The Issue The issues to be resolved in this proceeding concern whether the Respondent committed an unlawful employment practice as envisioned in Section 760.10, Florida Statutes (2005), on the basis of the Petitioner's disability or handicap, and his age. It must also be determined whether the Respondent committed retaliation against the Petitioner for the Petitioner's alleged exercise of statutorily protected rights in complaining about health, or safety concerns, regarding his operation of a machine or device while an employee of the Respondent.
Findings Of Fact Jimmy D. Forehand was hired by the Department of Management Services or its predecessor on January 21, 1977. He was employed at that Agency for approximately 27 and one-half years through June 30, 2004. For the last 19 years of his tenure he was classed as an electrician. This is the entry level electrician trade position and has fewer complex duties and skills required for its performance, as opposed to the more complex position of master electrician, in terms of working with complex wiring, wiring problems, electrical devices, and so forth associated with that latter position. It has been stipulated that through his termination date of June 30, 2004, Mr. Forehand, was qualified to perform the duties and functions of his job. The Respondent is an Agency of the State of Florida charged with managing all state government agency resources, services, properties, benefits, and procurement. It manages state-owned facilities, handles state human resources or personnel matters, employee benefit matters, as well as procurement of such things as office space and office supplies. It maintains the physical integrity of all state-owned properties. The Petitioner was employed for the Respondent by the Division of Facilities Management and Building Construction (Division of Facilities) which is responsible for managing and maintaining office complexes and other properties owned by the state. The Petitioner specifically worked for the electrician unit of that Division. The Disability Claim The Petitioner experienced several purported medical conditions which resulted in workers' compensation claims during his tenure as an employee. The ones relevant to this case commenced in approximately 1992. In 1992 the Petitioner was engaged in a repair work assignment at a DMS-administered office building in downtown Tallahassee. He allegedly became exposed to asbestos during that job. The Petitioner and the employer, DMS, initiated a First Report of Injury and a workers' compensation claim ensued regarding the asbestos incident. The progress of that workers' compensation claim and its disposition are not relevant to this case, aside from the diagnosis concerning that claim as a part of the predicate for showing a disability for purposes of the case at bar. In any event, in 1992, the Petitioner was diagnosed by a physician with asbestosis. Because of that diagnosis, through the workers' compensation process, the employer and carrier have authorized the Petitioner, in all the years since, to have an annual medical examination and chest X-ray under the auspices of the Division of Workers' Compensation, Department of Financial Services. This is for the purpose of monitoring the status of the asbestosis. The Respondent has stipulated that it was aware of the diagnosis of asbestosis. It does not agree that the asbestosis constitutes a disability for purposes of Chapter 760, Florida Statutes (i.e. handicap). The Petitioner was released from the physician with regard to the asbestosis situation without work limitations or restrictions due to that diagnosis. Sometime in 1999 the Petitioner injured his left knee on the job, apparently a severe sprain. A workers' compensation notice of injury was filed and a workers' compensation claim process ensued whereby he received treatment for his knee problem. When he reached maximum medical improvement he returned to work with a light duty recommendation from his treating physician, on a temporary basis. In fact, the Respondent accorded him a temporary light duty assignment after he returned to work from the knee injury. The Respondent, through the Petitioner's supervisors, particularly Joe Jacobson, generally made an effort to try to find the Petitioner a light duty assignment when he returned from illness or injury, based upon a doctor's recommendation and/or the Petitioner's own request for light duty. His supervisor, Mr. Jacobson, would customarily call other building managers, the "OP/CON Center" and other agencies in an effort to find a light duty post Mr. Forehand could perform in until he was ready for the full duties of his regular position. Thus, on several occasions Mr. Forehand was placed in light duty as a janitor or answering phones. It was not always possible to find temporary light duty for Mr. Forehand when he requested it or when a doctor recommended it. Apparently Mr. Forehand was on leave without pay for a number of months on at least one occasion when no light duty was available for him. In this connection, however, the Respondent, throughout Mr. Forehand's tenure as an employee or at least since his 1992 asbestosis diagnosis, has shown a penchant for allowing Mr. Forehand to occupy and perform his duties in his regular position of electrician by working at his own pace, without regard to any time limit for performing his duties, without prohibition on his taking frequent rest breaks, and with tolerance for his late arrival at work, if tardiness was related to his physical condition. Thus, in a defacto fashion, the Respondent accommodated what it knew of Mr. Forehand's impairments, as he related them to the Respondent, or as they learned of them from reports from his physicians and from the workers' compensation process (i.e., breathing difficulties and to some extent left knee impairment after 1999). In any event, the preponderant evidence establishes that when the Petitioner requested light duty and/or his physician recommended it, the Respondent would provide him with light duty if it was available, although it was not always available. It accommodated what it knew of his impairments when he worked in his regular position, performing his regular duties, by the means described above; even though the Petitioner did not for the most part request rest periods, frequent breaks from his duties, additional time to complete his assignments, or for permission to trade assignments with another worker who might have a less physically taxing job. In fact, when the matter of his physical difficulties came up, or was raised by the Petitioner in a conversation with his supervisor on at least one occasion, his supervisor told him in effect to "do the best you can." The implication thus clearly was that if the Petitioner needed rest breaks, needed additional time to do assignments, that the Respondent would accommodate him by not holding him to a strict standard as to when his job duties got performed. Since approximately the year 2000 or the fiscal year 2000-2001 the Respondent, like other state agencies, have been under a mandate from the Legislature and the Office of the Governor to save on costs and to become more efficient in its operations. One of the primary means of accomplishing this has been to require a reduction in the Agency's workforce. The Respondent has thus experienced a loss of employment positions since that fiscal year in each budget year and session of the Legislature. It has thus lost approximately 635 full-time positions over a four-year period ending with the 2005 Legislature and Appropriations Act. In fiscal year 2000-2001, the Petitioner's position was identified by the year 2000 Florida Legislature to be eliminated, by making it "non-recurring," such that his position would be cut or eliminated effective July 1, 2001. The Respondent's supervisors did not want him to be laid off. Therefore, they avoided his lay-off in that fiscal year by re- classifying him or his position into a vacant position within the Division of Facilities. They made the decision to retain him even with knowledge of his past workers' compensation claims, his asbestosis diagnosis and his knee injury of 1999 with related occasional light duty and time off from work. When the 2000 Legislature identified his position as being one which would be non-recurring or deleted after July 1, 2001, the Respondent held a meeting with the Petitioner and all other employees whose positions had been deemed non-critical and subject to deletion in the job force reduction. What had occurred was explained and their options and procedures to remain employed or become re-employed were explained. Because his supervisors wanted to save him from lay-off, and re- classified a different position to place him in, he was protected when the 2001 Legislature carried through with its previous year alteration of his position to non-recurring funding by withdrawing all funding and rate supporting his original position. In continuation of its mandate to reduce the work force, the 2003 Legislature made 20 positions non-recurring, including the Petitioner's. This meant that the funding was determined to be non-recurring, meaning that the positions would be funded one more year, but at the end of the fiscal year, on June 30, 2004, these positions would no longer be funded and would be abolished. In the Governor's and agency's budget preparation process thereafter, in 2003 and early 2004, the Legislatively- mandated reduction of 20 positions was incorporated. The Agency, however, in late 2003 or early 2004, arrived at the conclusion that it needed 15 of those 20 positions to be re- classified as critical positions necessary to its mission. Therefore, in the Legislative budget-making process, beginning in February and early March 2004, it sought to convince the Legislature's Appropriations staff and members that 15 of the positions were critical. It was successful in doing that during the Legislative session. The Petitioner's position was not re-established as a recurring, critical position. This was because his position had previously been determined to be non-critical in the 2000-2001 fiscal year, and, since his job duties and responsibilities had not changed since that time, his position was again deemed to be no longer critical to continued division operation. It was determined by the Respondent that the functions of his position could be performed by including them in the duties of other positions, to be performed by persons who qualified for and occupied those positions (such as master electricians). Although Mr. Jacobson, his supervisor, wanted to find a vacant position to place the Petitioner in as he had done in the 2000-2001 fiscal year job force reduction, there were no vacant positions available in which to place the Petitioner. Mr. Jacobson's testimony establishes this, as does that of Clint Sibille and Cherri Linn (Mr. Jacobson's supervisors). The fact that Mr. Jacobson had a desire to try to find a way to retain the Petitioner is somewhat corroborated by the statement or message from Ms. Linn to Mr. Jacobson to the effect that "you can't save him this time." This meant that, unlike the situation in 2000-2001, there were no vacant positions which could be converted to a position in which to place the Petitioner. Moreover, the testimony of the supervisory lead worker, Bill Kerr, corroborated that of Joe Jacobson and Clint Sibille that there were no vacant positions to place the Petitioner in or to convert to a position suitable for his qualifications. Their testimony shows that the Petitioner's position was not a critical one in the division, especially because it did not involve duties concerned with intricate electrical wiring, wiring repairs, working on complex electrical devices and other complex electrical work. This testimony established that it made no sense to convert a master electrician position into one which met Mr. Forehand's lesser qualifications because a qualified person in a master electrician position, can perform the Petitioner's duties and many more duties in terms of complexity and critical importance than can a person with the Petitioner's lesser qualifications in an entry-level electrician position. Mr. Forehand is not a licensed electrician. The Respondent thus determined that there were no positions which were vacant and sufficiently less critical to its operation as to justify it in converting such to one which met the Petitioner's qualifications (in a managerial context). The Petitioner was not told of his lay-off until June 14, 2004. In fact, Mr. Jacobson, his supervisor, did not know that it was certain to occur until immediately before Mr. Forehand was told, several days before at the most. Clint Sibille had told Mr. Jacobson before the Legislative session convened that Mr. Forehand's position might be eliminated but he was not certain at that time (approximately in December 2003 or January 2004). It is not clear which supervisor or manager made the initial decision that the Petitioner's position was not critical. It apparently was the recommendation of Clint Sibille, in concert with Cherri Linn, and with the final approval of the Division Director, then LeeAnn Korst. Mr. Jacobson, the Petitioner's immediate supervisor, did not request that his position be deleted. During most of 2003, the Petitioner's job duties included operation of a florescent bulb or lamp crushing system. This was a device known as a VRS Bulb Crusher also known as the "bulb eater." It had apparently been purchased by the Agency sometime in 2002. The device consists of a large drum with a vertical tube through which burned-out florescent light bulbs are inserted so that they fall into the large drum where a mechanical device is operated which crushes the bulbs for disposal. The Petitioner performed a large portion of the bulb crusher's operation. This was particularly true during early 2004, when the Petitioner used the machine at a more intense level. Sometime in February 2004, the exhaust or filtration system of the machine sustained damage, or a break, so that dust and particulate matter and any gaseous or chemical contents of the broken bulbs had the opportunity to leak out of the area of the break into the ambient air. A temporary repair was made and a permanent replacement part was ordered from the manufacturer. The machine continued to malfunction, however, and the repair did not hold. The Petitioner complained to Bill Kerr, his lead worker, concerning the dust and particulate matter the machine apparently sprayed into the air. He also complained to his supervisor, Joe Jacobson. The Petitioner stated that he believed that the dust and particulate matter and other unknown contents of the broken florescent bulbs might aggravate the breathing problems he professed to have, which he related to his original asbestosis diagnosis. These complaints began in early March 2004. The Petitioner also complained to Dave Wiggins, the Respondent's Environmental Supervisor in March of 2004. When the complaints were made and the temporary repair was not successful, the Respondent stopped all use of the bulb machine in early March 2004. This was contemporaneous with the time or occasion when the Petitioner refused to use the machine any longer. The complaints about the bulb crushing machine were reported up the "chain of command" so that on March 16, 2004, Glen Abbott, the Employee Relations Specialist of the Bureau of Personnel Management Services, made a written "medical report" (according to the Petitioner's testimony) concerning the Petitioner's reported exposure to "poisonous chemicals" in the fluorescent bulbs being crushed through operation of the machine. This report was apparently required for workers' compensation purposes. The Petitioner also told Clint Sibille, Mr. Jacobson's supervisor, of the machine's purported malfunction. Mr. Sibille asked Dave Wiggins, the Environmental Specialist, to investigate the machine to determine if the machine was malfunctioning or if the problem reported by the Petitioner was caused by operator error. Mr. Wiggins and Joe Jacobson, after investigating the matter, believed it to be caused by operator error in the manner in which the bulbs were inserted into the vertical tube of the machine. The Petitioner maintains that he asked Clint Sibille to send him to a doctor concerning his fears of heath problems related to the machine and states that Clint Sibille told him to "see his own doctor." Mr. Sibille did confer with Cherri Linn about the Petitioner's request and Cherri Linn informed him that the Petitioner would have to engage in the workers' compensation report and claim process in order to see a doctor concerning his health-related fears about the bulb crushing machine. Mr. Sibille then told the Petitioner's supervisor Joe Jacobson to tell the Petitioner of this. Thereafter, at some point during the period of March through June 2004, after the Petitioner reported his complaints concerning the use of the bulb crusher, Glenn Abbott told all the electricians and carpenters who had worked with the machine to obtain medical examinations under the normal workers' compensation procedure, to try to ascertain if there are any deleterious effects caused by these persons' operation of the machine. Sometime in early May of 2004, the Petitioner called the Department of Environmental Protection (DEP) and spoke to someone there and made a verbal report of his belief concerning unsafe conditions regarding operation of the bulb crushing machine. After the Petitioner left employment with the Respondent Agency in July of 2004, the machine and the warehouse space where it was located was examined by a representative of the DEP and samples were taken, in an effort to ascertain if any hazardous materials had been produced by the machine or were present in that working area. On May 18, 2004, the Petitioner re-injured the same knee which he had injured in 1999. A Notice of Injury concerning this knee injury was filed to trigger the workers' compensation process and the Petitioner saw a doctor through the workers' compensation procedure who examined and treated his knee problem (severe sprain). He was off work for a few days and then was sent back to work by the physician with a prescription of "light duty." He thus became available for work with light duty, at the doctor's recommendation, on or about June 1, 2004. At about this time he told his lead worker Bill Kerr, of his blood clot and showed him the doctor's report concerning leg swelling. He also informed Joe Jacobson of this. He sought light duty and indeed Joe Jacobson made substantial efforts to find light duty available for him by calling the various building managers and the "opcon" center to see if any light duty was available. Mr. Jacobson went so far as to try to ascertain if there were any office filing duties that the Petitioner could perform. He was unable to locate any light duty work for the Petitioner at this time. Joe Jacobson took annual leave in early June and while he was on annual leave, he received a call from his employer, (apparently Cherri Linn) around June 10th or 11, 2004, requiring him to come back to work because the job force reduction lay-off was going to be imposed on the Petitioner and his presence as his supervisor was apparently needed. On June 11, 2004, the Petitioner was called and told to report to work on Monday morning, June 14, 2004. On Monday the Petitioner was called in to a meeting with Joe Jacobson and Tim Carlisle and told of his lay-off. He was immediately required by the Department's Inspector General, Tim Carlisle, to take boxes and pack up his belongings and to leave the premises. Carlisle helped him pack his belongings and ushered him off the Respondent's premises. The Petitioner maintains that he did not know of his lay-off until that same day, which happened to be his fifty-fifth birthday. He was placed on leave with pay until June 30, 2004, his actual termination date. In July of 2004, apparently on or about July 2, 2004, he filed a formal written complaint to the Chief Inspector General regarding his concerns and feared health consequences of the operation of the bulb crushing machine. On or about July 20, 2004, Mr. Forehand visited a walk-in medical facility because he contends he was experiencing shortness of breath, chest pains, and tightness in his chest. He attributed these symptoms to use of the bulb crusher back in March and earlier. He testified that he was diagnosed with silicosis and that he physician determined that he could not tolerate walking 30 to 60 minutes at a time or lifting more than 15 or 20 pounds. Neither this physician nor any other testified, nor was non-hearing medical information admitted into evidence in this regard. Interestingly, Mr. Forehand's testimony indicates he was diagnosed with a heart condition, apparently based on these symptoms, and in late 2004 underwent insertion of an arterial stint. The Petitioner thus complained to his supervisors beginning in about early March 2004, concerning the fears he had about the results of the machine operations. He complained verbally to DEP in early May of 2004, but made no written formal complaint, to any agency or person, until after his termination in July 2004. The Petitioner was not asked to participate in an investigation, hearing or inquiry concerning the operation of the bulb crushing machine and made no written complaint to any supervisory officials of the Respondent, who could then themselves submit a complaint to the Inspector General or to the Human Relations Commission. In fact, in his own testimony the Petitioner admits that he made a written complaint in July of 2004. In an apparent effort to show that the Respondent's proffered non-discriminatory reason for his termination was pretextual, the Petitioner advanced testimony from a number of witnesses, including himself, which he maintains shows a pattern and practice by the Respondent of retaliating against, and, if necessary, effectively firing older, disabled employees or employees who complain of safety hazards. In this regard, of the five positions selected to be eliminated in the job force reduction of 2004, four had incumbents when the decision was made. All four of those incumbents were over 40 years of age. Two of those four positions, however, became vacant before they were eliminated by the job force reduction. Ms. Ashraf Achtchi was fired by the Respondent before her position became officially eliminated in the job force reduction and Preston Booth voluntarily resigned from his position for unknown reasons. Ms. Achtchi testified to the general effect that she felt she had been discriminated against because of being ill and under medical treatment, yet she was still singled out (in her view) for being absent or tardy. Although the record may establish that she is over 40 years of age, there is no persuasive evidence that she suffered from a legally cognizable disability as that condition or term is defined below, even if she was under a doctor's care, was ill, and had frequent tardiness or absentness due to illness or a doctor's visit during her employment tenure. In any event, other than her own subjective opinion and Mr. Forehand's speculations based upon hearsay, there is no persuasive, competent evidence to show that she was terminated for any reasons based upon an unproven disability, her age or due to any retaliation regarding any protected status within the purview of Chapter 760, Florida Statutes. The Petitioner maintains that both he and Mr. Feizi were over 40 and disabled. Whether or not the Petitioner established proof of disability will be dealt with in the conclusions of law below. Mr. Feizi apparently suffered from a disease of the nervous system (AMS) and was confined to a wheel chair much of the time. It may thus be inferred that, for purposes of the legal elements of disability referenced below, that Mr. Feizi was disabled. Other than his subjective opinion and Mr. Forehand's subjective testimonial speculation, based upon hearsay, however, there is no competent, persuasive evidence concerning the reasons Mr. Feizi was terminated, other than that his position was simply eliminated through a job force reduction in the manner described in the above findings of fact. There is no persuasive, credible evidence to show that he was dismissed from employment based upon his age or due to his disability or as retaliation, nor was that proven with regard to Ms Achtchi. Other employees testified concerning alleged retaliatory conduct on the part of the Respondent. Sid Palladino and John Corbin opined that they had been retaliated against for making safety complaints of various kinds, as well as for testifying on behalf of the Petitioner in this proceeding. Ralph Cleaver testified that he left the Department to work for the Department of Agriculture because he had filed a "whistle blower" claim and that the Respondent, in his view, would use retaliation for his taking such an action. Barry McDaniel was 60 years old when hired and, abruptly soon thereafter, was asked to resign, according to his testimony, without any given reason. He testified that Mr. Sibille had him read a book purportedly advocating hard work and the hiring of young workers. The book was entitled "The Go Getter." According to Mr. McDaniel's testimony, the book was required to be read by all employees under Mr. Sibille's supervision. There was no evidence, however, that although Mr. McDaniel was asked to resign, that any other employee was so treated. The book was not in evidence and the undersigned has only Mr. McDaniel's subjective testimony concerning his thoughts regarding the theme and content of the book, in relation to his subjective belief that his age was the reason he was asked to resign. He testified that his immediate superior, who was also 60 years of age, was "gone" shortly thereafter. There is no evidence of any circumstances or facts concerning why Mr. McDaniel or his supervisor were actually asked to resign or in the case of his supervisor, may have voluntarily resigned. There are insufficient facts and circumstances established by the evidence to show any discriminatory motive related to age or otherwise with regard to the terminations of either of these men. Sid Palladino testified that he was reprimanded for not wearing his uniform and that other employees were not reprimanded when they had not worn uniforms either. He also testified that he felt he was retaliated against for making safety complaints as well as for testifying in support of the Petitioner in this proceeding. In fact, his reprimand was rescinded shortly after it was given him when it was learned that he had not worn his uniform or worn it properly because the uniform supplied him did not fit. Additionally, other than their anecdotal comments in their testimony, there is no persuasive evidence that Mr. Palladino or Mr. Corbin were retaliated against for complaining of safety issues and the same is true of Ralph Cleaver opining that he was about to be retaliated against for being a whistle blower, and Barry McDaniel as well. There is simply no definitive, credible proof, other than these employees' own subjective opinions, upon which to base a finding that there was any pattern and practice of retaliation against employees for complaining about safety hazards, for supporting other employees' discrimination claims, for making whistle blower claims, for being disabled or on account of their age, which could be persuasively probative of the discrimination and retaliation claims of the Petitioner.1/ In this connection, it is also found that there are a number of remaining employees in the Petitioner's division, who were his age or older. Indeed, Mr. Robert Smith had retired and then was later re-hired by the Department and the Division after suffering at least one episode of injury and medically prescribed light duty. Likewise, there are an unknown number of disabled or physically impaired persons remaining employed by the Department, after the dates and circumstances occurred with regard to the Petitioner's discriminatory claims. At least two of them testified in this proceeding. These facts belie the existence of a systematic policy or practice of eliminating employees over age 40 or of Mr. Forehand's age or older, or those who might be disabled or suffering from physical or medical impairments.
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 Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of August, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 2006.
The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating or retaliating against Petitioner based on an alleged disability.
Findings Of Fact Petitioner was hired by Respondent as a Maintenance Technician III in March 2007. He held that position until his employment ended in January 2009. Petitioner was responsible for performing maintenance duties at two of Respondent's properties. The Majestic Sun is a 96-room, 10-story high-rise. Beech Street has 48 units in 24 two-story buildings. Both properties are located in Destin, Florida. A Maintenance Technician III is required to perform a wide range of maintenance duties. The position involves the following: (a) moving and lifting furniture, refrigerators, stoves, televisions, and washers and dryers; (b) stooping and kneeling to repair toilets, sinks, water heaters and air conditioners; (c) climbing on ladders to change light bulbs, repairing ceiling fans and performing other work; and (d) climbing stairs. The written Job Description Summary for the Maintenance Technician III position describes the physical requirements as follows: “Lift and carry up to 50 pounds; stand, sit and walk for prolonged periods of time; climb up and down several flights of stairs; frequent reaching, stooping, bending and kneeling; manual dexterity and mobility; extensive prolonged standing and walking.” Petitioner injured his knee in a job-related incident on September 6, 2008. He was treated at the Destin Emergency Care Center and placed on restrictions requiring “no work for now.” He was unable to work for approximately a week and a half. On September 17, 2008, Petitioner was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing medical restrictions of no lifting, pushing or pulling greater than 10 pounds, and no ladders or stairs for four weeks. With those restrictions, Petitioner returned to work on light duty on September 18, 2008. While on light duty, Petitioner was given only those functions of his job that did not require him to exceed his medical restrictions. Other employees had to perform all of Petitioner’s other functions. Petitioner's work restrictions were extended for another four weeks by a Workers’ Compensation Uniform Medical Treatment Status Reporting Form dated October 15, 2008. The October 15 form imposed the same medical restrictions as the September 17 form. Petitioner aggravated his knee injury approximately a week later. On October 22, 2008, he was given a Workers’ Compensation Uniform Medical Treatment Status Reporting Form imposing the following work restrictions: (a) desk duty only; no lifting, pushing, or pulling at all; and (c) no standing or walking for more than 15 minutes at a time. Petitioner returned to work for a day or two after being restricted to desk duty. Respondent, however, had no desk-duty position available for him, so Petitioner was placed on a leave of absence beginning October 24, 2008. Petitioner requested leave under the Family Medical Leave Act (FMLA). His request was denied on November 21, 2008, because he did not provide all of the required information. The obligation to provide that information is the employee’s. FMLA leave was denied not by Respondent but by Cigna, which is a third-party administrator for these benefits. Because FMLA leave had been denied, Petitioner’s employment was protected from termination for only 30 days from the date he went on leave, through November 24, 2008. Employees receiving workers’ compensation benefits are not protected from termination. If a worker is not on FMLA leave, Respondent's policy is that he or she may be terminated after 30 days of leave. Even though Respondent could have terminated Petitioner after November 24, 2008, it did not do so. Petitioner was medically restricted to desk duty throughout November and December 2008. He remained on a leave of absence during that time and began receiving workers’ compensation benefits from the date his leave of absence commenced. On December 16, 2008, Petitioner’s supervisor, John Diaz, e-mailed the Assistant Resort Manager at the Majestic Sun to ask about Petitioner’s status. Mr. Diaz had hired a temporary employee to cover for Petitioner while he was on leave. The cost of the temporary employee was significantly more than the cost of a regular employee. Mr. Diaz was concerned about the impact of the temporary help on his budget. Mr. Diaz also was concerned about the lack of information that he had received regarding the date Petitioner would return to work. Mr. Diaz's inquiry was forwarded to Raina Ricks, a Human Resources Generalist in Respondent’s Human Resources (HR) Department. Ms. Ricks responded on December 16 and 18, 2008, reporting that Petitioner’s physician had recommended surgery. She expected to have information about his surgery schedule and recovery period within a few days. The next day, December 19, 2008, Ms. Ricks e-mailed Melanie Doubleday, an Analyst in Respondent’s HR Department, to ask about Respondent’s policy on the length of time an employee can remain on active status and not be terminated while unable to work due to a job-related injury. Ms. Doubleday is located in Respondent’s office in Orlando, Florida. Ms. Ricks asked Ms. Doubleday at what point Petitioner would possibly be terminated if he could not return to work soon. Ms. Doubleday responded on December 22, 2008, providing Respondent’s approved guidelines for processing workers’ compensation injuries. She explained that if the employee is eligible for FMLA, they would remain on workers’ compensation for the duration of their FMLA leave and not be terminated during that leave. If not eligible for FMLA, the employee would receive 30 days of leave. Ms. Ricks updated Mr. Diaz and Chrysse Langley, the Resort Manager, by e-mail the following day, December 23, 2008. Ms. Ricks explained that, since Petitioner’s FMLA leave had been denied, he was subject to termination 30 days following the commencement of his leave on October 24, 2008. Ms. Ricks had also been told by Petitioner’s workers’ compensation caseworker that they still did not have an exact date for Petitioner’s surgery, but that once the procedure was complete, he should be able to perform his normal job duties without restrictions within two to four weeks, or six weeks at the most. Ms. Ricks asked Mr. Diaz and Ms. Langley for their thoughts on terminating Petitioner. Mr. Diaz responded later that day, stating that he was “not trying to have [Petitioner] terminated.” Mr. Diaz's concern was that he had not received any information about when Petitioner would be required to return to work, and Petitioner himself did not seem particularly motivated to return. If Petitioner could return to work without restrictions within eight weeks, Mr. Diaz was prepared to “live with that.” Ms. Langley also responded later that day and confirmed that she and Mr. Diaz both wanted to keep Petitioner, if feasible. She also said that Respondent should proceed with hiring the temporary employee who had been covering for Petitioner during his absence, because Mr. Diaz was planning to terminate one of the other Maintenance Technician III’s for poor job performance. Subsequently, the temporary employee was hired to replace the other Maintenance Technician III. Two weeks later, on January 5, 2009, Ms. Doubleday e-mailed Ms. Ricks regarding Petitioner’s “exhausted leave of absence.” She said Petitioner was entitled to 30 days of leave and must then either return to active status or be terminated. For consistent application of Respondent’s policies, she instructed Ms. Ricks to send Petitioner a Return to Work/Administrative Termination Letter. Ms. Ricks’ employment with Respondent ended a few days later as part of a corporate restructuring. She did not send the “Return to Work” letter before she left. Denise Sniadecki, one of Respondent's HR Managers, assumed Ms. Ricks’ responsibilities. She did not know about Ms. Doubleday’s earlier e-mail or the denial of Petitioner's FMLA leave. Respondent’s HR system, Oracle, showed Petitioner's employment status as “Leave - Workers Comp - FMLA,” indicating that he was on FMLA leave, despite the denial of his FMLA application two months earlier. Ms. Sniadecki thus assumed Petitioner was nearing the end of his FMLA leave, which would have expired on January 24, 2009, 12 weeks after his medical leave began on October 24, 2008. Ms. Sniadecki e-mailed Ms. Doubleday on January 20, 2009, asking what letter she should send to Petitioner in light of the fact that his leave would soon be ending. After a further exchange of e-mails, Ms. Sniadecki e-mailed Ms. Doubleday on January 21, 2009, and explained that Petitioner was listed in Oracle as being on FMLA leave, that he had not been terminated after 30 days, and that she was just getting involved because of Ms. Ricks’ departure. She asked whether she should process Petitioner’s employment as having been terminated 30 days after his leave commenced on October 24, 2008. Ms. Doubleday responded later that day. She said that Petitioner’s status should be changed in Oracle to "WC/Non FMLA" and suggested he be terminated that day. Coincidently, Petitioner came to the workplace that same day, January 21, 2009, to drop off his latest Workers’ Compensation Uniform Medical Treatment Status Reporting Form. Petitioner's knee surgery had taken place a week to 10 days earlier. The form he brought in on January 21, 2009, imposed job restrictions of no lifting, pushing or pulling greater than 10 pounds, no ladders, and limited kneeling or squatting for four weeks. Mr. Diaz informed Ms. Sniadecki of Petitioner’s new work restrictions by e-mail that day. Mr. Diaz was not comfortable having Petitioner return to work on light duty because the medical restrictions severely limited his ability to do what the job required and he might further injure his knee. Mr. Diaz assumed Respondent still planned to administratively release Petitioner later that week. Mr. Diaz copied Ms. Langley on the e-mail. Ms. Langley responded a short time later, stating that there was no position that would fit Petitioner’s latest job restrictions. Ms. Sniadecki responded shortly afterward and told Mr. Diaz that Petitioner “will not be returning as we do not have light duty available for him.” Petitioner was terminated effective January 24, 2009. Ms. Doubleday and Ms. Sniadecki made the decision to terminate Petitioner based solely on the application of company policy. Mr. Diaz was not involved in the decision to terminate. Ms. Sniadecki sent Petitioner a letter dated January 26, 2009, stating he had been administratively terminated for failure to return from leave because he could not perform the essential functions of the Maintenance Technician III position with his medical restrictions. The reference to failure to return from leave referred to Petitioner’s inability to return to work without medical restrictions. Petitioner was invited to reapply for employment upon receiving a release to return to work. All of this was consistent with Company policy. Petitioner continued to be subject to medical restrictions for six months after his employment with Respondent ended. According to Workers’ Compensation Uniform Medical Treatment Status Reporting Forms given to Petitioner in March and April 2009, he was subject to restrictions against lifting, pushing, or pulling greater than 20 pounds until the end of July 2009. The form given to him on July 29, 2009, stated he had reached maximum medical improvement and imposed a permanent restriction against pushing, pulling or pulling greater than 50 pounds. He was given a two percent permanent impairment rating of the body as a whole. Petitioner never reapplied to Respondent for employment. He continued to receive workers’ compensation benefits until he reached maximum medical improvement. At the time of the hearing, Petitioner had found other employment. Petitioner presented no credible evidence showing that he has a disability for purposes of the Americans with Disabilities Act (“ADA”) or the Florida Civil Rights Act (“FCRA”). To the contrary, he testified that, as of January 21, 2009, the date he attempted to return to work, he believed he could do everything the job required, with the possible exception of squatting down. Petitioner failed to present persuasive evidence that he has any impairment that substantially limits one or more major life activities. Petitioner likewise failed to demonstrate that he was a qualified individual for purposes of the ADA or FCRA. At the time he was terminated, Petitioner was subject to medical restrictions prohibiting him from lifting, pushing or pulling greater than 10 pounds, using ladders, and kneeling or squatting for more than a limited period of time. These are essential functions of the Maintenance Technician III position. The greater weight of the evidence demonstrates that Petitioner was unable to perform the essential functions of the job at the time he was terminated, either with or without a reasonable accommodation. Petitioner presented no evidence that he engaged in any protected activity that would support a retaliation claim. When asked why he thought Respondent had retaliated against him, Petitioner responded that it was “because of his injury” and “because [Mr. Diaz] was upset because he didn’t have the staff to do the job.” Even if this testimony is accepted as true, it does not constitute protected activity and will not support a claim for retaliation. In addition, Petitioner failed to demonstrate a causal connection between his termination and any protected activity. The greater weight of the evidence demonstrated that Petitioner was terminated because he could not perform the essential functions of the Maintenance Technician III position, not because he engaged in any sort of protected activity. Petitioner failed to prove any facts to support a retaliation claim. Petitioner attempted to demonstrate that other injured employees received more favorable treatment than he did. None of the alleged comparators identified by Petitioner was similarly situated to him. One of them had a knee injury, but her position required that she work at a desk, so the injury did not interfere with her ability to perform the essential functions of her job. The other alleged comparators were maintenance technicians, but none of them had an injury like Petitioner's that required a lengthy leave of absence. None of them was subject to medical restrictions limiting them to desk duty for even a short period of time. Even if the other employees were similarly situated to Petitioner, such a showing would not support a claim of discrimination or retaliation. Petitioner would need to present evidence demonstrating that non-disabled employees were treated more favorably than he was, and he did not do that. In short, Petitioner failed to identify any comparators that would support his claim for discrimination or retaliation.
Recommendation Based upon the foregoing 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 18th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 2010. COPIES FURNISHED: Derek Griffin 1136 Sweetbriar Station Fort Walton Beach, Florida 32547 Jae W. Im, Esquire Wyndham Vacation Ownership 8427 South Park Circle, Suite 500 Orlando, Florida 32819 W. Douglas Hall, Esquire Carlton Fields, P.A. Post Office Drawer 190 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in the case is whether the Petitioner's employment position was properly reclassified from Career Service to Selected Exempt Service pursuant to Section 110.205(2)(x), Florida Statutes (2001).
Findings Of Fact At all times material to this case, the Petitioner was employed by the Respondent as a Vocational Rehabilitation Supervisor. As a Vocational Rehabilitation Supervisor, the Petitioner was responsible for supervising the performance of counselors and other employees in the Manatee County office. The Manatee County office employed nine persons, including five Vocational Counselors and four clerical and administrative employees. The position description applicable to the Petitioner's employment provided that he was responsible for hiring, evaluating, training, and managing employees in the office. He was responsible for managing and coordinating the fiscal resources available to the office. He was responsible for recruitment of new employees, and for the performance evaluation of existing employees. The Petitioner developed criteria used to hire new employees, created interview questions, and participated in the interview process. The Petitioner's employment recommendations were always approved by his supervisor. The review of the Petitioner's job performance focused primarily on his success in supervising his employees. He received an evaluation of "excellent" and "effective" in such categories as planning based on the missions and goals of the agency, implementation of quality control standards, efficient work organization, budget management, leadership, staff management and discipline, and effective evaluation of subordinates. As part of his supervisory responsibilities, the Petitioner was responsible for approval of all leave requests and travel reimbursement. He was also responsible for the employee evaluation process, including recommending staff members for performance based bonuses. The Petitioner was also responsible for any disciplinary action taken related to his subordinate employees. There is no evidence that the Petitioner did not perform his duties as described by the applicable position description. At the hearing, the Petitioner acknowledged that he was the supervisor for the office and its employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Education enter a Final Order finding that the "Vocational Rehabilitation Supervisor" position held by Britton Townsend on July 1, 2001, was properly classified into the Selected Exempt Service. DONE AND ORDERED this 13th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of April, 2004. COPIES FURNISHED: Margaret O'Sullivan Parker, Esquire Department of Education Office of the General Counsel 1244 Florida Education Center Tallahassee, Florida 32399-0400 Britton Townsend 331 11th Avenue, West Palmetto, Florida 34221 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. Hyde Park Plaza, Suite 350 South Hyde Park Boulevard Tampa, Florida 33606 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street 1244 Turlington Building Tallahassee, Florida 32399-0400
The Issue Whether the petitioner abandoned his position and resigned from the Career Service under the facts and circumstances of this case.
Findings Of Fact 2. On April 14, 1983, petitioner received a copy of the "Employee Handbook" published by the Department of Transportation. Job abandonment is explained in the Employee Handbook as follows: After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current policy. The petitioner was absent without authorized leave on April 13, 14 and 15, 1987. Petitioner did not appear for work on those days and did not call the office to explain or report his absence. On April 16, 1987, petitioner called the office at approximately 8:00 a.m. to say that no one had come to pick him up. A fellow employee sometimes furnishes petitioner's transportation. By the time petitioner called in to work, he had been absent three consecutive days without authorization. Petitioner had previously been warned about his absenteeism. On March 17, 1987, petitioner was placed on unauthorized leave without pay due to his failure to report to work or notify his supervisor. On March 18, petitioner was sent a letter notifying him that he had to report by March 24, 1987, or he would be dismissed. Thus, petitioner was well aware that he had to notify his supervisor of any absences.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered sustaining the action of the Department of Transportation and finding that Fred P. Noble abandoned his position and resigned from the Career Service. DONE AND ENTERED this 28th day of December, 1987, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of December, 1987. COPIES FURNISHED: Department of Transportation Haydon Burns Building, MS-58 Tallahassee, Florida 32399-0450 Mr. Fred P. Noble 2516 Queen Street South St. Petersburg, Florida 33705 Pamela Miles, Esquire Assistant General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis M. Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Respondent properly reclassified Petitioner's employment position from Career Service status to Selected Exempt Service status.
Findings Of Fact In 2001, the Florida Legislature enacted a substantial revision to Florida's civil service system commonly referred to as the "Service First" initiative. See Ch. 2001-43, Laws of Fla. Among the significant changes, the revision redefined the parameters of the Selected Exempt Service classification for public employees. In essence, the Selected Exempt Service classification was expanded to include most of the supervisory level employee classifications which had previously been identified as part of the Career Service classification. The statutory changes brought about by the Service First initiative became effective on May 14, 2001. Id. at 15. Petitioner was employed under the Career Service classification by the Department of Children and Family Services since 1990, and served as a Public Assistance Specialist Supervisor, position number 64817, in the Suncoast Region. In light of Section 110.25(2)(x), Florida Statutes (2003), Respondent reclassified Petitioner's Career Service position to Selected Exempt Service status in July 2003. Petitioner's Career Service position description remained unchanged when it was reclassified to Select Exempt Service status. The position description specifically identifies supervisory responsibilities and states: Duties and Responsibilities: This is a professional position primarily responsible for the supervision of a public assistance unit for determining the initial and ongoing eligibility of applicants for programs such as Food Stamps, Medicaid, ICP, OSS, Waiver, etc. More specifically, pursuant to the written position description, the Public Assistance Specialist Supervisor is required to "supervise the appointment and case management system" to ensure that subordinates are correctly processing applications. The position is responsible for evaluating all scheduled work and appropriately reassigning work. In addition, pursuant to the position description, the supervisor shall analyze work reports provided by subordinate employees, educate staff, schedule case reviews with supervised employees, and conduct monthly conferences with each employee. The supervisor is obligated to review their performance, identify their strengths and weaknesses, and provide supervisory assistance in achieving acceptable standards. The supervisor is required to prepare written evaluations, conduct staff meetings, and develop in-service training for under achieving employees. Petitioner's actual duties and work-load were consistent with the written position description. Petitioner interviewed applicants and recommended candidates for job vacancies in his area. He supervised subordinates, recommended and levied appropriate corrective action, and organized and distributed work. Petitioner set organizational goals, motivated employees, trained and developed their technical skills, resolved employee problems, and implemented performance and quality control standards. Petitioner was responsible for ensuring that the staff assigned to him maintained at least a 90 percent accuracy rate on case reviews processed and a 96 percent processing rate on unit assigned client applications. Petitioner admits that his supervisory duties consumed most of his time. He acknowledges that client interviews were not part of his normal duties and concedes that he regularly supervised employees, provided feedback to employees, and performed evaluations. In addition, he agrees that his recommendations regarding discipline were usually followed. Petitioner routinely led staff meetings with his subordinates and frequently met with them individually. He controlled work-flow and made changes as he deemed appropriate within his department. Petitioner admits that he functioned as the supervisor in an area that was distinct and separate from the other units. The evidence presented at hearing establishes that Petitioner's written and actual duties were supervisory in nature, and he spent the majority of his time performing those duties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order approving Petitioner's reclassification. DONE AND ENTERED this 31st day of March, 2004, in Tallahassee, Leon County, Florida. S WILLIAM R. PFEIFFER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of March, 2004. COPIES FURNISHED: Joseph A. Conley, Jr. 8511 Sunflower Lane Bayonet Point, Florida 34667 Jennifer Lima-Smith, Esquire Department of Children and Family Services 9393 Florida Avenue, Room 902 Tampa, Florida 33612-7236 Maria N. Sorolis, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner can rescind his election to join the Deferred Retirement Option Program and return to the status quo ante such election so that he can opt instead to participate in the Public Employee Optional Retirement Program.
Findings Of Fact Petitioner Dennis Valdez ("Valdez") began working for Miami-Dade County ("County") as a paramedic/firefighter in 1979. As a county employee, he became a member of the Florida Retirement System, which is administered by Respondent Department of Management Services, Division of Retirement ("Division"). Firemen such as Valdez are assigned to the Special Risk Class, whose members are eligible for enhanced retirement benefits under the FRS. One advantage of being in the Special Risk Class is that the member's normal retirement date arrives after 25 years of service, rather than 30. Each year the County sends its employees a statement showing the value of their employment benefits, including retirement benefits. Valdez received such a statement for 2004. The statement informed him, among other things, that the County offered "pre-retirement counseling" to help "plan for those years ahead." In pertinent part the statement explained: Miami-Dade offers you assistance in applying for retirement with the Florida Retirement System, in reviewing your options and in selecting appropriate payment options for your Deferred Compensation account. Contact the Employee Benefits Unit . . . before you expect to retire to request an estimate of your FRS benefit. Early in 2004, Valdez began thinking about retirement because he would have 25 years of service at the end of July 2004. He decided to make an appointment for pre-retirement counseling through the County's Employee Benefits Unit. It was arranged for him to meet with Marti Garcia ("Garcia"), a Senior Employee Benefits Specialist, on April 15, 2004. When Valdez met with Garcia as scheduled on April 15, he was a participant in the defined benefit program ("Pension Plan") of the Florida Retirement System.1 He was also eligible to participate, upon reaching his normal retirement date, in the Deferred Retirement Option Program ("DROP"). A member who elects to participate in the DROP is allowed to continue working (and drawing his salary) for up to 60 months after his retirement date, during which time the member's pension is paid into a trust fund where it earns interest at a fixed statutory rate. At the conclusion of the member's participation in the DROP, the Division distributes to him the retirement benefits that have accrued. Valdez told Garcia that he was concerned about providing for his family, including his wife, who is younger than he, and their young children. Though Valdez had just turned 53, he advised Garcia that he did not want to remain employed as a fireman for much longer. He also asked Garcia if he could control the investment of his retirement benefits. Garcia explained to Valdez that, if he entered the DROP, he would be able eventually to invest his DROP benefits, when he terminated his employment with the County, at which point the Division would distribute the funds which had accumulated for his benefit while he was in the DROP. In Garcia's presence on April 15, 2004, Valdez signed an application to participate in the DROP, using the Division's required Form DP-11. The application specified a DROP begin- date of August 1, 2004, and a DROP termination-date of July 31, 2009. At the same time, Valdez executed a notice of election to participate in the DROP, using the Division's Form DP-ELE. The notice likewise specified a DROP begin-date of August 1, 2004, and a DROP termination-date of July 31, 2009. Valdez signed the application and the notice before a notary public (Garcia). Each form required Valdez to acknowledge that he could not "add additional service, change options, or change [his] type of retirement after the DROP begin date." Garcia counter-signed both instruments and submitted them to the Division. Thereafter the Division sent Valdez an Acknowledgement of DROP Application and/or Notice of Election Form confirming the Division's receipt of his DROP application paperwork on April 21, 2004. Valdez entered the DROP in August 2004. Valdez claims that some months later, he discovered that the Florida Retirement System offers another plan that provides participants a menu of market-based investment products and options in which they can invest their retirement benefits. Valdez decided that he preferred this plan——which is called the Public Employee Optional Retirement Program ("Investment Plan")——to the Pension Plan and the DROP. Therefore, in November 2004, Valdez wrote a letter to Garcia requesting that he be allowed to quit the DROP and switch to the Investment Plan. Garcia responded in writing to Valdez's letter, telling him that what he had requested was not an available option. Valdez then took his case directly to the Division, which turned him down as well. The Division's denial of Valdez's request to rescind his decision to participate in the DROP is the preliminary agency action that opened the door to this formal administrative proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Valdez's request to rescind his election to participate in the DROP. DONE AND ENTERED this 26th day of September, 2005, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2005.
The Issue The issue to be determined is whether Respondent complied with coverage requirements of the workers' compensation law, Chapter 440, Florida Statutes. A determination of whether Respondent functioned as an employer is a preliminary issue to be resolved.
Findings Of Fact Petitioner is the agency of state government currently responsible for enforcing the requirement of Section 440.107, Florida Statutes, that employers secure the payment of compensation for their employees. Respondent works in the fence construction industry and employs four people. Petitioner's investigator identified three people preparing a worksite for the erection of a privacy fence at 3000 Majestic Oaks Lane South in Jacksonville, Florida. The investigator then contacted Respondent and confirmed that the three identified individuals in addition to Respondent, were employed by Respondent for a total of four employees. The investigator determined none of the employees had workers’ compensation exemptions nor had Respondent secured the payment of workers’ compensation to his employees. On April 27, 2005, the investigator served a SWO on Respondent. The SWO required Respondent to cease all business operations in Florida. At the same time, the investigator served a Request for Business Records for Penalty Calculation on Respondent, requesting payroll records from Respondent for the period April 27, 2002, through April 27, 2005 (the audit period for penalty calculation). Respondent provided no records to the investigator. On May 23, 2005, the investigator determined 520 days had passed between the beginning of the audit period and September 30, 2003, and the penalty for noncompliance during this period was $52,000.00. The investigator also determined that during the period October 1, 2003, through the end of the audit period, the statewide average weekly wage paid by employers was $651.38; Respondent had four (4) employees; the imputed weekly payroll for Respondent’s employees was $320,848.00; using approved manual rates Respondent should have paid $97,969.40 in workers’ compensation premium; and the penalty for noncompliance during this period was calculated to be $146,954.12. On May 26, 2005, Investigator Bowman served the Amended Order of Penalty Assessment on Respondent. The Amended Order assessed Respondent with a penalty for the entire audit period in the amount of $198,954.12. The investigator obtained records created by Respondent demonstrating Respondent placed a bid on a job on June 1, 2005, and Respondent completed the job on July 1, 2005. On July 19, 2005, the investigator served a Corrected Amended Order of Penalty Assessment on Respondent, which assessed a penalty in the amount of $3,000.00 for violating the terms of the SWO. Respondent violated the SWO on two separate days, the day of the bid and the day the work was completed. No competent substantial evidence was presented regarding intervening business operations.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order affirming the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Corrected Amended Order of Penalty Assessment, requiring Respondent to pay a penalty in the amount of $200,594.12 to Petitioner, and requiring Respondent to cease all business operations in Florida. DONE AND ENTERED this 15th day of September, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 2005. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers Compensation 200 East Gaines Street Tallahassee, Florida 32399-422 Martin D. Snyder 10367 Allene Road Jacksonville, Florida 32219 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Carols G. Muniz, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether the Stop Work Order issued on July 27, 2007, and the Amended Order of Penalty Assessment were lawful.
Findings Of Fact The Division is a component of the Department of Financial Services. The Department is charged with the administration of portions of the "Workers' Compensation Law." Versa-Tile is a corporation headquartered in Mary Esther, Florida. Versa-Tile is engaged in flooring, which is a construction activity. Michelle Newcomer is an Insurance Analyst II with the working title of Workers' Compensation Compliance Investigator. She maintains an office in Pensacola, Florida. It is her job to travel to work sites and to verify compliance with the Workers' Compensation Law. She is authorized by the Division to issue an SWO and to calculate and assess penalties. On July 24, 2007, Ms. Newcomer was conducting compliance investigations at random sites in the Alys Beach area of Walton County, Florida. While doing so she noticed three individuals in the garage at the rear of a house at 23 Whitby. They were removing tools from a toolbox and "working." Ms. Newcomer identified the men as Adrian Womack and Kent Degallerie. The third man on the site was named "Barker." Barker asserted that he was not doing any work, but was there just to give the men a ride. He was deemed not involved in the work being accomplished at the site. Ms. Newcomer interviewed Adrian Womack and Kent Degallerie. They both told her that they were exempt officers of Versa-Tile. It is found as a fact that the 2006 For Profit Corporate Annual Report of Versa-Tile signed on April 26, 2006, and filed with the Department of State on May 1, 2006, listed Adrian Womack and Kent Degallerie as corporate officers of Versa-Tile. They were not corporate officers of Versa-Tile prior to April 26, 2006. Adrian Womack worked for Versa-Tile from July 29, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Kent Degallerie worked for Versa-Tile from May 6, 2005, until April 25, 2006, as an employee. He was not an officer and was not, and could not be, exempt. Nicholas Womack, who was not present at the Alys Beach site, is listed therein as president of Versa-Tile and has been exempt during all times pertinent. As corporate officers, Adrian Womack and Kent Degallerie could be exempt from the usual requirement that workers be covered by workers' compensation insurance even though they were also employees of Versa-Tile who were paid wages. Ms. Newcomer obtained their full names and social security numbers so that she could verify their claimed exemption. She determined from the Department's Coverage and Compliance Automated System that there were no records of exemption being obtained for them. Ms. Newcomer confirmed with an examiner in the Pensacola office that Adrian Womack and Kent Degallerie were not on the list of exempt persons. She issued a Request for Production of Business Records dated July 24, 2007. She personally served these documents on Adrian Womack and Kent Degallerie. She issued an SWO, dated July 27, 2007, and personally served it on Nicholas Womack. If a person is a ten percent owner of a corporation or limited liability company they are entitled to obtain an exemption from the Department. An exemption is obtained by completing the "Notice of Election to be Exempt" form. This form when properly completed and accompanied by certain required documents, a $50 application fee, and submitted to the Division, will cause the Division to grant an exemption. If the Department determines that a person is exempt upon receiving a properly submitted form and payment, the Department will issue a card reflecting exemption. Neither Adrian Womack nor Kent Degallerie had such a card on July 24, 2007. During all times pertinent, the Department had no record indicating it had received any payment from Nicholas Womack, Adrian Womack, or Kent Degallerie that would have been tendered on behalf of Adrian Womack or Kent Degallerie. On July 27, 2007, Ms. Newcomer met with Nicholas Womack, president of Versa-Tile in her office in Pensacola and personally served him a Request for Production of Business Records. Later, Nicholas Womack provided employment records to Ms. Newcomer. On July 30, 2007, the Department and Versa-Tile entered into an agreement that permitted Versa-Tile to go back to work. Using workers' compensation class code 5348 for employees Adrian Womack and Kent Degallerie, Ms. Newcomer correctly calculated the premium that should have been paid, if they were mere employees, as $8,455.56, and multiplied that figure by the statutory penalty of 1.5. She correctly determined the total to be $12,683.35. The parties stipulated that to the extent the figure applies, it is correct. Nicholas Womack at all times pertinent had an exemption. Adrian Womack and Kent Degallerie were granted exemptions by the Department on July 30, 2007. These were the first exemptions from workers' compensation coverage that they had ever received while in a business relationship with Versa- Tile. The Division receives from 90,000 to 96,000 construction exemption applications yearly. They also receive between 30,000 to 35,000 non-construction exemption applications annually. The applications may be provided by applicants to the Department by hand-delivery at a field office or to the Department headquarters in Tallahassee, or by mail to a field office or to the Department headquarters in Tallahassee. Errors may occur in this process because of mistakes or omissions in the applications filed by the applicant or because of data entry errors by personnel in the Department. However, the process is sufficiently simple and automated that usually, when a complete application is filed, the exemption issues, and the applicant is, thereafter, provided a card reflecting the exemption via mail. There are ten field offices in the state to which applicants may file applications for exemptions. The field office in Panama City, Florida, at least the portion that accepted exemption applications, closed in 2005. However, the forms still listed Panama City as an address to which one might mail an application for exemption. The president of Versa-Tile, Nicholas Womack, has filed for and obtained three exemptions since he created Versa- Tile. Prior to incorporating Versa-Tile, he owned another business by the name of Nicholas Womack Flooring, Inc. He previously had two officers, Michael Smith and Mitchell Smedley, working with him at Versa-Tile, but he removed them as corporate officers so that Adrian Womack and Kent Degallerie could be corporate officers. Mr. Smith's exemption was revoked April 27, 2006, by the filing of a Notice of Revocation of Election to be Exempt with the Department. This roughly coincided with the naming of Adrian Womack and Kent Degallerie as corporate officers. Department of State corporate records, as of May 1, 2006, reflected that Versa-Tile had three officers: Nicholas Womack, Adrian Womack, and Kent Degallerie. In order to obtain a certificate of exemption, Nicholas Womack filed the appropriate form with the Department, along with proof that he held a contractor's license, stock certificates, and $50.00. He followed this process on three occasions while president of Versa-Tile. The evidence of record reveals exemptions granted to Nicholas Womack on January 25, 2005, and May 18, 2006, while president of Versa-Tile. He claims not to ever have received a certificate evidencing exemption from the Department while president of Versa-Tile. Nicholas Womack testified that on only one of the occasions, when he was operating Nicholas Womack Flooring, Inc., did the Department mail him a card reflecting his exemption and stated that occurred in 2001 or 2002. Nicholas Womack understands that by not obtaining coverage under workers' compensation insurance he and the other two corporate officers of Versa-Tile would not be compensated should they be injured on the job. Nicholas Womack explained to Adrian Womack and Kent Degallerie that they were eligible for an exemption, and if they got an exemption and were injured, they would not be covered by workers' compensation insurance. Nicholas Womack testified that thereafter he helped the two men fill out the appropriate forms and ensured that all necessary attachments, including two money orders in the correct amount, were present and then mailed the applications, one in each envelope, to the Department's Panama City office. As soon as the applications were mailed, Nicholas continued allowing the men to work for Versa-Tile without waiting for the exemptions to be granted. Adrian Womack and Kent Degallerie first received exemption on July 30, 2007. Subsequent to July 30, 2007, Nicholas asked Adrian Womack if he had received an exemption card. Adrian Womack said that he had not. Adrian Womack and Kent Degallerie both stated that they had not received an exemption card after filing for exemption in July 2007. Nicholas Womack's testimony that he only received one certificate of exemption in seven years of enjoying an exempt status lacks credibility. Even considering that the Department is large and it annually processes huge amounts of paperwork, it is quite improbable that on six occasions they would fail to send Nicholas Womack a certificate. That being the case, Nicholas Womack's testimony that he mailed completed applications for Adrian Womack and Kent Degallerie to the Department's Panama City office and never received any type of response, when considered in concert with his other testimony, is not credible. It is a fact that Nicholas Womack, Adrian Womack, and Kent Degallerie were eligible for an exemption subsequent to April 26, 2006. If exempt, they were responsible for their own expenses should they suffer an injury while on the job. If they failed to get an exemption, they were likewise responsible for their own expenses should they suffer an injury while on the job. This situation is very different from that where an employer fails to obtain coverage for workers not having an ownership interest in the employer, as was the case with Versa- Tile prior to April 26, 2006.
Recommendation Based upon the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order requiring Versa-Tile and Marble, Inc., to pay a penalty of $12,683.35. DONE AND ENTERED this 25th day of January, 2008, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of January, 2008. COPIES FURNISHED: Kristian E. Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Michael James Rudicell, Esquire Michael J. Rudicell, P.A. 4303 B Spanish Trail Road Pensacola, Florida 32504 Daniel Sumner, General Counsel Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether the classification of Petitioner's position from career service to selected exempt service was appropriate.
Findings Of Fact On July 22, 2003, Petitioner received notice from the Department of Children and Family Services (DFCS or the Department) of a clear point of entry to challenge the reclassification of her position from career service to select exempt service. Petitioner filed a request for hearing on August 19, 2003, which apparently lay unaddressed for some time. On March 6, 2008, the Department issued an Order on Status, advising Petitioner that her request for hearing filed August 19, 2003, did not comply with Section 120.569(2)(c), Florida Statutes, or Florida Administrative Code Rule 28- 106.201(2). The Order directed Petitioner to file an amended request for hearing within 30 days or the case would be dismissed. On May 6, 2008, the Department entered a Final Order Closing File, indicating no response had been received to its Order on Status. On May 29, 2008, Petitioner wrote to the Department indicating that the Final Order Closing File was the first correspondence she had received from the Department, and that the documents had been sent to a wrong address, notwithstanding that the Department had been supplied the correct address. On July 18, 2008, the matter was referred to the Division of Administrative Hearings and an Initial Order was issued. No timely response was received to the Initial Order from either party, and the matter was duly noticed for hearing for September 30, 2008. On September 30, 2008, the hearing commenced as scheduled at 9:30 a.m. Respondent was present and ready to proceed. Petitioner was not present. The Division had, the day before, received a telephone call from Petitioner indicating that she might not appear, and she was advised of the need to either withdraw her request for hearing or request a continuance. The undersigned recessed the hearing to give Petitioner every opportunity to arrive. In addition, the undersigned questioned her assistant and checked the official docket of the Division of Administrative Hearings to determine if any document had been filed on the docket of the Division or any telephone call was received indicating Petitioner was delayed. No such communication had been received. Counsel for Respondent represented that he had not heard from the Petitioner in the days leading up to the hearing. In light of Petitioner's failure to appear, the hearing was adjourned at 10:03 a.m.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's request for hearing. DONE AND ENTERED this 6th day of October, 2008, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 6th day of October, 2008. COPIES FURNISHED: Amelia E. Kane-Crawford 144 Durance Drive Flintstone, Georgia 30725 Juan Collins, Esquire Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 George Sheldon, Interim Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 202 Tallahassee, Florida 32399-0700
