The Issue The issue in this proceeding is whether Petitioner's lottery prize should be withheld and used to pay an outstanding debt for child support.
Findings Of Fact The Petitioner did not appear and no evidence was presented.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Banking and Finance enter a final order dismissing the Petitioners request for a formal hearing, and transferring Petitioner's lottery prize to the Department of Revenue in partial satisfaction of Petitioner's debt for past public assistance obligation. DONE and ENTERED this 20th day of October, 1995, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October, 1995. COPIES FURNISHED: James Merriweather 1333 7th Street West Jacksonville, FL 32209 Chriss Walker, Esquire Child Support Enforcement Department of Revenue P. O. Box 8030 Tallahassee, FL 32314-8030 Louisa Warren, Esquire Department of the Lottery 250 Marriott Drive Tallahassee, FL 32399 Stephen S. Godwin, Esquire Office of the Comptroller Suite 1302, The Capitol Tallahassee, FL 32399-0350 Hon. Robert F. Milligan, Comptroller Department of Banking and Finance The Capitol, Plaza Level Tallahassee, FL 32399-0350 Harry Hooper, Esquire Department of Banking and Finance The Capitol - Room 1302 Tallahassee, FL 32399-0350
The Issue Whether the Florida Department of Financial Services, Division of Workers’ Compensation (Respondent) should enter a final order dismissing the Petition for Resolution of Reimbursement (Petition for Resolution) filed by Martin Memorial Health Systems (Petitioner). If the Petition for Resolution should not be dismissed, whether Guarantee Insurance Company (the Carrier) improperly disallowed reimbursement owed to Petitioner for services Petitioner rendered to an injured employee/claimant and the amount thereof.
Findings Of Fact Paragraphs 1–38 of the Agreed Facts and Conclusions of Law set forth in the Joint Pre-Hearing Statement and Filing of Exhibits are hereby incorporated by reference. The Notice of Deficiency issued by Respondent should not have been issued because the Petition for Reimbursement was complete when filed. Respondent has no basis to dismiss the Petition for Reimbursement. Petitioner provided medical services to an employee that had workers' compensation insurance coverage from the Carrier. The usual and customary charges for the services at issue in this proceeding totaled $61,111.09. The Carrier paid Petitioner the sum of $9,135.52 based on the Carrier’s determination that the charges should be based on inpatient treatment on a per diem basis. The greater weight of the evidence establishes that the services to the injured employee should be billed under the category “outpatient surgery” pursuant to the pre-admission authorization provided to Petitioner. Respondent has duly adopted rules that govern billing limitations. The parties agree that outpatient surgery, such as the services at issue in this proceeding should be reimbursed at 60 percent of the usual and customary charges. Petitioner is entitled to reimbursement from the Carrier in the amount of $36,666.65, which is 60 percent of $61,111.09. The Carrier should be credited with having paid the sum of $9,135.52, so the additional amount of the reimbursement due to Petitioner from the Carrier is $27,531.13 ($36,666.65 less $9,135.52) plus any applicable interest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Financial Services enter a final order ordering the Carrier to reimburse Petitioner, Martin Memorial Hospital, in the additional amount of $27,531.13 plus any applicable interest. DONE AND ENTERED this 20th day of May, 2010, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 May, 2010. COPIES FURNISHED: Karen Kennedy Martin Memorial Health Systems Post Office Box 9010 Stuart, Florida 34995 Mari H. McCully, Esquire Department of Financial Services Division of Workers` Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Brian F. LaBovick, Esquire LaBovick & LaBovick, P.A. 5220 Hood Road, Second Floor Palm Beach Gardens, Florida 33418 Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue The issue is whether Respondent committed unlawful employment practices contrary to Section 760.10, Florida Statutes (2007),1 by discriminating against Petitioner based on her race or color in its failure to promote her or in its decision to terminate her employment.
Findings Of Fact Wal-Mart is an employer as that term is defined in Subsection 760.02(7), Florida Statutes. Petitioner, an African-American female, was hired by Wal-Mart on or about August 26, 2004. At the time of her dismissal, she worked as a Customer Service Manager ("CSM") on the overnight shift, from 10 p.m. to 7 a.m. As a CSM, Petitioner performed various cashiering and supervisory duties at the front end of the store. These duties included conducting cash transactions and making refunds to customers. Petitioner's employment with Wal-Mart was terminated on November 13, 2007, for a category of offense styled "Gross Misconduct--Integrity Issue" related to fraudulent returns. In plain language, Petitioner was alleged to have stolen money from Wal-Mart by issuing "refunds" to nonexistent customers and pocketing the money from the cash register. Wal-Mart has a "Coaching for Improvement" policy setting forth guidelines for progressive discipline. See endnote 4, supra, for a brief description of the disciplinary progression. While the progressive discipline process is used for minor and/or correctable infractions such as tardiness, "gross misconduct" constitutes a ground for immediate termination. The coaching policy explicitly sets forth "theft," "dishonesty," and "misappropriation of company assets" as examples of gross misconduct. Prior to her termination, Petitioner's most recent three progressive "coachings" related to her habitual poor attendance and punctuality. A verbal coaching for misconduct related to attendance/punctuality was issued on January 5, 2007. A written coaching for misconduct related to attendance/punctuality was issued on February 23, 2007. A "decision day" for misconduct related to attendance/punctuality was issued on August 24, 2007, because Petitioner had accumulated six unauthorized absences since the written coaching in February. All of these coachings pre-dated Petitioner's Complaint by more than 365 days. Petitioner conceded that these coachings were unrelated to the reasons for her dismissal from employment. Apart from her unconvincing testimony about an allegedly malfunctioning store time-clock, Petitioner essentially conceded that she had persistent problems arriving on time for work. Petitioner also conceded that, aside from hearsay and rumor on the floor of the store, she had no personal knowledge of anyone else's coachings and thus had no basis for comparing her disciplinary history to that of any other Wal-Mart employee. Wal-Mart's "Promotion & Demotion Criteria" expressly provide that an employee is not eligible for a promotion to management trainee if he or she has an active written coaching. A written coaching is "active" for a period of one year after its issuance, meaning that Petitioner would not have been eligible for promotion to management trainee until February 24, 2008, had she not been discharged on November 13, 2007. Wal-Mart's "Career Preference" system is a computer program that allows employees to express their interest in promotion to other positions. An employee may log onto the Career Preference system and indicate her interest in a particular job. If an employee has not indicated her interest, she is not considered to have applied for the position and will not be considered for that job opening. A printout of Petitioner's Career Preference history was entered into evidence. It indicates that she never applied for a promotion to department manager. On April 13, 2006, Petitioner attempted to indicate her interest in the management trainee program. However, the Career Preference system will allow only qualified employees to indicate an "interest" and thereby be considered for a job; less-than-qualified employees are shown to have an aspirational "goal" of attaining the position. As of April 13, 2006, Petitioner had at least one active written coaching in her employment file,6 had not completed the prerequisites for the management trainee program, and was therefore ineligible for the position. Thus, the Career Preference system did not list her as having an "interest" in the management trainee position and she was not considered for the job. The evidence indicates that Petitioner was not qualified or eligible for a promotion at any time during the 365-day period preceding the filing of her Complaint. Wal-Mart's asset protection coordinators ("APCs") and Market Asset Protection Managers ("MAPMs") work under an entirely different chain of command than those employees involved in store operations. APCs and MAPMs are not involved in day-to-day decisions regarding employee discipline or promotions. Sandra Raines is the APC for Wal-Mart Store 5326, where Petitioner worked. Her job is to supervise and investigate integrity and facility safety issues, including instances of suspected theft by Wal-Mart employees. Ms. Raines reports directly to Melanie Clemons, the MAPM for 12 stores in Market 481, including Store 5326. Ms. Clemons supervises 12 APCs as to their asset protection duties, which includes allegations of internal theft by Wal-Mart employees. As part of her job, Ms. Raines reviews a weekly refund review report. This report provides information regarding suspicious transactions, such as refunds in excess of $50 for which the customer did not provide a receipt. The report provides information necessary to trace the transaction: the operator number of the cashier, the number of the register on which the transaction occurred, and whether the transaction was hand-keyed. It is usual Wal-Mart refund practice to scan the Universal Product Code ("UPC") bar code from the receipt into the register. A "hand-keyed" transaction is one in which the register operator manually overrides the register's protocol and types the information into the register, rather than scanning in the UPC bar code. Ms. Raines testified that, though there are legitimate reasons for using this procedure, a hand-keyed transaction is one of the "red flags" that cause her to look more deeply into a transaction. In the course of reviewing the November 3, 2007, weekly refund review report, Ms. Raines noticed a sale of $963.92 in merchandise at 3:47 a.m. on October 24, 2007, conducted by Petitioner. She also noticed a refund of $212.92 related to that receipt at 3:29 a.m. on November 2, 2007. The refund was hand-keyed. The large amount of the refund, the odd hour at which it occurred, and the fact that it was hand-keyed, combined to rouse Ms. Raines' curiosity. Ms. Raines reviewed the electronic journal, a record of every transaction that takes place in the store. She was able to obtain the original receipt from the October 24, 2007 purchase and the receipt for the November 2, 2007 refund. The refund receipt indicated that the returned item was a recliner chair. Ms. Raines' suspicions became greater as she wondered who would return a recliner at 3:29 a.m., then further intensified when she noted the original receipt showed that no recliner was purchased. Ms. Raines' preliminary review of the refund report and the receipts led her to believe that Catherine Durso, a white female CSM working the overnight shift, conducted the refund transaction. Ms. Durso's operator number was on the refund receipt. Ms. Raines began reviewing store surveillance footage to find visual evidence that Ms. Durso had committed a fraudulent return. Ms. Raines reviewed the video of the original October 24, 2007, sale and saw no recliner. However, she did observe Petitioner printing an additional copy of the sales receipt approximately 11 minutes after the sale. Ms. Raines next reviewed the video of the November 2, 2007 refund transaction. She saw no recliner chair7 and no customers present at the register at the time of the refund. Instead, Ms. Raines saw Petitioner conducting the refund transaction on Ms. Durso's register at 3:47 a.m. Ms. Durso was not to be seen in the surveillance footage of this transaction. Based on all the evidence before her, Ms. Raines concluded that Petitioner hand-keyed a fraudulent cash refund for $212.92, using the UPC code for a recliner chair and the transaction number from the reprinted receipt she had kept from the October 24, 2007 sale. At this point, Petitioner had recorded a cash refund of $212.92 but had not taken any money from the register. Ms. Raines therefore continued to watch the video to "kind of see what's going to happen next." At 6:03 a.m., Petitioner recorded a "no sale" transaction on the same register she had used for the refund. A "no sale" can only be performed by a CSM or a member of management because it involves opening the register drawer without actually recording a sale. A "no sale" is typically used when the cashier needs to change out larger bills for smaller ones. On this "no sale," Petitioner appeared to be merely sorting money. However, Petitioner recorded a second "no sale" three minutes later, at 6:06 a.m. This time, Petitioner removed money from the large-bill slot of the register and concealed the money in a black jacket draped over her left arm. Petitioner admitted removing the money from the register and placing it under her jacket. She claimed that she did so in order to safely move the money from the front of the store to the accounting office in the back. This claim was not credible. Ms. Raines testified that there is never a situation in which a CSM should hide money under a jacket. Wal-Mart provides blue register bags for transporting money and requires their use, for reasons of safety and employee integrity. Based on her observation of the fraudulent return transaction, and the removal and concealment of money from the register drawer, Ms. Raines concluded that Petitioner was stealing money from Wal-Mart. Ms. Raines continued her investigation, and discovered two additional fraudulent returns performed by Petitioner. Both of these returns were hand-keyed, and both used the receipt from the October 24, 2007 purchase. One refund transaction occurred on October 24, 2007, the same date as the purchase. Petitioner hand-keyed a refund for a recliner chair in the amount of $212.92, the same amount as the November 2, 2007 refund. The second refund occurred on October 26, 2007. Petitioner hand- keyed a $249.09 fraudulent refund for a Barbie Jeep, a battery- operated toy car large enough to hold two young children. No Barbie Jeep was purchased on October 23, 2007. For both of these refunds, Petitioner used the same $963.92 receipt from October 24, 2007, that Ms. Raines observed Petitioner reprinting 11 minutes after the actual purchase. Ms. Raines viewed the store video to confirm that no customers were present when these refunds were conducted. She also confirmed that no recliner or Barbie Jeep entered the store on the dates in question. Finally, Ms. Raines observed that on October 13, 2007, Petitioner's register was $300 short at the end of her shift. The surveillance video for that date showed Petitioner performing nine "no sale" transactions. Under the guise of performing an audit of the cash register, Petitioner was removing money from the drawer. Ms. Raines notified her supervisor, Ms. Clemons, of her observations and her conclusion that Petitioner conducted several fraudulent refunds in order to steal money from Wal- Mart. Ms. Clemons reviewed the evidence gathered by Ms. Raines. She reviewed the store videos to verify that Petitioner conducted three fraudulent refund transactions. At the conclusion of her independent review of the evidence, Ms. Clemons was convinced that Petitioner had stolen money from Wal-Mart. Ms. Raines and Ms. Clemons scheduled an interview with Petitioner on November 13, 2007. At this interview, Ms. Clemons terminated Petitioner's employment with Wal-Mart because of gross misconduct. During the interview, Petitioner admitted that she conducted fraudulent returns. She wrote out a statement in her own words: I had a couple of returns that were not actually returns. They were used for emergency personal purposes due to severe hardship and past-due medical bills. To my recollection, it has only started just recently around October 2007 and only 3x's that I remember. I do apologize for the integrity issue and am willing to pay back the 3 that I know and remember. I felt I was pushed over the edge by personnel and corporate or none of this would have happened. Everyone goes through hardships and I guess it was just my turn and that's how I chose to deal with [sic]. Again, I apologize and am willing to repay Wal-Mart, given the opportunity. At the hearing, Petitioner unconvincingly claimed that she was "coerced" into writing the above statement by a promise that Wal-Mart would not pursue criminal charges for the theft if she made a written confession. She claimed that the statement was not true, but was the result of putting herself "in a theatrical acting mode," imagining what would make someone do the things of which she stood accused. This testimony was not credible. Ms. Raines and Ms. Clemons credibly testified that Petitioner was not coerced into admitting her guilt. Ms. Clemons stated that she offered Petitioner the opportunity to write a statement out of adherence to Wal-Mart procedures. Ms. Clemons did not need the statement. She already had all the evidence she needed and would have fired Petitioner whether or not she wrote the statement. Petitioner admitted that she was discharged solely as a result of the investigation performed by Ms. Raines and Ms. Clemons. Petitioner was criminally prosecuted for the theft. She pled guilty and was convicted of grand theft, was sentenced, and paid restitution to Wal-Mart. Petitioner testified that she does not believe and does not contend in this forum that either Ms. Raines or Ms. Clemons discriminated against her because of her race or color. She testified that the discrimination did not involve Ms. Raines and Ms. Clemons: "I was fired by them, but the case of discrimination goes way before that." Even if the time-barred elements of the Complaints were considered, Petitioner provided no evidence beyond her bare assertions that she suffered from discrimination on account of her race or color. She believed that Ms. Durso received favored treatment, not because she was white and Petitioner was black, but because Ms. Durso had relatives in management and friends in the store. Also, Ms. Durso had computer skills that Petitioner lacked, which at times enabled Ms. Durso to sit at a desk in the back of the store while Petitioner did the heavy lifting in the front. Given Petitioner's obvious lack of candor as to the central issue of her termination, the undersigned is reluctant to base tangential findings on Petitioner's word alone. Even if Petitioner's testimony were credited as to the preferential treatment accorded Ms. Durso, Petitioner alleged no motive related to race or color in any of this treatment. Petitioner offered no record evidence that she was qualified for, applied for, and was denied a promotion. To the contrary, the evidence showed that Petitioner kept herself ineligible for promotion under Wal-Mart rules by having written "coachings" on her record for persistent lateness and unapproved absences from work. Petitioner offered no evidence that a similarly situated employee of another race or color committed a similar theft and was not discharged from employment with Wal-Mart. The greater weight of the evidence establishes that Petitioner was terminated from her position with Wal-Mart due to gross misconduct on the job in form of fraudulent refunds that attempted to cover her theft of money from her employer. The greater weight of the evidence establishes that Wal-Mart has not discriminated against Petitioner based on her race or color.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, L.P. did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 6th day of April, 2010, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 6th day of April, 2010.
The Issue The amount of attorneys' fees and costs to be awarded to Jerry Ann Winters (Petitioner) based on the Order of the Second District Court of Appeals dated November 8, 2002, and pursuant to Subsection 120.595(5), Florida Statutes (2003).
Findings Of Fact The Petitioner retained attorneys Mark F. Kelly and Robert F. McKee to represent her in an administrative proceeding challenging the proposed termination of her employment by USF and in the appeals that followed the issuance of the Final Orders by USF. Petitioner's Exhibit 1 is an invoice dated December 18, 2002, submitted to the Petitioner by her legal counsel. The invoice contains charges billed to the Petitioner for the period between January 17, 2001, and November 22, 2002. The invoice indicates a total of 339.75 hours expended on her behalf. The invoice contains duplicated entries for November 14, 2002. Discounting the duplication reduces the total hours expended to 339.50. The practice of the Petitioner's counsel is to bill in quarter-hour increments and to round up. According to the invoice, the Petitioner was billed at a rate of $275 per hour. Mark F. Kelly graduated from Vanderbilt Law School in 1976. Since then he has practiced labor and employment law in Florida before state and federal agencies and has a substantial appellate practice. He was previously awarded fees in the range of $250 approximately four years ago. Robert F. McKee graduated from Stetson University College of Law in 1979. He received a Master of Laws degree in Labor and Employment Law from Georgetown University Law Center in 1981. Since then he has practiced labor and employment law in Tampa, Florida. He was previously awarded fees in the range of $250 approximately four years ago. At the hearing, the Petitioner presented the testimony of Steven Greg Wenzel. Mr. Wenzel has practiced law in Florida for more than 30 years and is board-certified in Labor and Employment Law. He has extensive trial experience. He has previously provided expert testimony related to the reasonableness of attorneys' fees in approximately 12 cases. Mr. Wenzel is familiar with the fees charged by attorneys representing employees in employment-related cases in central Florida. Mr. Wenzel's testimony related to the experience, reputation, and ability of Petitioner's attorneys. It also indicated that they have substantial experience in the area of labor and employment law and are well-regarded by their peers. No credible evidence to the contrary was presented during the hearing. Mr. Wenzel's testimony adequately addressed the applicable factors set forth in Rule 4-1.5(b)1 of the Florida Bar's Rules of Professional Conduct to be considered in determining the reasonableness of fees. Mr. Wenzel opined that based on their knowledge and experience, the type and complexity of the case, and the aggressive nature of the litigation; a reasonable hourly rate was $290 ranging to $310. Mr. Wenzel's testimony in this regard is credited. The invoiced rate of $275 per hour is reasonable. Mr. Wenzel also opined that the quarter-hour billing practice was reasonable and, in fact, conservative related to other practices with which he was aware. Mr. Wenzel's testimony in this regard is credited. At the same time that the Petitioner was challenging the proposed employment termination, a civil case involving the Petitioner, a number of the basketball players, and USF was proceeding. In that case, different legal counsel represented the Petitioner. Review of Petitioner's Exhibit 1 indicates that the invoice includes charges related to persons and activities involved in the civil case. Neither Mr. Kelly nor Mr. McKee had any official involvement in the civil case. Mr. Kelly participated apparently unofficially in mediation efforts to resolve the pending disputes. The invoice contains daily total charges for billed activity. On some days, activity was recorded for both the administrative case and the civil case. Charges related to the civil case are not reimbursable in this proceeding. Because the invoice precludes an accurate separation of time spent on the administrative case from the civil case, all billings for dates upon which charges were incurred related to the civil case have been excluded from consideration in this Order. The charges related to conversations with John Goldsmith, who represented the Petitioner in the civil case, are excluded. These charges occurred on March 14, 2001; April 2, 2001; April 6, 2001; September 21, 2001; October 19, 2001; and May 13, 2002, and total 8.25 hours. The charges related to conversations with Jonathon Alpert, who represented the basketball players in the civil case, are excluded. The charges occurred on April 10, 2001, and April 11, 2001, and total 6.75 hours. The charge related to a conversation with Tom Gonzalez, who represented USF in the civil case, is excluded. This charge occurred on April 23, 2002, for .50 hours. The charges related to conversations with Mary Lau, who was a mediator assigned to the civil case, are excluded. These charges occurred on April 24, 2002, and May 8, 2002, and totaled 1.25 hours. The invoice includes a charge for May 15, 2002, related to a telephone conference with "Judge Scriven" regarding settlement. Judge Scriven is otherwise unidentified. The charge, for .25 hours, is excluded. The invoice includes a charge for Mr. McKee's attendance at mediation on May 16, 2002, related to the civil case, for 2.5 hours. This charge is excluded. The sum of the excluded time set forth above is 19.50 hours. Deduction of the 19.50 hours from the properly invoiced total of 339.50 results in a total of 320 hours. Based on Mr. Wenzel's testimony that the invoiced hours were reasonable given the nature and complexity of this case, it is found that the reduced level of 320 hours set forth in the invoice and directly applicable to the administrative case is a reasonable expenditure of time. The invoice also sets forth costs that were billed to the Petitioner. The invoice includes numerous routine office expenses (postage, copying, telephone, and facsimile costs) that are not properly recoverable costs in this proceeding. Other billed costs are set forth without sufficient information to determine the relationship of the cost to the administrative proceeding. A filing fee with the District Court of Appeal was billed on January 15, 2001, preceding the administrative hearing in this case. Further the billed charges include witness fees for several witnesses, only one of which testified in the administrative hearing. The invoice also includes service fees for subpoenas that appear to have been charged subsequent to the completion of the administrative hearing. Based on review of the invoice, properly recoverable costs of $307 are found. This sum includes the following items: witness fee and mileage for Paul Griffin ($7) dated April 5, 2001; service fee for subpoena for Paul Griffin ($50) dated April 11, 2001; and filing fee-clerk, District Court of Appeal ($250) dated October 5, 2001. Petitioner's Exhibit 2 is a "Retainer and Fee Agreement" executed by the Petitioner and her counsel which provides as follows: Partial contingency fee. Client will pay for services rendered at the reduced rate of $110 per hour. To compensate attorney for this reduced rate and the risk involved in undertaking a case on these terms, in addition to the $110 hourly rate, attorney will be entitled to 25% of any settlement money or judgment. In the event attorney's fees are awarded to the client by any court or tribunal and collected, attorney will be entitled to such fee (less any amount paid by client, which will be reimbursed pro rata) or the partial contingency fee, whichever is greater. Attorney requires a retainer deposit from client in the amount of $2,500, to be replenished from time-to-time as required to cover outstanding fees and costs. The Retainer and Fee Agreement is dated December 2, 2002, and the Order of the District Court of Appeal for the Second District, which granted the Petitioner's Motion for fees and costs, is dated November 8, 2002. It is unclear whether a written agreement between the Petitioner and legal counsel existed prior to the December 2, 2002, agreement.
The Issue The dispute in this case arises out of Respondent's attempt to collect alleged salary overpayments from Petitioner, a former state employee who allegedly continued to be paid wages after resigning her position with Respondent.
Findings Of Fact Having determined, for the reasons set forth below, that the Department lacks subject matter jurisdiction to adjudicate the instant claim for "money had and received" against its former employee, the undersigned declines to make findings of fact, as such would be a nullity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order dismissing this administrative proceeding for lack of subject matter jurisdiction. DONE AND ENTERED this 4th day of November, 2005, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 4th day of November, 2005.
The Issue The issue is whether Petitioner received a salary overpayment of $2,209.76 during 1998 and 1999, as alleged by Respondent.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this dispute, Respondent, Department of Health (Department), alleges that Petitioner, Stacy L. Norwood, who was employed by the Okaloosa and Escambia County Health Departments from May 1994 until September 1999, received two increases in her rate of pay within the same category in a 12-month period in violation of state personnel rules. The Department also alleges that this resulted in her receiving $2,209.76 in salary overpayments, and it has asked that this amount be repaid. In her request for a hearing, Petitioner did not specifically deny this allegation, but she has asked that she be allowed to "explain the situation." Beginning in May 1994, Petitioner, who was then known as Stacy Pennington, was employed by the Okaloosa County Health Department as a Financial Counselor (pay grade 14). Because of her "superior proficiency," she received a special pay increase of five percent on December 23, 1996. To avoid commuting from Pensacola to Fort Walton Beach each day, Petitioner transferred to the Escambia County Health Department (Health Department) in March 1997. However, she was forced to take a twenty percent cut in pay since only a Fiscal Assistant I position (pay grade 10) was vacant at that time. After transferring to the Health Department, Petitioner assumed new duties in addition to those previously assigned, and she was promised two ten percent raises to make up for her salary deficiency. The Health Department opted to use this procedure to increase her salary since raises of more than ten percent had to be approved through the Department in Tallahassee; in contrast, raises of ten percent or less could be approved by the local director of the Health Department. On August 8, 1997, Petitioner received a special ten percent raise for "superior proficiency." This constituted the second pay raise within the same category (superior proficiency) which she received during that twelve-month period. The first occurred on December 23, 1996, when she was still employed by the Okaloosa County Health Department. On December 23, 1997, Petitioner again received a special pay raise of ten percent for "superior proficiency." This constituted another pay raise within the same category during the same twelve-month period. According to Rule 60K-2.006(1), Florida Administrative Code, which is administered by the Department of Management Services (DMS), "[e]mployees may receive only one increase per category in any 12 month period." The enumerated categories are superior proficiency, added duties and responsibilities, education and training, reassignment, transfer, competitive job offer, and internal pay relationships. In the case of Petitioner, all three pay increases she received were in the same category, superior proficiency. The Health Department was not aware of this rule when it authorized the pay adjustments. In 1999, DMS conducted a personnel program review which revealed that Petitioner and two other Health Department employees, including its Human Resource Manager, had received increases which contravened the above rule. This led to the issuance of the proposed agency action. The amount of overpayment which Petitioner received was $2,209.76. The source of this amount is found in Respondent's Exhibit 6, which was prepared by the Health Department's Human Resource Manager. The calculations are not in dispute. In those instances where overpayments have occurred, the employee is allowed to repay the excess salary payments over a period of time mutually agreed upon by the parties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order confirming that Petitioner received unauthorized salary overpayments in the amount of $2,209.76, and that she be required to repay that amount under a schedule to be established by the parties. DONE AND ENTERED this 17th day of March, 2000, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Angela T. Hall, Agency Clerk Department of Health DONALD R. ALEXANDER 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 March, 2000. 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 William W. Large, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 Mark A. Bednar, Esquire Mark A. Bednar, P.A. Post Office Drawer 13146 Pensacola, Florida 32501-3146 Rodney M. Johnson, Esquire Department of Health 1295 Fairfield Drive Pensacola, Florida 32501-1107
The Issue The issue in this case is whether Respondent discriminated against Petitioner based on Petitioner's disability.
Findings Of Fact Mr. McMahon was a member of Suncoast beginning in approximately 1986. In 2008 and 2009, Mr. McMahon had a checking account, a VISA card, a savings account, and a loan with Suncoast. Mr. McMahon claims that he is disabled and that he suffers from personality disorders, post-traumatic stress, passive aggression, and obsessive compulsive disorder. No medical evidence was presented to substantiate his claims. He has been receiving benefits from the Social Security Administration based on a personality disorder since approximately 1996. Suncoast perceived Mr. McMahon as having a disability, based on his repeated assertions that he was disabled. In November 2008, Mr. McMahon filed a complaint with the Better Business Bureau of West Florida, Inc. (BBB), alleging that Suncoast was discriminating against him by not accommodating his communication disability. The BBB investigated and found that Suncoast had blocked access to Mr. McMahon's accounts because he was delinquent on a loan. The BBB contacted Suncoast concerning the complaint, and Suncoast provided Mr. McMahon a three-month payment due date extension on the loan, lowered his monthly payments, and unblocked his account. In January 2009, Mr. McMahon was delinquent on his loan. Again Suncoast tried to help Mr. McMahon with his delinquent account. At some point, Mr. McMahon's loan payments were put on automatic payments in order to reduce his delinquencies. Money would automatically be taken out of his account to make the monthly loan payments. Mr. McMahon had a direct deposit for his Social Security benefits payments. After the loan payments began being deducted automatically, Mr. McMahon canceled his direct deposits into the account from which his payments were automatically being deducted. Thus, there was no money in the account to make the monthly payments on his loan, and Mr. McMahon ceased making payments on the loan and again became delinquent on his loan. When one of Suncoast's members becomes overdrawn with regards to either a checking or savings account or credit card, or is delinquent in making payments on any credit card or loan obligation, that member loses access to his or her services, including use of all internet services, ATM cards, ATM machines, credit cards, and debit cards. The member would also be unable to access his or her account balance or make deposits into overdrawn accounts if the member attempted to make a deposit via ATM, as those services are suspended. These restrictions are typically automatically placed upon the accounts of any member with a delinquent loan account after 60 days of delinquency, and within 30 days of any overdrawn share draft account. Any member with a delinquent or overdrawn account, where services were suspended would be prevented from applying for a mortgage loan. If the member contacted Suncoast staff to apply for a mortgage loan or to utilize any other services, the member would be directed to the loss mitigation section of Suncoast, and loss mitigation would attempt to collect the debt or rectify the delinquency. Because Mr. McMahon again became delinquent on his loan payments after stopping the direct deposits, his accounts were restricted, meaning that he could not access the accounts. Mr. McMahon began a campaign of making repeated calls to Suncoast, screaming and yelling at Suncoast representatives, talking over the representatives, making vulgar statements, and using profanity. Mr. McMahon attributes his behavior to his communication disability and requested on numerous occasions that Suncoast accommodate his disability with "patience and understanding." A note was placed in the loss mitigation's note system and in Suncoast's host system, so that all employees of Suncoast who were working with Mr. McMahon could see and accommodate his request for patience and understanding. Suncoast representatives did provide Mr. McMahon with an abundance of patience and understanding. However, nothing seemed to appease Mr. McMahon, and his repeated calls were unproductive. Because of the repeated nature of Mr. McMahon's calls and his behavior during the telephone calls, there were numerous complaints by Suncoast's representatives to management. Jacqueline Gilbert (Ms. Gilbert), vice president of loss mitigation, determined that in order to protect Suncoast's representatives from Mr. McMahon's harassing behavior that all calls should be directed to her; Linda Fales (Ms. Fales), vice president of risk management, cardholder disputes, and DSA compliance for Suncoast; or Ben Felder (Mr. Felder), Suncoast's general counsel. Suncoast's representatives were advised that Mr. McMahon's calls should be transferred to Ms. Gilbert, Ms. Fales, or Mr. Felder. When the representatives would tell Mr. McMahon that they could not help him and that his call would have to be transferred, Mr. McMahon was verbally abusive to the representatives. Many times, if Mr. McMahon was going to be transferred, he would hang up and call right back to speak with a different representative. Sometimes, Mr. McMahon would call and hang up when a representative answered the call. At different times, Ms. Gilbert, Ms. Fales, and Mr. Felder talked with Mr. McMahon to attempt to discuss the reasons that his account was restricted. However, they had little success in communicating with Mr. McMahon because of his behavior. Although Mr. Felder was not able to service Mr. McMahon's account, he decided to handle all Mr. McMahon's requests and assign any work to be done to the appropriate employee because Mr. McMahon's behavior toward Ms. Gilbert and other Suncoast employees was unacceptable. Mr. McMahon did not make any loan payments between May 2009 and August 2009. During this same time period, Mr. McMahon's VISA credit card was well overdrawn. Carolyn Stepp (Ms. Stepp) had cosigned on Mr. McMahon's loan. On or about September 4, 2009, Suncoast exercised its "right of offset" and used funds in both Mr. McMahon's and Ms. Stepp's accounts to pay off the loan. There was still an outstanding balance of $1,046.86 on his VISA credit card. On September 10 and 14, 2009, Mr. McMahon asked to apply for a mortgage loan by telephone. He was not sure that Suncoast would give him a loan because of his delinquent accounts, but he felt that he should have the opportunity to apply because the loan had been satisfied when Suncoast exercised its right of offset. Although the loan was satisfied, Mr. McMahon still had an outstanding balance on his VISA credit card, which he had not been able to use for several months because his accounts had been restricted. He was advised that he would have to contact Mr. Felder to discuss the status of his account. On September 11, 2009, Mr. Felder and Mr. McMahon discussed his account. Part of the discussion concerned Suncoast's writing off Mr. McMahon's loan and VISA credit card balance, returning the offset amounts to Mr. McMahon's and Ms. Stepp's accounts, disbursing the remaining amounts in Mr. McMahon's account to him, and closing Mr. McMahon's accounts. At the conclusion of the conversation, Mr. Felder understood that Mr. McMahon was in favor of this solution and began to take steps to accomplish the tasks. Mr. Felder advised Mr. McMahon by telephone on September 17, 2009, that the tasks had been completed and that Mr. McMahon's accounts with Suncoast were closed, meaning that services at Suncoast were terminated and that Mr. McMahon's access to information was no longer available. Mr. Felder followed up the telephone conversation with a letter dated September 17, 2009, confirming the telephone conversation. Individuals who are not members of Suncoast are not qualified to apply for a mortgage loan with Suncoast. At the time that Mr. McMahon applied for a mortgage loan on September 14, 2009, his accounts at Suncoast were in the process of being closed. Mr. McMahon's requests to apply for a mortgage with Suncoast were not denied because Mr. McMahon was disabled. They were denied because Mr. McMahon had various account delinquencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Suncoast did not commit an unlawful housing practice and dismissing Mr. McMahon's Petition. DONE AND ENTERED this 27th day of April, 2011, 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 27th day of April, 2011.
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 The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.
Findings Of Fact James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS). Mr. Brandon had a long standing relationship with Dennis A. Barga. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability. James E. Brandon did not personally receive any of his disability benefits. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a beneficiary. Form M-10 does not require execution before a notary public. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public. The amendment of the beneficiaries should have been executed on a Form FST-12. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased. The filing of the improper form was through no fault of James E. Brandon. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to understand the import of his decisions at the time the amendment was filed with the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga. DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM F. QUATTLEBAUM 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 31st day of December, 1997. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602 Stanley N. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Thomas Frost, Esquire 7901 Fourth Street North Suite 315 St. Petersburg, Florida 33702
