The Issue The issues to be resolved in this proceeding concern whether the Petitioners were the victims of an unlawful employment practice by being denied promotions allegedly on account of their age.
Findings Of Fact Petitioner Little was employed by Monsanto, the Respondent, for 34-1/2 years until his retirement on January 1, 1990. Petitioner Akins is currently employed by Monsanto and commenced employment with that firm on December 13, 1955. The Monsanto Company operates a manufacturing facility in the vicinity of Pensacola, Florida, which converts certain chemical feed stocks to synthetic filaments and/or yarns for use in the textile and fiber industries. Petitioner Akins is currently a "Group 12 Maintenance and Instrument Mechanic", an hourly "manufacturing unit" position. Prior to his retirement, Petitioner Little was a "Group 11 Maintenance and Instrument Mechanic", also an hourly manufacturing unit position. Monsanto's Pensacola facility operates with a manufacturing unit employing hourly wage employees and a Technical Center which employs essentially all salaried employees. The two facilities within the plant are separate and distinct units. In December 1989, Monsanto posted two vacancies for a salaried "Operations Technician" position in the Technical Center. The procedure for a promotion or transfer from an hourly job to a salaried Technical Center job is contained in the Nonexempt Selection Procedure Manual, in evidence as Petitioners' Exhibit 1 and Respondent's Exhibit 1. When a vacancy is announced in a salaried position, interested employees submit a "Request for Salaried Job" and "Employee Placement Profile" to the plant employment office. Thereafter, a screening committee comprised of plant personnel determines whether the self- nominated candidates are qualified for the vacancy. That committee selects the qualified candidates and submits the list of those candidates to the Technical Center personnel superintendent. The department with the vacancy thereafter receives notification from the Technical Center personnel department of the candidates to be interviewed. The employees who nominated themselves for the vacant Operations Technician position were Petitioners Little and Akins, Terry Nettles, W. D. Tidwell, and Joni Troutman. All of the candidates who were self-nominated for that Operations Technician position were interviewed by a committee consisting of three technical employees; Charles Livingston, Lawrence Brantley, and Gary Green. All these individuals on the committee were over the age of 40. The committee interviewed each candidate in accordance with the evaluation criteria set forth in the Nonexempt Job Selection Procedure Manual. Some of the factors which the committee considered were the knowledge and skills of each candidate, applicable experience, past job performance, communication skills, attendance records, human-relation skills, and employee initiative. The committee's objective was to select the most qualified candidate for the position based upon the aforementioned factors. Seniority was considered by the committee, but only as one of many factors. Although seniority is a deciding factor in manufacturing unit professions, seniority is not the deciding factor in the selection process in the Technical Center. In accordance with Monsanto's equal employment opportunity policy, age was not a consideration in the selection process. The committee did not ask any candidate any questions about age, nor did the committee ask the candidate when he or she planned to retire from the company. Following the interview, the committee selected Richard T. Nettles, age 47, as the most qualified candidate for the Operations Technician position. Mr. Nettles had been employed by Monsanto from December 1963 until he was terminated by a reduction in force or layoff in June 1985. After leaving Monsanto, Mr. Nettles worked for the James River Corporation at a similar type of plant in an Operations Technician position, the type of position at issue in this proceeding. His job was very similar to the one he held at Monsanto. Mr. Nettles was subsequently rehired by Monsanto in September 1989 as an hourly Manufacturing Unit Employee. During his previous employment with Monsanto, Mr. Nettles had been in an Operations Technician position in the Technical Center for approximately 18 years. During that time, Mr. Nettles' performance evaluations were consistently above average or excellent. Additionally, Mr. Nettles had recently completed college level courses in computers, science and metallurgy, as well as a chemical operator training course at Pensacola Junior College. Mr. Nettles was the only applicant for the Operations Technician job who had ever performed the Operations Technician job in the past. Mr. Nettles was a probationary employee at the time he applied for the Operations Technician position. Monsanto has no policy which prohibits probationary employees from applying for promotions. Rather, the probationary period is simply a period in which a newly hired employee is being evaluated for purposes of retention and during which no job-related benefits accrue. Further, Mr. Nettles was not barred from applying for the Operations Technician position because he was required to spend any length of time in his prior job. Promotions or transfers from hourly to nonexempt salaried positions in the Technical Center are governed by the Nonexempt Selection Procedure Manual. The Nonexempt Selection Procedure Manual contains no restrictions on upward mobility. Monsanto has never followed a policy of restricting the upward mobility of its employees. Ultimately, Mr. Nettles was evaluated by the committee, the appropriate recommendations were made, he was found to be the most qualified candidate for the job and thus was offered the Operations Technician position, which he accepted. Petitioners Little and Akins were dissatisfied with the committee's selection and thereafter pursued the plant's appeal procedure to appeal the decision to hire Mr. Nettles for that position. In the final step in that appeal procedure, the Petitioners met with plant manager Leon Hebert. Mr. Hebert played no part in the selection of Mr. Nettles. Indeed he has no authority over the Technical Center hiring process at all. In their meeting, Mr. Hebert explained to Petitioners why Mr. Nettles was selected over them for their Operations Technician position, most notably, because of his past experience on the job. Mr. Hebert also explained the differences in the selection procedure in the manufacturing unit as compared to the Technical Center. Mr. Hebert made no comments about the Petitioners ages during this meeting, although Mr. Akins maintains he made a comment to the effect that the job in question was not to be a "swinging gate for retirees." Even if Mr. Hebert made such a comment, it is not probative of discrimination or discriminatory intent on the part of the employer for the reasons discussed in the conclusions of law below involving Mr. Hebert playing no part in the decision concerning who to hire for the position in question. Shortly after the vacancy for the Operations Technician position was filed, a similar vacancy was announced for a Spinneret Technician position in the Technical Center. The candidate selected for that position, Mr. Walter Williams, was the oldest candidate who applied for the job.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the Petitions of Bennie J. Little and Carlton E. Akins in their entirety. DONE and ENTERED this 2nd day of February, 1992, in Tallahassee, Florida. P. MICHAEL RUFF 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 3rd day of February, 1992.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner was employed by the respondent $` percent General Telephone Company in October of 1971. From November of 1980 to February 3, 1982, he was classified as a cable splicer. This position requires strenuous physical duties including climbing telephone poles, lifting and moving heavy equipment, handling compressed gas cylinders that weigh 150 pounds and digging splice pits. Performance of the duties of a cable splicer requires strong hands, arms, back and leg muscles. In November of 1980, petitioner suffered a back injury and was unable to perform the activities of a cable splicer. He was placed on Absent Injury status, thus receiving 80 percent of his salary, and returned to work on or about January 6, 1981. He then took left-over vacation time until January 19, 1981, and about one week later, a light duty assignment was located for him at the Seminole DART Center. Although this assignment required no driving, petitioner complained that the drive to and from the Seminole location aggravated his back condition and was difficult for him due to the medications he was taking for his physical problems. On or about February 17, 1981, petitioner was reassigned to duty as a clerk at the St. Petersburg main building. Due to several absences, complaints by petitioner that he could not sit, stand or bend for long periods of time and that alternating from sitting to standing was painful, petitioner was relieved of all duties on March 30, 1981. He was informed that he would again be placed on Absent Injury status until such time as respondent could verify with the treating physician exactly what petitioner was capable of doing. There is some indication that petitioner may have returned to work in a light duty position in May and June of 1981, though petitioner had no recollection of these dates. In any event, petitioner returned to Absent Injury status on or about June 23, 1981, and was paid Absent Injury benefits until approximately December 15, 1981. He was then advised that his Absent Injury benefits were exhausted, that he would be placed on vacation as of December 16, 1981, and that his benefits with respondent would expire as of December 31, 1981. Petitioner was further advised that he could request a 30-day leave of absence, provide a doctor's statement regarding his present condition and that, during that 30-day leave of absence period he could request an additional 5 month leave of absence. Upon the advice of his Union representative, petitioner did request and was granted a 30-day leave of absence, which expired on January 31, 1982. On January 19, 1982, a meeting was held with petitioner to discuss his medical condition. He was advised that there were no light duty positions available at that time and that his 30-day leave of absence would terminate at the end of January. Petitioner's supervisor suggested that he request further leave of absence without pay in order to protect his employment and continue his benefits. Petitioner became angry at this suggestion, refused to request additional leave without pay, and uttered some statement about a "personal tragedy." His supervisor felt that he had been threatened by Mr. Wiggins and notified the police. Petitioner was terminated on February 3, 1982. The reasons cited for the termination were failure to apply for an additional leave of absence before his last 30-day leave had expired and insubordination at the January 19, 1982, meeting. Petitioner presented no evidence that other light duty assignments were available in January of 1982. He made reference to two other light duty assignments held by other employees. He acknowledged that one such position held by a white employee required extensive driving, and admitted that he was unable to drive for long distances or long periods of time. The other light duty position that petitioner believed he could have filled was awarded to a black employee. Other than these two positions, petitioner was not aware of any light duty assignments which were available between May and December of 1981 and were not afforded to him. Petitioner also admits that he was unable to perform the duties of a cable splicer in 1981 and in January of 1982.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's charge that the respondent committed an unlawful employment practice be DISMISSED. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0606 The undersigned has carefully considered the proposed findings of fact and conclusions of law submitted by the petitioner and the respondent. The proposed findings of fact have been accepted and/or incorporated in this Recommended Order, except as noted below. Petitioner: The document filed by the petitioner entitled "Proposed Findings of Fact and Conclusions of Law" contains neither factual findings nor legal conclusions. Instead, petitioner complains of the procedural rulings at the final hearing. The undersigned would only note that the final hearing occurred on a Friday and that the parties were advised that if the hearing were not completed on that day, it would be continued to a later date. It was only after the petitioner announced that he had no further witnesses that respondent moved for a directed recommended order and elected not to present any evidence after that motion was granted. Respondent: (NOTE: Any reference to the hearing transcript and Mr. Wiggins' deposition transcript are rejected inasmuch as neither transcript was filed with the Division of Administrative Hearings.) 23 and 24. Rejected as irrelevant and immaterial to the issues in dispute. COPIES FURNISHED: E. D. Wiggins 4843 Campenella Drive Jacksonville, Florida 32209 Kathryn M. Lancaster, Esquire 501 First Avenue North Suite 626 St. Petersburg, Florida 33701 Leslie Reicin Stein, Esquires Post Office Box 110, M.C. 7 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925 Regina McGriff, Clerk Florida Commission on Human Relations 325 John Knox Road, Bldg. F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Respondent Pobst had been employed by Petitioner and had obtained permanent status in the career service as a half-time University Parking Patroller, at the time he transferred to the position of Motor Vehicle Operator (MVO) on Friday, April 18, 1986. At that time, he came under the supervision of Terry Fisher, Store Supervisor of the University's Central Receiving Department. The MVO position was full time, with regular hours of 8 a.m. to 5 p.m., and Pobst was on probationary status in that job classification at all times relevant to these proceedings. Prior to being hired in that position he had been counseled by Eugene Weber, Stores Manager (supervisor to Terry Fisher), concerning abuse of leave, but the emphasis was on sick leave abuses. On Monday, April 28, 1986, Pobst reported one hour late due to a weekend holdup, and immediately requested and received authorization from Fisher to take unpaid leave so as to obtain a copy of a report from the Tampa Police Department. Pobst had no annual leave available. When he transferred positions he was already in arrears for time off and already owed money for that time off. Fisher requested that Pobst telephone him later in the day. Respondent completed his business with the Tampa Police Department late in the day and did not need additional time. Nevertheless, he did not call Fisher because the work day was completed when he had the first opportunity to call in. Both Pobst and Fisher understood that Pobst would return to work no later than the beginning of the workday on Tuesday, April 29, 1986. Fisher would have granted additional leave on the same terms (unpaid leave with payroll deduction) had Pobst called in, however, Pobst never called in. Pobst did not report for work on Tuesday, April 29; Wednesday, April 30; Thursday, May 1; or Friday, May 2. From the time Respondent left Fisher on the morning of April 28 until the morning of Sunday, May 4, 1986, Respondent had no contact with his immediate supervisor or with any other individual in his chain of supervision at the University. Late the night of April 28, Pobst was injured in a fight. At 12:30 a.m. on April 29, Pobst was arrested for aggravated assault. The charge was ultimately dismissed by the Hillsborough County Circuit Court. However, he arrived at Hillsborough County Sheriff's Central Booking at 2:20 a.m., was booked at 4:54 a.m., and processed at 6:15 a.m. on April 29. From 2:20 a.m. until 6:15 a.m. on April 29, Pobst was either in a Booking/Releasing Section holding cell without telephones, or on a bench in the Receiving Area with two regular local-only telephones as well as two collect-only telephones that resemble pay telephones. He made one telephone call from a collect call telephone. He made that call to the information operator, in an attempt to get Terry Fisher's home telephone number. The call was refused by the information operator because it "was made from a collect call telephone." Respondent was not allowed to make a second telephone call at that time but was told by the officer in charge of him that he would have an opportunity later to make another call. In any case, Pobst would have been unsuccessful in getting Terry Fisher's home phone number because it was unlisted. He did not again ask to use the telephone for the remainder of April 29, 1986, either during business hours when he might have reached Fisher at work or after business hours. From 6:15 a.m. until approximately 1:00 p.m. on April 29, Respondent was in a Housing and Support Section holding cell consisting of three rooms: a dayroom with collect-only telephones that resemble pay telephones; a sleeping room without telephones; and a vestibule between the sleeping and dayrooms. This was cell 200C/2, which is one of several individual sleeping rooms opening onto a common dayroom with collect-only telephones operable from 7:00 a.m. until 11:00 p.m. Although the sleeping area and dayroom are normally kept locked, confined persons usually have free access to both areas 24 hours a day. However, there are times and circumstances in which the areas are separately locked, and confined persons do not have such free access. At approximately 1:00 p.m. on April 29, Respondent was moved to the infirmary for examination and on medical staff instruction was placed in cell 200C/2 "B", a lockdown cell for medical observation. This particular lockdown cell was intended for confined persons who were deemed to need psychiatric observation. In the psychiatric medical lockdown area, incarcerated persons normally are allowed out of their cells for one hour per day to take a shower, watch television, or make telephone calls. However, special circumstances or inappropriate behavior may result in an inmate being denied the opportunity to leave his cell on any given day. Respondent had no access to a telephone during the move, wait, or infirmary/dispensary visit. Although Pobst's testimony emphasized his physical injuries and confused state of mind resulting from the assault by third persons leading up to his arrest in the midnight hours of April 28-29, he also related that while awaiting medical examination on April 29, he engaged in a fight with three police officers who requested that he undress for the physical examination. It appears to be this belligerent attitude which resulted in his being confined in restraints thereafter. Respondent's candor and demeanor and various inconsistencies in his testimony do not render him credible on the issue of inability to contact his employer during the whole of the time prior to his being placed in restraints or the period after he was released therefrom. His testimony that he was so confused at all times that he could not ask for a phone is not believable in light of the police log that he was in "good" condition on May 2, the testimony of Officer Blackwood that even a very "bad" prisoner would get to use the phone or write a letter if he just asked to do so, and that the property inventory showed Pobst had available $.85 for stamps or a local phone call. For these same reasons, Respondent's testimony that he was not permitted to use the phone at any time is not credible. Respondent's father testified to Respondent's disheveled and beat-up appearance on Friday, May 2, but Respondent appears to have been capable of coherent conversation. Respondent did not visit a medical doctor until May 7, 1986, five days after his release, and then did so primarily for the purpose of obtaining a medical excuse in an attempt to be rehired. Pobst was first placed in restraints at some time on Wednesday, April 30, and was in and out of restraints that day and the next, Thursday, May 1. An individual is placed in medically-approved restraints if he is viewed by the staff as a danger to others, or if the medical staff believes that he is at risk to commit suicide. An individual in restraints may not be allowed out of his cell on any given day and in this condition he is not permitted to use the telephone. On Wednesday, April 30, Fisher advised Eugene Weber, Stores Manager, that Pobst had not reported for work or called in since their Monday conversation. On April 30, after telephoning at least four area hospitals, Fisher telephoned Hillsborough County Sheriff's Office Central Booking and was informed that Pobst was in jail for aggravated assault and that all inmates could make as many telephone calls as they wanted. Fisher reported this information to Weber who reported the same to his supervisor, Keith Simmons, Director of Procurement. 1/ On Thursday, May 1, Simmons telephoned Hillsborough County Jail Central to confirm Fisher's report that Pobst had access to a telephone and was told that all an inmate had to do was ask and that inmates are let out for just such purpose each day. In reliance on this information, Simmons contacted Roland Carrington, Director of Labor Management Relations, requested advice regarding the appropriate University response to Respondent's unauthorized absences, and was told it was appropriate to invoke the job abandonment rule. On Friday, May 2, Respondent Pobst was not in restraints at any time during the day, and his condition and attitude were both noted as "good" on the police log completed at 10:00 a.m. and 4:30 p.m. Respondent did not ask to use a telephone on Friday, May 2 until at least 5:00 p.m., at which time he telephoned his mother in Indiana and then waited in the dayroom for release. When Respondent was allowed to use the telephone on May 2, 1986, he instructed his mother to have his father call his employer to notify him of his whereabouts. She in turn telephoned his father, Robert Pobst, in Tampa. Robert Pobst called for his son at 8:25 p.m. and effected release on bond at 9:40 p.m. on Friday, May 2. After being released from jail at 9:40 p.m. on Friday, May 2, 1986, both Respondent Pobst and his father attempted to reach Respondent's superiors at the University of South Florida. Respondent also attempted to reach Terry Fisher at home, but did not have enough information to get in touch with the right person. On Sunday, May 4, Respondent reached Weber at home by telephone. Pobst explained the circumstances of his absence to Mr. Weber, and informed him he desired to report for work the following morning. Weber explained that Respondent's unauthorized absence was deemed as a resignation via job abandonment and that the paper work had already been processed. However, the true chronology is that upon Weber's notification Friday, May 2, that Pobst had again failed to appear or call that day, Simmons instructed his administrative assistant to prepare a letter of notification to Pobst. The letter provided that he was deemed to have resigned via abandonment. However, it was not until Monday, May 5, 1986, that Simmons actually mailed Pobst the notification of acceptance of his resignation via job abandonment by certified mail, return receipt requested. On Monday, May 5, 1986, before receiving the official notification of abandonment, Pobst reported to the University one hour before the beginning of the work day. At that time Pobst's request for reconsideration of his resignation via abandonment was declined by Simmons in reliance on information from the Sheriff's Department which contradicted Respondent's assertion that he was unable to contact the University during the whole of April 29 through May 2 inclusive. Terry Fisher had the authority to grant Pobst leave for the time he was incarcerated in the Hillsborough County Jail, and would have done so had Respondent given him a telephone call requesting such leave. On April 30, 1986, Terry Fisher, Eugene Weber, and Keith Simmons, all had knowledge that Respondent was incarcerated in the Hillsborough County Jail and had not appeared for work because he was physically unable to be present at work. Although each of Respondent's superiors knew that Respondent was incarcerated in the Hillsborough County Jail and was unable to be at work for that reason, none made any attempt to contact Respondent in order to gain direct information on his employment status or intentions. It was not demonstrated that any University supervisor had any animosity toward Pobst, and it appears that it was not Pobst's being in jail but his failure to call in and their belief that he could have called in and did not do so that influenced Pobst's superiors to invoke the resignation via abandonment rule on May 2. Mr. Weber specifically chose to invoke the rule because he had made a negative assessment of Pobst's credibility from previous absence excuses and because he relied on the telephone representations by law enforcement personnel that Pobst could have called at any time. Additionally, Weber, who was Fisher's superior, took into consideration that late April and early May was an especially busy time of year for Central Receiving because it was the end of the fiscal year and all University departments were receiving large orders in an attempt to exhaust their old budgets before claiming new ones. After May 5, Respondent made numerous efforts to regain his employment. He talked with Fisher, Weber, Simmons, and Roland Carrington in the University's Personnel Office. He requested his then-current position, OPS employment, and work he had performed prior to his transfer on April 18, 1986. Following his termination from employment Respondent made an application for Unemployment Compensation. Because the University of South Florida initially contested his eligibility, Respondent was required to appeal the initial denial of unemployment compensation. Thereafter, Respondent and the University of South Florida were parties before an appeals referee, who conducted a de novo evidentiary hearing. The issue before the appeals referee was whether Respondent "voluntarily left employment without good cause." In determining this issue, the appeals referee applied a test of "good cause" associated with "misconduct" as those words of art are defined or contemplated in Chapter 443 Florida Statutes, determined that Respondent had committed no misconduct, and awarded unemployment compensation.
Recommendation Upon consideration of the foregoing, it is, RECOMMENDED that a Final Order be entered finding Respondent to have abandoned his position with the University of South Florida. DONE and RECOMMENDED this 10th day of April, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1987.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Notice of Specific Charges filed against him, and, if so, whether he should be terminated from his employment with Petitioner.
Findings Of Fact Respondent was employed by Petitioner in 1982. From 1984 to 1993, he was employed as a head custodian. He was demoted from that position to the position of custodian in 1994. Thereafter, he was employed by Petitioner as a custodian assigned to Lindsey Hopkins Technical Education Center. At all times material hereto, John Leyva was the principal of Lindsey Hopkins. Leyva delegated many of his responsibilities as principal, including his supervision over the custodial staff, to other administrative personnel. Prior to his assignment to Lindsey Hopkins, Respondent was the subject of progressive discipline, consisting of formal and informal conferences, counseling sessions, and reprimands. At the beginning of Respondent's employment at Lindsey Hopkins, Respondent was assigned to the third shift, from 11:00 p.m. to 7:00 a.m. During the 1994-95 school year, Respondent was frequently absent, and he failed to follow appropriate notification procedures with respect to his absences and his whereabouts during work hours. From July 1994 through July 1995, Respondent was absent a total of 76 days, of which 7 1/2 days were without authorization. From June 2, 1995, through June 6, 1995, Respondent was absent without authorization for three consecutive work days. Respondent's absences had an adverse impact on his work site inasmuch as his absences created a morale problem among staff and resulted in areas within Lindsey Hopkins not being cleaned properly. Eventually, due to Respondent's attendance problems, Respondent was moved from the third shift to the second shift, from 3:00 p.m. to 11:00 p.m. During this time Respondent was to report to James Parker, the on-site vice-principal. As a custodian, Respondent was also supervised by Dennis Caldwell, Linda Morris, and Lawrence King. Although Caldwell was not present during the major portion of Respondent's second shift, since Caldwell's regular hours ended at 4:00 p.m., there were many times when Caldwell went to the work site in the evening to spot-check his employees and address different problems in the custodial area. On March 23, 1995, Respondent was issued a memorandum that delineated his absences during the school year and which provided numerous directives to Respondent regarding the appropriate procedures he was to follow if he were going to be absent in the future. He was directed to communicate his intent to be absent directly to his supervisors and to provide documentation from a treating physician for his absences due to illness. He was also directed to comply with Petitioner's leave procedures. Respondent was also provided with notice of the adverse impact that his absences had on his work environment. He was offered assistance to achieve regular attendance. He was advised that continued non-compliance with attendance procedures and directives would be considered a violation of his professional responsibilities. On May 17, 1995, Respondent was not in his assigned work area, and he had failed to notify anyone of his whereabouts. Further, he refused to discuss his absence with Caldwell after being directed to speak with Caldwell. On May 26, 1995, Respondent was involved in a physical altercation with a woman on the premises of Lindsey Hopkins during Respondent's working hours. During the course of this incident, King noticed that Respondent was staggering and that he had alcohol permeating from his breath. King concluded that Respondent was under the influence of alcohol and sent Respondent home. On May 30, 1995, Respondent was directed to attend a conference-for-the-record on June 7, 1995, to address his conduct. Respondent failed to attend the conference-for-the- record. On June 8, the conference was re-scheduled for June 14, but Respondent did not attend that conference-for-the-record either. Respondent was administratively referred to Petitioner's Employee Assistance Program in an effort to provide him with assistance in eliminating his continuing pattern of unauthorized absences and performance-related problems. On March 19, 1996, despite directives from Caldwell regarding Respondent's work responsibilities, Respondent failed to complete his daily work assignments with respect to the lockers within his assigned area. In a written warning, Respondent was notified that his continued non-performance would result in further disciplinary action. On July 30, 1996, Respondent again failed to carry out his job responsibilities. He failed to empty trash cans and sweep or mop the corridors within his assigned area. In a written warning, Respondent was again directed to complete his daily work assignments. From July 1995 through July 1996, Respondent was absent for 45 days, 7 1/2 of which were without authorization. During the period from July 11, 1995, through July 18, 1995, Respondent was absent without authorization for at least three consecutive work days. On September 18, 1996, Tom Albano saw Respondent sleeping on the floor in the child care room during his work hours. The child care room is not an authorized break area. Further, at the time he was caught sleeping, Respondent was not on an authorized break. Albano told Respondent that his conduct was improper and that there were other things he could be doing rather than sleeping. On October 1, 1996, Parker found Respondent sleeping on the couch in the child care room at a time when Respondent was not on an authorized break. Parker prepared a memorandum addressing the sleeping incidents to give to Respondent. The memorandum documented the appropriate procedures concerning Respondent's work schedule and break areas. It notified Respondent that his actions adversely impacted the effective operation of the work site. It provided directives to Respondent and advised him that non-compliance with the directives would be considered a violation of his employment responsibilities. In order to give Respondent the memorandum, Parker called Respondent into his office to meet with him and Albano on October 2. During that meeting Respondent reacted to Parker in a loud, irate, aggressive, hostile, and threatening manner. He called Parker a racist and a bigot and told Parker that Parker must be on drugs. Parker became concerned for his own safety. Parker and Albano provided written summaries of the meeting to Principal Leyva. Leyva directed Respondent to attend a conference-for- the-record on October 7, 1996. That conference was canceled by Leyva, with the consent of Respondent's union, due to an injury Leyva suffered. The conference-for-the-record was re-scheduled for the following day, but Respondent failed to attend. The conference was re-scheduled for October 15 but was postponed at the request of Respondent's union and re-scheduled for October 22. Respondent failed to appear for the October 22 conference and was absent from his work site October 21-28, 1996. The school administrators subsequently learned that Respondent was incarcerated for domestic violence at the time of the October 22 conference and during the period of October 21-28. It is Petitioner's policy that absences due to incarceration are documented as unauthorized leave without pay. As a result, Respondent's absences from October 21 through October 28 were documented as unauthorized leave without pay. Respondent returned to Lindsey Hopkins on October 30. Parker requested that Respondent come to Parker's office so they could discuss Respondent's unauthorized leave status and so that Parker could direct Respondent to report to the Office of Professional Standards (hereinafter "OPS"). Due to his previous meeting with Respondent and out of concern for his own safety, Parker had two other employees present in his office awaiting Respondent's arrival. When he arrived at Parker's office, Respondent had a strong odor of alcohol permeating from his breath. He also appeared to be stumbling, his eyes were red and bloodshot, and he appeared angry, upset, and agitated. Therefore, Parker directed Respondent to report to OPS for re-admittance to Lindsey Hopkins and had Respondent escorted off the school campus. Respondent failed to follow Parker's directive to report to OPS before returning to Lindsey Hopkins. Instead, Respondent reported to Lindsey Hopkins on the following day, October 31, 1996. When Leyva was advised that Respondent was at Lindsey Hopkins, he directed that Respondent come to Leyva's office. Two other employees were present in Leyva's office. When Respondent came to Leyva's office, those present noticed that Respondent was swaying and mumbling, his speech was slurred, and he smelled of alcohol. Leyva contacted Dr. Thomasina O'Donnell in the OPS for further direction, and she advised him to ask Respondent if he would consent to take a drug/alcohol test based upon reasonable suspicion. Respondent agreed to take the test and was escorted to the testing facility. His breath alcohol test revealed the presence of alcohol in Respondent's system. The following day Leyva administratively referred Respondent to OPS, and OPS thereafter sent Respondent a letter requesting that he contact the office to schedule a conference- for-the-record. OPS convened Respondent's conference-for-the-record on November 5, 1996. Respondent's aggressive and violent behavior at the work site was discussed, as was his October 31 breath alcohol test confirming the presence of alcohol in his system and, thus, his intoxication at the work site. His attendance and future employment status were also discussed. Respondent was directed to provide OPS with official documentation by November 12, 1996, showing his enrollment and participation in an alcohol recovery program. He was also advised of his right to clarify, explain, and/or respond to any information recorded in the conference summary. Respondent was again referred to the Employee Assistance Program and was administratively re-assigned to another work location pending formal notification of any disciplinary action. Respondent never provided any documentation to OPS to clarify, explain, respond to, or refute any of the allegations made against him during the conference held on November 5. Likewise, Respondent never complied with the directive given him during the November 5 conference that he provide OPS with documentation of his enrollment and participation in an alcohol recovery program. From November 1995 through November 1996, Respondent was absent a total of 37 days, 12 of which were without authorization. From July 1996, the commencement of the contractual school year, to February 5, 1997, the date on which Petitioner suspended Respondent and initiated these dismissal proceedings, Respondent had already accrued a total of 24 days of absences, 12 of which were without authorization. From October 21, 1996, through November 5, 1996, Respondent was absent without authorization for at least three consecutive work days.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the allegations contained in the Amended Notice of Specific Charges filed in this cause and dismissing Respondent from his employment with Petitioner effective February 5, 1997. DONE AND ENTERED this 22nd day of May, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1998. COPIES FURNISHED: Heidi Shulman-Pereira, Esquire Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132-1308 Donald Appignani, Esquire Phillips, Levy & Rind, P.A. 3001 Ponce de Leon Boulevard, Suite 214 Coral Gables, Florida 33134 Roger C. Cuevas, Superintendent of Schools Dade County School Board 1450 Northeast Second Avenue, Suite 403 Miami, Florida 33132-1308
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Overall organization. The City of Tarpon Springs has a mayor and four commissioners and operates under a city manager form of government. Neither the commissioners nor the mayor play an active role in the day to day operation of the City. The City Manager has the responsibility of operating the day to day affairs for the City. Collective bargaining relationships exist between the City and unions representing the Police and Fire Departments. The City Manager negotiates for the City in these relationships. Other than the Police and Fire Departments, there are approximately fifteen or sixteen departments with over 100 employees within the City. The actual number of employees varies seasonally, with the City employing more in the winter. At this time, the City employs approximately seventeen persons under the CETA program. The Public Works Department consists of ten or eleven separate departments, each of which, is headed by a foreman, and the Public Works Director has overall responsibility for the entire Department. His position is primarily one of assistant city manager. Four or five times a year, the City has supervisory meetings attended by the City Manager, the Public Works Director and the foremen of the various departments. Discussed at such meetings, are problems involving personnel, discipline and scheduling. Uniforms are available to most City employees on a voluntary basis. If, an employee chooses to wear a uniform, the City pays half the price of the uniform for the employee, with the exception of school crossing guards for whom the City furnishes uniforms and CETA employees for whom uniforms are not available. Uniforms worn by foremen have the word "foreman" written on them. Foremen. Each department under the Public Works Department is headed by a single foreman, with the exception of the Parks and Cemeteries Department which has two foremen. These various departments each have between three and eighteen employees, and include the departments of streets, sewer, sanitation, water distribution, building and maintenance, meters, water pollution control, and general maintenance. The City generally does not hire persons for the various departments without the recommendation or approval of the foreman. Under normal conditions, the foremen make the decision as to overtime work and the transfer of employees from one department to another. Written and oral evaluations and recommendations for wage increases are made by the foreman to the Public Works Director, which recommendations are normally approved. If an employee were caught drinking on the job, a foreman may fire the employee and then tell either the City Manager or Public Works Director about it later. The City then conducts an investigation into the matter to avoid possible future problems, but normally the decision of the foreman is approved. With a less offensive problem, such as absenteeism, the foreman issues a warning in writing. After the second warning, the foreman informs the Director or Manager that he is dismissing that employee and the City then terminates employment. Foremen make the decision as to time off for personal problems or emergencies and also grant approvals for vacation times. If there are complaints or grievances within a department, the foreman of that department normally takes care of it, very seldom do grievances come to the Public Works Director. An employee may be transferred from one department to another through the agreement of the two foremen involved. The primary duty of the various foremen is to direct the employees and supervise the activities within their respective departments. During shortages of personnel, foremen participate in the same type of work as their employees. Supervisory authority is one of the basis, along with longevity, for the pay differentials between foremen and other employees. Foremen assist in the formulation of policies and work schedules within their respective departments and are consulted with respect to the preparation of the budget. There are no supervisory-type personnel between the foremen and the Director of Public Works. Foremen handle grievances and would thus have a role in the administration of collective bargaining agreements. CETA employees. CETA employees work along with other City employees and the City is reimbursed for their salaries by the federal government. While they may have the same rate of pay as another person in their classification and do receive overtime pay, they do not receive raises nor do they have the fringe benefits which other employees have, such as hospitalization, uniforms, paid holidays, vacation, and sick leave. The CETA program presently extends through September 30, 1976, and such employees are hired until that time. If the City had a vacancy in a regular, permanent position, it would fill that position with a good CETA employee rather than going out and hiring another employee. Part-time employees. The City employs a number of part-time employees to work as school crossing guards, to police the beach, to do summer work with recreation, to work in the library and to do clerical and custodial work. Certain of these part-time employees are seasonal. In order to receive hospitalization benefits, an employee must work thirty or more hours per week. The three school crossing guards work 25 hours per week and receive uniforms fully paid for by the City. They are supervised by the Chief of Police. Other part-time employees fall under the supervision of the foreman or director for the department for which they work. Vacation and sick leave, as well as holiday pay, are prorated for part-time employees based upon the number of hours that they work. Their rate of pay is based upon the federal minimum wage though some regular part-time employees receive merit pay increases. In accordance with F.S. Section 447.307(3)(a) and F.A.C. Rule 8H-3.23, no recommendations are submitted. Respectfully submitted and entered this 4th day of August, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Curtis Mack Chairman Public Employees Relations Commission Suite 300 2003 Apalachee Parkway Tallahassee, Florida Mr. Edward R. Draper 5400 West Waters Avenue, B-4 Tampa, Florida 33614 Mr. Allen M. Blake, Esquire Marlow, Mitzel, Ortmayer & Shofi 607 South Magnolia Avenue Tampa, Florida 33606
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue The issue to be resolved is whether Petitioner, Emma J. Brown, was subject to discrimination in her employment by Respondent for the reasons alleged in her Petition for Relief.
Findings Of Fact Based upon the demeanor of the witnesses while testifying, exhibits admitted in evidence, and stipulations and argument of the parties, the following relevant, material, and substantive facts are found: Petitioner, Emma J. Brown (Ms. Brown), an African- American female, began working for Respondent, Sunbelt Health Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a Certified Nursing Assistant (CNA) on or about February 11, 2002, after an interview by Barbara Derby-Bartlett (Ms. Derby- Bartlett), director of nursing, who made the decision to hire Ms. Brown. Margaret Levesque (Ms. Levesque), a white female, was hired as a CNA by Sunbelt in June of 2002. A CNA's duties include assisting the nursing staff in overall patient care. At the time of their hire, all new employees were required to attend an orientation process. During orientation, new employees, including Ms. Brown, were given a copy of Sunbelt's employee handbook and other printed materials, including Sunbelt's "Call-Off Guides" policy. The "Call-Off Guides" policy specifies the means and method employees are required to follow when they can not be present for their scheduled work shifts. The policy also informs the new employee that repeated absenteeism will result in immediate dismissal. Sunbelt is a 24-hour, full-care facility with residents located in both its north side wing and south side wing. Employees work on both wings. Sunbelt used two shifts, the day shift and the night shift, to provide residents with 24-hour care and service. Ms. Brown testified that at the time of her hire, she informed Sunbelt that she could not work the day (first) shift because she had another job. Her request to work the night (second) shift was granted. On February 22, 2002, after 11 days of employment, Ms. Brown suffered an on-the-job injury to her wrist. Ms. Brown re-injured her wrist on March 22, 2002, and suffered an on-the- job back injury on April 7, 2002. Ms. Brown, through counsel, filed workers' compensation claims for her on-the-job injuries. Ms. Brown's treating physician placed her on work restrictions, limiting her duties to no bending and no lifting over 20 pounds. On or about May 24, 2002, Ms. Brown returned to work and presented her work restrictions, and Sunbelt assigned Ms. Brown to the night shift to perform light-duty work assignments. The light-duty work assigned to Ms. Brown consisted of answering residents' call lights, checking their vital signs, assisting residents with their meals (passing trays), and replenishing their water supplies on both the north and south wings. Ms. Brown requested that Sunbelt change her work schedule to day shift and allow her to work five consecutive days with weekends off. This request was denied. During the pertinent time, two other CNAs, Ms. Levesque and Shirley Manley (Ms. Manley), were also on light-duty. Ms. Levesque and Ms. Manley, white females, performed light-duty work assignments on both the north and south wings similar to those performed by Ms. Brown. According to Ms. Brown, Ms. Levesque worked weekdays for two consecutive months with no weekend duty, and she was not allowed to do likewise. On June 6, 2002, Sunbelt transferred Ms. Brown from night shift to day shift. Ms. Brown maintained that there is "more light-duty work" during the day shift than during the night shift, and by keeping her on the day shift, her workload was increased when compared to CNAs working during the night shift. Ms. Brown filed her claim of discrimination, and Sunbelt, by and through counsel, attempted settlement of Ms. Brown's claim of discrimination without success. Ms. Brown maintained that the proffered settlement did not justify the treatment she received. Sunbelt presented the testimony of Ms. Levesque, who was hired in June 2002 as a CNA but was initially assigned to the duty and function of "staffing coordinator." The staffing coordinator is a day shift employee whose primarily duties consisted of preparing CNAs' work schedules and identifying and securing replacements for those CNAs who called in and, for whatever reasons, did not or could not report for duty as scheduled. During her staffing coordinator assignment, Ms. Levesque also assisted CNAs in their duties, but was assigned light-duty with a 20-pound lifting restriction. Her CNA duties include passing food trays during breakfast, lunch, and dinner; replenishing water; and anything that did not require her to physically pick-up and/or lift a resident. In or about mid-August of 2002, Ms. Levesque's schedule changed, and she was required to work every other weekend. On several occasions, Ms. Levesque and Ms. Brown worked on the same shift, but not on the same wing. Ms. Derby-Bartlett testified that upon receipt from an employee's physician detailing the employee's limitations, she would work within those specific limitations in assigning CNAs to light-duty. According to Ms. Derby-Bartlett, light-duty work assignments are less during the night when residents are asleep and more during the day when residents are awake. After her appointment to the position of director of nursing, Ms. Derby-Bartlett became aware that Ms. Levesque was not working every other weekend and informed Ms. Levesque that she would be scheduled to work every other weekend. Ms. Levesque's request for a couple of weeks to make adjustments was granted, and she thereafter was scheduled to work every other weekend. Ms. Derby-Bartlett confirmed that Ms. Brown was assigned light-duty work assignments on June 6, 2002, and Ms. Brown was a no-show for work. On July 3, 2002, Ms. Brown was assigned light-duty, and she called in as a no-show. On July 4, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. On July 5, 2002, Ms. Brown was assigned light-duty, and she did not call in or show for work. Ms. Derby-Bartlett contacted the staffing person on each day Ms. Brown called in and on each day Ms. Brown was a no- show, confirming the accuracy of the reports. Ms. Derby-Bartlett contacted Ms. Brown regarding her no-calls and no-shows and informed her of Sunbelt's policy of termination for repeated absenteeism. Ms. Brown, believing her doctor had called Sunbelt on one of the days she was a no-show, was mistaken because no doctor called. On July 5, 2002, Ms. Derby-Bartlett completed Sunbelt's disciplinary form to terminate Ms. Brown due to her several no-calls and no-shows, in violation of Sunbelt's policy, and forwarded her recommendation to Maria Coddington, Sunbelt's unit manager. Ms. Derby-Bartlett testified that since her appointment as director of nursing, the no-show/no-call termination policy has been consistently applied, and she was not aware of any employee who had been no-show/no-call for two consecutive days who had not been terminated. Five months after hiring Ms. Brown, Ms. Derby-Bartlett terminated her. Sunbelt's employee handbook's "Call-Off Guides" policy regarding absenteeism provides, in pertinent part that: "if employees do not call in or do not show up for work for two consecutive days or three nonconsecutive days, it is grounds for termination." Each employee, as did Ms. Brown, signed individual employment documents attesting to having received a copy of Sunbelt's "Call-Off Guides" policy when hired. Ms. Brown was terminated because of her violation of Sunbelt's policy regarding two or more absenteeism without notice to her employer and her repeated failure, albeit her belief that her physician was going to call on her behalf and did not do so, to timely inform her employer of her absence from scheduled duty. Ms. Brown's termination by Sunbelt was based on her violation of their employee work attendance policy and not because of her race and/or ethnic origin. Ms. Brown failed to present a prima facie case of discrimination based on her race as alleged in her complaint of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner, Emma J. Brown. DONE AND ENTERED this 20th day of August, 2004, in Tallahassee, Leon County, Florida. S FRED L. BUCKINE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 2004. COPIES FURNISHED: Emma J. Brown 38723 Barbara Lane Dade City, Florida 33523 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Alan M. Gerlach, Esquire Adventist Health System-Legal Services 111 North Orlando Avenue Winter Park, Florida 32789 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
