The Issue Whether Respondent’s rights and benefits under the City of Tampa General Employees’ Retirement Fund (the Fund) are required to be forfeited pursuant to section 112.3173, Florida Statutes (2018).1/
Findings Of Fact The Fund is a public retirement system as defined by Florida law. The Fund is charged with administering and managing a pension plan for City employees. Respondent was an employee of the City’s Parks and Recreation Department. Although she began working as a seasonal employee during the summers when she was in college, Respondent began in a permanent capacity as a recreation leader in October 2006. As part of her duties, Respondent was responsible for working in the City’s afterschool and cheerleading program. In Fall 2018, Respondent was responsible for ordering the uniforms for the participants in the cheerleading program. The money for the uniforms was provided to the City by the participants’ parents. Initially, the money was collected by a parent representative who converted it to a pre-paid purchasing card in the amount of $762.00, and submitted the card to Respondent. Respondent was to use the card to order the uniforms for the cheerleaders, and the uniforms were to be delivered to the City’s Parks and Recreation office. Michelle Keeler, Respondent’s supervisor, noticed the uniforms had not arrived at the expected date. On October 26, 2018, she questioned Respondent about the delay. Respondent initially told Ms. Keeler there had been a mistake by the delivery company. At this point, Ms. Keeler, who had supervised Respondent since Respondent had started working at the City, had no reason to suspect Respondent was lying. Over the next few weeks, Ms. Keeler periodically asked Respondent about the status of the cheerleading uniforms and was told there was a problem with the delivery. By mid-November, Ms. Keeler became suspicious and again asked Respondent about the uniforms. Respondent indicated the uniforms had been delivered and left in the office, but were now missing. Respondent suggested to Ms. Keeler that the cleaning crew may have thrown out the box of uniforms. On November 26, 2018, Ms. Keeler called the cheerleading uniform company and discovered no uniforms had been ordered for delivery to the City’s Parks and Recreation Department. The same day, Ms. Keeler confronted Respondent about the uniforms. Respondent insisted she had ordered them, but could not produce any records to show that she had made the order. She was also questioned by another Parks and Recreation supervisor, and gave the same response. Upon further interrogation, Respondent changed her story, admitting she had not actually ordered the uniforms. She claimed the card had been stolen from her. Respondent later provided a written statement to the City, in which Respondent claimed she still had the pre-paid card in her possession, but that the card no longer had any funds. Eventually, Respondent admitted to City staff that she no longer had the funds. On November 30, 2018, the City placed Respondent on suspension, pending an investigation. The City considered the funds collected for the purchase of the uniforms to be City property. Ultimately, the City ordered the missing uniforms and covered the cost. Based on the investigation, the City found Respondent to be in violation of section B28.2A(3)(d)(1) of the City’s Personnel Manual concerning “Moral Turpitude,” prohibiting “[f]alsification, misrepresentation, or material omission of statements, testimony, or any document or record completed in the course of employment or in obtaining employment, including group insurance claims.” The City also found Respondent had violated section B28.2A(3)(d)(11) of the Personnel Manual prohibiting theft or unauthorized removal or use of City property. As a result of its investigation and the violations, the City terminated Respondent on March 12, 2019. At the hearing, Respondent admitted she collected the money for the uniforms, misled City staff about the missing uniforms, and was terminated for theft.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, City of Tampa General Employees’ Retirement Fund enter a final order determining Respondent, Deirdre Williams, has forfeited all of her rights and benefits in the pension plan administered by the Fund, except to the extent of Respondent’s accumulated contributions, if any, as of March 12, 2019. DONE AND ENTERED this 29th day of August, 2019, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2019.
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 31st day of January, 2008. 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 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
The Issue Whether Respondent was properly terminated by Petitioner for just cause or is entitled to reinstatement with back pay and benefits.
Findings Of Fact Respondent is a 48-year-old man who was employed between 1997 and August 15, 2005 (eight years), by Petitioner FAMU. During that period, he had attained permanent status in the classifications of Computer Programmer and Senior Computer Programmer in Petitioner FAMU’s Information Technology (IT) Services Unit. Respondent is a member of an AFSCME union bargaining unit. Petitioner reorganized its IT unit in 2004-2005. As a result, several employees of that unit, including Respondent, were targeted for layoff. FAMU’s standard procedure for advising employees for the first time that they were being laid off was to call them to the personnel office. After returning to work from sick leave on August 15, 2005, Respondent was informed that he was to report to the personnel office that afternoon. Four or five people already had been laid off, and Respondent anticipated that he would be laid off. Indeed, Respondent’s position as a Senior Computer Programmer Analyst had been eliminated as a result of the reorganization, but he did not know this in advance of the August 15, 2005, meeting. With apprehension, Respondent unsuccessfully attempted to secure a union representative to accompany him to the afternoon meeting. He subsequently secured a tape recorder from his home, with the intent of recording the meeting. The meeting turned out to be scheduled in the office of FAMU’s Human Resources Administrator. When Respondent arrived at the meeting location, there were two campus police officers, John Cotton and Audrey Alexander, present. Also in attendance were Dr. Janie Greenleaf, FAMU Human Resources Administrator; Dr. Kenneth Perry, at that time Associate Vice-President and Chief Technology Officer; and Howard Murphy, the IT consultant hired as special assistant to the university president. Mr. Murphy had done the assessment leading to the layoffs, and it was he who had recommended which employees to lay off. The meeting was intended by the administrators as an initial layoff meeting, wherein Respondent would be presented with a letter advising him that he was being laid off as of that date and of his rights under the rules governing layoffs (the Notice of Layoff); he would sign another letter acknowledging that he had received the Notice of Layoff; and any questions he had would be answered by those present. Upon entering Dr. Greenleaf’s office, Respondent was instructed to take a seat, and he did so. Dr. Greenleaf laid a Notice of Layoff (Exhibit P-2), dated August 15, 2005, on a table in front of him. Respondent then removed his tape recorder from an attaché case. This movement appears to have put the other attendees on edge, because terminations, for whatever reason, can turn violent. Respondent then placed the recorder on the table, and announced that he intended to record the meeting. He stated that anyone who did not want to be recorded could leave. Respondent testified that he had assumed that his behavior would cause the administrators to end the meeting and do what they intended to do without any input from him. (TR-74) Instead, Dr. Greenleaf told Respondent that he could not record the meeting because she did not want to be recorded. She told him to turn off his tape recorder. Apparently, Dr. Greenleaf was the only attendee who objected out loud to being taped. Respondent would not turn off his recorder. Respondent believed that he had a right to tape the meeting because of his status as a University Support Personnel Services (USPS) employee. He testified that during his employment with FAMU, he had attended workshops where he had been allowed to record the meeting for accuracy and make his written report to his superiors from the taped record. He also testified that he had recorded “in the open” a conversation with a superior about a promotion. He further testified that he had been in meetings and hearings with an AFSCME union representative when administrative personnel asked them to turn off the recorder and told them when they could turn on the recorder. In these instances, there were apparently “on the record” and “off the record” conversations. (TR 73-74) There is the suggestion in Respondent’s testimony that he believed that, in the absence of a union representative, he was entitled to tape any meeting. More than once in the August 15, 2005, meeting, Respondent stated to the assemblage that he had a right “as USPS” to record the meeting. After reviewing either a statute book or labor union book, Dr. Greenleaf advised everyone present that the meeting could not be recorded without all attendees’ consent. Dr. Greenleaf advised Respondent that he could take notes; have someone present to transcribe the meeting; or have an AFSCME union representative present; but that she did not wish to be recorded. From the evidence as a whole, it appears that Respondent believed that since he could not get a union representative there at that time, his only option was to tape the meeting, but there is no evidence that he requested to reschedule the meeting for a time when he could be accompanied by a union representative. Dr. Greenleaf repeatedly advised Respondent that he could not record the meeting and/or ordered him to turn off his tape recorder. Respondent repeatedly refused to cease taping and repeatedly advised the assemblage that anyone who did not wish to be recorded could leave. At least once, Dr. Greenleaf advised Respondent that his refusal could be construed as insubordination. Apparently, the volume of both Dr. Greenleaf’s and Respondent’s voices became elevated. Respondent’s affect was described by all the witnesses who testified as “defiant,” “agitated,” “adamant,” persistent,” and/or “insistent.” Dr. Greenleaf then interrupted the meeting and asked Respondent to wait outside. Dr. Greenleaf and Dr. Perry consulted and decided that Respondent was being insubordinate. A revised letter dismissing Respondent for insubordination (the Notice of Dismissal, Jt. Ex. 1) was drafted and signed by Dr. Perry. When he was permitted to return to Dr. Greenleaf’s office, Respondent turned on his tape recorder again. Dr. Greenleaf had removed the original layoff letter from the table and delivered to Respondent the Notice of Dismissal for insubordination, also dated August 15, 2005.3/ Respondent requested a copy of the original Notice of Layoff, and was informed by Dr. Greenleaf that he was now terminated for insubordination and the Notice of Layoff was withdrawn. Respondent was not provided with a copy of the Notice of Layoff. Respondent was ultimately conducted off campus by Officers Cotton and Alexander without further incident. Although Respondent was dismissed from FAMU, effective August 15, 2005, he remained on the University’s payroll through August 29, 2005, approximately two weeks following his dismissal. The Notice of Dismissal retained the two week pay provision that had been part of the Notice of Layoff. Subsequent to his termination by FAMU, Respondent has sought other employment, but has been unsuccessful.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Agricultural and Mechanical University enter a final order which: Reinstates Respondent in his previous position as of August 15, 2005, and corrects all personnel records to reflect that he was not discharged for insubordination; Provides him with back pay dating from August 29, 2005, to the date of the final order; Provides him with all commensurate employee benefits dating from August 15, 2005, to the date of the final order; and As of the date of the final order, provides him with all layoff rights and entitlements appropriate to his job position and bargaining unit under the layoff procedures applicable at that date. DONE AND ENTERED this 2nd day of August, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2006.
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: Petitioner, Ann K. Hubert, is a thirty-five year old female. On February 4, 1992, she began employment with respondent, Darroch, Inc. d/b/a Dockside Imports (Dockside), as a part-time cashier at respondent's store in Newberry Square in Gainesville, Florida. After a promotion to a full-time position some six weeks later, she continued working until May 11, 1992, when she was terminated for what respondent says was poor job performance. Petitioner contends, however, that she was actually terminated because of her pregnancy. These contentions form the basis for this controversy. Dockside has a chain of retail stores selling items ranging in size from figurines to furniture. Each store has a manager, assistant manger, and an assistant to the assistant manager known as the first, second and third keys, respectively. In addition, each store employs stock clerks, usually males, to assist in the more physically demanding activities. Except on a few isolated occasions, at least two, and sometimes three, employees would be present in the store at any one time. During petitioner's tenure as a full-time employee at Dockside, she occupied the position of third key. All of the key positions were held by females. During her first days on the job as a part-time cashier, petitioner was described by her former manager, Betty Hill, as being a "go-getter," "wonderful," and "fantastic." Based on that performance, in March 1992 petitioner was promoted to third key, a full-time position. Within a short period of time, however, her work performance began deteriorating, and Hill began hearing complaints from virtually every other store employee concerning petitioner's performance and attitude. In addition, Hill had at least one customer personally lodge a complaint against petitioner. These complaints began before petitioner learned she was pregnant and continued until her termination. In March 1992, petitioner first suspected that she might be pregnant and she promptly advised Hill of her suspicions. Hill counseled her to make a doctor's appointment as soon as possible to confirm her pregnancy. This was done in early April 1992 and was reconfirmed "a couple of weeks later." After her second visit to the doctor, petitioner advised Hill that, pursuant to her doctor's orders, she could not lift items weighing more than fifteen to twenty pounds since she had suffered a miscarriage in 1977. Petitioner described Hill's reaction to her pregnancy as being positive, and that Hill "was pretty good about making sure that (she) didn't lift anything heavy." Indeed, Hill instructed the stock clerk that petitioner was to do no heavy lifting. Except for this precautionary measure, petitioner's job responsibilities were not changed. Before and after she discovered she was pregnant, petitioner's job duties included operating the cash register, waiting on customers, setting up stock, opening the store in the morning, helping customers carry items to their cars, cleaning, shelving, and the like. She was also responsible for moving small boxes from trucks to the stock room several times per week when shipments arrived. When heavy items required moving, the stock clerks were available to perform this task. Because the delivery of heavy items occurred infrequently and was known several days in advance, petitioner was not required to carry heavy furniture items from the truck to the store since extra persons could be scheduled to be on duty and perform that job. Hill's assistant, Elise Dees, came to work daily around 1:00 p. m. which was just before the end of petitioner's shift. Beginning in early March, Dees always found "nothing was done" by petitioner, including such tasks as shelving, cleaning the glass on tables and windows, vacuuming the floor and the like. In addition, petitioner would always complain she was not "feeling good." According to Dees, she found petitioner's job performance to be "unsatisfactory" at least three to four days per week. Dees also observed that petitioner was always sitting on a box at the back of the store rather than in the front area where she could assist customers. At hearing, petitioner says that she was forced to sit down due to dizziness caused by her pregnancy. In any event, Dees suggested petitioner sit on a bar stool by the cash register in the front of the store in order to be closer to the customers but petitioner declined to do so. During the week of May 4, 1992, petitioner took a previously scheduled one-week vacation to attend a wedding. While petitioner was on vacation, the district manager noticed that store morale and teamwork improved, and a "complete change" in the store environment occurred. Because of this, a decision was made to terminate petitioner immediately upon her return from vacation. It was decided that a demotion would not be practicable since this would not improve the decline in employee morale and teamwork if petitioner stayed in another position. When she returned to work on May 11, 1992, petitioner was met in the parking lot by Hill, who told her that she was being terminated effective immediately. Her position was filled that day by another individual whose gender is not of record. It is noted that petitioner was not dischargd because of a fetal protection policy, nor was she discharged because her pregnancy prevented her from performing her assigned tasks. Rather, she was terminated because of her poor work performance since early March 1992, including its negative impact on co-worker's morale and performance. Therefore, respondent did not commit an unlawful employment act in discharging petitioner. There was no evidence that Dockside had any previously articulated policy per se regarding pregnant employees, nor was there evidence that a similar situation had previously ever arisen. At the time of hearing, Dockside was employing at least one pregnant employee and was providing that employee the same type of accommodations offered petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of December, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 9th day of December, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Steven M. Scheck, Esquire 309 North East First Street Gainesville, Florida 32601-3338 Ms. Deborah Was 1155 South Semoran Boulevard Winter Park, Florida 32792
The Issue The issue in this case is whether Respondent committed an unlawful employment practice by discriminating against Petitioner on the basis of his race and his gender.
Findings Of Fact Mr. Riley is a 25-year-old African-American male, who used to be employed as a correctional officer at LCI. His employment was terminated on December 9, 2011. Mr. Riley was hired on April 3, 2009. When he was hired, Mr. Riley was provided a number of Department rules and policies, such as the Department's personnel rules in Florida Administrative Code Chapter 33-208, the employee driver's license requirement, the Department's anti-harassment and equal employment opportunity statements, and a sexual harassment brochure. Mr. Riley signed a receipt acknowledging that he had been given this material and that he was responsible for reading and complying with the requirements specified in the material. Before Mr. Riley actually began working as a correctional officer at LCI, he completed three months of training at a site identified as "the Academy." Mr. Riley was trained in such matters as the Department's rules and defensive tactics to use with inmates when appropriate. After completing his training, on November 9, 2009, Petitioner was certified as a correctional officer. Following the initial three-month training program required to attain certification, Petitioner was also required to participate in annual on-site in-service training to brush up on the skills and knowledge learned in the initial training course. Mr. Riley's employment was subject to an initial one-year probationary term, which was standard and automatic for all employees. Mr. Riley's employment file reflects a sizeable number of counseling and disciplinary actions taken against him during his two years and eight months employed by Respondent, which will be summarized below. Records of these prior actions were introduced in evidence without objection; Mr. Riley did not dispute the accuracy of his employment records in this regard. Prior to the termination of his employment in December 2011, the next most recent disciplinary action against Petitioner was based on an incident occurring in January 2011. As a result of that incident, the Department initially decided to terminate Mr. Riley's employment. Petitioner, represented by counsel, exercised his right to appeal that decision to the Public Employees Relations Commission (PERC). Right before the PERC evidentiary hearing, Petitioner and the Department settled their dispute in a written settlement agreement signed by Petitioner and Petitioner's counsel. Pursuant to the settlement agreement, the Department agreed to rescind its dismissal letter and replace it with a suspension letter, by which Petitioner was suspended without pay for 44 workdays, from March 11, 2011, through May 12, 2011. Petitioner agreed to accept the suspension. In addition, the Department imposed a new one-year term of probationary employment status, starting May 13, 2011, and Petitioner accepted the one- year probationary term. Petitioner acknowledged that during the term of his probationary status, he would have no appellate rights before PERC for discipline, including for dismissal. The suspension letter summarized the incident that initially provoked a termination letter. According to the letter, Mr. Riley was observed by another correctional officer in several inappropriate encounters with an inmate: first, Mr. Riley was seen walking up to stand behind the inmate, and then, the inmate was lying on the floor; a short while later, Mr. Riley was observed dragging the same inmate by both of his feet down an aisle. After the inmate was returned to the dorm, the correctional officer informed Mr. Riley that dragging the inmate down the aisle was inappropriate and against policy and procedure. The officer asked Mr. Riley whether he was horse-playing or using force, and Mr. Riley replied that he was horse-playing. The correctional officer reiterated that this was inappropriate behavior with the inmate. At the final hearing, Mr. Riley admitted to the horse-playing incident. Petitioner accepted a substantial disciplinary consequence for his inappropriate conduct. Before the horse-playing incident, Petitioner's employment history was peppered with incidents for which Petitioner was counseled or disciplined for violating rules, policies, and procedures. Mr. Riley received three supervisory counseling memoranda: on March 31, 2010, for attendance issues; on September 7, 2010, for refusing an overtime shift when it was his turn; and on November 3, 2010, for miscounting inmates. Mr. Riley received a written reprimand on September 17, 2010, for negligence and failure to follow instructions. The reason for the reprimand was that in a forced cell extraction, Mr. Riley used a leg restraint chain in an unauthorized manner to physically transport an inmate from his cell. And on May 20, 2010, Mr. Riley was suspended for ten days, without pay, for failure to maintain proper security, negligence, and failure to follow instructions. The suspension was based on Mr. Riley's failure to conduct a 30-minute security check on the wing to which he was assigned and Mr. Riley's departure from his assigned wing to visit a different wing, without being relieved from his assigned post or authorized to enter the other wing. The horse-playing incident occurred on January 22, 2011. Following Mr. Riley's March 12, 2011, through May 12, 2011, suspension for that incident, Mr. Riley returned to work on May 13, 2011, as a probationary employee. Mr. Riley's probationary employment status would have lasted until May 12, 2012; however, he did not remain employed for the full year of his probationary status. His employment was terminated by letter dated December 9, 2011. The December 9, 2011, letter did not specify reasons for Mr. Riley's "probationary dismissal." Instead, the letter simply indicated that Mr. Riley was dismissed in accordance with Florida Administrative Code Rule 60L-33.002(5) (providing that a Department employee who is not permanent in a position, serves at the pleasure of the Department and is subject to any personnel action, including dismissal, at the Department's discretion). Although not required, LCI Warden Jennifer Folsom met with Petitioner and told him that she had decided to terminate his employment, for two reasons: first, because of his failure to report several traffic citations imposing fines in excess of $200, as he was required to do by Department rule; and second, because of the attendance problems he continued to have since returning from suspension. The evidence established that Petitioner received at least two traffic citations for which fines in excess of $200 per citation were imposed, which he did not report to the Department, as required. Petitioner's traffic citations were discovered during a driver's license records check, as part of an OIG investigation into an inmate complaint against Petitioner. The complaint was ultimately determined to be unsubstantiated, but the information regarding Petitioner's unreported traffic citations was passed on for action. The correctional officer chief, Major Victor Barber, instructed Petitioner to immediately submit the required report of his citations to his shift supervisor, then-Lieutenant (now Captain) Etta Wright. Petitioner did not follow those instructions. Petitioner was given several reminders; he finally submitted the report of his traffic citations six days after Major Barber told him to do so. Based not only on Petitioner's failure to submit the required report of his traffic citations, but also, on Petitioner's failure to follow the instructions of his superiors, an incident report was written up and brought to the attention of the warden. At the final hearing, Mr. Riley admitted that he had at least two citations with fines exceeding $200. He said that he had paid off the fines, and, although, he knew about the reporting requirement, at the time, he was under the misimpression that by paying off the fines, he did not have to report the citations. The competent, credible evidence of record also established that between May 13, 2011, and December 9, 2011, Mr. Riley had the same kind of attendance problems for which he had been previously counseled, only more so. In March 2010, Petitioner was counseled for having five unscheduled absences in one year. In less than seven months in 2011, Petitioner had five unscheduled absences due to sickness or family sickness. In addition, Mr. Riley was late twice, both classified as unscheduled absences. These unscheduled absences were in addition to one absence for sickness, which was not considered unscheduled; one personal holiday; plus 13 days of annual leave. Respondent's witnesses credibly testified that unscheduled absences are a particular problem because Petitioner was employed in a work environment where staffing shortages cannot be tolerated, and it is very difficult to cover for absences with little advance warning. Moreover, filling an unscheduled gap in required coverage of correctional officers assigned to guard inmates usually comes at great costs. These costs come in the form of strain on the officers who might have to work back-to-back shifts to cover for an unscheduled absence and, also, in the form of overtime expense that could be avoided with more advance notice. Mr. Riley was on notice that the magnitude of his unscheduled absences was considered excessive, when he was counseled in March 2010 for fewer unscheduled absences than he had between May and December 2011. A supervisory counseling memorandum dated March 31, 2010, was issued to Mr. Riley because he had used five days of unscheduled sick leave between April 3, 2009, and March 31, 2010. The memorandum noted that Mr. Riley had been previously counseled regarding attendance-related issues and explained the problems caused by Mr. Riley's absences: While it is understood that from time to time, an employee suffers personal illnesses and other associated problems including family illnesses, that make it impractical for him to report for duty, you should make every effort to report for your scheduled shift and to maintain an acceptable attendance record. Your presence on the job is vital to the effective operation of the institution. When you fail to report for duty as scheduled, your absence places a burden upon your supervisor, who must then find someone to cover your post, and your fellow employees, who must cover your shift. Management has a right to expect that its employees report to work as scheduled. Future behavior of a similar nature may result in formal disciplinary action. Mr. Riley failed to credibly explain his record of a significant number of unscheduled absences between May and December 2011, while he was on probation. Petitioner acknowledged that he left work at least once while on probation because he was not feeling well. He also acknowledged that "there were times" when he would call in sick, but said that he would follow protocol by calling in an hour or two before his shift. Petitioner's testimony regarding his attendance issues was vague. For example, he was equivocal regarding whether he ever failed to call in sick; he could only say that he did not recall doing so. In the face of documentary evidence of Mr. Riley's attendance record, showing specific dates on which Mr. Riley was credited with "unscheduled absence[s]-sick" and "unscheduled absence[s]-family sick," Mr. Riley's vague, generalized testimony attempting to discount his absentee record lacked credibility.2/ Mr. Riley knew from his prior counseling that correctional officers guarding inmates are held to strict standards for attendance because of their work environment, with critical staffing needs 24 hours per day, every day of every week. Mr. Riley should have known that his absences, totaling workdays between May and December 2011, five days of which were unscheduled absences, would be considered excessive. Petitioner attempted to prove that other employees who were not members of his race class and/or gender class were treated more favorably than he was. However, Petitioner offered only his understanding of the conduct of other employees and the consequences for such conduct. Petitioner offered no competent non-hearsay evidence to supplement or corroborate his understanding. Petitioner testified to his understanding that one white male officer was caught on camera horse-playing with an inmate, for which that officer received no reprimand. Petitioner also testified to his understanding of cell phone issues involving a second white male officer: a cell phone was found in the possession of an inmate, and the white male officer's phone number was in the inmate's cell phone; Petitioner heard that the only consequence was that the white officer was told not to have contact with inmates. Later, the officer's cell phone was found in his car, where it was not allowed. This time, Petitioner's understanding was that the officer was allowed to resign. Petitioner testified to his understanding that a white female employee "had attendance issues" and was allowed to resign. Petitioner did not offer his understanding about what kind of "attendance issues" resulted in her being asked to resign, what position she had been employed in, whether she had been previously counseled for attendance issues, or whether she had a prior record of discipline. Petitioner testified to his understanding that another white female employee also "had attendance issues." Petitioner's testimony about the second white female employee with attendance issues suffered from the same lack of information as did his testimony about the first white female employee with attendance issues. In addition, Petitioner failed to explain what consequences befell the second white female employee for the unspecified attendance issues. Petitioner admitted that as far as he knows, the four employees discussed in the four preceding paragraphs were not on probationary employment status. Petitioner knew of no employee who failed to report traffic citations and who was not terminated.3/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Phillip Riley's Petition for Relief. DONE AND ENTERED this 25th day of February, 2013, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 2013.
The Issue Whether Respondent acted properly in refusing to post a job order for Petitioner's business, an "adult maid service."
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Mr. Walker is a sole proprietor doing business under the name Babe-A-Maid, which advertises as an "adult maid service." Babe-A-Maid's advertising makes plain that it is in the business of adult entertainment. A customer may browse Babe-A-Maid's web site and select a "maid" who will be transported to the customer's location to perform topless or nude dancing. No evidence was presented that Babe-A-Maid's services go beyond dancing to acts of prostitution. Mr. Walker personally screens potential customers, and pays to provide security to dancers who are sent to perform for groups of people. Babe-A-Maid's "Subcontractor Agreement" with its dancers provides that it is not an escort agency. Babe-A-Maid has operated in Mr. Walker's native Kenosha, Wisconsin for a number of years. Babe-A-Maid has been accepted for listing by the Wisconsin equivalent of AWI. On April 26, 2001, Mr. Walker submitted a job order to the Florida job service office in St. Petersburg, announcing the availability of positions with Babe-A-Maid. By letter dated July 25, 2001, AWI's complaint specialist Jim Cadwallader informed Mr. Walker that his job order would not be accepted for posting. Mr. Cadwallader's letter stated: I have found that the activities described in your job order include conduct, e.g., nude dancing, which has detrimental secondary effects that are harmful to the public health, safety and welfare. Therefore, it has been determined that it is not in the best interest of the State or its citizens to assist in promoting your industry. Mr. Walker requested clarification as to the meaning of "detrimental secondary effects." By letter dated July 31, 2001, Mr. Cadwallader responded as follows: The job order that you wish to place would secondarily impact and threatens to impact the public health, safety and welfare by providing an atmosphere conducive to, among other things, violence, sexual harassment, public intoxication, prostitution and the attendant health risks. As previously stated, this decision is designed to serve a substantial governmental interest while allowing for reasonable alternative avenues of communication. The decision not to place your job order on the job services web-site does not adversely affect other reasonable alternative avenues of advertisement that are available. Mr. Walker conceded that the placement of advertisements in newspapers and other sources yielded approximately 800 responses from prospective dancers in the St. Petersburg area. However, he testified that his experience in Wisconsin showed him that the state job service listings provide an even-flow of employees, lessening the need for paid advertising. Robert Bradner, the AWI employee who actually made the decision to reject Mr. Walker's job order, testified that the state was not attempting to regulate Mr. Walker's admittedly legal business. Rather, the problem was a perceived linkage that a job listing would create between the state and Babe-A-Maid. Mr. Bradner did not want to establish a public perception that the state was endorsing Babe-A-Maid. Mr. Bradner conceded that Babe-A-Maid's was the only rejection of which he was aware since AWI's creation in 2000. Mr. Bradner also conceded that his decision was not based on any written statute, rule or guideline. AWI provided a second reason for its rejection of Mr. Walker's job order: that he is not an "employer" as contemplated by the Wagner-Peyser Act and its implementing rules. Mr. Walker conceded that the dancers who work for him are independent contractors who are paid only for the hours they are actually out on a dancing job. Babe-A-Maid applicants must sign a "Subcontractor Agreement" that states, in relevant part: I, [name of Subcontractor], hereinafter referred to as the Subcontractor, enter into an agreement, with Babe-A-Maid. We do hereby agree that for good and valuable consideration, the Subcontractor shall provide services to Babe-A-Maid as outlined below, pursuant to the terms and conditions contained herein. Babe-A-Maid is a referral agency for persons seeking cleaning/entertainment services, hereinafter referred to as Clients. * * * The parties agree that the Subcontractor shall be treated as a Subcontractor, responsible for all Federal, state, and local law purposes [sic]. The terms of this agreement shall not be deemed to be an employment contract, nor shall the Subcontractor be deemed an employee of Babe-A-Maid for any purpose. The Subcontractor shall be responsible for paying all Federal, State and local taxes, and acquiring all licenses or other permits in the locale associated with providing services and receiving compensation for the provision of entertainment services. * * * The Subcontractor shall have neither actual nor apparent authority to bind Babe-A-Maid in contract nor shall Babe-A-Maid assume any responsibility for the acts of the Subcontractor. The Subcontractor agrees to indemnify Babe-A-Maid for all damages, fines, attorney fees, and cost imposed upon it for acts committed by the Subcontractor. The Subcontractor hereby warrants the information he or she has provided to Babe- A-Maid regarding his or her identification is true and current. The Subcontractor also warrants that the tax identification number provided at the bottom of this agreement is the number that the United States government has properly assigned to the Subcontractor. The evidence established that Babe-A-Maid does not employ its dancers. The dancers are subcontractors who inform Babe-A-Maid of the days and times they are available to go out on calls. Aside from general instructions by Babe-A-Maid, such as dressing appropriately and not using illegal drugs or drinking "excessive" amounts of alcohol during their shows, the dancers control the manner of their performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered rejecting the job service order submitted by Oliver Walker on behalf of his business, Babe-A-Maid. DONE AND ENTERED this 31st day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ LAWRENCE P. STEVENSON 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 31st day of October, 2001. COPIES FURNISHED: Oliver Walker Babe-A-Maid Post Office Box 1933 Kenosha, Wisconsin 53141 Sonja P. Mathews, Esquire Agency for Workforce Innovation Atkins Building, Third Floor 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Michelle M. Austin, General Counsel Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250 Veronica Moss Agency for Workforce Innovation Office of the General Counsel Atkins Building, Suite 330 1320 Executive Center Drive Tallahassee, Florida 32399-2250
Findings Of Fact Based on the evidence received at the hearing, the following facts are found: The City of Madison employs approximately 60 full time employees who serve under the general supervision of the City Manager, who has identical fringe benefits as all other employees. The City Commission employes the City Manager and is the ultimate authority and decision making body. The City Commission is composed of elected officials who serve without compensation. A representation petition was filed seeking a certificate of representation by Local Union 2865, AFL-CIO as the exclusive bargaining agent for all full time employees of the City of Madison except for professional employees, managerial employees and confidential secretarial employees. The Public Employer refused to grant the request. A consent election was rejected. A Motion to Dismiss and/or Strike Petition for Certification was entered into evidence over the objection of the Petitioner and a Motion to Quash said Motion to Dismiss and/or Strike Petition for Certification was denied. Testimony was taken as to whether there was such solicitation by managerial employees to initiate the showing of interest. Testimony was taken and final action on the Motion is referred to PERC for action. If the Motion to Dismiss is denied, the determination must be made as to whether the hereinafter enumerated job positions as set forth in Exhibit 3 should be considered managerial and excluded from the unit. No agreement was reached on such employees. Each employee whose job description is set forth in Exhibit 3 works a standard 8:00 a.m. to 5:00 p.m. five day work week, but each is expected to get their respective job done and in the event of an emergency work overtime. The City Commission sets the wages and each reports directly to the City Manager. Each has the same fringe benefits except those who need a truck and radio are furnished one for job use only. Each such employee hears grievance matters on those under him and if the problem cannot be worked out, the parties go to the City Manager who acts as final arbitrator and who acts on a recommendation for termination. Each such employee submits a budget and then sits with the City Manager in making up the budget and keeps with the administration of the budget. Each of the following persons have been funded with the job description and entered in Exhibit 3 and testimony from the City Manager indicates that a meeting for clarification and explanation was planned and thereafter a meeting of these nine employees on a monthly basis. The City Manager stated that in the event of a bargaining situation he would call together these employees for indirect and direct input but that he would prefer not to try to negotiate a contract himself inasmuch as this would put him in conflict with employees and that he would rely on these persons for input and any mollification of policy or procedures. (a) Special Project Supervisor. This work involves the direction of a maintenance or construction crew performing road and utility construction and maintenance work. This employee may hire, promote, demote and assign work and is responsible for directing a crew of skilled and unskilled workers in routine maintenance or construction of streets, roadways and utilities. Duties include inspecting equipment and machinery used to ensure proper operation and checking street and roadway utilities for defects or problems. At times this employee may serve as relief equipment operator. He may also perform other duties as required by the City Manager. Four persons work under the Special Project Supervisor but he may obtain help from other departments when necessary. (h) Fire Chief. This employee is directly responsible for protection against fire and for firefighting activities within the jurisdiction. This employee may hire, promote, demote or assign work and is responsible for directing and supervising skilled and unskilled firefighters in the routine maintenance of facilities and equipment. He coordinates the activities of firefighters, inspects station house and equipment, responds to fire alarms and other rescue activities. This employee may also perform other duties as required by the City Manager. (c) Construction Supervisor. This employee directs one or more departments and/or construction crews engaged in the construction of city streets, roadways, bridges and related facilities. The employee may hire, promote, demote and assign work. The work involves the supervision of several types of heavy equipment operators as well as the skilled and unskilled labor activities. The employee may perform other duties as required by the City Manager. (d) Executive Secretary. Excluded as managerial employee. (e) Gas Supervisor. This employee directs the maintenance and construction crew performing gas and utility maintenance and construction. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance of gasolines, services and utilities. Duties include inspecting equipment and checking for defects and when necessary serving as relief operator and supervising the moving of right of ways. This employee may perform other duties as required by the City Manager. (f) Sewage Plant Supervisor. This employee directs the maintenance and construction crew performing sewage plant lines and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising a crew of skilled and unskilled workers in the routine maintenance or construction of sewer or water related facilities. Other duties include inspecting the equipment and machinery used to ensure proper operation and checking for defects or other problems. This employee may perform other duties as required by the City Manager. (g) Water Supervisor. This employee directs the maintenance and construction crew performing water, sewer and utility maintenance. The employee may hire, promote, demote, assign work and is responsible for directing and supervising the crew of skilled and unskilled workers in the routine maintenance and construction of water and sewer facilities and ocher utility services. Duties include inspecting equipment, serving as relief operator when necessary, supervising the moving of right of ways. The employee may perform other duties as required by the City Manager. (h) Grounds Keeper. This is work directing small crews engaged in the care and maintenance of grounds and yards. The employee may hire, promote, demote, assign work and is responsible for the overall maintenance of the grounds and yards in the City. The employee may perform other duties as required by the City Manager. (i) Shop Superintendent-Mechanic. Excluded as a non-managerial employee. (j) Warehouse Supervisor. This employee is involved in the record keeping, inventory control and the operation of the purchasing department. The duties are in general, a bookkeeper and storekeeper. He performs other duties when required by the City Manager. (k) Police Chief. This employee is responsible for the direction and administration of law enforcement activities. He may hire, promote, demote, assign work and is responsible for directing and supervising skilled and unskilled police officers and other activities involved in law enforcement. He is responsible for inspection of the stationhouse and equipment. He responds to calls for assistance. Other duties may be required by the City Manager or Mayor in case of Marshall Law. In accordance with Florida Statute 447.307(3)(a), and Florida Administrative Rule 8H-3.23, no recommendations are submitted. DONE and ENTERED this 30 day of April, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Richard Cox, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 David Bembry, Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Ben Patterson, Esquire Michaels and Patterson 2007 Apalachee Parkway Tallahassee, Florida 32301 Edward B. Browning, Jr., Esquire Davis, Browning and Hardee Post Office Box 652 Madison, Florida Chairman Public Employee Relations Commission Suite 300, 2003 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether respondent discriminated against the petitioner on the basis of
Findings Of Fact The petitioner was born on April 14, 1910. When she was hired by Beacon-Donegan Nursing Home in 1981, she was 71 years of age. At the time she was terminated, petitioner was 73 years old. Petitioner became a registered nurse (RN) in 1931 in Chicago. Petitioner always has been quite competent at her work, and respondent stipulated that petitioner performed her job well while working at Beacon- Donegan. On September 1, 1981, shortly before she began working for Beacon- Donegan, petitioner filled out a form entitled "Availability Record". On the form she indicated that she desired to work part-time, that she was available to work any night from 10:30 p.m. to 7 a.m., and that she had to limit her income to $5,500 per year due to Social Security. The form contained the following statement: If your availability changes, it is your responsibility to come to the personnel office to fill in another "Availability Record" indicating the changes. Such changes will be effective, then, for any future employment. On February 7, 1982, petitioner submitted a form entitled "Special Request for Time" in which she stated that she did not want to work three (3) nights in succession except in an emergency. The petitioner never submitted another "Availability Record" nor did she indicate in any other way that she wished to increase or change her hours of work. Petitioner was employed as a permanent part-time nurse working the 11 p.m. to 7 a.m. shift in the Donegan wing. 1/ In July, 1983, the respondent had five part-time RNs working the 11 to 7 shift in the Donegan wing. They were Ms. Scheon, who was 66; Ms. Quayle, who was 67; Ms. Klackling, who was 64; Ms. Urbina, who was 27; and the petitioner. At that time the respondent decided that, from both an economic viewpoint and the viewpoint of improving patient care, it was undesirable to have so many part-time nurses caring for the patients. Respondent believed that continuity of care, especially for elderly patients, was very important. Elderly patients need familiar surroundings and people and may become confused and disoriented if they have to deal with too many different nurses and attendants. Thus, the respondent decided that it would be better for the patients and for the facility to have fewer RNs working longer hours, rather than more RNs working fewer hours. As a result of the foregoing decision, the respondent hired Ms. Endo, a graduate nurse who was considerably younger than petitioner, on a full-time basis. 2/ By August 25, 1983, Ms. Schoen, Ms. Quayle, Ms. Urbina, and petitioner had been terminated as part-time employees and were reassigned to "PRN" or "on-call" status. Ms. Klacking continued to work as a part-time employee. The petitioner's last day of work was August 2, 1983, and the respondent's Termination Action Form indicates that her termination date was August 2, 1983. The reason for termination stated on the form was "reduction of force." The termination form was not completed until November 10, 1983, because the petitioner had been in an "on call" status until that time. Because petitioner never returned to work, even though she had been called 3/, the termination form was finally completed to remove petitioner's name from the records, and the termination date was given as the last day petitioner worked. Although respondent contends that petitioner was not discharged from employment until November 10, 1983, the day the termination form was completed, the evidence supports a finding that petitioner was terminated from her employment on or about August 2, 1983, the date stated by respondent in its own records. An "on-call" employee has no job security, receives no employee benefits, and has no guarantee that he or she will ever be called to work. Therefore, when petitioner was terminated as a permanent part- time employee, she was, in effect, discharged from her employment despite being placed in an "on-call" status. On October 23, 1983, respondent advertised in the Fort Myers News-Press for part-time RNs. However, petitioner did not apply for the jobs or otherwise inquire about it, and respondent did not contact the petitioner to determine if she wished to return to work. However, because respondent had been informed that petitioner had no desire to work any station other than the Donegan wing, there was no reason for respondent to contact petitioner. Further, there was no evidence presented that the part-time positions were for the same shift that petitioner had been working, which was the only time that petitioner was available.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for relief filed by the petitioner. DONE and ENTERED this 13th day of September, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1985.
