The Issue The issue to be resolved in this proceeding concerns whether Ronnie L. Ricks, has been a victim of an unlawful employment practice allegedly perpetrated by the employer, the Respondent, City of Gainesville (City), because of its termination of him, allegedly because of his race.
Findings Of Fact The Petitioner, Ronnie L. Ricks, was employed by the City of Gainesville as a Motor Equipment Operator I from June 9, 2003 to August 6, 2003. The Respondent, City of Gainesville, is a municipal corporation organized under the laws of the State of Florida, and is an employer for purposes of Chapter 760, Florida Statutes. Upon accepting employment with the City, the Petitioner was made aware of the written job description including the job functions and selection factors specified in the job description. He was also provided and made aware of the written City of Gainesville Policies and Procedures, including policy number 6 relating to and describing the six-month probationary period applicable to all new employees. Upon being hired by the Respondent and commencing work as a Motor Equipment Operator I, on June 9, 2003, the Petitioner's continued employment was subject to the satisfactory completion of a six-month probationary period. The Respondent's written policy relating to the probationary period stated that, "The probationary period shall be regarded as an integral part of the selection process and shall be utilized for closely observing the employee's work for securing the most effective adjustment of a new or promoted employee to the position and for rejecting any employee whose performance or conduct is not satisfactory." Further, the policy stated, "During the probationary period, the supervisor and Department Head may discharge an employee who is unable or unwilling to perform the duties of the position satisfactorily or whose habits and dependability do not merit continuance in the employ of the City." At all times relevant to this action, the essential job functions of the position of Motor Equipment Operator I included a requirement that the employee, "Attends work on a continuous and regular basis." Additionally, among the "non-essential job functions" was a requirement that the employee, "Makes minor repairs and adjustments to equipment. Checks oil and tires." One of the selection factors listed in the written job description for the position of Motor Equipment Operator I was, "Ability to work effectively with co-workers and the general public." The Petitioner claims to have suffered discrimination when his crew leader allegedly told other employees that the Petitioner was a "policeman." He maintains this caused black co-workers to shun him or refuse to speak to him. He also contends that his supervisor allegedly made comments about his clothes and his car. Apparently, he means that his choice of clothing for work was criticized because he allegedly wore "designer clothes" for a job which required more casual work clothes. He also feels he was discriminated against because of his supervisor's alleged comments concerning the type or model car he drove. The Petitioner maintains he was harassed by his supervisor when he refused to mow a retention pond in an area he was assigned to maintain. He claims the retention pond had a hole in it and he felt it was dangerous to mow it on the tractor. When he refused to do the job, his supervisor Ed Sams completed the job. The Petitioner also contends he was discriminated against because he had to complete a City of Gainesville Accident Analysis form after damaging a tractor by bending the metal roof of the tractor when he hit an overhanging tree limb. He maintains that white employees were not disciplined for such conduct. Aside from his contention that white employees were not disciplined for damaging equipment and he was, the Petitioner did not testify that any of the alleged discriminatory or harassment acts he cited were in any way related to his race or other protected status. There was no substantial evidence offered at hearing to support the Petitioner's claim that his crew leader Ed Kersey, ever referred to the Petitioner as a "policeman" or other similar term. The Petitioner made that accusation in his testimony based on uncorroborated hearsay, the relator of which was not present as a witness. His crew leader, Ed Sams, testified that he did not make such a statement and further testified that his father was a career law enforcement officer and he had a great deal of respect for such a position and would not have used "policeman" or a similar term in a derogatory way. The Petitioner claimed that his supervisor, Ed Sams, made derogatory comments about his clothes and car. The Petitioner claims that those comments were inappropriate but did not indicate that they were discriminatory on the basis of race or in any other way. Supervisor Sams testified that he has no recollection of making comments about the Petitioner's clothes and did not recall him dressing inappropriately during his brief employment with the City. He was never reprimanded or otherwise disciplined concerning the clothes he wore. Supervisor Sams did acknowledge making comments about the Petitioner's vehicle in that he testified he had merely asked the Petitioner's opinion concerning the various qualities of that vehicle because he was considering purchasing a similar one for himself. Concerning the Petitioner's testimony about being "harassed" by being ordered to mow a retention pond he considered to be an unsafe site, Supervisor Sams testified regarding that incident. He showed it to be an example of the Petitioner's unwillingness to work effectively with co-workers and his poor attitude toward supervision. On that occasion, Mr. Sams witnessed the Petitioner sitting near an unmowed retention pond and inquired why he was not working. The Petitioner responded that he was going to "let Ed do it." "Ed" was crew leader Ed Kersey, one of the Petitioner's supervisors. Supervisor Sams testified that he was somewhat taken aback by the Petitioner's attitude toward both the assigned work and to his direct supervisor. Ultimately, Mr. Sams performed the required mowing operation and clearly demonstrated that it could easily be safely done. The Petitioner indicated he felt harassed by this incident or this direction to mow the retention pond, but he gave no testimony whatever to indicate that it was racially discriminatory toward him. The Petitioner maintains that he felt harassed when drove his tractor into a tree limb causing damage to the tractor's aluminum canopy. He was required to complete a "City of Gainesville Accident Analysis form," but in spite of his testimony that he was disciplined, there is no evidence to show he was disciplined for the incident. Despite the clear language on the accident analysis report completed as a result of the accident, the Petitioner apparently failed to understand that he was not being disciplined or "written up" for the accident. He was not treated differently from the white employees he maintained were not disciplined for damage to equipment. The Petitioner was merely required to complete the accident analysis report in order to maintain a record of incidents involving City equipment. Under the section entitled "corrective action," the report merely indicated, "reinstruct employee." There was no discipline imposed. Mr. Sams testified that he did not issue a warning, reprimand, re-assignment, or job change as a result of the tractor damage incident. Mr. Sams testified that the Petitioner's obstinance regarding the completion of the accident report form was a further example of difficulties encountered in supervising the Petitioner. Ed Kersey is a Labor Crew Leader II who reports to Mr. Sams and who directly supervised Ricks. In addition to the incident where Ricks refused a directive to mow the retention pond, Mr. Kersey also encountered the Petitioner's obstinance and failure to follow supervision, on occasions when the Petitioner was angry or upset and would mow over litter or trash on the ground rather than pick it up, or have it picked up, before running the mowing machine over it. He also had a tendency to show up late for equipment maintenance work. He was verbally counseled for this, although never "written up," but kept doing it even after being counseled about it. During less than nine weeks in which the Petitioner was employed in the relevant position, he was absent from work for four days. He left early on one occasion without permission and was late at least twice without excuse. When he left early, he left two and one quarter hours early from work without permission. The four days missed from work were without leave or permission. He arrived late for job assignments on the two occasions. His poor attendance in a nine-week period is more egregious because the Petitioner was only working a four-day work week. The Petitioner frequently missed the designated maintenance times set aside for the motor vehicle equipment operators to work together to maintain their equipment. This is a part of their job description. Crew leader Ed Kersey established that this time was specifically designated in recognition that workers could maintain their equipment if they cooperated with each other. When the Petitioner frequently failed to attend the group maintenance sessions, he would complain about the difficulty of performing maintenance tasks alone. In summary, the evidence fails to establish that the Petitioner was discriminated against due to his race or any other protected status. The preponderant evidence showed that the Petitioner's employment was terminated during his probationary period, because his habits and dependability did not merit continued employment. Specifically, the preponderant evidence establishes that the Petitioner's poor attendance record, sub-standard equipment maintenance, and unresponsive and confrontational attitude towards his supervision were all legitimate, nondiscriminatory reasons justifying the termination of the Petitioner's employment, especially considering that he was in his probationary period. The Petitioner offered no persuasive evidence that, as a member of a protected class, he was treated differently or worse in any employment decision or category as compared to similarly situated employees outside his protected class. Additionally, based upon the above-found instances of deficient performance and deficient attitude toward supervision, the Petitioner did not offer persuasive evidence that he was qualified for the position in question from which he was terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition in its entirety. DONE AND ENTERED this 22nd day of December, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 22nd day of December, 2004. 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 Ronnie L. Ricks 3531 Southwest 30th Terrance, Unit 50-B Gainesville, Florida 32608 Daniel M. Nee, Esquire 200 East University Avenue, No. 425 Gainesville, Florida 32601
The Issue The issue in this case is whether Respondent discriminated against Petitioner on the basis of Petitioner's gender and national origin by engaging in the adverse employment actions alleged in the Charge Of Discrimination and Petition For Relief.
Findings Of Fact Respondent is engaged in the business of manufacturing and selling mobile homes. Respondent operates in several locations in the state with a substantial number of employees. Respondent maintains a progressive discipline policy. The policy progresses from counseling or verbal reprimand, to written reprimand, to suspension, and then to termination. Respondent prohibits discrimination, including that based on national origin and gender. The prohibition against discrimination and the progressive discipline policy, are published in an employee handbook and posted by the time clock at each plant. Petitioner is female and Vietnamese. Respondent first employed Petitioner in 1982. Since then, Petitioner has worked in the Molding Department doing trim work (a "molder"). Petitioner has not applied for any promotions with Respondent. Petitioner has not lost any pay as a result of the alleged discriminatory conduct by Respondent. Petitioner is paid comparably with other employees in her department. Mr. Matt Minter, Respondent's Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Minter has never taken any employment action against Petitioner on the basis of Petitioner's gender or national origin. Mr. Larry Godair, Respondent's Assistant Production Manager, has never made any reference to Petitioner's gender or national origin. Mr. Godair has never taken any employment action against Petitioner because of her gender or national origin. None of Respondent's other employees have ever made a specific reference to Petitioner's national origin. None of those employees have taken any employment action against Petitioner because of her gender or national origin. Petitioner fell at work and bruised her knee on November 16, 1996. Respondent completed an accident report for the injury. Due to various injuries, Respondent assigned Petitioner to light duty at different times during her employment. The light duties included filing, painting, and cleaning up the parking lot. Respondent assigns the same light duty work to both male and female employees. Mr. Lydon Allred, Respondent's Utility Supervisor, gave Petitioner a written reprimand for bringing a camera to work. The reprimand was not issued because of Petitioner's gender or national origin. Time-out Requirements Respondent prescribes the time in which each day's quota of finished goods should be out the factory door and ready for market ("time-out requirements"). Personnel who fail to meet time- out requirements without good cause are subject to discipline. Mr. Allred issued two separate written reprimands to Petitioner because she failed to meet her time-out requirements without good cause. Mr. Allred did not issue either reprimand because of Petitioner's gender or national origin. Mr. Allred issued written reprimands to other members of the molding department. At the time, all other members of the molding department were female and U.S. citizens. Prior to the written reprimands, Mr. Allred issued verbal warnings to Petitioner and the other members of her department for failure to meet time- out requirements without good cause. Ms. Patricia Pipkin is the Assistant Supervisor for Respondent's molding department. She has been Petitioner's direct supervisor for several years. Ms. Pipkin issued two written warnings to Petitioner for failure to meet her time-out requirements without good cause. On both occasions, Ms. Pipkin issued written warnings to other employees in the molding department. The other employees were female and U.S. citizens. Ms. Pipkin did not discipline Petitioner because of her gender or national origin. Ms. Pipkin has never heard Mr. Minter threaten to terminate Petitioner or to make an example of her. Mr. Minter has never engaged in either act. Light Duty Assignments Petitioner had multiple accidents on the job that required her to perform light duties consistent with the restrictions prescribed by her health care provider. Respondent gave Petitioner light duties including office work and clean up such as picking up trash, nuts, and bolts in the parking lot. Mr. Godair assigned light duties to employees from April, 1994, through July, 1995. Light duties routinely included office work and clean up in and around the plant. Clean up included picking up nuts and bolts in the parking lot and painting. Mr. Godair did not consider the national origin or gender of employees when assigning light duties. The only criteria Mr. Godair considered were the restrictions placed on each employee by his or her health care provider. Mr. Godair sometimes contacted the treating physician for clarification and further direction before assigning light duty tasks. On one occasion, Mr. Godair clarified Petitioner's light duty restrictions with her treating physician. Mr. Godair's clarification of light duty restrictions for Petitioner was not motivated by Petitioner's national origin or gender. Petitioner never complained to Mr. Godair that she was being treated differently from other employees in connection with her light duty assignments. Respondent did not consider Petitioner's national origin or gender in assigning light duties to Petitioner. Respondent did not treat Petitioner differently from other employees with similar medical restrictions. Mr. Glen Combs is male, a U.S. citizen, and supervises the carpet department. He was restricted to light duty on at least one occasion. Respondent required Mr. Combs to pick up trash in the parking lot including screws, nuts and bolts, and paper. Respondent also required Mr. Combs to paint indoor and outdoor areas of the Auburndale plant. Mr. Steven Wade is male, a U.S. citizen, and a cab setter for Respondent. He was restricted to light duty on two occasions. Mr. Wade's light duty assignments included picking-up screws and painting lines in the parking lot. Mr. Wade also painted a number of other areas in the Auburndale plant including interior walls, racks, and the floor. Mr. Wade's light duty assignments sometimes required him to use a latter. Mr. Robert Peterson is male and a U.S. citizen. He is a former employee of Respondent and was restricted to light duty on one occasion during his employment. Mr. Peterson's light duty assignments included front office tasks and yard duties. Yard duties included picking up debris and metal objects in the parking lot. Cameras At Work Respondent's policies and procedures prohibit cameras at work without the permission of management. Appendix D of the employee handbook in Plant Work Rule No. 17 prohibits, ". . . cameras on the premises without authorization from management." The purpose of the prohibition against cameras is to protect production processes that Respondent believes provide a competitive advantage. All employees, including Petitioner, receive a copy of the employee handbook, including Appendix D. Respondent maintains a model home center in Plant City, Florida. On one occasion, Respondent instructed Petitioner and Ms. Evelyn Scott to set up a model home at the Plant City facility. Ms. Scott is a molder who works with Petitioner. She is female and a U.S. citizen. Petitioner took a camera to the Plant City facility and took pictures without the permission of management. The action violated Respondent's policy and procedures. Mr. Allred gave Petitioner a written warning for bringing the camera to work. Mr. Allred gave Ms. Scott a verbal warning and counseled her because she did not actually bring the camera to work. Neither Petitioner nor Ms. Scott photographed any production process that gives Respondent a competitive advantage. Mr. Allred has worked for Respondent for approximately 16 years. During that time, Mr. Allred has been Petitioner's immediate supervisor as the Assistant Supervisor and Supervisor of the Molding Department. Mr. Allred never took any employment action against Petitioner because of her gender or national origin. Lost Tools Respondent owns the tools that employees use in the performance of their duties. Respondent requires employees who lose tools to pay for the tools. Petitioner lost a tool on the job, and Respondent required her to pay for it. Respondent did not require Petitioner to pay for the tool because of her gender or national origin. Other employees required to pay for lost tools include Eric Mitchell, Chris Spring, Mike Church, Pat Gay, David Scott, Bob Barker, Rosa Linda, Keith Johnson, Scott Pollard, Randall Huggins, Robert Allen, and Eugene West. Those individuals are male and U.S. citizens except for Ms. Linda who is female Hispanic. Multiple Accidents Respondent applies its progressive discipline policy to employees involved in multiple accidents. A safety committee composed of employees from each area of a plant investigates each accident. The committee prepares an accident investigation report and recommends appropriate disciplinary action, if any. Petitioner has had multiple accidents on the job. When Respondent began applying its progressive discipline policy to employees with multiple accidents, Mr. Minter met with Petitioner because he was concerned about Petitioner's accident history and wanted to make sure she understood the new policy as well as existing safety policies, procedures, and rules. Mr. Minter did not give Petitioner a verbal warning concerning her accident history. He did not threaten Petitioner's job if she had one more accident or threaten to make an example of Petitioner. Mr. Minter did not take any employment action against Petitioner because of her gender or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding Respondent not guilty of discriminating against Petitioner on the basis of her gender or national origin. RECOMMENDED this 13th day of June, 1997, in Tallahassee, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1997 COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-0700 Tanya Baxla, pro se 2204 Ivey Lane Lakeland, Florida 33801 Charles A. Powell IV, Esquire Zinober and McCrea, P.A. 201 East Kennedy Boulevard, Suite 850 Tampa, Florida 33602
Findings Of Fact David G. Tracy is, and at all material times has been, an employee of the Respondent, and a public employee within the meaning of Florida Statutes s. 447.203(3). The Firefighters Union is, and at all material times has been, an employee organization within the meaning of Florida Statutes s. 447.203(10). The Respondent is a public employer within the meaning of Florida Statutes s. 447.203(2). The Respondent and the Firefighters Union have been engaging in the collective bargaining process since prior to October, 1973. The parties first entered into a collective bargaining agreement on October 16, 1973. 1/ A second agreement was adopted on March 4, 1975. 2/ This latter agreement was retroactively effective from the first day of October, 1974 until October 1, 1975. The collective bargaining relationship that existed between the Firefighters Union and the Respondent, and the contracts promulgated by them were undertaken in accordance with the Firefighters Bargaining Act, Florida Statutes (1973) 447.20 et seq. In 1972, the Respondent adopted a merit pay plan as a part of its general pay plan. The merit pay plan was adopted by ordinance of the City Commission, but it was not immediately funded. The merit pay plan was funded by the Respondent for the first time in March, 1975, retroactive to October 1, 1974. The merit pay plan as adopted, and as funded, applied to all employees of the Respondent. The merit pay plan was specifically included as part of the second agreement between the Respondent and the Firefighters Union. 3/ In accordance with the second agreement, which was then in effect, the Firefighters Union advised ,the Respondent that it wished to renegotiate 12 of the 36 articles contained in the agreement by letter dated May 22, 1975. 4/ Negotiations commenced during the month of June, 1975. Mr. John Kooser, the Respondent's Assistant City Manager, represented the Respondent at the initial bargaining sessions. Among the articles which the Firefighters Union was seeking to renegotiation was Article 14, Wages. Article 14 included the reference to the merit pay plan. At the initial sessions the Firefighters Union indicated that it was requesting an across-the-board pay increase, and a grade increase for rescue drivers. The Firefighters Union did not mention the merit pay plan at the sessions. Mr. Kooser did not respond to the specific requests pertaining to wages, and raised nothing respecting the merit pay plan. During July, 1975, Diane Schiffman, the Respondent's Personnel Director, became the Respondent's chief negotiator. During the time that Ms. Schiffman served as chief negotiator, the merit pay plan was not raised as an issue at bargaining sessions. Herbert Mintz, an attorney, became the Respondent's chief negotiator on July 31. The merit pay plan was not raised as a subject for bargaining during any of the negotiating sessions attended by Mr. Mintz prior to October 3, 1975. The merit pay plan was discussed at a negotiating session on September 10, 1975; however, it was not discussed as a subject for bargaining. A City Commission meeting had been conducted on September 9, 1975, and on September 10, 1975 Mr. Mintz asked the Firefighters Union representative what had transpired at that meeting respecting the merit pay plan. On or about August 15, 1975 John Kooser, then acting city manager of the Respondent, presented his budget submission message to the Mayor and City Commission for the fiscal year 1975-76. 5/ Mr. Kooser therein stated: "I recommend that merit increases for FY 75-76 be suspended and to support this action they have not been budgeted in the FY 75-76 budget." A copy of the proposed budget was delivered to the Charging Parties. Mr. Tracy in turn delivered the proposed budget to a private consulting firm. The merit pay plan was not budgeted in the proposal; however, neither Mr. Tracy nor any other representative of the Firefighters Union deciphered that fact from the proposed budget. The consulting firm did not so advise the Charging Parties. Whether the merit pay plan would be implemented for the 75-76 fiscal year was a topic for discussion at a City Commission meeting on September 9, 1975. Mr. Gauthier, as a representative of the Firefighters Union, addressed the City Commission at that meeting, and argued forcefully in favor of maintaining the merit pay plan. It is apparent that Mr. Gauthier was aware that the Respondent was considering suspending the merit pay plan for all employees, including firefighters. Mr. Gauthier and Mr. Tracy testified that they believed the Respondent was considering suspending the merit pay plan only for employees other than firefighters. It is apparent, however, from the comments that he made at the City Commission meeting on September 9, that Mr. Gauthier did know that the Respondent was considering suspending the plan for all employees. From other comments made at the meeting and from the totality of the circumstances, Mr. Gauthier should have known what the Respondent was planning, and his testimony that he did not is not creditable. At a meeting conducted on October 1, 1975 the Respondent's City Commission suspended the merit pay plan for the 1975-76 fiscal year, effective on that date. No impasse had been reached in negotiations respecting the merit pay plan on October 1, and indeed, the merit pay plan had not been actively negotiated. It has not been shown that suspension of the merit pay plan was a matter of fiscal necessity for the Respondent. The Charging Parties did not learn of the action until October 3. A negotiating session had been scheduled for October 3, 1975. The parties met on that date. Mr. Tracy, representing the Firefighters Union expressed outrage at the Respondent's action. He expressed the position of the union that only those matters raised in General Counsel's Exhibit 2 were open for negotiation, and that the merit pay plan was not among those items. Mr. Mintz, as the Respondent's chief negotiator, expressed the Respondent's position that all issues were open for negotiation. No specific discussion was had respecting future reinstatement of the merit pay plan. The meeting did not last long. It terminated when Mr. Tracy walked out. Since October 3, 1975, the parties have engaged in several negotiating sessions. The Respondent has made no specific proposals respecting the merit pay plan other than to note in a proposed contract that the plan had been suspended. 6/ The Respondent has not, since October 3, 1975, either formally or informally refused to bargain respecting the merit pay plan, and has, in fact, been willing to do so. The Charging Parties have not requested that the merit pay plan be negotiated, but have rather rested on their earlier position that the merit pay plan is not properly a matter for negotiation, and should be reinstated retroactively to October 1, 1975. At the time that the complaint was filed by the General Counsel, the merit pay plan had not become an active matter of negotiation. The parties may have reached an impasse as to whether the merit pay plan is properly a subject for negotiation. Contracts negotiated between the Firefighters Union and the Respondent for the 1973-74 and 1974-75 years were not adopted in accordance with the provisions of the Public Employees Relations Act. Florida Statutes s. 447.201 et seq. The Act became effective during December, 1974. On or about September 2, 1975, the Respondent and the Firefighters Union filed a voluntary recognition petition with the Public Employees Relations Commission. On or about January 13, 1976, the Public Employees Relations Commission certified the Firefighters Union as the exclusive bargaining representative of employees in the Respondent's Fire Department. The Firefighters Union had not been certified by PERC at the time that the Respondent suspended the merit pay plan.
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.
Findings Of Fact Petitioner graduated from high school in the People's Republic of China in 1972. She thereafter worked for a short time in a factory that manufactured Chinese medicines as a foreman. She became interested in Chinese medicine and enrolled in Kenchow Chinese Medical College, a nighttime professional university. She studied chemistry, biochemistry, and Chinese medicine. As a part of this program, she studied acupuncture meridians and points. For a full year, she spent two hours per day in classroom studies directly related to acupuncture and two hours practicing acupuncture as an apprentice. Thereafter, from 1973 until 1980, she worked as an acupuncturist for four hours per day, six days per week. She worked at a Chinese medicine industrial research center. In addition to her work with patients as an acupuncturist, she was involved in field studies regarding herbs and Chinese medicines and in the recording of statistics and research data. During this same time, the Petitioner enrolled in a correspondence course at Western Pacific College in Hong Kong. This program included courses in the basic theory of Chinese medicine, including courses specifically dealing with the theory and practice of acupuncture. The Petitioner enrolled at Western Pacific College so that she could receive certification as an acupuncturist. She already had completed similar work at Kenchow, and she was able to complete the course work by devoting approximately two hours per week to it. She received a certification from Western Pacific College that she completed the acupuncture course. The certification is dated January 20, 1980. In January, 1981, Petitioner moved to the United States. Since May, 1981, she has worked under the supervision of physicians performing acupuncture treatments in Volusia County, Florida. Petitioner appears to have sufficient education and experience to practice as an acupuncturist. The Department of Professional Regulation has not approved any programs of education in acupuncture or any apprenticeship programs in acupuncture. There is insufficient evidence in the record in this matter from which it could be determined that the programs offered at either Kenchow Chinese Medical College or Western Pacific College should be approved by the Department. Inquiries directed to the schools by the Department have not been answered, and the Petitioner has been unable to obtain transcripts of her course work. It cannot be determined whether anyone in any of the clinical portions of the educational programs attended by Petitioner were certified acupuncturists. The Department of Professional Regulation has not approved any apprenticeship programs for the practice of acupuncture. While it appears that Petitioner has an ample theoretical and practical background as an acupuncturist, it does not appear that prior to her coming to the United States she was ever supervised by a person who is licensed under Chapters 458, 459, or 468, Florida Statutes. Indeed, since all of her experience was in China, it is extremely unlikely that she was supervised by any such person. Petitioner has been practicing as an acupuncturist since May, 1981, under supervision as required under Chapters 458 and 459, Florida Statutes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That a final order be entered denying the application of Lucy Wei-Nor Yu for licensure as an acupuncturist in Florida. RECOMMENDED this 9th day of March, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director 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 9th day of March, 1982. COPIES FURNISHED: Drucilla E. Bell, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Ms. Lucy Wei-Nor Yu 1360 Ridgewood Avenue Holly Hill, Florida 32017 Mr. Samuel R. Shorstein Secretary, Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether a state employee's failure to document to the satisfaction of his supervisors leave, taken on grounds of injury or illness to the satisfaction of his supervisors, amounts to abandonment of his position, within the meaning of Rule 22A- 7.010, Florida Administrative Code?
Findings Of Fact On the morning of June 20, 1989, the Department of Transportation (DOT) maintenance crew with whom respondent Timathy L. Howard worked was cutting tree limbs in the right of way alongside U.S. Highway 331 in Walton County. At about eight o'clock, a falling limb knocked respondent unconscious. When he came to, Mr. Howard complained of head and neck pain. He asked Paul R. Leddon, a DOT "highway maintenance supervisor one" who had charge of the crew, to take him to a doctor. Eventually Mr. Leddon drove him to DOT's DeFuniak Springs maintenance yard, obtained written authorization for a visit to Dr. Solomon D. Reodica, and drove respondent to the doctor's office. After examining respondent, Dr. Reodica sent him to Walton Regional Hospital for x- rays. Whether, when respondent returned to Dr. Reodica's, he had the x-ray films in his hand was a matter of some dispute at the hearing. In any case (perhaps after a telephone conversation with a radiologist or an x-ray technician at Walton Regional), Dr. Reodica wrote on a prescription-like form the following: "Mr. Howard will need to be off the rest of today and may return back to work tomorrow." Petitioner's Exhibit No. 5. Messrs. Leddon and Howard returned to the DOT maintenance yard. There both signed a form authorizing Mr. Howard to take six hours' leave. David M. Johnson, an assistant maintenance engineer in DOT's employ, told Mr. Howard that he would expect him on the job at half past six the following morning, and specifically told him that, if he failed to report, he would have to obtain medical documentation of his inability to report, if leave was to be authorized. Perhaps as anticipated on all sides, respondent Howard did not report to work the morning of June 21, 1989. But, at his request, his wife telephoned and told Mallory Paul, another DOT employee, that he did not feel well enough to come to work. Respondent's "head was still aching . . . " T.99. Mr. Paul told Mrs. Howard that the question of her husband's attendance had been discussed the day before, and that Mr. Johnson had told him to report for work. The following day Mr. Howard stayed home again, because head and neck pains persisted. Nor did he report for work on June 26, 1989, the next day he was scheduled to work, or on June 27, 1989. On June 28, 1989, DOT's H. D. Prescott wrote respondent, as follows: This is to advise you that you are hereby removed from your position as Highway Maintenance Technician I, DeFuniak Springs Maintenance Unit and the Department of Transportation payroll effective at the close of business, Tuesday, June 27, 1989. You went to the doctor on June 20, 1989 on Workers' Compensation. The doctor excused you from work for the remainder of that day and released you to come back to work on June 21, 1989. You did not report to work on Wednesday, June 21St. On the morning of the 21st, a lady, not identifying herself, called Mr. M. R. Paul, Highway Maintenance Supervisor II, and stated that she was calling for you and that you would not be in that day. Mr. Paul told the caller that you were aware that you would not be granted leave without a doctor's excuse, but that he was also making her aware that this absence would be unauthorized and without pay. No doctor's excuse was presented. You were placed on unauthorized leave without pay. Petitioner's Exhibit No. 1. Respondent learned of the existence of this letter the day it was signed, when he telephoned Mr. Johnson, who informed him that it had been sent by certified mail and would be waiting for him at the post office. Also on June 28, 1989, DOT received a bill for the x-rays that Dr. Reodica had ordered for Mr. Howard on the 20th. In a box on the form under the heading "PRINCIPAL AND OTHER DIAGNOSIS DESCRIPTIONS" the form stated "FRACTURE SKULL." Petitioner's Exhibit No. 7. But information DOT presented after the hearing suggested that respondent did not suffer a skull fracture when the tree limb hit him. Petitioner proved that respondent was reprimanded for tardiness, loafing and inattention to duty, on April 18, 1988. Petitioner's Exhibit No. 6. In the course of the hearing, it became clear that there was friction between respondent and his supervisors, which may help explain why they were unwilling to authorize respondent to take more than six hours' convalescent leave, although they had authorized respondent to take leave without pay for less dramatic maladies on other occasions, when apprised of his indisposition. T.99- 100. Respondent testified that he did not go to see another doctor because he could not afford to pay for a second opinion. T. 98. Of course, losing his job did not help financially. Because DOT reported that he had ended his employment voluntarily, he was denied unemployment compensation benefits, even though he sought other employment unsuccessfully. Eventually various home appliances were repossessed and he lost both his car and his house; his wife and children moved in with her parents. Precisely what his supervisors knew of his financial circumstances is not clear, but they were aware he had no telephone.
Recommendation It is, accordingly, RECOMMENDED: That DOT reinstate respondent and award him back pay from June 28, 1989, until the date of reinstatement. DONE and ENTERED this 9th day of April, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 9th day of April, 1990. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 6, 7, 8, 10 through 16, 21 and 24 have been adopted, in substance insofar as material. With respect to petitioner's proposed findings of fact Nos. 5 and 22, the evidence as to the existence vel non of a skull fracture and any treatment therefore was all hearsay, and immaterial, as well. With respect to petitioner's proposed finding of fact NO. 9, respondent's medical condition is material to whether leave should have been granted but not to whether respondent abandoned his position. With respect to petitioner's proposed finding of fact NO. 17, his wife made such a request, even if implicitly, on his behalf. With respect to petitioner's proposed finding of fact NO. 18, respondent testified he couldn't afford a second opinion, and did testify that he did not trust Dr. Reodica's objectivity. With respect to petitioner's proposed finding of fact NO. 19, respondent testified he was in pain and did not report to work for that reason. Petitioner's proposed findings of fact Nos. 20 and 23 are immaterial. Respondent's proposed findings of fact Nos. 4 and 16 have been adopted, in substance, insofar as material. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 are immaterial. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, FL 32399-0458 Timathy L. Howard Route 4, Box 3l4-M DeFuniak Springs, FL 32433 Larry D. Scott, Esquire Department of Administration Carlton Building Tallahassee, FL 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Respondent contracted to build a fire-police-safety training center (hereafter center) for the City of Tampa, and by reference to Determination No. 1110-V, which was physically attached to the contract, agreed to pay carpenters at the rate of eight dollars and thirty-one and a half cents ($5.315) an hour and laborers at an hourly rate of six dollars and fifteen cents ($6.15). Charles Shade worked for respondent as superintendent of the center job. Petitioner first worked at the center job site as a carpenter in the employ of Armco, one of respondent's subcontractors. On respondent's behalf, Charles Shade hired petitioner Herron when Armco laid him off. At that time, Mr. Shade said, "Well, I don't have much carpentry now," but offered petitioner a job as assistant superintendent at five and a half dollars ($5.50) per hour. Part of the inducement for petitioner to take this job was the prospect of eventually working as a superintendent for respondent, and after he began work, petitioner submitted a resume in letter form listing his considerable experience in the construction industry. This letter came in evidence as respondent's exhibit No. l. Petitioner testified that he began working for respondent in August of 1976, but, according to payroll records introduced as petitioner's composite exhibit No. 3, he began work on September 10, 1976. This conflict in the evidence has been resolved in favor of the payroll records. From September 10, 1976, through January 28, 1977, petitioner was paid at an hourly rate of five and one-half dollars ($5.50), for 504 hours worked during regular working hours; and at an hourly rate of eight and one-quarter dollars ($8.25) for sixteen hours worked overtime. After January 28, 1977, until his employment with respondent ended, petitioner was paid at an hourly rate of six dollars and fifteen cents ($6.15), for a total of 176 hours worked during regular working hours. During the course of his employment by respondent, petitioner performed a great variety of tasks, often using tools he brought with him and kept in his car. Hammers, pliers, framing square, chisels, wrenches, a small electric drill and a small power hand saw were among the tools he had in his car. He did rough and finish carpentry, ironworking, counted how much brick the masons laid, shoveled sand, did layout, discussed plans with subcontractors, supervised laborers, filled out payroll sheets in Mr. Shade's absence, ran the bobcat, oversaw the paving of the driveway and dealt with the subcontractors in Mr. Shade's absence. From time to time in the course of his employment, petitioner did miscellaneous carpentry, including layout, putting backing on walls, hanging outside doors, installing door frames, building platforms, constructing wood curbing on the roof, putting thresholds in, and grading with a transit and level. While doing carpentry, petitioner ordinarily worked with a carpenter's helper. Mr. Shade also performed a great variety of tasks, including miscellaneous carpentry. Petitioner's last full day of work was February 25, 1977, a Friday. The following Wednesday he returned to the center job site and told Mr. Shade he had filed the affidavit which initiated these proceedings. Mr. Shade told petitioner he could continue working if he signed a statement acknowledging that he was an assistant superintendent. Petitioner answered that he wanted to obtain legal advice before deciding and did no further work for respondent. Shade did not hire petitioner in an effort to obtain a carpenter's services at less than the prevailing wage. In preparing its bid for the center contract, respondent budgeted one thousand dollars ($1,000.00) for rough carpentry (wages for carpenter and helper) and one thousand dollars ($1,000.00) for finish carpentry (wages for carpenter and helper). Petitioner spent approximately five and a half months on the center job site, which would have been ample time to do all the carpentry budgeted and more, even without a helper if respondent had hired petitioner for that purpose. The fact that respondent hired a carpenter to work on the center project after petitioner's departure indicates that a significant amount of carpenter's work still remained to be done, however. Everybody on the job, including petitioner was paid for a full day on Christmas Eve, although only a half day was worked. On one unspecified date, everybody on the job, including petitioner, was paid a day's wages although everybody was sent home because it was too cold to work.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the contracting authority, the City of Tampa, pay petitioner Herron the sum of three hundred twenty-five and forty hundredths dollars ($325.40). That the contracting authority, the City of Tampa, pay respondent the balance of moneys heretofore withheld on account of petitioner's claim, pursuant to Section 215.19(3)(b) Florida Statutes (1975). DONE and ENTERED this 30th day of June, 1977, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dale W. Vash, Esquire 620 Twiggs Street Tampa, Florida 33602 James B. Loper, Esquire 101 East Kennedy Boulevard Tampa, Florida 33602 Dan F. Turnbull, Jr., Esquire Florida Department Of Commerce 401 Collins Building Tallahassee, Florida 32304 Luther J. Moore Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive East Tallahassee, Florida 32301
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
