The Issue The issue to be resolved in this proceeding concerns whether the Petitioner, because of his race, was given different terms and conditions of employment by being denied training, being unfairly disciplined, retaliated against, terminated, and, if those allegations are proven, what remedy is warranted.
Findings Of Fact The Petitioner, Jimmy O. Gathers, filed a Petition for Relief asserting that he was wrongfully terminated from his position with the Respondent employer and, before termination, was subjected to inadequate and improper training, inadequate work materials, was unfairly disciplined, and was ultimately retaliated against and terminated, all because of his race (African-American). The cause was set for hearing on the Petition for Relief for January 22, 2008, at the Office of the Judges of Compensation Claims, hearing room two, 2401 State Avenue, Suite 100, Panama City, Florida, at 10:00 a.m. Central Time. The Notice of Hearing was sent to the Petitioner's last known address of record at 621 Maine Avenue, Panama City, Florida 32401, notifying the Petitioner of the hearing on the above date, time, and place. There was no communication from the Petitioner by motion, letter, telephonically, or otherwise indicating that the Petitioner had any difficulty which might prevent his attending the hearing at the noticed date, time, and place. Upon convening the hearing, the Petition failed to appear. A substantial period of time was allowed to elapse, nearly one hour, in which the undersigned and the Respondent and Respondent's witnesses waited for the Petitioner to appear to put on his case. Additionally, various persons in attendance, Respondent's counsel and employees or personnel of the Respondent were requested and did observe within the building at the hearing site and in the immediate environs of the building to see if the Petitioner was observed in the vicinity of the hearing site. The Petitioner was not observed in the environs of the hearing site and never appeared at the hearing during the additional time allowed him for his appearance. Finally, after waiting a substantial period of time, as referenced above, it was determined that the Petitioner had not appeared to prosecute his claim and, since the Petitioner bears the burden of proof in this proceeding, it was determined that it was unnecessary for the Respondent to adduce any evidence in support of its position in this case and the hearing was adjourned. In excess of one month has elapsed since the hearing date, and there has been no communication from the Petitioner with the undersigned, and no indication from the Respondent that any communication from the Petitioner has been received by the Respondent, which might explain the Petitioner's absence from the noticed hearing.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 M. Kristen Allman, Esquire Oagletree, Deakins, Nash, Smoak & Stewart, P.C. 100 North Tampa Street, Suite 3600 Tampa, Florida 33062 Jimmy O. Gathers 621 Marine Avenue Panama City, Florida 32401
The Issue Whether Petitioner received a salary overpayment for the pay period ending November 9, 2000, for which the State of Florida is entitled to be reimbursed.
Findings Of Fact Petitioner was employed by the State of Florida, Department of Juvenile Justice (Respondent) as a Group Treatment Leader, Class Code 5721, for a four-month period ending on November 6, 2000. This is a career service position. Petitioner resigned from the Respondent on November 6, 2000, due to significant personal problems associated with his marriage. Petitioner's resignation was accepted by his supervisor on the same day. Petitioner was not a permanent career service employee on the date of his resignation. Petitioner received a final payment for work performed for the period October 27, 2000 through November 5, 2000, on approximately November 20, 2001. Petitioner was concerned about the possibility of overpayment and contacted his local personnel office to inquire about it. Petitioner was told by his office personnel officer not to be concerned about it. At that time, Petitioner believed the matter to be resolved and no longer an issue. By letter dated May 16, 2001, Petitioner received correspondence from Respondent alleging that he was overpaid and seeking reimbursement in the amount of $233.53 for 21.0 hours of earned annual leave that was not compensable. The notification was not prompt, but is was made in a timely manner. On May 21, 2001, Petitioner requested a formal hearing before the DOAH. On June 26, 2001, Respondent notified Petitioner that a further audit revealed that he was entitled to be paid for 8.0 hours of special compensation leave. Applying these hours to the overpayment left a balance of 13.0 hours, equaling $144.57 due. While this matter was pending before DOAH, that amount was garnished from Petitioner's wages by the Comptroller, without prior notification. Petitioner had 21.0 hours of earned annual leave while employed by Respondent. Due to excessive working hours and the critical nature of the position with Respondent, Petitioner had very limited opportunities to use his leave during the time he was employed by Respondent. Due to the short time that he was employed by Respondent, Petitioner's earned leave was not transferable to the Department of Heath, his current employer. Petitioner seeks to withdraw his original letter of resignation and substitute a new letter, to be effective November 20, 2000. This would allow him to use the annual leave and special compensatory leave to account for the period in question and cancel the garnishment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Secretary enter a final order authorizing the garnishment of Petitioner's wages in the amount of $144.57 for salary overpayment for the pay period ending November 9, 2000. DONE AND ENTERED this 1st day of November, 2001, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of November, 2001. COPIES FURNISHED: Richard D. Davison, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Sheldon S. Scrivener 5253 Jamaica Road Cocoa, Florida 32927-9058 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Respondent received a salary overpayment from Petitioner.
Findings Of Fact Based on the testimony and evidence presented at the final hearing, the following findings of fact are made. At all times material to this matter, Respondent was a career service employee of Petitioner until her separation on November 2, 2018. On November 21, 2018, Petitioner issued a pay warrant to Respondent for the pay period of November 2, 2018, through November 15, 2018, in the amount of $981.29. Since Respondent was separated from the Department, the pay warrant issued resulted in Respondent being overpaid $981.29. Upon discovering the error, Petitioner issued a letter notifying Respondent of the overpayment. Petitioner later conducted an audit and determined that Respondent’s leave balance and uniform allowance payment should be deducted from the overpayment amount, which resulted in a remaining total of $349.90. On July 10, 2019, Petitioner sent Respondent an amended letter requesting the remaining overpayment balance in the amount of $349.90.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order requiring Sierra McQueen-Ellis to repay Petitioner $349.90. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 20th day of December, 2019.
The Issue =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing the following relevant facts are found. On November 25, 1974 the Circuit Court, Pinellas County, Florida entered a Final Judgement dissolving the marriage of James Richard Fortner, Jr. and his wife Joyce Adrienne Fortner, granting the father custody of the parties' minor child, James Richard Fortner, III, and incorporating the Property Settlement Agreement (Agreement) entered into by the parties and ordering the parties to comply with the Agreement. Paragraph 2 of the Agreement provides for the father to have the care, custody and control of the minor child, James Richard Fortner, III. The husband agreed to totally support the minor child and waived any contribution from the wife. Further, the father agreed to "always take care of and totally support the minor child." Subsequent to the Final Order dissolving the marriage, the father's mother, Mary J. Fortner, gained physical custody of the minor child. It is unclear how the grandmother gained custody of the minor child since there is no order granting her custody. Subsequent to the grandmother gaining custody of the minor child, she applied for AFDC and was granted public assistance. On June 20, 1985 the Circuit Court, Pinellas County, Florida, entered an Order of Support against the Petitioner in favor of the Department and Mary J. Fortner in the amount of $51.50 per month ($50.00 support + 1.50 fee) to repay the state of Florida for public assistance expended on the minor child. Subsequent to this Order of Support on June 28, 1988, the Circuit Court, Pinellas County, Florida heard a Motion for Contempt and Review for Increase. On August 3, 1988 the court entered an order continuing the matter until September 8, 1988 and ordered the Department to investigate how the grandmother, Mary J. Fortner obtained custody of the minor child from James R. Fortner, Jr. The court file reveals that the hearing scheduled for September 8, 1988 was never held nor does the court file in this case or the dissolution of marriage case reveal any order finding Petitioner in arrears for any child support. The Department claims $547.00 for reimbursement of monies paid through the AFDC program to Mary J. Fortner and $2,047.51 for reimbursement of monies paid to the custodial foster parents for the minor child. There was no evidence that the Department ever attempted to investigate how Mary J. Fortner gained custody of the minor child or ever attempted to collect any of the public assistance funds expended on the minor child from the minor child's father who was granted custody of child and who waived child support from the Petitioner.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order to the effect that the Department is not entitled to intercept the Petitioner's federal tax refund and further recommend that any federal tax refund which may already have been intercepted shall be returned to Adrienne Horne. DONE and SUBMITTED this 29th day of October, 1990, 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 29th day of October, 1990. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the Respondent in this case. The Petitioner did not file any proposed findings of fact and conclusions of law. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1.-2. Covered in Preliminary Statement. 3.-4. Adopted in Finding of Fact 1. Adopted in Finding of Fact 2. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Not material. First sentence adopted in Finding of Fact 7, otherwise not material or relevant. Adopted in Finding of Fact 8. Not material or relevant. Not a finding of fact but a quotation of Section 409.256(1), Florida Statutes, and the Department assertion as to the effect of the Order of Support which should handled in the conclusions of law. Copies furnished to: Adrienne J. Horne P.O. Box 2554 Lake Placid, FL 33852-2534 Lisa A. Heerman, Esq. Mensh and MacIntosh, P.A. 5536 Central Avenue St. Petersburg, FL 33707 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Findings Of Fact Acco Mechanical Contractors, Inc. was a subcontractor in the construction of the regional juvenile detention center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and pursuant to Section 215.19(1)(b), Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco Mechanical Contractors, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978 Richard Fisher was employed by Acco Mechanical Contractors; Inc. on this project as a plumber. During this time Fisher was paid at the rate of $6.50 per hour for regular time and $9.75 per hour for overtime. The difference between the amount paid the Petitioner for regular time hours worked and the prevailing wage is $3.57 and the difference between the amount paid the Petitioner for overtime and the prevailing wage is $5.35 per hour. The Respondent also controverts the number of hours asserted to have been worked by Fisher. The Respondent asserts in its hearing brief that Fisher worked 459 regular hours and 50 overtime hours. The claim presented by Fisher indicated that he worked 512 regular hours and 50 overtime hours. Exhibit 8 reflects that Fisher worked 459 regular hours and 55 overtime hours. Exhibit 8 further reflects that Fisher received $6.50 per hour for regular time worked and $9.75 per hour for overtime worked. The prevailing wage rate established by the division was $10.07 per hour. The difference between the wage paid Fisher for regular time hours and the prevailing wage was $3.57. The difference paid Fisher between time and a half computed on the prevailing wage and time and a half paid Fisher is $5.35 per hour. The amount Fisher was underpaid is equal to the sum of the regular hours worked (459) times $3.57 end the overtime hours worked (55) times $5.35, or a total of $1,941.13. The Petitioner has complied with the provisions of Section 215.19(3)(a)1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. Said affidavit was filed within the time prescribed by statute. Pursuant to Section 215.19(3)(b), Florida Statutes, the Department of Health and Rehabilitative Service is presently withholding $2,322.35 from Acco Mechanical Contractors, Inc. while awaiting the decision in this administrative proceeding.
Conclusions Petitioner has established that he was hired and worked for Acco, Inc. as a plumber and that he was paid $6.50 per hour rather than the prevailing wage of $10.07 for plumbers on the project in question. Petitioner is entitled to the difference between what he was paid and the prevailing wage for the total number of hours worked by Petitioner at less than the prevailing wage. The Hearing Officer, in his Recommended Order, addressed the difference in pay between the regular time worked and overtime worked. However, Section 215.19, Florida Statutes, is void of any statutory language concerning overtime. The statute only requires that the employee be paid "not less than the prevailing wage." Absent a legislative directive in Section 215.19, Florida Statutes, concerning overtime pay, the employee is only entitled to the difference between what he was paid and what he should have been paid at the prevailing wage for the total number of hours worked at a rate less than the prevailing wage. Therefore, Petitioner is entitled to $1,638.63. Respondent's argument that the Division of Labor failed to properly adopt prevailing wage rates has been considered by the First District Court of Appeals of Florida in Vernon Neff et al. vs. Biltmore Construction Company, Inc., 362 So.2d 442, (1st DCA Fla. 1978) and State of Florida Department of Commerce, Division of Labor vs. Matthews Corporation, 358 So.2d 256 (1st DCA Fla. 1978). The Court, in both cases, upheld the process by which the wage rates are adopted. Respondent argues that additional insurance benefits should be included in the wage rates, but such benefits are not "wages". The amount paid by the employer to provide insurance benefits should not be included in Petitioner's wage nor deducted from the amount owed to the Petitioner based upon this claim. It is, therefore, hereby ORDERED and ADJUDGED that the contracting authority, the Department of Health and Rehabilitative Services, pay the Petitioner, from the amount it is withholding in this claim, the amount of $1,638.63, and that the remaining amount held by the contracting authority, pursuant to this claim, be paid to Acco, Inc. DONE and ORDERED this 19th day of December, 1978 at Tallahassee, Leon County, Florida. STEVEN H. CAMPORA, Director Division of Labor Florida Department of Labor and Employment Security Suite 200 - Ashley Building 1321 Executive Center Drive Tallahassee, Florida 32304 Telephone No.: (904) 488-7396 COPIES FURNISHED: DEWEY H. VARNER, JR., ESQUIRE Attorney for Petitioner 3003 South Congress Avenue Palm Springs, Florida 33461 L. BYRD BOOTH, JR., ESQUIRE Attorney for Respondent O'Neal and Booth, P.A. Post Office Drawer 11088 Fort Lauderdale, Florida 33339 LUTHER J. MOORE, Administrator of Prevailing Wage Division of Labor 1321 Executive Center Drive, East Tallahassee, Florida 32301 THOMAS A. KOVAL, ESQUIRE Florida Department of Labor and Employment Security 401 Collins Building Tallahassee, Florida 32304 STEPHEN F. DEAN, Hearing Officer Department of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer would recommend that the Division of Labor enter its order directing the contracting authority to pay to the employee the sum of $1,941.13 and the remaining amount held by the contracting authority pursuant to this claim be paid to Acco Mechanical Contractors, Inc. DONE and ORDERED this 1st day of November 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Dewey H. Varner, Jr., Esquire Culp and Fisher 3003 South Congress Avenue Palm Springs, Florida 33461 Byrd Booth, Jr., Esquire Post Office Drawer 11089 Fort Lauderdale, Florida 33339 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY DIVISION OF LABOR RICHARD E. FISHER, Petitioner, vs. CASE NO. 78-1283 ACCO, INC., Respondent. / FINAL ADMINISTRATIVE ORDER Upon due notice to all parties in the above-styled cause, an administrative hearing was held on September 15, 1978 in West Palm Beach, Florida before Stephen F. Dean, the assigned hearing officer. STATEMENT OF CLAIM: Petitioner, Richard E. Fisher, filed a claim against Respondent, Acco, Inc., alleging that he had been hired by Acco, Inc. in the capacity of a plumber and that Acco, Inc. had failed to pay him the prevailing wage for plumbers as required by Section 215.19, Florida Statutes. The question presented in this case is how many hours the Petitioner, Richard E. Fisher, worked, the wage paid the Petitioner, and what, if any, difference exists between the wage paid the Petitioner and the prevailing wage. FINDINGS OF FACT: Acco, Inc. was a subcontractor in the construction of the Regional Juvenile Detention Center located in Palm Beach County, Florida. The contracting authority for this facility was the Department of Health and Rehabilitative Services. The contract for the construction let by the Department of Health and Rehabilitative Services is in excess of $5,000.00 and, pursuant to Section 215.19, Florida Statutes, the Division of Labor established a prevailing wage to be paid different crafts and occupations in construction of said project. The prevailing wage established for plumbers on this project was $10.07 per hour. During the course of this project, Acco, Inc. acknowledged by affidavit that all persons in its employ were being paid the prevailing wage as required by law. Between January 7, 1978 and May 20, 1978, Richard E. Fisher was employed by Acco, Inc. on this project as a plumber. During this time, Fisher was paid at the rate of $6.50 per hour. The difference between the amount paid Petitioner and the prevailing wage is $3.57. The Petitioner has complied with the prOvisions of se6ion 215.19(3)(a) 1 and 2 by filing an affidavit with the contracting authority stating the number of hours worked and the amount of money paid for said hours. This affidavit was timely filed. Exhibit No. 8, the Weekly Time Reports for Richard E. Fisher, establish that Fisher corked 459 hours at the rate of $6.50 and 55 hours at the rate of $9.75. The difference between what Petitioner was paid and what he should have been paid at the prevailing wage rate is equal to the sum of hours worked (459) times $3.57 or a total of $1,638.63. Pursuant to the statute, the Department of Health and Rehabilitative Services is withholding $2,322.35 from Acco, Inc. pending the outcome of this claim.
The Issue The issue is whether Petitioner properly issued a Stop-Work Order and Second Amended Penalty Assessment against Respondent for failing to obtain workers' compensation insurance that meets the requirements of chapter 440, Florida Statutes.
Findings Of Fact The Division is a component of the Department of Financial Services. It is responsible for enforcing the workers' compensation coverage requirements pursuant to section 440.107, Florida Statutes. Children's Academy is a corporation operating child care centers in Miami, Florida. Children's Academy was incorporated in 1994 and has been operating with an active status since its inception. Patrick Adeleke ("Adeleke") is the sole shareholder and president of Children's Academy. Children's Academy has seven locations. Each of the seven day care centers has its own state license and occupational license. On October 5, 2011, Petitioner's investigator, Cheryl Powell ("Powell"), visited the Children's Academy location at 151 Northwest 162 Street, Miami, Florida. At the business site, Petitioner's investigator spoke to Laquisha Lewis ("Lewis") regarding the business. Lewis provided Powell a business card during the meeting that contained the seven day care centers under Children's Academy. Subsequently, Powell visited the headquarters. Adeleke was not at the business site when Powell visited the Children's Academy headquarters. The headquarters had a marquee that indicated it was Children's Academy Preschool, Incorporated. It had children, playground equipment, and was the same colors: red, yellow, and blue as the original business site Powell had visited earlier. Powell returned to the original business site and input information about Children's Academy into the Department of Financial Services' Coverage and Compliance Automated System (CCAS). She found that Respondent lacked insurance for the payment of workers' compensation coverage. Powell discovered Children's Academy's last known coverage was canceled May 19, 2003. Additionally, Petitioner's investigator verified through the CCAS that no exemptions from workers' compensation had been issued in connection with Children's Academy. Eventually, Powell spoke to Adeleke by telephone. Adeleke informed Powell that he had 27 employees working for Children's Academy and that there was no workers' compensation insurance in place. Each of the 27 employees are employed by Children's Academy under one tax ID number. Two of the seven day care center locations (Children's Academy #1 and #3) have four or more employees and the other five day care center locations (Children's Academy #2, #4, #5, #6, and #7) have three or fewer employees. Upon confirmation that Respondent lacked workers' compensation coverage and that no exemptions were in effect, the Department issued Children's Academy a Stop-Work Order ("SWO") and served a Request of Business Records for Penalty Assessment Calculation to Children's Academy ("Request"). On October 7, 2011, Respondent obtained a certificate of insurance for workers' compensation coverage. Respondent also responded to the Request and provided the Department with some of the requested records. These business records included corporate tax returns, quarterly federal tax returns, quarterly state employer's tax returns and payroll journals. The records were forwarded to Anita Proana, Penalty Auditor for the Division for review. The records listed one employer, Children's Academy, for all the business records supplied for each of the seven day care centers. All 27 employees were being paid under one corporation, with one federal employer ID number for Children's Academy. Additionally, the amounts on the payroll journals for the 27 employees matched the amount claimed as wages on the federal tax returns for Children's Academy. After Proano reviewed the records provided, she properly calculated the worker's compensation amount Children's Academy owed in workers compensation insurance for the period of October 6, 2008, through October 5, 2011, and concluded that Respondent failed to pay workers' compensation premium of $22,111.20. After the premium was multiplied by the statutory factor of 1.5, it resulted in a penalty assessment in the amount of $33,167.75. The new calculation superseded the Amended Order and a Second Amended Order of Penalty Assessment was issued on or about July 27, 2012, reducing Respondent's penalty to $33,167.75. During the hearing, Respondent admitted not having workers' compensation coverage for his employees but contested Children's Academy being a single employer. Instead, Respondent contested that the five preschools that had three or fewer employees owed any premium because each preschool was exempt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers' Compensation, issue a final order affirming the Stop-Work Order and Second Amended Order of Penalty Assessment in the amount of $33,167.75 minus the payments made to date. DONE AND ENTERED this 25th day of September, 2012, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2012. COPIES FURNISHED: Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399 alexander.brick@myfloridacfo.com Layne Verebay, Esquire Law Office of Layne Verebay, P.A. Building B, Suite 104 7800 West Oakland Park Boulevard Sunrise, Florida 33351 lverebay@aol.com Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399
The Issue Whether Petitioner has been the subject of an unlawful employment practice.
Findings Of Fact Petitioner, Howard B. Steele, a black male, has been employed with the City of Lynn Haven since October, 1981. At the time he sought employment, Petitioner applied for the position of meter reader "or any available position." A meter reader position was not available, so Petitioner accepted a position in the sanitation department, picking up garbage. Three months after his employment, Mr. Steele was transferred to the street department to work on the trash truck. The trash truck crew picks up yard trash. During the summer of 1984, Mr. Steele was selected to assist with the maintenance and upkeep of the parks during baseball season. Parks and recreation was a part of the street department, and at all relevant times, was a two-man unit. When baseball season was over, Mr. Steele and his coworker would work in the sanitation department. In 1986, Mr. Steele and another coworker were assigned to handle the parks and recreation responsibilities exclusively during the entire year. Mr. Steele was no longer required to work in the sanitation department. The City of Lynn Haven is a municipality chartered pursuant to Laws of Florida, 1951, Ch. 27685, Sec. 5. At all relevant times, Lynn Haven employed approximately 98 persons. Of the 98 employees, fifteen are black and constitute approximately fifteen percent of the City's work force. The general population of non-whites in Lynn Haven and Bay County is approximately 13.8 percent and 14.3 percent, respectively. The general population of blacks in Lynn Haven is 10.1 percent. However, the City's qualified applicant pool is significantly less than ten percent. 1/ When the City's percentage of blacks in the work force is compared to the qualified applicant pool or even to the general population figures, it is apparent the City has no hiring practices or policies that disproportionately impact on blacks. In 1979, Lynn Haven adopted a Position Classification and Pay Plan (the Plan). The Plan has been slightly modified over the past ten years. The Plan includes eight general job classifications, as follows: Administrative, Clerical, Labor, Public Safety, Equipment Operation, Refuse, Utilities, and Supervision. Each job classification has a corresponding pay range that can be adjusted in exceptional circumstances. Salary increases are obtained primarily by two methods: cost-of-living raises and merit raises. 2/ Currently, both raises are given annually to all employees. However, prior to June 1989, merit raises were given biannually. A merit increase is not automatic but is given in conjunction with an annual evaluation on the employee's anniversary date of employment. Merit raises generally range from zero to five percent within the job's pay range. Consequently, while an employee is always eligible for a cost-of-living increase, it is possible for an individual to reach the maximum salary level for his or her position and no longer be eligible for a merit increase. Additionally, under the Plan, if an employee is demoted for just cause, the demotion may be in the form of a reduction in pay or to a lesser job classification. If, however, the demotion is due to an employee's inability to perform his or her work because of health or other reasons, there is no change in the employee's pay unless recommended by the department head. Therefore, it is possible for a person to be demoted into a lower job classification and make more money than a person with more seniority already in the lower job classification. The demotion policy is facially neutral and works to the advantage or disadvantage of blacks and whites equally. In 1981, when Mr. Steele was hired, he was paid $3.35 per hour. At that time, the salary range for unskilled laborers was $2.67 to $3.74 per hour. Currently, Mr. Steele is essentially an unskilled laborer with seniority in the parks and recreation unit. He is primarily responsible for maintaining the cleanliness of the city parks. This includes mowing the grass, cutting the shrubbery, and making minor repairs. Mr. Steele also lines the playing fields before ball games. While Mr. Steele does delegate assignments and duties to his crew member, Tommy Flanders, and is sometimes required to supervise community service workers, he does not function as a department head or have the responsibilities of a foreman such as Mr. Gray or Mr. Marlowe who hold foreman positions. During his employment, Mr. Steele has received a written reprimand for falsifying a time card and has also had a well-documented problem with absenteeism spanning several years. Since his employment in 1981, Mr. Steele has been given a cost-of- living increase each year he has been employed with the City. Mr. Steele has also received the appropriate number of merit raises. None of these raises were inequitable or discriminatory. Mr. Steele received his first merit increase in July, 1982, and his second merit increase in April, 1983. Under the policy existing at the time, merit increases were given every two years. Mr. Steele, however, received an extra merit raise because of his job performance. In 1985, Mr. Steele, along with approximately 20 other white and black employees, were eligible for a merit increase. However, the City inadvertently failed to give these employees their raises. The missed raises were due exclusively to an oversight by the City and were corrected in 1986 when they were discovered. In 1986, Mr. Steele was given a 15% salary increase which included his annual cost-of-living raise and a two-step merit increase. In 1987, Mr. Steele was given a cost-of-living raise but not a merit increase. As noted above, merit increases were given biannually, and because Mr. Steele had received a two-step merit increase in 1986, he was not entitled to a merit increase in 1987. On November 3, 1988, Mr. Steele received a merit increase which raised his salary to $6.91 per hour. The following June (1989) the compensation policy was amended to permit merit raises annually. Under the new policy, Mr. Steele was eligible for a merit increase in October, 1989. Once again, the City inadvertently failed to give Mr. Steele his merit increase in 1989 but corrected the oversight retroactively. 3/ On March 10, 1990, when Mr. Steele filed his Charge of Discrimination, he was being paid $7.44 per hour. On October 29, 1990, Mr. Steele received a merit raise which brought his salary to $7.55 per hour, and on December 28, 1990, Mr. Steele received a cost-of-living raise which brought his rate of pay to $7.78 per hour. 4/ Mr. Steele has received other raises since 1990 and is currently making $8.82 per hour. It is undisputed that Tommy Flanders, Mr. Steele's white co-worker with less seniority in the parks and recreation unit, was at one time paid a higher hourly rate than Mr. Steele. Mr. Flanders was hired in April, 1981, in the fire department as a paid fireman. Mr. Flanders had been a volunteer fireman with the City since 1968. Mr. Flanders was unable to get state certification because of a vision problem, and upon denial of a fireman's certification, he was demoted to the sanitation department. He worked in this job approximately two months and then moved to Pensacola after a work-related injury. Mr. Flanders returned to Lynn Haven in August, 1985, and was hired by the City as a truck driver in the street department at a rate of $4.21 per hour. Mr. Flanders' pay was consistent with the City's pay classification system. He was promoted to Step 1 foreman in February, 1986, at a rate of $5.96 per hour. Mr. Flanders remained in the sanitation department until he was injured in another job-related accident in August, 1988. When he returned from workers' compensation leave to light duty in November, 1988, Mr. Flanders was assigned to the parks and recreation unit as a crew member with Mr. Steele. Although this was essentially a demotion, the City's demotion policy permitted Mr. Flanders to maintain the same hourly rate of pay he received as a foreman with the sanitation department. This created an unfortunate situation for Mr. Steele, who had been in the recreation unit longer and had more experience in the parks and recreation unit than Mr. Flanders. However, the pay disparity was consistent with the then-current pay and classification plan and is one reason the City began to move toward adoption of a new compensation and job classification plan. Mr. Flanders' current hourly rate is $8.45 per hour. John Barnes, a black male, is presently employed with the City as a meter reader at the rate of $9.55 per hour. Mr. Barnes was hired as a sanitation worker in 1980 at the rate of $3.35 per hour. Mr. Barnes was promoted to truck driver and then to backhoe operator. In 1987, he was encouraged by the City to apply for a firefighter's position. Mr. Barnes was hired as a firefighter. When Mr. Barnes was unable to successfully complete the state certification requirements for firefighters, he was transferred to the street department. 5/ Although this was a demotion, Mr. Barnes, like Mr. Flanders, was permitted to keep his higher pay as a fireman pursuant to the City's Compensation and Pay Plan. Mr. Barnes stayed in the street department until Sammy Oliver, a white male, encouraged Mr. Barnes to apply for a meter reader opening. Mr. Barnes filled out an application and was given the job. He has been a meter reader approximately six years during which Mr. Barnes has received job training in computerized meter reading. James Powell, a black male, worked for the City approximately 22 years before he retired in 1991. At the time of his retirement, Mr. Powell was sign foreman making $10.77 per hour. Although Mr. Powell testified he did not know he was the sign foreman, the payroll records of the City showed that Mr. Powell was classified as "sign foreman." In addition, Mr. Powell admitted on cross examination that, besides himself, numerous other blacks held position outside of the sanitation department, as follows: a black police officer, a black meter reader, a black school guard, two blacks in the recreation unit, and Charlie Smith, a black member of management working in the administrative department of City Hall. Willie Mallard is a black male working in the sanitation department. Mr. Mallard testified that he has worked for the City for ten years, and no one has ever asked him to be foreman. Mallard admitted on cross examination, however, that he had never expressed any interest in becoming foreman. Mallard further testified that the only promotion he ever sought was given to him when it came open. L. D. Marlowe is the current supervisor of the street department. He has worked for the City approximately seven years and is making approximately $11.00 per hour. His position carries greater responsibility than Howard Steele's, and he supervises a greater number of employees than Mr. Steele. Bob Gray, a white male, is the current foreman in the sanitation department. Mr. Gray has worked for the City on two occasions, the latest tenure being in 1987 when he was hired to work on the back of a garbage truck. After two years he worked his way up to foreman. Mr. Grays quick promotion was due to his work ethic and desire to work. Ralph Hester, the former city manager, approached him about the foreman position when Tommy Flanders was demoted in 1987. Mr. Gray had previously expressed to Mr. Hester interest in advancement and was more qualified than Mr. Steele for such a position. 6/ Mr. Gray testified that he is currently making $22,000 a year. However, at the time Mr. Steele filed his first Charge of Discrimination, Mr. Gray was making $8.00 per hour. In 1986, Ralph Hester, city manager at the time, appointed Tommy Flanders, a white male, to be the new foreman of the sanitation crew. Hester's decision was based upon the recommendation of the administrative assistant to the public works director, Jackie D. Cornette. Cornette's recommendation was based on the fact that Flanders was the "best worker." Although Mr. Steele did not express any interest in the position, he objected to Mr. Flanders' promotion. When the promotion was announced at a group meeting, Mr. Steele questioned why Mr. Flanders was given the job instead of other workers with more seniority. Mr. Steele did not ask that he be given the sanitation foreman's position. In 1987, the position of foreman was again open when Mr. Flanders was injured and was placed on light-duty work assignment. Although Mr. Steele did not express any interest in the sanitation foreman's job he was considered for the job, but was rejected because of his excessive tardiness, abuse of sick leave, and his inability to work unsupervised. In fact, Mr. Steele never sought the position or expressed any interest in advancing outside of the recreation unit. Mr. Steele did complain repeatedly that his current position should be better compensated; however, there was no evidence Mr. Steele ever actively sought any other position available under the City's pay and classification plan. Additionally, there was no higher position in the recreation unit under the City's pay and classification system to which Mr. Steele could be promoted. Finally, the evidence demonstrated that the City's promotion policy was based on merit rather than on seniority. However, the evidence did not demonstrate that the City's promotion policy was discriminatory. In fact, black employees who merited promotion were encouraged to seek such promotions and were promoted. The evidence was clear that Mr. Steele was not personally sought for promotion because of his excessive tardiness, abuse of sick leave and his inability to work unsupervised. Mr. Steele's lack of promotional offers had nothing to do with his race. Given these facts, Mr. Steele has failed to establish that he has been subjected to any unlawful employment practice and the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore RECOMMENDED: That a Final Order be entered by the Florida Human Relations Commission denying and dismissing the Petition for Relief filed herein. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10 day of September, 1992. DIANE CLEAVINGER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10 day of September, 1992.
