Findings Of Fact Respondent's Motion to Dismiss for Lack of Jurisdiction asserts that Petitioner was never an employee of Florida Crown and that Petitioner conceded this in attachments to her Petition for Relief. During the telephone motion hearing, Petitioner acknowledged that she was not employed by Florida Crown. Therefore, as a matter of fact, no employer-employee relationship existed between the parties.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's Complaint of Discrimination. With this disposition, the Final Hearing in this case scheduled for May 5 and 6, 2006, is cancelled, and the file of the Division of Administrative Hearings is hereby closed. DONE AND ENTERED this 23rd day of March, 2006, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 2006. COPIES FURNISHED: Marcy S. Kelly Post Office Box 3003 Lake City, Florida 32056 Thomas W. Brown, Esquire Brannon, Brown, Haley & Bullock, P.A. Post Office 1029 Lake City, Florida 32056-2029 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Petitioner forfeits his rights to benefits under the Florida Retirement System.
Findings Of Fact On May 5, 2011, Petitioner was mayor of North Miami Beach, Florida. During Petitioner’s employment as mayor with North Miami Beach, he was a member of the Florida Retirement System. On or about October 17, 2012, Petitioner was charged by Information with nine criminal counts in the Circuit Court of the Eleventh Judicial Circuit in and for Miami-Dade County, Florida. On February 24, 2016, pursuant to a written Plea Agreement, Rosner entered a plea of guilty to Count 11/ Unlawful Compensation [or] Reward for Official Behavior, in violation of section 838.016(2), in Eleventh Circuit case F12023663. That same day in the Eleventh Circuit case F12023663, Judge Martin Bidwill issued the following orders: an Order Ratifying Terms of Plea Agreement; a Disposition Order specifying Rosner’s plea to Count 1 Unlawful Compensation [or] Reward for Official Behavior; and a Finding of Guilt Order to Count 1 Compensation [or] Reward for Official Behav[ior]/Influence. The October 17, 2012, Information detailed the factual basis of Rosner’s plea and conviction in Count 1.2/ Petitioner illegally received unpaid campaign advertising from Martin Outdoor Media, which had a continuing contract with the City of North Miami Beach while Petitioner served as mayor. Count 1 provides in relevant part, the following: COUNT 1 MYRON JOEL ROSNER, on or about May 5, 2011, in the County and State aforesaid, being a public servant to wit: MAYOR OF NORTH MIAMI BEACH did unlawfully, feloniously, and corruptly request, solicit, accept, or agree to accept any pecuniary or other benefit not authorized by law, to wit; UNPAID CAMPAIGN ADS, for the past, future, or future exertion of any influence upon or with any other public servant regarding any act or omission which said public servant represented as being within the official discretion of a public servant, to wit: CONTINUE ALL MARTIN OUTDOOR MEDIA CONTRACTS WITH THE CITY OF NORTH MIAMI BEACH, in violation of s. 838.016(2), Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.3/ Rosner was notified by certified letter dated April 20, 2016, of the Division's proposed action to forfeit his Florida Retirement System rights and benefits pursuant to sections 112.3173 and 121.091(5)(f). The notice provided the following basis for the proposed action: . . . . as a result of your guilty plea in the Circuit Court of the Eleventh Judicial Circuit, in and for Miami-Dade County, Florida, for acts committed in connection with your employment with the City of North Miami Beach. Specifically, on or about October 18, 2012, in Case Number F12-023663 (2012-CF_023663), you were charged by information, in relevant part, with unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, based on conduct which occurred on or about May 5, 2011. On or about February 24, 2016, you entered a guilty plea for one count of unlawful compensation or award for official behavior, a second degree felony in violation of section 838.016(2), Florida Statutes, and adjudication of guilt was withheld. By Petition dated May 9, 2016, Rosner contested the Notice and challenged the forfeiture.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement enter a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement pursuant to section 112.3173, Florida Statutes, and directing the forfeiture of his Florida Retirement System rights and benefits. DONE AND ENTERED this 15th day of June, 2017, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 15th day of June, 2017.
Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. FCHR Order No. 06-058 Page 2 We adopt the Administrative Law Judge’s findings of fact. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We adopt the Administrative Law Judge’s conclusions of law. Exceptions Petitioner filed four numbered exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Exceptions to Filed Recommended Order.” There is no indication on Petitioner’s exception document that it was served on Respondent by Petitioner as is required by Fla, Admin. Code R. 28-106.110. The exceptions docurnent was received after the expiration of the 15-day period from the date of the Recommended Order for filing exceptions. See, Recommended Order, Notice of Right to Submit Exceptions; Section 120.57(1)(k), Florida Statutes (2005); and Fla. Admin. Code R. 28-106.217(1). The Recommended Order is dated March 23, 2006, the cover letter accompanying the exceptions document is dated April 10, 2006, and the exceptions document was received by the Commission on April 17, 2006. All exceptions relate to the elements for establishing a prima facie case of discrimination. Exceptions 1 and 4 deal with issues surrounding whether Petitioner was handicapped within the meaning of the law. Exception 2 deals with the issue of whether Petitioner was qualified for the position in question. Exception 3 deals with the issue of whether Petitioner was treated less favorably than other employees. In our view, if all these exceptions were granted, the outcome of the case would not change, since the Administrative Law. Judge concluded that, even if a prima facie case had been established, Respondent established legitimate, nondiscriminatory reasons for terminating Petitioner from her position as a bus driver, namely Petitioner’s taking of the indicated prescription drugs and her inability to meet the lifting requirements of the position (Recommended Order, [42 and J 49), and that there was no showing that these reasons were a pretext for discrimination (Recommended Order, { 49). Further, the Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional FCHR Order No. 06-058 Page 3 Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005). Petitioner’s exceptions are rejected. Dismissal The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this__20th _ day of June 2006. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Donna Elam, Panel Chairperson; Commissioner Onelia A. Fajardo; and Commissioner Mario M. Valle Filed this__20th day of June _, 2006, in Tallahassee, Florida. . eld baed iolet Crawford, Cler! Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-708 Copies furnished to: Lorraine C. Morris c/o Warren K. Anderson, Jr., Esq. c/o Michael L. Howle, Esq. Anderson & Howell, P.A. 2029 North Third Street Jacksonville Beach, FL 32250-7429 FCHR Order No. 06-058 Page 4 Lee County Government c/o Andrea R. Fraser, Esq. c/o Jack Peterson, Esq. Post Office Box 398 Fort Myers, FL 33902-0398 William F. Quattlebaum, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel IHEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this__20th _ day of June 2006. we Yat Can Clerk of the Commission Florida Commission on Human Relations
Conclusions This matter is before Florida A&M University Board of Trustees (hereinafter “FAMU” or “Respondent”) for final agency action. Pursuant to FAMU Regulation 10.206, Petitioner requested a formal administrative hearing on or about August 4, 2011. Petitioner's request for administrative hearing was referred to the Division of Administrative Hearings (hereinafter “DOAH”) on August 8, 2011. The Administrative Law Judge assigned to review the matter scheduled a disputed-fact hearing for October 26 through 28, 2011. On August 28, 2011, Petitioner submitted her Withdrawal for Request for Formal Administrative Hearing. By Order entered August 29, 2011, DOAH closed its file and relinquished jurisdiction to FAMU. Accordingly, it is hereby ORDERED and ADJUDGED that the Petition for Formal Administrative Hearing in this matter is dismissed in its entirety. Filed August 31, 2011 4:27 PM Division of Administrative Hearings St day of August, 2011. ames H. Ammons President Florida A&M University Suite 400, Lee Hall Tallahassee, Florida 32307 (850) 599-3225 DONE and ORDERED this 2! Filed with the Agency this 3]? "day of August, 2011. Aig \eAaddes Abigaji V. Raddar Agency Clerk
Other Judicial Opinions A party who is adversely by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a second copy, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days of the date this Final Order is filed with the Agency Clerk. Copies to: Jennifer Smith, Petitioner Cynthia Hughes Harris, Provost and Vice President, Academic Affairs LeRoy Pernell, Dean, College of Law Nellie C. Woodruff, Assistant Vice President, Human Resources Claudia Llado, DOAH Agency Clerk Robert E. Larkin, Ill, Esquire Jason E. Vail, Esquire Avery D. McKnight, Esquire
The Issue The issue is whether Respondent should reimburse Petitioner for the attorneys' fees and costs Petitioner expended in its successful defense of Respondent's Stop-Work Order.
Findings Of Fact Hernandez, Inc., was a contractor based in the Jacksonville, Florida area, and was in the business of installing dry wall, among other construction-related activities. Its principal owner, Jorge Hernandez, founded the company in 1981. The Department of Financial Services is the state agency responsible for enforcing the Workers' Compensation Law. This duty is delegated to the Division of Workers' Compensation. The Division is a state agency. It is not a nominal party. On February 5, 2004, Hernandez, Inc., was engaged in installing drywall in the Bennett Federal Building in Jacksonville, Florida, using its own personnel, who were leased from Matrix, Inc., an employee leasing company, and two subcontractors, GIO & Sons (GIO), of Norfolk, Virginia, and U&M Contractors, Inc., (U&M), of Charlotte, North Carolina. The leased employees were properly covered by workers' compensation insurance provided by the lessor. Prior to contracting with GIO and U&M, Hernandez, Inc., asked for and received ACORD certificates of insurance, which on their face indicated that the subcontractors had both liability coverage and workers' compensation coverage. It is the practice of Hernandez, Inc., to ensure that certificates of insurance are provided by subcontractors. The office staff of Hernandez, Inc., at all times prior to going out of business, tracked the certificates and ensured that they were kept current. Hernandez, Inc. had relied on hundreds of these ACORD certificates in the past. During times pertinent, neither GIO or U&M maintained workers' compensation insurance on their employees that complied with the requirements of Section 440.38(7), Florida Statutes. On February 5, 2004, Katina Johnson, an investigator with the Division's Jacksonville office, made a routine visit to the Bennett Federal Building with another investigator. She observed personnel from Hernandez, Inc., and its subcontractors GIO and U&M, installing dry wall. She also determined that Hernandez, Inc., had a contract to install dry wall as a subcontractor participating in the construction of the Mayport Naval Station BEQ. U&M worked at both the Bennett Federal Building site and the Mayport BEQ site as a subcontractor of Hernandez, Inc. Ms. Johnson discovered that neither U&M nor GIO had workers' compensation coverage for its employers. Ms. Johnson asked for and received the certificates of insurance that Hernandez, Inc., had obtained from GIO and U&M, which facially suggested that Hernandez, Inc., had determined that its subcontractors had appropriate coverage. Nevertheless, she issued a SWO on February 26, 2004, to Hernandez, Inc., as well as GIO, and U&M. By the SWO, Hernandez, Inc., was charged with failure to ensure that workers' compensation meeting the requirements of Chapter 440, Florida Statutes, and the Florida Insurance Code, was in place for GIO and U&M. She also issued an Order of Penalty Assessment that eventually became an Amended Order of Penalty Assessment dated March 19, 2004. The SWO stated, in bold print, that Hernandez, Inc., was, "Ordered to Stop Work and Cease All Business Operations in the State." Hernandez, Inc., was, at the time, also engaged in construction at the new Jacksonville Library and at the Carlington Apartments, both of which were located in Florida. By the terms of the SWO, Hernandez was required to stop work in those sites also. The Division had no evidence that might cause it to believe that Hernandez, Inc., was operating in violation of the law at those sites. The SWO contained with it a Notice of Rights advising that a formal or informal administrative hearing might be had and required that a petition for a hearing be filed within 21 days of receipt of the SWO, if a hearing was desired. Hernandez, Inc., was not informed that it had the right to an immediate hearing. Hernandez, Inc., timely filed a petition demanding a formal hearing. In an effort to get back to work, Hernandez, Inc., entered into an agreement with the Division, whereby it paid a partial penalty of $46,694.03, but admitted no liability. The formal hearing did not take place until August 16, 2005. Ms. Johnson had the power to issue a stop-work order. She did not have to get approval from a neutral magistrate or from the Division. Because she was a recent employee of the Division, she conferred with her supervisor Robert Lambert before taking action, and he approved her action in writing. In February 2004, it was the policy of the Division to issue SWO's for all work sites even though it concluded that a violation had occurred in only the site or sites visited. The Division policy did not require an investigation into all worksites as a prerequisite to shutting down all worksites. The policy requiring a contractor to cease work at all worksites was not adopted as a rule. In February 2004, the Division asserted that compliance with Section 440.10(1)(c), Florida Statutes, required a general contractor to look beyond an ACORD certificate of insurance to determine if subcontractors had complied with the requirement to maintain the required workers' compensation coverage ". . . under a Florida endorsement using Florida rates and rules pursuant to payroll reporting that accurately reflects the work performed in this state by such employees." This policy was not adopted as a rule and was subsequently abandoned. The Division, in implementing this policy, asserted that a general contractor must actually review the policy of a subcontractor presenting an ACORD certificate and determine if it was in effect and if it complied with Florida law. This policy was not adopted as a rule and the policy was subsequently abandoned. The Division further asserted that the employees of the subcontractor of a general contractor were to be viewed as if they were employees of the general contractor, when contemplating workers' compensation coverage. This policy was not adopted as a rule. Ms. Johnson acted in conformance with the Division's policies in effect at the time the SWO was issued. The net worth of Hernandez, Inc., was a negative $1,821,599, on December 31, 2003. Hernandez, Inc., was struggling financially in February 2004, but was on the way to recovery until the SWO was issued. On November 30, 2004, the net worth of Hernandez, Inc., was a negative $1,161,865, and this figure included the sum of $978,000 that Mr. Hernandez put into the business. Accordingly, Hernandez, Inc., was a small business party for purposes of Subsection 57.111(4)(a), Florida Statutes, during times pertinent. The SWO, which terminated work at all Hernandez work sites, torpedoed any chance the company had to continue in business. Mr. Hernandez mortgaged his house, which he subsequently lost to creditors, in an effort to keep Hernandez, Inc., in business. All of his efforts failed. The failure was a direct result of the actions of the Division. The Division's interpretations of the law that precipitated their policies, and thus the failure of the business, were both wrong and unreasonable. Subsequent to the hearing and Recommended Order in Department of Financial Services, Division of Workers' Compensation v. Hernandez, Inc., Case No. 04-1174 (DOAH October 3, 2005), the Chief Financial Officer entered a Final Order styled, In the Matter of: Hernandez, Enterprises, Inc., Case No. 75492-05-WC (Florida Department of Financial Services, January 25, 2006). The Final Order noted that the contractor, Hernandez, Inc., complied with the extant law when it, ". . . demanded and received proof of insurance. . . . " The Final Order also noted that there was no authority produced by the Division that would permit the imposition of a fine on Hernandez, Inc. The Final Order further recited that there was no statutory duty on the part of a contractor to ensure (emphasis supplied) that its subcontractors had secured workers' compensation coverage for its employees. It noted that, ". . . without some formal delineation of the specific obligations of a contractor in ascertaining proof of insurance from a subcontractor, the Department cannot impose a penalty upon the facts presented in the instant case." The Division was ordered to rescind the SWO issued February 26, 2004, and the Amended Order of Penalty Assessment dated March 19, 2004, and was further ordered to repay the amount of $46,694.03, which had been paid to persuade the Division to abate the SWO. The action was initiated by the Division, which is a state agency. At the time the SWO was initiated, there was no reasonable basis in law and fact to do so. The actions of the Division were not "substantially justified." Hernandez, Inc., prevailed in the hearing because the Chief Financial Officer entered a Final Order in its favor and the Order has not been reversed on appeal and the time for seeking judicial review of the Final Order has expired. Hernandez, Inc., is, therefore, a "prevailing small business party." Hernandez, Inc., paid its law firm, Holbrook, Akel, Cold, Stiefel & Ray, P.A., $51,815.50 in attorneys' fees, and paid $8,837.00 in costs, in its successful defense of the Division's actions.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Petitioner was employed by HRS at the Broward County Public Health Unit ("BCPHU") as a Fiscal Assistant II, a career service position. Petitioner began working for HRS in approximately August, 1973. From approximately July of 1986 through July of 1991, Petitioner's supervisor at BCPHU was Sylvia Villafana. During this time period, Ms. Villafana frequently counseled Petitioner regarding excessive absenteeism and tardiness which interfered with Petitioner's ability to meet necessary deadlines at work. Even before 1986, Petitioner's personnel record reflects excessive use of sick leave and problems with prompt and consistent attendance at work. These issues were discussed with Petitioner on several occasions. In March of 1991, Ms. Villafana scheduled a meeting for March 21, 1991, with Petitioner and Jeff Keiser, the personnel manager for BCPHU. At that meeting, Ms. Villafana intended to issue a written reprimand to Petitioner regarding excessive absenteeism. The March 21, 1991, meeting was scheduled to begin at 2:00. Petitioner left the BCPHU building at approximately 1:00 p.m. that day and did not attend the meeting. Petitioner contends that she was having chest pains and went to the hospital that afternoon. Petitioner did not advise her supervisor that she was leaving the premises. Petitioner did advise at least one co-worker at BCPHU that she was leaving. The next day, Petitioner's daughter called Ms. Villafana and told her that Petitioner was in the hospital. Ms. Villafana told Petitioner's daughter that documentation would be needed of Petitioner's medical problems. No records of Petitioner's hospitalization were ever presented to Ms. Villafana or any other HRS supervisor. Petitioner was apparently discharged from the hospital on the evening of March 22, 1991. Petitioner contends that she called Ms. Villafana on Monday, March 25, and told her that she was still under a doctor's care and that she would return to work as soon as he released her. Ms. Villafana contends that the telephone conversation did not occur until March 29, 1991. In any event, Petitioner did not ask for authorized leave. During the telephone conversation, Petitioner indicated that she had a doctor's appointment on April 2. Ms. Villafana told Petitioner that medical documentation of her problem would be necessary. On April 3, 1991, Petitioner did not return to work. At this point, Ms. Villafana had virtually no information regarding Petitioner's alleged illness and/or condition. Ms. Villafana inquired of other employees regarding Petitioner's condition, but was unable to learn anything more. On the afternoon of April 3, 1991, Petitioner contacted Ms. Villafana and indicated that she would be back to work on April 9, 1991. The April 3 conversation was acrimonious. Because there were several large project deadlines coming due, Ms. Villafana emphasized that medical documentation was needed to support Petitioner's claim of illness. Petitioner did not show up for work on April 9, 1991. On April 10, 1991, Petitioner called and told Ms. Villafana that she was mailing in notes from her doctors and then hung up. On April 11, 1991, Ms. Villafana found notes from two doctors on her desk. The notes were submitted into evidence at the hearing, but were not authenticated by the physicians who purportedly authored them. One of the notes was allegedly from Dr. Murillo, a cardiologist. This note indicated that Petitioner would be able to return to work on April 15, 1991. The second note was from Dr. Love, an orthopedic surgeon, who indicated that he was scheduled to see Petitioner again on April 24, 1991, and that Petitioner was "unable to return to work" until then. No explanation was given as to the nature of Petitioner's injuries. At the hearing in this case, Petitioner contended that she was seeing Dr. Love in connection with injuries supposedly received during an automobile accident on February 20, 1991. No persuasive evidence was presented as to the nature and extent of those injuries. The car accident occurred on the evening of February 20 and Petitioner reported to work the next day. No evidence was presented to establish that Petitioner missed any work as a result of the car accident prior to the time she left work on March 20, 1991, complaining of chest pains. Ms. Villafana advised Petitioner that the doctor's notes submitted on April 11 did not provide adequate documentation of her medical condition and/or inability to work. Petitioner did not report to work on April 25, 1991, and did not contact her supervisor. Neither Ms. Villafana nor the personnel office had a home phone number or current residence address for Petitioner. One of Petitioner's friends gave Ms. Villafana a P.O. Box number which Petitioner was using as a mailing address. On April 30, 1991, Ms. Villafana prepared a letter which was sent to Petitioner at her last known address and by certified mail to the post office box. That letter advised Petitioner that as of the close of business on Monday, April 29, 1991, she was absent without authorized leave and was in jeopardy of being deemed to have abandoned her position. The letter noted that the last medical excuse from Dr. Love expired as of the end of the normal work day on April 24, 1991. The certified letter was not claimed. On April 30, 1991, Petitioner spoke with Jeff Keiser who advised her that she would be receiving a letter regarding the possible abandonment of her position. Petitioner did not request and was not given authorized leave. During one of their conversations over this period of time, Ms. Villafana advised Petitioner that she should document in writing a request for leave. No such written request was ever received. Also during one of these conversations, Petitioner acknowledged that she had received the April 30, 1991 letter. On May 2, 1991, Ms. Villafana received two additional notes on Dr. Love's letterhead. One of the notes was dated April 24, 1991, and indicated that Petitioner was scheduled for a follow up visit on May 8, 1991. The second note was dated May 1, 1991, and indicated that Petitioner was unable to return to work for two weeks. The note on Dr. Love's letterhead dated May 1, 1991, included some information regarding Petitioner's alleged medical problems. However, Ms. Villafana advised Petitioner that she needed additional information regarding her condition. On May 13, 1991, Petitioner provided Ms. Villafana with a note on Dr. Love's stationery dated May 8, 1991. This note indicated that Petitioner was unable to work for two more weeks and was scheduled for a follow up visit on May 22, 1991. Ms. Villafana spoke with Petitioner on May 23, 1991. During that conversation, Petitioner indicated that she was returning to the doctor on May 30 and hoped to be in the office on May 31. Petitioner did not show up for work on May 31, 1991. On June 3, 1991, Petitioner called Ms. Villafana and advised her that she was going to see the doctor and, if he released her, she would be back at work on Wednesday, June 5. Petitioner did not show up for work on June 5, 1991. On June 20, 1991, Ms. Villafana received a note on Dr. Love's office letterhead indicating that Petitioner visited his office on June 14, 1991, and was unable to return to work for one week. Around this time, another note was received which indicated that Petitioner had an office visit on June 7, 1991, and was unable to return to work for one week. In a letter dated June 21, 1991, Ms. Villafana advised Petitioner that her [C]ontinued actions have placed [her] employment with the HRS BCPHU in serious jeopardy. Leave of absence (sick leave and/or leave without pay) was never formally requested by you since your midday departure on 3/20/91 and was, therefore, not approved. Chapter 22A-8.002 of the State of Florida Career Service Personnel Rules and Regulations states that 'the granting of any leave of absence with our without pay shall be in writing and shall be approved by the proper authority within the agency.' This was not done. On various occasions, I requested that you inform me of your intentions in reference to your leave, which you did not communicate to me, your supervisor, of your plans. As of this date, you have been on unauthorized leave for three months... All avenues of communication to you have been exhausted; I am unable to call you because you state that you have no telephone; certified mailings to your P.O. Box and various addresses have been returned unclaimed; etc. On the few and far between telephone calls from you, I received the run around stating that medical notes are forthcoming in the mail. This practice will no longer take effect. You are therefore, Ms. Gray, to return to work on 8:00 a.m. on Monday, July 1, 1991... The June 21, 1991 letter was sent to Petitioner by certified mail. Copies were also sent to Petitioner's P.O. Box and last known address in unmarked envelopes. Petitioner did not show up for work on July 1, 1991. During the hearing, Petitioner contended that she did not receive the June 21 letter until July 3, 1991. Petitioner contends that Dr. Love did not release her to return to work until July 10, 1991. Petitioner admitted during the hearing that she spoke to Ms. Villafana and Mr. Keiser on July 3, 1991. Neither of these supervisors gave her authorization for any additional leave. Petitioner contends that she told them that she would not return to work until released by her physician. There is no evidence that either Ms. Villafana or Mr. Keiser granted her leave to remain absent for any additional time. On July 10, 1991, Petitioner contacted her supervisor about returning to work, but was told that she was deemed to have abandoned her position. At the hearing Petitioner produced two typewritten notes on the stationary of Dr. Love dated June 21, 1991, and July 10, 1991 (Petitioner's Exhibits 4 and 2). Neither of these notes were properly authenticated and there is no evidence to establish who wrote them or when. As noted above, Dr. Love did not testify at the hearing. These alleged records of Dr. Love's treatment of Petitioner were not provided to Ms. Villafana or the BCPHU Personnel Office until after Petitioner as deemed to have abandoned her position. Petitioner contends that she provided the Personnel Office and/or her supervisors with a copy of Dr. Love's reports prior to receiving the June 21, 1991 certified letter. However, the more credible evidence established that from June 20 through at least July 10, neither Ms. Villafana nor the Personnel Office was provided with any documentation from any physician that Petitioner was unable to work. The evidence established that from June 21, 1991, until July 10, 1991, Petitioner did not show up for work, did not provide any additional documentation regarding her absences and was not granted authorized leave. During the time she was employed at BCPHU, Petitioner was presented with a copy of the HRS Employee Handbook. That Handbook advised employees that they could be deemed to have abandoned their position if they were absent for three consecutive work days without authorization. Ms. Gray should have been aware of the requirements regarding sick leave and leaves of absence and her need to provide documentation regarding her course of treatment to the BCPHU Personnel Office. By certified letter dated July 25, 1991, Respondent advised Petitioner that she was deemed to have abandoned her career service position.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order finding that Inez Gray abandoned her career service position with HRS and is not eligible to be reinstated or to receive any back pay. DONE and ENTERED this 7 day of August 1992, at Tallahassee, Florida. J. STEPHEN MENTON 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 7 day of August 1992. APPENDIX Only Petitioner submitted a proposed findings of fact. The following constitutes my rulings on those proposals. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 7. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Subordinate to Findings of Fact 7 and 24. Rejected as not supported by the weight of the evidence. This subject matter is addressed in Findings of Fact 24. The last note submitted was dated June 14, 1991 and indicated that Petitioner was unable to return to work for one week. This last note was received by Petitioner's supervisors on June 20, 1991. Adopted in pertinent part in Findings of Fact 19-22. Subordinate to Findings of Fact 22. Adopted in substance in Findings of Fact 33. The first sentence is subordinate to Findings of Fact 25 and 27. The second sentence is subordinate to Findings of Fact 26. Rejected as vague and unnecessary. Rejected as unnecessary and irrelevant. COPIES FURNISHED: Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Larry Strong, Acting Secretary Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Augustus D. Aikens, Jr., Esquire Department of Management Services 2737 Centerview Drive, Knight Building Koger Executive Center Tallahassee, Florida 32399-0950 Ben Patterson, Esquire Patterson & Traynham 1215 Thomasville Road P.O. Box 4289 Tallahassee, Florida 32315 Judith C. Engelberg Acting District Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard, Suite 513 Fort Lauderdale, Florida 33301-1885
The Issue Whether Respondent terminated Petitioner from her employment based on perceived handicap discrimination.
Findings Of Fact Petitioner was hired by Respondent on March 5, 1991, to work as a server at Respondent's restaurant, Bon Appetit. Shortly thereafter, on or about April 8, 1991, Petitioner was promoted to restaurant manager. During her tenure as restaurant manager, Petitioner was counselled about her appearance and personal hygiene. Additionally, Petitioner had problems with Respondent's performance including balancing the cash and credit card receipts collected during her shifts. Respondent required its managers to notify Respondent in advance of any absence due to a medical condition where possible. In all cases; however, managers were required to communicate with Respondent concerning their absence so that Respondent could schedule and plan for a manager's absence to avoid any disruption in its business and the scheduling of other employees. During her employment as restaurant manager, Petitioner was diagnosed as having "hammer toes". Petitioner was out of work for three weeks to have this condition surgically corrected. This absence was approved in advance by Respondent and Petitioner received full compensation for that medical leave. Following the scheduled three week absence for the surgery, there was an additional two to three week period during which Petitioner reported for work late or would leave early. Respondent considered those late arrivals and early departures to be unexcused absences. Following foot surgery, Petitioner returned to her position as manager with the same pay. Subsequently, during May 1992, Petitioner was out of work for surgery to have an ovarian cyst removed. This absence was approved by Respondent and Petitioner was out of work for five days. During this period of medical leave, Petitioner received her pay and returned to work following surgery. Following the cyst surgery, Petitioner complained of lower back pain which her gynecologist attributed to swelling from the cyst surgery. On May 30, 1992, Petitioner went to the emergency room at Morton Plant Hospital in Tampa suffering from lower back pain. Petitioner contacted restaurant manager, Leo Enciso, and told him of her visit to the hospital and "not to count on her reporting for work that day". Petitioner also informed Enciso that she would call as soon as she had been examined to give an update on her status. Subsequent to her initial phone call to Enciso on May 30, 1992, Petitioner did not speak with Enciso nor did he receive any messages from Petitioner concerning her status from May 30, 1992 to June 8, 1992. Following her treatment in the emergency room at Morton Plant, Petitioner sought treatment on that same date, May 30, 1992 from chiropractor Dr. Lynn Colucci. At that time, Petitioner knew she would be out of work until at least one more day. Petitioner did not communicate that information to Respondent or any of its management personnel. Petitioner's next consultation with her chiropractor to evaluate her condition was June 1, 1992. Following that session, Petitioner was advised that she would be out of work for at least two more days. Petitioner did not communicate this information to Respondent or any of its management staff. Petitioner again met with her chiropractor on June 3, 1992 and was told that she would be unable to return to work until June 8, 1992. Petitioner failed to communicate this information to any of Respondent's management or staff. Kailie Borzoni, Peter Kreuziger and Sharon Verhage, all managerial employees of Respondent, made several unsuccessful attempts to contact Petitioner by phone. Verhage left a message on Petitioner's answering machine but Petitioner did not return her phone call. Petitioner was released to return to work by her treating chiropractor on June 9, 1992. There were no restrictions placed on her when she was released for work and her physician related that Petitioner's back problem had "resolved itself". Petitioner was discharged by Respondent on June 9, 1992, when she reported for work. Peter Krueziger made an independent decision to discharge Petitioner based on what he considered to be poor performance, poor appearance, excessive absences and failing to truthfully advise of her work status and whereabouts from May 30, 1992 to June 8, 1992. When Petitioner was initially employed as a restaurant manager, Respondent's manager, Krueziger, noticed that Petitioner's dress apparel did not meet up to the standards of a "four star" restaurant that Respondent was operating. As a result, Respondent spoke with Petitioner about his expectations with regard to her dress and advised the controller to advance Petitioner some funds to purchase a wardrobe. Respondent sent one of its managerial employees to accompany Petitioner on a shopping trip to upgrade her wardrobe to reflect what Respondent considered to be appropriate dress for a restaurant manager. Respondent's managerial staff noted and complained to Petitioner on several occasions after she was given a new wardrobe, that her attire did not measure up to the standards that they expected of a manager. Negative comments were made about Respondent's stained clothing, her fingernails and her unkempt hair. Petitioner conceded that she had an exceptionally hard time balancing her cash and credit card accounts at the end of each shift. While some managers experience difficulty at the outset of their employment because an antiquated accounting system was being used, they soon became proficient in closing out the cash and credit card accounts following their shift. Respondent discharged Petitioner based on her failure to properly notify it of her absence from work during the period May 30, 1992 through June 8, 1992. Petitioner's medical condition, real or perceived, played no part in Respondent's decision to terminate her.
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 dismissing Petitioner's petition for relief as she failed to establish that she was terminated from employment because of a perceived handicap. DONE AND ENTERED this 6th day of December, 1994, in Tallahassee, Florida. JAMES E. BRADWELL 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 6th day of December, 1994. APPENDIX Rulings on Petitioner's Proposed Findings of Fact Paragraph 3 adopted as modified, paragraph 2 recommended order. Paragraph 4 rejected, contrary to the greater weight of evidence, paragraph 5 recommended order. Paragraph 5, adopted as modified, paragraph 4 recommended order. Paragraph 7, adopted as modified, paragraphs 9 and 10 recommended order. Paragraph 8 rejected, irrelevant. Paragraphs 9 and 10 rejected, contrary to the greater weight of evidence, paragraph 15 recommended order. Paragraphs 11-16 rejected, contrary to the greater weight of evidence. Paragraph 17 rejected, irrelevant and unnecessary. Paragraphs 18 and 19 rejected, conclusionary. COPIES FURNISHED: C. A. Sullivan, Esquire 311 S. Missouri Avenue Clearwater, FL 34616 Charles A. Powell, IV, Esquire Peter W. Zinober, Esquire Zinober and McCrea, P.A. 201 E. Kennedy Blvd., Ste. 1750 Tampa, FL 33602 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, FL 32399-1570
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Council 79 is a labor organization whose business is to represent employees in matters involving public employers concerning contractural negotiations and the administration of bargaining agreements. Council 79 employed 15 or more employees for each working day in each of 20 or more calendar weeks during 1987 and 1988. Council 79 has elected officers. Blondie P. Jordan, a black female, is the elected president and chief executive officer of Council 79. Jordan has the authority to employ persons to assist her in carrying out the duties of Council 79. Until the fall of 1988, Cox, a white male, was one of those employed by Council 79, under Jordan. Cox was employed as the Regional Director of Region III (also referred to as Tampa Region) of Council 79, and reported to Jordan. Council 79, under Jordan, also employed several other white males in positions of authority. Those included: Charles Brannon, employed in March, 1988, as the Assistant to the President, who in the absence of Jordan ran the day to day operations of Council 79 Headquarters; Ted Buri, Regional Director in Tallahassee; John Crosby, Business Manager; Mark Neimeisser, lobbyist; and Ben Patterson, Chief Attorney. Council 79 has an Executive Board over which Jordan presides, but through which the Council is governed and operated. During 1987 and 1988, Nancy Serrano, Jimmy Newell, Wesley Leon and Craig Lehning were members of the Executive Board from Region III. Serrano, Leon and Lehning belonged to a group referred to as the "Solidarity Group" that opposed Jordan. During 1987 and 1988, Serrano, Newell, Leon and Lehning at Executive Board meetings complained to Jordan about the operation of Cox's office in Tampa, particularly about the office staff and Cox not being responsive to the membership of the local unions. However, during this same period of time there were presidents of local unions who complained to Jordan about how these same Executive Board Members were not being responsive to the local union, specifically in regard to how these Executive Board members were attempting to close the Regional Director's Office in Tampa, and advised Jordan that Cox and his staff were working well with the local unions. Also, one member of Cox's staff complained to Jordan about having to drive Cox to meetings and run the office while Cox absence attending to personal business. There was no written documentation that Jordan ever discussed these complaints with Cox or any of his staff, and even though Cox admitted to having heard these complaints, although not from Jordan, he dismissed them as being political because there were coming from the Solidarity Group that opposed Jordan. Notwithstanding Jordan's testimony to the contrary, there is insufficient evidence to show that Jordan discussed any of these complaints with Cox or that Jordan counseled or advised about correcting the problems before November 3, 1988. Apparently, Jordan left the day to day operation of Region II, including the Regional Office, to the discretion of Cox, and expected Cox to correct problems in the Region without being counseled or advised by Jordan unless Cox determined that Jordan's intervention was necessary or appropriate. Likewise, there was no documentation that Cox had ever been reprimanded or counseled about his performance. In fact, the only written documentation concerning Cox's performance (other than an incomplete report by Linoria Anthony which was not received as evidence) of any problems with Cox's performance was the report written by David McGhee to Jordan on November 1, 1988, after McGhee replaced Cox, having been appointed Acting Regional Director of Region III on September 14, 1988 by Jordan. On September 12, 1988, Cox was scheduled to attend a meeting with employees from the City of Fort Myers which McGhee, Neimesser and Escudero were also to attend. Cox was to meet privately with McGhee, Neimesser and Escudero before meeting with the employees from Ft. Myers. Before the meeting, Cox was observed around the pool area by Neimesser. Cox did not attend the private meeting with McGhee, Neimesser and Escudero but did attend the meeting with the Ft. Myers employees. On September 13, 1988, Neimesser reported to Jordan that Cox had failed to attend the private meeting. On September 14, 1988, as instructed by Jordan, Brannon informed Cox that he was relieved of his duties as Regional Director. Cox was not given an opportunity to explain his failure to attend the private meeting in Ft. Myers, Florida before relieving him of his duties as Regional Director. Although Cox was relieved of his duties as Regional Director, he continued in the employment of Council 79 assisting McGhee in negotiating contracts and other matters. By letter dated September 14, 1988, Jordan appointed David McGhee Acting Regional Director of Region III. McGhee, a black male, employed by the International which Council 79 was affiliated. McGhee was the Assistant Area Director for International and its staff person with responsibility for Region III. McGhee assumed the responsibilities of Acting Regional Director for Region III on September 14, 1988.. McGhee is not now nor has he ever been on the payroll of Council 79. McGhee is continues to be the Acting Regional Director for Region III, and in addition to reporting to Jordan, reports to Gilbert Escudero, a Hispanic male, Area Director for the International and to Gerald McEntee, a white male, president of the International. On September 19, 1988, Cox voluntarily entered Horizon Hospital for treatment. Upon entering Horizon, Cox described his condition as being depressed and unable to function. Cox also described a previous history of excessive alcohol intake to the point of intoxication every weekend since his early twenties. However, there was insufficient evidence to show that Cox was suffering from alcoholism. Cox did not advise Jordan or McGhee or anyone else in authority with Council 79 that he was entering Horizon for treatment, or more specifically that he was being treated for alcoholism. Although Jordan and other employees of Council 79 may have known that Cox consumed alcohol, even to the point of intoxication on occasions, there is insufficient evidence to show that either Jordan or any other employee of Council 79 were aware that Cox had a problem with alcohol, or more specifically that Cox was suffering for alcoholism. As requested by Jordan, McGhee, by letter dated November 1, 1988, reported the problems he had encountered in the Regional Office since assuming the duties of Acting Regional Director. The report basically advised Jordan of the the problems that had been reported earlier by Serrano, Newell, Leon and Lehning. Additionally, McGhee reported on Cox's failure to negotiate contracts with the city of North Port and Local 167, Hillsborough County before they expired on September 30, 1988. As requested by Jordan, Linoria Anthony prepared a report concerning Cox's failure to negotiate contracts for several local unions in Region III with their employers. However, this report, initially offered as evidence, was withdrawn because Council 79 was unable to furnish a complete copy. On November 3, 1988, Charles Brannon was instructed by Jordan to secure Cox's resignation or to terminate his employment with Council 79. Cox resigned after being given the choices by Brannon. Upon resigning, Cox was to be given certain concessions, including one month's severance pay. Council 79 failed to honor this agreement with Cox, and he obtain a judgment in the County Court of Hillsborough County which was eventually satisfied. While Jordan's decision to effectively terminate Cox's employment (discharge) without first counseling or advising Cox on the problems in Region III as reported to her, and giving him an opportunity to correct those problems may not have been the correct or morally right decision, there is sufficient competent, substantial evidence to establish facts to show that Jordan did not terminate Cox's employment because of his race (white) or alleged handicap (alcoholism).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, RECOMMENDED that the Commission enter a Final Order finding that Petitioner, Robert Cox, was not discharged due to his race or alleged handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be Dismissed. DONE and ENTERED this 9th day of July, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statute, on all of the Proposed Findings of Fact submitted by the Respondent in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner The Petitioner did not file any Proposed Findings of Fact. Rulings on Proposed Findings of Fact Submitted by the Respondent The following proposed findings of fact are adopted in substance as modified in the Recommended Order, The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(1); 2(2); 3(3); 4(4); 5(4); 6(5); 7(6&7), 9(6); 10(9); 11(10); 12(11); 13(12); 14(13); 16(16&17); 17- 18(18); 19-20(14) and 21(19). Proposed finding of fact 8 is rejected as not being supported by competent, substantial evidence in the record, except for thesecond phrase, that complaints did not stop, which is adopted in substance in Finding of Fact 6. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 125 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Robert Cox, Pro se 8514-#3, Daffodil Drive Hudson, FL 34667 Ben R. Patterson, Esquire Patterson and Traynham 315 Beard Street Post Office Box 4289 Tallahassee, FL 32315
