The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that a Final Order be entered by the Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
The Issue At issue in this proceeding is whether the Respondent failed to abide by the coverage requirements of the Workers' Compensation Law, Chapter 440, Florida Statutes (2002), by not obtaining workers' compensation insurance for her employees; and whether the Petitioner properly assessed a penalty against the Respondent pursuant to Section 440.107, Florida Statutes (2002).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: The Department is the state agency responsible for enforcing the requirement of the workers' compensation law that employers secure the payment of workers' compensation for their employees. § 440.107, Fla. Stat (2002).1 On March 27, 2003, the Department's district supervisor, Leo Canton, assembled a compliance team of three investigators: Donald Lott, Carol Cobb, and Tracey Gilbert. They met at the Gibsonton exit of I-75, south of Tampa at the Alafia River, and began riding around the area, where a good deal of new home construction was taking place. The group was looking for potential violations of the workers' compensation statute. From the main road, they could see some workers on a two-story house with exposed trusses, and Mr. Canton decided this would be a good place to investigate. The compliance team arrived at the job site, 9734 White Barn Road, Riverview, Florida. They observed five men conducting framing activities, which included cutting two-by- fours, climbing ladders to adjust trusses and hurricane ties, and laying plywood sheathing on the trusses. The five men were later identified as Darren McCarty, Robert Stinchcomb, James King, Jeffrey Judson, and James Conner. Parked in front of the partially constructed house was a utility trailer registered to Susie Riopelle. The trailer contained an air compressor, hoses, framing equipment, ladders, nail guns, and other tools. The main hose from the air compressor was split into six or seven separate hoses so that the workers could simultaneously use multiple nail guns. Mr. Canton asked the men to stop working and talk with him. Mr. Canton testified that each of the five men told the same basic story: he was employed by Yellow Jacket Construction, Inc. ("Yellow Jacket"); he was paid by the hour and in cash; and Yellow Jacket owned the tools in the utility trailer. The only variable was the length of employment for each man. Mr. Canton told the men they would need to contact their employer. They all stated that Edward Riopelle was their boss. Mr. Canton then asked the men if they would mind giving statements to members of the compliance team. All five workers agreed to give statements. Mr. Lott and Mr. Canton interviewed Darren McCarty, who told them he worked for Yellow Jacket as a framer and carpenter and that he was paid weekly in cash by Edward Riopelle at the rate of $12 to $15 per hour, depending on the job. Mr. McCarty signed a notarized Affidavit confirming this information. Mr. Canton interviewed Robert Stinchcomb, who said that he worked for Yellow Jacket as a framer. Mr. Stinchcomb identified Edward Riopelle as his boss and stated that he was paid $10 per hour, in cash. Mr. Stinchcomb signed a notarized Affidavit confirming this information. Jeffrey Judson signed an Affidavit stating that he worked as a framer for Yellow Jacket and that he was paid $12 per hour, in cash, by Edward Riopelle. After the interviews, Mr. Canton determined that the five workers were employees of either Yellow Jacket or Edward Riopelle. None of the five workers interviewed at the job site had workers' compensation insurance on March 27, 2003. Mr. Canton directed Mr. Lott to issue a stop work order. Mr. Lott issued the order to Edward Riopelle, who had arrived at the job site after being phoned by one of the workers. Edward Riopelle informed the Department personnel that Yellow Jacket had been dissolved and that his wife, Susie Riopelle, was the sole owner of the business. As of March 27, 2003, Respondent Susie Riopelle was a sole proprietor operating in the construction industry by framing single-family homes. Ms. Riopelle had been the sole owner of Yellow Jacket, a corporation which was also in the business of framing construction. Yellow Jacket had contracted with a payroll leasing company that was responsible for paying the salaries of and providing workers' compensation coverage for Yellow Jacket's employees, who were paid by the hour. In January 2003, Ms. Riopelle and her husband Edward (who had no formal involvement with Yellow Jacket, though he often assisted his wife with aspects of the business) began planning to leave the Tampa Bay area and move to Fort White in Columbia County. They consulted with their employees, who expressed a desire to stay together and obtain construction work on their own. The Riopelles advised their employees that they would have to establish their own businesses in order to obtain work as independent contractors. Ms. Riopelle advised the employees to obtain occupational licenses, commercial liability insurance, and apply for exemptions from workers' compensation insurance requirements. At some point in March 2003, Ms. Riopelle began treating these Yellow Jacket employees as independent contractors working on houses that Ms. Riopelle had contracted to build. Among these purported independent contractors were the five men interviewed by the compliance team on March 27, 2003: Jeffrey Judson, Darren McCarty, Robert Stinchcomb, James King, and James Conner.2 Messrs. King, McCarty, Judson, and Conner obtained their own Hillsborough County occupational licenses in mid- February 2003. The "business type" listed on each of their licenses was "perform services for construction contractor." Mr. Stinchcomb already had a Hillsborough County occupational license, dated June 8, 2001, as a "sub-contractor (can't bid; works under contractor)." Messrs. Judson, King, McCarty, and Conner obtained individual general liability insurance through Commercial Casualty Insurance Company of North Carolina. Mr. Judson's and Mr. McCarty's policies covered the period February 19 through May 19, 2003. Mr. King's and Mr. Conner's policies covered the period March 14 through June 14, 2003. On March 18, 2003, Ms. Riopelle and her sister-in-law, Tina Shew, appeared at the Department's Tampa office seeking to file applications for workers' compensation exemptions on behalf of four of the former Yellow Jacket employees, including some of those who were at the job site on March 27, 2003. Mr. McCarty testified that he paid Ms. Shew to handle the paperwork so that he would not have to miss work. Ms. Riopelle testified that Ms. Shew had the same arrangement with the other workers. Mr. Canton testified that Department rules prohibit anyone other than the applicant from submitting an application for exemption and that an investigation is usually commenced when someone comes in with multiple applications. He met with Ms. Riopelle and Ms. Shew and attempted to explain that there was more to attaining non-employee status than having the exemption and an occupational license. He gave Ms. Riopelle a "Non-Employee Worksheet," a document used by investigators in the field, in an effort to explain the nine statutory factors considered by the Department in determining whether a worker is an employee or an independent contractor. In speaking with Ms. Riopelle, Mr. Canton learned that she was a subcontractor for Badger Construction, a company that was building 300 houses in the Gibsonton area. Ms. Riopelle told Mr. Canton that her contact at Badger Construction was the person who told her how to qualify her employees as independent contractors. Mr. Canton testified that he had never heard of Badger Construction and was concerned that it was apparently giving bad information to its subcontractors. Mr. Canton instructed the Department's examiner not to process the applications submitted by Ms. Riopelle and Ms. Shew, pending an investigation of this matter. It is reasonable to infer that this conversation with Ms. Riopelle led Mr. Canton to choose the Gibsonton area for the compliance team's March 27, 2003, visit. On March 27, 2003, after the initial stop work order was issued, Mr. Lott served Ms. Riopelle with a "Request for Business Owner Affidavit and Production of Business Records," seeking copies of business records "to determine whether or not you or your business is required to provide Workers' Compensation insurance coverage for employees, or to determine the civil penalties you may owe for failing to carry Workers' Compensation insurance." At the time the stop work order was issued, Section 440.107(2), Florida Statutes, required each employer to keep business records that enable the Department to determine the employer's compliance with the coverage requirements of the workers' compensation law and empowered the Department to adopt rules describing the information that those business records must contain. Florida Administrative Code Rule 69L-6.015 provides, in relevant part: In order for the Division to determine that an employer is in compliance with the provisions of Chapter 440, F.S., every business entity conducting business within the state of Florida shall maintain for the immediately preceding three year period true and accurate records. Such business records shall include original documentation of the following, or copies, when originals are not in the possession of or under the control of the business entity: * * * (3) Records indicating for every pay period a description of work performed and amount of pay or description of other remuneration paid or owed to each person by the business entity, such as time sheets, time cards, attendance records, earnings records, payroll summaries, payroll journals, ledgers or registers, daily logs or schedules, time and materials listings. * * * All contracts to which the business was or is a party for services performed by an independent contractor, or in the event a written contract was not executed, written documentation including the name, business address, telephone number, and FEIN or social security number if an FEIN is not held, of each independent contractor; and proof of workers' compensation insurance held by each independent contractor during the life of the contract for his/her services or records sufficient to prove that the independent contractor was not required pursuant to Chapter 440, to have workers' compensation insurance coverage during that time period; All check ledgers and bank statements for checking, savings, credit union, or any other bank accounts established by the business entity or on its behalf. . . . On April 1, 2003, the Riopelles arrived at the Department's Tampa office and presented Mr. Lott with their business records. Mr. Lott testified that these records were not sufficient to establish that the five workers in question were independent contractors. None of the records produced by the Riopelles permitted the Department to determine receipts, the identity of entities with whom Ms. Riopelle was doing business, or the amount of money she was paid or owed as a result of business operations at the job site on March 27, 2003. Mr. Canton confirmed that the documents produced by the Riopelles did not establish the independent contractor relationship. He noted that the Riopelles produced some contracts between Susie Riopelle and the individual workers, but these contracts called for payment per linear foot, a method consistent with an employer/employee relationship. At the hearing, Ms. Riopelle introduced subcontractor agreements, general liability insurance applications, county occupational licenses, and a 28-page composite exhibit of financial records to support the claim that the five workers at the job site on March 27, 2003, were independent contractors. The subcontractor agreements are problematic for several reasons. The contract between Ms. Riopelle and Jeffrey Judson, dated March 24, 2003, specifies no contract price. It states that Mr. Judson is to perform "framing and sheathing exterrior [sic] walls," and names "Westfield Homes Plan #2350" as the specifications for construction. The contract does not specifically state that the referenced work is to be performed at 9734 White Barn Road in Riverview. Ms. Riopelle testified that the contract with Mr. Judson was for work on the house at 9734 White Barn Road. The contract between Ms. Riopelle and Mr. Stinchcomb, also dated March 24, 2003, specifies a price of $250 "to be paid on following Friday after signing this aggrement [sic]." It states that Mr. Stinchcomb is to "cut all studs, wrap garage doors and build arches," and names "Westfield Homes Plan #2350" as the specifications for construction. The contract does not specifically state that the referenced work is to be performed at 9734 White Barn Road in Riverview. Mr. Stinchcomb, a retiree who worked part-time for Ms. Riopelle, testified that he did not know how the contract price of $250 was arrived at by Ms. Riopelle. He stated that he was getting $10 per hour and surmised that $250 represented payment for a five-hour per day, five-day work week. The contract between Ms. Riopelle and James Conner, also dated March 24, 2003, specifies a price of $480 "to be paid on Friday following date of this signed agreement." It states that Mr. Conner is to "frame all interior walls to first & second floor to provide labor only," and names "Westfield Homes Plan #2350" as the specifications for construction. The contract does not specifically state that the referenced work is to be performed at 9734 White Barn Road in Riverview. The contract between Ms. Riopelle and James C. King is missing a signature page, though both Ms. Riopelle and Mr. King adopted the contract's terms in their testimony. The contract specifies a price of $400, "to be paid on the following Friday after the signing of this agreement." It states that Mr. King is "to set [trusses] on roof," and names "Westfield Homes Plan #2350" as the specifications for construction. The contract does not specifically state that the referenced work is to be performed at 9734 White Barn Road in Riverview. The contract between Ms. Riopelle and Darren McCarty, dated February 28, 2003, does not specify a contract price. It states the following terms of payment: "To pay sum of percentage of job completed by Monday each week and paid on following Friday upon receipt of purchase order at rate of $.60 per sq. ft. purchase order w/below." The items listed below the quoted statement were: "name; subdivision; lot & block; complete address; model #; total sq. footage; price; FEIN # or SSI; liability policy #; occupation license #." The contract states that Mr. McCarty is "to perform labor only framing residential." Ms. Riopelle testified that Mr. McCarty's contract was meant to establish that Mr. McCarty would be paid by the job, not by the hour. She stated that because roofs are different sizes, a set price cannot be set per roof; rather, the price must be set based on the square footage of the roof. Ms. Riopelle testified that this contract did not specify a location because it was a general contract meant to cover any roof that Mr. McCarty worked on. Testifying generally about these contractual agreements, Ms. Riopelle stated that the workers were paid 80 percent of the agreed amount upon completion of the work. The remaining 20 percent of the contract price would be paid when the work passed inspection by local authorities. At the hearing, Mr. McCarty agreed with Ms. Riopelle's explanation of the method of payment. At the hearing, Ms. Riopelle submitted documents signed by Mr. Stinchcomb and Mr. McCarty attesting that, as of February 24, 2003, these men were no longer employees of Yellow Jacket. However, the documents were notarized on April 3, 2003, after the stop work order was issued. These documents are unreliable as a basis for findings as to the relationship between the parties on March 27, 2003, given that they were apparently created after that relationship was called into question by the Department. Ms. Riopelle also submitted a similar document regarding Mr. Conner, but Mr. Conner's signature does not appear on the document. Mr. Conner did not appear at the hearing, and thus, there is no means in this record to ascertain his involvement in the creation of this document. Three of the former Yellow Jacket employees testified at the hearing. Mr. McCarty testified that he had been a carpenter for 15 years and that he owned and used his own tools, including nail gun and nails, on the job. He testified that he had worked on Yellow Jacket's payroll until two weeks before the March 27 site visit, which he offered as his explanation for why he told the compliance team that he worked for Yellow Jacket. Mr. McCarty recalled Ms. Riopelle telling him that she and her husband were planning to move. He testified that he and the other workers got together to plan how they could go into business for themselves. Ms. Riopelle advised them regarding qualification as independent contractors. Mr. McCarty testified that the group of former Yellow Jacket employees bid on the job they were working on March 27, 2003. They figured out the overall price of the house, then figured out which portion of the work each person would perform and for how much money. On this job, Mr. McCarty contracted to build the exterior part of the house, including the beam and the trusses. He would complete the skeleton part of the roof, then Mr. King would take over and complete the laying of the plywood. Mr. McCarty testified that he told the compliance team that he was paid "$12 to $15 per hour" because that is the way he computed his bid on the job. If he completed it quickly, his pay would equal $15 per hour. If he took more time, his pay would equal $12 per hour. Mr. Stinchcomb testified he was 73, retired, and working part-time for Ms. Riopelle. His function at the job site was to perform all the wood-cutting, including the fabrication of window arches. He used his own equipment. Mr. Stinchcomb recalled conversations with his fellow workers about dividing up the work "to keep everybody together but on an independent deal. That's why everybody was supposed to go get their occupation licenses and their workman's comp or whatever they were doing, but we were all going to stay together as independents." Mr. Stinchcomb maintained that he was paid $10 per hour at all times he worked for Yellow Jacket or Ms. Riopelle. James King testified he was 21 years old and had been decking roofs for eight years. He remembered being told by Ms. Riopelle that he was going to need to get a subcontractor's license but was not sure of the difference between working as an employee and as an independent contractor. Mr. King testified that he told the compliance team that he worked for Yellow Jacket because the paperwork on his workers' compensation exemption had not come back. He stated that when he worked for Yellow Jacket, he was paid by the hour; but when he worked for Ms. Riopelle, he was paid by the job. While the workers testified that they used their own tools on the job, it was undisputed that Ms. Riopelle owned the trailer containing an air compressor and that all of the workers except Mr. Stinchcomb, the wood cutter, used the air compressor at the job site. Ms. Riopelle testified that she leased the trailer and equipment to Mr. Conner at a rate of $20 per day. At the hearing, she produced a document purporting to be a contract between her and Mr. Conner, dated February 28, 2003, stating that Ms. Riopelle was leasing framing equipment and the trailer to Mr. Conner for $20 per day, payable weekly. However, the contract was notarized on April 3, 2003, raising the question whether it was created after the fact of the stop work order. Ms. Riopelle submitted no other documentation to substantiate the existence of a lease agreement for the trailer and equipment. Mr. McCarty agreed that the workers were leasing the air compressor from Ms. Riopelle, and stated that the cost came to about $20-per-week per person, which would roughly gibe with the $20-per-day figure given by Ms. Riopelle. However, Mr. King testified that he was paying Edward Riopelle $50 per week to lease the air tools. Edward Riopelle testified that once Yellow Jacket became defunct and Ms. Riopelle began to operate under her own name, the workers were paid in cash on receipt of their invoices for labor. At the hearing, no invoices were provided to indicate whether the workers were being paid by the hour or on a "commission," "per job," or "competitive bid" basis. Ms. Riopelle maintained that Messrs. McCarty, Stinchcomb, King, Judson, and Conner were independent contractors, rather than employees on March 27, 2003, and that she, therefore, was not required to secure the payment of workers' compensation for the five workers. As of March 27, 2003, Section 440.02(15)(d)1, Florida Statutes, provided, in relevant part, that the term "employee" does not include an "independent contractor" if: The independent contractor maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations; The independent contractor holds or has applied for a federal employer identification number, unless the independent contractor is a sole proprietor who is not required to obtain a federal employer identification number under state or federal requirements; The independent contractor performs or agrees to perform specific services or work for specific amounts of money and controls the means of performing the services or work; The independent contractor incurs the principal expenses related to the service or work that he or she performs or agrees to perform; The independent contractor is responsible for the satisfactory completion of work or services that he or she performs or agrees to perform and is or could be held liable for a failure to complete the work or services; The independent contractor receives compensation for work or services performed for a commission or on a per-job or competitive-bid basis and not on any other basis; The independent contractor may realize a profit or suffer a loss in connection with performing work or services; The independent contractor has continuing or recurring business liabilities or obligations; and The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures. . . . Section 440.02(15)(d)1, Florida Statutes, listed the nine elements of the independent contractor exemption in the conjunctive, meaning that all nine elements must be established for the exemption to apply. This interpretation is confirmed by Section 440.02(15)(c), Florida Statutes, which at the time provided: "For purposes of this chapter, an independent contractor is an employee unless he or she meets all of the conditions set forth in subparagraph (d)1." Based upon the testimony and all the documentation submitted at the hearing, it is found that Ms. Riopelle and the five workers had an understanding that the men would no longer be employees of Yellow Jacket because the Riopelles were leaving the area. As of March 27, 2003, the men had obtained occupational licenses, obtained individual general liability insurance, and applied for workers' compensation exemptions. However, despite these actions, the evidence does not demonstrate that the employer-employee relationship had been severed as of March 27, 2003. Because several of the documents submitted by Ms. Riopelle appear to have been back-dated, the reliability of all the documents is called into question. Even assuming that the subcontractor agreements were entered into prior to March 27, 2003, they do not establish that the men were independent contractors under the criteria set forth in Section 440.02(15)(d)1, Florida Statutes. Mr. Judson's contract does not state a price. Mr. McCarty's contract calls for him to be paid per square foot of work performed, not on a per-job basis. None of the contracts states a time or place of performance, making it unclear whether the contracts pertain to the work being performed on March 27, 2003. It is significant that when the men were first questioned at the job site on March 27, 2003, they told the Department's compliance team that they were employed by Yellow Jacket and were paid by the hour. Even at the hearing, Mr. Stinchcomb continued to maintain that he was paid on an hourly basis. Mr. McCarty tried to explain his answer to the compliance team by reference to how he arrived at his bid, but this testimony was unconvincing. The men were paid in cash, and Ms. Riopelle submitted no ledgers or other documentation to support her claim that she was paying the men on a per-job basis, despite a Department rule requiring her to maintain such records. The nature of the work being performed by the five men makes it highly unlikely that any one of them could be held responsible for the satisfactory completion of the work or could be held liable for a failure to complete the work or services. While the men made some effort to separate the tasks at the job site, Mr. McCarty conceded that they helped each other out when necessary. The men were using equipment belonging to Ms. Riopelle. It was claimed at the hearing that the men were leasing the equipment from Ms. Riopelle, but the testimony did not agree on the terms of the lease. Ms. Riopelle's statement that she rented the equipment to Mr. Conner for $20 per day roughly comported with Mr. McCarty's testimony that each man paid $20 per week for the equipment. However, Mr. King testified that he paid $50 per week to Edward Riopelle for use of the air tools. There was no evidence that any of the men incurred the principal expenses related to their work, could realize a profit or suffer a loss in connection with performing their work, had continuing or recurring business liabilities or obligations, or that the success or failure of their business depended on the relationship of business receipts to expenditures. The weight of the evidence leads to the finding that Messrs. McCarty, King, Stinchcomb, Judson, and Conner were performing salaried labor as employees of Ms. Riopelle on March 27, 2003.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Financial Services, Division of Workers' Compensation, directing that the Respondent stop work and cease her operations until such time as she secures workers' compensation coverage for her employees and directing that the Respondent pay a penalty in the amount of $21,100. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S 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 16th day of January, 2004.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
The Issue The issue to be resolved in this proceeding is whether Petitioner was the subject of unlawful employment practices by her employer because of her race and age.
Findings Of Fact Petitioner is a 28-year-old African-American female. Respondent operates one of the State’s largest psychiatric hospitals. In April 2004, Respondent had at least 3 openings for a full-time Secretary Specialist at different units of the hospital. In April 2004, Petitioner along with two other female applicants were contacted and asked if they were interested in being considered for three Secretary Specialist positions with Respondent. The positions’ duties involved, among other things, typing medical records and compiling reports on the units’ patients and recording, transcribing and disseminating all staff meetings held on these units. Petitioner and the two other women indicated that they would like to be considered for the positions. One of the women who applied for the positions was an older, white female who had worked at the hospital for at least 10 years. No evidence demonstrated the actual age of this older woman or how much older she was than Petitioner. The evidence also did not demonstrate if her work history extended beyond 10 years outside the hospital. The other applicant, like Petitioner, was a beginning employee at the hospital. Other than the fact she met the minimum qualifications for the positions, the evidence did not establish her race, age, or work experience. Petitioner’s application was not introduced into evidence. At the time, Petitioner had about 6 years of work experience as an office manager and /or an executive secretary. The experience does not appear to be in the medical or psychiatric field. As can be seen from a review of the evidence and pleadings in this case, Petitioner’s writing skills are very poor and are replete with poor grammar and incorrect word usage to the point of being almost incomprehensible. Therefore, the quality of her executive secretary skills are questionable. As part of her application packet, Petitioner submitted several educational/professional credentials to Respondent. The credentials consisted of certificates in the areas of Office Supervision II and III and Post Secondary Office Supervision and Administration. Petitioner claims that these credentials entitled her to a higher salary than she would have received as a beginning employee or at the least allowed her to negotiate for a higher salary. However, no evidence was offered that supported Petitioner’s contention that such credentials entitled her to a higher salary or that she lost her opportunity to negotiate for a higher salary. The fact that the position may have been advertised as “open-competitive” does not mean that an applicant is entitled to or will receive a higher salary offer. The classification only enables an employer or employee to negotiate a salary based on qualifications. The employer and employee are not required to negotiate and either may elect not to negotiate. Indeed, negotiation may be non-existent based on budget considerations and the availability of other applicants willing to work for less pay. At some point, an interview was scheduled for Petitioner by Deborah Joyce. In setting up the interview, Ms. Joyce advised Petitioner that the starting salary for the position was $766.52 every two weeks. Petitioner indicated that she wished to be interviewed for the positions. All three womens’ application packets were reviewed by a hiring committee. All three women were offered employment as Secretary Specialists at different units. Petitioner and the other beginning applicant were offered employment at $766.52 every 2 weeks. The older, white woman was allegedly offered employment at a higher salary than the two beginning employees. However, there was no evidence that demonstrated how much the older woman’s salary was, whether it differed from Petitioner’s and its relationship to the salary she had been receiving in her then current position at the hospital. Petitioner did not introduce into evidence the pay scale for the position to which she applied. Some evidence suggests that the offered salary was the beginning and lowest salary for that position. Petitioner testified that the offered salary was at the low-end of the scale for the position that she applied for. Her testimony in that regard is accepted. Petitioner was informed by telephone of the Respondent’s offer of employment to work on the unit known as Cypress Village. The telephone call was made by Lela Parker- Clark, a black female and the medical unit’s specialist (MUS). The unit’s treatment and rehabilitation director (UTRD) was Sateria Gunter, a black female. Ms. Gunter and Ms. Parker-Clark would be Petitioner’s supervisors. The evidence indicated that both women had been working on the unit for several years and apparently had done various routines and reports in the same manner for some time. No evidence was offered as to the actual age of Ms. Gunter or Ms. Parker-Clark, other than they were both older than Petitioner and had possibly worked their way up to their administrative positions from direct care staff. Because the offered salary was not what Petitioner desired, she inquired further of Ms. Parker-Clark about the salary. Petitioner learned that her educational credentials had been lost and possibly had not been reviewed by the committee. Ms. Gunter indicated that she would have the committee review its offer if Petitioner would fax her the documents. Petitioner faxed the documents to a fax machine at the hospital. It is unclear whether the documents were received and reviewed by the committee or whether the committee was made aware of Petitioner’s additional educational documents. The evidence conflicts on this point. At the time of the hearing, neither the original nor faxed documents were in Petitioner’s personnel file. Indeed, only copies of later-supplied documents that were specially marked by Petitioner are in Petitioner’s personnel file. In any event, the salary offer was not changed. No one from the committee testified at the hearing regarding the documents reviewed by the committee or otherwise made known to the committee. No evidence was offered that demonstrated that such added credentials would have made a difference in the salary offered to Petitioner. Petitioner offered no evidence that Respondent elected to negotiate any salaries with any of the people it hired as Secretary Specialists. The fact that a white, 10-year employee of Respondent may have been offered a higher salary than Petitioner does not demonstrate that the salary was negotiated or that Respondent otherwise discriminated against Petitioner based on her race or age since the employee in question was already an employee with more years of experience at the hospital. Without such evidence, it is impossible to determine whether the absence of the documents was deliberate or unintentional, motivated by Petitioner’s race or age or even caused an adverse impact in the conditions or terms of Petitioner’s employment. Ms. Gunter informed Petitioner that the position was still available at the original salary offer of $766.52. Instead of attempting to negotiate further by declining the offer, Petitioner accepted employment and began working at the unit on May 21, 2004. Petitioner accepted the offer because she needed the income. There was no evidence that demonstrated Petitioner, who is a competent adult, was somehow coerced into her decision to accept the offer by Respondent. In the beginning, the relationship between Ms. Gunter, Ms. Parker-Clark and Petitioner was reasonably good. However, once Petitioner began to question the manner in which Ms. Parker-Clark did things the relationship deteriorated. Ms. Parker-Clark became abrasive and, Petitioner claims, more strict regarding Petitioner’s leave than with co-workers. She would belittle Petitioner in front of co-workers. Ms. Parker- Clark had the security desk record when Petitioner arrived at work. Based on the recorded time, both women claimed Petitioner was falsifying her timesheet and forced her to change her claimed time on several occasions. Many of the accusations arose from the fact that Petitioner was often late because of difficulties with her daughter, who had learning disabilities. Additionally, Petitioner sometimes arrived early and sometimes stayed late; that, in Petitioner’s view, made up her time. However, per hospital policy, such early arrival or late stay was not credited unless pre-approved by Petitioner’s supervisor. Outside of Petitioner’s claims of forced time-sheet changes based on time she had to take to deal with her daughter’s disability or disallowed overtime, etc., there was no evidence that other similarly-situated employees were treated differently than Petitioner. In fact, the only testimony regarding Ms. Parker-Clark’s and Ms. Gunter’s treatment of other employees was that there were some employees they treated well and some employees they did not treat well and that there may have been ongoing “management problems” on the unit. There was no evidence that such treatment was based on the race or age of the individual employee. Petitioner assumes and asserts that she was entitled to family medical leave, credit for overtime for staying late or more flexible hours. However, she offers no proof that she was entitled to such. Without such evidence Petitioner cannot show that she has suffered an adverse impact in the terms or conditions of her employment. Petitioner also claims she received unwarranted disciplinary actions. Again there was no evidence offered that such discipline was unwarranted. Indeed Petitioner admits that actions she received written reprimands for occurred. Around September 28, 2004, relationships between Ms. Parker-Clark and Petitioner came to a head when Petitioner came to the conclusion that Ms. Parker-Clark had never placed her educational credentials in her personnel file. Petitioner based this conclusion on the fact that, while training herself to use the new computerized personnel system, Peoples First, adopted and, at the time, being implemented, by the State, she discovered that her educational credentials were not listed on the system. Petitioner was training herself because Ms. Parker– Clark refused to train her. Petitioner contacted the personnel office for the hospital and was told that her file was not in their office because it had been sent to Peoples First to be scanned into the system. Unfortunately, the Peoples First system is known for glitches and errors in its records. Petitioner met with Ms. Gunter and Ms. Parker-Clark in a very heated meeting to discuss the lack of information on the Peoples First system and her feelings that Ms. Parker-Clark had intentionally lost the educational documents. Petitioner also voiced her opinion that she was entitled to an increased salary based on her credentials. Petitioner was not satisfied with the response from Ms. Gunter in the meeting. Around October 5, 2004, Petitioner met with Ennis Harris, the assistant administrator of the hospital, over her “issues” with Ms. Parker-Clark and what she should do. Mr. Harris suggested she apply for a transfer to another unit. On October 7, 2004, Petitioner, applied for a transfer to the position of Internal Senior Clerk on another unit. He also indicated that he would approve flex-time for her if Petitioner requested it and that she might be entitled to leave under the Family Medical Leave Act. Around October 13, 2004, Petitioner requested flexible working hours. As promised, Mr. Ennis approved her schedule. At about the same time, Petitioner requested transfer to a Senior Clerk position on another unit. On October 18, 2004, Petitioner requested that her salary be increased by 16 1/2 percent and that she receive such increased pay from the beginning of her employment. There was no evidence that demonstrated the basis for a 16 1/2 percent increase or that such an increase was warranted. On October 21, 2004, the increase was denied by Ms. Gunter. On October 27, 2004, Petitioner grieved Ms. Gunter’s decision. Personnel policy requires that a grievance be filed within 14 days of the act that caused the grievance. The human resources manager returned the grievance without action because 14 days had passed since Petitioner began employment on May 21, 2004, and Petitioner had the opportunity to decline the offered salary if she so desired. On November 1, 2004, Petitioner’s request for transfer was declined because of personnel rules based on the Union contract with the State that prevented transfer of a probationary employee to a higher position. On November 10, 2004, Petitioner appealed the return of her grievance and appealed or grieved the denial of her requests for salary increase and transfer to the hospital administration. The denial was upheld. During this review, Ms. Gunter claimed that Petitioner’s educational/professional certificates had been reviewed by the committee and claimed that the documents in Petitioner’s file were the actual documents reviewed and considered. However, the documents were the certificates that had been specially marked by Petitioner and later placed in her file. Ms. Gunter was unaware of the special demarcation of the documents. Claims of dishonesty were now mutual. Eventually, Petitioner did not wish to deal with Ms. Parker-Clark, unless her job duties required such. Petitioner complained to various administrators of the facility often about her treatment on the unit. Mr. Harris told her that the salary issue was dead and all options to have her salary increased had been explored. On November 22, 2004, Petitioner submitted a letter of resignation at a future date not expected to go past December 13, 2004. In that letter, Petitioner requested overtime hours with pay to complete her job assignments. The same date, Ms. Gunter denied the requested overtime and requested Petitioner to supply a date certain for her resignation. On November 23, 2004, she filed complaints that Ms. Gunter and Ms. Parker-Clark discriminated against her based on her race and age with the hospital’s equal employment office and similar complaints at PERC. On December 7, 2004, Petitioner forwarded an e-mail to the hospital attorney that stated she was leaving early and did not know when she would be back because she was tired of the harassment she was receiving on the unit. Sometime after that e-mail, Petitioner met with the hospital attorney. The hospital did not want to lose Petitioner as an employee and in an effort to help Petitioner, on December 9, 2004, the administration transferred Petitioner to another unit where she has performed well. Even though Petitioner had been requesting a transfer, it is this transfer that Petitioner alleged as a discriminatory action by the hospital. On this point Petitioner’s claim of discrimination has no merit and was clearly not demonstrated by the evidence. Petitioner has also been approved for a promotion at a higher salary, but the promotion has not yet taken effect. The promotion has been on hold because the hospital administrator retired and his replacement had recently taken over prior to the hearing. No evidence demonstrated that the delay was due to any unlawful employment practice. There was no evidence offered regarding a paycheck discrepancy around December 10, 2004. Ultimately, Petitioner’s case rests on assumption and speculation about others’ intentions and terms of employment that she claims she was entitled to. The problem is that there was no or insufficient evidence offered to demonstrate such unlawful intentions or entitlement. Indeed, assuming that Petitioner’s treatment was unjustified, it is more likely that Ms. Gunter and Ms. Parker-Clark engaged in such treatment because Petitioner was a new employee who questioned the old way of doing things and did not hesitate to go around them when she felt a need to do so. Assumptions and speculations are not enough. Therefore, the Petition for Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 16th day of September, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 16th day of September, 2005. COPIES FURNISHED: Viritti Jackson 2173 West 15th Street Jacksonville, Florida 32209 Scott D. Leemis, Esquire Northeast Florida State Hospital 7487 South State Road 121 Macclenny, Florida 32063 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services Building 6, Room 123 1317 Winewood Boulevard Tallahassee, Florida 3239-9070 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
The Issue The issue is whether Petitioner is entitled to reemployment services from Respondent.
Findings Of Fact Petitioner was born on March 2, 1953. After graduating from high school, he served four years in the United States Air Force as a munitions maintenance specialist. He served in Vietnam. After completing his military service, Petitioner began woodworking, mostly remodeling and home construction. For the past 15 years, his woodworking has involved higher-end work, in which the materials and labor are more expensive. During this time, Petitioner has worked on staircases, yachts, elevator interiors, and more specialized millwork. As contrasted from general carpentry, Petitioner’s woodworking requires more tools and greater manual dexterity to shape the wood, which is characterized by numerous intricate curved cuts. Petitioner’s woodworking requires lots of templates, routing, and changing cutters. This higher-end woodworking requires heavy reliance on power tools, whose cutting edges may turn at 25,000 revolutions per minute. On August 23, 1999, Petitioner was employed as a high- end woodworker at Exodus Fine Wood Products, which made yacht interiors. During the preceding 20 months, Petitioner had worked on elevator interiors, and, before that, he had worked on yacht interiors. Petitioner had been employed at Exodus for only ten weeks when, while using an inverted router without a guard, his right thumb was pulled into the blade. The blade nearly severed the top joint of the right thumb at the distal joint. A physician at the hospital was unable to save the joint, so he completed the amputation. After missing two or three weeks of work, Petitioner had to return to work to earn a living. When he returned to work, his right thumb was still bandaged, and Petitioner tried to work slowly and carefully. Although his employer had changed the procedure that Petitioner had been performing when he had been injured, Petitioner found the new way still unsafe, especially due to the loss of the end of his right thumb, so Petitioner did the procedure differently--and three times more slowly. For sometime, Petitioner tried to work at Exodus, but he found that he could not adequately hold the wood to make the necessary cuts, as, among other things, his right-hand grip was weaker than it had been before the injury and he had lost his previous dexterity. He repeatedly came close to reinjuring himself on a daily basis. Wood sometimes flew from the machine he was using. Although he maintained adequate work quality, the work rate after the injury had slowed considerably. However, Petitioner refused to work on extremely small pieces requiring the use of a router without a guard; he thus did not work on 20 percent of the work that Exodus did. An occupational therapist completed a report on Petitioner on October 28, 1999. Assessing the relative strength of the right hand, as compared to the uninjured left hand, the occupational therapist noted that Petitioner had lost from 31 to 86 percent of his strength, depending on the specific task. Noting that Petitioner felt that his right hand had returned 75 percent back to normal, the therapist mentioned that Petitioner felt that, functionally, his right hand was only 40 to 50 percent back to normal. In particular, Petitioner complained of his inability to hold things because he had lost his leverage. On November 2, 1999, a rehabilitation therapist evaluated Petitioner to assess his physical and functional capabilities. The summary of results notes “significant wrist, elbow, and shoulder compensations . . . during manual dexterity testing.” This testing confirmed “significantly decreased coordination, strength, and some sensory deprivation in the right thumb.” The evaluation states: While [Petitioner] was able to perform the tasks on an occasional basis, his performance during the evaluation demonstrates a significant safety risk when using heavy machinery and power tools as he does in his occupation. . . . The possibility of vocational counseling may also be considered to determine other gainful employment [Petitioner] may be suitable for. Petitioner attempted to obtain the consent of his employer to workplace changes that would have made the work safer, such as by requiring the use of a router guard at all times. Failing at obtaining such changes, Petitioner finally resigned, on November 19, 1999, motivated by the fear that he could no longer do the job safely. By Notice of Employee Separation dated November 19, 1999, Petitioner stated that he was resigning due to the advice of his doctor that “risk is greater for reinjury[--]should be retrained.” For rehire status, the form states that Petitioner is “subject to rehire with reservation.” At the bottom of the Notice of Employee Separation, just above the employer’s signature, is the statement, evidently written by the employer: “Employer agrees with . . . doctor’s recommendation as well.” Elaborating, the employer wrote on a separate page: Mr. Gresko’s employment at Exodus is a more dangerous undertaking than if he had not had his accident. [Psychologically] + physically to some extent he is a [sic] greater risk of re-injuring himself. We would re-hire or continue his employment from this point, but if re-training is available we think Mr. Gresko should take advantage of it. On November 15, 1999, a hand surgeon reported that testing of manual dexterity revealed that Petitioner “has significantly decreased coordination, strength, and some sensory deprivation of the right thumb.” Concerned that a valid psychological component could interfere with Petitioner’s return to his present duties, the surgeon opined that Petitioner still has a functional capacity, but “not in this specific line of work.” The surgeon concluded that Petitioner should receive some rehabilitation training. On November 29, 1999, a case manager of a managed care provider determined that, on November 9, Petitioner had reached maximum medical improvement and could return to gainful employment with no “permanent physical restrictions,” although he was 11 percent permanently physically restricted. At this time, Petitioner requested retraining services from Respondent. By letter dated December 23, 1999, Respondent determined that Petitioner was ineligible for services because he had terminated suitable gainful employment. Therefore, Respondent declined to refer Petitioner for a vocational evaluation. When Respondent determined that Petitioner was ineligible for retraining services, Respondent became depressed, did not do anything for one and one-half months, and then obtained his certificate as a correctional officer in June or July 2000. In July 2000, after completing his training, Petitioner began work as a correctional officer at the Jasper Correctional Institute. However, during training, he had torn his rotator cuff while bench-pressing weights. After ignoring the injury for several months, Petitioner asked a physician to examine his shoulder after he had been on the job a short time. The Department of Corrections then placed Petitioner on medical leave. High-end woodworking, of the kind that Petitioner was performing at the time of the injury, is not suitable gainful employment for him due to the physical limitations arising from the loss of the distal joint of Petitioner’s right thumb. Petitioner tried to return to his former work, but could not do the work safely and efficiently. There is no credible evidence to suggest that Petitioner voluntarily terminated this employment. To the contrary, all of the credible evidence establishes that Petitioner terminated this employment out of a well-informed, reasonable concern for his ongoing safety and the preservation of his remaining upper extremities.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation, Bureau of Rehabilitation and Medical Services, enter a final order granting Petitioner’s request for reemployment services, commencing with a vocational evaluation. DONE AND ENTERED this 15th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2000. COPIES FURNISHED: Mary B. Hooks, Secretary Department of Labor and Employment Security The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Sherri Wilkes-Cape, General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189 John Gresko Post Office Box 278 Live Oak, Florida 32064 Elana J. Jones Senior Attorney Department of Labor and Employment Security 2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on March 26, 2000.
Findings Of Fact Petitioner first interviewed for the position of Assistant Manager Trainee with Respondent on March 17, 1999. Her first interview was with Traci Dickerson, Assistant Manager for Operations. Ms. Dickerson was impressed with Petitioner's presentation and recommended that she be interviewed a second time by Mitchell Day, District Manager. After the interview, Petitioner was offered a position as Assistant Manager Trainee to begin work at Wal-Mart Super Center on Apalachee Parkway in Tallahassee, Florida, on May 10, 1999. The Assistant Manager training program is a seventeen- week program conducted at selected Wal-Mart stores throughout the country. The Wal-Mart store in question in the present case is one of just a few stores in Florida that were utilized for this training program. Ms. Dickerson was the person responsible for administering the program in the store in question during the relevant time frame. Another Assistant Manager Trainee, Sean Mitchell, began the training program on the same date as Petitioner. Mark Whitmore, another Assistant Manager Trainee, began the training program sometime prior to Petitioner. Mr. Whitmore was a long- time employee of Wal-Mart who transferred from management in the home office into the retail sales side of the business. Because of his prior experience with Wal-Mart, his training program was handled differently from the training administered to Petitioner in that it was accelerated. Mr. Mitchell's training was the same type as Petitioner's although each trainee may have been given various assignments on different days and in different sequence. Sometime during the training process, certain members of management with Respondent became concerned about Petitioner's attitude toward the training program, her willingness to take constructive criticism, and her communication/people skills. Sometime around the second week of Petitioner's employment with Respondent, she was observed by Assistant Manager Wendy Rhodes, to be engaged in a conversation with Sean Mitchell during working hours. It appeared to Ms. Rhodes that the two individuals were socializing rather than working. Mr. Rhodes approached the two and instructed them to begin the workday. Later, Ms. Dickerson, in her role as the Program Supervisor, provided constructive criticism to Petitioner that she should concentrate on her work and not socialize during work hours. On or about May 29, 1999, while Petitioner was working in lay-away, she was asked to come to the front of the store to assist Brenda Meyers, a front-end manager, because of an increase of customers at the various cash registers. As an Assistant Manager Trainee, Petitioner was expected to "pitch in" and assist throughout the store where needed. Petitioner responded to Ms. Meyers' request by indicating that she was intending to go on her break and refused to come and assist at that time. Because of Petitioner's refusal, George Wilkins (a co-manager and directly below the store manager in the chain of command of the store) took a turn working at a cash register. Every manager at Wal-Mart is expected to be a team player and assist when the need arises. Mr. Wilkins arranged to meet with Petitioner to discuss the incident and general concerns he had as result of feedback he received from other members of management about her unwillingness to do certain tasks, and to give counseling advice on how to conduct herself as an Assistant Manager. Petitioner immediately became defensive and asserted that because she had a bachelor's degree, she did not have to "take this." Mr. Wilkins attempted to explain to Petitioner that her degree was important, but her attitude toward her work and her willingness to do her fair share were more important. Petitioner was not receptive to Mr. Wilkins' efforts to provide constructive criticism. Sometime in late-July 1999, Petitioner traveled with Mike Odum, an Assistant Manager and Lisa Green, who at the time was Personnel Manager at the store in question, to Georgia to attend a new store opening. On the return trip, Petitioner became upset because she was concerned that the group would not return to Tallahassee in time for her to pick up her child from daycare. She confronted Mr. Odum, very upset about the possibility of returning to Tallahassee after 5:00 p.m. However, he returned to Tallahassee prior to the time that Petitioner needed to be back in Tallahassee. On or about August 20, 1999, Petitioner was assigned to the 2:00 p.m. to 11:00 p.m. shift to assist the Customer Service Manager (CSM) in closing the store. The function of the "closing CSM" is important, and Petitioner was needed to assist in that regard. Because the store manager and other members of management were out of town at a meeting, Mr. Odum was in charge of the store. Instead of coming in at 2:00 p.m., Petitioner arrived at the store at 9:00 a.m. She clocked in on the time clock and proceeded to the break room where she warmed her meal and sat down to eat. After she completed her meal, she proceeded to the front of the store to assist the Customer Service Manager. Not long after Petitioner arrived at the store and assumed her position, she was called to the Manager's office to discuss her work schedule for the day. At that time, Mike Odum and Traci Dickerson (Ms. Dickerson participated by phone) reminded Petitioner that her scheduled shift was from 2:00 p.m. to 11:00 p.m. The importance of this was that if she had worked too many hours without prior approval, she would have been in an unauthorized overtime situation. Additionally, it is important to have a "closing CSM" at the appropriate time. Petitioner left work to return in the afternoon as originally scheduled. Petitioner returned to work in the afternoon. She reported to the front temporarily but became frustrated with one of the assistant managers. Feeling that what she was doing was a waste of time, she proceeded to the training room where she reviewed her training materials. She was paged to the front of the store on numerous occasions but did not respond to the calls. Mike Odum went to the training room and told Petitioner to come to the front of the store to assist. Petitioner refused and stated that she would remain in the back of the store and continue reading her manual. When Petitioner refused, Mr. Odum instructed Petitioner to clock out and to come back when the District Manager would be available for a conference. Petitioner left the store shortly thereafter. Petitioner arranged to meet with Mitchell Day, the District Manager who oversees nine stores and approximately 4,800 employees, on August 25, 1999. Mr. Day understood the meeting to be for the purpose of resolving concerns about the issues involving Petitioner and giving Petitioner an opportunity to express her concerns. Management saw this meeting as an opportunity to "get everything out on the table" so that Petitioner could continue with her training program. Accordingly, Mr. Day scheduled the meeting with Todd Peterson, Store Manager; Mike Odum; George Wilkins and Traci Dickerson. All of these individuals expressed concern about Petitioner's performance, her attitude toward the training program, her willingness to accept constructive criticism, as well as their willingness to assist her in completing the training program. There is no evidence that Mr. Day or any other member of management intended that the meeting be conducted for the purpose of terminating Petitioner. Petitioner entered the room and walked past other members of management and approached Mr. Day in a confrontational manner. She was upset at the presence of the various members of management. Despite being asked to be seated, she refused to sit down and begin the meeting. Every participant in the meeting who testified at hearing gave consistent testimony that she raised her voice to an inappropriate level, was hostile and explosive. All recalled her using profanity, with the exception of Mr. Day who did not specifically recall her use of profanity. Every person in the room was stunned at her demeanor, in particular that it was addressed to an upper level management person. Based upon the unprofessionalism of this outburst, Mr. Day advised her that her employment was terminated. The formal reason given for her termination was insubordination. There is nothing in the evidence presented at final hearing to indicate that any of the actions taken by Respondent or members of Respondent's management were based on Petitioner's gender or on any other form of discrimination.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission for Human Relations enter a final order denying and dismissing the Petition for Relief. DONE AND ENTERED this 27th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of April, 2001.
The Issue Whether Petitioner is entitled to additional reemployment services from the Bureau of Rehabilitation and Medical Services. 1/
Findings Of Fact Petitioner was employed by UPS from July 1987 until her employment was suspended on February 10, 1997, for cause unrelated to the job-related injuries at issue in this proceeding. Following an investigation of the unrelated matter, UPS terminated Petitioner’s employment on February 19, 1997. At the time of her discharge, she was working a 40-hour week, was receiving full benefits, and was being paid at the rate of $19.97 per hour. Petitioner’s duties with UPS required her to drive a truck, load and unload trucks, and deliver packages. On January 13, 1997, Petitioner sustained certain injuries on the job when she fell between a truck and a loading dock. Petitioner received medical treatment for her work-related injuries beginning February 12, 1997. Dr. Bruce M. Berkowitz is an orthopedic specialist who treated Petitioner. On May 19, 1997, Dr. Berkowitz observed that Petitioner had multiple areas of discomfort that did not fit into specific orthopedic problems that he could treat. He discharged Petitioner from orthopedic care with a 3% whole person impairment rating based on painful organic syndrome as outlined by the Florida Impairment Rating Guide. Dr. Berkowitz recommended that Petitioner’s care be continued by a physiatrist (a doctor who specializes in physical medicine or physical therapy). Dr. Berkowitz also recommended that Petitioner not lift, carry, push, or pull objects weighing over 30 pounds, and that she not bend from the waist. Dr. Berkowitz saw Petitioner again on August 1, 1997, but he merely reiterated the findings and recommendations from May 19, 1997. After Dr. Berkowitz discharged her, Petitioner received treatment from Dr. Scott D. Tannenbaum, a physiatrist. At the time of the final hearing, Petitioner continued to experience chronic pain, which she attributed to the injuries she sustained January 13, 1997. At the time of the final hearing, Petitioner’s limitations as described by Dr. Berkowitz in May and August 1997 had not improved. Because of her physical limitations, Petitioner is unable to perform her former duties with UPS. At the time of the final hearing, Petitioner was 47 years old. She has no formal education beyond high school other than a computer-training course. She has no special training and no special marketable skills. Petitioner was unemployed between February 19, 1997, and March 1998. Since March 19, 1998, Petitioner has been employed by the DBPR in an OPS 2/ clerical position that has no fringe benefits. In April 2000, Petitioner was earning $11.09 per hour. At the time of the final hearing, Petitioner was paid at the rate of $11.29 per hour. In the fall of 1999, Petitioner applied to Respondent for reemployment services. The goal of this program is to return eligible injured workers to suitable gainful employment as soon as possible. The reemployment services program is a return-to- work program, not a retraining program. The program is voluntary, and must be initiated by the injured worker or by the worker's compensation carrier. Section 440.491, Florida Statutes, defines suitable gainful employment to be: . . . employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his or her average weekly earning at the time of injury. In December 1999, Petitioner attended an orientation program and a training workshop pertaining to employability skills. She completed a formal application for services from Respondent, which included releases for medical and employment history. A rehabilitation nurse reviewed Petitioner’s medical records and determined that Petitioner was able to return to work. Thereafter, Eva-Lyn Facey, a vocational rehabilitation counselor employed by Respondent, was assigned Petitioner’s file to make sure that all needed information was provided. Respondent typically explores three options for injured workers seeking reemployment services in the following descending order of preference. The first, and preferred option, is to place the injured worker with his or her former employer. If that option is not available, the next preferred option is on- the-job training for the injured worker. The last option is for full-time classroom re-training of the worker. The preferred option was not available because Petitioner’s prior employment had been terminated for cause and because Petitioner was no longer physically able to perform her former job. On April 6, 2000, Petitioner met with Ms. Facey. After that meeting, Petitioner’s application was complete and she had provided all information required by Respondent to determine whether option two or option three should be pursued. After the application file was complete, Ms. Facey turned the file over to her supervisor 3/ who reviewed the file with Angel Ivan Miranda, a vocational consultant. The supervisor and Mr. Miranda determined that Petitioner's employment with DBPR constituted "suitable gainful employment" as defined by Section 440.491(1)(g), Florida Statutes. They further determined that Petitioner was not entitled to further reemployment services pursuant to Rule 38F-55.009(5)(c), Florida Administrative Code, which provides as follows: (5) Following a Division screening the Division shall not provide any additional reemployment services or refer the injured employee for a vocational evaluation: * * * (c) if the injured employee has returned to and maintained suitable gainful employment for at least 90 days. In attempting to comply with the provisions of Section 440.491, Florida Statutes, Respondent attempts to determine what employment is reasonably attainable for the injured worker. Mr. Miranda determined that Petitioner's employment with DBPR constitutes suitable gainful employment despite the considerable disparity between Petitioner's pre- injury average weekly wage and her post-injury average weekly wage because better employment for Petitioner is not reasonably attainable. In making that determination, Mr. Miranda considered Petitioner's age, education, work history, transferable skills, and physical restrictions. It is unlikely that Petitioner will be able to find employment that pays as well as her former employment with UPS. Petitioner wants to be retrained in order to be able to work with computers. Mr. Miranda testified that it was likely that an independent evaluator would find that such retraining to be the most appropriate for Petitioner. Mr. Miranda also determined that after such retraining, Petitioner would likely start employment as a computer technician at a lower hourly rate than she was earning at DBPR. The greater weight of the credible evidence established that Petitioner's employment with DBPR constitutes suitable gainful employment within the meaning of Section 440.491(1)(g), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner further reemployment services. DONE AND ENTERED this 19th day of March, 2001, in Tallahassee, Leon County, Florida. ___ CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 2001.
Findings Of Fact The Parties. The Petitioner, Charles H. Willis, Jr., is a black male. The Respondent, State of Florida, Department of Transportation (hereinafter referred to as the "Department"), is an agency of the State of Florida. Mr. Willis' Employment by the Department. Mr. Willis was hired and began employment with the Department in 1985. (Stipulated Fact). Mr. Willis continued employment with the Department until February 6, 1992. (Stipulated Fact). At the time of his dismissal from employment, Mr. Willis held the position of a Senior Clerk. As a Senior Clerk, Mr. Willis' job duties included duties related to the storage and retrieval of documents pertinent to the Department's activities. Among other things, Mr. Willis went to offices of the Department, picked up boxes of records and prepared the boxes for storage. Mr. Willis was required as a part of his employment to lift boxes of records. Mr. Willis' Automobile Accident. On or about October 16, 1991, Mr. Willis was involved in an automobile accident unrelated to his employment. Mr. Willis was injured in the accident. (Stipulated Facts). Mr. Willis' treating physician for the injuries sustained in the accident was Dr. Esias Lee. (Stipulated Fact). Dr. Lee reported by letter dated October 24, 1991 to the Department that Mr. Willis had sustained severe neck and back injuries, that he was making slow progress and that he would probably be incapable of carrying out his employment duties for four to eight weeks. Mr. Willis' Termination from Employment. The Department was experiencing a backlog in the work Mr. Willis would normally have been responsible for. After inquiry, Mr. Willis was unable to inform the Department when he might be able to return to his duties. By letter dated November 14, 1991, to Dr. Lee, the Department provided Dr. Lee a copy of Mr. Willis' job description and requested that he supply "an evaluation level at which Mr. Willis will be able to perform all of his assigned duties upon his return to work, as well as any and all limitations." (Stipulated Fact). The Department did not receive a response to the Department's letter of November 14, 1991 from Dr. Lee. By letter dated December 6, 1991, to Mr. Willis the Department requested "full and complete response from you regarding your condition, your return date, and your capabilities at the time of return." The Department also requested that the information provided "be confirmed by your physician." Mr. Willis was also informed that he had exhausted all leave and that he would be required to request authorized leave without pay until his return. Apparently in response to the Department's December 6, 1991 letter, Dr. Lee sent a letter to the Department dated December 12, 1991. In the December 12, 1991 letter Dr. Lee informed the Department that Mr. Willis was "unable to preform [sic] the duties of his job." Dr. Lee went on to state that Mr. Willis "continues to be under my care and therapy and is unable to return to gainful employment indefinitely." [Emphasis added]. (Stipulated Fact). As a result of the fact that Dr. Lee had informed the Department that Mr. Willis would not be able to return to work "indefinitely" and the need to fulfill the duties normally fulfilled by Mr. Willis, the Department instituted proceedings to terminate Mr. Willis. On December 18, 1991, the Department sent Mr. Willis by certified mail, receipt requested, a notice of intent to terminate his employment with the Department. Mr. Willis was informed that his employment was being terminated because of his inability to perform his assigned duties. (Stipulated Fact). In response to the Department's letter of December 18, 1991, D. Ricardo Paige, Esquire, requested a pre-termination conference with the Department on behalf of Mr. Willis. The pre-termination conference was held on January 16, 1992. The conference was attended by Frances Felix and Kim Mirkley on behalf of the Department, and Mr. Paige on behalf of Mr. Willis. Mr. Willis did not attend. (Stipulated Facts). During the pre-termination conference, Mr. Paige informed Ms. Felix that he believed that the Dr. Lee would clarify his statement that Mr. Willis would be unable to perform his duties "indefinitely." Mr. Paige represented that an affidavit from Dr. Lee would be provided to the Department "tomorrow", January 17, 1992. Mr. Paige also represented that he believed that Mr. Willis would be able to return to work in February. Finally, Mr. Paige requested assignment of Mr. Willis to light duty. Ms. Felix spoke to Mr. Paige by telephone on January 16, 1992. During this conversation, Ms. Felix told Mr. Paige the affidavit from Dr. Lee should be received by the Department no later than 5:00 p.m., January 17, 1992. The affidavit from Dr. Lee promised by Mr. Paige to the Department was not provided on January 17, 1992. Nor did Mr. Paige or Mr. Willis make any effort to inform the Department that the affidavit would be provided at a later date. On January 23, 1992, after not receiving a revised letter or affidavit from Dr. Lee, the Department notified Mr. Willis that he was dismissed from employment with the Department because of his inability to perform his assigned duties. Mr. Willis' termination was effective February 6, 1992. (Stipulated Facts). No affidavit or other statement from Dr. Lee was provided to the Department by Mr. Willis or Mr. Paige (even though Mr. Paige saw the termination letter) prior to February 6, 1992. Nor did Mr. Paige or Mr. Willis attempt to contact the Department and request additional time to provide a statement from Dr. Lee or explain why no statement had been provided. Mr. Willis was terminated from employment by the Department due to the fact that he was unable to fulfill his job responsibilities from October, 1991 through at least the date of his termination, and the fact that his physician had informed the Department that he was not physically able to perform his job and that he would not be able to do so "indefinitely." Mr. Willis failed to prove that the Department's reason for terminating his employment was a pretext. Mr. Willis failed to prove that he was able to perform light duty. No representation from Mr. Willis' physician was made to the Department before he was terminated that indicated that Mr. Willis was able to perform any duties. Mr. Willis also failed to prove that the circumstances concerning persons he testified about who were allowed to perform light duty were similar to the circumstances of this matter. Subsequent Events. The Department replaced Mr. Willis by a white man. An affidavit from Dr. Lee was provided to the Department on or about February 14, 1992, after Mr. Willis had been terminated from employment. In pertinent part, Dr. Lee informed the Department of the following concerning Mr. Willis' ability to return to work: . . . . His medical condition has moderately improved and I expect his condition to continue to improve. Should his medical conditions [sic] continue to improve, Mr. Willis will be able to return to work by Mid-February with retrictions [sic] (i.e. light duty, no heavy lifting); Mr. Willis should be able to return to his normal work duties within sixty (60) days (without restrictions). . . . . As of the date of the final hearing of this case, Mr. Willis was wearing a back brace and indicated that he was still unable to perform the duties of his former position with the Department. No proof was offered by Mr. Willis that he is now able to carry out any of the responsibilities of his position. Mr. Willis' Charge of Discrimination. On or about July 29, 1992, Mr. Caldwell filed a Charge of Discrimination against the Department with the Florida Commission on Human Relations. Mr. Willis alleged that he had been discriminated against on the basis of his race. The complaint was filed within 180 days. On March 4, 1993, the Commission issued a "Notice of Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred " On July 29, 1993, Mr. Willis filed a Petition for Relief. (Stipulated Fact). The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Willis. G Alleged Race Discrimination. There are approximately 65 employees under the supervision of Ms. Felix, Mr. Willis' supervisor. Approximately 40 of those employees are minorities. Approximately 22 of the 40 employees who are members of a minority are black. Mr. Willis failed to prove that any action of the Department was based upon his race: he was not held to any standard or requirement based upon his race and he was not terminated because of his race. Mr. Willis failed to prove that any Department policy or standard had a disparate impact on black employees.
The Issue The issue in this proceeding is whether Petitioner's position was properly reclassified from Career Service status to Selected Exempt status.
Findings Of Fact Prior to July 1, 2001, Petitioner, Jolly was employed in the Comprehensive Health Planning Section of the Programs, Regulation and Health Facilities Division of the Department of Children and Family Services (DCFS) in a Career Service employment position classified and titled Administrative Assistant II Career Service. At the time, Petitioner held permanent Career Service status. The Administrative Assistant II position was certified by the Public Employees Relations Commission (PERC) as within the Career Service Administrative-Clerical collective bargaining unit, represented by the Florida Public Employees Council 79, AFSCME. In her position, Petitioner performed clerical functions. She did not supervise other employees, perform any managerial functions, or perform any confidential duties. She had no role in labor relations, collective bargaining, the adjustment of grievances filed by employees, or the imposition of discipline upon other employees for breaches of conduct. Similarly, Petitioner had no role in the preparation of agency budgets for collective bargaining, or for other purposes. Sometime around June 15, 2001, Petitioner was notified by DCFS that her position as an Administrative Assistant II would be reclassified as a position within the Selected Exempt Service (SES). The reclassification was effective July 1, 2001. No input from the Petitioner regarding the duties of her position was sought by the Department in its decision to reclassify Petitioner's position. Indeed, the Department reclassified the position based on the fact that Petitioner assisted or aided managerial employees and allegedly had access to confidential material. However, there was no evidence in the record that Petitioner's position involved any confidential matters. Petitioner was terminated from employment with DCFS, without explanation, on June 28, 2002. In terminating her employment as an Administrative Assistant II, DCFS represented that Petitioner had no appeal rights either to PERC or under the bargaining agreement between AFSCME and the State of Florida because her position had been reclassified. However, the evidence does not demonstrate that Petitioner's position was managerial, confidential or supervisory. Therefore, Petitioner's position should not have been reclassified to SES and she is entitled to her rights as a Career Service employee.
The Issue The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.
Findings Of Fact From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back, suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage. Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.
Recommendation It is RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees. DONE AND ENTERED this 19th day of February, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1998. COPIES FURNISHED: Peter C. Burkert Burkert & Hart Post Office Box 2485 Fort Myers, Florida 33902 Attorney Michael G. Moore, Sr. Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Russell Schropp Henderson Franklin Post Office Box 280 Fort Myers, Florida 33902 Edward A. Dion General Counsel Department of Labor and Employment Security 2012 Capital Circle, Southeast 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, Southeast 303 Hartman Building Tallahassee, Florida 32399-2189
