The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Respondent’s Career Service Grievance Policy Statement #92/93-HR-2, is an invalid exercise of delegated legislative authority, based on an alleged conflict with Section 447.401, Florida Statutes.
Findings Of Fact The Agency for Health Care Administration (Respondent) is a state agency and a public employer. The Respondent has adopted a grievance policy providing for the resolution of employment disputes within the agency. The policy provides that an aggrieved employee may have the grievance heard by a neutral committee. The committee makes a recommendation, which is subject to review first by a designee of the agency head, and then directly by the agency head. According to the policy at issue in this case, the agency head’s decision is generally the final step in the grievance process. Under some circumstances not found in this case, decisions may be appealed to the Public Employees Relations Commission. Another procedure permits some career service employees represented by a collective bargaining agent to utilize a grievance process set forth under the master contract between the state and the bargaining agent. The union grievance provides that the agency head’s decision is appealable to the state labor relations director who has final authority over the dispute. On December 30, 1997, Diane Gossett (Petitioner), a career service employee of the Respondent, received a written reprimand from her supervisor who alleged Ms. Gossett’s conduct was inappropriate. The details of the alleged conduct were not offered at hearing. Ms. Gossett is an "excluded employee" under the State Master Contract, and therefore is not entitled to use the union grievance procedure. As provided in the Respondent’s grievance policy at issue in this case, Ms. Gossett filed a grievance challenging the written reprimand, and seeking to have it removed from her personnel file. A neutral grievance committee was appointed which reviewed her grievance. The committee recommended that the reprimand be removed from the Petitioner’s personnel file. The agency head’s designee reviewed and rejected the committee recommendation. The agency head ratified the designee’s decision. The Petitioner then challenged the agency’s compliance with personnel rules by filing a request for review with the Department of Management Services. The Department found no deviation from agency rules and refused the Petitioner’s request for additional review. The Petitioner then filed her Petition to Invalidate an Existing Agency Rule with the Division of Administrative Hearings.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race.
Findings Of Fact Petitioner is Leatharine Leon. She has been employed by Respondent, the Florida Department of Law Enforcement, for more than 13 years. In the fall of 1988, Petitioner was employed in the position of Criminal Justice Administrator. Petitioner supervised a section within the Crime Information Bureau. In October, 1988, Martha Wright, a white female, became the Bureau Chief of the Crime Information Bureau. After evaluating the needs and personnel of the Bureau, Wright consulted with other Respondent management personnel and began the implementation of organizational changes within the Bureau. On or about November 22, 1988, Wright notified Petitioner that she was to be reassigned to duties as an Administrative Assistant II. The position was specifically created to provide administrative support to the Bureau. Wright wanted Petitioner to accept the transfer voluntarily. After thinking overnight about the matter, Petitioner refused and the reassignment was made on an involuntary basis. Upon the expiration of a required 14 day notice period to Petitioner, Respondent effectuated the reassignment of Petitioner in the early part of December, 1988, to the administrative assistant position. Petitioner continued to enjoy her same salary and pay grade. As established by the Final Order of the PERC Commission in Case No. CS-89-238, Respondent's transfer to the Administrative Assistant II position was warranted, comported with procedural requirements and served a legitimate governmental interest. At the time of Wright's action transferring Petitioner, Wright had already determined to make other organizational changes to the Bureau. Subsequently, implementation of those changes resulted in the merger of two sections of the Bureau; the criminal history input section formerly headed by Petitioner, a black female, and the criminal history bureau section headed by a white female. The white female head of the criminal history bureau section, Judi Croney, became a unit supervisor within the new section and was given additional special projects. Iris Morgan, a senior management analyst employed in a position with a higher pay grade than that held by Petitioner, assumed Petitioner's previous supervisory duties. Further, Morgan assumed additional duties and responsibilities associated with determining the viability of the merger of the two bureau sections and then supervising the merger. Respondent's management wanted to continue a higher level manager position over the enlarged section resulting from the merger action. Wright envisioned that the new section supervisor position would require an individual adept at conceptual work, as opposed to operational management. Since she met all minimum qualifications for the position, Morgan was selected to continue as the new section head. Petitioner did not adapt well to her position as the Administrative Assistant II. She was unable to perform duties of the position in an independent fashion. Consequently, she received below satisfactory performance evaluations on March 28, 1989, May 2, 1989, June 1, 1989, and July 28, 1989. After the last unsatisfactory performance evaluation, Petitioner was demoted from the Administrative Assistant II position, a pay grade 18 position, to a technician position with a pay grade of 14. However, Petitioner's salary was not reduced and has not been reduced to date. After Petitioner was removed from the Administrative Assistant II position in July or August of 1989, the position was filled by Jerrie Bell, a black female, who is still employed in that position. Bell has performed satisfactorily in the position and has the ability to work independently without constant instruction and supervision. As a result of reorganization, supervisory positions were reduced from ten to seven positions within the Bureau. All other affected supervisors, a total of five individuals, were white. All but one of them voiced objection to Respondent's actions; however, none of the objections varied or prevented implementation of Respondent's proposed changes. Respondent does not have a work practice which discriminates with regard to compensation, conditions and privileges of employment on the basis of an employee's race. Further, Petitioner has not been subjected to such discrimination by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-4270 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-45. Adopted in substance, but not verbatim. 46.-48. Rejected as unnecessary to result. 49. Adopted by reference. PETITIONER'S PROPOSED FINDINGS None submitted. COPIES FURNISHED: Dana Baird, Esq.. Acting Executive Director Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Leatharine Leon 1751 Centerville Road Tallahassee, FL 32317 Elsa Lopez Whitehurst, Esq. P.O. Box 1489 Tallahassee, FL 32302 Clerk Florida Commission On Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Petitioner was discriminated against by being given poor evaluations, receiving disciplinary action as the result of grievances, and being passed over for a promotion because of his race.
Findings Of Fact Petitioner was an employee of Respondent, Sunrise Community, Inc. He was employed by Respondent for eleven years. He worked as a caregiver in a facility for persons requiring intermediate care or therapy. He was a home manager supervising several co-workers in caring for and training mentally handicapped residents. Approximately one year prior to filing his complaint in 1996, Petitioner was counseled for improperly touching a female employee with whom he worked. He did not perform certain activities associated with his job. Because of his conduct and work deficiencies, Petitioner was given a poor performance evaluation. Subsequently, a promotional position became open. Petitioner applied for the opening. He was qualified for the position. He was not promoted. Petitioner is a black male. Petitioner asserts that he was not promoted because he is a black male. The evidence shows that Petitioner did touch a female co-worker inappropriately, and that Respondent gave him a reprimand for this conduct. He received a poor performance evaluation. Such evaluations are by their nature subjective; however, the reprimand and his poor job performance were sufficient cause to reduce his evaluation. The promotional position was filled by a black female employee of the company who had more experience than Petitioner, and who had previously performed similar duties. There was no showing that the grievances, evaluations, or failure to promote were racially motivated.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter its final order dismissing Petitioner's Petition. DONE AND ENTERED this 21st day of August, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 21st day of August, 2000. COPIES FURNISHED: Wilford Evans 925 Cochran Street Tallahassee, Florida 32301 Steven M. Weinger, Esquire Kurzban, Kurzban, Weinger & Tetzeli, P.A. 2650 Southwest 27th Avenue Second Floor Miami, Florida 33133 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether Millenium Homes, Inc. (Petitioner) conducted operations in the State of Florida without obtaining workers’ compensation coverage which meets the requirements of Chapter 440, Florida Statutes (2008), in violation of Subsection 440.107(2), Florida Statutes (2008)1, as alleged in the Stop-Work Order and Order and Penalty Assessment and the Fifth Amended Order of Penalty Assessment. If so, what penalty should be assessed by the Department of Financial Services, Division of Workers’ Compensation (Respondent), pursuant to Section 440.107, Florida Statutes.
Findings Of Fact Respondent is the state agency charged with the responsibility of enforcing the requirements of Chapter 440, Florida Statutes, that employers in Florida secure the payment of workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Workers’ compensation coverage is required if a business entity has one or more employees and is engaged in the construction industry in Florida. The payment of workers’ compensation coverage may be secured via three non-mutually exclusive methods: 1) the purchase of a workers’ compensation insurance policy; 2) arranging for the payment of wages and workers’ compensation coverage through an employee leasing company; and 3) applying for and receiving a certificate of exemption from workers’ compensation coverage if certain statutorily mandated criteria are met. On September 4, 2008, Maria Seidler, a compliance investigator employed by Respondent, was making random site visits at the Bella Vida development in North Fort Myers. Seidler observed eight workers unloading a truck, taking measurements, and performing various tasks on new homes under construction. All eight of the men were engaged in some type of activity on the job site. None were merely standing around, sitting in a truck, or otherwise idle. Seidler had all eight men stand in front of her, spoke to them in Spanish, and recorded their names on her field interview worksheet. All eight men advised Seidler, in Spanish, that they worked for Millenium Homes. None of the men advised Seidler that they did not work for Petitioner, nor that they were present in hopes of applying for a job. The individual apparently in charge at the job site, did not advise Seidler that not all of the men present were working for Petitioner. The evidence demonstrated that D.R. Horton was the general contractor for the project, and that D.R. Horton had contracted with Petitioner to frame out the housing units at the project. The eight men, who were present on the job site and who identified themselves as employees of Petitioner, confirmed that they were present on September 4, 2008, to perform framing. Framing is a construction activity as contemplated by Subsection 440.02(8), Florida Statutes, and Florida Administrative Code Rule 69L-6.021. James Loubert, president and sole shareholder of Petitioner, was not on the job site at the time of Seidler’s arrival, and she initially spoke with him by telephone. Loubert arrived at the job site a short time later. Loubert advised Seidler that Petitioner had secured workers’ compensation coverage for its employees through an employee leasing arrangement with Employee Leasing Solutions (ELS). This coverage was later confirmed by Seidler. However, of the eight workers found on the job site, three workers, Alejandro Osorio, Josue Sanchez Bautista, and Luis Aguilar, were not named on the ELS list of Petitioner’s active, covered employees. Seidler was very definite and precise in her testimony that she observed Alejandro Osorio, Josue Sanchez Bautista, and Luis Aguilar wearing hard hats and engaging in work activities upon her arrival at the job site. Her testimony is found to be credible. When Loubert arrived at the job site, he informed Seidler that two of the workers, not listed on Petitioner’s active employee roster, were to have been sent home to pick up their Social Security cards, and that he had called in the third worker, Josue Sanchez Bautista, to ELS. Loubert did not inform Seidler that Osorio, Bautista, and Aguilar were not employees of Petitioner and were merely present at the job site in hopes of applying for a job. The Pre-hearing Stipulation signed by counsel for the parties and filed with the DOAH clerk on December 8, 2009, contained the following statements of admitted facts in section E: Respondent’s [sic] employees Josue Sanchez Bautista, Luis Aguilar, and Juan Perez had not been called into and accepted as employees by ELS as of September 4, 2008. Respondent [sic] was not in compliance with the coverage requirements of Chapter 440, Florida Statutes, as of September 4, 2008.2 At the hearing, both Javier Perez and Loubert testified that Osorio, Bautista, and Aguilar were not employees of Petitioner, but rather were waiting on site for Loubert to arrive, so that they could ask for jobs. However, they were all wearing hard hats. The testimony of Perez and Loubert is inconsistent with the observations of Seidler, as well as the statements made to Seidler by Loubert at the job site on September 8, 2008, and is, therefore, not credible. Petitioner had no workers’ compensation coverage other than that provided though ELS, and no active exemptions. James Loubert is the only officer of Petitioner, and did not have an exemption from coverage as of September 4, 2008. At the work-site, a Stop-Work Order 08-234-D7 was issued and personally served upon James Loubert based upon Petitioner’s failure to secure the payment of workers’ compensation for its employees Josue Sanchez Bautista, Luis Aguilar, and Alejandro Osorio. A business records request was also served on Loubert in order to obtain the records necessary to calculate and assess a penalty on Petitioner based upon its failure to comply with the coverage requirements of Chapter 440, Florida Statutes. Pursuant to Section 440.107(5), Florida Statutes, Petitioner’s business records were requested back to September 5, 2005, or three years prior to the issuance of the Stop-Work Order. Petitioner produced the register for its primary checking account to Respondent on September 4, 2008, in response to Respondent’s request for business records. Lynne Murcia is a compliance specialist for Respondent. She reviews business records produced by employers to determine the amount of payroll on which workers’ compensation premium was not paid, in order to calculate an appropriate penalty for violations of the coverage requirements of Chapter 440, Florida Statutes. Upon review of the business records initially produced by Petitioner, it was determined that the register from one of Petitioner’s two business checking accounts was missing. The records initially produced by Petitioner were, therefore, insufficient for the calculation of an appropriate penalty. It was requested that Petitioner produce the register for the second checking account, and those records were quickly produced. Thereafter, a 45-page summary of all transactions potentially meeting the definitions of payroll set forth in Florida Administrative Code Rule 69L-6.035 (the Rule), was prepared and an Order of Penalty Assessment issued. In determining which payments should potentially be considered payroll, pursuant to the Rule, all payments made by Petitioner directly to its employees that did not pass through ELS were included. To the extent that those direct payments meet the definition of payroll, they were subject to workers’ compensation premium and would be properly included in an assessed penalty. Petitioner also made direct “per diem” payments to reimburse its employees for the cost of meals and lodging which they incurred during the times that they were required to travel away from home to perform their jobs. The per diem rates were calculated pursuant to Internal Revenue Service guidelines, and were deducted as a business expense on Petitioner’s income tax returns for the years 2005-2007. The Rule requires that expense reimbursements by an employer to employees be included as payroll subject to workers’ compensation premium to the extent that the business records of the employer do not confirm that the expenses were incurred as valid business expenses. All per diem payments made by Petitioner to its employees were included in the calculations, because Petitioner did not produce the receipts reflecting that its employees had actually incurred meal and lodging expenses in those amounts. However, following the December 15, 2009, hearing, Respondent examined the issue further and concluded that Petitioner’s per diem payments to its employees were properly documented as business expenses on Petitioner’s income tax returns. Respondent thereafter sought leave to file its Fifth Amended Order of Penalty Assessment deleting all per diem payments from the assessed penalty. Petitioner made numerous payments to third parties who provided construction, maintenance, or janitorial services at the homes of James Loubert, his father, Adrian Loubert, and his wife, April White, or who provided child care services for the Loubert family. For example, Petitioner paid $1,500.00 for tile work performed at James Loubert’s residence; $478.00 to Alex Ortiz, Antonio Elias, and Candy Ortiz for pressure-washing the homes of James Loubert and April White; $2,548.14 to Pedro Delgano for building cabinets for the homes of James Loubert and his father; $11,326.40 to Rick Wilson for painting the houses of James and Adrian Loubert; and beginning August 23, 2007, through December 20, 2007, $1,433.66 to Diane Berger for cleaning James Loubert’s home. Petitioner also paid $3,402.00 to Cinta Smollis for babysitting services provided to Loubert. These individuals do not appear on the penalty work sheet of the Fifth Amended Order of Penalty Assessment, since they do not meet the statutory definition of employees. Petitioner also paid large sums of money to Adrian Loubert for the purchase of a farm in Canada. In addition, James Loubert testified that some of the payments to his father represented expense reimbursements, suggesting that, at some point, Adrian Loubert had been an employee of Petitioner. Petitioner did not introduce any exhibits into evidence reflecting the nature or amount of the reimbursements allegedly being made to Adrian Loubert. James Loubert was actively involved in the carpentry work performed by Petitioner, on the project on which the stop- work order was issued as well as on prior projects. Nevertheless, he received only a minimal salary through Petitioner’s employee leasing company, ELS. In 2007, Loubert received a total salary of $11,000.00 through ELS. In 2008, he received a total salary through ELS of only $7,200.00. Any payments that James Loubert received directly from Petitioner, that meet the definition of payroll set forth in the Rule, were subject to workers’ compensation premium, and are therefore subject to penalty. During the three-year penalty period specified by the statute, Petitioner made many cash payments to, or for the benefit of, James Loubert. The business records produced by Petitioner indicate that these cash payments were made to payees such as Blockbuster Video, Toys-R-Us, and PetsMart, as well as for vacation expenses. In addition, James Loubert took large amounts of cash from Petitioner to facilitate his hobby of racing cars. Throughout the penalty period, Petitioner also made numerous payments to Loubert’s wife, April White, and to his daughter, Alexa Seagate. Petitioner also made numerous payments to Gary White, his father-in-law and one of Petitioner’s employees. James Loubert testified that the payments made to, or on behalf of, family members, the payments made to third- party payees, and the cash payments which he took from Petitioner reflected shareholder distributions. However, the memo lines on those payment entries do not indicate that those payments were intended to be shareholder distributions. Petitioner’s business records reflect that the memo line on a check would indicate that it was a shareholder distribution, if that was what it was intended to be. This was the practice on other transactions. In addition, James Loubert testified that the memos for his Quick Books entries reflect “exactly what” each payment was for. Presumably those memo entries are the same as the memo entries on the corresponding checks. The payments made by Petitioner to third parties from which it appears that Petitioner did not receive services or a benefit, including but not limited to the payments made to family members of James Loubert, and the cash payments made by Petitioner to finance James Loubert’s auto racing hobby, do not constitute legitimate business expenses. Petitioner frequently made loans or wage advances to its employees. Although Loubert testified that those loans were repaid to him, he later acknowledged that a $2,000.00 loan to employee Rachel Broulet was never paid back, and that a $975.00 loan to Nicholas Susa was never repaid. Petitioner did not produce business records or documentary evidence at the hearing that indicates that any of the loans which it made to employees were repaid. The State of Florida has adopted a classification code developed by the National Council of Compensation Insurance (NCCI), which assigns individual four digit codes to various classes of labor. This classification code is utilized to segregate different categories of labor by risk and to determine appropriate workers’ compensation premiums for those classes of labor in Florida. Fla. Admin. Code R. 69L-6.021. As noted above, Petitioner was performing framing work at the time of the September 4, 2008, inspection. Because Petitioner’s employees were observed at work constructing residential homes, classification code 5645, detached one or two family dwellings, was correctly applied to Petitioner’s employees directly engaged in construction activities. This includes Javier Perez, as he was working along with and directly supervising the other seven carpenters who were working on site when the inspection took place. Classification code 8742, outside sales, has been applied to James Loubert, as he was not observed working on September 4, 2008. However, Loubert did testify at his deposition that he usually performed construction work along side Petitioner’s other employees, but Respondent did not apply the construction code to him in the Fifth Amended Order of Penalty Assessment. Classification code 8810 was correctly applied to those employees of Petitioner who performed clerical work in the office. The appropriate manual rates for each year of the penalty period of September 5, 2005, through September 4, 2008, was applied for each classification code assigned to Petitioner’s employees. In preparing the Fifth Amended Order of Penalty Assessment, the amount of unsecured payroll attributable to each employee of Petitioner listed on the penalty worksheet was correctly calculated. From the evidence, Luis Aguilar and Alejandro Osorio were to be paid $10.00 per hour. There was no evidence that Aguilar and Osorio had worked prior to the issuance of the Stop-Work Order, and therefore, earnings of $80.00 assigned, reflecting eight hours at $10.00 per hour for September 4, 2008, was correct. Petitioner failed to provide any business records or other information concerning the rate of pay for Josue Sanchez Bautista, the third non-compliant worker. Bautista’s wages for September 4, 2008, can be imputed utilizing the statewide average wage pursuant to Subsection 440.107(7)(e), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order finding that Millenium Homes, Inc., failed to secure the payment of workers’ compensation insurance coverage for its employees, in violation of Section 440.38(1), Florida Statutes, and that a penalty in the amount of $66,099.37 should be imposed for the failure to provide the required workers’ compensation insurance coverage. DONE AND ORDERED this 28th day of May, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of May, 2010.
The Issue Whether Respondent violated the provisions of chapter 440, Florida Statutes, by failing to secure payment of workers’ compensation coverage, as alleged in the Second Amended Order of Penalty Assessment; and, if so, the appropriate penalty.
Findings Of Fact Jurisdiction The Department is the state agency responsible for enforcing the requirement of chapter 440 that employers in Florida secure workers’ compensation coverage for their employees and corporate officers, pursuant to section 440.107. Patrick Hoffman was the owner and sole corporate officer for American. At all times material to this proceeding, American sold materials for window screens, patio sliding doors, screws, and spline screening; and it provided window and screen installation services. Investigation On June 29, 2016, the Department commenced an investigation following the observation of Patrick Hoffman and Timothy Barnett (also known as Adam Barnett) performing window installation services at a residential property. Kent Howe, an investigator in the Department’s compliance division, conducted an investigation regarding American’s operation of its business without proper workers’ compensation coverage. On June 29, 2016, Mr. Howe personally served a Stop-Work Order requiring American to cease all business operations and Order of Penalty Assessment on Mr. Hoffman. On June 29, 2016, Mr. Howe also served Mr. Hoffman with a Request for Production of Business Records for Penalty Calculation, requesting records to enable the Department to calculate the appropriate penalty for the period of June 30, 2014, through June 29, 2016. On June 30, 2016, the Department issued a conditional release from the Stop-Work Order. The conditional release required Respondent to pay $1,000, and agree to pay the penalty assessment within 28 days after the penalty calculation. American paid the $1,000 payment but it disputed the calculated penalty amount. An employer is required to maintain workers’ compensation coverage for employees unless there is an exemption from coverage. In the construction industry, a company must maintain coverage if it employs one or more persons. In the non-construction industry, a company is required to maintain coverage if it employs three or more persons. A contractor serving as a corporate officer in the construction industry may obtain an exemption from coverage requirements. See § 440.05, Fla. Stat. A contractor must demonstrate compliance with the workers’ compensation requirements or produce a copy of an employee leasing agreement or exemption for each employee. If an employee is a subcontractor without their own workers’ compensation coverage or an exemption, the individual is considered an employee of the contractor. American did not dispute that Timothy Barnett and Roger Wilson were employees of the company. American also did not dispute that it did not have workers’ compensation coverage for the employees as required by chapter 440. As a corporate officer, Mr. Hoffman elected to be exempted from workers’ compensation coverage. Penalty Calculation The Department assigned Eunika Jackson, a Department penalty auditor, to calculate the appropriate penalty for American. Ms. Jackson conducts penalty audits for construction and non-construction employers. Ms. Jackson testified that workers’ compensation coverage penalties are calculated based on a statutory formula in which the auditor calculates two-times the amount of the insurance premium the employer would have paid for each employee over the two-year period preceding the Stop-Work Order. The two-year period is commonly referred to as the look-back period. The penalty calculation is based on the employer’s payroll, the classification code for the industry of operation during the audit period, and the manual rate assigned to that classification code. To determine the appropriate code, the auditor uses the classification code in the Scopes® Manual, which has been adopted by Petitioner through Florida Administrative Code Rules 69L-6.021 and 69L-6.031. Ms. Jackson used business records Mr. Hoffman provided to determine the appropriate industry code and the penalty amount for each employee. Ms. Jackson reviewed bank statements to determine the gross payroll paid to Mr. Wilson and Mr. Barnett during the two-year non-compliance period. The records demonstrated that Roger Wilson received payment during the period of June 30, 2014, through December 31, 2015. Timothy (Adam) Barnett received payment during the period of January 1, 2015, through June 29, 2016. Ms. Jackson determined that American operated in the construction industry and initially assigned each employee a classification code of 5102. On August 11, 2016, the Department issued the Amended Order that assessed a total penalty of $10,785.04. The Amended Order was personally served on Mr. Hoffman on August 16, 2016. In response to the Amended Order, Respondent disputed the classification code assigned to Mr. Wilson. Mr. Hoffman testified that Mr. Wilson did not perform construction work, but rather worked as a retail employee selling merchandise in the store front. Mr. Hoffman further testified that contractors purchased items at American for use in their businesses. Mr. Hoffman’s description of Mr. Wilson’s job responsibilities and description of merchandise sold at American clearly demonstrates that Mr. Wilson did not perform construction work. Ms. Jackson correctly determined that the classification code 8018, which applies to retail and wholesale salespersons, was the appropriate code for Mr. Wilson. The classification code change resulted in a manual rate reduction and a reduced assessment applied to Mr. Wilson. On November 18, 2016, the Department filed a Motion for Leave to Amend Order of Penalty Assessment, which the undersigned granted. The Second Amended Order reduced the penalty assessment to $6,818.00. During the hearing, American continued to dispute the calculation of the penalty for Mr. Hoffman because he maintained an exemption as a corporate officer. The Department ultimately agreed to remove Mr. Hoffman from the penalty assessment worksheet and reduced the penalty assessment to $6,764.96. At hearing, there was no dispute regarding the penalty assessment related to Mr. Barnett. However, Respondent argued in the post-hearing statement for the first time that Timothy Barnett had an exemption. There was no evidence to support Respondent’s assertion. Therefore, Ms. Jackson correctly included payment to Mr. Barnett as payroll for purposes of calculating the penalty. Regarding Mr. Wilson, Mr. Hoffman argued that Mr. Wilson had an exemption from workers’ compensation coverage when he began working for American.1/ However, Mr. Hoffman could not produce a copy of the exemption and Mr. Wilson was not present at the hearing for testimony. Ms. Jackson conducted research using the Coverage Compliance Automated System (“CCAS”), a database used by the Department to maintain information regarding workers’ compensation policies, employee leasing plans, and exemptions for employees. Ms. Jackson found no record of an exemption for Mr. Wilson in CCAS. While Ms. Jackson did not exhaust all efforts to locate an exemption for Mr. Wilson, it was American’s burden to produce evidence of an exemption. Mr. Hoffman’s testimony with nothing more was insufficient to demonstrate that Mr. Wilson had an exemption and as such, Ms. Jackson appropriately included payments to Mr. Wilson as payroll to calculate the penalty. The calculation of the penalty for Mr. Wilson in the amount of $2,784.58 is correct. However, the penalty calculation for Mr. Barnett is incorrect. The amount should be $3,872.27. Therefore, the amount of the penalty should be reduced to $6,656.85. Ultimate Findings of Fact American was actively involved in business operations within the construction industry during the audit period of June 30, 2014, through June 29, 2016. Based upon the description of American’s business and the duties performed, Mr. Wilson was properly classified with a code 8018. Ms. Jackson used the correct manual rates and methodology to determine the appropriate penalty.
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 determining that: Respondent, American Aluminum Concepts, Inc., violated the requirement in chapter 440, by failing to secure workers’ compensation coverage for its employees; and Imposing a total penalty assessment of $6,656.85. DONE AND ENTERED this 16th day of December, 2016, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of December, 2016.
The Issue Whether Respondent must repay $558.74 for alleged salary overpayment for the period between December 14, 1990 and April 26, 1991.
Findings Of Fact At all times material to these proceedings, Respondent Allen was a career service employee with the Department who was subject to the collective bargaining agreement. Respondent was designated as the Public Assistance Specialist I who would act in a supervisory capacity during her unit supervisor's maternity leave. Respondent accepted the temporary appointment and received a higher rate of pay from the Department during the time she was filling the position, in accordance with the collective bargaining agreement. Pursuant to the collective bargaining agreement, a career service employee who performs the duties of a higher level position for a period of time more than twenty-two workdays within any six consecutive months, is eligible to receive a promotional pay increase. This pay increase should be granted in accordance with the Personnel Rules of the Career Service System, beginning with the twenty-third day. This type of temporary appointment is referred to within the Career Service System as "Out of Title" work, and is located in Article 21 of the agreement. Employees being paid at a higher rate while temporarily filling a position in a higher classification are returned to their regular rate of pay when the period of employment in the higher class is ended. Originally, Respondent's "Out of Title" status and increased pay were to be effective from June 1, 1990 until the supervisor returned from maternity leave. This time period began on June 1, 1990 and ended in some respects on December 14, 1990. The supervisor returned to work on a four-day basis, Tuesdays through Thursdays, for an additional three month period. Due to some special needs of the supervisor related to the birth of her child, the Department allowed her to continue to remain at home on Mondays after she was originally due back to work from maternity leave. This arrangement continued from December 14, 1990 to March 20, 1991. During these Mondays, Respondent continued to actively perform the duties of the higher level supervisory position for eleven consecutive weeks. In addition, Respondent acted as the unit supervisor during all other days her supervisor was unavailable for work. These additional days, however, were not arranged for in advance by the supervisor before returning to work from maternity leave, as were the consecutive Mondays. On April 29,1991, a Report of Personnel Action from the Department transferred Respondent from her higher "Out of Title" pay and status to her permanent position as a Public Assistance Specialist II [a promotion received April 12, 1991]. The effective date of the action was made retroactive to December 14, 1990, the day the supervisor on maternity leave returned to her job on a four-day a week basis. Prior to her receipt of the Report of Personnel Action on April 30, 1991, Respondent was unaware that her "Out of Title" job duties and the commensurate pay increase ceased on December 14, 1990. She had been performing supervisory duties on Mondays after that date under the belief that an overlap in position was permitted to assist the supervisor with her temporary special needs involved with childbirth and the baby's care. Respondent was not advised of the amount of the overpayment of salary the Department contends she received between December 14, 1990 and April 26, 1991, until July 25, 1991. The original amount of the salary overpayment the Department sought to recover from Respondent was $558.74. After the parties stipulated that Respondent performed supervisory functions on the eleven scheduled Mondays, the Department reduced its claim for overpayment to reflect a higher salary for Respondent on those dates. This reduced the claim for overpayment by $65.03, thus making the Department's total claim $493.71.
Recommendation Based upon the foregoing, it is RECOMMENDED: Respondent is to be notified by the Department of the grievance procedures that can be used for the settlement of this dispute between employer and employee, along with the time deadline she has to elect the procedure to be used for the dispute resolution. The pending case is to be dismissed for lack of subject matter jurisdiction, and transferred to the correct forum timely elected by Respondent, without prejudice to either party. DONE and ENTERED this 27 day of January, 1992, in Tallahassee, Leon County, Florida. VERONICA E. DONNELLY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE No. 91-6197 Respondent's Recommendation of Facts are addressed as follows: Rejected. Whether overpayment occurred needs to be resolved in a different forum, based on one or more of the following: an interpretation of the collective bargaining agreement; an interpretation of an overlap in position in this case; or an unfair labor practice. Accepted. See Finding of Fact #8 and Factual Stipulation #5. Rejected. Contrary to law. See Rue 3A-31.309(1)(d), Florida Administrative Code, Chapter 17, Florida Statutes. Accepted. See Factual Stipulation #7. COPIES FURNISHED: Jack Emory Farley Esq HRS District VI Legal Office Room 500 - Fifth Floor 4000 W Dr Martin Luther King Jr Blvd Tampa Fl 33614 Annie L Allen 6420 N 23rd St Tampa Fl 33610 John Slye Esq General Counsel Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700 Sam Power Agency Clerk Dept of Health and Rehabilitative Services 1323 Winewood Blvd Tallahassee Fl 32399 0700
Findings Of Fact Petitioner, Robert L. Hazlett, Jr., has been a career service employee of the State of Florida for more than twenty years and is employed by the Department of Transportation (DOT) in the Division of Tolls. In 1988, Petitioner was classified as a Regional Toll Manager with the Pay Grade 20. In the spring of 1988, DOT requested that the Department of Administration (DOA) adjust the pay grade for Regional Toll Managers from Pay Grade 20 to Pay Grade 23. This adjustment was granted on May 3, 1988. The instructions which accompanied this adjustment specified that no employee whose position was allocated to the class of Regional Toll Manager on the effective date of the pay grade change was to receive an increase in base rate of pay. Said adjustment in pay was not communicated to the DOT personnel office for several months and on June 17, 1988, based on the assumption that DOA had not approved the pay adjustment for Regional Toll Managers, DOT reclassified the position of Regional Toll Manager to the class of Operations and Management Consultant I, Pay Grade 21. Effective June 17, 1988, Petitioner's job classification was changed from Regional Toll Manager, pay grade 20, to Operations and Management Consultant I, Pay Grade 21. As a result, his biweekly salary changed from $965.06 to $1,093.42. On September 7, 1988, the Secretary of Administration advised that the Department of Transportation's action on June 17, 1988 reclassifying Petitioner's job classification actually resulted in a demotion from pay grade 23 to pay grade 21, but with an increase in his base rate of pay. This action was in violation of Section 22A-2.004(3)(d), Florida Administrative Code. In the letter, the Secretary of the Department of Administration directed the Respondent to take corrective action by reducing the Petitioner's salary to the amount he was receiving prior to the Respondent's June 17 pay action and recalculate all proper subsequent changes to his base rate of pay. On October 18, 1988, Respondent reversed the promotional actions, implemented the pay grade adjustments as approved by the Department of Administration, recalculated the Petitioner's July 1 pay increase, and notified Petitioner of the corrective action taken. In addition, Respondent's Personnel Officer filed a request with the Department of Administration, on November 9, 1988, for a special pay increase for Petitioner, and others, because the reclassification of Petitioner's position was processed as a promotion, not a demotion. This request was denied on December 29, 1988. Petitioner, through no fault of his own, has been overpaid for the period of June 17, 1988 through October 13, 1988 the total sum of $204.26. This sum must be repaid to the treasury of the State of Florida.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended Petitioner reimburse the State of Florida the sum of $204.26 for overpayment of salary in the fiscal years 1988 and 1989. RECOMMENDED this 19th day of November, 1990, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Lou Hazlett, Sr. Post Office Box 1415 Green Cove Springs, FL 32043 DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1990. Charles G. Gardner, Esquire Senior Attorney Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, FL 32399-0458 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns building Tallahassee, FL 32399-0458
The Issue The issue presented is whether Respondents have committed an unlawful employment practice by retaliating against Petitioner for Petitioner's earlier complaint of handicap discrimination.
Findings Of Fact Petitioner has been disabled since 1981, when she suffered a stroke. Petitioner was employed by Respondent Palm Beach County on September 10, 1984, as a receptionist in its Public Safety Department. Richard Walesky is the director of Palm Beach County's Department of Environmental Resources Management. The County started that Department in October of 1987, and Walesky became the Department's first director and first employee. That Department has expanded substantially since its creation, having grown to approximately 30 employees after the first year and approximately 100 employees currently. In January of 1988, Walesky hired Petitioner as a fiscal clerk in the Department of Environmental Resources Management. Petitioner was in a wheelchair at the time, and Walesky was aware that the Petitioner was handicapped. He hired her because she was qualified by experience and because she had an "upbeat" personality. Her job description included receptionist duties and answering telephones, purchasing, general bookkeeping, and reconciliation of the Department's books and records. The only accommodation requested by Petitioner was to have a rolling file cabinet on the right-hand side of her work station. With her filing cabinet in that location and her electric wheelchair, she needed no other accommodation. Initially, Walesky supervised Petitioner but turned that responsibility over to the Department's office manager in approximately 1989. In that same year, Petitioner's title changed from fiscal clerk to fiscal specialist. Initially, Walesky was not knowledgeable about fiscal procedures and therefore could not assess Petitioner's performance level. In other words, he did not know if the problems he was experiencing were normal. He did know that Petitioner was not reconciling the books as required and, therefore, neither of them knew how much of their budget had been spent and how much was still available. Further, due to the slow processing of paperwork in his Department, the County was not able to take advantage of discounts for timely payment of bills. In one year, the slow processing of paperwork by Petitioner resulted in approximately $20,000 worth of bills not being paid during the fiscal year when the money for payment was budgeted but rather being paid during the following fiscal year when money had not been budgeted to pay for those items. Reconciling the Department's books and processing the paperwork for payment of invoices were included in Petitioner's assigned duties. In spite of the seriousness of those deficiencies, Walesky and the office manager who subsequently supervised Petitioner did not give Petitioner negative annual performance evaluations. Rather, on her 1988 performance evaluation Petitioner was rated as meeting or partially exceeding job requirements, and the same rating was given to Petitioner in 1989. Petitioner's 1990 annual performance evaluation resulted in her achieving a superior rating. As the Department continued to grow, Walesky hired more staff. In October of 1990, he hired Laura Thompson as a Financial Analyst II. Thompson, who had a master's degree in financial management, was given the responsibility of general oversight of the financial aspects of the Department. That responsibility included being Petitioner's supervisor. During Thompson's first year of employment, Petitioner retained her same responsibility for purchasing and processing of invoices, and Thompson was primarily responsible for other areas. During her first year, Thompson had limited knowledge of Petitioner's work and gave Petitioner a superior rating on Petitioner's 1990-1991 performance evaluation. Yet, Thompson was aware that there were problems in Petitioner's performance. Thompson requested during her second year of employment that Walesky put her directly in charge of purchasing so she could become more familiar with the purchasing system and better deal with the problems surrounding Petitioner's job duties. Walesky agreed with that request and did so. During that year, Thompson was better able to identify Petitioner's deficiencies. At the end of that fiscal year, in September of 1992, Thompson gave Petitioner the same superior rating but in the comments section of that evaluation, Thompson specified the areas in which Petitioner needed to show improvement. Thompson discussed with her Petitioner's annual performance evaluation, with specific attention to each item noted as needing improvement. She told Petitioner to organize Petitioner's work area by labeling file cabinets and file folders, by removing from her work area paperwork which was three or four years old and placing those documents in properly marked file folders, and by placing active paperwork on her desk rather than keeping active work in her desk drawers. As to the second area needing improvement, Thompson told Petitioner to eliminate duplicate records. It had been earlier discovered that Petitioner was keeping duplicate records, that is, she was keeping her own ledgers which duplicated the County's ledgers being done by the automated system. Not only were duplicate records not needed, they were not permitted since there was a County policy that for a Department to keep duplicate records, permission must be obtained from the Budget Office, and the Department did not have that permission. Further, Thompson believed that Petitioner keeping her own ledgers consumed approximately one half of Petitioner's work time. The third area of concern was that Petitioner had not received training in the County's automated accounting and purchasing system. Knowledge of that Local Government Financial System a/k/a LGFS was imperative for an employee in Petitioner's position. Training in LGFS was available to Petitioner during working hours at her job site at the County's expense, and Thompson specifically told Petitioner that it was. Thompson offered Petitioner assistance in meeting the outlined goals in those three areas needing improvement. However, Petitioner did not need any assistance according to Petitioner. Thereafter, there was no improvement in any of those specified areas. Petitioner did, however, request that her position as a fiscal specialist be upgraded. Walesky, who had been engaging in ongoing discussions with Thompson regarding Petitioner's performance problems and Petitioner's resistance to improvement in the specified areas, referred that request for re-classification to the County's Personnel Department. He and Thompson specifically did not give any recommendation to the Personnel Department as to whether Petitioner's request should be approved or denied. The Personnel Department conducted an independent audit and determined that although Petitioner's work load had increased, her job duties had remained the same and there was no basis for re- classifying her position. Petitioner's request was denied on November 6, 1992. Due to Petitioner's failure to make the required changes in the areas specified, Thompson gave Petitioner a memorandum in December of 1992 since the numerous discussions she had had with Petitioner along the way had not been effective. That memorandum directed Petitioner to follow the Policies and Procedures Memorandum regarding the price agreements. She attached to her memorandum a copy of the referenced Memorandum. Thompson discussed with Petitioner the memorandum she issued and offered her assistance, but Petitioner did not request any assistance in carrying out the instructions contained in Thompson's memorandum to her. Thereafter, Thompson noted no improvement and issued a memorandum dated January 26, 1993, specifying problems noted by Thompson and specifying assignments given to Petitioner which Petitioner had not accomplished. The memorandum requested that Petitioner advise Thompson if there were any reasons that Petitioner could not accomplish the tasks, offered assistance in helping Petitioner attain the goals, and advised Petitioner that if she continued to fail to respond to those areas of improvement required of her, she would be issued a formal notice of reprimand for failure to perform assigned duties and/or to follow directions. Thereafter, Petitioner did not demonstrate any particular effort to make improvements in the designated areas. Her work area remained cluttered, she continued maintaining duplicate books, and she failed to obtain the required LGFS training. Thompson continued to keep Walesky advised as to Petitioner's failure to demonstrate improvement and to comply with directives. Thompson also contacted the County's Personnel Department regarding Petitioner's performance to discuss her options and the appropriate procedures. In May of 1993, Petitioner filed a complaint with the Florida Commission on Human Relations alleging that she had been discriminated against based upon her handicap by the County's failure to re-classify her position. A determination was made on that complaint that there was no reasonable cause to believe that an unlawful employment practice had occurred, and Petitioner did not contest that determination. When Petitioner filed her complaint in May of 1993, the Commission sent notice to the County that a complaint had been filed, although a copy of the complaint itself was not forwarded to the County until July of 1993. When the notice was received by the County in May, it was forwarded to the County's Personnel Department in accordance with County policy. Walesky was advised that the notice had been received, and he immediately went to Petitioner and asked her what the problem was and what he could do to solve it. Petitioner advised Walesky that the problem was the failure to re-classify her position months earlier. Laura Thompson, however, was not advised by anyone that Petitioner had filed a complaint with the Florida Commission on Human Relations. She did not become aware of that complaint until the actual complaint was received by the County from the Commission in July of 1993. Thompson found out about both the existence of the complaint and the contents of the complaint in July when the County's Personnel Department requested her to respond to it. On June 8, 1993, Thompson gave Petitioner a written reprimand. That reprimand was reviewed in advance by the Personnel Department and by Walesky, who signed it without any consideration that Petitioner had filed a discrimination complaint. At the meeting wherein Petitioner was given the reprimand, Richard Morelli, the Department's office manager and Petitioner's former supervisor, was present at Thompson's request. The reprimand was for failure to perform assigned duties and to follow instructions. Thompson discussed the reprimand with Petitioner and then requested that Petitioner sign it. Petitioner did so and left it on Thompson's desk. Thompson saw that Petitioner had written on the reprimand, "I believe this is retaliation". Thompson went to Petitioner and asked Petitioner what she meant by her comment. Petitioner's response to Thompson was that Petitioner did not have to tell her, and she did not tell her. Subsequent to the issuance of the reprimand, Petitioner exhibited no significant improvement in her performance. Petitioner's work area did become more organized because Thompson personally organized Petitioner's files for her and cleaned out approximately 50 percent of Petitioner's work area. Thompson continued to discuss with Petitioner her directive that Petitioner eliminate the duplicate records Petitioner was keeping. At one point, she asked Petitioner to describe to Thompson what books she was keeping and the purpose for each specific book. Petitioner advised Thompson that she did not have time to tell her that information. Thompson instructed Petitioner that for the remaining four hours of that work day and for the entire following work day Petitioner was to do nothing else during that 12-hour time slot except prepare a description of the books she was keeping. During that 12 hours Petitioner worked on other tasks and failed to do the one task she had been instructed to do to the exclusion of all others. In September of 1993, Petitioner received an annual performance evaluation with a rating of "needs improvement". The evaluation was discussed with Petitioner by Thompson, and Petitioner recognized the importance of reaching a satisfactory level of performance to keep her job. Petitioner was given a 90-day improvement plan, with meetings scheduled with Thompson and Walesky at the 30-, 60-, and 90-day intervals. During that time period, Petitioner accepted none of the offers for extra assistance. At the end of the 90-day improvement plan, Petitioner had not demonstrated sufficient progress to reach a satisfactory level of performance. For example, she still had not obtained the LGFS training she was directed to obtain. At the end of the 90-day period Petitioner was terminated from her employment with the concurrence of Walesky, Thompson, and the County's Personnel Department. Yet, Petitioner was given an additional 30-days of paid leave time in which to obtain another job. None of the other positions located for Petitioner by the County were satisfactory to her, including the position she had held before being hired by Walesky. The County's Personnel Department employs an equal employment opportunity and affirmative action specialist, who is responsible for handling all discrimination complaints and for training managers in equal opportunity and affirmative action requirements. Shauna Ihle was hired by the County for that position in March of 1990. She met Petitioner immediately after being employed when Petitioner came to see her regarding different available positions that Petitioner was applying for or to request assistance. She received the May 1993 notice that Petitioner had filed a complaint with the Commission on Human Relations. From the time that Petitioner's request for re-classification of her position was denied on November 6, 1992, until Petitioner filed her complaint on approximately May 3, 1993, Petitioner had never discussed with Ihle any dissatisfaction or perceived discrimination regarding the County's denial of that request for re-classification. When Petitioner received her "needs improvement" performance evaluation in September of 1993, Petitioner came to Ihle to discuss that evaluation. Although Petitioner stated that the evaluation was not appropriate, as to each specific item in the evaluation Petitioner admitted to Ihle that the complaint was legitimate. Petitioner even admitted that she agreed with the reprimand that had been given to her because she was not processing paperwork correctly or following the correct procedures. Petitioner also told Ihle that some of the things Thompson wanted her to do were stupid, and Ihle advised Petitioner that she should do those things anyway. Throughout the time that Ihle counseled with Petitioner, she inquired if Petitioner had any limitations preventing her from performing her duties or if she needed any help to perform her duties. Petitioner's position was that she did not need any help and had no limitations which interfered with her job performance.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Respondents have not committed an unlawful employment practice and dismissing the Petition for Relief filed against them. DONE and ENTERED this 24th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, 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 24th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3, 5, 10-12, and 16 are adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4, 6-9, 13-15, and 17- 21 have been rejected as not being supported by the weight of the competent evidence in this cause. Respondents' proposed findings of fact numbered 1-30, and 32-41 have been adopted either verbatim or in substance in this Recommended Order. Respondents' proposed finding of fact numbered 31 has been rejected as not constituting a finding of fact but rather as constituting recitation of the testimony. COPIES FURNISHED: Lynne P. D'Iorio, Esquire 5301 North Federal Highway, Suite 150 Boca Raton, Florida 33487 Maureen E. Cullen, Esquire County Attorney's Office of Palm Beach County 301 North Olive Avenue, Suite 601 West Palm Beach, Florida 33401 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
