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
The Issue The issue in this case is whether Respondent failed to provide workers' compensation insurance coverage for employees and, if so, what penalty should be assessed.
Findings Of Fact Petitioner, Department of Financial Services, Division of Workers' Compensation ("Division") is the state agency responsible for enforcing the requirement within the state that employers cover employees with workers' compensation insurance. § 440.107, Fla. Stat. (2009). Respondent, Jurgenson Trading Corporation, is owned, in part, by Julio Raudsett, and operates a "Subway" sandwich restaurant franchise in Hialeah, Florida. It is a family-owned business with a total of five employees, three of whom are related. Cesar Tolentino, an investigator for the Division, conducted a field interview of Raudsett, who admitted that he did not carry workers' compensation insurance. Tolentino checked the database in the Coverage and Compliance Automated System ("CCAS"), and there were no records showing workers' compensation coverage for the Subway employees, nor any notices of applicable exemptions. Martha Aguilar, Tolentino's supervisor authorized the issuance of a Stop-Work Order that was personally served on Raudsett by Tolentino by hand-delivery on April 17, 2009. At the same time, Tolentino served a Request for Production of Business Records for Penalty Assessment Calculation. Raudsett provided his business records, including payroll journals and unemployment tax returns. Based on Aguilar's review of the business records, the Division issued its Amended Order of Penalty Assessment ("Order") on June 8, 2009, with an assessed penalty of $19,873.79. Aguilar determined the amount of the penalty, using the following steps: (1) assigning each employee the National Council on Compensation Insurance (NCCI) class code that was applicable for restaurant workers; (2) determining how much the employee had been paid from April 2006 to April 2009 (the period of non-coverage); and (3) assigning the rate to the gross pay to calculate the insurance premium that should have been paid, then multiplying that by 1.5, as required by rule. The NCCI class codes for employees administrative staff as compared to restaurant workers are lower and, therefore, their workers' compensation insurance premiums would be lower. The business records available to Aguilar did not distinguish among employee's responsibilities. Absent that information, the penalty is, by law, calculated using the highest NCCI class code associated with that kind of business, and was correctly done in this case. Raudsett has entered into a payment plan with the Division. He objected only to that portion of the penalty that was based on his earnings, and those of his wife, Maribel Medina, who works part-time, and his father-in-law, Rolando Medina. He claims an exemption for the three of them as owners and managers of the corporation. Excluding their salaries and associated penalties, according to Joseph Cabanas, Respondent's accountant, would reduce the penalty by $10,267.67, to $9,606.12. Cabanas testified that Raudsett, an immigrant from Venezuela, was not aware of workers' compensation laws, and that was why the three owners/officers of the Respondent's corporation failed to file a Notice of Elections to be Exempt from coverage until after the Division's investigation began.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Department of Financial Services, Division of Workers' Compensation, that upholds the assessment of a penalty of $19,873.79. DONE AND ENTERED this 15th day of December, 2009, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 15th day of December, 2009. COPIES FURNISHED: Julie Jones, CP, FRP, Agency Clerk Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0390 Benjamin Diamond, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307 Douglas D. Dolan, Esquire Department of Financial Services Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399 Joseph Cabanas 10520 Northwest 26 Street, Suite C-201 Doral, Florida 33172
The Issue The issues in this case are whether Respondent, Raul A. Correa, M.D. (Dr. Correa), failed to provide workers' compensation coverage, and if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for enforcing section 440.107, Florida Statutes (2013). That section mandates, in relevant part, that employers in Florida secure workers’ compensation insurance coverage for their employees. § 440.107(3), Fla. Stat. At all times relevant, Dr. Correa was a Florida small business engaged in the practice of medicine, with his principal office located at 2505 Manatee Avenue West, Bradenton, Florida. Dr. Correa is not incorporated. On February 12, 2014, Ms. Green conducted an on-site workers’ compensation compliance investigation (compliance investigation) of Dr. Correa’s office. After identifying herself to the receptionist, Ms. Green met Dr. Correa and explained the reason for her presence, a compliance investigation. Dr. Correa telephoned his wife who handles his office management from their residence. Mrs. Correa immediately faxed a copy of the liability insurance policy to the office. However, that liability policy did not include workers’ compensation coverage. After a telephonic consultation with her supervisor, Ms. Green served a Request for Production of Business Records (Request) on Dr. Correa at 11:50 a.m. on February 12, 2014. This Request encompassed records from October 1, 2013, through February 12, 2014, for all of Dr. Correa’s payroll documents, account documents, disbursements, and workers’ compensation coverage policies. Ms. Green consulted the Department’s Coverage and Compliance Automated System (CCAS) database to determine whether Dr. Correa had secured workers’ compensation coverage or an exemption from the requirements for coverage for his employees. CCAS is a database Ms. Green consults during the course of her investigations. Ms. Green determined from CCAS that Dr. Correa did not have any current workers’ compensation coverage for his employees and he did not have an exemption from such coverage from the Department. The records reflected that Dr. Correa’s last active workers’ compensation coverage was in 2004. Dr. Correa obtained workers’ compensation coverage on February 20, 2014. Approximately one month later, Ms. Green served a Request for Production of Business Records for Penalty Assessment Calculation on Dr. Correa. Dr. Correa produced the requested records. These records were given to Lynne Murcia, one of the Department’s penalty auditors, to calculate the penalty. Ms. Murcia determined that the appropriate classification code for Dr. Correa’s employees was 8832, which incorporates physicians and clerical workers. This code was derived from the Scopes Manual, which lists all of the various jobs that may be performed in the context of workers’ compensation. The manual is produced by the National Council on Compensation Insurance, Inc., the nation’s most authoritative data collecting and disseminating organization for workers’ compensation. Dr. Correa listed seven employees on the Florida Department of Revenue Unemployment Compensation Tax (UCT-6) form for the time period of the non-compliance. The UCT-6 form lists those employees who are subject to Florida’s Unemployment Compensation Law. Ms. Murcia reasonably relied upon the UCT-6 filings for the relevant time period to calculate Dr. Correa’s gross payroll in Florida. Using Dr. Correa’s payroll chart, the UCT reports, and the classification codes for each employee, Ms. Murcia calculated the penalty assessment for the three-year penalty period preceding the investigation. This three-year period is the allocated time for reviewing coverage for those who do not have the appropriate workers’ compensation coverage. On April 9, 2014, Ms. Murcia determined the penalty to be $4,287.12. However, upon receipt of additional information regarding a former employee of Dr. Correa, an Amended Order of Penalty Assessment of $3,898.77 was issued on July 28, 2014. Dr. Correa’s position is that his practice is a small “mom and pop” operation. He employs members of his family to run the business side of his practice. His daughter, Antonia, works as Dr. Correa’s “doctor’s assistant.” She works at the various nursing homes that Dr. Correa services. Antonia believed that the nursing homes’ liability insurance would cover her, and she was not subject to workers’ compensation coverage. However, she was, in fact, paid by Dr. Correa. Dr. Correa’s daughter-in-law, Valeria, works from her home computer completing the medical billing for her father-in- law. She has been working in this capacity for approximately 14- 16 years, and it never occurred to her that she needed workers’ compensation coverage. She was paid by Dr. Correa. Dr. Correa’s brother-in-law, Mr. Collado, runs all the errands for the practice. He may go to the bank, take care of car maintenance, buy office supplies or fix things, all in support of Dr. Correa’s practice. Mr. Collado receives regular pay checks from Dr. Correa. Dr. Correa testified that his wife is his office manager and has been since he opened the practice in 1978. Mrs. Correa works from their home, in a small home office. She does all the paper work related to the practice. Dr. Correa firmly believed that he did not require workers’ compensation coverage because some of his employees were “independent contractors” or never worked in his office, but at other locations (individual homes, nursing homes, or just outside the office). Dr. Correa believed his insurance agent who did not think Dr. Correa needed the workers’ compensation coverage. Based upon the testimony and exhibits, the amended penalty assessment in the amount of $3,898.77 is accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, issue a final order upholding the Amended Order of Penalty Assessment, and assessing a penalty in the amount of $3,898.77. DONE AND ENTERED this 24th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 24th day of September, 2014.
The Issue Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6 As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard." Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up." Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on July 10, 2007. The appraisal contained the following "Evaluation Summary": Evaluation Summary Strengths/accomplishments: Gladys is a good operator. Very responsible and always on time. Areas for growth: Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept. This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance." Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues. Petitioner "would sometimes get upset" during these counseling sessions. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced." On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner." The following "details of the . . . infraction" were given in the notice: Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes. The notice also contained the following "Corrective Action Plan": [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred." The notice had been presented to Petitioner by Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices." During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time." Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position. Some time after the May 20, 2008, meeting, Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her. The matter was brought to the attention to Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows: POLICY University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated. PROCEDURE A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to display common courtesy and engage in safe and appropriate behavior at all times. * * * The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited. * * * Making threatening remarks; Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress; * * * Reporting Procedures Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to: * * * Displaying overt signs of extreme anger, hostility, resentment or stress; Making threatening remarks; * * * e. Display of irrational or inappropriate behavior. * * * During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows: This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up." Miriam signed off the switchboard before checking if I was signed on. I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available. I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old. Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate. I was not asked about the situation. Rather I was interrogated. I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation. Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008. This claim is unwarranted and causes undue financial hardship. Following the completion of her investigation, Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked). Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008: After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance. There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way. In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action. In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference. Gladys will be paid for the days that she was suspended in order to conduct this investigation. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows: Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows: * * * . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period." When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked." Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from 11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is." Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume: Subject: Pavilion[8] Calls Ladies, Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221. Please make sure that you go over all Ext and Pavilion info. Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s]. Also make sure that you know how to page all Pavilion calls over head. So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately. Please let me know if you have any further questions. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone," instead of a headset, to answer calls coming in to University's switchboard. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned. During this period, she made her supervisors aware that she was in pain. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail: Dear Cathy, Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved. Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied: Re: Waiting for an e-mail answer Hello Gigi, I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work at University on October 26, 2008, but she did not stay her entire shift. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University. At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail: I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital. I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign. Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset. To date, University has not filled the position from which Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge. DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 12th day of April, 2010.
The Issue Whether Respondent, a licensed insurance agent, committed the offenses alleged in the Amended Administrative Complaint and, if so, the penalties that should be imposed.
Findings Of Fact Petitioner is a licensing and regulatory agency of the State of Florida charged with the responsibility and duty to enforce the provisions of the Florida Insurance Code, which consists of Chapters 624-632, 634, 635, 641, 642, 648, and 651, Florida Statutes. See Section 624.307(1), Florida Statutes. Respondent has been continuously licensed in the State of Florida as a life insurance agent (a 2-16 license) and a general license agent (a 2-20 license) since March 1974, and continuously as a RPCJUA insurance agent (a 00-17 license) since March 1993. On November 4, 1996, Respondent was charged with possession of cocaine in violation of Section 893.13(6)(a), Florida Statutes. This charge, filed in Palm Beach County Circuit Court and assigned Case Number 96-12206 CFA02, is a third degree felony. On May 14, 1997, Respondent entered a plea of nolo contendere to the charge of possession of cocaine, which was accepted. Adjudication of guilt was withheld and Respondent was placed on probation for a period of 18 months. The terms and conditions of Respondent's probation included working at a lawful occupation, intensive drug and alcohol evaluation, successful completion of any recommended treatment, payment of a fine in the amount of $250.00 and court costs in the amount of $461.00, performance of 100 hours of community service, random testing for the use of alcohol and drugs, six months' suspension of driver's license, and DUI school. Respondent successfully completed his probation on November 13, 1998. Respondent continued to work as an insurance agent during the term of his probation. Respondent voluntarily reported the incident to State Farm shortly after its occurrence. As a result, State Farm placed Respondent on probation and conducted a series of random alcohol and drug tests, which Respondent satisfactorily completed. Section 626.621(11), Florida Statutes, provides that the following constitutes grounds for the discretionary discipline of an agent's licensure: (11) Failure to inform the department in writing within 30 days after pleading guilty or nolo contendere to, or being convicted or found guilty of, any felony or a crime punishable by imprisonment of 1 year or more under the law of the United States or of any state thereof, or under the law of any other country without regard to whether a judgment of conviction has been entered by the court having jurisdiction of the case. Respondent failed to report to Petitioner within 30 days of doing so that he entered a plea of nolo contendere to a third degree felony charge of possession of cocaine in Case Number 96-12206 CFA02 on May 14, 1997. On or about March 18, 1998, Respondent applied for licensure as a Variable Annuity Insurance Agent (a 2-19 license). That application contained Question 18, which provides as follows and to which Respondent answered "yes": Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory or country, whether or not a judgment of conviction has been entered. As a result of his answer to Question 18, Petitioner started an investigation, with which Respondent fully cooperated. As a result of that investigation, Petitioner learned the details of Respondent's plea in the criminal proceeding. Respondent testified, credibly, that he did not timely report the entry of his plea in the criminal proceeding because he did not know he was required to do so. 1/ Respondent has continuously worked as an insurance agent licensed by Petitioner in the State of Florida since March 1974. Respondent has been continuously appointed by State Farm and has built up a successful insurance business. This proceeding is the first disciplinary proceeding brought against Respondent's insurance licenses. There have been no other complaints filed by anyone in this state against Respondent's insurance licenses. Respondent's insurance licenses have not been previously disciplined in the State of Florida. The testimony of Respondent's witnesses established that he enjoys a good reputation for honesty, trustworthiness, truthfulness, and integrity in his community. He has engaged in charitable works, including work with the food bank, the Guardian Ad Litem Program, and Brazilian Indians. Respondent's witnesses also established that they had been pleased with their business dealings with Respondent, and that he has the ability and trustworthiness to successfully engage in the business of insurance. Respondent testified that State Farm will terminate his appointment as an agent if his license is suspended. Respondent testified that he will lose his business and his employees will lose their employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding Respondent guilty of violating Section 626.621(8), Florida Statutes, as alleged in Count I of the Amended Administrative Complaint, and guilty of violating Section 626.621(11), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint. It is further recommended that Respondent's licensure as an insurance agent be suspended for two months for the violation of Count I and for three months for the violation of Count II, to run concurrently. DONE AND ENTERED this 30th day of June, 2000, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2000.
The Issue Whether Respondent, G and G General Contracting, Inc., failed to comply with the coverage requirements of the Workers’ Compensation Law, chapter 440, Florida Statutes, by not obtaining workers’ compensation insurance for its employees, and, if so, what penalty should be assessed against Respondent pursuant to section 440.107, Florida Statutes (2014).
Findings Of Fact 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. G and G General Contracting, Inc. (Respondent or G and G), is a domestic business corporation organized on July 5, 2013, pursuant to the laws of the State of New York. Respondent’s primary business address is 88 Lincoln Avenue, Ardsley, New York. Gino Uli is Respondent’s President. Respondent is not a Florida corporation. On December 4, 2014, the Department’s investigator, Aysia Elliott, conducted a random workers’ compensation compliance check at a worksite in Naples, Florida. Ms. Elliott observed seven men at the worksite engaged in interior and exterior painting of a newly-constructed residence. The residence was but one in a large residential subdivision under construction. The central issue in this case, and one that is fiercely contested, is whether the painters Ms. Elliott observed at the worksite were employees of G and G. In response to her verbal inquiries to the painters on site, Ms. Elliott testified that the workers first identified Pacific Construction as their employer. Ms. Elliott attempted to contact Pacific Construction, but her calls to that company were not returned. Ms. Elliott testified that upon her further inquiry, one of the painters, Leonardo Gudiel, stated he was an employee of G and G. At this point, Ms. Elliott was unsure which company to investigate for workers’ compensation coverage for the painters at the worksite. The permit sign at the worksite identified Minto Communities as the general contractor. Ms. Elliott contacted Minto Communities via telephone to determine the name of the company to which painting had been subcontracted. At hearing, Ms. Elliott was unable to recall the names of any of the companies identified by Minto Communities as subcontractors for the job. Ms. Elliott did recall that at least two subcontractors were identified by Minto. Mr. Gudiel gave Ms. Elliott a telephone number for a man named “Edison,” alleged to be the foreman. Ms. Elliott called Edison, and testified that he informed her he was on another call and would have to call her back. Edison did not return Ms. Elliott’s call. Ms. Elliott next received a phone call from Mr. Uli. Ms. Elliott testified that, during that phone conversation, Mr. Uli identified the painters at the worksite as employees of his company, G and G. Mr. Uli denied having ever told Ms. Elliott the painters were his employees. Mr. Uli provided Ms. Elliott with the certificate of insurance demonstrating workers’ compensation insurance coverage for employees of G and G. Mr. Uli told Ms. Elliott he would be in Florida in a few days and would meet with Ms. Elliott in person. Ms. Elliott verified the existence of G and G through the State of New York Division of Corporations’ website. Ms. Elliott then verified, through the Department’s Coverage and Compliance Automated System, that G and G had no workers’ compensation coverage in Florida, nor any exemption from coverage requirements for any of its corporate officers. Ms. Elliott also contacted the New York insurance carrier identified by Mr. Uli and confirmed that the carrier did not cover any G and G employees in Florida. On December 8, 2014, Ms. Elliott reviewed the results of her December 4, 2014, workers’ compensation investigation with Maria Seidler, the Ft. Myers district Supervisor. A determination was made that sufficient evidence and information existed to issue a Stop-Work Order against G and G for failure to provide workers’ compensation insurance, as required by chapter 440. Ms. Elliott met with Mr. Uli on December 8, 2014. Ms. Elliott personally served Mr. Uli with a Stop-Work Order for the construction site in Naples and a request for specified business records on which to base the penalty calculation. Mr. Uli did not provide any records to the Department in response to the records request. The Department’s penalty auditor, Lyna Ty, was assigned to calculate the penalty to be assessed against G and G for failure to secure workers’ compensation insurance during the penalty period. The penalty period was for the two years prior to the date the Stop-Work Order was issued: December 9, 2012 to December 8, 2014. Having no employer records from G and G, Mr. Ty imputed the statewide average weekly wage as Respondent’s payroll for the seven painters at the worksite on December 4, 2014. Mr. Ty calculated a penalty of two times the workers’ compensation insurance premium that would have applied to the purchase of insurance for those specific employees during the penalty period. § 440.107(7)(e), Fla. Stat. Mr. Ty assigned NCCI code 5474, which is the classification code for painting contractors according to the SCOPES manual adopted by the Department for imputing wages associated with various occupations. On January 9, 2015, the Department issued an Amended Order of Penalty Assessment against G and G in the amount of $254,697.38 However, because G and G was not formed until July 5, 2013, the original penalty calculation was based on an incorrect penalty period. Mr. Ty recalculated the penalty based on a penalty period from July 5, 2013 through December 8, 2014. On May 26, 2015, the Department issued a Second Amended Order of Penalty Assessment against G and G in the amount of $185,354.68. Mr. Uli’s testimony provided no more clarity than Ms. Elliott’s as to the identity of the employer for the painters at the worksite on December 4, 2014. Mr. Uli previously lived in Florida for seven years and was engaged in “restaurant business.” Mr. Uli met Leonardo Gudiel, a contractor, while he was living in Florida. While living in Florida, Mr. Uli also met James Cartisano, the purported owner of Facility Construction. When Mr. Uli relocated to New York, he stayed in touch with Mr. Gudiel. According to Mr. Uli, he planned to give to Mr. Gudiel any work G and G obtained in Florida and asked Mr. Gudiel to “be registered as a vendor with [him].” Mr. Uli testified that Mr. Cartisano contacted him in New York and told him that he had been engaged by Minto Communities (Minto) to paint a model home in a new residential neighborhood under construction in Naples, Florida. Presumably, if Mr. Cartisano’s work was satisfactory to Minto, Facility Construction would be hired for the larger job. According to Mr. Uli, he referred Mr. Cartisano to Mr. Gudiel to supply painters for the job. Mr. Uli described himself as the “middle man.” Upon inquiry from the undersigned as to how Mr. Uli or G and G construction would profit from his position as the middle man, Mr. Uli stated, “No arrangement as per se on paper, Judge, but this is on – on [Mr. Cartisano’s] word to me; that if you get me the right guys down there that can do this for me, I’ll take care of you.”1/ On December 4, 2014, when Ms. Elliott conducted her random worksite inspection, Mr. Uli received a telephone call from Mr. Gudiel informing him that Ms. Elliott was onsite asking questions about workers’ compensation insurance. According to Mr. Uli, he called Mr. Cartisano, who “did not want to deal with this.”2/ Mr. Uli explained that he telephoned Ms. Elliott on December 4, 2014, to explain that the guys onsite were painting a model home for Minto, and if Minto was satisfied, Facility Construction would get the overall job (estimated at 700 houses). At hearing, Mr. Uli strongly denied that he told Ms. Elliott the workers were his employees, either on the phone on December 4, 2014, or when he met with her in person on December 8, 2014. The evidence, or lack thereof, leaves the undersigned with many unresolved questions: Why would Facility Construction contact a contractor in New York to provide painters for a job in Florida? Why did Mr. Uli supply Ms. Elliott with a copy of his certificate of insurance for workers’ compensation insurance in New York? Moreover, if the painters were not his employees, why did Mr. Uli travel to Florida from New York and meet with Ms. Elliott? From the evidence as a whole, it can be inferred that Mr. Uli had a significant interest in the work being done at the Naples worksite on December 4, 2014. However, it cannot be inferred that G and G was the employer of the painters at the worksite. That fact must be proven by the Department.
Recommendation Having considered 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 dismissing the Stop-Work Order and Second Amended Penalty Assessment against Respondent, G and G Contracting, Inc., for its failure to secure and maintain required workers’ compensation insurance for its employees. DONE AND ENTERED this 13th day of November, 2015, 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 13th day of November, 2015. 1/ T.83:12-15.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was unlawfully discriminated against due to her age, with regard to her termination from employment on June 19, 1996, and, collaterally, whether her claim is barred by the doctrine collateral estoppel because of Findings of Fact and Conclusions of Law entered by a hearing officer in an unemployment compensation appeals proceeding also related to her termination from employment.
Findings Of Fact Roberta McCabe, the Petitioner, was employed by the Respondent, Woodland Towers, Inc., as a dining room manager from October 22, 1991, through June 19, 1996. During her employment with Woodland Towers that entity employed more than fifteen employees. Ms. McCabe's initial date of employment was August 19, 1991, but she began her capacity as dining room manager on October 22, 1991. She served in that capacity until her termination date of June 19, 1996. She was terminated on that date against her will. Ms. McCabe was born on June 3, 1935, and at the time of her termination she was sixty-one years of age. After her termination, on June 21, 1996, the Petitioner filed a claim against Woodland Towers with the Florida Department of Labor and Employment Security, Division of Unemployment Compensation. In that claim she first raised the issue that she had been discharged due to her age. That claim was filed, of course, before a different state agency, with a different jurisdiction, although the parties were the same. The legal issues were not established to be the same, however, with the exception that in that case, as in this one, the Petitioner raised the question of discharge due to age discrimination. The statutory standards for liability for unemployment compensation, however, were not shown to be co-extensive and identical to those statutory standards and statutory-based legal issues which prevail in the instant case before a different state agency. While the issue of age discrimination may have been the reason offered by the Petitioner in the employment compensation case for her separation from employment, as opposed to what was ultimately found (discharge for misconduct) that legal concept was not shown to have the same definition under the Unemployment Compensation statutes involved in that proceeding, nor was it shown that those statutes support the same or similar actions and remedies as does Chapter 760, Florida Statutes, under which the instant proceeding arises. Therefore it cannot be determined that the legal issues or, for that matter the factual issues in the instant proceeding, are substantially identical to those extant in the unemployment compensation proceeding. In any event, Ms. McCabe timely filed a charge involving age discrimination with the Florida Commission on Human Relations, on or about August 26, 1996. The matter ultimately came on for hearing before the undersigned judge. Ms. McCabe testified at hearing that the only act of discrimination she contends occurred with regard to her termination from employment, on June 19, 1996, occurred on that date and involved discrimination on account of her age. She did not, however, establish that anyone at Woodland Towers ever actually made any discriminatory comments or remarks regarding her age. Ms. McCabe essentially inferred from her status as an older employee, and the fact that she was terminated, the conclusion that Woodland Towers had terminated her on account of her age. She offered no testimony other than her own to support her claim of age discrimination. Conversely, Eleanor Gustavsson and Sidney Roberts both testified that age had nothing to do with their decision to terminate her. Their testimony was unrebutted by the Petitioner. The testimony supporting Petitioner's position that age discrimination or animus resulted in her termination is based solely on the Petitioner's own testimony, chiefly involving her conjectural position, without corroborating evidence, that Woodland Towers intended to terminate her because of her years of seniority which resulted in higher pay and benefits and that therefore, resultingly, her age, with attendant higher pay and benefits, in her position, caused her to be terminated in a discriminatory way, predicated upon her age. Moreover, the Petitioner failed to describe any other co-employee who committed a similar infraction but who was treated more favorably than the Petitioner and did not show that there was any other employee of a younger age who was treated more favorably after committing a similar infraction. The Petitioner did produce the testimony of two fellow employees and offered to produce others to testify that another employee was rude and hostile to the Petitioner. This is insufficient, however, to establish that she was discriminated against because of her age. It was not shown that that employee was in a supervisory position over the Petitioner and merely being rude and hostile to a fellow employee does not rise to the level of Ms. McCabe's infraction. It is therefore unpersuasive to show that Ms. McCabe was the subject of disparate treatment because of her age. Uncontradicted evidence was presented at hearing which establishes that the Petitioner was allowing employees under her supervision, in her capacity as dining room manager, to report for duty before normal working hours and begin work without compensation for the extra time. It was established that she was aware of and indeed responsible for these employees "working off the clock" or before "punching-in." The evidence establishes that she was aware that this was contrary to federal law and Woodland Towers' policy. She was also aware that she was responsible for supervising those offending employees and enforcing the law and policy concerning hours of employment. The Petitioner took full responsibility for the law and employment policy violation in this regard and admitted during the hearing that her actions violated Woodland Towers' employment hours policy. Additionally, Woodland Towers presented credible evidence that Ms. McCabe was terminated solely for reasons of violation of that federal law and policy concerning hours of employment. Woodland Towers' evidence establishes that her age was not the reason for her termination, but rather that her violation of federal law and employment policy concerning the working hours of her employees was that reason. That showing was not rebutted.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and argument of the parties, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief filed by the Petitioner herein. DONE AND ENTERED this 5th day of April, 1999, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1999. COPIES FURNISHED: Robert W. Lloyd, Esquire Cobb, Cole and Bell Post Office Box 2491 Daytona Beach, Florida 32115 Roberta McCabe 701 North Ocean Street Jacksonville, Florida 32201 Sharon Moultry, Clerk Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Florida Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Petitioner is eligible to receive disability income payments under the State Group Disability Income Self-insurance Plan (DISP).
Findings Of Fact On or about February 1, 2005, James S. Purdy, Public Defender for the Seventh Judicial Circuit, State of Florida, hired Petitioner as a "part-time" appellate attorney. Petitioner's duties included representing indigent criminal defendants on appeal. As a "part-time" attorney, Petitioner worked the same number of hours as full-time attorneys. His workload was equivalent to the workload carried by all part-time and full- time appellate attorneys. However, except to attend weekly staff meetings, Petitioner did not perform his duties at the Public Defender's Office. Petitioner and other "part-time" attorneys were free to work from home and/or to maintain a private law office. During Petitioner's employment with the Public Defender's Office, Craig S. Dyer, Deputy Public Defender, was in charge of personnel. James Wulchak, Chief of the Appellate Division, was Petitioner's direct supervisor. Petitioner has been under the continuous care of a physician for Parkinson's disease since his diagnosis in 1997. Parkinson’s disease is a neurological degenerative movement disorder for which there is no known cure. The disease's symptoms initially are responsive to medication but become less responsive over time as the disease progresses. Despite the slow progressive nature of Parkinson’s, Petitioner always was able to compensate for his disability by typing his briefs during the periods of time that his medications were effective in relieving his symptoms. Sometimes he worked before dawn, during the evening hours, or on weekends. Petitioner never informed Mr. Purdy, Mr. Dyer, or Mr. Wulchak that he was unable to perform his duties due to a physical disability. Petitioner never requested or advised his employer of a need for special accommodation to perform his assigned tasks. Petitioner continued to perform the duties required of him as an appellate attorney up through the last day of his employment. Petitioner's employer never contemplated dismissing Petitioner due to his inability to perform satisfactory work. In a meeting on March 25, 2008, Mr. Purdy requested Petitioner's resignation due to an incident unrelated to his disability. Petitioner responded that he needed time to ascertain the status of his insurance benefits. Several days later, Mr. Dyer placed a telephone call to Petitioner. Petitioner again refused to resign. On April 15, 2008, Petitioner attended a routine weekly staff meeting. After the staff meeting, Mr. Dyer and Mr. Wulchak had a private meeting with Petitioner. When Petitioner refused to tender his resignation, Mr. Dyer terminated Petitioner's employment effective immediately. But for the incident unrelated to Petitioner's physical condition, Petitioner's employer would have allowed him to continue to work after April 15, 2008. The next day, Petitioner met with representatives of the Public Defender's Office to surrender files. The Public Defender's Office denied Petitioner's request to be paid for work performed on April 16, 2008. As of April 15, 2008, Petitioner had accumulated 228 hours of annual leave and 242.59 hours of sick leave. Respondent paid Petitioner for 120 hours of annual leave, the maximum allowed. Petitioner did not receive payment for accumulated sick leave because he had not worked six years for the state. At all times relevant here, Petitioner's employment was classified as Select Exempt Service (SES). The DISP is one of the employment benefits that Respondent provides to SES employees under Florida Administrative Code Rules 60P-6 and 60P- The purpose of DISP is to provide employees who are on leave with income once their accumulated leave is depleted. In April 2008, Petitioner filed a claim for disability benefits with the Social Security Administration. On May 5, 2008, Petitioner filed a Notice of Intent to file a claim for benefits under the DISP. In the notice, Petitioner asserted that he was disabled as of April 15, 2008, the last day he was a paid employee. Within 90 days thereafter, Petitioner filed his completed claim for disability income payments under DISP. In a letter dated July 1, 2008, Respondent advised Petitioner that he was not eligible to receive DISP payments because he was no longer a state employee. A letter dated July 5, 2008, advised Petitioner that he would receive Social Security disability income in the amount of $2,060 per month commencing October 2008. Petitioner offered the deposition testimony of Richard Boehme, M.D. in lieu of testimony at hearing. Dr. Boehme, a board-certified neurologist, treated Petitioner several times in 2003 and again in January 2004. Thereafter, Dr. Boehme did not see Petitioner professionally until August 2008. Dr. Boehme's medical opinion was that Petitioner was totally disabled and unable to perform the duties pertaining to his employment as of January 1, 2008. Dr. Boehme's testimony is not persuasive in light of Petitioner's continued productivity up through April 15, 2008. Dr. Boehme did not place any specific limitations on the physical activities of Petitioner. According to Dr. Boehme, there was no medical reason to keep Petitioner from continuing to perform the same duties he performed on his last day at work. The greater weight of the evidence indicates that Petitioner was performing satisfactorily on April 15, 2008.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner is not entitled to DISP benefits. DONE AND ENTERED this 13th day of November, 2008, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 2008. COPIES FURNISHED: Sonja P. Mathews, Esquire Department of Management Services Office of the General Counsel 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399 Henry T. Swann, III Henry Swann, III Post Office Box 4415 St. Augustine, Florida 32085 Dennis Robert Schutt, Esquire Schutt, Schmidt & Noey 2700-C University Boulevard West Jacksonville, Florida 32217 John Brenneis, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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, 2010.
