The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 20, 2008.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent on August 2, 2004, as the Program Director of Respondent’s Substance Abuse Treatment Program located at Lancaster Correctional Institution (LCI) in Trenton, Florida. Respondent, Civigenics Community Education Centers (Civigenics), is an employer within the meaning of the Florida Civil Rights Act. Civigenics is a provider of offender in- prison treatment services. Under contracts with the Florida Department of Corrections (DOC), Respondent provides substance abuse programs designed to reduce recidivism of inmates. DOC has contracts with various providers throughout Florida to provide such substance abuse services in its correctional facilities. At the time Petitioner was hired by Respondent as the Program Director at LCI, that program was one of 11 of Respondent’s programs under contract with DOC. These 11 programs were under the direction of Michael Walker, State Director for Respondent. Respondent provides treatment services under two types of programs: Modality 1 and Modality 2. Modality 1 is an intensive outpatient program for inmates. Inmates in a Modality 1 program are involved with the program for half a day, then have a work assignment the other half of the day. A modality 2 program is a residential program in which the inmates are involved in the program all day long, six-to-seven days a week. Of Respondent’s 11 programs, only two are Modality 2 programs. One of the Modality 2 programs is at Gainesville Correctional Institution (GCI). At the time Petitioner was employed by Respondent as Program Director of the program at LCI, the program was a Modality I program. Dan Eberline is a correctional program administrator for DOC. Mr. Eberline’s responsibilities include contract management, oversight, auditing and follow-up as the liaison between DOC and Respondent. Mr. Eberline has been employed with DOC for 20 years and worked with Petitioner since 2001, when she was clinical director for a Modality 2 program at another private company. Under Respondent’s contract with DOC, Mr. Eberline must approve of the hiring of all Program Directors. He interviewed Petitioner and a white male for the LCI position, and approved of Petitioner’s hiring in 2004. When hired, she replaced a white male as the Program Director at LCI. Petitioner was already in the Program Director position when Mr. Walker became State Director of Respondent in 2005. Of the 11 Program Directors, six were women of which three were African-American women. Two of the African-American women were hired by Mr. Walker. Petitioner holds a bachelor’s degree from the University of Florida in sociology, and a Master of Arts in Addictive Disorders from the Breining Institute, which is a distance-learning program under the Florida Certification Board. She is a Certified Addictions Professional from the Certification Board for Addiction Professionals of Florida and is a member of the Addiction Advisory Board. At any given time, approximately 70 inmates were enrolled in the program at LCI. The inmates at LCI were youthful offenders, ranging from 18-to-24 years old. As Program Director at LCI, Petitioner supervised a staff of three counselors and an administrative assistant. As Program Director, Petitioner was responsible for ensuring that her staff was properly trained in group therapy, individual therapy, and for making psychosocial assessments of the inmates under their care. She was also responsible for ensuring the accuracy of the database and of certain reports that the program provided to DOC. During the time period in question, there were two contracts between Respondent and DOC. The first contract was in effect from October 2001 through October 2006. The second contract became effective October 2006, with an ending date of September 30, 2011. Beginning in the year 2000, DOC standardized all of Respondent’s programs as to the performance measures used, the maintenance of files, reports, and training. According to Mr. Eberline, his fundamental role was to monitor the contract and then to compare the contract with the delivery of services. To measure the effectiveness of Respondent’s Modality and Modality 2 programs, Mr. Eberline conducted audits of each program’s files and reports. He monitored each program in routine and special site visits, and in a comprehensive annual audit, to ensure that each program was meeting contract standards. Mr. Eberline would, in turn, provide reports of those audits to his supervisor, Kim Riley. The reports are provided to the Florida Legislature for purposes of receiving funding. The most critical standard each program must meet is a successful completion rate for inmates who participate in Respondent’s programs. This standard of measure is used by DOC to determine the effectiveness of treatment. In the second contract (beginning October 2006), the successful completion rate was specified at 80 percent for Modality 1 programs and 60 percent for Modality 2 programs. The first contract (ending October 2006) did not specify a completion rate of 80 percent. However, the preponderance of the evidence established that while not codified in the earlier contract, there was nonetheless an expectation that each Modality 1 program, such as at LCI, would meet an 80 percent successful completion rate standard. An 80 percent successful completion rate was considered standard in the industry, discussed at staff meetings, was part of a program director’s training, and referenced in Mr. Eberline’s program reports. The completion rate standard measures the number of inmates enrolled in a Modality 1 program who completed the program after a recommendation from the clinical staff. These inmates were discharged or coded as having completed the treatment program. Not all inmates, however, complete the program for a number of reasons. For example, an inmate may be unable to participate in and have to withdraw from the program because he must go to court, for a medical or mental health reason, or because the inmate must go into protective confinement. Additionally, an inmate may receive a Disciplinary Report (DR) from prison staff and be discharged from the program for behavior that is not considered “related to the program.” That is, the DR is for behavior that the treatment program is not designed to impact. The inmate is considered to be administratively discharged (coded ADM) if the program director determines the behavior can be further addressed through the program. Conversely, an inmate may receive a DR for behavior that is considered program related (e.g., behavior that the treatment program is designed to impact) such as a positive drug screen, a threat of violence, or one of the other “cardinal” rule violations. Also, an inmate may be unsuccessfully discharged for other behaviors considered “major” rule violations such as sexually acting out, assault, fighting, threats of violence, or breaking confidentiality of inmates. The inmate would receive an unsuccessful discharge from the program (coded UNS) because the program has not been successful in impacting the inmate’s behavior. DOC electronically maintains information regarding DRs issued to inmates on the Offender Based Information System (OBIS). The Program Director for each program reviews the information on OBIS, in a read-only format, about an inmate’s DRs which states the nature of the DR, and what type of behavior or conduct was involved. The Program Director can read the DR as well as the narrative of the DOC employee who issued the DR, to find out what actually occurred. The determination as to whether a disciplinary infraction which results in an inmate’s dismissal from the program is or is not related to the program and properly coded as an ADM or UNS discharge, is the responsibility of the Program Director. It is also the Program Director’s responsibility to ensure that the reports used to calculate the completion and discharge rate for inmates enrolled in the program are correct. While the data reflecting the coding determination might be entered by support personnel, only the Program Director can make the coding determination because of his or her training and certification. According to Mr. Eberline, it would be unethical to leave such a determination to a person who is neither qualified nor licensed to make that decision. Every month, a report which lists those inmates who have successfully completed the program, and those inmates who received an ADM discharge or a UNS discharge, is submitted to DOC. This report, called a “PPC41” is used to calculate the completion rate. The Program Director must sign off on the PPC41 before it is sent to Mr. Walker, and in turn to Mr. Eberline. It is the Program Director’s responsibility to ensure that the document is sent and that the information contained in the PPC41 is accurate. At hearing, Petitioner testified that her administrative assistant was the person who made the coding determinations, and entered them into the computer system. Petitioner signed off on these reports, but did not make an independent review of their content. She simply verified that they were being sent to Mr. Walker and Mr. Eberline. Prior to the hearing, Mr. Walker and Mr. Eberline were not aware that Petitioner was allowing clerical staff to determine the codes on the PPC41s. Both Mr. Walker and Mr. Eberline expressed concern and disapproval that Petitioner did not review the PPC41s for content and that the coding was done by her assistant. Since this information was revealed to them during the hearing, it could not have been the basis for the employment actions taken by Respondent. It may, however, explain some of the errors which will be discussed. Under the formula utilized by Respondent and DOC to measure the completion rate, the number of inmates who successfully complete the program are first identified. From that number, the number of inmates who are coded as ADM (administrative discharge) are factored out or subtracted. That number is then compared to the number of inmates who are coded as UNS (unsuccessful discharge). These two numbers are then compared to the number of inmates who have successfully completed the program. The administrative discharges do not impair or lower a program’s completion rate. The more discharges that are coded as ADMs, the higher the program’s completion rate. For that reason, if an inmate’s discharge is improperly or incorrectly coded as an ADM rather than UNS, an incorrect completion rate will result. The Program Director submits the monthly PPC41s to DOC throughout the course of the fiscal year. These monthly reports provide a monthly snapshot as to whether or not a program is meeting the contractual standard. The monthly report may identify the need to intensify services or change the format by which the program is providing treatment to inmates to better impact their behavior. Consequently, the completion rate may vary from month to month, with a final completion rate calculated at the end of each fiscal year. At the end of each fiscal year, DOC tabulates all of the discharge information reflected in each program’s PPC41s, audits the discharge codes, and calculates a final completion rate for all programs. These calculations are made in Tallahassee without involvement of Mr. Walker or Mr. Eberline, and without any knowledge of the identity of the particular program director at any particular facility. In April 2005, an annual comprehensive audit of the program at LCI was conducted by Mr. Eberline. LCI’s completion rate was determined to be 54.4 percent. Mr. Eberline’s monitoring report noted, “This is a low completion rate when compared to similar Modality I programs. The youthful offender inmates are a difficult population to work with, however, a formal plan to increase the completion rate is encouraged.” LCI was issued its first Corrective Action Plan (CAP) to address several items. On June 14, 2005, Mr. Eberline determined that all elements of the CAP were met. In April 2006, Mr. Eberline conducted the annual comprehensive audit of the program at LCI. The audit revealed that the completion rate for the program had gone down from 54.4 percent to 52 percent. While no CAP was required, Mr. Eberline’s report included the following: “The past twelve month program completion rate is 52 percent adjusted for administrative discharges as compared to 54.4 percent last year. It is recommended that an internal institutional review be initiated to provide suggestions on how to improve this program completion rate.” In response to these comments, Mr. Walker convened an institutional review of this situation. He brought together security, classification, administrative staff, Petitioner and himself in an effort to determine how Respondent could more positively impact the completion rate in the program at LCI. In December 2006, Mr. Eberline conducted a routine follow-up visit to LCI. His report of the visit notes that the Warden was concerned with the program completion rate of 48 percent for fiscal year 2005-2006.2/ His report also noted that because there were deficiencies in basic file format, additional training was required to ensure that “staff is following acceptable file format.” As a result of those comments, Mr. Walker discussed with Petitioner file format and the proper order of documents in the files. Mr. Eberline conducted a routine site visit at LCI in February 2007. He was concerned that LCI’s completion rate had dramatically increased from 48 percent to over 80 percent in just five months. Mr. Eberline, Mr. Walker, and the Assistant Warden were all concerned with this sudden dramatic increase in completion rates. Mr. Eberline suspected that the ADM coding might have been overused resulting in a manipulation of the code so as to artificially increase the completion rate of the program. Using the OBIS system, Mr. Eberline, Mr. Walker, and Petitioner reviewed and analyzed the coding determinations for those files, in excess of 40, in which a clinical decision had to have been made. Once the discharge codes were re-evaluated, the completion rate dropped to 60 percent. It was at this time that Mr. Eberline brought up concerns to Mr. Walker about Petitioner’s performance in regard to program completion rates, and the need for a change in leadership. Mr. Eberline was being questioned by his supervisor at DOC about steps he was taking to address the low completion rate at LCI. In turn, Mr. Walker was hearing these same questions and concerns from Mr. Eberline. At Mr. Eberline’s request, Mr. Walker wrote a second CAP which was put in place on February 20, 2007. This CAP was directed at Petitioner and concerned “client discharges being inappropriately coded as ADM 83.” Mr. Eberline conducted a follow-up review on May 21, 2007. His report concluded that training had been completed with staff and, as a result, the assignment of proper discharge codes was being used and reported. His report notes that the completion rates would continue to be monitored. On the same date, Mr. Eberline conducted a comprehensive, annual audit of Lancaster. The annual audit covered nine months from July 1, 2006, through April 14, 2007. Annual audits did not necessarily coincide with the fiscal year (July 1 through June 30). During this audit, it was determined that the completion rate at LCI was 67.4 percent at that point in the fiscal year. The completion rate for fiscal year 2006- 2007 for LCI was calculated by DOC to be 65.2 percent. At that point, the 80 percent standard had been codified in the contract between Respondent and DOC. Mr. Eberline recommended in his audit report that “continued effort be focused on improving the completion rate up to and exceeding the performance measure specified in the contract.” In April 2007, Civigenics was bought by Community Education Centers. On May 4, 2007, a meeting was held by Mr. Eberline and Mr. Walker of all Program Directors, including Petitioner. At this meeting, Mr. Eberline discussed data entry concerns and completion rates. Mr. Eberline expressed his increasing concern about the overuse of administrative discharge codes. He also informed Mr. Walker that the contract was in jeopardy because of the low completion rate. In July 2007, Mr. Walker believed that the program at LCI would not reach the contractual standard of 80 percent. He felt that 70 percent was “reachable.” He approached Mr. Eberline, who informed him that the matter would have to be addressed to Kim Riley, Chief of the Bureau of Substance Abuse Programs at DOC. Mr. Walker then wrote a letter to Ms. Riley, requesting an adjustment in the contract performance measure for LCI to be reduced from 80 percent to 70 percent. The letter stated in part: This program provides services to a male Youthful Offender population which has a high degree of need for confinement for the safety and security of the institution. We wish to request an adjustment of 10% which would then require that we maintain a program completion rate of at least 70% within this program servicing this special population. Mr. Walker had never made a similar request for any of the other programs under his supervision. Petitioner was aware of Mr. Walker’s request to lower the standard. On July 16, 2007, a special meeting was convened at LCI to discuss continuing concerns about the program’s completion rate. The meeting was attended by the prison warden and other prison administrators, Mr. Walker, Mr. Eberline, Petitioner and one of her staff. Mr. Eberline made it clear that since the completion rate was directly tied to legislative funding, the program at LCI was in jeopardy of being shut down. Following the special meeting, Mr. Eberline wrote a report which read in pertinent part: The special needs of the youthful offender inmate being served by the substance abuse modality I program were discussed. Disciplinary action resulting from inmate behavior issues was determined to be the primary reason for an inmate’s unsuccessful discharge. The inmate’s resistance to treatment was also a contributing factor. The number of low ranking mandatory inmates available for enrollment was discussed and will be reviewed for remedy. All were in agreement that little could be done to impact the institution’s disciplinary system dealing with enrolled inmate’s behavior issues. It is recommended that the program director and staff review options on how to impact program participant’s behavior through a more intensive treatment regiment. The program is requested to review and restructure the readiness group service delivery to identify motivated inmates for program enrollment. A (CAP) Corrective Action Plan will be required to address these concerns and recommendations. The CAP shall be submitted on or before August 13, 2007. Mr. Walker sent an e-mail to Petitioner instructing her as follows: “In addition to your regular end of the month PPC 41 report, please order an additional PPC 41 report which covers your program components from July 1, 2006 through June 30, 2007. Ensure that all data is accurate. " In response, Petitioner created a chart in which she calculated the completion rate to be 84.10 percent for July 2006 to June 2007. This conflicts with the completion rate calculated by DOC which shows a 65.2 percent for the same time period. The preponderance of the evidence indicates that Petitioner’s calculation of a completion rate of 84.10 percent is inaccurate. The completion rates for the program at LCI as calculated by DOC were 47.7 percent for 2005-2006 and 65.2 percent for 2006-2007. Mr. Walker began receiving criticism from Mr. Eberline and Mr. Walker’s supervisor, Ms. Worthington, about the low completion rate at LCI. He was told that if he was not able to increase the completion rate at LCI, that they, DOC, would find someone who would. In early September 2007, Mr. Eberline conducted a routine visit to LCI and again found miscoding errors. Mr. Walker verbally informed Petitioner that staff performance ratings would be reviewed and would be associated with meeting the 70 percent completion rate as specified in the contract and that, should this standard not be met, staff would be placed on probationary status and additional corrective actions taken. This admonition was contained in writing in the CAP that Mr. Walker prepared in early September. At some point between early September and early October, Mr. Eberline recommended to Mr. Walker that Petitioner be removed as Program Director because of the program’s consistent lack of meeting the performance standards, the need for multiple CAPs, and miscoding issues. Mr. Walker discussed this with his supervisor, Ms. Worthington. He recommended that Petitioner not be terminated. There were two open counselor positions, one of which was located in Gainesville. Mr. Walker offered Petitioner a demotion to a counselor position and made an effort to keep her salary as high as possible. Mr. Walker had to get approval from Mr. Eberline for this transfer; Mr. Eberline reluctantly approved the transfer. Ms. Worthington agreed with Mr. Walker’s recommendation. On October 4, 2007, Petitioner was removed as Program Director and replaced by Vernon Burgess, a white male, who was at that time the Program Director at GCI. The program at LCI was still under the CAP, which was ultimately successfully completed in November 2007. On November 19, 2007, the program at LCI was closed. When the program at LCI closed, Mr. Burgess resumed his former position as Program Director at GCI. All of the other employees in the program at LCI were laid off. On December 18, 2007, Petitioner wrote a letter to Mr. Walker requesting a written explanation regarding her demotion. Petitioner wrote that she had not been given an opportunity to address the adverse actions taken against her. Her letter did not raise any allegation of discrimination on the basis of race or gender. Mr. Walker met with Petitioner in December 2007. Mr. Walker informed her that if she had an issue with her demotion, that there was a grievance procedure she could pursue if she felt she needed to do so. Petitioner did not file a grievance with Respondent. Petitioner filed a Charge of Employment Discrimination with FCHR which gave rise to this proceeding. The Gainesville Program Respondent operates a Modality 2 program at Gainesville Correctional Institution (GCI). In 2006, an audit was conducted at GCI by Mr. Eberline at about the same time he conducted the annual comprehensive audit at LCI. The program at GCI had declined from the prior year’s completion rate of 71 percent to 51 percent. The performance standard for a Modality program was 60 percent, in contrast to the higher standard for Modality 1 programs. As a result of this drop in completion rates, a special meeting took place including Mr. Eberline, Mr. Walker, Mr. Burgess, the Program Director at GCI, and the prison administration. This special meeting was similar to the special meeting held at LCI to address improving completion rates. Unlike Modality 1 programs, there are no administrative discharge codes in a Modality 2 program. Thus, there was no issue relating to overuse of the ADM code, but there was a completion rate issue. The meeting focused on taking immediate steps to improve the completion rate, focusing on inmates at risk for obtaining disciplinary reports. By the time the meeting was held, the completion rate had begun to improve. Mr. Walker instituted a CAP for the GCI program although Mr. Eberline did not require one. The completion rate for GCI improved in approximately a three-month period. According to DOC’s calculation, GCI had a completion rate of 79.1 percent for fiscal year 2006-2007. This exceeded the contract standard of 60 percent. All of Respondent’s Program Directors have the same access to the OBIS system, must meet the same reporting standards, receive the same training, and must meet contractual standards set forth in the contract between DOC and Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010.
The Issue The issue is whether respondent's teaching certificate should be disciplined for the reasons cited in the amended administrative complaint filed on March 21, 1996.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Ralph Rico Marshall, is a licensed teacher having been issued certificate number 497505 by the Department of Education. The certificate covers the areas of guidance counseling and industrial arts and technology education, and is valid through June 30, 1999. In this proceeding, petitioner, Frank T. Brogan, as Commissioner of Education, seeks to discipline respondent’s license on the grounds he allegedly violated state law and two rules. In an amended administrative complaint filed on March 21, 1996, petitioner has alleged generally that (a) after June 18, 1993, respondent failed to comply in various respects with the terms of his probation as set forth in a final order issued by the Education Practices Commission (EPC) on December 10, 1992, and (b) on December 1, 1995, respondent pled guilty to a charge of armed kidnapping, a felony. Respondent has denied these allegations and initiated this proceeding to contest the charges. The Felony Charge As to the charge that respondent has been convicted of a felony, the evidence shows that on December 1, 1995, respondent pled guilty to a charge of armed kidnapping and was sentenced to a term of five years in state prison with three years minimum mandatory. He is now incarcerated at a facility in Lake County, Florida. After being incarcerated, petitioner filed for post- conviction relief under Florida Rule of Criminal Procedure 3.850 claiming that his trial counsel was ineffective and that the minimum three-year sentence was illegal. The trial court denied his motion on April 11, 1996. In the case of Ralph Marshall v. State of Florida, 685 So.2d 63 (Fla. 1st DCA 1996), the court reversed the trial court’s order and held in relevant part as follows: The portions of the record attached to the trial court’s order denying relief do not conclusively show that appellant is entitled to no relief on these claims. Accordingly, we reverse and remand. If the trial court again determines that appellant is entitled to no relief, it shall attach to its order those portions of the record which conclusively establish that. Id. at 63. On remand, the trial court entered an order on February 21, 1997, again denying respondent’s post-conviction relief. On March 6, 1997, respondent filed a notice of appeal of that order with the Fourth District Court of Appeal. The matter is now pending before that court. Compliance With Terms of Probation In school year 1992-93, respondent was employed at Mattie Rutherford Alternative Education Center. After an administrative complaint was issued by petitioner, a settlement was reached by the parties. On December 10, 1992, the EPC entered its final order approving a settlement agreement with respondent, reprimanding him, and placing him on three years’ probation, or until December 10, 1995. Among other things, respondent agreed, as a condition of probation, to immediately contact the EPC upon any reemployment in the teaching profession within the State of Florida, indicating the name and address of the school at which he is employed, as well as the name, address and telephone number of his immediate supervisor; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with quarterly reports of the Respondent’s performance, including but not limited to compliance with school rules and school district regulations and any disciplinary actions imposed upon the Respondent by his immediate supervisor or by the school district; (and) make arrangements for his immediate supervisor to provide the Education Practices Commission with a true and accurate copy of each written performance evaluation or assessment prepared by his supervisor within ten (10) days of its issuance; (and) satisfactorily perform his assigned duties in a competent, professional manner; In addition, paragraph 6 of the agreement provided that in the event that the Respondent fails to comply with any term or condition of this agreement, the Petitioner will be authorized to file an Administrative Complaint seeking further sanctions or revocation of the Respondent’s certificate, based upon violation of the terms of probation set forth herein. An alleged violation of the agreement forms the basis, in part, for the issuance of the amended administrative complaint. On January 19, 1993, the EPC sent respondent a letter specifying the conditions of probation enumerated in the order. On February 17, 1993, a second letter was sent by the EPC reminding him of these conditions. Therefore, there can be no doubt that respondent was aware of the probationary requirements imposed under the settlement agreement. Respondent timely filed his quarterly performance reports for the months of March and June 1993. While acknowledging that the reports had been timely filed, the EPC cautioned him that he needed improvement in the areas of classroom management and teacher-student relationships. In school year 1993-94, respondent was transferred to the pretrial detention center of the Grand Park Career Center where he served as a guidance counselor. Before his transfer, respondent was notified by letter dated July 23, 1993, that his next performance report would be due by September 10, 1993. He was also told in a telephone call with the EPC executive director on August 2, 1993, that he should “call if you are reassigned and have a different principal.” On February 14, 1994, respondent was advised by letter from the EPC that the first two reports of his performance during school year 1993-94 had been due on September 10 and December 10, 1993, but had not yet been filed. He was told to arrange for their submission by March 1, 1994. When the reports were still not filed by the latter part of May, the EPC’s executive director made inquiry with respondent’s former principal and learned for the first time that respondent had been transferred to Grand Park Career Center. She then contacted the principal of Grand Park Career Center, Dr. McDuffie, and asked that he forward a copy of respondent’s annual evalution. Until that time, Dr. McDuffie did not know that respondent was on probation or that performance reports were to be filed. By failing to advise the EPC of his new employer, and to file his performance reports on a timely basis, respondent violated the terms of his probation. He also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. In an undated letter sent to the EPC several months later, respondent stated that due to a “very busy (school) year,” he “forgot to get the necessary reports completed,” and this oversight “was not intentional.” This explanation, however, is not found to be credible or a valid excuse for his conduct. He also advised that he had been reassigned to the Fort Caroline Middle School for school year 1994-95. In school year 1994-95, respondent again failed to have his immediate supervisor, Patrick T. Ahern, file the quarterly performance reports. Notwithstanding this omission, in a letter to the EPC dated May 17, 1995, respondent asked if any reports for the year had been filed. He also represented that he had met with Ahern on January 5, 1995, regarding the need for such reports. At hearing, however, Ahern established that until he was contacted by the EPC at the end of the school year, and asked to provide a report, he was not aware of the fact that respondent was on probation or that quarterly performance reports were to be filed. By failing to file the required reports during the school year, respondent violated the terms of his probation. Respondent also failed to maintain honesty in his professional dealings by not notifying his supervisor of the reporting requirements. No evidence was presented on the issue of whether respondent’s personal conduct has seriously reduced his effectiveness as a teacher. At hearing, respondent suggested that because his overall evaluations in school years 1993-94 and 1994-95 were satisfactory, he fulfilled the terms of his probation. However, the performance of his duties in a competent, professional manner was but one of several conditions imposed by the EPC. Respondent also suggested that he was required to notify the EPC of new job assignments only if he accepted a job outside of the Duval County School District. This interpretation, however, is not reasonable and is contrary to the written instructions given to him in the EPC’s letter dated January 19, 1993, and verbal instructions given to him on August 2, 1993, by the EPC executive director. Respondent further suggested that he was told by someone at EPC that an annual performance report would satisfy all reporting requirements. This assertion, however, is not supported by the evidence. Finally, as to his felony conviction, respondent contended that until his appeal is concluded, the EPC should not pursue this action. For the reasons given in the Conclusions of Law portion of this order, this contention is found to be without merit.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Education Practices Commission enter a final order finding respondent guilty of violating Sections 231.28(1)(a), (c), and (i), Florida Statutes, and Rules 6B- 1.006(5)(a) and (o), Florida Administrative Code, and that his teaching certificate be permanently revoked.DONE AND ENTERED this 6th day of May, 1997, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1997. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 224-B Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Barbara J. Staros, Esquire 131 North Gadsden Street Tallahassee, Florida 32301-1507 Reese Marshall, Esquire 214 Ashley Street Jacksonville, Florida 32202-3120 Michael H. Olenick, Esquire Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
The Issue Whether Fantastic Construction of Daytona, Inc. (“Respondent”), failed to secure the payment of workers’ compensation coverage for its employees; and, if so, whether the Department of Financial Services, Division of Workers’ Compensation (“Petitioner” or “Department”), correctly calculated the penalty to be assessed against Respondent.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers’ compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondent is a corporation engaged in the construction industry with headquarters in Daytona Beach, Florida. On November 19, 2015, the Department’s compliance investigator, Scott Mohan, observed five individuals framing a single-family house at 173 Botefuhr Avenue in Daytona, Florida. Mr. Mohan interviewed the individuals he observed working at the jobsite and found they were working for Respondent on lease from Convergence Leasing (“Convergence”). Mr. Mohan contacted Convergence and found that all of the workers on the jobsite were employees of Convergence, except Scott Barenfanger. Mr. Mohan also confirmed that the workers’ compensation policy for Convergence employees was in effect. Mr. Mohan reviewed information in the Coverage and Compliance Automated System, or CCAS, for Respondent. CCAS indicated Respondent’s workers were covered for workers’ compensation by Convergence and that Respondent’s contract with Convergence was active. Mr. Mohan also confirmed, through CCAS, that Foster Coleman, Respondent’s president, had previously obtained an exemption from the workers’ compensation requirement, but that his exemption expired on July 18, 2015. Mr. Mohan then contacted Mr. Coleman via telephone and informed him that one of the workers on the jobsite was not on the active employee roster for Convergence, thus Respondent was not in compliance with the requirement to obtain workers’ compensation insurance for its employees. Mr. Coleman reported to the jobsite in response to Mr. Mohan’s phone call. Mr. Coleman admitted that Mr. Barenfanger was not on the Convergence employee leasing roster. Mr. Coleman subsequently obtained an application from Convergence for Mr. Barenfanger and delivered it to his residence. Mr. Mohan served Mr. Coleman at the jobsite with a Stop-Work Order and a Request for Production of Business Records for Penalty Assessment Calculation (“BRR”). In response to the BRR, Respondent provided to the Department business bank statements, check stubs, copies of checks, certificates of liability insurance for various suppliers and subcontractors, and an employee leasing roster for most of the audit period from November 20, 2013, to November 19, 2015.1/ Respondent did not produce any check stubs for November and December 2013. Mr. Coleman testified, credibly, that his bookkeeper during that time period did not keep accurate records. Mr. Coleman did produce his business bank statements and other records for that time period. Based on the review of initial records received, the Department calculated a penalty of $17,119.80 and issued an Amended Order of Penalty Assessment in that amount on February 18, 2016. On March 17, 2016, Respondent supplied the Department with additional records. Altogether, Respondent submitted over 400 pages of records to the Department. The majority of the records are copies of check stubs for checks issued on Respondent’s business bank account. The check stubs are in numerical order from 1349 to 1879, and none are missing. The check stubs were hand written by Mr. Coleman, who is 78 years old. Some of his writing on the check stubs is difficult to discern. On April 4, 2016, following review of additional records received, the Department issued a Second Amended Order of Penalty Assessment in the amount of $9,629.36. The Department assigned penalty auditor Sarah Beal to calculate the penalty assessed against Respondent. Identification of Employees Ms. Beal reviewed the business records produced by Respondent and identified Respondent’s uninsured employees first by filtering out payments made to compliant individuals and businesses, and payments made for non-labor costs. However, the evidence demonstrated that the Department included on its penalty calculation worksheet (“worksheet”) payments made to individuals who were not Respondent’s employees. Neal Noonan is an automobile mechanic. Mr. Noonan was neither an employee of, nor a subcontractor for, Respondent for any work performed by Respondent during the audit period. Mr. Noonan performed repairs on Mr. Coleman’s personal vehicles during the audit period. Checks issued to Mr. Noonan during the audit period were for work performed on Mr. Coleman’s personal vehicles. The Department’s worksheet included a “David Locte” with a period of noncompliance from June 19, 2014, through December 31, 2014. The basis for including Mr. Locte as an employee was a check stub written on December 10, 2014, to a business name that is almost indiscernible, but closely resembles “Liete & Locke” in the amount of $100. The memo reflects that the check was written for “architect plans.” Mr. Coleman recognized the worksheet entry of David Locte as pertaining to David Leete, an architect in Daytona. Mr. Leete has provided architectural services to Respondent off and on for roughly five years. Mr. Leete signs and seals plans for, among others, a draftsman named Dan Langley. Mr. Langley provides drawings and plans for Respondent’s projects. When Respondent submits plans to a local governing body which requires architectural drawings to accompany permit applications, Mr. Leete reviews and signs the plans. Mr. Leete was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Mr. Leete by Respondent during the audit period was for professional architectural services rendered. Mr. Langley was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Langley during the audit period were for professional drafting services rendered. Among the names on the Department’s worksheet is R.W. Kicklighter. Mr. Kicklighter is an energy consultant whose office is located in the same building with Mr. Leete. Mr. Kicklighter prepares energy calculations, based on construction plans, to determine the capacity of heating and air-conditioning systems needed to serve the planned construction. Mr. Kicklighter was neither an employee of, nor a subcontractor for, Respondent during the audit period. Payments made to Mr. Kicklighter during the audit period were for professional services rendered. Respondent made a payment of $125 on September 15, 2014, to an entity known as Set Material. Set Material is a company that rents dumpsters for collection of concrete at demolition and reconstruction sites. Removal and disposal of the concrete from the jobsite is included within the rental price of the dumpster. The Department included on the worksheet an entry for “Let Malereal.” The evidence revealed the correct name is Set Material and no evidence was introduced regarding the existence of a person or entity known as Let Malereal. Set Material was neither an employee of, nor a subcontractor for, Respondent during the audit period. The single payment made to Set Material during the audit period was for dumpster rental. The Department’s worksheet contains an entry for “CTC” for the penalty period of January 1, 2014, through May 1, 2014. Respondent made a payment to “CTC” on April 11, 2014, in connection with a job referred to as “964 clubhouse.” The records show Respondent made payments to Gulfeagle Supply, Vern’s Insulation, John Wood, Bruce Bennett, and Ron Whaley in connection with the same job. At final hearing, Mr. Coleman had no recollection what CTC referred to. Mr. Coleman’s testimony was the only evidence introduced regarding identification of CTC. CTC could have been a vendor of equipment or supplies for the job, just as easily as an employee. The evidence is insufficient to support a finding that CTC was an employee of, or a subcontractor for, Respondent during the audit period. The check stub for check 1685 does not indicate to whom the $60 payment was made. The stub reads “yo for Doug.” The Department listed “Doug” as an employee on its worksheet and included the $60 as wages to “Doug” for purposes of calculating workers’ compensation premiums owed. At hearing, Mr. Coleman was unable to recall ever having employed anyone named Doug, and had no recollection regarding the January 7, 2015, payment. The evidence was insufficient to establish that “Doug” was either Respondent’s employee or subcontractor during the audit period. Ken’s Heating and Air was not an employee of, nor a subcontractor to, Respondent for any work undertaken by Respondent during the audit period. Ken’s Heating and Air conducted repairs on, and maintenance of, Mr. Coleman’s personal residence during the audit period. Checks issued to Ken’s Heating and Air during the audit period were payments for work performed at Mr. Coleman’s personal residence. Barry Smith is an electrical contractor. Mr. Smith was neither an employee of, nor subcontractor to, Respondent for any work performed by Respondent during the audit period. Mr. Smith did make repairs to the electrical system at Mr. Coleman’s personal residence during the audit period. Checks issued to Mr. Smith during the audit period were payments for work performed at Mr. Coleman’s personal residence. The remaining names listed on the Department’s penalty calculation worksheet were accurately included as Respondent’s employees.2/ Calculation of Payroll Mr. Coleman’s exemption certificate expired on July 18, 2015, approximately four months shy of the end of the audit period. Payments made by Respondent to Mr. Coleman during the time period for which he did not have a valid exemption (the penalty period) were deemed by the Department as wages paid to Mr. Coleman by Respondent. Respondent’s business records show seven checks written either to Mr. Coleman or to cash during that time period in the total amount of $3,116.52. The Department included that amount on the worksheet as wages paid to Mr. Coleman. Check 1873 was written to cash, but the check stub notes that the payment of $1,035.69 was made to Compliance Matters, Respondent’s payroll company. Check 1875 was written to cash, but the check stub notes that the payment of $500 was made to Daytona Landscaping. The evidence does not support a finding that checks 1873 and 1875 represented wages paid to Mr. Coleman. The correct amount attributable as wages paid to Mr. Coleman during the penalty period is $1,796.52. Respondent’s employees Tyler Eubler, Brian Karchalla, Keith Walsh, and John Strobel, were periodically paid by Respondent during the audit period in addition to their paychecks from Convergence. Mr. Coleman testified that the payments were advances on their wages. He explained that when working on a job out of town, the crew would arrive after Convergence had closed for the day, and Mr. Coleman would pay them cash and allow them to reimburse him from their paychecks the following day. Unfortunately for Respondent, the evidence did not support a finding that these employees reimbursed Mr. Coleman for the advances made. The Department correctly determined the payroll amount attributable to these employees. The Department attributed $945 in payroll to “James Sharer.” The Department offered no evidence regarding how they arrived at the name of James Sharer as Respondent’s employee or the basis for the payroll amount. James Shores worked off-and-on for Respondent. Mr. Coleman recognized the worksheet entry of “James Sharer” as a misspelling of Mr. Shores’ name. Respondent’s records show payments totaling $535 to Mr. Shores during the audit period. The correct amount of payroll attributable to Mr. Shores from Respondent during the audit period is $535. The Department included wages totaling $10,098.84 to Mr. Barenfanger during the period of noncompliance from November 20, 2013, to December 31, 2013. The Department imputed the average weekly wage to Mr. Barenfanger for that period because, in the Department’s estimation, Respondent did not produce records sufficient to establish payroll for those two months in 2013. See § 440.107(7)(e), Fla. Stat. The voluminous records produced by Respondent evidenced not a single payment made to Mr. Barenfanger between January 2014, and November 19, 2015. Even if Mr. Coleman had not testified that he did not know or employ Mr. Barenfanger before November 19, 2015, it would be ludicrous to find that he worked weekly for Respondent during the last two months of 2013. Mr. Coleman testified, credibly, that Mr. Barenfanger worked the jobsite for Respondent on November 18 and 19, 2015, but not prior to those dates. The evidence does not support a finding that the worksheet entry for Mr. Barenfanger in the amount of $10,098.84 accurately represents wages attributable to Mr. Barenfanger during the period of noncompliance. The Department’s worksheet includes an employee by the name of Ren W. Raly for the period of noncompliance from January 1, 2014, through May 1, 2014, and a Ronnie Whaley for the period of noncompliance from June 19, 2014 through December 31, 2014. Mr. Coleman testified that he never had an employee by the name of Raly and he assumed the first entry was a misspelling of Ronnie Whaley’s name. Mr. Coleman testified that Ronnie Whaley was a concrete finisher and brick layer who did work for Respondent. Mr. Coleman testified that he submitted to the Department a copy of Mr. Whaley’s “workers’ comp exempt,” but that they must not have accepted it. The records submitted to the Department by Respondent do not contain any exemption certificate for Ronnie Whaley. However, in the records submitted to the Department from Respondent is a certificate of liability insurance dated February 25, 2014, showing workers’ compensation and liability coverage issued to Direct HR Services, Inc., from Alliance Insurance Solutions, LLC. The certificate plainly states that coverage is provided for “all leased employees, but not subcontractors, of Ronald Whaley Masonry.” The certificate shows coverage in effect from February 1, 2013, through February 1, 2015. Petitioner did not challenge the reliability of the certificate or otherwise object to its admissibility.3/ In fact, the document was moved into evidence as Petitioner’s Exhibit P1. Petitioner offered no testimony regarding whether the certificate was insufficient proof of coverage for Mr. Whaley during the periods of noncompliance listed on the worksheet. The evidence does not support a finding that Mr. Whaley was an uninsured individual during the periods of noncompliance. Thus, the wages attributed to Mr. Whaley by the Department were incorrect. Ms. Beal assigned the class code 5645—Carpentry to the individuals correctly identified as Respondent’s uninsured employees because this code matched the description of the job being performed by the workers on the jobsite the day of the inspection. Ms. Beal correctly utilized the corresponding approved manual rates for the carpentry classification code and the related periods of noncompliance to determine the gross payroll to the individuals correctly included as Respondent’s uninsured employees. Calculation of Penalty For the employees correctly included as uninsured employees, Ms. Beal applied the correct approved manual rates and correctly utilized the methodology specified in section 440.107(7)(d)1. and Florida Administrative Code Rules 69L-6.027 and 69L-6.028 to determine the penalty to be imposed. For the individuals correctly included as uninsured employees, and for whom the correct payroll was calculated, the correct penalty amount is $2,590.06. The correct penalty for payments made to Mr. Coleman during the penalty period is $571.81. The correct penalty for payments made to James Shores is $170.24. The correct total penalty to be assessed against Respondent is $3,332.11. The Department demonstrated by clear and convincing evidence that Respondent was engaged in the construction industry in Florida during the audit period and that Respondent failed to carry workers’ compensation insurance for its employees at times during the audit period as required by Florida’s workers’ compensation law. The Department demonstrated by clear and convincing evidence that Respondent employed the employees named on the Second Amended Order of Penalty Assessment, with the exception of Ken’s Heating and Air, CTC, Don Langly, Ren W. Raly, R.W. Kicklighter, Dave Locte, Let Malereal, Ronnie Whaley, and “Doug.” The Department did not demonstrate by clear and convincing evidence that it correctly calculated the gross payroll attributable to Mr. Coleman and Mr. Shores. The Department demonstrated by clear and convincing evidence that Ms. Beal correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalty for each of Respondent’s uninsured employees. The Department did not demonstrate by clear and convincing evidence that the correct penalty is $9,629.36. The evidence demonstrated that the correct penalty to be assessed against Respondent for failure to provide workers’ compensation insurance for its employees during the audit period is $3,332.11.
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 Financial Services, Division of Workers’ Compensation, finding that Fantastic Construction of Daytona, Inc., violated the workers’ compensation insurance law and assessing a penalty of $3,332.11. DONE AND ENTERED this 18th day of August, 2016, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 18th day of August, 2016.
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Third Amended Order of Penalty Assessment (“Third AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Gregg Construction is a corporation engaged in business in the State of Florida. Gregg Construction has been operating as a business since November 9, 2007. William Gregg is the owner of Gregg Construction and its sole employee. The address of record for Gregg Construction is 166 Big White Oak Lane, Crawfordville, Florida 32327. On June 15, 2017, the Department’s investigator, Lewis Johnson, conducted a routine visit to a jobsite to conduct a compliance investigation. Mr. Johnson observed Mr. Gregg use a table saw, measure, and cut a piece of wood. Mr. Johnson then observed Mr. Gregg nail the wood to the exterior wall of the home at the jobsite. After Mr. Johnson inquired about the work Mr. Gregg was performing, Mr. Gregg ultimately told Mr. Johnson that he was working as a subcontractor for Respondent. Based on Mr. Johnson’s observations, Mr. Gregg was performing construction-related work at the job site. Mr. Johnson then conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Mr. Gregg. Based on the results of his investigation, on May 10, 2017, Mr. Johnson issued a SWO to Respondent for failure to maintain workers’ compensation coverage for its employees. On May 10, 2017, Mr. Johnson hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”) on Respondent. The Records Request directed Respondent to produce business records for the time period of May 10, 2015, through May 11, 2017. While Respondent provided tax returns, it did not provide sufficient business records to the Department. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, May 10, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Johnson’s observations at the jobsite on May 10, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5645 to calculate the penalty. Classification code 5645 applies to work involving carpentry. Ms. Jackson applied the approved manual rates for classification 5645 for the work Mr. Johnson observed Mr. Gregg perform. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $15.91 for the period of May 11, 2015, through December 31, 2017; and $16.92 for the period of January 1, 2016, through June 10, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Mr. Johnson discovered that Mr. Gregg previously held an exemption, which expired on April 26, 2013. Although Mr. Gregg currently has an exemption, his exemption was not in effect during the audit period. On June 6, 2017, the Department issued its first AOPA that ordered Respondent to pay a penalty of $46,087.72, pursuant to section 440.107(7)(d). On August 1, 2017, Petitioner issued the Second AOPA based upon records submitted by Respondent, which reduced the penalty assessment to $14,752.62. After this matter was referred to the Division, on January 23, 2018, Petitioner filed a Motion for Leave to Amend Order of Penalty Assessment and issued the Third AOPA based upon records submitted by Respondent. Based on the Department’s calculation, the record demonstrates that the penalty assessment, based on records provided by Respondent, would be $9,785.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding the following: that Respondent failed to secure and maintain workers’ compensation coverage for Mr. Gregg; and that Respondent shall pay a penalty of $9,785.50.1/ DONE AND ENTERED this 23rd day of March, 2018, 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 23rd day of March, 2018.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department, an executive agency of the State of Florida, is an employer as that term is defined in Section 760.01(6), Florida Statutes. Vickers is a black male who at all times material to this proceeding was employed by the Department. Vickers was first hired as a COI at the Mayo Correctional Institution, Lafayette County, Florida, on or about October 30, 1987, and transferred to the Madison Correctional Institution, Madison County, Florida, on or about February 19, 1988. At all times material to this proceeding, Vickers held permanent status within the Career Service System, enacted and authorized under the laws of Florida. On April 28, 1989, Vickers was promoted from COI in food service to COII in food service. Vickers was placed on a nine-month probationary status insofar as the promotion was concerned. Vickers was selected for this promotion over two other white candidates. The interview team consisted of Eric Holt, Cathy Leggett and Aubrey Dean. Then-Superintendent, Terry Hicks selected Vickers for the promotion on the recommendation of the review committee. In the position of COII in food service, Vickers was responsible for supervising staff and inmates in the preparation of food at the Madison Correctional Institution. Vickers would supervise as many as three correctional officers and as many as 20-30inmates. Among those under Vicker's supervision was COI, Janice Lingenfelter and inmate Jeffery Lausin. On or about August 15, 1989, Lingenfelter made a complaint to COII Nellie Cunningham that Vickers had been sexually harassing her. Lingenfelter then made a written complaint to Hicks, who then requested that an inspector from the Department's Inspector General's Office be assigned to investigate the allegations. CO Inspector II William Dotson was assigned to investigate the allegations made by Lingenfelter. Dotson began his investigation on August 17, 1989, by interviewing several witnesses including Lingenfelter, Cunningham, Lausin and Vickers. Dotson's investigative report was completed and sent for review to the Inspector General of the Department on October 3, 1989. It was determined through Dotson's investigation that there was evidence to support Lingenfelter's claim of sexual harassment against Vickers and a failure by Vickers to maintain a professional relationship with staff and inmates under his supervision. Dotson's report was sent to Hicks at Madison Correctional Institution sometime between October 4, 1989 and November 1, 1989. By letter dated November 1, 1989, Vickers was notified that disciplinary charges were being brought against him for violating certain Department rules pertaining to sexual harassment and failure to maintain a professional relationship with inmates under his supervision. That letter, signed by Hicks, also advised Vickers of his right to request a conference, prior to any final action being taken, at which he could present evidence to refute or explain the charges against him. Vickers requested and was given a conference held on November 28, 1989. At that conference, Vickers was represented by counsel and presented a statement to Hicks regarding the charges against him. Vickers was notified by letter dated December 6, 1989 that he would be suspended for five days without pay for his violation of the rules cited in the charging letter of November 1, 1989. On or about August 18, 1989, Vickers was reassigned from food service to security. Hicks made this reassignment due to the investigation into allegations of sexual harassment against Vickers which had originated in food service. After reviewing Dotson's investigative report, and after hearing Vickers' response to the charges against him, Hicks made the decision to demote from COII to COI. The demotion was effective December 15, 1989. At the time of the demotion, Vickers was in probationary status as a COII. Hicks determined that Vickers had exhibited an inability to properly supervise the inmates and staff under his supervision. An inmate in food service had patted a female correctional officer in food service (Lingenfelter) on the buttocks. Hicks attributed this lack of discipline on the part of the inmate to poor supervision by Vickers. On or about December 15, 1989, Vickers was given a below standards performance appraisal written by Eric Holt, his supervisor. On the front of the appraisal was the indication that it was a probationary appraisal. Personnel Manager Leggett told Hicks that it should be a special performance appraisal rather than probationary, but Hicks did not change the appraisal prior to giving it to Vickers. This performance appraisal was incorrectly titled "probationary" rather than "special", and later determined to be invalid. Vickers was not given an annual performance appraisal on his anniversary date (October 30, 1989) because he was in a probationary status. While the failure to give a timely and appropriate employee performance appraisal may be a violation of the Career Service System Rules, Chapter 22A-9, Florida Administrative Code, this not would prohibit the Department from demoting an employee who is on probationary status because of a promotion, if there were legitimate, nondiscriminatory reasons for the demotion. Vickers has never received a Performance Appraisal wherein he was rated at less than an "Achieves Level", other than the Performance Appraisal entitled "probationary" which was later determined to be invalid for reasons other than the rating of Vickers' performance. Vickers appealed his suspension and demotion to the Public Employees Relations Commission (PERC). A hearing was held, since it was determined that PERC did have jurisdiction to review Vicker's suspension but not his demotion. Under the personnel rules governing state employees, a person who is in probationary status in a class may not appeal his or her demotion from that class. After hearing and weighing the evidence and argument of both parties, the Hearing Officer entered a Recommended Order dated March 2, 1990 wherein it was found that the Department had proven the charges against Vickers by a preponderance of the evidence, and therefore, just cause existed for discipline. The Hearing Officer also determined that the five-day suspension should not be reduced, specifically citing the seriousness of the offense as it related to his duties and responsibilities. A Final Order was issued by PERC on May 2, 1990 adopting the Hearing Officer's Recommended Order in its entirety and dismissing Vicker's appeal. Approximately January 3, 1990, interviews were held to fill the position of COII in food service from which Vickers had been demoted. Of the eleven applicants, two were black males, one was a black female, five were white males, and three were white females. One of the black males cancelled his interview, while the other "declined F.S." (food service). The black female was promoted to a position with the Hamilton Correctional Institution. Larry Pickels, a qualified white male, was selected for the position. Neither the "invalid Performance Appraisal" nor Hick's decision to demote Vickers were motivated by Vickers' race or sex, to wit: black and male. The Department has produced sufficient admissible evidence to show that it had a legitimate, nondiscriminatory reason for demoting Vickers.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly, recommended that the Commission enter a Final Order finding that Petitioner, Curtis Vickers, was not demoted due to his race or sex in violation of Section 760.10, Florida Statute, and that the Petition for Relief be dismissed. RECOMMENDED this 19th day of February, 1992, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of February, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5279 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings On Proposed Findings Of Fact Submitted by the Petitioner The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(1); 2(2,3); 3(4); 4(14); 5(2,19); 6(11); 7(7,18); 8(7); 11(10); 12(17); 13-14(16); 15-16(15); 18(14); 19(12); 20-21(14); 27(7,8); 31(16). Proposed findings of fact 9 and 10 are a restatement of testimony rather than a finding of fact, but see Finding of Fact 8. Proposed findings of fact 17, 28 and 32 are unnecessary. Proposed findings of fact 22-26, and 33 are neither material nor relevant. Proposed findings of fact 29 and 30 are more in the way of an argument than findings of fact. Proposed finding of fact 34 is neither material nor relevant, unless it is shown that Vikers' demotion was discriminatorily movitated. Specific Rulings On Proposed Findings Of Fact Submitted by the Respondent 1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number inparenthesis is the finding(s) of fact which so adopts the proposed finding(s) of fact: 1(2); 2(4,5); 3-14(6,7,8,9,10, 11,12,13,14,17,18 and 19, respectively). COPIES FURNISHED: Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahssee, FL 32399-1570 Gary L. Asbell, Esquire McMurry & Asbell 1357 East Lafayette Street Suite C Tallahassee, FL 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Louis A. Vargas, Esquire General Counsel Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500 Ernest L. Reddick, Esquire Assistant General Counsel Florida Department of Corrections 2601 Blairstone Road Tallahassee, FL 32399-2500
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order for Specific Worksite Only (“SWO”) and Amended Order of Penalty Assessment (“AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Allstate is a corporation engaged in business in the State of Florida. Allstate was organized on May 23, 2005. Edgar A. Ezelle is the president and registered owner of Allstate. The address of record for Allstate is 8217 Firetower Road, Jacksonville, Florida 32210. In March 2017, Respondent was hired as the general contractor to renovate a hotel at a jobsite located at 3050 Reedy Creek Boulevard. When Respondent accepted the project, Prestige Handyworkers, LLC (“Prestige”), a subcontractor, was working on the jobsite. Although Prestige was hired by the previous general contractor, Respondent continued to work with Prestige. On June 15, 2017, the Department’s investigator, Kirk Glover, conducted a routine visit to the jobsite to conduct a compliance investigation. Mr. Glover observed six individuals performing construction-related work at the site. Mr. Glover conducted an interview of the individuals and took notes during the course of his interviews. Mr. Glover identified the individuals as: Luis Miguel Paz; Joseph A. Pizzuli; Roger Penley, Jr.; Georgios Rapanakis; Stavros Georgios Rapanakis; and Joseph Youngs. The six individuals were employed by subcontractor Prestige to perform work on behalf of Allstate. Luis Miguel Paz, Joseph A. Pizzuli, and Roger Penley, Jr., were engaged in painting work; Georgios Rapanakis and Stavros Georgios Rapanakis were supervising the other workers; and Joseph Youngs was engaged in cleanup of the construction site. The workers did not testify at the final hearing. Mr. Glover then contacted Allstate president, Edward Ezelle, who confirmed he was the general contractor for the jobsite and that he retained Prestige as the subcontractor for the site. Mr. Glover conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Prestige or its employees. Prestige did not have workers’ compensation coverage for its employees. The search of CCAS revealed that Mr. Ezelle had an active workers’ compensation coverage exemption, effective July 27, 2015, through July 26, 2017. Based on the results of his investigation, on June 16, 2017, Mr. Glover issued an SWO to Allstate for failure to maintain workers’ compensation coverage for its employees. On June 19, 2017, Mr. Glover hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”). The Records Request directed Respondent to produce business records for the time period of June 16, 2015, through June 15, 2017. Respondent did not provide any business records to the Department. Mr. Ezelle testified that Allstate did not conduct business in Florida for the period of September 2016 through March 2017. While the undersigned has no reason to doubt Mr. Ezelle’s testimony that his business was not active during that time period, Respondent failed to produce records in response to the Records Request to support his testimony. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, June 16, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses the imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Glover’s observations at the jobsite on June 16, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5474 to calculate the penalty. Classification code 5474 applies to work involving painting. Ms. Jackson applied the approved manual rates for classification 5474 for each of the six individuals working on the jobsite. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $11.05 for the period of June 16, 2015, through December 31, 2015; and $11.02 for the period of January 1, 2016, through June 15, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Georgios Rapanakis and Starvos Georgios Rapanakis had a workers’ compensation exemption for the period of June 16, 2015, through June 10, 2016. However, they were not covered by an exemption from June 11, 2016, through June 15, 2017. Although Mr. Ezelle has an exemption, his exemption was not in effect for a short period of July 19, 2015, through July 26, 2015. None of the other employees had an exemption. Based upon the Department’s calculation, the penalty assessment for the imputed payroll would be $153,908.20. On November 17, 2017, the Department filed a Motion for Leave to Amend Order of Penalty Assessment (“Motion for Leave to Amend”). The Department sought leave from the undersigned to amend the penalty assessment. The Department, as a party, is not authorized to amend a penalty without leave from the undersigned after the matter was filed with the Division. See § 120.569(2)(a) and Fla. Admin. Code R. 28-106.202. Despite the AOPA reflecting an issued date of July 14, 2017, the record supports a finding that the AOPA was issued November 17, 2017, the date the undersigned granted the Department’s Motion for Leave to Amend. Thus, the Department issued the AOPA for the imputed payroll 105 business days after Respondent received the Records Request.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order as follows: finding that Respondent failed to secure and maintain workers’ compensation coverage for its subcontractors; and dismissing the Amended Order of Penalty Assessment against Respondent. DONE AND ENTERED this 26th day of January, 2018, 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 26th day of January, 2018. COPIES FURNISHED: Christina Pumphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 (eServed) Edgar Ezelle Allstate Custom Contracting, Inc. 8217 Firetower Road Jacksonville, Florida 32210 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
Findings Of Fact 12. The factual allegations in the Stop-Work Order and Order of Penalty Assessment issued on February 3, 2009, and the Third Amended Order of Penalty Assessment issued on November 4, 2009, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop-Work Order and Order of Penalty Assessment and the Third Amended Order of Penalty Assessment served in Division of Workers’ Compensation Case No. 09-042-D4, and being otherwise fully advised in the premises, hereby finds that: 1. On February 3, 2009, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-042-D4 to GILLION ENTERPRISES, INC. The Stop-Work Order and Order of Penalty Assessment included a Notice of rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty _ Assessment must be filed within twenty-one (21) days of receipt of the Stop-Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 2. On February 3, 2009, the Stop-Work Order and Order of Penalty Assessment was served via personal service on GILLION ENTERPRISES, INC. A copy of the Stop- Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 10, 2009, the Department issued a Second Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Second Amended Order of Penalty Assessment assessed a total penalty of $24,732.08 against GILLION ENTERPRISES, INC. The Second Amended Order of Penalty Assessment included a Notice of Rights wherein GILLION ENTERPRISES, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. The Second Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. by certified mail on March 19, 2009. A copy of the Second Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. | 5. On March 3, 2009, GILLION ENTERPRISES, INC. filed a timely Petition for a formal administrative hearing in accordance with Sections 120.569 and 120.57, Florida Statutes. The Petition was forwarded to the Division of Administrative Hearings and assigned Case No. 09-1389. 6. On November 4, 2009, the Department issued a Third Amended Order of Penalty Assessment to GILLION ENTERPRISES, INC. in Case No. 09-042-D4. The Third Amended Order of Penalty Assessment assessed a total penalty of $21,729.49 against GILLION ENTERPRISES, INC. The Third Amended Order of Penalty Assessment was served on GILLION ENTERPRISES, INC. through the Division of Administrative Hearings. A copy of the Third Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and is incorporated herein by reference. 7. On November 5, 2009, GILLION ENTERPRISES, INC. filed a Notice of Voluntary Dismissal in DOAH Case No. 09-1389. A copy of the Notice of Voluntary Dismissal . filed by ROYMO, INC. is attached hereto as “Exhibit D.” 8. On November 9, 2009 Administrative Law Judge Susan B. Harrell entered an Order Closing File, relinquishing jurisdiction to the Department. A copy of the November 9, 2009 Order Closing File is attached hereto as “Exhibit E.”
Findings Of Fact By Administrative Complaint filed May 28, 1986, Petitioner, Department of Insurance and Treasurer (Department) charged that Respondent, Theodore Riley (Riley), while employed as an adjuster by United States Fidelity and Guaranty Group, (USF&G), did wrongfully obtain the sum of $400 from a workmens compensation claimant to assure that USF&G would not contest the claim (Count I). The complaint further alleged that on September 16, 1985, Riley entered a plea of nolo contendere to an information charging a violation of Section 812.014, Florida Statutes, a felony of the second degree and a crime involving moral turpitude, and that the court withheld adjudication and placed Riley on 18 months probation (Count II). The Department concluded that such conduct demonstrated, inter alia, a lack of fitness or trustworthiness to engage in the business of insurance; fraudulent or dishonest practices in the conduct of business under the license or permit; and, a plea of nolo contendere to a felony involving moral turpitude. Section 626.611(7),(9) and (14), Florida Statutes. At hearing, Riley entered a plea of no contest to Count II of the Administrative Complaint in exchange for the Department's dismissal of Count I of the Administrative Complaint and the Department's agreement that the penalty imposed would be limited to a suspension of his eligibility for licensure for a period of two (2) years. While not conditioning his agreement to a two year suspension, Riley did request that the Department consider crediting the time he has been on probation against the two year suspension. The evidence shows that Riley was arrested and charged with the subject offense in March 1985, that he entered a plea of nolo contendere, that adjudication of guilt was withheld, and that he was placed on probation for 18 months commencing September 16, 1985. As a special condition of probation, Riley was ordered not to apply for an adjuster's license during the term of his probationary period. Consistent with the terms of his probation, Riley has not renewed his adjusters' license. The Department's records reflect that Riley's license was last due for renewal, but not renewed, on April 1, 1985.
