The Issue The issue for determination is whether Respondent should be demoted from his current position of Refrigeration Mechanic I to Trades Helper because of his failure to meet the requirements of his Training Agreement and Training Standards, in that he failed to obtain a valid refrigeration journeyperson's license (Certificate of Competency).
Findings Of Fact At all times material hereto, Kevin Jinks was employed by the Dade County School Board (School Board) as an Air Conditioning/Refrigeration (ACR) Mechanic I. Mr. Jinks is a member of the Dade County School Maintenance Employee Committee (Maintenance Employee Committee) collective bargaining unit, and the Maintenance Employee Committee's collective bargaining agreement is applicable to Mr. Jinks. The Trainee Career Development Plan (Career Plan) has been collectively bargained and is applicable to Mr. Jinks. The Career Plan is an orderly, well-defined career development plan for trainees in the construction and maintenance trades, and includes formal classroom training and related on- the-job training. The Career Plan provides trainees with periodic reviews and appropriate step (salary) increases as they advance through the Career Plan, preparing for increased responsibilities in their trade as they advance to a journeyperson's position. A journeyperson is a skilled worker who has completed a formal apprenticeship program and has obtained a certificate of competency, also referred to as a license,2 in the trade in which the journeyperson works, if the trade is licensed. A journeyperson works independently and is held responsible for the job being performed. Also, supervision of the trainees in their trade is the responsibility of the journeyperson. A trainee (apprentice) is an employee in the Career Plan, who is bound for a specified period of time by an agreement with the Trades Helper/Trainee Career Development Board (Trades Helper/Trainee Board). A trainee works under the supervision of a journeyperson to obtain on-the-job training in his trade skills and attends formal classroom instruction. Unlike the journeyperson, a trainee does not work independently and is not held responsible for the job. The Trades Helper/Trainee Board oversees the advancement of the trainees. It meets quarterly to assess the progress of the trainees participating in the Career Plan, to provide counseling, and to make recommendations regarding a trainee's continuation in the Career Plan. The Trades Helper/Trainee Board decides whether to advance a trainee to the next step. Trainees are required to complete the Career Plan within a specified time period. In Mr. Jinks' situation, a four-year training period is specified; however, trainees are provided five years in which to complete the four-year Career Plan. Trainees are placed on notice by the Career Plan that the goal of the Career Plan is to make certain that trainees are "fully trained and licensed" and that trainees must obtain a certificate of competency to advance to the fifth and final step in the Career Plan. The Career Plan advises trainees that they cannot remain trainees permanently. Further, the Career Plan advises trainees that, if they are not successful in the Career Plan, they are subject to administrative action, including reclassification to a trades helper position, i.e., a demotion. At the time of hearing, 206 School Board employees had participated in the Career Plan. Out of the 206, 161 have become journeypersons; 16 have obtained their licenses and are awaiting an in-house skills examination; 10 have been demoted to trades helpers at a reduced salary; and 19 have left the Career Plan for various reasons. The Career Plan is being phased out by the School Board. Trainee positions are no longer being staffed by the School Board; no new trainees are being added to the Career Plan by the School Board. A trades helper is a laborer who also assists the journeyperson. No employment positions exist between the trades helper position and the trainee position. Trades helpers are eligible for the Special Opportunities Program for Advancement through which a trades helper may become a journeyperson. Therefore, Mr. Jinks is not foreclosed from becoming a journeyperson for the School Board. The Maintenance Employee Committee contract provides, in pertinent part, at Article IX, entitled "Working Conditions," as follows: Section 12. Trainees Trainees shall work under the supervision of a journeyperson. . . . All trainees will be hired at Step 1. All trainees will be in the Trainee Career Development Plan. The Trainee Career Development Plan will be governed by the Trades Helper/Trainee Career Development Board. The advancement of trainees through the Trainee Center Development Plan will be governed by a Trades Helper/Trainee Career Development Board whose membership shall consist of four voting members. These voting members will be the Supervisor of Adult Trade and Industrial and Apprenticeship Training in the Office of Vocational, Adult, Career, and Community Education; the Executive Directors (2) of the Office of Facilities Operations; and, [sic] the Manager of the Office of Facilities Operations. Additionally, a DCSMEC [Maintenance Employee Committee] representative and a representative from the Office of Personnel Management and Services may attend Trades Helper/Trainee Career Development Board meetings as observers. The Trades Helper/Trainee Career Development Board shall meet four times a year for the purpose of reviewing trainee requests for advancement in the Trainee Career Development Plan. . . . The Trades Helper/Trainee Career Development Board . . . will use the approved Division of Facilities Operations Administrative Procedures for the operation of the Trainee Career Development Plan. . . . The Trades Helper/Trainee Career Development Board is responsible for: Monitoring, recommending, and approving training programs for each trainee. Determining the appropriate step placement of each trainee in the Trainee Career Development Plan. Advancement to the appropriate step in the Trainee Career Development Plan required by the approved Office of Facilities Operations Administrative Procedures. Requiring each trainee to complete the Trainee Career Development Plan within the timeframes [sic] specified in approved Office of Facilities Operations Administrative Procedures. Trainees who successfully complete the Trainee Career Development Plan and hold a valid Certificate of Competency from Dade, Monroe, Broward, Palm Beach, or Collier County . . . are eligible for consideration for priority advancement to an open journeyperson position in their respective trade upon the recommendation of the Trades Helper/Trainee Career Development Board. . . Any trainee who fails to complete the Trainee Career Development Plan within the allotted timeframe [sic] will be subject to administrative action, including reclassification to trades helper position upon the recommendation of the Trades Helper/Trainee Career Development Board. Current employees who have exceeded the timeframes [sic] in their job position will meet with the Trades Helper/Trainee Career Development Board to be evaluated and to determine the appropriate training requirements and the timeframe [sic] that will be permitted to complete the Trainee Career Development Plan. Current employees who cannot or will not complete the Trainee Career Development Plan will be subject to administrative action. The Maintenance Employees Contract provides further, in pertinent part, at Article XI, entitled "Disciplinary Action," as follows: Section 1. Notification Whenever an employee violates any rule, regulation, or policy, that employee shall be notified by his/her supervisor, as soon as possible, with the employee being informed of the rule, regulation, or policy violated. Every effort shall be made to have an informal discussion with the employee, prior to the issuance of any disciplinary action. Any employee summoned for a Conference- for-the-Record (CFR) shall be given no less than two working days' notice, except in cases deemed to be an emergency. The notification shall contain a statement of the reason(s) for the CFR. An employee notified of a CFR which may lead to disciplinary action shall have the right to request Union representation and shall be so informed of this right. . . . * * * Section 2. Dismissals, Suspensions, Reductions-in-Grade Employees dismissed, suspended, or reduced in grade shall be entitled to appeal such action to an impartial Hearing Officer who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. . . . On June 25, 1985, Mr. Jinks began his employment with the School Board. On February 19, 1986, he entered Step 1 of the Career Plan. Mr. Jinks was advanced as he completed schooling and on-the-job training. On November 28, 1986, he reached Step 2. Mr. Jinks skipped Step 3 and advanced to Step 4 on November 27, 1987. At Step 4, he began receiving 75 percent of a journeyperson's salary. To reach Step 5, the only requirement for Mr. Jinks to satisfy was to pass the licensing examination, which could be taken in several counties, namely, Broward, Collier, Dade, Monroe, or Palm Beach. The School Board has no control over the licensing examinations or process. The examinations are given frequently enough that Mr. Jinks could have taken at least one examination per month. No limitation is placed on the number of times an examination may be taken. Mr. Jinks began his four-year Career Plan on September 1, 1988, when he signed his formal Training Agreement and Training Standards, in which he acknowledged that a failure to complete the Career Plan would result in his becoming a trades helper. Mr. Jinks four-year Career Plan expired on September 1, 1992, and his automatic fifth year expired one year later, September 1, 1993. As of November 27, 1987, Mr. Jinks was eligible to take the licensing examination. However, he did not begin taking the examination until 1995, well after his fifth and final year. Mr. Jinks submitted documentation of having taken the examination only once, which was in 1995 and which he failed. Trainee reviews were held with Mr. Jinks on several occasions, including December 15, 1993, June 29, 1994, September 30, 1994, March 1995, and June 1995. At each review meeting, Mr. Jinks was given extensions. At each review meeting, the requirement to pass the licensing examination was stressed, and Mr. Jinks was put on notice that, if he did not pass the licensing examination and obtain a certificate of competency, he would be subject to demotion to a trades helper and that, as a consequence, his salary would be reduced. Furthermore, written notice was provided to Mr. Jinks on August 3, 1994, November 7, 1994, and November 7, 1996. On November 7, 1996, in accordance with Article IX, Section 12.E.5, of the Maintenance Employee Committee contract and with Mr. Jinks' Training Agreement, the Trades Helper/Trainee Board recommended that Mr. Jinks be demoted to trades helper for his failure to comply with his Training Agreement and Training Standards. As of November 7, 1996, Mr. Jinks had had approximately nine years to pass the licensing examination and reach Step 5 of the Career Plan. On December 5, 1996, a Conference-for-the Record was held with Mr. Jinks at which he failed to produce proof of licensure. As a result, the recommendation for demotion continued to be processed. Furthermore, Mr. Jinks was notified that, if he could produce official documentation of passing the licensing examination prior to the School Board taking action, the recommendation would be rescinded. Demotion is the established practice under the Maintenance Employee Committee contract for similarly situated employees. On February 5, 1997, the School Board voted to demote Mr. Jinks to the position of trades helper. Mr. Jinks challenged the School Board's action and requested a formal hearing. After the School Board's action and prior to hearing, Mr. Jinks again took the licensing examination. At the time of hearing, he was awaiting the results.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Dade County School Board enter a final order demoting Kevin Jinks to the position of Trades Helper. DONE AND ENTERED this 5th day of December, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 5th day of December, 1997.
Findings Of Fact The Respondent was employed by the School Board of Volusia County from September 1, 1981 until November 14, 1989 as a painter or painter mechanic. T- II-39,40. The terms and conditions of the Respondent's employment was governed by the contract between the Petitioner and the American Federation of State, County, and Municipal Employees, Council 79, Local 850. This contract provides that employees can be disciplined, to include discharge for just cause. Joint Exhibit 1. The Respondent was employed as a painter within the Board's facilities support operations department. This department employs approximately 130 craftsmen and 20 clerical and supervisory staff. T-I-38. The Respondent's immediate superior was foreman of the painters, Joe Isaac, who has held that position for the past 18 years. T-I-38,64 The chain-of-command from the top of the facilities support department is Charles Lambeth, who is Director of Facilities Operation; Terry Ellis, who is Assistant Director in charge of the crafts area; and Clifton Robertson, who is the Director of Facilities Support Operations or the personnel administrator for the facilities support department. Clifton Robertson investigated the allegations against the Respondent, counseled with the Respondent, and issued the disciplinary letters and reprimands given to the Respondent. On October 24, 1989, Mr. Florio engaged in a loud, profane, and inappropriate shouting match with a coworker, Larry Brazil, while on the job scraping paint outside a classroom at Seville School. Their conduct was such that a teacher left her classroom, outside of which they were working, and cautioned them about the disturbance they were causing. The acting foreman, Don Jenkins, overheard the exchange between the Respondent and Brazil in which the Respondent used obscene or profane language. The acting foreman did not hear Brazil use such language, and other witnesses testified that they had never heard Brazil use such language on the job. On October 25, 1989, the Respondent got into another argument with another coworker, Ken Griswold. During this argument, the Respondent threw his paint scraper at Griswold, who had made no threat to the Respondent. With only the verbal provocation, the Respondent threw the scraper at Griswold and would have struck him had Griswold not jumped back out of the way. There was dissatisfaction among the Respondent's coworkers about the way he did his job. The Respondent had been injured in 1987 and was restricted from working on ladders over six feet tall, lifting regular ladders, and spray painting. Sometime later, the Respondent's restrictions were altered to permit him to work on a six-foot aluminum ladder. His refusal to do any type of work which was covered by his medical restrictions was a source of contention with his coworkers. In addition, he had a history of not following regulations and requirements which the other men were required to follow. On October 24 and 25, 1989, the Respondent was assigned to a team of painters to scrape and paint the exterior of a school. On both days, arguments between the Respondent and coworkers arose over the Respondent's refusal to scrape paint from the ladder. On October 24, 1990, this led to a shouting match with Larry Brazil and to the Respondent throwing a paint scraper at Ken Griswold on October 25, 1990. On March 21, 1989, the Respondent was directed at 7:00 a.m. to report to work at Seabreeze Senior High School by his foreman, Joe Isaac. The Respondent did not do so and stayed at the main maintenance facility until 8:45 a.m., when he was discovered by the Assistant Maintenance Director, Terry Ellis, who instructed him to report to the high school. The Respondent again refused to go and remained at the main maintenance facility until 8:54 a.m., when the Maintenance Director, Charles Lambeth, arrived. The Respondent had asked his foreman, Joe Isaac, to see Lambeth; and Isaac had told Florio to report to work at the high school and if Lambeth wanted him, Lambeth would send word through Isaac for Florio to report to Lambeth. When confronted by Ellis, the Respondent told Ellis he wanted to see Lambeth. Ellis also told Florio to report to the school immediately. Florio remained at the maintenance headquarters until Lambeth arrived. Lambeth asked Florio why he was there, and Florio stated that he had been told Lambeth wanted to see him. Lambeth told Florio that he had not wanted to see him, and Florio blamed the incident on the men lying to him. Florio did not report until told to do so by Lambeth. The Respondent had his pay docked for two hours and received a letter of reprimand for failure to follow direct instructions. The letter of reprimand described the Respondent's actions as malingering and insubordination. Painters reported each day to the maintenance headquarters, after which they took School Board vehicles to the job sites. Similarly, after being released at the job site, the painters were supposed to return to the main maintenance facility, where employees were dismissed for the day. On September 11, 12, 13 and 14, 1989, the Respondent drove his private automobile to the school at which the paint team was working. Although the Respondent had been given permission to drive his car on Monday of that week because his stomach had been giving him problems, he took his car the rest of the week and left directly from the school, not returning to the maintenance headquarters, as required on the dates indicated above. The Respondent received written notice that he was being docked 160 minutes. On or about September 21, 1989, the Respondent told a coworker that he refused to drive. The Respondent did not deny telling the coworker that he would not drive but asserted that he had been kidding. On September 22, 1989, the Respondent slammed open the door of a School Board truck striking another School Board truck in the door and damaging both trucks. The property damage was $121.63. The Respondent had slammed the door open because he was angered by the remarks of a coworker who chided him about driving. The letter of reprimand which the Respondent received for his conduct on September 21 and 22 indicated that the Respondent had been encouraged to enter the Employee Assistance Program. The Respondent did not avail himself of the program. The Respondent frequently complained to his supervisors about what he described as "harassment" and "kidding" by his coworkers although the Respondent engaged in similar behavior with his coworkers. As a result of his complaints, his superiors counseled his coworkers not to tease, harass, or kid the Respondent. The Respondent is a malingerer. He developed a pattern of avoiding work by failing to report when he was supposed to report; by refusing to perform duties within his ability as requested by his fellow workers; and by asserting he was ill. The Respondent was ill-tempered and acted out inappropriately with increasing frequency and violence. The Respondent refused to acknowledge that there was a problem, that the problem was him, and to seek assistance for it. The employer counseled with the Respondent and used progressive discipline to attempt to modify the Respondent's behavior to no avail. The employer had just cause to discharge the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore recommended that the Respondent be discharged. RECOMMENDED this 20th day of August, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 20th day of August, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-6360 The parties filed proposed findings of fact which were read and considered. The following is a listing by party of the findings which were adopted and those which were rejected and why: Petitioner's findings by paragraph number which began with paragraph 7: Paragraph 7 Adopted Paragraph 8 Adopted Paragraph 9 Adopted and rewritten Paragraph 10 Rejected; restates exhibit Paragraph 11 1st sentence adopted; remainder irrelevant Paragraph 12,13,14 Adopted and rewritten Paragraph 15(a) Irrelevant Paragraph 15(b) Rejected; restates exhibit Paragraph 16-20 Adopted and rewritten Paragraph 21 Irrelevant Paragraph 22-29 Adopted and rewritten Respondent's findings by paragraph number beginning with paragraph 1: Paragraph 1-4 Adopted and rewritten Paragraph 5 Irrelevant Paragraph 6-10 Adopted and rewritten Paragraph 11 Whether Brazil was disciplined is unknown Paragraph 12 Rejected as contrary to fact Paragraph 13-14 Adopted and rewritten Paragraph 15 Rejected that Florio did not throw the scraper at Griswold; remainder adopted and rewritten Paragraph 16 Adopted and rewritten Paragraph 17 Evidence was received that coworkers were counseled on several occasions; however, it is also irrelevant because the disciplinary records of the other employees were not introduced. Evidence was received that; at least one other employee was discharged for similar types of behavior. Paragraph 18 Adopted and rewritten Paragraph 19-24 Irrelevant Paragraph 25 The statement is true, but gives the erroneous impression that Florio was discharged because he did not participate in the program. The employer's reference of the employee to this program was relevant because it shows the employer had such a program and it was available. The employee's rejection was relevant because it indicates how confused the employee is about his situation and condition. Paragraph 26 Rejected as contrary to fact COPIES FURNISHED: Harrison C. Thompson, Esq. THOMPSON, SIZEMORE & GONZALEZ P.O. Box 639 Tampa, FL 33601 Ben Patterson, Esq. P.O. Box 4289 Tallahassee, FL 32315 Dr. Jame D. Surratt, Superintendent Volusia County School Board P.O. Box 2118 Deland, FL 32720 Honorable Betty Castor Commissioner of Education Department of Education The Capitol Tallahassee, FL 32399-0400
The Issue The issues are whether Petitioner timely filed her Petition for Relief, and if so, whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on her race.
Findings Of Fact At all times material to this proceeding, Respondent operated a convenience store (the store) in Havana, Florida. In July 1998, Respondent hired Petitioner, a black female, as a midnight shift cashier for the store at $5.50 per hour. Charles Nichols, the store manager, made the decision to hire Petitioner. In addition to Petitioner and the store manager, Respondent employed five or six other cashiers--one American Indian female, one Hispanic male, two white females, and one or two white males. Petitioner was Respondent's only black employee. As part of her work orientation, Mr. Nichols furnished Petitioner with a copy of a cashier's job duties, which she signed and dated July 8, 1998. Mr. Nichols also provided Petitioner with other hiring and orientation information, including but not limited to, an employee handbook explaining Respondent's anti-discrimination policies. Mr. Nichols was responsible for the day-to-day operations at the store. Petitioner admits that Mr. Nichols was the best boss she ever had, at least until September 7, 1998, when Respondent terminated her employment. Shortly after she was hired, Petitioner's payroll check failed to include some overtime work. Mr. Nichols advanced or loaned Petitioner the correct amount out of his own pocket until the mistake could be corrected. On another occasion, Petitioner intentionally left her midnight shift (11:00 p.m. to 7:00 a.m.) two hours early, leaving a new trainee (Jason Smith) in charge of the store. While such conduct was unacceptable, Mr. Nichols decided to counsel Petitioner instead of terminating her. Petitioner complained about working the midnight shift due to her family responsibilities. Mr. Nichols attempted to accommodate Petitioner by scheduling her to work the evening shift (3:00 p.m. to 11:00 p.m.) when possible. Respondent hired Jason Smith to work at the store as a cashier shortly after Petitioner began her employment. In early September 1998, Mr. Nichols and Respondent's regional manager, Clev Mathias, promoted Jason Smith to assistant store manager. An assistant store manager has many of the same day- to-day duties and responsibilities as the store manager. The assistant store manager acts as store manager when the manager is not present. Accordingly, the assistant store manager's duties include being responsible for the entire store operations, supervising employees, and directing the cashiers in the performance of their duties. The assistant manager does not make final decisions related to personnel matters. Instead, an assistant manager may recommend that the store manager take disciplinary action, including termination. Generally, only one employee is on duty during the evening and day shifts at the store. Respondent assigns two employees to work the midnight shift. However, during busy times, like Friday and Saturday nights, Respondent assigns a floor person (which is an additional employee) to the evening shift to assist with some of the cleaning duties. In 1998, Respondent insisted that its employees keep the store clean and presentable to customers. The company's mission statement was "selling fresh products in a clean and bright store." The mission statement meant that the store should sparkle and shine as much possible. In order to ensure compliance with its cleanliness policy, Respondent used mystery shoppers to conduct "Pride Ride" inspections. Employees received awards for clean stores, which usually resulted in better sales. Therefore, it was "imperative" that every employee working on every shift, including the store manager, perform basic cleaning duties. In fact, one of the essential job duties of a cashier was to "maintain the cleanliness and appropriate image of entire store, inside and out." At a minimum, Respondent expected its employees to mop the high traffic areas, keep the food counters and fountains clean and presentable to customers, keep the Parrot Ice machine operational and clean, and keep the cooler stocked and cleaned. These were basic cleaning duties which did not have to be posted on the store's bulletin board as special cleaning duties. If an employee working on one shift failed to perform the basic cleaning duties, the employee on the next shift would have to do the work, creating "double cleaning" duties for the new shift. Employees were not supposed to leave the premises after a shift until the store met the cleanliness standard. The evening shift was generally busier than the midnight shift at the store. The average sales volume for an evening shift was between approximately $300 to $500 per hour. On Sunday nights, the average volume would be approximately $200 to $400 per hour. However, during a busy time, the evening shift may have a sales volume of approximately $500 to $700 per hour. On Sunday, September 6, 1998, Petitioner was assigned to work the evening shift for the store. She was the only employee assigned to work that shift. The employees that were assigned to the subsequent midnight shift and who would be relieving Petitioner were Rodney Smith (Jason Smith's father) and Marie Sargent. Rodney Smith usually showed up early for his assigned midnight shift. He arrived at the store at approximately 10:00 p.m. on September 6, 1998, and observed that the store was not clean. As Rodney Smith began filling and cleaning the Parrot Ice machine, he noticed that Petitioner appeared to be socializing with a male at the counter for an extended period of time. Accordingly, Rodney Smith paged the assistant manager, Jason Smith, so that he could see the condition of the store. Jason Smith worked the day shift at the store on September 6, 1998. When he finished his shift and when Petitioner began her shift at 3:00 p.m., the store was clean. Jason Smith remained in the store's office for a while after his shift ended. On two occasions, Jason Smith's use of the office phone caused a delay in Petitioner's ability to operate the credit card machine. The first time, Petitioner stepped to the office door and asked Jason Smith to hang up the phone. The second time, Petitioner yelled from the cash register telling Jason Smith to hang up the phone. Jason Smith agreed but told Petitioner the she should not yell. At approximately 7:30 p.m. on September 6, 1998, Jason Smith's girlfriend picked him up for a date. The store was clean when he left the store. Jason Smith was leaving the home of his girlfriend's parents when he received the page from Rodney Smith at approximately 10:07 p.m. After receiving the page, Jason Smith proceeded immediately to the store. When Jason Smith arrived at the store, he also noticed that Petitioner was behind the counter talking to a male. Jason Smith checked with Rodney Smith to make sure there was no emergency (such as a robbery, fire, etc.) and was told to look at the condition of the store. Jason Smith then proceeded to inspect the convenience store and noticed that the condition of the store was unacceptable. Specifically, Jason Smith noticed the following: That the floor, especially in the high traffic areas, had not been mopped and was very dirty. That the drink fountain had not been cleaned and there was ice on the floor and counter. That the hot dog machine had not been cleaned and the hot dogs that were in the machine had burned. That the Parrot Ice machine was beeping which indicated that it had not been filled with liquid and also, because the machine had been left on, the Parrot Ice liquid had continued to dispense the product onto the machine and then onto the floor. That the cooler had not been stocked. The condition of the store at the time Jason Smith inspected it on the night of September 6, 1998, was in violation of Respondent's policy regarding cleanliness and store image. Jason Smith also noticed that Petitioner continued to lean on the counter talking to the male while he inspected the store. Jason Smith then called Mr. Nichols to let him know about the unacceptable condition of the store. Jason Smith wanted Mr. Nichols's advice as to the appropriate response to the situation. Mr. Nichols instructed Jason Smith to run an X-2 report from the cash register. The purpose of running the X-2 report was to determine the volume of sales for the store in the last hour. If the volume of sales was unusually high, it would mean that Petitioner had been too busy with customers to perform the regular shift cleaning duties. A high volume of sales would have explained the unacceptable condition of the store. As instructed by the store manager, Jason Smith ran the X-2 report which indicated that the store had only $50 of sales during the last hour on the evening shift. This small amount of sales during the past hour would not have prevented Petitioner from performing the basic cleaning duties required for that shift. When Jason Smith first attempted to run the X-2 report, Petitioner immediately became belligerent and hostile and was very upset that Jason Smith was trying to run this type of report on the register. She then called Mr. Nichols to complain about the situation. Jason Smith communicated the result of the X-2 report to Mr. Nichols. The store manager then informed Jason Smith that he should instruct Petitioner to perform the basic shift duties necessary to clean the store and to get the store in acceptable condition before she left her shift that night. Based on the instruction from the store manager, Jason Smith gave Petitioner verbal instructions to perform certain basic cleaning duties of a cashier, including filling the Parrot Ice machine and mopping and sweeping the high traffic areas. Since his initial inspection of the store, Jason Smith noticed that beer bottles had spilled and were broken in the cooler which created an additional mess. Therefore, his instruction to Petitioner included stocking and cleaning the cooler. To ensure that there was no confusion about the instructions, Jason Smith provided Petitioner specific written instructions to perform these basic duties. When Petitioner received these verbal and written instructions, she once again became very agitated and belligerent. Petitioner was loud and obnoxious to Jason Smith, using profane language in front of customers and another employee. In response to Petitioner's hostile reaction, Jason Smith confirmed to Petitioner that she would have to perform these basic duties before she left the store that night. Jason Smith left the written instructions in the store's office. On the reverse side of the list, Jason Smith wrote Mr. Nichols a note regarding Petitioner's hostile attitude. Jason Smith then left the store because his presence seemed to aggravate Petitioner. After Jason Smith left the store, Petitioner continued to complain about Jason Smith in front of customers. She wrote Mr. Nichols a note stating that she wanted a transfer to another store because she would not work under Jason Smith anymore. She did not perform the duties that were specifically assigned to her by Jason Smith before she left her shift that night. The next day, on September 7, 1998, Mr. Nichols reviewed the handwritten note from Jason Smith indicating that Petitioner refused to perform the duties. Mr. Nichols also confirmed with Rodney Smith that these events had occurred as described. Mr. Nichols then had a discussion with Jason Smith to determine how to handle the situation with Petitioner. According to Respondent's policy, Petitioner's conduct on September 6, 1998, was such that termination was appropriate. Recognizing that any employee could have a bad day, Mr. Nichols and Jason Smith decided that they wanted to give Petitioner an opportunity to explain her conduct on September 6, 1998. Therefore, Mr. Nichols called Petitioner to come to the store and talk with them about the situation and her conduct on September 6, 1998. Upon arriving at the store to meet with Jason Smith and Mr. Nichols, Petitioner continued to respond in a hostile and belligerent tone. She refused to provide them any explanation for her conduct on September 6, 1998. Specifically, Petitioner did not explain the following: (a) her refusal to perform the assigned duties; (b) her refusal to follow a direct order from the assistant manager; and (c) her belligerent and hostile attitude against the assistant manager in front of customers and other employees. Based on Petitioner's conduct on September 6, 1998, and her further refusal to provide an adequate explanation for her conduct, Jason Smith recommended to Mr. Nichols that Respondent terminate Petitioner. Mr. Nichols agreed with the recommendation, terminating Petitioner's employment based on her insubordination and refusal to perform job duties. Respondent's regional manager approved Mr. Nichols's decision to terminate Petitioner. Mr. Nichols and Jason Smith prepared and signed an employee conference summary report on September 7, 1998. When they presented the report to Petitioner, she refused to sign it. Mr. Nichols also prepared and signed a final personnel action record on September 7, 1998. The personnel action record documents Petitioner's termination effective September 7, 1998, for "insubordination, refused to perform duties."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 19th day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Steven Carter, Esquire Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of September, 2002. Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Georgia A. Miller Post Office Box 156 Calvary, Georgia 39829 Cecil Howard, Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Petitioner is entitled to certification as a Disadvantaged Business Enterprise pursuant to Section 339.0805, Florida Statutes, and Rule Chapter 14-78, Florida Administrative Code? PRELIINARY STATEMENT By letter addressed to Lynne Bohnsack, Petitioner’s president, dated August 23, 1996, the Department of Transportation (Department) advised Petitioner of its intent to deny Petitioner’s application for Disadvantaged Business Enterprise certification (as a supplier of concrete pipe) on the following grounds: Your firm does not appear to be a regular dealer as required by Rule 14-78.005(7)(g) and Rule 14-78.002(15), Florida Administrative Code (F.A.C.). . . . Your firm does not appear to be a “small business concern” as required by Rule 14- 78.005(7)(a), F.A.C. . . . You, the qualifying owner of this firm, do not appear to possess the technical expertise, specialized knowledge, training, education or experience to make decisions in critical areas of operation for a firm which specializes in pipe supply as required by Rule 14-78.005(7)(e), F.A.C. . . . By letter dated September 6, 1996, Petitioner requested a “formal hearing pursuant to Chapter 120, Florida Statutes,” on the Department’s proposed action. On October 1, 1996, the matter was referred to the Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested. The final hearing in this case was originally scheduled for December 16, 1996, but was thrice continued. The hearing was ultimately held, as noted above, on February 19, 1997. A total of seven witnesses testified at the hearing: Lynne Bohnsack, Thomas Valdes, James DeForest, Al Doll and Dennis Hill, testifying on behalf of Petitioner; and Howard Jemison, the Department’s DBE Certification Manager, and John Goodeman, a Certification Consultant with the Department, testifying on behalf of the Department. In addition to the testimony of these seven witnesses, a total of 18 exhibits (Petitioner’s Exhibits 1 through 7) and (Respondent’s Exhibits A through K) were offered and received into evidence At the conclusion of the evidentiary portion of the hearing, the undersigned, on the record, advised the parties of their right to file proposed recommended orders and established a deadline (20 days from the date of the Division of Administrative Hearings’ receipt of the transcript of the hearing) for the filing of such proposed recommended orders. The transcript of the hearing was filed on March 7, 1997. The Department and Petitioner filed their proposed recommended orders on March 25, 1997, and March 27, 1997, respectively. These post-hearing submittals have been carefully considered by the undersigned..
Findings Of Fact Lynne Bohnsack is the president and sole owner of Lynne’s Pipe and Supply (Lynne’s). Bohnsack is a woman and a citizen of the United States. She formed Lynne’s with the intention of it becoming a supplier of concrete pipe. She did so upon the advice of her brother, Dennis Hill. Unlike Hill, Bohnsack had no prior experience in the concrete pipe supply business at the time she established Lynne’s.1 She has since learned about the business through discussions she has had with both Hill and James DeForest, an acquaintance who has been in the highway construction business for over 40 years. Hill has not only provided Bohnsack with information concerning the concrete pipe supply business, he is now also employed by Lynne’s as an estimator working on a commission (33% of profit) basis Al Doll is another individual currently affiliated with Lynne’s. He is its vice president in charge of customer relations. Doll, however, has thus far not had the opportunity, in his capacity as Lynne’s vice president, to deal with any customers because Lynne’s has not had any. Lynne’s has yet to sell any concrete pipe (although it has recently attempted, albeit unsuccessfully , to do so by “bid[ding] on some jobs”), nor has it made any payments to employees or paid any taxes Lynne’s, which operates out of Bohnsack’s residence in Vero Beach, does not maintain an inventory of concrete pipe. It has entered into a lease agreement with Pan American Engineering, Hill’s former employer, to rent space to store concrete pipe, but it has never used the storage area which is the subject of the lease for any purpose, nor has it made any payments under the lease.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order denying Petitioner’s application for certification as a Disadvantaged Business Enterprise DONE AND ENTERED IN Tallahassee, Leon County, Florida, this 9th day of April, 1997. STUART M. LERNER 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 9th day of April, 1997.
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 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 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
