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
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.
The Issue The issue is whether the Petitioner, a former employee of the Respondent, was overpaid in the amount of $1,165.76, and should be required to repay that amount to the Respondent.
Findings Of Fact The Petitioner was a career service employee of the Respondent and was initially employed on November 17, 1997. The Petitioner’s employment with the Respondent was terminated on June 30, 2003, due to layoffs created by the outsourcing of the Family Services Unit of the Respondent. The Petitioner’s annual rate of pay at the time of her termination was $19,797.44, paid bi-weekly. By letters dated August 26, 2003, October 14, 2003, and February 16, 2004, the Petitioner was informed that six separate salary overpayments had occurred. The Petitioner actually worked 56 hours during the pay period of June 20, 2003 through July 3, 2003, but was inadvertently paid for 80 hours of work. The Petitioner was inadvertently paid for working the days of July 1, 2, and 3, 2003, although her employment had been terminated effective June 30, 2003. The overpayment was for 24 hours, amounting to $183.79, based upon the Petitioner’s annual rate of pay. The Petitioner was no longer employed by the Respondent during the pay period of July 4, 2003 through July 17, 2003, but was inadvertently paid for 80 hours of work. The overpayment amounted to $601.70, based upon the Petitioner’s annual rate of pay. Following termination of employment, the Respondent’s Human Resources Department conducted an audit of the terminated employee’s leave. An audit was performed by the Respondent concerning the Petitioner’s leave. In the course and scope of the Respondent performing the audit of the Petitioner’s leave, the Respondent discovered that the Petitioner had been overpaid for four pay periods in 2003. Once an employee of the Respondent no longer has sick leave remaining, annual leave is used to cover any shortages in sick leave. Once an employee of the Respondent no longer has either sick leave or annual leave remaining, the employee cannot be paid for additional time taken as leave. The additional time becomes “leave without pay.” The Petitioner was overpaid in four separate pay periods when she had insufficient sick or annual leave as follows: 1/31/03-2/13/03: 16.50 hours 4/11/03-4/24/03: 22.75 hours 4/25/03-5/08/03: 4.25 hours 5/23/03-6/05/03: 4.75 hours The sum of the hours of overpayment is 48.25, which translates to the amount of $380.27 in overpayment to the Petitioner for the referenced pay periods. The total amount of the Respondent’s overpayment to the Petitioner, based upon the salary payments for July 1, 2, and 3, 2003, July 4 through 17, 2003, and the four pay periods in which the Petitioner was overpaid when her sick and annual leave had run out is $183.79 plus $601.70 plus $380.27, which totals $1,165.76. The Petitioner was not at fault for the overpayment. She did not falsify her leave reports or timesheets, nor was she accused by the Respondent of having done so. The Petitioner believed that the pay she received for July 4, 2003 through July 17, 2003, was severance pay since she had been terminated when her position had been eliminated. The Respondent does not issue severance pay to terminated employees. The Petitioner believes that some of the leave she had taken during the four pay periods when her sick and annual leave had run out should have been considered administrative leave which, according to the Respondent, was offered to employees in the Family Services Unit who were facing termination as an aid to finding new jobs. Administrative leave was available to employees whose positions were being eliminated to allow them to use the Internet while at the office to search for jobs, and to leave the office for interviews or any testing required for re- employment. The Petitioner failed to document leave time, if any, during the pay periods at issue in this proceeding, that she took for purposes of job testing or interviews. The Petitioner failed to properly designate administrative leave on the automated leave system, Time Direct, for the pay periods at issue in this proceeding, even though, as a secretary specialist for the Respondent for seven years, her duties included keeping track of leave for the people in her work unit. The Respondent offered several of the Petitioner’s timesheets that reflect the Petitioner’s having taken administrative leave on more than 30 occasions from October 2002 through May 2003. These time entries for administrative leave include time during each of the four pay periods at issue in this proceeding, January 31, 2003 through February 13, 2003, April 11, 2003 through April 24, 2003, April 25, 2003 through May 8, 2003, and May 23, 2003 through June 5, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order requiring the Petitioner to repay the Respondent $1,165.76. DONE AND ENTERED this 5th day of March, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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, 2004. COPIES FURNISHED: Rosanna Boyd Apartment 162 3400 Townsend Boulevard Jacksonville, Florida 32277 Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2004 Second Edition, is an invalid exercise of delegated legislative authority.
Findings Of Fact The petitions filed by FFVA and TIC challenge the validity of Section 11B(3) of the 2004 Manual,4/ which prior to October 1, 2007, was adopted by reference as part of Florida Administrative Code Rule 69L-7.501(1). Florida Administrative Code Rule 69L-7.501(1) was amended effective October 1, 2007, to adopt by reference the Florida Workers' Compensation Reimbursement Manual for Hospitals, 2006 Edition ("the 2006 Manual"). Florida Administrative Code Rule 69L-7.501(1), as it existed when the petitions were filed and as it currently exists, adopts by reference the 2006 Manual, not the 2004 Manual. The 2004 Manual is no longer adopted by reference as part of Florida Administrative Code Rule 69L-7.501, or any other rule. AHCA applied the 2004 Manual in the reimbursement dispute initiated by HRMC against FFVA under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on October 24, 2007, which was attached to FFVA's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 07-5414. AHCA applied the 2004 Manual in a reimbursement dispute involving TIC under Section 440.13, Florida Statutes, as reflected in the determination letter issued by AHCA on January 9, 2008, which was attached to TIC's petition. The reimbursement dispute is the subject of the pending DOAH Case No. 08-0703.
The Issue The issues in this case are whether Respondent violated Pinellas County School Board Policies 8.25(1)(j) and 8.25(1)(t), and, if so, whether Petitioner should suspend Respondent for three days.
Findings Of Fact Ms. Rosenthal is employed by Petitioner as a clerk specialist III in the specialized hiring section of the human relations department of the Pinellas County School District. Part of her assigned duties includes processing applications for substitute teachers to be employed by Pinellas County Schools. Ms. Rosenthal has been employed as a clerk specialist III since 2000. Her job responsibilities include the accurate and timely processing of data and files in the specialized hiring department of the Pinellas County School District. On January 12, 2008, Ms. Rosenthal met with Starla Metz, who at that time was the human resources director for specialized hiring, concerning the length of time Ms. Rosenthal was taking to process on-line substitute applications. Ms. Rosenthal was directed to use a weekly list to track the status of the on-line applications and to enter information in the sub database when she spoke with or emailed an applicant. Terri Alford, a human resources specialist, was directed to meet with Ms. Rosenthal each Friday to offer support as needed. In February Marilyn Lusher replaced Ms. Metz as director. Beginning on April 10, 2008, and continuing for about five meetings thereafter, Ms. Lusher met with the specialized hiring department to clarify and explain the department’s processes, to communicate transitions within the department, and to emphasize her expectations regarding accuracy and the need for confidence in the clerks’ data entry process. A checklist for the front of each file was updated, as well as detailed instructions for the clerks. Terri Alford and Karen Cope, a human resource specialist, supervised Ms. Rosenthal. They advised Ms. Lusher that Ms. Rosenthal continued to make clerical errors. Ms. Lusher requested that they provide her with specific instances in which errors were made. Ms. Alford and Ms. Cope documented the errors and presented them to Ms. Lusher. Additionally, Ms. Alford and Ms. Cope were instructed to document errors made by others in the department. On August 7, 2008, Ms. Lusher met with Ms. Rosenthal concerning performance deficiencies in Ms. Rosenthal’s work. Ms. Rosenthal had inaccurately retrieved information on an individual which would make the individual ineligible for hiring. A letter to the individual stating that the individual was a no hire had to be retrieved from the mailroom. Additionally, Ms. Rosenthal had made other errors such as: filing information in an applicant’s file that should have been filed in another applicant’s file, making inaccurate data entries in Winocular, and delaying the processing of applications. Ms. Rosenthal was given some steps to take in order to improve her work performance. Ms. Alford was to continue to meet with Ms. Rosenthal on Fridays to determine what support Ms. Rosenthal might need. Ms. Rosenthal always declined any additional help. Ms. Rosenthal’s poor work performance continued, and Ms. Lusher met with Ms. Rosenthal on August 15, 2008, to again discuss performance deficiencies. Ms. Rosenthal had taken some steps to correct her errors, but she continued to have delays in processing, inaccurate data entry, incomplete files, and errors in pulling the correct files. At that time, it was determined that future evaluations of Ms. Rosenthal’s performance were to be done using the Supporting Services Performance Appraisal form, which meant that Ms. Rosenthal’s performance would be rated as unsatisfactory, needs improvement, satisfactory, or better than satisfactory. On August 15 and September 12, 2008, Ms. Lusher met with Ms. Rosenthal to discuss errors that Ms. Rosenthal continued to make in her work. On September 26, 2008, Ms. Lusher and Dr. Ron Stone, assistant superintendent of Human Resources, met with Ms. Rosenthal to discuss Ms. Rosenthal’s inappropriate use of the computer and the Internet during working hours. Ms. Rosenthal was cautioned to refrain from the inappropriate use of the computer and to improve the accuracy and timely completion of her work. She was advised that there appeared to be a correlation between her inordinate use of the Internet and her poor work performance. Prior to the September 26, 2008, meeting, Ms. Rosenthal had requested that she be given additional time beyond her scheduled work hours to complete her work. This time would be compensated either as overtime or as compensatory time. At the September 26, 2008, meeting, Ms. Lusher informed Ms. Rosenthal that she would no longer be given additional time to complete her work. On October 23, 2008, Ms. Rosenthal was given a written reprimand for the unacceptable quality and quantity of her work. Ms. Rosenthal was directed to improve her work performance. After the written reprimand was issued, Ms. Rosenthal continued to make numerous clerical errors. Ms. Lusher’s job responsibilities increased dramatically, and she did not have the time to devote to meetings with Ms. Rosenthal to discuss Ms. Rosenthal’s deficient work performance. However, in August 2009, Ms. Lusher again met with Ms. Rosenthal to discuss Ms. Rosenthal’s errors in the processing or the absence of processing additional duty forms that were needed to process payroll for certain employees. Ms. Rosenthal had also provided some inaccurate information on extra duty time that was used in an agenda item for Petitioner, resulting in a complaint from the Superintendent of the Pinellas County Schools. Other issues were discussed such as Ms. Rosenthal’s personal telephone conversations while at work, Ms. Rosenthal’s transferring telephone calls to other team members when Ms. Rosenthal should have been able to answer the telephone inquiries, and Ms. Rosenthal’s failure to stay at her desk to answer the telephone when other team members were at lunch. On September 29, 2009, Ms. Rosenthal received a performance appraisal. She received an unsatisfactory rating for quality of work and a needs-to-improve rating for job knowledge, quantity of work, and initiative. She received satisfactory ratings for the other areas of her work. Ms. Rosenthal argues that, although she made mistakes, other team members also made mistakes. When Ms. Rosenthal’s mistakes are compared to the mistakes of other team members, Ms. Rosenthal’s are significantly greater in number. The use of the Internet and the conduct of personal business during work time contribute to Ms. Rosenthal’s inability to improve the quantity of her work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Ms. Rosenthal is guilty of incompetence in violation of Pinellas County School Board Policy 8.25(1)(j) and failure to correct performance deficiencies in violation of Pinellas County School Board Policy 8.25(1)(t) and suspending her for three days without pay. DONE AND ENTERED this 7th day of July, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 7th day of July, 2010.
The Issue The issue for determination is whether Respondent's application for renewal of his certificate of registration as a farm labor contractor should be granted. Preliminary to that determination is the issue of whether Petitioner has failed to pay in excess of $10,000 in unemployment compensation taxes.
Findings Of Fact Respondent is Ernest J. Grant, a farm labor contractor and holder of a certificate of registration issued by Petitioner at all times pertinent to these proceedings. Respondent's latest certificate of registration was issued by Petitioner on December 14, 1988, and expired on July 18, 1989. On November 28, 1989, Respondent applied for renewal of his certificate of registration. By letter dated January 5, 1990, Petitioner requested Respondent to contact Petitioner'srepresentative within 14 days regarding Respondent's nonpayment of unemployment compensation taxes totalling in excess of $10,000. Petitioner's correspondence further stated that applicable Florida law prevented the renewal of a certificate of registration absent Petitioner's satisfaction that the applicant for renewal is compliant with Petitioner's administrative rules regulating farm labor contractors. Petitioner's rules require compliance by farm labor contractors with applicable rules and statutes, both state and federal, relating to the payment of unemployment compensation taxes. Respondent's history of nonpayment of unemployment compensation taxes to Petitioner is lengthy, dating back to 1978 when his tax account was established with Petitioner's Bureau of Tax. Numerous checks written by Respondent for payments for previous taxes to Petitioner have been dishonored upon presentment for payment. Petitioner's attempts to resolve Respondent's tax payment deficiencies through the establishment of "time payment accounts" for the benefit of Respondent have failed or yielded only marginal results as a result of Respondent's noncompliance with those agreements. Respondent's last token payment on such an agreement in the amount of $50 was received by Petitioner on January 11, 1985. Respondent has made no contributions for unemployment compensation taxes for the previous 18 calendar year quarters of tax liability. Respondent presently owes Petitioner $10,642.22 in unpaid unemployment compensation taxes; $6,128.36 in interest; $85 in unpaid penalties; $25 in service fees for bad checks; and $28 in filing fees. The total amount currently owed by Respondent to Petitioner is $16,928.58.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Respondent's application for renewal of his certificate of registration as a farm labor contractor. DONE AND ENTERED this 30th day of April, 1990, in Tallahassee, Leon County, Florida. DON W.DAVIS 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 30th day of April, 1990. COPIES FURNISHED: Ernest J. Grant 204 Sally Blvd P.O. Box 1222 Bowling Green, FL 33834 Moses E. Williams, Esq. Suite 117 Montgomery Building 2562 Executive Center Circle Tallahassee, FL 32399-2152 Hugo Menendez, Secretary 206 Berkeley Building 2590 Executive Center Circle, East Tallahassee, FL 32399-2152 Stephen Barron, Esq. 131 Montgomery Building 2563 Executive Center Circle, East Tallahassee, FL 32399-2152
The Issue The issue is whether Respondent is guilty of insubordination for the use of excess leave and sleeping in his vehicle during working hours.
Findings Of Fact On or about April 21, 2004, Petitioner hired Respondent as a school custodian. Starting on December 11, 2007, Petitioner transferred Respondent to Toledo Blade Elementary School. One year later, Petitioner transferred Respondent to the Transportation Department, which is the building housing the transportation offices. As a custodian, Respondent is a "classified" employee. He is covered by the Classified Bargaining Unit Collective Bargaining Agreement between the Sarasota Classified/Teachers Association and Petitioner (the contract). Twice on the morning of April 25, 2008, during working hours and not while on a break, Respondent walked from his worksite to his vehicle, climbed into the vehicle, and nodded off to sleep. The first nap lasted for about one hour, and the second nap lasted about one and one-quarter hours. The second nap ended when Respondent's boss and the boss's boss walked out to the vehicle where they found Respondent, who had put the driver's seat down, laid out in the front driver's seat, with the radio on, sound asleep. They woke him and ordered him back to work. Respondent's defenses are: 1) he was not asleep; he was unconscious; and 2) he was suffering from extreme drowsiness due to medications that he was taking following his recovery from a three-month coma into which he had fallen two years earlier. Both of Respondent's defenses are makeshift. According to Webster's online dictionary, "sleep" is the "natural periodic suspension of consciousness during which the powers of the body are restored." (http://www.merriam- webster.com/dictionary/sleep, as found on June 17, 2009) If he had suddenly lost consciousness at the worksite, no one would claim he was sleeping on the job. Instead, without reporting any difficulties to anyone, he walked out to his vehicle, made himself comfortable, and fell asleep. The problem was that his natural period of suspended consciousness coincided with time during which Petitioner was paying him. The requisite restorative effect is inferred. Nor is there any credence to the claim of a medical condition or effect of a medication that would leave Respondent unable to resist falling asleep while on duty. Although ample opportunity existed, Respondent failed, on the day in question, to bring to the attention of his supervisor any medical reason for sleeping on the job, which was exactly what he was doing. Article XXI of the contract authorizes discipline for "just cause." Sleeping while on duty, for over two hours prior to lunch, constitutes insubordination and just cause for discipline. The leave issue is more complicated. Petitioner is on a fiscal year starting July 1. For the entire year, classified, 12-month, hourly employees, such as Respondent, accrue six personal days on July 1. For sick days, these employees accrue one day at the end of July and three advance days. They then accrue a day at the end of each following month through March. Unused sick days rollover to the next year, but unused personal days do not. Personal days count against the sick days. In other words, if an employee has five sick days and six personal days and uses a personal day, he will then have four sick days and five personal days. Employees also earn vacation days. As explained by Petitioner's payroll supervisor, the payroll system facilitated recharacterizations between sick and personal days. However, the system did not incorporate vacation days in the same fashion. Thus, if an employee took off one day, without claiming sick leave, and lacked one day of personal time, the system would dock his pay, even though he might still have had sufficient vacation time to absorb the time that he had taken off. For the 2007-08 school year, Respondent used "personal leave charged to sick" as follows: September 12--8.0 hours; September 24--8.0 hours; December 20--8.0 hours; December 21-- 8.0 hours; January 30--0.5 hours; February 15--8.0 hours; and February 27--7.5 hours. On February 27, Respondent missed the entire day of work. Consistent with acceptable practices, on the next day, he submitted a form entitled, "Certificate of Absence." In it, Respondent requested approval for 8.0 hours of "personal leave charged to sick," rather than one of the other categories, such as sick leave or vacation leave. His supervisor signed the form. When the payroll supervisor checked his balances, she saw that he only had 7.5 hours of personal leave charged to sick, so, on May 2, 2008, Respondent had to sign a form entitled, "Request for Personal/Sick/Vacation Leave in Excess of Earned Leave." This form requested approval for the use of 0.5 hours of personal leave in excess of earned leave. The request was disapproved by the Director of Facilities Services with a signature bearing a date of March 13, 2008. The payroll department's practice was not to deduct personal leave charged as sick against vacation leave, if an employee consumed all of his personal leave charged as sick. On March 14, Respondent again requested 2.5 hours of personal leave charged to sick. His supervisor noted on the form that he "cautioned Tim to make sure he has the time available--Tim told me that he does. 3-14-08." By this time, it is unlikely that Respondent had received a new statement of leave balance reflecting the 0.5 hours that he had been short two weeks earlier. On May 2, 2008, Respondent signed another request for permission to use personal leave in excess of earned leave, and the Director of Facilities denied the request with a signature bearing a date of March 27, 2008. The same process took place again on April 11 for 8.0 hours on April 7. Petitioner notes that this request also violated policy regarding custodial leave on the day immediately after spring break, for which leave requests must be submitted well in advance of the leave sought. Article XVII of the contract requires a special procedure for leave on days immediately preceding and following a school holiday, but the emphasis in testimony was on the importance of adequate custodial staff on such days. However, the purpose of this policy is to address the needs of schools with respect to returning students. Because Respondent was not assigned to a school, nor had he been assigned to one temporarily for returning students, he was not undermining this policy by conforming to general policy, which allowed after-the-fact requests. In any event, as the payroll supervisor testified, it is possible that Respondent still had vacation time each time that Petitioner docked him for requesting personal leave charged as sick when he had already exhausted his personal leave. On these facts, Petitioner does not have just cause to discipline Respondent on the ground of insubordination or any other ground. There is no doubt that Respondent understood the interplay between personal leave charged to sick and sick leave, but there is considerable doubt as to, on the first two occasions on which he overdrew on his balance of personal leave charged to sick that he knew that he was doing so. Additionally, there is a reasonable possibility that he had available vacation leave, against which all of this time could have been charged; absent proof from Petitioner precluding this possibility, the entire dispute is reduced to the level of finding the proper account to debit these relatively few hours of missed work. This does not rise to insubordination, nor does it constitute just cause for discipline. Article XXI of the contract requires progressive discipline, which constitutes a verbal reprimand, written reprimand, suspension with or without pay, and dismissal. The next step in progressive discipline for Respondent is suspension with or without pay, not dismissal.
Recommendation Based on the foregoing, it is RECOMMENDED that the School Board of Sarasota County, Florida, enter a final order dismissing the charge of excessive use of leave and finding Respondent guilty of the charge of sleeping while on duty and suspending him, without pay, for five working days. DONE AND ENTERED this 18th day of June, 2009, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 18th day of June, 2009. COPIES FURNISHED: Hunter W. Carroll, Esquire Matthews, Eastmoore, Hardy Crauwels & Garcia, P.A. 1777 Main Street, Suite 500 Sarasota, Florida 34236 Lisa J. Kleinberg, Esquire Law Offices of Kleinberg, Ingram & Murphy, P.L. 2189 Ringling Boulevard Sarasota, Florida 34237 Mrs. Lori White, Superintendent Sarasota County School Board 1960 Landings Boulevard Sarasota, Florida 34231-3365 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
