The Issue Whether the University can require that Mr. Haywood repay $7,487.52?
Findings Of Fact Jim C. Haywood is a Certified Public Accountant and has several years experience in financial and administrative positions. Mr. Haywood has earned a Masters in Accounting Degree. From 1959 through April, 1968, Mr. Haywood served as the Director of Financing and Accounting for the Florida Board of Regents. From April, 1968, through September, 1969, Mr. Haywood served as the Associate Director of Planning and Evaluation and the Budget Administrator for the State University System under the Florida Board of Regents. From September, 1969, through August, 1970, Mr. Haywood served as Comptroller of the University. From August, 1969, through January, 1986, Mr. Haywood served as Dean, Associate Vice President or Vice President and as head of administrative affairs at the University. Mr. Haywood was employed by the University from September 1, 1969, through August 30, 1987. Mr. Haywood is familiar with the policies of the Florida Board of Regents concerning accrued annual leave and the payment therefore upon retirement. In August and September of 1987, Mr. Haywood refamiliarized himself with these policies. Mr. Haywood retired from the University in August of 1987. Prior to his retirement, Mr. Haywood met with Art Cozart, University Classification and Pay Coordinator. Mr. Cozart provided Mr. Haywood with a certificate (hereinafter referred to as the "Certificate") which described the amount of accrued annual and sick leave Mr. Haywood was entitled to payment for upon his retirement. The Certificate provided, in pertinent part, the following: This is to certify that Mr. Jim C. Haywood, S.S.#252-52-7270, has a leave balance with the University of North Florida as follows: Annual Leave: 352.0 hours $7,458.96 Sick Leave: 2,328.50 hours $14,599.62 The stated amount will be laid upon termination of service with the University. [Emphasis added]. The total amount to "be paid upon termination of service" according to the certificate is $22,058.58. This is the gross amount of pay attributable to Mr. Haywood's accrued leave. The actual amount Mr. Haywood was entitled to receive, the net amount payable, was $22,058.58 less twenty percent federal income tax withholding. The Certificate does not, however, distinguish between the gross amount of pay and the net amount which Mr. Haywood was to receive. Nor did Mr. Haywood and Mr. Cozart discuss whether the amounts on the Certificate were gross amounts or net amounts to be paid to Mr. Haywood. Mr. Haywood was provided a Leave Payment Clearance Form dated September 14, 1987, indicating that Mr. Haywood was entitled to payment for only 240 hours of annual leave. Mr. Haywood used the Certificate to obtain a thirty-day loan of $22,893.00 from a private institution. Mr. Haywood borrowed this amount because of the amount listed on the Certificate. Mr. Haywood intended to use the money he received for his accrued leave to repay this loan. Mr. Haywood intended to use this money for living expenses between his retirement and the time when his retirement benefits were to begin. On September 25, 1987, Mr. Haywood received two checks from the Florida Office of Comptroller. One check was in the amount of $5,939.15 and the other was in the amount of $5,990.02. There was no indication on the checks as to what they were in payment for. On October 8, 1987, Mr. Haywood received a check from the Florida Office of Comptroller in the amount of $11,831.00. There was no indication on the check indicating what the payment was for. The total amount of the three checks received by Mr. Haywood on September 25, 1987, and October 8, 1987, was $23,760.17. The total amount Mr. Haywood received was consistent with what Mr. Haywood expected to receive because it was similar to the amount listed on the Certificate. What Mr. Haywood expected, however, was the gross amount he was entitled to before federal income tax withholding. The amount of the three checks Mr. Haywood received, however, was the net amount payable on a gross amount of $29,764.00. One of the two checks received by Mr. Haywood on September 25, 1987, constituted the net amount owed to Mr. Haywood for annual leave. The other check received on September 25, 1987, was an overpayment of accrued annual leave. This overpayment was made in error by the University. Mr. Haywood was paid twice for annual leave. The evidence failed to prove why there was a discrepancy in the amounts of the two checks or which check constituted the overpayment. The W-2 form provided to Mr. Haywood for the 1987 tax year included the amount of gross income for which Mr. Haywood received an overpayment. Mr. Haywood therefore, included $7,487.52 in his gross taxable income for federal income tax purposes for 1987, attributable to the overpayment of accrued annual leave he received. As a result of the inclusion of the overpayment in Mr. Haywood's taxable income, approximately $2,665.00 of federal income taxes attributable to the $7,487.52 of gross income and its effect on taxable income were paid by Mr. Haywood. Mr. Haywood has not filed an amended federal income tax return for 1987. Nor has Mr. Haywood communicated with the Internal Revenue Service concerning this matter. Mr. Haywood has not been provided with an amended W-2. In April of 1988, the University determined that Mr. Haywood had been overpaid for accrued annual leave. On May 3, 1988, the University notified Mr. Haywood of the overpayment of accrued annual leave and demanded reimbursement. On May 12, 1988, Mr. Haywood disputed the amount of the overpayment and requested an administrative hearing pursuant to Section 120.57, Florida Statutes. Mr. Haywood has not repaid any amount of the overpayment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the University's demand for repayment of $7,487.52, from Mr. Haywood be denied until the University determines from the Department of Banking and Finance the amount of the gross overpayment which should be refunded by Mr. Haywood. It is further RECOMMENDED that, once the University determines from the Department of Banking and Finance what amount of the gross overpayment should be refunded, the University should demand payment of the refund from Mr. Haywood and Mr. Haywood should pay the refund to the University. DONE and ENTERED this 3rd day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of February, 1989. COPIES FURNISHED: Norman R. Haltiwanger Director, Office of Human Resources University of North Florida 4567 St. Johns Bluff Road South Jacksonville, Florida 32216 John E. Duvall, Esquire Post Office Box 41566 Jacksonville, Florida 32203 Stephen K. Moonly, Esquire Suite 2501, Independent Square Jacksonville, Florida 32202 APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The University's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 4-6 and 8. 2-3 Hereby accepted. 4 11. 5 16. 6 See 23. 7 21. 8 22. 9 17. 10 See 18. 11-12 19. Irrelevant. Speculative. Argument and not totally correct. 15 23. Hereby accepted. 1-7. The eighth, ninth and tenth sentences are irrelevant. The last sentence is not supported by the weight of the evidence. Mr. Haywood's testimony did not lack credibility. 19 9. 20 Not supported by the weight of the evidence. The Certificate did not indicate that Mr. Haywood was entitled to payment for only 240 hours of annual leave. 21-22 12. Not supported by the weight of the evidence. See 11. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. Irrelevant. 27-28 Hereby accepted. 29-31 Not supported by the weight of the evidence. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection See 6. See 9. 3-4 16. 5 21. 6 22. 7 23. 8 8. 9 20.
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her age, as alleged in her charge of discrimination dated June 6, 1984, and in her petition for relief dated March 6, 1985.
Findings Of Fact Based on the admissions of the parties and on the exhibits received in evidence and the testimony of the witnesses at hearing, I make the following findings of fact: The Petitioner has been employed by the Respondent from July 1, 1980 to the present. She was first employed with the Respondent as a Staff Assistant II following the abolition of the Crimes Compensation Commission by the Legislature, effective June 30, 1980. The crimes compensation program was transferred to the Respondent at that time. As a Staff Assistant, Petitioner's duties included reviewing claims submitted by field investigators. After approximately two months in this position, the Petitioner requested permission to do the actual investigation of claims. The Petitioner's Bureau Chief, Herbert Parker, authorized Petitioner to investigate claims because her duties as a Staff Assistant did not keep her busy full time. Respondent's Monthly Field Representative Reports, maintained by Mr. Parker, reflect that the "Claims Examiners," i.e., Staff Assistants, including the Petitioner and Betty Cureton, completed a combined total of 13 reports in August 1980. In October 1980 these Reports began to break out the investigation work performed by the Petitioner and Ms. Cureton, showing the number of reports they completed as well as those completed by the actual Field Representatives. The Monthly Field Representative Reports show that Petitioner's investigations gradually increased in number over the next two years, so that in the six months from May 1983 through October 1983, she averaged almost 15 reports per month. A Field Representative was expected to produce at least 25 reports per month. In October 1983, Petitioner's position was reclassified from Staff Assistant II to Field Representative, reflecting the continuing transition in the Petitioner's duties from those of a Staff Assistant to the duties of a Field Representative. When her position was reclassified in October 1983, the Petitioner's salary was $1,570.S2 per month. The minimum salary for a Field Representative was $1,139.70 per month and the maximum was $1,635.60 per month. Petitioner's salary was not increased at that time. The reason Petitioner's salary was not increased at that time is that she was already earning over the minimum for the new classification and the Respondent was experiencing budget problems. In response to its budget problems, Respondent had taken a number of corrective measures, including a freeze on promotional pay increases. Within the Division of Worker's Compensation, the freeze was lifted in December 1983 but the Bureau Chiefs within the Division were admonished to be sure their respective units had "rate" and "salary" available before granting any increases. Rate Reports for the Bureau of Crimes Compensation show that that Bureau did not have any available rate from the time of Petitioner's promotion in October 1983 through March l984when she received a salary increase. The Rate Reports reflect a rate deficit occurred in March 1984 equal to the amount of Respondent's and Betty Cureton's combined salary increases. By Waiting until March to award pay increases to Petitioner and Ms. Cureton, the Respondent was better able to project its budget status through the end of the fiscal year and determine that the Division of Worker's Compensation would be able to offset the Bureau's rate deficit. In deciding whether to give promotional increases and, if so, in what amount, the Respondent considers a person's individual qualifications, along with budget considerations. Some employees do not receive any increase at all when they are promoted others have received less than Petitioner's five per cent and some have received more. The class specifications for the class of Field Representative contain the minimum training and experience requirements, which include: "graduation from an accredited four-year college or university and two years of professional experience directly involved in the juvenile or adult criminal justice system." The Petitioner had only two years of college and she did not have any past employment that would have satisfied the requirement for two years of professional experience in the criminal justice system. Respondent obtained a substitution of required training and experience for Petitioner by counting the field investigation work she did between August 1980 and October 1983, while employed as a Staff Assistant. This substitution enabled her to qualify as a Field Representative once the position was reclassified. A similar substitution was obtained for another employee, Ms. Cureton. Petitioner is a very capable efficient employee who has always received outstanding evaluations, receiving a score of thirty-six out of a possible thirty-six evaluative points on the performance of her duties on her performance ratings by her superiors. The Petitioner's age was not a factor in any of the Respondent's personnel decisions affecting the Petitioner's promotion or promotional pay increases.
Recommendation On the basis of all of the foregoing, it is recommended that a Final Order be issued dismissing the Petition For Relief filed by Geneva Roberts. DONE AND ORDERED this 11th day of December, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1985. APPENDIX The following are the specific rulings on each of the proposed findings of fact submitted by the parties. Rulings on Petitioner's proposed findings: Accepted in part and rejected in part. The accepted portions are incorporated in findings proposed by the Respondent. The rejected portions are rejected either as irrelevant details or because they are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Accepted and incorporated in other findings. The portion up to the first comma is accepted. The portion after the first comma is rejected as irrelevant in light of other evidence in the record, especially when note is taken of the fact that a new employee at ten per cent above the minimum was making substantially less than Petitioner. First sentence is accepted in substance. Second sentence is rejected as irrelevant. Rejected because it incorporates irrelevant details and because to the extent it proposes comparisons between Petitioner and Ms. Raker it incorporates opinions, inferences, and conclusions which are not supported by persuasive competent substantial evidence. Rejected as irrelevant. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Further, the ultimate conclusion asserted in paragraph 8 of the Petitioner's proposed findings is not supported by the evidence. Rejected as irrelevant and also as misleading in light of other evidence. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The first unnumbered paragraph under the caption SUMMARY OF FACTS is rejected because most of it is not supported by persuasive competent substantial evidence and the remainder is inconsistent with the greater weight of the evidence. The first sentence of the second unnumbered paragraph under the caption SUMMARY OF FACTS is rejected as contrary to the greater weight of the evidence. The last sentence of that paragraph is accepted. Rulings on Respondent's proposed findings: Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Most of the first six lines are rejected as constituting summaries of the parties' contentions rather than proposed findings. The substance of lines 7 through 11 is accepted. The last sixteen lines of this paragraph are rejected on the grounds that for the most part they constitute legal argument, conclusions of law, and explication of reasons for making findings of fact, but are not themselves findings of fact. [Some of the material on the last sixteen lines is accepted and incorporated in the Conclusions of Law portion of this Recommended Order.] The substance of this paragraph is accepted, with certain minor corrections and deletions. Accepted. COPIES FURNISHED: Joseph C. Jacobs, Esquire ERVIN, YARN, JACOBS, ODOM & KITCHEN Post Office Drawer 1170 Tallahassee, Florida 32302 Kenneth H. Hart, Jr., Esquire General Counsel Florida Department of Labor and Employment Security Suite 131, Montgomery Building 2562 Executive Center Circle, East Tallahassee, Florida 32301 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue in this case is whether Respondent had a sufficient amount of workers’ compensation coverage during the time period in question; and, if not, what penalty should be imposed.
Findings Of Fact The Division is the state agency responsible for enforcing the requirement in chapter 440, Florida Statutes (2015),1/ that employers in Florida secure workers’ compensation coverage for their employees. While an exemption can be obtained for up to three corporate officers, any employer in the construction industry with at least one employee must have workers’ compensation coverage. § 440.02(15), Fla. Stat. Kent Howe works for the Division as a compliance investigator based in Orlando, Florida. As part of his job responsibilities, Mr. Howe visits construction sites in order to verify that employers in the construction industry have obtained workers’ compensation coverage for their employees. Mr. Kehr was the owner and sole corporate officer of JNK. Mr. Howe visited a construction site in Port Orange, Florida, on the morning of December 10, 2015, and saw Mr. Kehr and two other men building the interior walls/frames of a house. Mr. Howe talked to the two men (James Hicks and James Garthwait) working with Mr. Kehr, and they reported that Mr. Kehr was paying them approximately $8.00 an hour. Mr. Kehr told Mr. Howe that Messrs. Hicks and Garthwait had been working for him for approximately two hours that morning. Mr. Kehr also stated that he had not obtained workers’ compensation coverage for Messrs. Hicks and Garthwait. Following those conversations, Mr. Howe returned to his car and accessed the Division’s Coverage and Compliance Automated System (“CCAS”) and learned that JNK had no workers’ compensation coverage. Mr. Howe also determined from CCAS that Mr. Kehr had obtained an exemption from workers’ compensation coverage that had been in effect from November 18, 2014, through November of 2016.2/ After relaying that information to his supervisor, Mr. Howe received authorization to serve Mr. Kehr with a Stop- Work Order, and he did so on December 10, 2015. That Stop-Work Order required JNK to “cease all business operations for all worksites in the State” based on the Division’s determination that JNK had failed to obtain workers’ compensation coverage. In addition, the Stop-Work Order stated that JNK would be penalized an amount “[e]qual to 2 times the amount [JNK] would have paid in premium when applying approved manual rates to the employer’s payroll during periods for which it [had] failed to secure the payment of compensation within the preceding 2-year period.” Along with the Stop-Work Order, Mr. Howe also served a “Request for Production of Business Records for Penalty Assessment Calculation” (“the BRR”) on Mr. Kehr. In order to ascertain JNK’s payroll disbursements during the relevant time period and the resulting penalty for JNK’s failure to obtain workers’ compensation coverage, the BRR requested that JNK remit several different types of business records covering the period from November 10, 2014, through December 10, 2015. Mr. Howe explained during the final hearing that the Division usually reviews business records pertaining to the two years preceding the Stop Work Order.3/ Because JNK came into existence on November 10, 2014, the Division’s review was limited to examining the period between November 10, 2014, and December 10, 2015. The business records sought by the Division included items such as time sheets, payroll summaries, check journals, certificates of exemption, and evidence that any JNK subcontractors had obtained workers’ compensation coverage. Section 440.107(7)(e) provides that if an employer fails to provide business records sufficient to enable the Department to ascertain the employer’s actual payroll for the time period in question, then the Division will estimate the employer’s actual payroll for that time period by imputing the employer’s payroll based on the statewide average weekly wage. The Division then multiplies that amount by two. JNK did not provide business records typically sought by the Division. Instead, JNK responded to the BRR by producing a written statement from Mr. Kehr indicating that he founded JNK in November of 2014, but did no work until July of 2015. That initial job involved fixing a set of stairs for $200. Afterwards, Mr. Kehr performed three separate small jobs between July and November of 2015, earning approximately $550. Because the Division could not ascertain JNK’s actual payroll from the documentation provided by JNK, the Division imputed JNK’s payroll for the time period in question and issued an Amended Order of Penalty Assessment on January 19, 2016, seeking to impose a penalty of $61,424.04. Phillip Sley calculated the aforementioned penalty amount by filling out a worksheet that has been adopted by the Division through Florida Administrative Code Rule 69L-6.027. The first step in completing the worksheet required Mr. Sley to assign a classification code to the type of work that Mr. Howe witnessed Messrs. Kehr, Hicks and Garthwait performing at the Port Orange worksite on December 10, 2015. Classification codes come from the Scopes® Manual, which has been adopted by the Department through rule 69L-6.021. Each code within the Scopes® Manual pertains to an occupation or type of work, and each code has an approved manual rate used by insurance companies to assist in the calculation of workers’ compensation insurance premiums. The imputed weekly payroll for each employee and corporate officer “shall be assigned to the highest rated workers’ compensation classification code for an employee based upon records or the investigator’s physical observation of that employee’s activities.” See Fla. Admin. Code. R. 69L-6.028(3)(d). In the instant case, Mr. Sley determined “5645” was the appropriate classification code. According to the Scopes Manual, [w]hen all of the carpentry work in connection with the construction of residential dwellings not exceeding three stories in height is performed by employees of the same carpentry contractor or general contractor responsible for the entire dwelling construction project, the work is assigned to Code 5645. This includes the construction of the sill, rough framework, rough floor, wood or light-gauge steel studs, wood or lighted-gauge steel joists, rafters, roof deck, all types of roofing materials, sidewall sheathing, siding, doors, wallboard installation, lathing, windows, stairs, finished flooring, cabinet installation, fencing, detached structures, and all interior wood trim. Mr. Sley’s next step in calculating the penalty amount was to determine the period of non-compliance. With regard to Mr. Kehr, the Department asserted that JNK failed to have workers’ compensation coverage between the date of JNK’s inception (November 10, 2014) and the date that Mr. Kehr received an exemption from the workers’ compensation coverage requirement (November 18, 2014). Despite having no evidence that Messrs. Hicks and Garthwait worked for JNK on any day other than December 10, 2015, the Division’s penalty calculation was based on an assumption that Messrs. Hicks and Garthwait worked for JNK from November 10, 2014, through December 10, 2015. Mr. Sley’s next step was to calculate JNK’s gross payroll for the time period in question. Because JNK did not provide the Division with business records that would have enabled the Division to calculate JNK’s actual payroll, Mr. Sley based JNK’s payroll on the statewide average weekly wage determined by the Department of Economic Opportunity for the time period in question.4/ Mr. Sley then multiplied that amount by two.5/ After converting the payroll numbers into a percentage, Mr. Sley multiplied the payroll amounts by the approved manual rate. As noted above, every classification code is associated with a particular manual rate determined by the Office of Insurance Regulation, and a manual rate corresponds to the risk associated with a particular occupation or type of work. Manual rates associated with potentially dangerous activities will have higher manual rates than activities with little or no potential danger. Mr. Sley’s next step was to calculate a premium for obtaining workers compensation coverage for Messrs. Kehr, Hicks, and Garthwait. Mr. Sley then multiplied that premium by two in order to calculate the individual penalties resulting from JNK not having workers’ compensation coverage for Messrs. Kehr, Hicks, and Garthwait. The sum of those amounts was $61,424.04. The evidence produced at the final hearing established that Mr. Sley utilized the correct class code, average weekly wage, and manual rates in his calculation of the penalty set forth in the Amended Order of Penalty Assessment. The Division has demonstrated by clear and convincing evidence that JNK was in violation of the workers’ compensation coverage requirements of chapter 440. In particular, the Division proved by clear and convincing evidence that Mr. Kehr had no workers’ compensation coverage for himself and no exemption from November 10, 2014, through November 17, 2014. However, the Division did not demonstrate by clear and convincing evidence that Messrs. Hicks and Garthwait were employees of JNK on any day other than December 10, 2015. Mr. Kehr testified during the final hearing that Messrs. Hicks and Garthwait were working for him on December 10, 2015. He also testified that he was paying them at a rate of $8.00 an hour. However, Mr. Kehr persuasively testified that Messrs. Hicks and Garthwait had not worked for him at any other time between November 10, 2014, and December 10, 2015. The undersigned finds Mr. Kehr’s testimony on this point to be credible. Messrs. Hicks and Garthwait did not testify during the final hearing in this matter. There is no evidence that Messrs. Hicks and Garthwait worked for JNK at any time other than December 10, 2015. Because there is no evidence indicating that Messrs. Hicks and Garthwait were employees of JNK at any time other than December 10, 2015, during the time period in question, the undersigned finds that the Department failed to carry its burden of proving that $61,424.04 is the appropriate penalty. Based on the above findings, the undersigned finds that the correct penalty resulting from Mr. Kehr’s lack of coverage is $627.48. The worksheet completed by Mr. Sley indicates that is the amount of the $61,424.04 penalty associated with Mr. Kehr’s lack of coverage. As for the penalties associated with the lack of coverage for Messrs. Hicks and Garthwait on December 10, 2015, the undersigned multiplied the average weekly wage utilized by the Division ($841.57) by two. That results in a weekly gross payroll amount of $1,683.14. Dividing $1,683.14 by five results in a daily gross payroll amount of $336.63. Dividing $336.63 by 100 and then multiplying the result by 15.91 (the approved manual rate utilized by the Division for the period from January 1, 2015, through December 10, 2015) yields a daily premium of $53.62. Multiplying $53.62 by two results in a penalty of $107.23. Multiplying $107.23 by two yields $214.46, JNK’s penalty for not having workers’ compensation coverage for Messrs. Hicks and Garthwait on December 10, 2015. JNK’s total penalty is $841.94. Because section 440.107(7)(d)1. mandates a minimum penalty of $1,000, the undersigned finds that $1,000 is the correct penalty for the instant case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation enter a final order imposing impose a $1,000 penalty on Donald Kehr, d/b/a JNK Framing Inc., a Dissolved Florida Corporation. DONE AND ENTERED this 10th day of August, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2016.
Findings Of Fact Respondent James Seay, who had worked as a teacher in Suwannee County for many years, was out sick first with a stomach virus and then with recurring head pain for the entire school week of March 4-8, 1991. He visited physicians on March 5, 7 and 8, and took three prescribed medicines. Mr. Seay telephoned the morning of March 4, 1992, and told Sonja Suber, a secretary who was "the designated person at the school," (T.48) responsible for obtaining substitute teachers and maintaining sick leave records, that he was ill and would not be in that day. The parties agree that respondent was on sick leave through March 8, 1991. On the evening of March 4, 1991, he telephoned Nancy Roberts, director of elementary education for the Suwanee County School District and principal of Douglass Center. When Mr.Seay told her he would not be in the following day, she cancelled an observation she had scheduled for his benefit. The next day or the day after Sonya Suber telephoned respondent to relay Ms. Roberts' advice that a meeting scheduled for March 11, 1991, had been cancelled. On Saturday, March 9, 1991, Mr. Seay telephoned Ms. Suber and said "that he would be coming Monday to the school but he would not report to the classroom." T. 29. He had earlier expressed to Ms. Roberts discomfort "with the students that were assigned" (T. 46) to him. On Monday, March 11, 1991, at 7:53 o'clock in the morning, he appeared as promised and signed in at Suwanee County School District's Douglass Center. After greeting Sonya Suber, he went to the teachers' lounge. He did not give any indication that he was unwell or make any request for leave. Ms. Roberts saw Mr. Seay reading a newspaper in the lounge. She asked him to accompany her to her office, where she "let him know that he was a teacher assigned to the Alternative Program at the Douglass Center and what his responsibilities were . . . working with the students there." T.50. Respondent handed Ms. Roberts one of his attorney's cards, and told her "that there was nothing [she] could do to make him go in that classroom and that he was not going to that classroom," (T.50) and asked her "to stop harassing him." Id. After Mr. Seay's return to the teachers' lounge, Ms. Roberts gave an account of events to Mr. Charles F. Blalock, Jr., petitioner here. Petitioner's Exhibit No. 2. The following morning Mr. Seay signed in at the Douglass Center at ten before eight, Petitioner's Exhibit No. 1, but he again went to the teachers' lounge rather than to his assigned classroom. Again he told nobody he was ill, and asked nobody for sick leave. Ms. Roberts twice asked him to go to his classroom. When she told him his failure to teach the class he had been assigned "could be construed as insubordination on his part," (T.53) he asked her to clarify what she meant by insubordination and, with her permission, made a tape recording of her answer. Petitioner's Exhibit No. 3. He refused to go to his classroom. On Wednesday, March 13, 1991, Mr. Blalock wrote a letter to Mr. Seay advising him that he was suspended with pay, and that, as superintendent, he would recommend suspension without pay and ultimately dismissal at the next regular meeting of the School Board. Petitioner's Exhibit No. 4. When Ms. Roberts telephoned Thursday morning with word that Mr. Seay was at Douglass Center, Mr. Blalock went himself to speak to Mr. Seay. Twice he personally directed Mr. Seay to go to his classroom and get to work. Confronted with Mr. Seay's silent refusal, Mr. Blalock handed him the letter of suspension, dated the day before. When the School Board met, heard what had transpired, and listened to a presentation by Mr. Seay's lawyer, it decided that Mr. Seay should have a physical examination and be examined by a psychiatrist. At the school board meeting, nobody suggested that respondent was on sick leave at any time after March 8, 1991. In keeping with the collectively bargained agreement between the School Board and teachers like Mr. Seay under continuing contract with the School Board, Petitioner's Exhibit No. 6, petitioner demanded that respondent go for medical and psychiatric examinations, by letter dated April 10, 1991. Petitioner's Exhibit No. 7. A second, follow-up letter reiterating the demand, dated April 29, 1991, Petitioner's Exhibit No. 9, reached Mr. Seay by registered mail. As of the time of the hearing, Mr. Seay had not complied with the Board's demand that he submit to a physical examination and be examined by a psychiatrist.
Recommendation It is, therefore, RECOMMENDED: That petitioner terminate respondent's employment. DONE and ENTERED this 3rd day of December, 1992, at Tallahassee, Florida. ROBERT T. BENTON, II, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1992. APPENDIX FOR NO. 91-6046 Petitioner's proposed findings of fact Nos. 1-11 and 13-20 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 12 pertains to immaterial matters. With respect to petitioner's proposed finding of fact No. 21, respondent apparently also took the position that he had been on sick leave in the unemployment compensation case. Petitioner's proposed findings of fact Nos. 22 and 23 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 1-3, 5-8 and 19 have been adopted in substance, insofar as material. Respondent's proposed findings of fact Nos. 4, 9-12, 21 and 24 pertain to subordinate matters. Respondent's proposed findings of fact Nos. 13 and 15 are immaterial since respondent never requested sick leave. Respondent's proposed findings of fact Nos. 14, 16, 17 and 18 have been rejected as unsupported by the weight of the evidence. With respect to respondent's proposed finding of fact No. 20, Ms. Roberts' testimony in that regard is unrebutted. With respect to respondent's proposed finding of fact No. 22, there is no disagreement. Respondent's proposed finding of fact No. 23 pertains to an immaterial matter. COPIES FURNISHED: Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, FL 32399-0400 Charles Blalock, Superintendent Suwanee County School Board 224 W. Parshley Street Live Oak, FL 32060 J. Victor Africano, Esquire Post Office Box 1450 Live Oak, FL 32060 Linsey Moore, Esquire 50 East 2nd Street Jacksonville, FL 32206
The Issue Whether certain payments received by the Petitioner, James Gomia, from the Leon County Clerk of Court subsequent to July 1, 1989, constitute creditable "compensation" within the meaning of Rule 22B-6.001(16), Florida Administrative Code, for purposes of determining Mr. Gomia's retirement benefits.
Findings Of Fact Mr. Gomia's Employment. The Petitioner, James Gomia, has been employed by the Clerk of Court in and for Leon County, Florida, for the past eleven years. At all times relevant to this proceeding, Mr. Gomia has been employed as an Assistant Finance Director and Deputy Clerk. By virtue of his employment with the Clerk's office Mr. Gomia is eligible to participate in the Florida Retirement System pursuant to Chapter 121, Florida Statutes. Mr. Gomia's Compensation. At all times relevant to this proceeding, Mr. Gomia received a monthly base salary from his employment with the Clerk's office. The Clerk's office operates for budget purposes on a fiscal year which begins October 1st and ends September 30th. In addition to his base salary, Mr. Gomia has been paid the following amounts (hereinafter referred to as "Additional Compensation"), during the following months: Month Amount September, 1989 $1,750.00 May, 1990 500.00 September, 1990 1,750.00 May, 1991 600.00 September, 1991 2,150.00 Mr. Gomia has been paid Additional Compensation twice a year since he was employed by the Clerk's office. The Clerk's Policy of Paying Additional Compensation. It has been the policy of Paul F. Hartsfield, Leon County Clerk of Court, to pay Additional Compensation to employees of the Clerk's office, with one exception not relevant to this proceeding, for at least the past twenty years. Additional Compensation has been paid to Clerk's office employees twice a year. One payment is made in May/June and the other payment is made in September/October/November. The amount of Additional Compensation paid to each employee is the same. For example, in May, 1991, all employees received $600.00 as Additional Compensation. The amount to be paid as Additional Compensation is included in the budget submitted by the Clerk's office each year for approval by the Board of County Commissioners. The amount requested is included as part of a lump-sum request for the amount of funds necessary to pay all salary, including employees' base salary. Although the amount of the payments to be made as Additional Compensation is broken out in the work papers to the budget each year, those figures are only seen by the financial personnel and not the Board of County Commissioners. Lack of Written Policy. The decision of whether Additional Compensation is paid is within the sound discretion of the Clerk to make. The Clerk of Court is under no legal obligation to make such payments even if included in an approved budget. The policy of paying Additional Compensation has not been reduced to writing. Nowhere has the Clerk stated in writing that the Clerk's office has a policy: That applies all employees will receive Additional Compensation equally; Additional Compensation will be paid no later than the eleventh year of employment; Additional Compensation will be paid for as long as an employee continues employment; and Additional Compensation will be paid at least annually. The only written indication that Additional Compensation will be paid to employees is the inclusion of the dollar amount necessary to make the payments in the work papers of the Clerk's office budget. Nowhere in the work papers to the budget or the budget itself are the conditions set out in finding of fact 13 included. Even if the work papers (or the budget) of the Clerk's office were sufficient to constitute a formal written policy, the policy evidenced in the work papers only applies to the fiscal year the work papers relate to. Therefore, if the work papers or budget constitute a written policy it is only a policy to pay Additional Compensation for the upcoming fiscal year and not on a recurring basis. Although a policy of paying Additional Compensation to Clerk's office employees exists, that policy has not formally been reduced to writing. Mr. Hartsfield, the Leon County Clerk of Court, admitted that there was no formal written policy during his deposition and in a letter dated November 12, 1991, attached as Respondent's exhibit 1 to Mr. Hartsfield's deposition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order declaring that the Additional Compensation paid to James Gomia between September, 1989, and September, 1991, was not paid as "average final compensation" for purposes of Rule 22B-6.001(6), Florida Administrative Code, and dismissing Mr. Gomia's Amended Petition with prejudice. DONE and ENTERED this 2nd day of September, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1992. APPENDIX Case Number 92-2504 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Gomia's Proposed Findings of Fact Findings of fact 1, 4 and 6-11. Hereby accepted. The Department's Proposed Findings of Fact Findings of fact 1-3. Findings of fact 4 and 6. Finding of fact 16. Conclusion of law. Findings of fact 4, 6 11 and 13. Finding of fact 4 and 6. Whether the payments come within the Department's rules is a conclusion of law. COPIES FURNISHED: Harry H. Mitchell, Esquire 103 North Gadsden Street Tallahassee, Florida 32301 Burton M. Michaels Assistant Division Attorney Division of Retirement Department of Administration Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1566 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 N. Monroe Street Tallahassee, Florida 32399-1560 Larry Strong Acting Secretary Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Susan Kirkland General counsel Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue Whether Olin Scott Stoutamire is required to repay monies paid to Olin Scott Stoutamire as salary, which is alleged by the Department of Transportation (DOT) to be excess salary.
Findings Of Fact Petitioner is an agency of state government. The Respondent is a career service employee of the Petitioner, and is employed at a site located away from the Petitioner's District Office in Chipley, Florida. The Respondent is the Project Manager of the Petitioner's Thomasville Road and Interstate 10 Intersection Improvement Project in Tallahassee, Florida. The Respondent is paid less than other Petitioner's Construction Project Managers because the Respondent has less tenure. The Respondent's supervisor told Respondent that he would try to correct what appeared to be a salary inequity. The Petitioner initiated a raise for Respondent equal to 5 percent of the Respondent's base rate of pay. The proposed 5 percent salary increase was initiated by his supervisor completing and submitting an "Employee Action" form. The form provides the employee's identification, position, and includes the employee's current base pay rate and the calculated pay rate after the proposed increase becomes effective. The Respondent's base rate of pay and the resulting calculations as to the proposed resulting pay increase were incorrect on the Employee Action form submitted to the Petitioner's Personnel Office (Personnel) in Chipley, Florida. Personnel detected the supervisor's error, but then committed its own error, resulting in an $80 bi-weekly overpayment. The Respondent noticed the apparent overpayment and inquired of his supervisor if there had been a mistake. Respondent told his supervisor that he did not want the State to seek reimbursement for a large amount at a later date. The Respondent's supervisor told Respondent that the payment was correct and to accept it. The Respondent asked him to check and be certain because he did not want to have to repay the money. A short time later, the Respondent's supervisor told Respondent to accept the total amount of the warrant as being correct. His supervisor mentioned other pay increases for which the Respondent was being considered during the same time that the 5 percent pay increase was being processed. The Respondent thought that his supervisor had checked with personnel, and that his pay was correct. The Petitioner did not become aware of the error until an overpayment of $1,200 had accumulated. The Petitioner's Office of Financial Services requested reimbursement in the amount of $771.15 as payment in full within ten days or a payment of $117.00 biweekly pursuant to Sections 110.205(2) and 216.251, Florida Statutes and Chapter 60L-8, Florida Administrative Code. The Respondent's salary was immediately adjusted to show the correct amount. The Respondent contends he did his best to determine if he was being overpaid and was assured the payment was correct. The Respondent changed his budget and spent the money in reliance upon the assurance that the payment to him was correct. The Respondent concedes that Petitioner's records reflect an error and an overpayment. However, the Respondent does not believe he should have to repay the money immediately or in amounts greater than he received the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent repay $40 per pay period to the Department beginning on the effective date of the next annual pay raise and continuing each month thereafter until the overpayment is repaid. The Department refer the case to the Department of Banking and Finance if an agreement cannot be reached. DONE AND ENTERED this 9th day of July, 1997, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street STEPHEN F. DEAN 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 July, 1997. Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 34399-0458 Olin Scott Stoutamire 63 Graham Trail Crawfordville, Florida 32327
The Issue The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.
Findings Of Fact Having determined, for the reasons set forth below, that the Department lacks subject matter jurisdiction to adjudicate the instant claim for "money had and received" against its former employee, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of November, 2005.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by Respondent due to Petitioner's gender in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner was employed as a payload operator by Respondent, a fertilizer manufacturer, at the time of her employment termination in August of 1996. Petitioner’s job duties included scooping fertilizer onto the pay loader, or front-end loader, and dropping the fertilizer into a “hopper” for subsequent loading into rail cars. Petitioner was expected, along with other payload operators, to perform other duties, including the cleaning of work areas when she ceased her loading function. During Petitioner's employment, a union contract existed between Respondent and the International Chemical Workers Union of which Petitioner was a member. The union contract governed overtime assignments, pay structure, shift structure, disciplinary/termination procedures and lay-offs, among other things. Respondent paid Petitioner and gave her breaks, contrary to her allegations, in the same manner as other employees. Governed by the union contract during the busy 1995-96 period, Respondent assigned work to employees on many different shifts. The plant operated 24 hours a day, seven days a week. Overtime requirements were based on business necessity. All employees worked the same number of hours regardless of the shift to which they were assigned. Petitioner never formally complained to anyone regarding displeasure with shift assignments. Neither salary nor number of work hours were affected by Petitioner’s assignments to different work shifts. Petitioner and other employees worked the same number of hours. Petitioner took breaks just like other employees. Changes from shift to shift experienced by Petitioner had nothing to do with her gender. The union contract governed how Respondent assigned overtime to its employees. The contract established a procedure that distributed overtime hours evenly and fairly among all of Respondent's employees. Those procedures were adhered to by Respondent and all employees were given overtime opportunities in an equal manner without regard to gender. On one occasion, Petitioner complained about her overtime assignment. She felt that she should have been called into work on a day when another operator (male) was called to come in and work. Respondent had attempted to contact Petitioner at contact numbers provided by Petitioner, without success. Safety equipment was distributed to all employees. Petitioner signed a check list indicating that she had received or knew how to request safety equipment. A pair of boots requested by Petitioner on one occasion had not yet arrived, but did arrive before the conclusion of the business day. The delay in delivery of Petitioner's requested boots to her was not related to her gender. Petitioner complained that adverse comments were made to her on the job by male workers. The alleged comments ranged from women should only do "clean up work" to "if you don't smoke or drink, we don't need you in this department." All of the alleged comments were roundly denied by Petitioner's co-workers at the final hearing. The credibility and candor of the testifying co-workers establishes that the adverse comments were not made. One incident in which Petitioner complained about her work assignment resulted in the general foreman's immediately contacting Respondent's human resource department. A meeting was then held with Petitioner to address the situation. The foreman felt confident that Petitioner would voice any additional concerns if the situation did not change. Petitioner never voiced further concerns to the foreman. Petitioner alleged that she was denied the right of free speech at a meeting attended by her, Respondent representatives, and union representatives. As established at the final hearing, she was told by the union representative to remain quiet and let him do the talking if Respondent representatives made Petitioner angry. However, the union representative did not instruct Petitioner to otherwise remain silent. Under the union contract, Respondent could terminate employees who received three reprimands within a 12-month period. Petitioner was aware of this procedure. Petitioner had numerous instances of work-related misconduct and received more than three reprimands in a 12-month period. Counseled on June 4, 1995, for damaging a payloader, Petitioner received a reprimand on July 18, 1995, for again damaging a payloader. Petitioner was counseled again on August 14, 1995, for failure to communicate with the shipping operator. On October 16, 1995, Petitioner received a second reprimand for poor work performance for mixing discarded product with good product, a violation of Respondent policy. Petitioner received her third reprimand on February 28, 1996, for loading hot fertilizer, a violation of Respondent's policy. The difficulty of loading fertilizer before it cooled was the later removal of the hot product which would harden upon cooling into a concrete-like substance. Petitioner was given a second chance and not fired upon receiving her third reprimand in a 12-month period. Management hoped that Petitioner would seek to improve her work performance. Petitioner refused to help clean the plant on July 10, 1996, and was counseled by her supervisor. On July 25, 1996, she received a verbal warning for failure to report an accident. In August of 1996, Petitioner received her final reprimand for failure to attend a company meeting at the proper time and for again loading hot product. Petitioner's employment was terminated. The various reprimands imposed on Petitioner were from different supervisors at different times. None of the reprimands were based on Petitioner's gender. After a complete review of Petitioner's case, the union representative determined that Respondent had properly terminated her employment.
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. DONE AND ENTERED this 12th day of October, 2001, in Tallahassee, Leon County, Florida. DON W. 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 12th day of October, 2001. COPIES FURNISHED: Azizi M. Dixon, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Artie Johnson 2672 Northwest 6th Drive Jennings, Florida 32053 Mary L. Wakeman, Esquire McConnaughhay, Duffy, Coonrod, Pope, and Weaver, P.A. Post Office Drawer 229 Tallahassee, Florida 32302-0229 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent is liable for a penalty of $286,400.01 for the alleged failure to maintain workers’ compensation insurance for its employees in violation of Subsection 440.107(7)(d), Florida Statutes (2008).1
Findings Of Fact Petitioner is the state agency responsible for enforcing the statutory requirement that employers secure the payment of workers’ compensation for the benefit of their employees in accordance with the requirements of Section 440.107. Respondent is a Florida corporation engaged in the construction business. On May 19, 2009, Petitioner's investigator inspected one of Respondent's job sites located at 6665 Mirabella Lane, Naples, Florida. The purpose of the inspection was to determine whether Respondent was in compliance with workers' compensation requirements. The investigator observed workers laying concrete block in a residential development under construction. The investigator interviewed the workers and learned the identity of the individual owner of Respondent. The investigator determined through the Coverage and Compliance Automated System (CCAS) that Respondent had secured workers' compensation coverage. However, Respondent maintained minimum coverage identified in the record as an "if any" policy. An "if any" policy imposes a premium based on zero employees and zero payroll and requires Respondent to notify the insurer of any new employees within three days of being hired. Respondent had reported no workers to his workers' compensation carrier, but had reported 54 employees for purposes of unemployment compensation taxes.2 None of the individuals reported for unemployment compensation taxes had secured workers' compensation coverage for themselves. Respondent is liable for workers' compensation for the 54 workers described in the preceding paragraph, which the trier of fact finds are employees of Respondent. None of the workers has an exemption from workers' compensation coverage. Petitioner correctly calculated the amount owed by Respondent, which is $286,400.01.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order imposing a penalty assessment in the amount of $286,400.01. DONE AND ENTERED this 13th day of July, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 13th day of July, 2010.
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2013.
