The Issue The issue for determination is whether Petitioner was discharged from her employment by Respondent because of Petitioner’s handicap (pregnancy) in violation of Section 760.10(11), Florida Statutes.
Findings Of Fact At all times pertinent to these matters, Respondent operated a hospital (Calhoun Liberty Hospital) in Blountstown, Florida. As part of that operation, Respondent employed a number of Emergency Medical Technicians (EMT). Petitioner was employed by Respondent as an EMT from June 1, 1995, to the time of her discharge on October 1, 1998. On September 15, 1999, Petitioner filed a Charge of Discrimination with FCHR alleging that Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's pregnancy. Petitioner claimed that Respondent terminated Petitioner’s employment because she was pregnant. On April 11, 2001, Petitioner requested a formal administrative hearing from FCHR in the absence of a determination of cause. Stipulation of the parties establishes that Petitioner’s supervisor, Respondent’s Director of Emergency Medical Services (EMS), knew Petitioner was pregnant in June of 1998. Further, as an accommodation to Petitioner, her supervisor assigned Petitioner to a work assignment in which she would not be required to perform the more strenuous and demanding duties of her job. On October 1, 1998, Petitioner’s supervisor, who reported to the hospital administrator (administrator), received a telephone call at her home from Respondent’s business office manager. The supervisor was informed that a report had been received from the Florida Highway Patrol (FHP) that one of the hospital’s two ambulances had been observed traveling at an excessive rate of speed and that the administrator wanted Petitioner’s supervisor to come into the hospital and discuss the matter. The supervisor immediately went to the hospital. The supervisor was unaware of the identity of the team (a driver and an assistant) in charge of the errant ambulance. She was told by the administrator to find out the identity of the driver of the ambulance, which was the subject of the FHP report. Then, the administrator instructed the supervisor that she was to terminate the driver of the ambulance and suspend the other employee travelling with the driver. Despite the supervisor’s attempts to persuade the administrator to permit a mere suspension of the driver, she was unsuccessful in changing the administrator’s directive. Later, upon learning that Petitioner was the ambulance driver, the supervisor terminated Petitioner’s employment. On October 1, 1998, Petitioner drove one of Respondent’s ambulances to Panama City, Florida, to pick up a patient. When she arrived in Panama City, she received a radio call from that city’s EMS telling her that she should "slow down." She did not challenge the caller’s admonition to slow down. Two other instances of speeding ambulance drivers, one incident before Petitioner’s termination and one incident after that action, did not result in termination of employment, but there is no evidence establishing that either incident had been brought to the attention of the ultimate authority, the hospital administrator. Testimony of the hospital administrator established that he has the authority to direct the hiring and firing of Respondent’s EMS employees, inclusive of Petitioner. When he learned of the excessive speeding of the subject ambulance around a school zone while on a normal transfer trip, the administrator determined that the driver of the ambulance would be terminated from employment and the assistant on the ambulance would be suspended without pay. At the time he made this decision, the administrator did not know the driver’s identity and did not know of Petitioner’s pregnancy. His decision was based upon his concern that the ambulance driver endangered the driver’s life, the co-worker’s life, and lives of members of the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED: That a final order be entered dismissing Petitioner’s Charge of Discrimination. DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2001. COPIES FURNISHED: J. Ann Cowles, Esquire Post Office Box 604 Carrabelle, Florida 32322 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Edward A. Smith, Esquire Centennial Employee Management Corporation 400 Perimeter Center Terrace Suite 650 Atlanta, Georgia 30346 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Savanah McGriff was, until her death, a resident of Gadsden County. The parties have stipulated that on November 1, 1977 she was admitted to the Tallahassee Memorial Hospital in an emergency medical condition, and that the treatment performed by the hospital was of an emergency nature. The parties have further stipulated that the Tallahassee Memorial Hospital is a regional referral hospital within the meaning of 154.304(4), Florida Statutes (1977). Savanah McGriff was admitted to the Tallahassee Memorial Hospital on November 1, 1977. She died on November 3, 1977 while she was still a patient at the hospital. The total bill for services was $683.85. The hospital submitted a bill to Gadsden County in the amount of $253.58 for the services, which is the amount permitted to be billed in accordance with the Florida Health Care Responsibility Act. Gadsden County has refused to pay the bill, contending that the patient was not indigent within the meaning of the Act. The bill has not been otherwise paid. Savanah McGriff was married to Charlie Anderson. During the six months preceding the hospitalization of Savanah McGriff, she and her husband resided together in their home. During that period Mr. Anderson received a monthly disability check of $74.70, and Social Security benefits in the amount of $116.10. Ms. McGriff had received Veterans benefits in the amount of $50.40. They had no other income. Their average monthly income for the six months prior to the hospitalization was thus $241.20.
Findings Of Fact The Petitioner is an attorney. He was admitted to practice law in Florida in 1949. During most of his career, the Petitioner was employed in legal capacities by agencies of the State of Florida. He has served as counsel to the State Road Department, the predecessor of the present Department of Transportation; the Legislative Reference Bureau; and the House of Representatives. While he was in these positions, Petitioner participated in various programs that preceded the present Florida Retirement System (FRS). During 1970, Petitioner left state employment and opened an office in which he engaged in the private practice of law. Among Petitioner's clients were the City of Tallahassee and Tallahassee Memorial Hospital (TMH). Prior to January 1, 1974, Petitioner's representation of TMH was handled in the same manner as that of Petitioner's other clients. Petitioner would bill TMH on an hourly basis for legal work that he performed. Beginning January 1, 1974, Petitioner's relationship with TMH changed and became more in the nature of an employment relationship and less in the nature of a private legal representation. The position of General Counsel of TMH was regularly established. The General Counsel reported directly to the hospital board and provided legal assistance to the hospital. The arrangement was that Petitioner would be paid a monthly "salary" based upon fifty hours of legal representation. The salary was fifty hours times $37.50. This amount was paid directly to the Petitioner in the form of a payroll check which came from the hospital's regular payroll account. The Petitioner maintained his private law practice. The "salary" from the hospital, however, was deposited directly in the Petitioner's personal account and was not deposited in his law firm account. In 1975, the arrangement changed so that Petitioner would perform 65 hours per month of legal representation to the hospital and be compensated at a rate equivalent to 65 times $37.50. While the rate of compensation changed on several occasions, Petitioner's relationship with the hospital remained essentially the same until June, 1978. During this period Petitioner never spent less than the minimum number of hours working for TMH. When more than the minimum number of hours was required, Petitioner would bill the hospital as if it were a regular client of his firm at an hourly rate which was initially $37.50. During this period, TMH was a municipal hospital. Its day-to-day activities were managed by a hospital board and an executive director, but the hospital's operations were controlled by the City Commission of the City of Tallahassee. When Petitioner negotiated with the hospital for changes in his hourly billing rate, or his salary, he negotiated with the City Commission. When he billed for hours over the minimum, the bill was sent to the City Commission. When the Petitioner entered into the new arrangement with TMH on January 1, 1974, he enrolled in the Florida Retirement System by completing the appropriate enrollment forms. The forms were provided to him by TMH which participated in FRS. The forms were submitted to FRS by TMH. Petitioner thereafter negotiated directly with personnel at FRS concerning credits for his military service and for certain work that he had performed with the Legislative Reference Bureau for which he had not previously been credited. Petitioner was enrolled in FRS, and no one at FRS questioned his eligibility. From January 1, 1974 until June 20, 1978, money was deducted from "salary" checks paid the Petitioner by TMH for participation in FRS. FRS accepted these contributions and annually sent Petitioner a statement of his account. Petitioner's credits with prior state retirement plans were accepted by FRS, and as of January 1, 1974, his participation in FRS vested. As General Counsel of TMH, Petitioner was responsible for all of the hospital's legal work. His work included legal representation in the areas of general contract, contract litigation, personnel problems, Title VII Civil Rights Actions, malpractice actions, collection work and Worker's Compensation Claims. Petitioner was not free to reject any part of the hospital's legal work. Petitioner was allowed to maintain his outside law practice, but conflicts of time were to be resolved in favor of the hospital. Petitioner answered directly to the hospital board and his position was parallel to that of the hospital's executive director. Petitioner did not personally perform all of the hospital's legal work. He performed a majority of it, but he did from time to time assign hospital work to other members of his law firm. Whether work would be assigned to another member of his firm was a matter within Petitioner's discretion. While Petitioner testified that he accrued annual leave and sick leave in the manner of any other hospital employee, it does not appear that he ever took any. Petitioner testified that he never worked less than the minimum hours for which he was paid a "salary" in performing the hospital's legal representation. Petitioner performed legal work for the hospital at the hospital, at his private law office, and at various other locations. While the hospital provided him with isolated volumes, he maintained his own law library and utilized his own materials and clerical assistance. The Petitioner treated his relationship with the hospital as if it were a private representation. It appears that the purpose for the change in his relationship with TMH which occurred on January 1, 1974, was to improve Petitioner's retirement status. On October 21, 1975, Petitioner wrote to the City Commission of the City of Tallahassee as follows: "As you know, my compensation as City Attorney is based on a formula by which I receive a salary for the first fifty (50) hours per month of time spent working on City business, with the remainder paid at an hourly rate. In no month have we spent less than 99 hours devoted to City business. I would like your permission to modify our arrangement to reflect the first 65 hours spent as salary and the remainder at an hourly rate. This would in no way affect the amounts being paid by the City to me, but would make a difference in my retirement benefits. Further, since I am not on City retirement, this would in no way affect the actuarial or fiscal soundness of the City's retirement program. Let me reiterate that what I desire is merely a bookkeeping change and will in no way increase the amount that the City is paying for representation. If you have any questions, please advise." This letter related to Petitioner's representation of TMH, and was written on Petitioner's law firm stationery. This letter and other correspondence between Petitioner and the administrator at TMH indicate that Petitioner's relationship was not directly with TMH, but rather was with the City Commission of the City of Tallahassee. It further appears that he viewed his arrangement with TMH as "merely a bookkeeping" arrangement that would favorably impact his retirement benefits. Petitioner's relationship with TMH was in the nature of a private legal representation. While some aspects of the relationship were in the nature of an employment relationship, on balance it appears that that was arranged for the purpose of allowing Petitioner to participate in FRS, rather than for the purpose of changing the relationship. The Division of Retirement conducted an audit of Petitioner's retirement status with FRS. On June 20, 1978, the Division advised Petitioner that he did not meet criteria for membership in FRS, and that he would not be entitled to retirement benefits from FRS based upon the work that he had performed for TMH. The Division has apparently returned contributions that were made on the Petitioner's behalf to the Petitioner or to TMH. In the last paragraph of his June 20 letter, the State Retirement Director stated: "I am sure you are aware there are certain administrative proceedings available to you under Chapter 120, Florida Statutes (1977) if you are dis- satisfied with my decision. I would be most appreciative if you would please notify me promptly if you decide to pursue one of those avenues." Petitioner did not request an administrative hearing until August 11, 1981. He initially decided not to pursue the matter further, and he requested a hearing only after he became convinced that other persons in similar circumstances were allowed to participate in FRS. While Petitioner testified that he heard from several persons whose circumstances were the same as his that they were allowed to participate in FRS, there is no evidence in the record of this matter from which it could be determined that anyone has been treated differently than Petitioner. Prior to 1979, there were no written memoranda or instructions issued by the Division of Retirement as guidelines for determining the eligibility of attorneys or other professionals for enrollment in FRS.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Division of Retirement enter a final order dismissing the Petition for Formal Proceeding filed by Bryan W. Henry, and denying him reinstatement into the Florida Retirement System for the period January 1, 1974 through June, 1978. RECOMMENDED this 5th day of April, 1982, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982. COPIES FURNISHED: James M. Donohue, Esquire Henry, Buchanan, Mick & English, P.A. Post Office Drawer 1049 Tallahassee, Florida 32302 Stanley M. Danek, Esquire Assistant Division Attorney Division of Retirement Department of Administration 2639 North Monroe Street Suite 207C - Box 81 Tallahassee, Florida 32303
