forth in the Amended Order of Penalty Assessment. The Division has demonstrated by clear and convincing evidence that JNK was in violation of the workers’ compensation coverage requirements of chapter 440. In particular, the Division proved by clear and convincing evidence that Mr. Kehr had no workers’ compensation coverage for himself and no exemption from November 10, 2014, through November 17, 2014. However, the Division did not demonstrate by clear and convincing evidence that Messrs. Hicks and Garthwait were employees of JNK on any day other than December 10, 2015. Mr. Kehr testified during the final hearing that Messrs. Hicks and Garthwait were working for him on December 10, 2015. He also testified that he was paying them at a rate of $8.00 an hour. However, Mr. Kehr persuasively testified that Messrs. Hicks and Garthwait had not worked for him at any other time between November 10, 2014, and December 10, 2015. The undersigned finds Mr. Kehr’s testimony on this point to be credible. Messrs. Hicks and Garthwait did not testify during the final hearing in this matter. There is no evidence that Messrs. Hicks and Garthwait worked for JNK at any time other than December 10, 2015. Because there is no evidence indicating that Messrs. Hicks and Garthwait were employees of JNK at any time other than December 10, 2015, during the time period in question, the undersigned finds that the Department failed to carry its burden of proving that $61,424.04 is the appropriate penalty. Based on the above findings, the undersigned finds that the correct penalty resulting from Mr. Kehr’s lack of coverage is $627.48. The worksheet completed by Mr. Sley indicates that is the amount of the $61,424.04 penalty associated with Mr. Kehr’s lack of coverage. As for the penalties associated with the lack of coverage for Messrs. Hicks and Garthwait on December 10, 2015, the undersigned multiplied the average weekly wage utilized by the Division ($841.57) by two. That results in a weekly gross payroll amount of $1,683.14. Dividing $1,683.14 by five results in a daily gross payroll amount of $336.63. Dividing $336.63 by 100 and then multiplying the result by 15.91 (the approved manual rate utilized by the Division for the period from January 1, 2015, through December 10, 2015) yields a daily premium of $53.62. Multiplying $53.62 by two results in a penalty of $107.23. Multiplying $107.23 by two yields $214.46, JNK’s penalty for not having workers’ compensation coverage for Messrs. Hicks and Garthwait on December 10, 2015. JNK’s total penalty is $841.94. Because section 440.107(7)(d)1. mandates a minimum penalty of $1,000, the undersigned finds that $1,000 is the correct penalty for the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order imposing impose a $1,000 penalty on Donald Kehr, d/b/a JNK Framing Inc., a Dissolved Florida Corporation. DONE AND ENTERED this 10th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of August, 2016.
The Issue Whether Respondent is guilty of an unlawful employment practice, to wit: constructively discharging Petitioner on the basis of handicap discrimination without reasonable accommodation.
Findings Of Fact Respondent Lake County Sheriff's Office (LCSO), constitutes an "employer" as defined in Chapter 760, Florida Statutes. Chris Daniels took office as the elected Sheriff of Lake County, Florida, in January 2005. He had been with Respondent LCSO for 18 years. The sheriff is the chief law enforcement officer for Lake County; operates the Lake County Jail for the Board of County Commissioners; and manages security and bailiffs for the Lake County Courthouse. His responsibilities also include providing final approval for staffing levels at the Lake County Jail. In 2005, Petitioner had been employed as a detention officer at the Lake County Jail for 16 years. He is a certified corrections officer. Corrections/detention officers assigned to the inmate housing/security areas at the jail work 12-hour shifts from 6:00 a.m. to 6:00 p.m. They are assigned to either "A," "B," "C," or "D" Squads. The squads rotate from day to night, and from night to day, shifts every four months. Officers assigned to inmate security are not normally assigned permanent shifts. Petitioner was such an officer. Working on rotating shifts is an essential function of working in the inmate housing area of the jail, as detailed in the job description for corrections officers as follows: . . . ensures a timely transmission of pertinent information and materials to other correctional personnel assigned to the same and/or the next shift. Petitioner understood at the beginning of his employment with LCSO that he was expected to work rotating shifts, and he did, in fact, work rotating shifts until 1996. Other corrections officers assigned to laundry, the jail kitchen, inmate transportation and other administrative functions permanently work days from 8:30 a.m. to 5:00 p.m. Monday through Friday, without shift changes. Such positions with permanent day shifts have become available over the years. However, Petitioner last sought such a position in 1997 or 1998. Petitioner was working as a detention/corrections officer for Respondent when he was diagnosed with diabetes in 1996. Petitioner's diabetes causes tingling in his hands and feet, impotence, floaters in his eyes, dizziness, profuse sweating, frequent urination, a weakening immune system and occasional outbreaks of boils. Petitioner’s Exhibit 4 reveals that he takes multiple oral medications and that each kind of medication ideally should be taken at the same time of day, each day, but there are instructions on how to compensate if a dose is missed. With the exception of working rotating shifts, Petitioner was able at all times to perform the essential functions of a corrections officer for Respondent. The Veterans’ Administration pays Petitioner $218.00 per month because it believes his diabetes was induced by Agent Orange he encountered while in Viet Nam. At Petitioner's request, Respondent allowed Petitioner to work a permanent day shift from 1996 to June 30, 2005, when he retired. Petitioner testified he has worked in the past as a military medic and as a physician's assistant in correction facilities, so he is knowledgeable about the horrific, and sometimes fatal, effects of uncontrolled diabetes. Petitioner expected to live a normal life so long as he controlled his diabetes. Petitioner claims to have explained over the years to all his superiors that he needed to consistently take his medications at the same time of day. However, he did not offer any evidence in the present proceeding to explain why he could not take his medications consistently on a 24-hour clock, e.g. during nights, as opposed to during days. There have been periods when he experienced problems with his diabetes while working a permanent day shift. His medications have been adjusted several times since 1996. All witnesses agreed that Petitioner spent 18 months alone in a permanent day position in the third-floor control room. Petitioner claimed that he was assigned this long period of duty on the third-floor as “punishment” for being allowed to permanently work a day shift. He maintained, without any supporting evidence, that being assigned to a single position for more than a few months this way was unusual. However, although Respondent assigned Petitioner to the third-floor control room alone for a duration of 18 months, Respondent also assigned a non-diabetic employee alone there for about one year. Petitioner speculated, again without any supporting evidence, that the non-diabetic employee was also being punished for something. Both Petitioner and the non-diabetic employee experienced being confined to the control room without a restroom. Having to urinate when no other officer could stand- in for them created a hardship on both men. On one occasion, the non-diabetic employee urinated in a garbage can. At the date of hearing, Gary Borders had been with LCSO for 17 years and served as its Chief Deputy.1/ On the date of hearing, and at all times material, Chief Borders’ duties included responsibility for the day-to-day operations of the Lake County Jail and the Lake County Courthouse and for training. Petitioner claims to have frequently protested to many superiors about not having a restroom on the third-floor and not being allowed to bring food in for his diabetes. He also claimed to have specifically asked Chief Borders to be transferred from service on the third-floor, but Chief Borders did not recall more than one vague conversation concerning Petitioner’s complaint about how long Petitioner had been posted there and that he had told Petitioner he, Borders, had no problem with Petitioner’s being transferred elsewhere in the jail. It is not clear when, precisely, this 18 month-period occurred. Because Petitioner was on a permanent day shift from 1996-1997 to 2005 (eight years), and Petitioner testified his 18-month posting on the third-floor was "over" and was from 2003-2005, his time on the third-floor was not affirmatively shown to have occurred within the 365 days immediately preceding the filing of his Charge of Discrimination with FCHR on December 8, 2005. When Sheriff Daniels took office in January 2005, Chief Borders advised him that because the date for the squads to rotate shifts (see Finding of Fact 4) was due to occur on May 1, 2005, the number of persons assigned to permanent shifts was affecting Chief Borders' ability to make assignments. When corrections officers working in inmate housing of the jail are assigned permanent shifts, staff shortages can occur on other shifts. Chief Borders further advised the new sheriff that he, Borders, was receiving additional requests for permanent shifts. While discussing why there were so many employees assigned permanent shifts, and not subject to the standard four months' rollover of the squads from day-to-night and night-to- day shifts, Sheriff Daniels and Chief Borders concluded that LCSO needed a formal method of differentiating between those employees who genuinely needed a permanent day or night shift and those employees who merely wanted a permanent shift assignment. To determine which employees needed a permanent shift as an accommodation for their specific condition or situation, Sheriff Daniels instructed Chief Borders to send a memorandum to the 12-14 employees assigned to permanent shifts, requiring those employees to provide medical evidence of their need for a permanent shift assignment. On March 25, 2005, Chief Borders sent all employees assigned to permanent shifts the following memorandum: There is a requirement for rotating shift work for Detention Deputies, Auxiliary Detention Deputies and Deputy Sheriffs at the Lake County Sheriff's Office. Please ask your physician to review the Job Description for Detention Deputy (or Auxiliary) and ask if you can perform all the job requirements. If you are cross- sworn, also have your physician review the Deputy Sheriff job description and ask if you can perform all of the job requirements for that position. When your job description(s) have been reviewed, bring your physician's letter and all related supporting material (diagnosis, prognosis, treatment notes, test results and any other documents that would assist the agency in evaluating your request) to me so that our agency physician can review them for possible accommodation. Because shift changes will take place on May 1, 2005, you must have your documents to me no later than 5:00 P.M. on Friday, April 15, 2005. If I do not hear back from you by Friday, April 15, 2005 at 5:00 P.M., I will take it that you are available for rotating shift work assignment. The process envisioned by the Sheriff and Chief was that when an employee, who wanted an accommodation, provided the requested information from his own treating physician, that employee's supervisor would pass the information along to LCSO's physician, and an interactive process would begin. As of the date of hearing, LCSO had employees working in modified jobs, including job sharing, and an accommodation had been made for a person in a wheelchair. In 2005, LCSO also fully intended to accommodate those employees who provided proof from their physicians of their need for other accommodations. Petitioner testified that he did not want to repeatedly roll over from day-to-night shifts every four months because past experience had taught him that each time his shift changed, it took him at least two weeks to properly regulate and space his intake of food, liquids, and medications, in such a way that his diabetes was controlled and he felt alert and capable. In response to receiving the March 25, 2005, memorandum, Petitioner presented Chief Borders with a note from Petitioner's primary physician, Dr. Gelin, written on a prescription pad, stating: brittle diabetic pt needs to work day shift only. Petitioner did not present any other written information in response to Respondent LCSO’s detailed request. Petitioner testified that he discussed Dr. Gelin’s note with Chief Borders to the extent that he told Borders that if anyone on behalf of LCSO phoned Dr. Gelin, Dr. Gelin would discuss or fax further information to that person; Chief Borders does not recall this conversation. Chief Borders is a diabetic himself, but he had never heard the term, "brittle diabetic." It is Petitioner's position that because, in Dr. Gelin's private conversations with Petitioner, Dr. Gelin had told Petitioner that “any doctor” should know the sequelae and effects of "brittle diabetes," all Petitioner’s LCSO superiors needed to do was pass on Dr. Gelin’s prescription note to LCSO’s consulting physician in order for Petitioner to be accommodated. Petitioner believed it was his superiors' duty to make Dr. Gelin submit the written materials they wanted. Sheriff Daniels generally distrusted the information that physicians submitted on prescription pads, because, in his experience, when the employee or physician was pressed for details, there was often no supporting information forthcoming. Therefore, he did not believe the information on Petitioner's prescription slip, as described to him by Chief Borders, was sufficient to begin the interactive process with LCSO’s Human Resources Department or its consulting physician. Neither Sheriff Daniels nor Chief Borders presented Petitioner's prescription slip to them. It was decided between the Sheriff and the Chief, that Chief Borders would try to get more detailed information from Petitioner. Petitioner testified that he tried to get more information from his primary physician, Dr. Gelin, but Dr. Gelin would not provide in writing the detailed information requested by LCSO’s March 25, 2005, memorandum. On April 22, 2005, Chief Borders wrote Petitioner that Dr. Gelin's prescription pad note was insufficient and that Petitioner would not be reassigned to a permanent day shift position, stating: I have reviewed the information provided by your physician and find there is insufficient evidence presented to justify a permanent shift assignment. As such, your request is denied. You will rotate day/nights with your assigned shift during the normal rotation. None of the 12-14 employees assigned to permanent shifts, had submitted the requested information, so all of them, including Petitioner, were assigned to a rotating shift. The Sheriff and Chief received no report of complaints from any employee. However, on April 26, 2005, Petitioner received a memo stating that effective May 4, 2005, he would be assigned to "C" squad. "A" Squad, where Petitioner was then assigned, was scheduled to rotate from day shift to night shift on May 1, 2005, and "C" Squad was due to rotate from the night shift to the day shift on the same date. Accordingly, LCSO’s purpose in transferring Petitioner to “C” Squad was to provide him with four more months (until September 1, 2005) to obtain the required medical opinion and detailed supporting documentation from his treating physician. The "A" to "C" Squad change also would have allowed Petitioner to remain on a day shift, without interruption, and allow him an additional four months in which to gather medical information from any appropriate source to support his request to indefinitely remain on a permanent day shift. In fact, Petitioner was regularly seeing Dr. Flores, at the Veterans’ Administration, as well as Dr. Gelin. Dr. Flores coordinated oversight of Petitioner's medical condition with Dr. Gelin, who is Petitioner's private physician. However, Petitioner did not approach Dr. Flores, and he did not go back to Dr. Gelin, until after Petitioner retired. Petitioner had hoped to work another six years before retiring, but on May 13, 2005, while still assigned to the day shift, Petitioner submitted a letter of resignation, hoping that someone in his chain of command would try to talk him out of leaving. He expected his supervisors to "workout" a permanent day shift for him, instead of permitting him to retire.2/ Petitioner's resignation letter stated: Regrettable [sic] I am submitting my letter of resignation effective June 30, 2005. Your recent decision denying me permission to remain on the day shift in spite of my doctor's recommendation to remain on the day shift because of my medical condition (brittle diabetic) has forced me to retire earlier than I had planned to. There is no other way that I can regulate my medication switching from days to nights . . . Respondent never required Petitioner to work the night shift, and he never did work the night shift after 1996-1997. Petitioner gave notice of his retirement in May 2005, rather than work in "C" Squad on the day shift until September 1, 2005, or continue to try to obtain additional medical information that would allow him to indefinitely remain on a permanent day shift. Petitioner elected to retire effective June 30, 2005, because, upon advice of “Retirement” he believed it was more financially beneficial for him to retire in June 2005, rather than wait until January 2006.3/ Since January 1, 2006, Petitioner has been employed managing real property in Florida and Costa Rica. Petitioner testified that when he retired, he could perform all the duties required by his detention/corrections officer job description, and perhaps other duties as well, except for the rotating shifts. He believes, but offered no supporting documentation, that rotating shifts are counter- productive and are on their way out in most jails. He further testified that he could probably even work the rotating shifts required by this employer but he believed that to do so would have put him in a health crisis due to his diabetes and multiple medications.
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. DONE AND ENTERED this 25th day of January, 2007, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 25th day of January, 2007.
The Issue Whether the Respondent unlawfully discriminated against the Petitioner on the basis of race or handicap in discharging him from employment on February 25, 1992; and whether the Respondent unlawfully discriminated against the Petitioner and other black employees in pay for similar jobs.
Findings Of Fact During the summer of 1988, Larry Jelks, a black male, approached Jerry Sikes, the Director of Public Works of Suwannee Country, seeking employment. Petitioner, Jelks, explained and Sikes was aware that Petitioner had significant experience as a welder. Several weeks later, Sikes contacted Jelks and offered him a job as a laborer. The Petitioner began work of August 16, 1988 with a starting pay of $5.00/hour in the position of laborer, an entry level, unskilled job classification. The Petitioner received a copy of the employer's regulations. On August 24, 1988, the Petitioner was promoted to Serviceman, and his pay increased to $6.00/hour. On October 12, 1988, Sikes hired Mr. Praley, a white male, as a welder, although his expertise was as a mechanic and Praley was subsequently assigned duties as a mechanic by Sikes. Praley was paid a starting salary of $6.50/hour. The welder/mechanic position was open when Jelks was hired. On November 24, 1988, Petitioner completed his 100 day probation and given his annual 5 percent raise, increasing his pay to $6.30/hour. Other black employees also had their pay raises delayed until after their probation was completed. White employees, including Praley, received their annual raises in the year of their initial employment, notwithstanding their probationary status. This discrepancy in treatment of employees was not explained by the County. On September 30, 1989, the Petitioner laterally transferred to the position of truck driver for the refuse collection service because he did not enjoy the work of a serviceman. One October 1, 1989, Petitioner received an annual raise of 4 percent, to $6.56/hour. Subsequently, the axle in Petitioner's truck broke, and when he was questioned about it, he asked for a transfer. On March 3, 1990, the Petitioner was transferred to a shop position in which he repaired rusted or damaged garbage bins (dumpsters), by welding new sides and bottoms on them. The sheets of steel which Petitioner welded on the bins were 6 feet by 12 feet in size and 1/16" thick, and weighed approximately 180 pounds. These sheets were generally cut into smaller pieces prior to being moved from the stack in which they were stored. These pieces of material had to be moved into position to be cut and welded. The bins were moved using backhoes and forklifts. The Petitioner was responsible for moving the pieces of sheet steel and using the equipment to move the bins. On March 17, 1990, the Petitioner received a 5 percent pay increase to $6.89/hour. On April 28, 1990, the Petitioner received a 5 percent raise to $7.24/hour. On October 1, 1990, the Petitioner was given a 5 percent raise to $7.61/hour. In early 1991, the Petitioner's child became critically ill, and the Petitioner obtained leave to be with the child. In addition, Jerry Sikes approved flexibility in the Petitioner's scheduling to permit him be with the child conditioned upon Petitioner letting his supervisors know what he was doing and when he was going to be away from his job. Problems were encountered with Petitioner's attendance, and he was counseled about this and given a copy of the Country's leave policy. Generally, however, the Petitioner's performance was satisfactory, and he was considered a good and valued employee. On September 23, 1991, the Petitioner suffered a job- related injury, and was placed upon workers' compensation leave. The Petitioner received workers' compensation and disability benefits during his leave. During his absence the other employees performed his welding duties. While on leave, the Petitioner received a 3 percent pay increase to $7.84/hour. On November 25, 1991, Sikes wrote Petitioner a letter advising that he was required to submit doctor's notes concerning his absences while on workers compensation leave. On December 20, 1991, John B. Roberts, the County's workers' compensation (rehabilitation) consultant contacted Sikes and asked Sikes to identify an alternative position the duties of which the Petitioner could perform. Sikes advised Roberts that the County had no light duty jobs, but that driving a truck was one of the least physically demanding jobs in the County's maintenance department. He advised Roberts that he would assign the Petitioner to drive one of the light dump trucks if he returned to work. These trucks have an especially rough ride when operated off road, as these were. Roberts looked at the duties of the job, and determined that the Petitioner ought to be able to perform these duties. Roberts discussed returning to work and performing the duties of a truck driver with the Petitioner; however, the Petitioner advised Roberts that he wanted to talk with his attorney prior to returning to work. The Petitioner did not return and assume the duties of driving a truck in December as Roberts had arranged. On January 2, 1992, the Petitioner was sent a copy of a letter which was to Mr. Larry Sikes from Dr. Cason who had been treating Petitioner. The letter stated that the Petitioner was released from treatment to return to regular work activities as of January 2, 1992. On January 3, 1992, the Petitioner returned to work. He had a 4 percent permanent impairment, but his employer was not advised of this. His doctor advised the rehabilitation counselor that the Petitioner be placed on light duty because he would have to toughen up after returning to work. Sikes did not afford the Petitioner the opportunity to work back into the job. The Petitioner's work area was outside, behind the regular shop, exposed to the elements. It was very cold at the time the Petitioner returned to work. The Petitioner's production was low because he could not physically manhandle the large sheets of steel as he could prior to his injury. He asked that an inmate be assigned to work with him all the time, but assistance was denied to the Petitioner. The Petitioner asked for a backhoe, which he had previously modified, to move the bins and sheets around; however, this piece of equipment had been sent to the landfill. He was told to use a front end loader to do this work; however, he went to the landfill and retrieved the backhoe because he had difficulties climbing into the cab of the front end loader. His demands and getting the backhoe without permission created additional conflicts between the Petitioner and his supervisors. On January 8, 1992, Sikes issued the Petitioner a memo concerning his poor productivity and failure to follow the instructions of his supervisor. Prior to his injury, the Petitioner repaired approximately one bin per day. During the period after his return to work, he did approximately one bin every two to three days. When presented with the memorandum, the Petitioner advised that he was unable to do that which he had formerly done. The Petitioner was told that he was expected to do all his regular work. This motivated the Petitioner to return to the doctor and seek a clarification of what he could and could not do. In addition, Petitioner was also seeing a chiropractor regularly for treatment. Petitioner left work almost daily to see the doctor, and frequently did not return. He did not provide his employer with documentation of these visits. The Petitioner asked that an overhead chain hoist, similar to the one which was inside the shop area, be installed in his work area to move the sheets of steel to assist him. His direct supervisor, Mr. Horton, denied the request because it was expensive and required additional construction to support the mechanism. On January 13, 1992, the Petitioner received a second warning for being absent from work without notifying his supervisor. Sikes advised the Petitioner that he would have to comply with the County's personnel regulations which required prior notification and a note from the doctor. Although the Petitioner testified he was absent attending doctor's visits, he presented no other substantiation of these visits at the hearing. On January 22, 1992, the Petitioner submitted, as requested earlier, a report from Dr. James B. Slatery of Gainesville Orthopedic Group, advising that the Petitioner could return to work, but should avoid climbing and limit his lifting over 50 pounds to an occasional basis. A similar report was submitted by Dr. A. C. Bass. The metal sheets the Petitioner was lifting weighed over fifty pounds. The County failed to make accommodations for the Petitioner's physical problems upon his return to work in a manner it had for white employees. The county had placed recovering white employees in positions where they were flagmen, directed traffic, and in similar positions. The county placed the Petitioner back at his regular duties, stated it had no "light duty" positions, and demanded Petitioner perform all his duties to pre-injury standards of productivity. When the Petitioner asked for assistance in lifting the sheets of steel which were in excess of the weight allowance set by his doctor, the County told him to seek assistance from his coworkers, who were instructed to assist him. He had to wait until they finished with their immediate task, and they were less than happy about these interruptions, and going outside where the Petitioner worked. This slowed his production for which he received criticism from his supervisors. The conditions imposed by the employer were not so bad as to constitute a constructive discharge. However, had Petitioner filed an action at that time, he would have proven that he was treated differently than white employees who were accommodated for their physical problems when returning from workman's compensation leave. There was a verbal exchange between the Petitioner and one of his coworkers, Earnest Johns, arising out of their interactions in the shop. The Petitioner told Johns that he "would pass up a bus load of white girls, to make him (Johns) his bitch." Johns complained to Sikes about the Petitioner, and told Sikes, "he needed to do something about that Nigger." Sikes told Johns that he would take care of it and to calm down. Johns, who was very upset, subsequently apologized to Sikes for his confrontational manner in raising the matter with him. On January 25, 1992, Sikes sent the Petitioner another memo confirming a verbal warning about his poor work habits, wasting time, and absenteeism. On January 30, 1992, Sikes sent the Petitioner another memo regarding his poor work habits. In February, the Petitioner's wife, from whom he was separated, died, and he was granted three days bereavement leave for February 11-13, 1992. On February 18, 1992, the Petitioner called the shop and left word with a secretary that he would not be at work for the rest of that week. He did not submit a leave request for this period of time. Subsequently, the Petitioner was absent without permission from February 14 until February 24, 1992. The Petitioner did not obtain permission from his supervisors prior to taking this leave, did not request leave without pay, and did to explain his absence. Neither did his doctor, the rehabilitation counselor, his chiropractor, his attorney, or a member of his family or a friend report his absence and give any explanation. During this period, he appeared once at work to pick up his pay check on February 21, 1992. On this occasion the Petitioner did not address the matter of his absence with Sikes or Horton, although Horton advised he Petitioner that Sikes wanted to speak with him. The Petitioner had exhausted all of his sick and vacation leave prior to February 14, 1992. Under the County's rules, an employee had to request leave without pay after exhausting sick and annual leave, and the request had to be approved by the County Commission. The Petitioner did not make a request for leave without pay. Although the Petitioner asserts that he had not exhausted his sick leave because he was visiting the doctor during his absences which was covered by workers' compensation leave, he did not provide medical substantiation for the alleged treatments and doctors' visits as required by the employer's rules in order to obtain workers' compensation leave. On February 25, 1992, the Petitioner returned to work at starting time wearing work clothes. Horton stopped him on his way to his work area, and advised him that Sikes wanted to talk with him. Horton accompanied the Petitioner to Sikes office. Sikes asked the Petitioner were he had been, and the Petitioner answered that he had been attending to personal business. Sikes asked him for a more detailed explanation of his absence, and the Petitioner again told him that he had been tending to business and that Sikes should either fire him or get off his back. Sikes warned the Petitioner that unless he provided some explanation for his unauthorized absence, he would have to terminate him. The Petitioner refused to provide any additional explanation, but asked that his firing be put in writing. The Petitioner left the work place after the meeting, and did not return to work or attempt to explain his absences. Sikes viewed the Petitioner's absences and refusal to obey the personnel regulations as undermining his credibility as a supervisor. Several days after the confrontation on February 25, 1992, Sikes wrote a letter terminating the Petitioner for (1) continued or gross neglect of duty; (2) absence without leave; incompetence or unwillingness to render satisfactory service; insubordination; and (5) habitual absences, as provided in Parts X and XI of the County personnel regulations. Sikes extended special consideration to all employees of the department, who were permitted to take leave or be absent without applying for leave. The Petitioner was permitted to take leave without applying for it, and that considerable latitude was extended to the Petitioner regarding his absences prior to his being discharged. A white male, who was not handicapped, was hired on May 28, 1992 to file the position from which the Petitioner was discharged. The Petitioner appealed his discharge under the County's rules, and after an evidentiary hearing in which the Petitioner was represented by counsel, the county's hearing officer found that the dismissal was for cause in a Final Order dated September 24, 1992. Discrimination in Promotion and Pay among Blacks. The population and labor market statistics offered by the Petitioner in support of his contention that Blacks were discriminated against in promotion fail to support the proposition for which they were offered. For example, the Petitioner limits the labor pool to those persons who are over 16 and worked in 1989. However, there are those persons who are over 16 and would like to work, but who have not been hired. If the Petitioner's contention is correct, one would expect that for every white employee hired, there was a black applicant who was not hired. Therefore, comparisons based upon persons actually hired understate the percentage of Blacks in the labor pool. The relevant labor market for this dispute is Suwannee County, Florida, and the relevant labor pool are those people over 16 years of age who are now seeking, or who have in the past sought employment. According to the 1990 census, 14.7 percent of the population of the County is black. Blacks constitute 13.8 percent of the County's employees. The work environment was not overtly racist, and while, as stated above, racially charged verbal barbs were occasionally exchanged, there is no evidence that this was common or tolerated by the employer. The best evidence of discrimination by the employer were the actual practices engaged in by the County. During the 12 years prior to the termination of the Petitioner, the County had never had a Black supervisor. From 1989 to September 23, 1992, the County hired one black employee of 30 employees who it hired. Its top 10 highest paid employees were all white. The highest paid black was the forty-first highest paid employee of the County. Kevin Praley was placed in a welder's position despite the fact he was a mechanic at $6.50/hour; and Petitioner, who was a professional welder, was hired as a laborer at $5.00/hour in 1988. At the time Praley was hired, the Petitioner was making $6.00/hour, so that the differential between their pay was $.50/hour in 1988. After four years, Praley, who was hired after the Petitioner, was paid $2.01/hour more than the Petitioner for work which Sikes and others said was similar. This reflects continuing discrimination in hiring and paying Blacks. Blacks were hired in the lowest paying, menial jobs within the county, and this was not on the basis of education. All of the county's custodial employees are black. Only one of the county's secretaries is black. Until very recently, there were no black supervisors in the county's maintenance department. Most of the County's increases in Black employment and promotions occurred after institution of this case. The Clerk of the Circuit Court/Clerk of the Board of County Commissioners has not published a salary discrimination review required by Section 28.34, Florida Statutes. Further, the County's Equal Opportunity Program of 1992 provided for annual assessment of its progress in equal opportunity. As of May 9,1994, the County and not compile an annual report pursuant to its plan. The County did not train Black employees to assume greater responsibility, and did not utilize them as heavy equipment operators until after the institution of this action. The county did not pay Jelks and other Black employees annual pay raises while they were on probation; however, it did pay white employees Praley, Hardin, Simmons, Mobley, Luanne Mixon, Tervola, and Brother annual pay raises while they were on probation. These white employees were all hired prior to or during the year the Petitioner was hired. Jelks received the raise at the end of his probation period on November 24, 1988. Helen Stoudermire, Mattie L. Weatherspoon, Tyrone Tillman, and Marvette Gwinn, all black employees of the Respondent, did not receive annual raises while in probationary status, contrary to the treatment afforded white employees. The amounts of their collective salary losses were not presented as a finding of fact. The county did discriminate against the Petitioner and other black employees in pay and promotion during the period 1989 until February 25, 1992.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Florida Commission of Human Relations enter a Final Order directing that: The Petitioner's Petition for Relief relating to his discharge be dismissed; Black employees of the County be certified as a class for the period beginning August 1988 until the present; The County be ordered to cease and desist its discriminatory practices in pay and promotion against the class of black employees; The County's Clerk be ordered to file reports on salary differentials are required by statute; and Reasonable attorney's fees and costs be awarded to Petitioner's counsel. DONE and ENTERED this 8th day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 8th day of September, 1994. APPENDIX CASE NO. 93-5330 Both of the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why: Petitioner's Recommended Order Findings Paragraph 1 Paragraph 2 Paragraph 2 Rejected as contrary to more credible facts. See Paragraph 41. Paragraph 3 True, but part of statement of case. Paragraph 4 Paragraph 11. Paragraph 5 Paragraph 1. Paragraph 6 Subsumed in Paragraph 11. Paragraph 7 Subsumed in Paragraphs 11 and 17. Paragraphs 8,9,10 Paragraph 44. Paragraph 11 Conclusion of Law Paragraph 12 Paragraph 57. Paragraph 13 Contrary to facts. The Petitioner returned to duty. Paragraph 14 Irrelevant. Paragraph 15 Paragraph 48 Paragraphs 16,17,18 Paragraph 51 Paragraph 19,20 Contrary to more credible evidence. Paragraph 21 Subsumed in paragraph 54. Paragraph 22 Paragraph 56. Paragraphs 23,24,25 Paragraphs 2,3,4,58,60 Paragraph 26 Paragraph 26. Paragraphs 27,28 Paragraph 42. Paragraphs 29,30 Subsumed in 2,3,52,53. Paragraph 31 Rejected because Jelks received the raise at the end of his probation period on November 24, 1988. His reduction in pay was $.30/hour for October and November, or 8 weeks X 40 hours X .30 = $96.00. Paragraph 32 County's claims were rejected on this point. Paragraph 33 Paragraph 18 Paragraph 34 The statistical record is rejected for lack of credibility because it considers averages of both groups compared when there are findings which show whites held higher paying jobs. Paragraph 35 Subsumed in paragraph 32. Paragraph 36 Subsumed in paragraph 54. Paragraph 37 Rejected as contrary to better evidence. Paragraph 38 Subsumed in Paragraphs 26,27. Paragraph 39 Paragraphs 29,30. Paragraph 40 Is not addressed specifically because it violated the HO's directions that findings be kept short, and address specific factual matters, and is mostly argument. Paragraph 41 Subsumed in Paragraph 17. Paragraph 42 Paragraph 20. Paragraph 43 The County did accommodate some whites. Paragraph 44 Rejected as contrary to best evidence. Paragraph 45 Paragraph 50. Paragraph 46 Subsumed in Paragraph 55. Paragraph 47 Rejected. Welder and mechanic were the same job description. Paragraph 48 Irrelevant. Paragraph 49 Rejected because "handicap" relates to permanent conditions, and his permanent handicap was only 4 percent. It was his temporary condition which impacted his ability to perform the work. Paragraph 50 Irrelevant. Paragraph 51,52 The name calling by employees, to include Johns, occurred in the context of an angry exchange with Sikes, who cautioned Johns to calm down. Johns subsequently apologized to Sikes, and neither were aware that his comments had been overheard by Jelks. Paragraph 53 Paragraph 51. Respondent's Recommended Order Findings Paragraphs 1-5 Paragraphs 1-6 Paragraph 6 Subsumed in part in 1-6, and rejected in part as contrary to most credible evidence. Paragraphs 7,8 Paragraph 6 & rejected as contrary to most credible evidence. Paragraph 9 Rejected as contrary to most credible evidence. Paragraph 10,11 Paragraph 8 Paragraph 12,13,14 Paragraph 9,10 Paragraph 15 Paragraph 29 Paragraph 16 Paragraph 49 Paragraphs 17-23 Paragraphs 11-17 Paragraph 24 Paragraph 21 Paragraph 25 Paragraph 19. Paragraphs 26,27 Irrelevant. Paragraph 28 Paragraph 25 Paragraph 29 Paragraph 17 Paragraph 30 Rejected as contrary to most credible evidence. Paragraph 31 Paragraph 28. Paragraph 32 Irrelevant. Paragraph 33 Rejected as contrary to most credible evidence. Paragraph 34 Paragraph 20. Paragraphs 35,36 Paragraph 19 & rejected as contrary to best evidence. Paragraph 37 Paragraph 23. Paragraph 38 Paragraph 24. Paragraph 39 Paragraph 25. Paragraph 40 Paragraph 31. Paragraph 41 Rejected as irrelevant. Paragraph 42 Paragraph 33. Paragraphs 43,44 Paragraph 32. Paragraph 45 Paragraph 35. Paragraph 46 Paragraph 36. Paragraph 47 Irrelevant. Paragraph 48 Subsumed in paragraphs above. Paragraph 49 Subsumed in Paragraph 33. Paragraph 50 Paragraph 35, best evidence. Paragraph 51 Paragraph 32. Paragraph 52 True, but part of law. Paragraph 53 Paragraph 34. Paragraphs 54-58 Paragraphs 37,38,40,41 Paragraph 59 Irrelevant. Paragraph 60 Duplicative. Paragraphs 61,62 Irrelevant. Paragraph 63 Rejected as contrary to most credible evidence. Paragraph 64 Paragraph 48. Paragraph 65 Subsumed in Paragraph 41. Paragraph 66 Subsumed in Paragraph 48. Paragraph 67 Irrelevant. Paragraph 68 The wage disparity was the result of hiring Blacks in the lowest paying jobs. Paragraph 69 Subsumed in Paragraph 54. Paragraph 70 Paragraph 50. Paragraph 71 See comments to Paragraph 68. Paragraphs 72-83 Subsumed in Paragraphs 54, 55. COPIES FURNISHED: Michael Mattimore, Esquire Kimberly L. King, Esquire Suite 305 215 South Monroe Street Tallahassee, FL 32301 Toby Buel, Esquire Three Rivers Legal Services 817 West Duval Street Lake City, FL 32055 C. Dean Lewis, Esquire Post Office Box 8 Live Oak, FL 32060 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact Petitioner, Mose Howard, Jr., was hired by the Respondent, K-Mart Corporation, as a night maintenance man at its store number 7339 located at 2620 N. Hiawassee Road in Orlando, Florida on July 10, 1984. According to Mr. Howard, his job was to help clean up after the store closed for the evening and to -notify the store authorities if and when the alarm went off during that period. His duty hours were from 9:00 p.m. to 7:00 a.m., Monday through Friday. He worked at the store for approximately six weeks during which time, according to him, he was never told by anyone in authority that his work was unsatisfactory. On August 16, 1984, Mr. Howard was called in by Mr. King who advised him that his work was not satisfactory. Mr. Howard contends that at the time in question, Mr. Ring gave him two pieces of paper to sign and advised him that if he didn't perform better, he'd be laid off. At the time, Mr. Howard looked at the papers and determined that his name was on them, but nothing else. The form in question was a Personal Interview Record consisting of two pages and Mr. Howard contends that that portion of the record dealing with the summary of discussion held between the parties at the interview was left blank. According to Mr. Howard, he signed the form in blank because he thought it was merely a notice that he was being placed on probation. In fact, though he may not have known it, he was on a probationary period from the time he was hired. During the course of the discussion, Mr. King advised him that the store had been receiving complaints about his work from undisclosed sources and also information that he had been sleeping on the job. Mr. Howard categorically denies having slept on the job at any time during the period of his employment and Respondent produced no evidence that he had. He admits, however, that his cleaning duties may have been, from time to time, accomplished in a less than satisfactory fashion. From time to time, when he was cleaning up paper and other debris from under the counters, crews of the contractor hired to maintain the floors in the store, whose job it was to strip and re-wax the floors periodically, were working on other aisles of the store. He contends that when this crew would go from one aisle to another, they would turn off and on the lights. Because he could not turn the lights on where he was working if the crew had previously turned them off, it was too dark for him to see and clean up well. He believes that it was this inability to clean up properly because of lack of lighting that formed the basis of the complaints against him. In addition, he states, the burglar alarms would periodically sound and when this happened, it would be necessary for him to call someone to come in and turn them off. This caused him to lose work time because when the alarm sounded, he felt he had to stop working and leave-the store because, had he stayed in there, the police might think he was breaking in. While denying, unequivocally, that he ever slept on the job, Mr. Howard admitted he would sit down from time to time in the break room but only on his two 15 minute breaks or during his 30 minute meal period. There were other times, he admits, that because of the lighting situation, he was unable to work in the store while the floor crew was there. In that case, he would sit down and wait until the crew would finish where it was working and he could go back to work. Sometimes this would be for an hour or even a couple of hours and during the period of enforced break from sweeping, he would try to find something else to do like cleaning the restrooms. In this regard, according to Mr. King, the cleaning of the restrooms was an integral part of Petitioner's responsibilities and his accomplishment of these duties was also periodically and repeatedly unsatisfactory. After the personnel interview conducted on August 16, 1984, Mr. Howard finished work for the evening and left. When he returned the following evening, a Friday, he was called in by another supervisor and advised that he was discharged. He says that at this point he was not given any reason for his discharge. However, he waited around outside the store until the closing time of 9:30 p.m. (approximately a half-hour after he came to work and was fired), went into the office, and picked up his paycheck from Payroll. The check he received that night was for all that was owed him up to the end of the pay period. A few days later, (the following Monday), he went back and was given another check for the day and a half wages owed him for the new pay period up until he was discharged. Mr. Howard denies having received a call in advance to advise him his work was unsatisfactory nor was he given a reason for being fired. Nonetheless, he did not question the basis for his firing either on August 17, or the following Monday, but merely accepted the pay due him and left. Even though Mr. Howard says he was not given a reason for his discharge and does not know why he was fired, he is convinced the discharge action was taken on the basis of his race because he always did his duty to the best of his ability and worked extra hours without pay on many occasions. It is because of his own satisfaction with his duty performance that he contends his discharge must have been racially motivated. However, he admits that no one from K-Mart Corporation or the store in which he worked ever gave him any indication of a desire to get rid of him or other black employees. Further, during the period of time he worked there, he never heard any racial comments or slurs from any employees, either upper management or low level, except from one young stockboy who used the term "nigger" frequently. He admits to being told on one occasion by an employee of the contractor that he had missed an area in his sweeping and had to go back and do it again and, on several occasions, he observed areas he missed and went back and cleaned them on his own, but aside from those instances, he contends no one from the corporation ever complained to him about the way he was performing his duties until the night of August 16, 1985, when he was interviewed by Mr. King about his performance. Even on that occasion, according to Petitioner, there were few specifics in Mr. King's comments. As he remembers it, Mr. King merely stated that he was deficient in keeping the floors, the walls, the restrooms, etc. clean but Mr. Howard states that these allegations are all lies. Mr. King, on the other hand, indicates that when Mr. Howard was hired, he was fully briefed on the nature and scope of his duties and was taken around the store and shown where and how things were to be done. At that time, the routine janitorial. duties such as wet mopping the floors, cleaning the restrooms and the cafeteria, and the other items of a similar nature were clearly made known to him. In the interim, Mr. King has personally discussed his performance, which was not up to par with Mr. Howard on at least three or four separate occasions, including in his comments such things as the stools not being kept clean, the floors not being mopped, spots being left on the mirrors. These duties and others of a similar nature were solely the responsibility of the Petitioner on the nights he worked. On each occasion, Mr. King found Petitioner's attitude to be negative. Mr. Howard gives the impression he feels he is performing satisfactorily and if management doesn't like the way he's doing his job, that's too bad. Though Mr. Howard contends that the problems he faced in accomplishing his duties were caused by the low availability of light in the store after closing hours due to the actions of the contractor's crew, he never complained to anyone about this. He didn't feel he had to say anything to the contractor's employees because he did not work for them and he felt that they could see the problem because it was obvious. He also contends that he cleaned the ladies' room as he was required to do and that any unsatisfactory condition may well have been caused by two white contractor's employees who would sleep in there from time to time. Again, he did not say anything to the contractor or anyone else about this because he thought what was happening was obvious. Petitioner's deficiencies and the counselings he received for them ultimately culminated in the personal interview reduced with a written memorandum on August 16, 1985. At that time, Petitioner was told that if he didn't improve, it would be necessary to get someone else to do the job. The personal interview on August 16, 1984 was the last effort on the part of K-Mart management to get Petitioner to do a better job. The description of his deficiencies, according to Mr. King, was placed on the interview form before the interview and was given to Petitioner to read at the time. Mr. King is quite certain that Petitioner looked at the form containing these comments and signed it. The personnel manager for the store was present at the time. When the work was not done properly that August 17, 1984 when he came to work, he recommended Petitioner's termination to the store manager. The other assistant manager, Mr. Avera, concurred in this recommendation on the basis that Petitioner was simply not getting the job done. Mr. King unequivocally denies that his recommendation for termination was racially motivated. He has, in the past, recommended only one other termination of an employee. This employee was white. The list of all employees terminated by this K-Mart store from August , 1983 through November, 1984, with reasons therefor, reflects that of the three other night maintenance personnel terminated during that period, two were white and one was black. The reasons for termination include sleeping on the job, unsatisfactory performance and drug possession. Of the fifteen total employees discharged during the period, at least ten were white, four were black, and one is not identified by race. On balance it is clear that Mr. Howard was terminated not as a result of any racial motivation but simply because he was a probationary employee and management was dissatisfied with his performance during the period of probation. Mr. Howard rejects Mr. King's evaluation of him on the basis that Mr. King did not personally supervise his work and that his analysis is based on matters outside his personal knowledge. He contends that his work was always done to the best of his ability and he does not accept the possibility that his performance could have resulted in his termination. Nonetheless, he does not know if any other black maintenance employees were discriminated against or, for that matter, if any other black employees in any job were discriminated against at this facility. Mr. Howard denies signing the separation report that was prepared on the night of his discharge even though, admittedly, it bears his signature. It is for this reason as well as because of his denial that any detail was included on the interview report when he signed it that a question is raised as to the accuracy of his analysis of the situation. In substance, there is ample evidence with specifics to establish the legitimate ground of inappropriate performance as the basis for his discharge and very little evidence other than his allegation to support a claim of racial prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that the Petition of Mose Howard, Jr. be denied. RECOMMENDED this 30th day of September, 1985, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of September, 1985. COPIES FURNISHED Mose Howard, Jr. 67 West Michael Gladden Blvd. Apopka, Florida 32703 Janice Paulsen, Esq. International Headquarters K-Mart Corporation 3100 West Big Beaver Road Troy, Michigan 48084 Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303 Aurelio Durana General Counsel Florida Commission on Human Relations 325 John Knox Road Building F - Suite 240 Tallahassee, FL 32303
The Issue At issue in this proceeding is whether Respondent failed to abide by the coverage requirements of the Workers' Compensation Law, Chapter 440, Florida Statutes (2002), by not obtaining workers' compensation insurance for her employees; and whether Petitioner properly assessed a penalty against Respondent pursuant to Section 440.107, Florida Statutes (2002).
Findings Of Fact Based upon observation of the witnesses and their demeanor while testifying; documentary materials received in evidence; stipulations by the parties; evidentiary rulings made pursuant to Section 120.57, Florida Statutes (2003); and the record evidence submitted, the following relevant and material finding of facts are made: The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation for their employees. § 440.107, Fla. Stat. (2002).1 On August 8, 2003, Respondent was a sole proprietor in the construction industry by framing single-family homes. On that day, Respondent was the sub-contractor under contract with Marco Raffaele, general contractor, providing workers on a single-family home(s) located on Navigation Drive in the Panther Trace subdivision, Riverview, Florida. It is the responsibility of the Respondent/employer to secure and maintain workers' compensation coverage for each employee. During the early morning hours of August 8, 2003, Donald Lott, the Department's workers' compensation compliance investigator, was in the Panther Trace subdivision checking on site workers for potential violations of the workers' compensation statute. While driving down Navigation Drive in the Panther Trace subdivision, Mr. Lott approached two houses under construction. There he checked the construction workers on site and found them in compliance with the workers' compensation statute. Mr. Lott recognized several of the six men working on the third house under construction next door and went over to investigate workers' compensation coverage for the workers.2 At the third house Mr. Lott interviewed Darren McCarty, Henry Keithler, and Mike Sabin, all of whom acknowledged that they worked for Respondent, d/b/a Riopelle Construction. Mr. Lott ascertained through Southeast Leasing Company (Southeast Leasing) that three of the six workers, Messrs. Keithler, Sabin, and McCarthy were listed on Southeast Leasing Company's payroll through a valid employee lease agreement with Respondent as of August 8, 2003. The completed employee lease agreement provided for Southeast Leasing Company to provide workers' compensation coverage for only those employees whose names, dates of birth, and social security numbers are contained in the contractual agreement by which Southeast Leasing leased those named employees to the employing entity, Respondent, d/b/a Riopelle Construction. Mr. Lott talked with the other three workers on site, Ramos Artistes, Ryan Willis, and Robert Stinchcomb. Each worker acknowledged working for (as an employee) Respondent on August 8, 2003, in the Panther Trace subdivision. In reply to his faxed inquiry to Southeast Leasing regarding the workers' compensation coverage status for Messrs. Artistes, Willis, and Stinchcomb, Southeast Leasing confirmed to Mr. Lott that on August 8, 2003, Southeast Leasing did not have a completed employee leasing contractual agreement with Respondent for Messrs. Artistes, Willis or Stinchcomb. Southeast Leasing did not provide workers' compensation coverage for Messrs. Artistes, Willis or Stinchcomb on August 8, 2003.3 Southeast Leasing is an "employee" leasing company and is the "employer" of "leased employees." As such, Southeast Leasing is responsible for providing workers' compensation coverage for its "leased employees" only. Southeast Leasing, through its account representative, Dianne Dunphy, input employment applications into their system on the day such application(s) are received from employers seeking to lease employees. Southeast Leasing did not have employment applications in their system nor did they have a completed contractual employment leasing agreement and, therefore, did not have workers' compensation coverage for Messrs. Artistes and Willis at or before 12:08 p.m. on August 8, 2003. After obtaining his supervisor's authorization, Mr. Lott served a Stop Work and Penalty Assessment Order against Respondent on August 8, 2003, at 12:08 p.m., requiring the cessation of all business activities and assessing a penalty of $100, required by Subsection 440.107(5), Florida Statutes, and a penalty of $1,000, as required by Subsection 440.107(7), Florida Statutes, the minimum penalty under the statute. On August 12, 2003, the Department served a Corrected Stop Work and Penalty Assessment Order containing one change, corrected federal identification number for Respondent's business, Riopelle Construction. Mr. Stinchcomb, the third worker on the construction job site when Mr. Lott made his initial inquiry, was cutting wood. On August 8, 2003, at or before 12:00 p.m., Mr. Stinchcomb was not on the Southeast Leasing payroll as a leased employee covered for workers' compensation; he did not have individual workers' compensation coverage; and he did not have a workers' compensation exemption. On that day and at that time, Mr. Stinchcomb worked as an employee of Riopelle Construction and was paid hourly by Riopelle Construction payroll check(s). Respondent's contention that Mr. Stinchcomb, when he was working on the construction job site between the hours of 8:00 a.m. and 1:00 p.m. on August 8, 2003, was an independent contractor fails for the lack of substantial and competent evidence in support thereof. On August 8, 2003, the Department, through Mr. Lott, served an administrative request for business records on Respondent. Respondent failed and refused to respond to the business record request. An Order requiring Respondent to respond to Petitioner's discovery demands was entered on December 1, 2003, and Respondent failed to comply with the order. On December 8, 2003, Respondent responded that "every effort would be made to provide the requested documents by the end of the day" to Petitioner. Respondent provided no reliable evidence and Mr. Stinchcomb was not called to testify in support of Respondent's contention that Mr. Stinchcomb was an independent contractor as he worked on the site on August 8, 2003. Respondent's evidence, both testamentary and documentary, offered to prove that Mr. Stinchcomb was an independent contractor on the date in question failed to satisfy the elements required in Subsection 440.02(15)(d)1, Florida Statutes. Subsection 440.02(15)(c), Florida Statutes, in pertinent part provides that: "[f]or purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph(d)(1)." Subsection 440.02(15)(d)(1) provides that an "employee" does not include an independent contractor if: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. The testimony of Respondent and the testimony of her husband, Edward Riopelle, was riddled with inconsistencies, contradictions, and incorrect dates and was so confusing as to render such testimony unreliable. Based upon this finding, Respondent failed to present evidence sufficient to satisfy the requirement of Subsection 440.02(15)(d)1, Florida Statutes, and failed to demonstrate that on August 8, 2003, Mr. Stinchcomb was an independent contractor. Petitioner proved by a preponderance of the evidence that on August 8, 2003, Mr. Stinchcomb, while working on the single-family construction site on Navigation Drive in the Panther Trace subdivision was an employee of Respondent and was not an independent contractor. Petitioner proved by a preponderance of the evidence that Mr. Stinchcomb did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Willis was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision as an employee of Respondent, who paid him $7.00 per hour. Mr. Willis was not listed on the employee list maintained by Southeast Leasing, recording those employees leased to Respondent. Mr. Willis did not have independent workers' compensation coverage on August 8, 2003. Mr. Willis had neither workers' compensation coverage nor a workers' compensation exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Willis did not have workers' compensation coverage on August 8, 2003. On August 8, 2003, Mr. Artises was a laborer on the single-family construction site on Navigation Drive in the Panther Trace subdivision and was an employee of Respondent. Mr. Artises had been in the employment of Respondent for approximately one week before the stop work order. Mr. Artises did not have independent workers' compensation coverage on August 8, 2003. Mr. Artises did not have a workers' compensation coverage exemption on August 8, 2003. Petitioner proved by a preponderance of the evidence that Mr. Aristes did not have workers' compensation coverage on August 8, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, affirming and adopting the Corrected Stop Work and Penalty Assessment Order dated August 12, 2003. DONE AND ENTERED this 29th day of March, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 2004.
