The Issue Whether the Petition for Relief from an unlawful employment practice was timely-filed, and if it was not timely-filed, is this cause barred?
Findings Of Fact Petitioner filed an undated Charge of Discrimination on the basis of "race and "age" with the Florida Commission on Human Relations (Commission). On June 21, 2000, the Commission issued its Notice of Determination: No Cause and mailed a copy thereof to Petitioner. Petitioner was required by Section 760.11(7), Florida Statutes, to request a formal hearing "within 35 days of the date of determination" of no reasonable cause, failing which the claim would be barred and the complaint dismissed. The Commission notified Petitioner of this 35-day deadline in its Notice of Determination: No Cause served on Petitioner on June 21, 2000. 5. Rules 60Y-5.004(5) and 60Y-4.007(2), Florida Administrative Code, provide that the Petition for Relief must be filed within 33 days of the date of a No-cause Determination which is served on a complainant by mail. The thirty-third day following the June 21, 2000, issuance of the No-cause Determination expired on Monday, July 24, 2000. The thirty-fifth day following the June 21, 2000, issuance of the No-cause Determination expired on Wednesday, July 26, 2000. The Petition for Relief was postmarked July 31, 2000, which is five days after expiration of the statutory filing deadline. The Petition was stamped-in by the Commission Clerk on Tuesday, August 1, 2000, which is six days after the statutory filing deadline. The certified copy of the Petition stamped-in by the Commission and its post-marked envelope show that the Petition for Relief was not timely-filed with the Clerk of the Commission. There has been no affirmative showing of excusable neglect by Petitioner.
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 20th day of October, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 2000. COPIES FURNISHED: James J. Dean, Esquire Ricky Polston, Esquire Polston & Dean, P.A. 106 East College Street Suite 900, Highpoint Center Tallahassee, Florida 32302-1836 Bobbi Debose 1129 Northeast 24th Street Gainesville, Florida 32641 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, 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 26th day of March, 1996.
Conclusions Having reviewed the administrative complaint dated April 20, 2010, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall pay an administrative fine in the amount of $7,500.00. The administrative fine is due and payable within thirty (30) days of the date of rendition of this Order. 3. A check should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Each party shall bear its own costs and attorney’s fees. 6. The above-styled case is hereby closed. DONE and ORDERED this 2 day of Movete- , 2010, in Tallahassee, Leon County, Florida. Elizab udek, Interim Secretary Agency for H Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Stacey E. Meyer, Esq. Corporate Counsel Brookdale Senior Living Inc. 6737 W. Washington Street Suite 2300 Milwaukee, Wisconsin 53214 (U. S. Mail) Lourdes A. Naranjo, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) John D. C. Newton, II Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail) Jan Milis Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Unit Manager Assisted Living Facility Unit Program Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the | method designated, on this the 3 day of a , 2010. Richard J. Shoop , Agency Clerk , Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 412-3630
The Issue Whether this case is properly before the Division of Administrative Hearings.
Findings Of Fact On or about April 2, 2004, the Florida Commission on Human Relations (Commission) forwarded a packet of papers, as more fully described below, to the Division of Administrative Hearings (Division). At the request of the parties, a disputed- fact hearing was scheduled for June 30, 2004 through July 1, 2004. The Charge of Discrimination in this cause bears a signature date of April 23, 2002. It states that the most recent alleged discrimination occurred in December 2001, and alleges race, color, and religious discrimination and retaliation. The copy of the Charge sent to the Division in the Commission's referral packet bears a Commission date-stamp of December 2, 2002. However, Respondent has provided a copy of the Charge, showing that it was first filed with the Commission on November 19, 2002, and the parties are in agreement that November 19, 2002, was the date of actual filing of the Charge with the Commission. The Charge filed with the Commission was accompanied by a cover letter dated November 14, 2002, and a "confidential" affidavit also dated November 14, 2002. On December 6, 2002, Respondent received the Commission's Notice of Petitioner's Charge of Discrimination. Thereafter, Respondent submitted its position statement with attachments to the Commission. The parties subsequently engaged in settlement discussions but were unable to come to terms.1/ On November 20, 2003, the law office representing Petitioner notified the Commission that settlement was not possible and that Petitioner's attorney wanted to be advised of the Equal Employment Opportunity Commission (EEOC) case number assigned to the same allegations of discrimination by the EEOC, pursuant to the Commission's work-sharing agreement with that Federal agency. On January 21, 2004, Petitioner's attorney's law office again wrote to the Commission requesting the EEOC case number and stating, "[W]e may take our client's issues up in the judicial arena."2/ Petitioner filed with the Commission on February 10, 2004, an Election of Rights signed by her attorney on February 9, 2004, on which the following option had been checked: More than 180 days have elapsed since I filed my charge of discrimination. I wish to withdraw my charge and file a Petition for Relief to proceed with an administrative hearing as provided for under Florida Statutes Section 760.11(4)(b) and (8). On February 16, 2004, the Commission sent a letter to Petitioner's attorney confirming its receipt of the Election of Rights on February 10, 2004, and reciting the foregoing reason stated therein. The Commission attached to its letter a blank petition for relief with instructions that the petition should be completed and returned to the Commission within 20 days. Twenty days from the Commission's February 16, 2004, letter would have been March 8, 2004. By a letter dated March 16, 2004, Petitioner's attorney wrote the Commission advising that for purposes of the EEOC claim, "March 23, 2002," should be used as the last date of discrimination. March 23, 2002, is a date four months after the date alleged in the Charge of Discrimination which had been filed with the Commission. (See Finding of Fact No. 3.) Apparently, the Commission filed the EEOC complaint with that federal agency on March 18, 2004. By a March 18, 2004, form letter, the Commission advised Petitioner, via her attorney, that the EEOC claim had been filed and given a number. The Commission's form advises that Petitioner need do nothing with the EEOC until the Commission has made its final findings in the case before the Commission. The March 18, 2004, EEOC complaint is virtually identical in all respects to the Charge filed by Petitioner with the Commission on November 19, 2002, except for the date of alleged discrimination. (See Finding of Fact No. 9.) On March 29, 2004, Petitioner's attorney signed a second Election of Rights, checking the same reasons as were given in the February 10, 2004, Election of Rights. (See Finding of Fact No. 7.) The second Election of Rights was filed with the Commission on March 31, 2004. On April 1, 2004, the Commission sent a second letter to Petitioner via her attorney, confirming receipt of Petitioner's second Election of Rights dated March 29, 2004, and stating that it had been filed on March 30,[sic] 2004. This Commission letter again reiterated the option requested by the Petitioner. (See Finding of Fact Nos. 7 and 13.) The April 1, 2004, letter from the Commission attached a second blank petition for relief for Petitioner to complete, and further advised: The initial letter dated February 16, 2004 included the Petition for Relief to be filed with the Commission within 20 days of the dated letter. We have not received the Petition for Relief to date; therefore I am enclosing another Petition for Relief to be completed. Forward the original Petition for Relief to the Division of Administrative Hearings and mail a copy to the Division. The Election of Rights Form will be forwarded to the Division of Administrative Hearings for case assignment as requested. On April 1, 2004, the Commission filled out a Transmittal of Petition form, which it forwarded to the Division, attaching only the Commission's April 1, 2004, letter to Petitioner's attorney, a copy of the original Charge of Discrimination incorrectly date-stamped as filed with the Commission on December 2, 2003 (see Finding of Fact No. 3), and a copy of Petitioner's Election of Rights, dated March 29, 2004, which had been signed by her attorney. (See Finding of Fact No. 13.) Petitioner admits that at no time within 20 days of either the Commission's February 16, 2004, letter or the Commission's April 1, 2004 letter, did Petitioner file a Petition for Relief either with the Commission or the Division. Not until after Respondent had moved to dismiss before the Division on June 15, 2004, did Petitioner file a Petition for Relief. On June 24, 2004, that Petition for Relief was filed with the Division, without prior leave of an Administrative Law Judge of the Division. The Petition was not on a Commission form. As of June 25, 2004, the date of oral argument on the Motion to Dismiss and Response thereto, the free-form Petition for Relief had only been filed with the Division and had never been filed with the Commission. On the basis of the record before the Division, it appears that Petitioner has never filed with the Commission a Petition for Relief, also known as a request for administrative hearing. It is undisputed that no Petition for Relief or request for administrative hearing was filed by Petitioner with the Commission within 215 days of filing the Charge of Discrimination with the Commission, which would have been 180 days plus 35 days; nor within 35 days of February 16, 2004, the date of the Commission's first letter advising Petitioner to timely file a Petition for Relief with the Commission; or within 35 days of April 1, 2004, the date of the Commission's second letter advising Petitioner to timely file a Petition for Relief with the Commission.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss this case, which exists only by the Charge of Discrimination, and a late-filed petition before the Division of Administrative Hearings. DONE AND ENTERED this 29th day of July, 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2004.
Findings Of Fact The Respondent is an employer under the 1992 Florida Civil Rights Act. Petitioner was employed by Respondent as a laundry attendant in the Laundry Department. Petitioner was hired originally as a cashier in one of the restaurants but was transferred shortly thereafter. Petitioner was employed by Respondent from June 1990 through June 14,1994. Petitioner is a female Hispanic American, and a member of a protected class. Petitioner was born and raised in Puerto Rico and her first language is Spanish. Although she has lived and worked in the United States since 1979 and speaks English well, her reading and writing skills in English are not well developed. On June 25, 1990, as part of the application process, Petitioner was given a medical questionnaire to complete. The questionnaire contained 25 questions relating to Petitioner's past and present physical condition. Question 23 reads: "Have you ever had any occupational disease or serious injury resulting in a worker's compensation claim?". Petitioner checked "no". Question 24 reads: "Have you had any other serious accidental injuries?". Petitioner checked "yes" and explained "arm operation". Petitioner misread question no. 23. She thought that the question was asking if she was receiving worker's compensation benefits at that time, which she was not. She did not ask for assistance in completing the questionnaire because she believed that she had read and understood the questions correctly. Petitioner did receive worker's compensation benefits for an elbow injury which occurred in 1984. During her four year employment at the Dolphin Hotel, Petitioner had several supervisors who rated her work performance as average/satisfactory in her annual performance review. During her employment, her pay had been increased for a starting salary of $5.65 per hour to approximately $6.75 per hour, plus overtime. At the time of her termination, Petitioner's job performance was rated as good by her immediate supervisor On June 9, 1994, it came to the attention of the Respondent's Human Resources Department that Petitioner had filed a claim and received worker's compensation benefits in the early 1980's and had not acknowledged it on her application. Following a conference between Petitioner and Human Resources personnel, Respondent made a determination that Petitioner had falsified information on her employment application. She was terminated on June 14, 1994. Respondent's policy is that falsification of records is an offense which requires termination of the employee. There are no exceptions. Over the four year period, 1990-1994, Respondent determined that between 12 and 15 employees had falsified information on their employment application and all had been terminated. Petitioner failed to prove, as she alleged, that the real reason for her termination was due to her speaking Spanish with other co-workers while on the job. Respondent demonstrated that of the 45 people working in Petitioner's department most were minorities, including 20 who were Hispanic including Petitioner's immediate supervisor. Respondent's stated reasons for its decision to terminate Petitioner were not proven to be pretextual.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 3rd day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1995. COPIES FURNISHED: Armida Ramos 181 La Paz Drive Kissimmee, Florida 34743 Carl Maada Division of Labor Relations Walt Disney World Dolphin Hotel 1500 Epcot Resort Boulevard Lake Buena Vista, Florida 32830 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact The Department of Education set out to hire a person to fill the position of "Program Director II." The position was in the Department's Division of Public Schools, Bureau of Program Support Services, Management Information Services Section. It is one of the highest positions in the Department. A selection committee was established by the Department to review applicants for the position. The Petitioner and approximately 19 other persons applied for the position and met the minimum requirements. The selection committee selected eight persons, one of whom withdrew, to be interviewed. The committee recommended five of the applicants, including Petitioner, to the Chief of the Bureau of Program Support Services. The Bureau Chief was concerned that none of the applicants recommended to him had experience with management information services at the school district level. He discussed the matter with the Secretary of the Department of Education and with the Director of the Division of Public Schools. The Bureau Chief decided to readvertise the position and to extend the deadline for applicants. His desire was to enhance the pool of applicants. Several additional persons thereafter applied and were interviewed by the selection committee. In addition to the five persons originally recommended to the Bureau Chief, the steering committee recommended an additional person. The Secretary of the Department ultimately decided to hire the new applicant. The Department of Education utilizes an "Affirmative Action-Equal Employment Opportunity Plan." The Plan constitutes Appendix 6-0 of the Department's Policy and Procedures Manual. The Plan sets out the Department's policy of making employment decisions without regard to a person's race, color, sex, religion, creed, national origin, handicap, marital status, political opinions or affiliations, or age; and provides for announcement of position vacancies, employment recruitment, processing of applications, establishment of employee selection committees and the like. The plan has never been promulgated as a rule. To aid selection committees in performing their duties, the Department has promulgated an Employee Selection Committee Handbook. Basically, the handbook summarizes and repeats the provisions of the Affirmative Action-Equal Employment Opportunity Plan and includes suggestions about structuring interviews and interview questions. The Employee Selection Committee Handbook has not been promulgated as a rule. The provisions of the handbook are not inconsistent with the provisions of the Affirmative Action-Equal Employment Opportunity Plan. It has not been established that the Department failed to follow the provisions of its Affirmative Action-Equal Employment Opportunity Plan and Employee Selection Committee Handbook in the selection process which led to the hiring of the Program Director II. It has not been established that the Plan, the handbook, or the selection process itself operated unfairly as to any applicant, including Petitioner.
The Issue Whether Respondent wrongfully failed or refused to hire Petitioner because of her physical handicap, obesity, if she was otherwise qualified, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Rose E. Blake, at all time relevant, is a Certified Nurses Assistant in the State of Florida. In the summer of 1991, Petitioner was a 45 year old female, whose height was 5 feet, 4 inches and she weighed in excess of 250 pounds. Respondent, Sunset Point Nursing Home, is a health care facility that provides nursing home care for patients, and employs more than five employees. On March 11, 1991, Petitioner completed an application for the position of Nurses Aide at Respondent's facility. Petitioner's employment application made no claim of "handicap" of obesity or otherwise. Prior to being interviewed, Petitioner withdrew her name from consideration, and accepted a position at another health care facility. On July 11, 1991, Petitioner contacted Respondent's personnel department, and asked that her application for the nurse's aide position be reactivated. They did so and Petitioner was interviewed for a position on July 15, 1991. On July 15, 1991, she was informed that she was accepted for the position of nurse's aide, but would be required to undergo pre-employment orientation and a physical examination before she could start work in the next few days. On July 16, 1991, she went through a two hour orientation training at Respondent's facility which was conducted by Respondent's staff. On the same day, July 16, 1991, Petitioner underwent a physical examination at the office of a Dr. Johnson, a physician that Petitioner was referred to at Lakeside Medical Center. On the following day, after receiving a message from the physicians office, Helen Mills, Respondent's Assistant Director of Nursing, talked with Dr. Johnson on the telephone. After performing a physical examination, he recommended against hiring Petitioner on the basis that she was susceptible to developing low back problems, due to her obesity. Based on this conversation alone, Mills called Petitioner, and withdrew her offer of employment at Respondent's facility as a CNA. The position of CNA is physically very demanding. A CNA is required to lift patients, transfer them from bed to chair, bed to bathroom, bed to wheelchair. There is a great deal of stooping, bending, and lifting involved throughout a CNA's shift. A CNA is also required to feed patients, turn and position them in their beds. A CNA is also required to be on their feet constantly throughout her shift. Petitioner had successfully performed the functions of a CNA for 27 years, with the last ten years having been certified by the State of Florida. During this period of time, Petitioner has weighed in excess of 200 pounds, and her weight has not impaired her functioning successfully as a CNA. There was no expert medical evidence offered to establish whether Petitioner's obesity is endogenous (metabolic) or exogenous (caused by overeating). There was no competent evidence offered upon which to find Petitioner's obesity is physiological in origin or that it is permanent. Petitioner did not offer evidence to show damages.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered holding that: The Petitioner was discriminated against on the basis of her handicap when Respondent failed or refused to hire her; The Petitioner receive any damages she has suffered in accordance with applicable law. Respondent be ordered to cease and desist said discriminatory practices. DONE and ENTERED this 29th day of December, 1992, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of December, 1992. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Neither party submitted proposed findings of fact or conclusions of law. COPIES FURNISHED: Ronald W. Stutzman Qualified Representative Vice President for Human Resources Harborside Healthcare 470 Atlantic Avenue Boston, Ma. 02210 Ms. Rose E. Blake P.O. Box 616 Dunedin, Florida 34698 City of Clearwater Legal Department P.O. Box 4748 Clearwater, Florida 34618-4748 Dana Baird, Esquire Commission on Human Relation 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
