The Issue Did sexual harassment of Petitioner, Tania Aponte (Ms. Aponte), if any, create a hostile work environment? Did Respondent, Watson Pharmaceuticals, Inc. (Watson) discriminate against Ms. Aponte based on her gender by terminating her employment in March 2009? Did Watson retaliate against Ms. Aponte for complaining about alleged sexual harassment?
Findings Of Fact Based on the testimony and other evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Ms. Aponte is a female. Watson is a pharmaceutical company that manufactures generic brand medicines. Ms. Aponte began working for Watson on November 13, 2006, as a Process Operator I. During her employment with Watson, Ms. Aponte received two promotions, first to Process Operator II and then to Manufacturing Tech I. At all times during her employment, Watson categorized Ms. Aponte as a "non- exempt employee." This means her position was not exempt from the federal Fair Labor Standards Act and state wage and hour laws. Watson gave Ms. Aponte a Watson Employee Handbook when she started work. Ms. Aponte signed a receipt for the handbook. The receipt expressly acknowledged her responsibility to read, know, and follow the personnel policies and practices described in handbook. Watson records and tracks its nonexempt employees' time records through the Kronos time recordkeeping system. This computerized system relies upon employees "swiping" their identification cards to "clock in" and "clock out." During her time with Watson, Ms. Aponte accrued paid time off ("PTO") which combined traditional vacation and sick leave. Watson permitted employees to use PTO to take time off without consequence if they followed proper approval procedures. Watson's Policies and Procedures Manual sets forth Watson's attendance policy. Watson's Employee Handbook, which Ms. Aponte received and was bound to read and follow, also sets forth the attendance policy. The Handbook advises that attendance and punctuality are considered to be part of an employee's overall job performance. It states: "Maintaining a good attendance record is very important." The Handbook also cautions that "excessive or unauthorized absences and/or tardiness may result in disciplinary action, up to and including termination." The Handbook defines an "occurrence," describes when occurrences are incurred, and describes the number of occurrences resulting from specified conduct. Effectively occurrences function as a unit of measure for disciplinary offenses. An employee incurs one half of an occurrence if she is less than two hours late, leaves early, or takes excessively long or frequent breaks. An employee incurs one occurrence if she is absent for a full day or part of a day. An employee also incurs one occurrence if she fails to follow the prescribed call-in procedures. This is in addition to the occurrence incurred for the absence. The Handbook establishes call-in procedures. It requires an employee who is going to be unexpectedly absent to speak directly to her supervisor within 30 minutes of the scheduled start time, not leave a voice mail message. If the employee cannot reach the supervisor, then she is to speak to the next level of management or a member of the human resources department. A voice mail message is acceptable only if the employee has tried and failed to reach her supervisor, the next level of management, and the human resources department. The call-in procedure is only for unexpected absences. The Handbook requires, whenever possible, that employees request and receive advance written approval for an absence. Unless otherwise specified by a supervisor, Watson employees, including Ms. Aponte, were required to obtain 24 hours advance approval of an absence. The Handbook also provides that any absence or tardiness from work not approved in advance will result in an attendance occurrence. The Handbook also establishes what constitutes "excessive absenteeism." An employee is considered to be excessively absent if that employee incurs seven or more attendance occurrences within a rolling 12-month period. Ms. Aponte knew that excessive absenteeism would result in disciplinary action, up to and including termination of employment. She also knew of the "occurrence" system and standards. Throughout her employment with Watson, Ms. Aponte had a chronic absenteeism problem. The problem persisted regardless of who supervised Ms. Aponte. Ms. Anna Bohorquez was Ms. Aponte's first supervisor. On October 25, 2007, Ms. Bohorquez presented Ms. Aponte with a counseling memorandum, emphasizing the importance of attendance and punctuality. The memorandum stated that, over the last quarter, Ms. Aponte had several days on which she had not reported to work. It documented that Ms. Aponte had been counseled about her attendance. The memorandum concluded with the bold face heading "Consequence should incident occur again:" followed by the statement: "If further violations of this nature and/or violations of other company policies, GMPs, SOPs [occur, they] will result in further disciplinary action up to and including termination of employment." Ms. Aponte admits that, as of October 2007, she certainly knew the importance of complying with attendance policies and the seriousness of the potential consequences of continuing to violate Watson's attendance policy. Ms. Aponte's June 18, 2008, performance review by Ms. Bohorquez recorded Ms. Aponte's lack of dependability, defined as "[r]egular, punctual attendance and timely return from breaks; willingness to work overtime." The plan of action for improvement or progress specified Ms. Aponte's need to improve her punctuality and attendance. On or about June 25, 2008, Ms. Bohorquez counseled Ms. Aponte again about attendance and provided her a verbal warning. The basis for the warning was that, during the rolling year, Ms. Aponte had accrued 21 and one-half occurrences. Ms. Bohorquez provided a Corrective Action Notice. The Notice accurately stated that the issues of attendance and punctuality had been discussed with Ms. Aponte in the past, that Ms. Aponte previously had been counseled for her attendance on October 25, 2007, and that her attendance had not improved. The Notice specifically stated: "Tania is expected to improve her attendance drastically and comply with Watson's Attendance and Punctuality policy at all times." The "Plan for Improvement" in the Notice stated bluntly: It is imperative that Tania improve her attendance immediately. She must fully comply with the Watson's Attendance and Punctuality [sic], as unplanned absences are not allowed. Further violation of this policy will result in further disciplinary action up to and including termination. After Ms. Aponte's annual performance review, Ms. Bohorquez and another supervisor, Corey Washington, switched shifts for a couple of months. During that time Ms. Aponte reported to Mr. Washington. Her attendance problems continued. Ms. Aponte worked an eight-hour shift. Like all employees she was permitted to take two 30-minute breaks during her shift. On July 17, 2008, Mr. Washington issued Ms. Aponte a Corrective Action Notice for exceeding her break time. The written warning stated that Ms. Aponte left for her break at 4:45 p.m. and returned to the floor at 6:00 p.m., taking a break of one hour and 15 minutes. Ms. Aponte had been on her break with a male co-worker, Arlinson Hernandez. Mr. Washington issued Mr. Hernandez an identical written warning for exceeding his break time. After receiving the written warning, Ms. Aponte went to the Human Resources Department to complain that the written warning issued by Mr. Washington was too harsh. She requested that it be downgraded to a verbal warning. Ms. Aponte met with Maritza Pantigozo, Senior Human Resources Representative. Ms. Aponte admitted that she had taken an excessively long break. She just claimed that her break had not been as long as stated in the Corrective Action Notice. However, although the Corrective Action Notice provides that Ms. Aponte could place a written response to the disciplinary action in her human resources file, she never did so. Ms. Pantigozo denied Ms. Aponte's request to downgrade the warning because of Ms. Aponte's record of corrective actions and attendance problems. Human Resources downgraded Mr. Hernandez's written warning to a verbal warning because, unlike Ms. Aponte, he had a clean file and had not established a pattern of excessive absenteeism. When Ms. Aponte requested downgrade of the warning and in a subsequent meeting, she also claimed that Mr. Washington had once asked her if she was having phone sex with her boyfriend when she was talking on the telephone during work hours. Watson investigated the complaint in accordance with its sexual harassment policies. No persuasive evidence establishes that Mr. Washington made that comment or any of the other inappropriate comments that Ms. Aponte now claims he made. The timing of Ms. Aponte's claims, the fact that personal telephone use during work hours was not permitted, and the demeanors of Mr. Washington and Ms. Aponte when testifying are persuasive evidence that he did not make the comments alleged. Shortly afterwards, Mr. Washington and Ms. Bohorquez switched back to their original shifts. Ms. Bohorquez once again supervised Ms. Aponte. On October 27, 2008, Ms. Bohorquez issued Ms. Aponte a Corrective Action Notice because Ms. Aponte had accrued 13 occurrences for attendance during the 12-month rolling year. Five of the occurrences had been incurred since Ms. Bohorquez had issued her last warning to Ms. Aponte in June 2008. The Notice stated in bold print that any future incident of this or similar nature may result in additional corrective action, up to and including termination. On December 2, 2008, Ms. Bohorquez issued a Corrective Action Notice to Ms. Aponte. Ms. Bohorquez issued the Notice because Ms. Aponte had incurred 10 and one-half occurrences during the 12-month rolling year for attendance and punctuality. The Final Written Warning noted that, on November 30, 2008, Ms. Aponte had reported to work three hours late without authorization. It also noted occurrences for dress code violations and product production procedure violations in addition to Ms. Aponte's absenteeism violations. The "Plan for Improvement" section of the notice stated: "A Final written warning is being issued to Tania for attendance and punctuality. She is expected to drastically improve and sustain her attendance pattern immediately to avoid termination." On December 18, 2008, Ms. Bohorquez issued an addendum to the December 2 Notice. The addendum corrected the Notice to state that an audit of Ms. Aponte's attendance records determined that Ms. Aponte had incurred 13 occurrences in the prior 12 month rolling period, not the 10 and one-half reported in the December 2 Notice. The addendum reiterated the previous warnings about the importance of attendance and the likelihood of termination with any further occurrences. It stated: Tania must fully comply with Watson's Attendance and Punctuality Policy. This includes being present for work and arriving on time, and timely returns from breaks. If Tania earns 1.0 occurrence she will reach the next level of disciplinary action, which is termination. Ms. Aponte understood that she would be terminated if she incurred just one more occurrence. Ms. Bohorquez issued the Notice because of Ms. Aponte's work record, including her chronic absenteeism. There is no persuasive evidence that the Notice was related in any way to Ms. Aponte's complaint about Mr. Washington. After she received the December 2008 Final Written Warning from Ms. Bohorquez, Watson transferred Ms. Aponte, at her request, to the second shift under the supervision of Tysaun Cook. When Ms. Aponte started working on Mr. Cook's shift, he received her employee packet. From it Mr. Cook learned that Ms. Aponte was on a final written warning. Mr. Cook spoke to Ms. Aponte about her attendance and made sure that she understood that another occurrence could result in her termination. On March 4, 2009, while under Mr. Cook's supervision, Ms. Aponte incurred another occurrence. She did not come to work that day and did not seek or receive approval to take the time off. Ms. Aponte knew in advance that she was going to miss work on March 4, 2009. She planned to miss work that day to attend school orientation. Ms. Aponte also knew that she had used up all of her accrued PTO. On March 3, 2009, Ms. Aponte spoke to Ms. Pantigozo in Human Resources. At the time Ms. Pantigozo was not the Human Resources representative responsible for the division where Ms. Aponte worked. Ms. Aponte did not ask Ms. Pantigozo for authorization to take March 4 off or advise her that she intended to miss work on March 4. And Ms. Pantigozo did not tell Ms. Aponte that she could miss work on March 4. Ms. Aponte spoke to Ms. Pantigozo solely to try to determine if she could get away with missing work that day under the occurrence accounting system. Her conversation with Ms. Pantigozo consisted of general inquiries about the occurrence and attendance policies. On March 4, 2009, Ms. Aponte did not come to work. She left a voice mail message for Mr. Cook that she would not be coming to work that day. This violated Watson's call-in policy, because Ms. Aponte did not speak to Mr. Cook directly, attempt to speak with the next level supervisor, or, failing that, speak to a Human Resources representative. As significantly, the absence did not qualify for reliance on the call-in policy because it was not an unexpected absence. Both Ms. Aponte's testimony and her Proposed Recommended Order acknowledge that, at the least, she knew on March 3, 2009, that Ms. Aponte intended to miss work on March 4, 2009. But she did not attempt to contact her supervisor until March 4, 2009. Mr. Cook advised Human Resources of Ms. Aponte's violation of policy. He recommended that Watson follow the governing procedures and terminate Ms. Aponte. Her employment history of excessive absenteeism, the fact that she was on final warning, and the incurrence of another occurrence were the sole reasons that Mr. Cook recommended termination. Watson terminated Ms. Aponte approximately eight months after her single complaint that Mr. Washington made an inappropriate comment to her. During those eight months, two different supervisors assessed occurrences against her for absenteeism and warned her that further unapproved absences could result in termination. By Ms. Aponte's own testimony, the final occurrence violated Watson's attendance policies. She admits that she planned in advance to miss work to attend school orientation. And she admits that she did not attempt to notify her supervisor until the day of the absence although attending the orientation was not an unexpected absence. There is no persuasive evidence that Watson terminated Ms. Aponte because of her unfounded complaint about Mr. Washington. The persuasive evidence establishes that Watson terminated Ms. Aponte in full compliance with its policies and procedures for her accrued occurrences and her documented record of excessive absenteeism. No persuasive evidence established that Watson treated Ms. Aponte differently than similarly situated males. Ms. Aponte identified eight employees she maintains were similarly situated employees not in her protected class who Watson treated differently. They are: Ian Anderson, Jennifer Domenech, Arlinson Hernandez, Alexis McElhaney, Keisha Noel, Emile Jean-Phillipe, Arnold Phillips, and Valmyr Vavick. Only Ian Anderson, Arlinson Hernandez, Emile Jean-Phillipe, Arnold Phillips, and Valymr Vavick were proven to be male. Persuasive evidence did not establish that they were similarly situated to Ms. Aponte or whether they were disciplined and to what degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations deny the Petition of Tania Aponte in FCHR Case Number 2010-01250. DONE AND ENTERED this 31st day of May, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 31st day of May, 2011.
The Issue Whether the Petitioner should be disqualified to work in a position of special trust.
Findings Of Fact The Department disqualified the Petitioner to work in a position of special trust and denied the Petitioner an exemption from that denial. Subsequently, the Petitioner timely challenged the agency's decision. The Petitioner is employed by Eckerd Youth Alternatives, Inc. (EYA) an entity that operates the Eckerd Youth Development Center at Okeechobee, Florida. He has worked as a youth counselor at that facility since 1993. EYA contracts with the state of Florida to provide facilities for the juvenile justice system and, as such, must comply with employment qualifications for persons working with the juveniles assigned to the facility. The screening of EYA employees must be updated every five years. As part of the background screening process, EYA submitted paperwork for the Petitioner in 1998. The Department did not issue its disqualification decision until February 25, 2000. Thereafter, the Petitioner sought an exemption from the disqualification decision which was also denied by the Department on April 7, 2000. The delays in the re-screening decisions were not attributable to the Petitioner. The Department based its disqualification of the Petitioner and denial of the exemption on the criminal history set forth below. In 1995, the Petitioner entered a plea of nolo contendere to the possession of a weapon charge. Adjudication of guilt on this charge was withheld by the court. Based upon the plea on the weapon charge, the Petitioner received a two-year probation, the weapon was forfeited, and he was ordered to pay court costs and fees. He successfully completed all aspects of the sentence. In 1994, the Petitioner entered a plea of nolo contendere to a charge of domestic violence, a misdemeanor. The Petitioner was adjudicated guilty on this charge and sentenced to one year of probation. He successfully completed all aspects of the sentence on this case. The Department contends that domestic battery/violence is a disqualifying offense which precludes the Petitioner's employment in a position of special trust at the Eckerd Youth Development Center. At all times during his employment by EYA, the Petitioner has served as an outstanding employee. EYA timely filed all the necessary paperwork to have the Petitioner re-screened for employment purposes. At all times during his employment by EYA, the Petitioner has been an excellent role model. He has not exhibited any conduct that would suggest minors would be placed at risk of physical harm if placed in his care. According to Mr. Timko, the Petitioner is "probably one of the most mild- mannered, positive role models that we have out there." The Petitioner's explanations regarding his criminal record have been deemed sufficient and persuasive as to the facts of the underlying incidents. In particular as to the domestic battery/violence incident, it is found that the Petitioner did not harm the alleged victim.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order either granting the Petitioner the exemption sought or finding that he has not committed an act of domestic violence such that he must be disqualified from employment in a position of special trust. DONE AND ENTERED this 9th day of November, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish 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 9th day of November, 2000. COPIES FURNISHED: Johnny R. Jenkins 3745 Northwest 27th Avenue Okeechobee, Florida 34972 Lynne T. Winston, Esquire Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building, Suite 300 2737 Centerview Drive Tallahassee, Florida 32399-3100
The Issue Whether Petitioner was the subject of an unlawful employment practice in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Katrina Morgan, is a female who was employed by Respondent as a probationary Correctional Officer at the Columbia County Sheriff’s Office. Petitioner first worked for the Columbia County Sheriff’s Office from January 2001, through April 1, 2001, as a Correctional Officer. At the time, Petitioner was aware that the Columbia County Sheriff’s Office had a policy that required a Correctional Officer to personally call his or her immediate supervisor at least one hour before the scheduled start of the shift if he or she is unable to report for duty. The policy requires the officer to personally call so that inquiry can be made into how sick he or she is and when the officer might return. The information is necessary so that appropriate numbers of staff can be scheduled and planned for. Unfortunately, Petitioner’s son was involved in a serious traffic accident that resulted in serious injuries to him. As a result of her son’s injuries, Petitioner had many days of absence from her employment. She frequently failed to notify her supervisor when she was unable to report for duty. Such failure violated the Columbia County Sheriff’s Office policy regarding notification in such circumstances. As a result of the policy violations by Petitioner, she received several written warnings from her shift supervisor, then Sergeant Donald Little. In addition to written warnings, Sergeant Little spoke with Petitioner on the telephone about the proper utilization of the Columbia County Sheriff’s Office call- in policy. Eventually, after several such absences, Lieutenant Johnson contacted Petitioner to tell her that he could not permit Petitioner to stay employed with the Columbia County Sheriff’s Office and offered her an opportunity to resign. Petitioner verbally resigned her position with the Sheriff’s Office on March 21, 2001, and later faxed her written resignation to the Sheriff’s Office on March 22, 2001. After she left Columbia County, Petitioner was employed by the Florida Department of Corrections where she had, also, been previously employed. She worked for a period of approximately five to six months with the Department of Corrections and decided to return to the Columbia County Sheriff’s Office because it would give her better working hours for her family needs. On April 28, 2003, Petitioner reapplied for employment as a Corrections Officer with the Columbia County Sheriff’s Office. Knowing her past performance would be an issue and that attendance was an important issue at the jail, Petitioner stated on her April 28. 2003, application as follows: Was forced to give up my position with the Columbia County Jail back in 2001. If given the opportunity I will do whatever it takes to be sure the Columbia County Jail can depend on me. I will make sure I will report to my shift on time, no matter what the circumstances are, I hope you will give me a second chance to prove you can count on me. In the process of reviewing Petitioner’s background summary the Columbia County Sheriff’s Office became aware of some serious areas of concern in her employment history. Specifically, that she had been terminated from the Department of Corrections (DOC) New River Correctional Institute for attendance problems, and that she had poor work performance and problems with calling in at S&S Food Store. This history caused an initial recommendation against rehiring Petitioner. However, the Columbia County Sheriff’s Office was experiencing a severe staff shortage and as a result was desperately in need of new Correctional Officer. Because of the shortage, Petitioner was offered employment with the Sheriff’s Office. Petitioner was sworn in by the Sheriff as a Correctional Officer on November 6, 2003, and given a second chance to prove she was dependable. At this ceremony, the Sheriff personally spoke with Petitioner about attendance issues and that she was being given a second chance. In response, Petitioner gave the Sheriff assurances that this time she would comply with policies. The Sheriff told Petitioner that any further attendance problems would be cause for termination. On November 7, 2003, Petitioner began working in the Respondent’s field training program under the direction of Field Training Officer Howard. Beginning on November 19, she was placed on the night shift and assigned Officer Siraq as her field training officer. The field training program uses daily observation reports (DORs) to evaluate new officers through the field training process. The program is a multi-week training program that trains a new officer while on the job. Eventually, the new officer will work all three shifts at the prison. On November 19, 2003, Officer Siraq was not at work due to illness. Therefore, Petitioner was assigned Officer Chad Sessions as her field training officer. Petitioner was working in the control room at the Columbia County Jail with Officer Sessions, who engaged in a series of very explicit phone calls in Petitioner’s presence. In his telephone conversations he made a number of sexually explict statements, including stating he was going to fuck the girl he was speaking about; that he was “the candy man” and that he was coming to have sex with the girl and that he would do so from behind. Petitioner told Officer Sessions several times that she did not want to hear the sexual comments, but he nonetheless continued in his conversation. Officer Sessions engaged in three such phone calls lasting about 20 minutes. After repeating that she did not wish to have to deal with these types of comments, Petitioner left the control room approximately four times so that she did not have to listen to Officer Sessions conversations. On the daily observation report completed by Officer Sessions for that date, Officer Sessions wrote that Petitioner had engaged in several phone calls and breaks and that she needed to improve on staying at her assigned post without as many distractions. Petitioner spoke to Officer Sessions about his comments on the Daily Observation Report and told him that she did not agree with his statements and refused to sign the document because of her disagreement with him. Officer Sessions took the DOR to Corporal Barcia and informed Barcia that Petitioner would not sign the agreement. He thereafter came back to Petitioner and told her that Barcia had ordered the Petitioner to sign the DOR. Petitioner signed the DOR, but did not put any comments on the DOR in the “Trainee’s Comments” Section regarding her disagreement with Officer Sessions or the reason she left her post in the control room. At the end of the shift on the morning of November 20, 2003, Petitioner drafted a memorandum to now Lieutenant Little requesting time off from work. Petitioner did not mention the incidents with Officer Sessions that had occurred on her shift. In the memorandum, Petitioner stated that she had spoken with Beverly Jackson during her swearing-in ceremony regarding specific days off, and that Ms. Jackson had approved the time off. Also, Petitioner spoke to Officer Howard about the incident on the morning after her shift that ended on November 20, 2003. Petitioner told Officer Howard about Officer Sessions’ remarks and the fact that she initially refused to sign the DOR and Corporal Barcia’s orders to sign the DOR. Officer Howard was concerned when Petitioner gave him this information and told her that he would speak with Lieutenant Little. Officer Howard contacted Lieutenant Little to report the information given to him by Petitioner. Lieutenant Little was on vacation and received the call at home. Officer Howard stated that he needed to report this complaint because Petitioner stated she was uncomfortable with the language used by Officer Sessions in the control room. Lieutenant Little advised Officer Howard that the issue would be addressed upon his return from vacation. Upon returning to work on November 24, 2003, Lieutenant Little called a meeting to discuss Petitioner’s complaints about Officer Sessions’ DOR and phone calls. Petitioner attended the meeting, along with Officer Howard and Corporal Barcia. At this meeting, Petitioner stated that she disagreed with the DOR that Officer Sessions had issued her for November 19, 2003. Specifically, she disagreed with the ratings she received on the DOR. Petitioner was asked why she had not included her disagreements in the “Trainee’s Comments” Section of the DOR. After receiving no reply, Lieutenant Little instructed her that she could make those comments on the DOR, but that they would need to be initialed and dated accordingly. In the comments Section, Petitioner wrote: I had three phone calls, each one was no longer than three-four minutes. The phone calls were in regards to my children. (Staying in assigned post) Ofc[.] Sessions had me escorting I/M’s back and forth and taking paperwork to Ms. Morgan and other sections. When Ofc[.] Sessions was on the phone I would exit the main control room because I didn’t want to hear about his personal business. [Initialed: KM and dated 11-24-03] With regard to her complaints regarding Officer Sessions’ personal phone conversations, Petitioner was very vague in her recount at the meeting. Lieutenant Little asked Petitioner to state with particularity her complaint. She was asked to reduce her complaints to writing and to be as factual and detailed as she could so that Lieutenat Little could properly investigate the matter. Petitioner claims that Lieutenant Little instructed her not to be detailed about the incident. However, Petitioner’s recollection is not given any weight. He instructed her to write the incident report at a sergeant’s desk that was available to write her report. Corporal Barcia sat in the room with Petitioner while she wrote the report since the office was also used by him. Petitioner claimed she felt intimidated by the presence of Corporal Barcia. However, Corporal Barcia did nothing to intimidate her. He did not ask questions about her report or read her report. Petitioner’s testimony regarding her feelings of intimidation is not credible. Lieutenant Little forwarded the report up the chain of command to Captain Smithey. Officer Sessions was disciplined for his conduct and reprimanded in writing regarding his unprofessional phone conversations of November 19, 2003. Officer Sessions was also required to write a letter of apology to Petitioner. The letter of apology was also placed in Officer Sessions’ personnel file. Petitioner testified she never received Officer Sessions’ letter of apology. At some point after his return from vacation, Lieutenant Little received Petitioner’s memo requesting leave from work. After he reviewed the memo and noted Petitioner’s statements regarding Ms. Jackson’s approval, Lieutenant Little contacted Ms. Jackson regarding Petitioner’s claim. Ms. Jackson told Lieutenant Little that she had not given any such approval and would not have done so since she did not have the authority to grant leave. Based on the information from Ms. Jackson and the fact that Ms. Jackson has no authority to approve leave requests for any Columbia County Sheriff’s Office employees, Lieutenant Little concluded that Petitioner was untruthful in her statements in the memorandum about time off. Such untruthfulness was a serious matter regarding Petitioner’s appropriateness to remain employed with the Sheriff’s Office. Lieutenant Little was also very concerned with the fact that Petitioner was already requesting time off since her attendance had been an issue in the past and she was being given a second chance for employment. In the meantime, as part of the field training program, Petitioner was assigned Officer Harris as her field training officer for a different shift. On November 28, 2003, only eight working days after being sworn in by the Sheriff, Petitioner became ill with a flu- type illness. There was no credible evidence that she was incapacitated by this illness to the point that she could not personally call her supervisor as the policy required. As in the past, Petitioner failed to report for duty and failed to properly call-in to her supervisor. This failure violated the Columbia County Sheriff’s Office policy for such absences. On November 29, 2003, Officer Harris, noted on Petitioner’s DOR that she exhibited unacceptable performance with regard to Columbia County Sheriff’s Office policies and procedures; namely, Petitioner needed to utilize the proper chain of command when calling-in. Petitioner wished to explain why she did not follow the call-in policy. Below Officer Howard’s comments, Petitioner inserted comments in a section of the DOR designated for field training officers’ use. Because her comments were in the inappropriate Section Petitioner was instructed to white-out the comments and to place them in the proper section titled, “Trainee’s Comments.” The original, whited-out statement read: The morning I called in Officer Howard was contacted first when I called main control. Mrs. Harris wasn't in yet and didn't have her number. When I called back at the main control, I was directed to speak with Corporal Green. The comments that Petitioner rewrote in the “Trainee’s Comments” Section on the same date were significantly changed by Petitioner to read as follows: The morning I was unable to come to work my husband contacted Ofc[.] Howard [and] was instructed to call Mrs. Harris[.] [W}hen he called Mrs. Harris wasn’t in yet so he was instructed to call back in 20 min[utes]. He was told to relay the message to me, for me to call Cpl. Green. I did so at 1:30 p.m. According to this account by Petitioner, she only made one phone call at 1:30 p.m. to her supervisor well-after the start of her shift and in violation of the Sheriff’s Office policy. Petitioner’s phone records reveal that five telephone calls were made on November 28, 2003, with four of them to the Columbia County Sheriff’s Office Jail. Petitioner testified that her husband, Ralph Morgan, made the first three telephone calls, between the times of 5:39 a.m. and 6:02 p.m. Contray to her comments written on her November 29, 2003, DOR, the Petitioner testified that she telephoned the Jail two times that day, once at 6:24 a.m. and again at 1:20 p.m. However, Petitioner’s memory of the calls she made is not credible, given the more credible written statement she made on the DOR shortly after her absence occurred. Petitioner admits that none of the phone calls, either from Petitioner’s husband or herself complied with the Columbia County Sheriff’s Office policy regarding sick leave. On December 2, 2003, Lieutenant Little sent a memorandum to Captain Smithey recommending that the Petitioner be considered for termination. Lieutenant Little formulated his opinion based upon: Petitioner’s past attendance problems with the Columbia County Sheriff’s Office; her most recent failure to follow Columbia County Sheriff’s Office policy with regard to calling-in and attendance; and her untruthfulness with regard to her request for days off. As a result, and based upon the Sheriff’s recent imposition of strict probationary guidelines on Petitioner’s recent hiring Captain Smithey concurred in the recommendation. There was no evidence that either Little’s or Smithey’s actions were related to any complaint Petitioner had made regarding Officer Sessions. Captain Smithey forwarded the recommendation to the Sheriff. The Sheriff consulted with members of his command staff and reviewed Petitioner’s performance during her probationary period. The Sheriff determined that Petitioner had not satisfied the agency’s standards for the probationary period and had failed in the second chance he had given her. On December 3, 2003, the Sheriff withdrew the Petitioner’s appointment as a probationary Corrections Officer. At hearing, Petitioner admitted that the Sheriff’s decision to terminate her had nothing to do with her complaints to Lieutenant Little about Officer Sessions, but was rather based upon Petitioner’s failure to follow Columbia County Sheriff’s Office call-in procedure. She felt that it was Lieutenant Little and other Officers who had conspired against her to get her terminated. However, there was no credible evidence to demonstrate that such a conspiracy existed. After Petitioner’s termination she contacted the Sheriff to schedule a meeting to discuss her termination. At that meeting, Petitioner spoke with the Sheriff about her complaints regarding Officer Sessions and the issues she had with her DORs. The Sheriff was unaware of the issues she had with Sessions. Specifically, Petitioner claimed that her DOR had been altered or whited-out because she had made complaints to her supervisor in it. Petitioner brought with her to the meeting correct DORs from Officer Sirak as well as the November 29, 2003, DORs. Petitioner told the Sheriff that she believed her DORs were altered in retaliation for a complaint she had made to one of her supervisors. The Sheriff testified that Petitioner did not talk to him about anything with regard to Officer Sessions or sexual harassment during the post-termination meeting. The Sheriff explained to Petitioner that his decision to terminate her was based upon her failure to follow Columbia County Sheriff’s Office procedures. With regard to Petitioner’s DORs, the Sheriff made copies and told her that he would look into her concerns. The Sheriff investigated Petitioner’s concerns, but discovered that all of the DORs that had been changed were changed in order to correct errors made on them. There was no credible evidence to the contrary regarding these DORs. The Sheriff did not discover any reason to change his decision regarding Petitioner’s termination. During discovery, Petitioner originally claimed that it was her November 19, 2003, DOR that had been whited-out, and that she had physically witnessed Officer Howard white it out in his office. Petitioner later recanted her testimony and stated that it was in fact her November 29, 2003, DOR which had been whited-out. With regard to her November 29, 2003, DOR being whited-out, Petitioner changed her testimony to reflect that she witnessed Officer Howard white-out the DOR on November 29, 2003. Despite Petitioner’s numerous attempts to explain her version of the facts with regard to who did what and when to her DORs, even her modified testimony is inconsistent with the facts on record. The record reflects that Officer Howard was not on duty on November 29, 2003. He was off for the holiday beginning on November 27, 2003. His time card reflects that he was on annual leave for the Thanksgiving holiday starting on November 27, 2003, and that he did not return to work until the following, Monday, December 1, 2003. The 29th was a Saturday and Officer Howard worked weekdays and did not go to the jail on the 29th. Regardless of the fact that Petitioner could not have seen Officer Howard white-out her DOR because he was not at work on the day she specified, Petitioner’s testimony with regard to the DORs themselves also proved to be inconsistent with the facts. Petitioner asserted that the reason her DOR was whited- out was that she had included comments regarding sexual language she had overheard Officer Sessions use on the night of November 19th. However, upon examination of the November 29th DOR in question, it was discovered that Petitioner did not mention anything at all with regard to sexual comments or Officer Sessions, but that the comments she had inserted were actually her attempts at justifying why she had failed to properly call-in to her supervisor the day before. As indicated earlier, the reason the comments were whited-out was that Petitioner had inserted them in a Section designated for field training officer use only. As a result, Petitioner was required to move them to the appropriate Section designated as “Trainee’s Comments.” At hearing, Petitioner produced, after her deposition had already been taken, a new DOR allegedly drafted on November 28, 2003, by Officer Harris. This DOR was not contained in Petitioner’s personnel file and it is not known where the newly discovered DOR came from. There is no record evidence, other than Petitioner’s own assertions, that Petitioner’s November 28th DOR is authentic. Suspiciously, Petitioner did not produce this document in response to Respondent’s Request for Production. Nor did Petitioner mention it in her Answers to Interrogatories. She testified that she did not find it in all her papers until after her deposition. Petitioner’s testimony regarding this newly discovered DOR is not credible. Finally, Petitioner offered evidence regarding purportedly similary-situated employees. These employees were Charles Bailey, Thomas Daughtrey and Chad Sessions. Officer Charles Bailey had been employed with Columbia County Sheriff’s Office two times in his career. During his first employment, Officer Bailey was terminated for attendance problems similar to the problems Petitioner experienced in her employment with Columbia County Sheriff’s Office. When Officer Bailey was hired back, he was given strict probationary terms to abide by, including that he: be on time for all scheduled tours of duty; follow all Columbia County Sheriff’s Office call-in procedures; and to generally abide by all Columbia County Sheriff’s Office policies and procedures. During his second- chance employment Officer Bailey abided by all of the conditions set out for him. He did not abuse sick leave and he called-in properly pursuant to Columbia County Sheriff’s Office policy when he needed to take leave. Officer Bailey left the Columbia County Sheriff’s Office on good terms after his second employment. Officer Bailey is not similarly situated in any relevant aspects to Petitioner. Unlike Petitioner, Officer Bailey abided by all of his conditions upon rehire and properly followed Columbia County Sheriff’s Office call-in policy when he missed time. Officer Thomas Daughtry was a new employee and in the field officer training program. He was not a second-chance employee. During his training he missed several days, however, despite the fact that Officer Daughtrey missed some days during his training, Officer Daughtrey followed Columbia County Sheriff’s Office call-in policy every time he requested time off. Nevertheless, because he did in fact miss days during his training, Officer Daughtrey was given unsatisfactory reviews and was required to re-do part of his training. Because he properly called in and he was not a second-chance employee, Officer Daughtrey is not similarly situated to Petitioner in any relevant aspects. Officer Chad Sessions was employed two times with Columbia County Sheriff’s Office. Both times Officer Sessions resigned under good terms. Petitioner has attempted to compare his second employment with that of her second, probationary employment, specifically with regard to a written reprimand Officer Sessions received for failure to follow call-in policy on September 10, 2004. When Officer Chad Sessions was given a reprimand for failing to call-in properly on September 10, 2004, he was not a probationary trainee. Rather, Officer Sessions was a Field Training Officer, and the reason he was unable to phone the jail was due to the phone outages caused by Hurricane Frances. Officer Sessions could not phone the jail and he could not be reached because of the high winds and heavy rain produced by Hurricane Frances. Because Officer Sessions was not a probationary employee, and taking into consideration the extenuating circumstances surrounding the incident, Lieutenant Little decided to issue him a written reprimand. Furthermore, there is no record evidence that Officer Sessions came to the Sheriff’s Office with a prior termination and a poor employment history similar to that of Petitioner. As a result, Officer Sessions is not similarly situated to Petitioner in all relevant aspects.
Recommendation Based on upon the above findings of fact and conclusions of law, it is RECOMMENDED that the Petition For Relief should be dismissed. DONE AND ENTERED this 8th day of November, 2005, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 8th day of November, 2005. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Katrina R. Morgan 4777 Shavesbluff Road Macclenny, Florida 32063 T.A. Delegal, III, Esquire Delegal Law Offices, P.A. 424 East Monroe Street Jacksonville, Florida 32202 Leonard J. Dietzen, III, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
Findings Of Fact During early 1993, the St. Petersburg's Times (the Times), a local newspaper, conducted an investigation of the Pinellas County school board's personnel including compiling arrest records of all its employees. Included in the Times' compilation of arrest records was a record involving Respondent which indicates that on September 27, 1978, Respondent pled guilty to the offense of indecent exposure for which he successfully completed a term of six (6) months probation. Respondent also was obliged, as part of his probation, to serve approximately seven (7) hours of community service at the Salvation Army. Respondent satisfied the community service obligation. Respondent has been employed by the Pinellas County School Board in excess of twenty (20) years. His on the job performance has been satisfactory, having been disciplined only on one occasion for being asleep while on duty. Respondent is, and has been since his early childhood, mentally retarded and he suffers from a severe speech impediment. Respondent was arrested when he relieved himself (urinated) in the presence of three or four minor children. A review of the arrest records and the statements of the arresting officers in the case reveal that Respondent was educably handicapped to the point wherein he had little, if any, understanding of the arrest or the reasons for which he was arrested. The officers questioned whether Respondent understood the Miranda rights read to him when he was arrested. Respondent's difficulty stemmed from his learning disability. Respondent was employed as a custodian with the school board. In performing his duties as a custodian, Respondent's contact with students and other personnel is minimal. Other than the subject incident, Respondent has no prior arrest record nor has there been any subsequent arrest record involving Respondent. Petitioner's administrator, James Barker, who recommended Respondent's dismissal, relates that Petitioner's policy for discipline of support service employees is contained in its Rule 6GX52-7.12 entitled Work Performance and Discharge - Support Service Personnel. Administrator Barker admits that Petitioner's policy allows the Superintendent to impose discipline in a less severe manner than Respondent was disciplined, i.e., a reprimand or suspension. Petitioner's policy calls for progressive discipline. Administrator Barker has also reviewed Respondent's personnel file which indicates that Respondent has been a satisfactory employee throughout his tenure with Petitioner. Respondent's mother, Maggie Jordan, had little recall of the 1978 incident other than the fact that Respondent entered a "plea of convenience". Ms. Johnson noted that Respondent, while a student, was classified as being educably handicapped and was educated with students with special learning disabilities (SLD). Respondent takes his job seriously and would like to return to work for Petitioner as a custodian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order reinstating Respondent to a position of Plant Operator (Custodian). DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1993.
The Issue The issue is whether Respondent, the City of Ormond Beach (the "City"), committed unlawful employment practices contrary to section 760.10, Florida Statutes (2009),1/ by discriminating against Petitioner based on his race or by discharging Petitioner from his employment in retaliation for engaging in protected conduct.
Findings Of Fact The City is an employer as that term is defined in subsection 760.02(7), Florida Statutes. Petitioner, a black male, was employed by the City on August 28, 2001, and assigned to the streets section of the public works department. On October 1, 2003, Petitioner was transferred to the stormwater maintenance section of the public works department, where he worked until his dismissal on July 8, 2009. At the time of his dismissal, Petitioner's job classification was Maintenance Worker II. He reported directly to stormwater supervisor Larry Haigh, who in turn reported directly to environmental systems manager Kevin Gray. At most times, there were eight or nine employees in the stormwater section, including Darren D'Ippolito, a Maintenance Worker IV who worked as second in command to Mr. Haigh and therefore had supervisory authority over Petitioner. Mr. Gray described Mr. D'Ippolito as a "lead worker" who reported directly to Mr. Haigh. Mr. Haigh described the stormwater section's duties as follows: We try to keep anything from flooding, whether it's roads, houses, parking lots, businesses. And we keep all the drains clear and clean during rainstorms, hurricanes. We sandbag City buildings, doorways, you know, keep water out. We take care of streets that are-- that have flooding issues. We go back and find out why they have those issues, and then we fix those issues. Petitioner's primary assignment in the stormwater section was to operate the reach-out mower, which is a large tractor with an extended boom that is used to mow and remove vegetation from the slope angles on swales and ditches throughout the City. The reach-out mower is in daily use because the City has a contract with the Florida Department of Transportation to maintain local rights-of-way. The reach-out mower has an enclosed, air-conditioned cab with a radio, and is therefore considered a desirable assignment within the stormwater section. Many other assignments in the section involve working outside in all manner of weather. The City had no formal job title for "reach-out mower operator." The mower was merely one of the many duties to which a Maintenance Worker II could be assigned. During the course of his employment with the City, Petitioner was placed on performance probation three times. The last such probation, called a "conditional evaluation" by the City, was put in place on December 31, 2008, as the result of an unsatisfactory annual evaluation. The City's employee performance evaluation document is broken into eight categories: appearance; attendance; interpersonal skills; communication skills; achievement of objectives and job knowledge; use and care of equipment; work productivity; and compliance with rules and regulations. In each category, the supervisor rates the employee on a scale of one to five, with "one" meaning below the acceptable standards and "five" meaning that the employee exceeds standards. A score of "three" means that the employee meets the acceptable standard. A score of "two" means that the employee's performance falls between meeting standards and below standards. A score of "four" means that the employee's performance falls between meeting standards and exceeding standards. The employee's overall performance score is calculated by adding the point totals for all eight categories (giving double weight to the scores for "achievement of objectives and job knowledge" and "work productivity"), then dividing the total score by ten. The overall performance is then judged according to the following scale: 5.00 to 4.41 Outstanding 4.40 to 3.71 Excels 3.70 to 2.91 Meets Standards 2.90 to 1.91 Improvement Needed 1.90 to 0.00 Unsatisfactory On his December 31, 2008, evaluation, Petitioner received the following scores and comments: Appearance: 5 "Willis is always neat and clean and in the uniform provided to him." Attendance: 1 "Willis has used 65 hours of unscheduled personal leave time during this ratings period. This abuse of unscheduled personal leave has become a pattern since FY 05/06, FY 06/07 and FY 07/08." Interpersonal Skills: 1 "Willis does not relate to other coworkers effectively and makes little effort to establish rapport. Wills [sic] seems to let his emotions affect interpersonal relationships. Willis needs to work on getting along better with his coworkers." Communication Skills: 2 "Willis' verbal or written communications usually contain necessary information, but most of the time are not accurate. We have been working with Willis to try and change this problem." Achievement of Objectives & Job Knowledge: 2 "Willis understands the goals and objectives of this Department. Willis only handles what he is assigned to do. If Willis is on the Reach-out mower, he's fine. If not, Willis requires constant direction and supervision." Use and Care of Equipment: 4 "Willis generally maintains equipment and promptly reports any deficiencies to his supervisor." Work Productivity: 1 "Willis has no initiative whatsoever. This has been a problem in the past and has not changed. Willis will only do work assigned to him and nothing more. Willis handles few tasks without direct supervision." Compliance with Rules and Regulations: 3 "Willis is in violation of the City's attendance policy." Petitioner's score for his overall performance was 2.2, which placed him in the category of "Improvement Needed." Mr. Gray placed Respondent on a 180-day "conditional evaluation" probation, during which Petitioner would receive a written evaluation every 30 days. In a memorandum to Petitioner dated December 31, 2008, Mr. Gray explained the process as follows: Willis, on December 31, 2008, you were provided with your Annual Employee Performance Evaluation. In your evaluation five (5) areas of "improvement needed" or "below standards" were noted: Attendance Pattern for use of unscheduled personal leave abuse. Interpersonal Skills Pattern of inability to relate to co-workers. Communication Skills Pattern of insufficient verbal communication skills. Achievement of Objectives & Job Knowledge Pattern of non-"Reach-out Mower" related activities. Work Productivity Pattern of lack of initiative to complete any work not specifically assigned but warranted. During this 180 day conditional you will be evaluated by three (3) different superiors every thirty (30) days. The first evaluation will be completed by a Maintenance Worker IV, the second will be completed by the Stormwater Supervisor and the third evaluation will be completed by a Maintenance Worker IV. This succession will be followed for the remaining three (3)-- thirty (30) day evaluations. It is imperative that you realize that during your six (6), thirty (30) day evaluation period [sic] the supervisor responsible will be required to visually observe your work habits and demeanor regarding the above listed five (5) areas of concern. I will be reviewing all six (6), thirty (30) day evaluations prior to presenting them to you. During the evaluation process the immediate supervisor responsible for that evaluation will be present, along with myself. If during any of the evaluation periods you feel the need to discuss any areas of concern, please feel free to notify your immediate supervisor and myself. Additionally, it is to be noted that if during any one (1) of the six (6) Employee Performance Evaluations you receive a rating of "Unsatisfactory" [it] may result in additional disciplinary action, up to and including termination. At the hearing, Mr. Gray testified that he appointed three evaluators at Petitioner's request because Petitioner did not believe that his immediate superiors, Mr. Haigh and Mr. D'Ippolito, would give him a fair evaluation. Petitioner requested that a second Maintenance Worker IV, Ray Back, be appointed to evaluate his performance.3/ Petitioner testified that Mr. Haigh and Mr. D'Ippolito were best friends from high school. Mr. D'Ippolito persistently "nitpicked" Petitioner's job performance whenever Petitioner was not on the reach-out mower. Mr. D'Ippolito would tell Mr. Haigh that Petitioner's work was too slow, and criticize him for "petty stuff" such as failing to sweep out the shop or take out the garbage. Petitioner believed that he was taken off the reach-out mower at the time of his evaluation to afford his superiors an opportunity to hypercriticize his performance. Petitioner felt that Mr. D'Ippolito was harassing him by following him around and watching him perform his work assignments. In fact, it was part of Mr. D'Ippolito's supervisory job to observe Petitioner's performance. Petitioner believed that Mr. D'Ippolito's attitude towards him was rooted in racial prejudice, though he never heard Mr. D'Ippolito say anything that could be construed as racist. At the hearing, a former stormwater section employee, DeWitt Fields, testified that he heard Mr. D'Ippolito use the word "nigger" repeatedly. Mr. Fields, who is black and worked for the City during 2006 and 2007, stated that he had a meeting with Mr. Haigh and Mr. Gray to complain about Mr. D'Ippolito's apparent belief that because he was a supervisor, he could say anything he pleased. Mr. Haigh said to Mr. Fields, "You're black. Don't you use that word?" Mr. Fields denied using the word. Mr. Fields was unsure whether Mr. D'Ippolito was disciplined. Mr. Fields testified that he resigned from the City because of his perception that he had been wronged by the racism in the stormwater department. Neither party questioned Mr. Haigh or Mr. Gray about Mr. Fields' allegations regarding Mr. D'Ippolito.4/ Mr. Fields testified that another Maintenance Worker II, Richard Hernandez, a Caucasian Hispanic male, witnessed Mr. D'Ippolito use the word "nigger" and that Mr. Hernandez provided a written statement to his superiors, but neither party questioned Mr. Hernandez about those events when he testified at the final hearing. Petitioner's failure to seek corroboration of Mr. Fields' story from witnesses who were present and testifying at the hearing, coupled with Mr. Fields' status as a disgruntled former City employee who only vaguely explained the circumstances of his departure, leads the undersigned to discount the credibility of Mr. Fields' allegations. Petitioner had no first-hand knowledge of the incident involving Mr. Fields. Petitioner simply observed that Mr. D'Ippolito seemed to treat Petitioner and another black employee, Greg Lewis, differently than he treated the white employees. For example, when a storm was approaching, Petitioner and Mr. Lewis were always assigned to make sandbags or perform other manual jobs such as "digging and fetching." Petitioner stated that he was not given the same opportunities as white workers to learn to run the backhoe or perform other non-manual tasks. However, Petitioner also conceded that he spent upwards of 90 percent of his working hours operating the reach- out mower. Within the stormwater section, this was considered a plum assignment. Mr. Gray testified that other employees, including Mr. Lewis and Mr. Hernandez, had requested the reach- out mower assignment.5/ The tone of Petitioner's testimony, not to mention the substance of Mr. Haigh's testimony6/ and the written performance evaluations, establish that Petitioner was unhappy whenever he was required to do anything other than operate the reach-out mower. Petitioner claimed that he heard Mr. Haigh make a racist remark in the workplace. In August 2008, during the NFL preseason, Mr. Haigh was holding forth to some employees in the front of the shop regarding the Jacksonville Jaguars game he had watched the previous evening. Mr. Haigh was unaware that Petitioner was close enough to hear his comments. According to Petitioner, Mr. Haigh stated that he did not see any football that night, just "a bunch of monkeys running up and down the field." Mr. Haigh flatly and credibly denied ever having made such a statement. Petitioner testified that he complained to Mr. Haigh about Mr. D'Ippolito's harassment and nitpicking of his job performance, but that Mr. Haigh did nothing to address the problem because of his longstanding friendship with Mr. D'Ippolito. Petitioner testified that he complained to Mr. Gray about the fact that Mr. Haigh and Mr. D'Ippolito were treating him differently because he was black, and that Mr. Gray accused him of "playing the race card." Petitioner stated that on one occasion, Mr. Gray told him that he needed to "man up" and handle matters on his own. Petitioner testified that, unlike many of the other employees in the stormwater section, he did not "sit and just run my mouth." Petitioner said what needed to be said regarding the work at hand, but he did not engage in much social chat with his co-workers. Petitioner believed that his natural reticence led to Mr. Haigh's finding that Petitioner lacked rapport with his fellow employees. In May 2009, just before the Memorial Day weekend, a large "no name" storm approached Volusia County. On May 21, 2009, Volusia County enacted a countywide state of emergency. On Wednesday, May 20, 2009, prior to the formal declarations of emergency, the City began preparations for the storm. The stormwater section began preparing sandbags for residents, checking "hot spots" in the City's drainage system to be sure the drains were open and clear, taking levels on lakes and ponds, using the pump station to lower the level on the City creek to ensure adequate water storage, and fueling the City's vehicles and equipment for use during and immediately after the storm. Mr. Gray testified that the stormwater section performed the "main thrust" of the City's emergency preparations. On either Thursday, May 21 or Friday, May 22, 2009,7/ Mr. Gray convened a meeting of all employees in the stormwater section. Mr. Gray told all the employees that they should expect a call to come to work over the Memorial Day weekend. He instructed the employees to check their rain gear and to be sure their cell phones and pagers had fresh batteries. Each employee of the stormwater section, including Petitioner, was issued a pager. During routine periods, employees took turns having "pager duty" for seven days at a time. The employee on pager duty received an extra dollar per hour for being on call, and was the first person called in to respond to problems occurring outside of normal working hours. During emergencies such as major storms, everyone in the stormwater section was placed on pager duty. If an employee was paged, he was expected to call in and then to report to work unless excused by his superior.8/ Petitioner was well aware of the City's pager policy, as he had earlier agitated for a more equitable distribution of "pager duty" and the extra pay that it entailed.9/ At the meeting, Mr. Gray specifically invoked the universal pager duty requirement for the upcoming weekend. Every employee of the stormwater section was required to carry his pager and to call in to work if paged. On Saturday, May 23, 2009, the rainfall continued unabated, causing the City to enact its own local state of emergency. Mr. Haigh paged all of the stormwater employees. When they returned his call, he told them all to come in to work. All of the stormwater section's employees, including Petitioner, worked that Saturday. At the end of the day, Mr. Gray told the stormwater employees "to go home, get some sleep, but to have their pagers on in the event we had to go into the next mode." Petitioner testified that he had never heard Mr. Gray say that the stormwater employees should expect to work on Saturday. He came in only because an employee in a different section told him that employees were expected to work on Saturday. Petitioner further testified that he and Mr. Lewis worked late on Saturday. By the time Petitioner returned to the station and prepared to go home, no supervisors remained at the workplace. Petitioner stated that no one told him to report to work on Sunday or told him that he had pager duty on that day. On Sunday, May 24, 2009, Mr. Haigh again paged all of the stormwater employees, including Petitioner. All of the employees except Petitioner answered the first page and came in to work. Mr. Haigh paged Petitioner several more times and received no response. Mr. Haigh also telephoned Petitioner's home, where he lived with his parents. Petitioner's father answered the phone and told Mr. Haigh that Petitioner had not come home on Saturday night and he did not know where Petitioner was. Later in the day, Mr. Haigh sent Mr. Lewis to Petitioner's house to see if Petitioner was home. Petitioner did not respond to any of Mr. Haigh's pages and did not report to work on Sunday. Petitioner testified that after the long work day on Saturday, he went out of town to relax on Sunday, spending the day with his fiancée in Daytona Beach. Though he did not realize it at the time, Petitioner did not have his pager with him on Sunday. The Memorial Day holiday was observed on Monday, May 25, 2009. It was a holiday for City employees. At 7 a.m., Mr. Haigh began paging all of the stormwater employees for the third time. Every employee except Petitioner responded to the page, and all of those who responded came in to work with the exception of Mr. Hernandez, who asked Mr. Haigh if he could be excused from reporting in order to take care of a family matter. Mr. Haigh gave Mr. Hernandez permission to stay home. Petitioner testified that he had a telephone conversation with Mr. Lewis on Monday morning. Mr. Lewis told Petitioner that he was at work. Petitioner stated that this was his first inkling that stormwater employees had been called in to work on Sunday or Monday. At about 10:30 a.m., Petitioner phoned Mr. Haigh, who made it very clear that he was upset with Petitioner for failing to call in or show up on either Sunday or Monday. Mr. Haigh asked Petitioner whether he had noticed that it rained 20 inches over the weekend. Petitioner stated that he had been in Daytona, and it didn't seem that bad there. Mr. Haigh stated that Petitioner told him a story about having to help a relative put her furniture on blocks because her house was about to flood. Petitioner testified that his aunt's house was indeed flooded during the storm, but he did not help with her furniture and denied having told this story to Mr. Haigh. Mr. Haigh's testimony is credited on this point. Petitioner asked Mr. Haigh if the stormwater employees were working. Mr. Haigh answered in the affirmative, but told Petitioner not to bother coming in because they were wrapping things up at the station. Mr. Haigh then reported to Mr. Gray that Petitioner had failed to return numerous pages and did not report to work on Sunday. Petitioner testified that it was only after his conversations with Mr. Lewis and Mr. Haigh on Monday that he realized he did not have his pager. He speculated that he either misplaced it or lost it on the job Saturday. He never found it. Mr. Gray made the decision to recommend that Petitioner's employment with the City be terminated. In a June 24, 2009, memorandum10/ to Assistant City Manager Theodore MacLeod, Mr. Gray wrote as follows, in relevant part: . . . Since his Conditional Evaluation, Mr. Littles has been assigned to operate the "Reach-Out Mower" and does a satisfactory job most of the time. The problem that has arisen is when he is not mowing. Several years of evaluations reflect that his interpersonal skills when working with other employees are less than satisfactory. Mr. Littles consistently receives low marks on: Attendance Interpersonal Skills Communication Skills Achievement of Objectives & Job Knowledge Work Productivity During Mr. Littles' seven plus years of employment he has been placed on a thirty (30) day, a sixty (60) day and a one hundred eighty (180) day conditional Performance Evaluation status for several or all the above listed areas. The latest incident happened when he was unavailable during the recent storm and in direct violation of Administrative Policy 53, Compensation During Declared Emergency. Expectations for duty, including reporting requirements before, during and after the emergency event are quite clear and conveyed to all Public Works employees. On May 23, 2009, the City of Ormond Beach enacted a local state of emergency for the May 2009 Unnamed Storm. The administrative policy states employees are required to report or call in during a declared emergency. On Sunday, May 24, 2009, Larry Haigh, Stormwater Supervisor attempted to call Mr. Littles at his home at 9:29 a.m. and spoke to his father, Mr. Littles, Sr., who stated "he didn’t come home last night. Try his pager." Mr. Haigh then attempted to contact Mr. Littles via pager to report to work. Mr. Haigh made three attempts (9:30 a.m., 10:08 a.m. and 3:27 p.m.) to contact Mr. Littles. Mr. Littles did not respond to any [of] the pages. Mr. Littles was issued a new battery for his pager on Friday, May 22, 2009. Mr. Littles finally made contact with Mr. Haigh on Monday, May 25, 2009, at 9:57 a.m.... The Public Works staff is repeatedly informed that they must answer all after- hour calls and/or pages, especially during hurricane season or in this case the Declared Emergency. Mr. Littles is paid to carry the after-hour pager under GEA contract.[11/] In addition, Mr. Littles repeatedly avoids the chain of command procedures and bypasses Mr. Haigh and responds directly to myself without informing Mr. Haigh, who is his immediate supervisor. My response to Mr. Littles in almost all cases is "have you checked with Larry" or "you need to check with Larry." Mr. Littles is currently on a conditional status for substandard evaluations and since this is the fifth month of that time, it is felt that there should be marked improvement in the five (5) items listed above. Mr. Littles in my opinion and the opinion of his immediate supervisors has shown little or no improvement in any area except for attendance. Recently, during the May 2009 storm event, Mr. Littles and another employee were sent to an address that had received structure flooding to assist the homeowner in correctly sand bagging her property. When Mr. Haigh went to follow up on the operation with the homeowner, the homeowner made the comment "if these guys are temporary labor, I would not ever bring them back." On another recent occasion, Mr. Littles disabled one of the fuel keys the department uses for miscellaneous and diesel fueling at the Fleet Facility. Mr. Littles is fully aware of the proper fueling operations but in this instance he punched in numbers that were not required, which resulted in the key being disabled. In this emergency, this key was necessary for the fueling of the numerous stormwater pumps in operation. When Mr. Haigh asked the question, "who punched the numbers in the fuel system," Mr. Littles stated he didn’t know. Mr. Haigh contacted Peggy Cooper, Fleet Systems Specialist to have the key reactivated and requested information on who had placed the personal fuel key with the miscellaneous key. It appeared that it was Mr. Littles who had punched in the numbers 5957 on May 27, 2009, and was the last person to use the fuel keys.[12/] There are several additional instances that are troubling to me regarding Mr. Littles and should not be occurring from a seven year employee. His job knowledge and ability to perform his duties at this point should be satisfactory at minimum. I am therefore requesting that Mr. Littles employment with the City of Ormond Beach be terminated. At the hearing, Mr. Gray testified that he made the decision to recommend termination despite the fact that Petitioner still had one month to go on his 180-day conditional evaluation period. Mr. Gray noted that the last evaluation in June 2009 was the worst of the five that Petitioner received during his probation, and that Petitioner's failure to report on Sunday, May 24, was the final straw. Mr. Gray stated that if an employee were not on probation, failure to respond to a superior's page would call for a verbal or written reprimand if it were a first offense. However, Petitioner was on his third probation in seven years. Moreover, Petitioner had already received a written warning for failing to respond to radio and pager messages from Mr. Haigh on December 24, 2008.13/ Mr. Gray testified that he discussed the recommendation with Mr. MacLeod, the City official who would make the final decision on Petitioner's termination. Mr. Gray testified that they did not talk about Petitioner's allegations of racial discrimination because he was unaware of any such allegations. After receiving Mr. Gray's written recommendation, Mr. MacLeod informed Petitioner of his right to a predetermination conference at which he could present any information in his own defense. The predetermination conference was held on July 2, 2009. Petitioner attended the conference, accompanied by his GEA-OPEIU representative Mike Haller. Attending with Mr. MacLeod was the City's interim Human Resources Director, Jayne Timmons. Petitioner was afforded the opportunity to defend his actions over the Memorial Day weekend and as to the other incidents discussed in Mr. Gray's recommendation memorandum. After the conference, Mr. MacLeod made the decision to support Mr. Gray's recommendation. By letter dated July 7, 2009, Mr. MacLeod informed Petitioner that his employment with the City was terminated, effective July 8, 2009. The letter informed Petitioner of his right to appeal the determination to the City's Human Resources Board or, in the alternative, to utilize the grievance procedures under the GEA-OPEIU's collective bargaining agreement with the City. Petitioner did not appeal to the Human Resources Board, nor did he file a grievance under the collective bargaining agreement. At the hearing, Petitioner sought to explain the incident referenced in Mr. Gray's termination letter regarding the disabling of the fuel key. He essentially blamed the problem on Mr. Lewis, who had either forgotten his key or could not get his key to work. Petitioner lent his fuel key to Mr. Lewis, who could not make it work. Petitioner then tried, and could not make it work. The next thing Petitioner heard about the matter, Mr. Haigh was accusing him of intentionally disabling the fuel pump. Even if Petitioner's story regarding the fuel key is accepted, it does not establish that his superiors were wrong to discipline him. Petitioner concedes that he was involved in the incident that disabled the fuel key. When Mr. Haigh first looked into the matter, Petitioner denied knowing anything about it, which necessitated further investigation. Petitioner's lack of candor alone warranted discipline, particularly because it led to the waste of Mr. Haigh's time and that of Peggy Cooper, the fleet systems specialist who determined that Petitioner was the culprit. Petitioner testified that he was placed on the 180-day probation shortly after he went to City Hall to complain "about how I was unfairly treated, and all these bad evaluations that I had been getting from year to year, and I'm seeing guys that. . . pretty much, ain't doing anything. They just getting by. [I called it] favoritism from Mr. Haigh." 14/ He implied that the probation was in retaliation for his complaint. As noted at Finding of Fact 22, supra, Petitioner claimed that he brought his allegations of racial discrimination to Mr. Gray, who accused him of "playing the race card" and advised him to "man up." Mr. Gray credibly denied that Petitioner raised any issues of discrimination with him until Petitioner turned in his written comments on the December 31, 2008, evaluation. Petitioner's comments included the following: "For the last seven years I've been working with the City of Ormond Beach, I have experienced nothing but harassment, hostile & offensive blatant discriminatory behavior on the part of management . . ." Petitioner also requested a meeting with the City's Human Resources Director and the City Manager to discuss his comments. Mr. Gray testified that he did not read Petitioner's statement as alleging racial discrimination, given Petitioner's history of complaining about general "favoritism" in the stormwater section, but that he nonetheless forwarded Petitioner's meeting request to the City Manager and the Human Resources Director. At that point, the matter was out of Mr. Gray's hands. Mr. Gray had no idea what resulted from the meeting or whether it ever occurred.15/ Mr. Gray recalled Petitioner coming to him to complain about Mr. D'Ippolito, but not because of any racial animus. Petitioner's complaint, as also voiced to Mr. Haigh, involved the fact that Mr. D'Ippolito was "spying" on him. The testimony at the hearing, including Petitioner's, established that Petitioner refused to accept that Mr. D'Ippolito had supervisory authority over him and was supposed to be watching his work. The attempts by Mr. Gray and Mr. Haigh to explain this fact to Petitioner fell on deaf ears. Mr. Gray also recalled that Petitioner complained to him about favorable treatment received by Mr. Hernandez. The gist of Petitioner's complaint was that Mr. Hernandez would not get dirty. Petitioner complained that other workers, including Mr. Hernandez, came in from their day's work as clean as when they went out, whereas Petitioner was required to do the dirty jobs. Mr. Gray testified that he had no response to this complaint. Some jobs in stormwater require the worker to get dirty and others do not. Moreover, said Mr. Gray, some workers are able to "work clean" and others are not. Finally, Mr. Gray was somewhat puzzled by the complaint because Petitioner's regular assignment, operating the reach-out mower, was one of the "cleanest" jobs in the stormwater section. Mr. Gray noted that performing maintenance on the machine involved oil and grease, but that the operational aspects of the reach-out mower did not involve getting dirty. At the hearing, Petitioner testified that his complaint to Mr. Gray about Mr. Hernandez was not confined to the question of getting dirty. Petitioner stated that after receiving his own poor evaluation in December 2008, he complained to Mr. Gray about Mr. Hernandez receiving an outstanding evaluation in spite of having spent all year on the job doing nothing but studying to become a police officer. Petitioner testified that Mr. Hernandez was assigned to operate the Vac-Con, a machine that clears storm drains, and that the Vac-Con truck just sat in front of the public works department while Mr. Hernandez studied. Petitioner stated that Mr. Haigh was aware that Mr. Hernandez was studying on the job and did nothing about it. Mr. Hernandez sat there reading in front of the other employees and took his books with him when riding out on a job. Petitioner did not know whether Mr. Hernandez was ever disciplined for studying on the job. Mr. Hernandez testified that when he was in the police academy he did bring his books in and read them on the job. Mr. Haigh was unaware that Mr. Hernandez was studying on the job until Petitioner and a co-worker complained to someone at City Hall. At that point, Mr. Haigh counseled Mr. Hernandez to "knock it off" and confine his studying to the lunch hour. Mr. Hernandez complied with Mr. Haigh's instruction and that was the end of the matter. Mr. Hernandez' version of these events is more credible than Petitioner's. At the hearing, Petitioner attempted to make a case of disparate treatment as between himself and Mr. Hernandez, focusing on the fact that Mr. Hernandez did not come into work on Monday, May 25, 2009, and received no discipline, whereas Petitioner's failure to come to work the previous day was deemed the "final straw" and cause for his dismissal. In making this case, Petitioner disregards the fact that Mr. Hernandez answered Mr. Haigh's page and requested that he be allowed to remain at home. Unlike Petitioner, Mr. Hernandez was excused from reporting to work. Mr. Haigh was not pleased that Mr. Hernandez asked for the day off, but had no cause to discipline Mr. Hernandez. Mr. Haigh pointed out, "I knew where he was," meaning that he could call Mr. Hernandez in to work if the situation changed. Mr. Haigh had no idea where Petitioner was or how to contact him. Mr. Hernandez' employee performance evaluation for 2008 resulted in an overall score of 4.5, "outstanding" on the City's scoring scale. On each of the eight evaluation criteria, Mr. Hernandez received either a "4" or "5." His superiors included no negative comments or suggestions for improving his performance. Given Mr. Hernandez' overall job performance, it is understandable that the episodes complained of by Petitioner did not result in formal discipline of Mr. Hernandez or greatly affect his performance evaluation. The evidence at the hearing amply established that Petitioner was at best a marginal employee for the City. Mr. Haigh testified that the other employees in the stormwater section did not like to partner with Petitioner because he would not work. For most of the day, Petitioner operated the reach- out mower alone, but when he came into the office to make out his daily reports, Petitioner did not get along with his fellow employees. Mr. Haigh testified that it was hard to make sense of Petitioner's written reports. Mr. Haigh stated that when Petitioner was not on the reach-out mower, he required direction at all times. If a supervisor did not tell him what to do, Petitioner would do nothing. Mr. Haigh described his shock when a homeowner complained to him about the poor job a presumed "day laborer" had done, only to realize that the homeowner was talking about Petitioner. At the time of his dismissal, Petitioner was five months into the third performance-related probation of his seven years with the City. After the events of the Memorial Day weekend, it was not unreasonable for Mr. Gray to conclude that further efforts to improve Petitioner's job performance were futile. Petitioner offered no credible evidence that the City's stated reasons for his termination were a pretext for race discrimination. Petitioner offered no credible evidence that the City discriminated against him because of his race in violation of section 760.10, Florida Statutes. The greater weight of the evidence establishes that Petitioner was terminated from his position with the City due to poor job performance throughout the seven years of his employment. The greater weight of the evidence establishes that the City did not retaliate against Petitioner for his complaint to Mr. Gray about discrimination. The evidence established that Mr. Gray properly forwarded Petitioner's complaint to the City Manager and Human Resources Director. Though the record was unclear as to the outcome of the City's investigation, the fact remains that Petitioner continued to work for the City for another six months after his complaint. Aside from Petitioner's intuitions regarding some kind of "strategy" to fire him, there was no evidence that Petitioner's supervisors were acting in less than good faith in their attempts to shepherd him through the probationary period and encourage him to improve his performance and save his job. The evidence established that Petitioner was the author of his own misfortune.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the City of Ormond Beach did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 5th day of October, 2011, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of October, 2011.
The Issue Whether the Petitioner was required to secure workers' compensation insurance for employees as delineated by Subsection 440.107(2), Florida Statutes (2008), and, if so, whether he did so. If Petitioner was required to provide insurance and did not, this case must also address what penalty for such failure is appropriate.
Findings Of Fact The Department is the state agency responsible for administering and enforcing the statutory requirement that employers secure workers' compensation insurance for the benefit of their employees. § 440.107, Fla. Stat. At all times material to this case, the Department alleged the Petitioner is an "employer" as that term is used within the law. In contrast, the Petitioner has denied being an employer and maintains he was not required to secure workers' compensation insurance for anyone. The Petitioner is from Mexico but is domiciled in Florida. He has been engaged in the business of roofing for approximately twenty years. Roofing is a construction activity under the workers' compensation law. On February 15, 2006, the Department's investigator, Kathleen Petracco, along with an investigator from the Martin County Building Department, Contractor Licensing, made a random stop at 861 SW Bay Pointe Circle, Palm City, Florida. Investigator Petracco observed nine workers performing roofing work at that location. Of the nine workers, only one spoke English well enough to respond directly to inquiries presented by Investigator Petracco. That individual, identified in this record as "Victor," served as the translator for the other workers who spoke Spanish. According to Victor, the lead worker (later known to be Victor Briceno), he and the other eight workers all worked for an individual by the name of “Jesse.” “Jesse” or "Jessie" was later determined to be Jesus Mijares, the Petitioner. Through Victor, Investigator Petracco also interviewed Remigio Lopez, Luis Velasquez, Rubin Hernandez, Antonio Briceno, Jose Velasca, Sebastian Rodriguez and Marco Duran. All of the workers represented that they worked for the Petitioner who paid them $100.00 per day in either cash or by check. Investigator Petracco contacted the Petitioner who informed her that he was asked by “Steve” (later determined to be Steve Thaden) from All American General Construction (All American) to go to the worksite with a crew to tear off a roof. At that time the Petitioner admitted that the workers on the site were his employees whom he paid $100 per day in either cash or by check. Joe Jameson is one of the owners of All American. The company has been in busy since Hurricane Andrew struck Florida. Mr. Jameson acknowledged that Steve Thaden (his nephew) had been employed by the company but claimed that Mr. Thaden was not authorized to hire the Petitioner or others to perform work on jobsites. There is no evidence that the Petitioner and the nine men at the jobsite in question were employees of All American on the date Inspector Petracco visited the site. An individual may be exempt from workers’ compensation benefits. To be exempt, an application must be filed and the procedures of the law must be met. None of the nine men on the jobsite were exempt under the law. The Department maintains a database (the Coverage and Compliance Automated System or CCAS) of all workers’ compensation exemptions in the State of Florida. Inspector Petracco found a construction exemption for Jesus Mijares through the Paul E. Hahn Corporation, with an effective period of February 28, 2004, through February 27, 2006. 11. Sections 440.107(3) and 440.107(7)(a), Florida Statutes, authorize the Department to issue stop work orders to employers unable to provide proof of workers’ compensation coverage. Failure to provide such proof is deemed “an immediate serious danger to public health, safety, or welfare. . . ,” and the Department has no discretion in issuing a stop-work order. See § 440.107(7)(a), Fla. Stat. Prior to issuing a stop-work order, the Department’s investigator must determine: the identity of the employer; whether the employer has secured the payment of workers’ compensation for the workers on a job site, either through a policy or employee leasing; the type of work being performed by the workers; and the type of remuneration (for example, check or cash). In this case, Investigator Petracco accepted the representations of the Petitioner and the nine workers at the site. Accordingly, Investigator Petracco determined that the Petitioner had employees operating at a job site for whom he had failed to secure the payment of workers’ compensation insurance. Based upon this determination, on February 15, 2006, the Department issued to, and personally served on Petitioner, a stop-work order and order of penalty assessment for failing to obtain coverage that meets the requirements of Chapter 440, Florida Statute, and the Insurance Code, Chapter 726, Florida Statutes (2006). Also at that time, Investigator Petracco issued a Request for Production of Business Records for Penalty Assessment Calculation (Records Request) to Petitioner. The Records Request required Petitioner to produce business records for a period of three years, from February 15, 2003, through February 15, 2006. Employers working on job sites in Florida are required to keep business records that enable the Department to determine whether the employer is in compliance with the workers' compensation law. At the time the Order was issued, and pursuant to Section 440.107(5), Florida Statutes, the Department had in effect Florida Administrative Code Rule 69L-6.015. The Rule provides, in part: In order for the Department to determine that an employer is in compliance with the provisions of Chapter 440, F.S., every business entity conducting business within the state of Florida shall maintain for the immediately preceding three year period true and accurate records. Such business records shall include original documentation of the following, or copies, when originals are not in the possession of or under the control of the business entity: All workers’ compensation insurance policies of the business entity, and all endorsements, notices of cancellation, nonrenewal, or reinstatement of such policies. * * * Records indicating for every pay period a description of work performed and amount of pay or description of other remuneration paid or owed to each person by the business entity, such as time sheets, time cards, attendance records, earnings records, payroll summaries, payroll journals, ledgers or registers, daily logs or schedules, time and materials listings. All contracts entered into with a professional employer organization (PEO) or employee leasing company, temporary labor company, payroll or business record keeping company. If such services are not pursuant to a written contract, written documentation including the name, business address, telephone number, and FEIN or social security number of all principals if an FEIN is not held, of each such PEO, temporary labor company, payroll or business record keeping company; and For every contract with a PEO: a payroll ledger for each pay period during the contract period identifying each worker by name, address, home telephone number, and social security number or documentation showing that the worker was eligible for employment in the United States during the contract for his/her services, and a description of work performed during each payperiod by each worker, and the amount paid each pay period to each worker. A business entity may maintain such records or contract for their maintenance by the PEO to which the records pertain. * * * All check ledgers and bank statements for checking, savings, credit union, or any other bank accounts established by the business entity or on its behalf; and All federal income tax forms prepared by or on behalf of the business and all State of Florida, Department of Unemployment Compensation UCT-6 forms and any other forms or reports prepared by the business or on its behalf for filing with the Florida Department of Unemployment Compensation. The Petitioner failed to provide any of the requested records, including his federal tax returns. The Petitioner failed to provide a credible explanation as to why he did not provide the records requested. Further, the Petitioner's self- serving assertions at the hearing that the nine men were not his employees has not been deemed credible. It is undisputed that nine workers were performing a roofing construction service at the jobsite. They were dispatched to the site by the Petitioner, paid a daily wage by the Petitioner, and were accountable to the Petitioner for the quality of their work performance. When an employer fails to provide requested business records that the statute requires it to maintain and to make those records available to the Department, the Respondent may impute that employer’s payroll using the statewide average weekly wage as defined in Section 440.12(2), Florida Statutes, multiplied by a factor of l.5. See § 440.107(7)(e), Fla. Stat., and Fla. Admin. Code R. 69L-6.028. Based upon the foregoing, the Department imputed the gross payroll for the entire period for which the requested business records were not produced. By imputing the gross payroll of the employees utilizing the average weekly wage in effect at the time the stop- work order was issued, the Department calculated a penalty for the time period of October 1, 2003, through February 15, 2006. The average weekly wage was $683.00 in 2006. Investigator Petracco assigned a class code to the type of work performed by Petitioner utilizing the SCOPES Manual, multiplied the class code’s assigned approved manual rate by the imputed gross payroll per $100.00, and then multiplied all by 1.5. She then utilized the imputed payroll for the same number of employees for each of the years assessed pursuant to Florida Administrative Code Rule 69L-6.028(2). The Amended Order was issued and assessed a penalty of $635,727.60. That Amended Order was served on Petitioner by certified mail on August 3, 2006. Investigator Petracco acknowledged that the approved manual rate for class codes may fluctuate from year to year and the penalty worksheet reflected any such fluctuations for the computations she performed. Additionally, Investigator Petracco did not include the Petitioner on the penalty worksheet, and did not factor him into the penalty calculation because he possessed a valid workers’ compensation exemption for the penalty period. Later, after further reflection on the matter, Investigator Petracco recalculated the penalty assessment. This decision was based, in part, upon Investigator Petracco giving the Petitioner the benefit of the doubt in accepting the assertions that the employees were paid at a rate of $100 per day and by going back only to January 1, 2005. The Department relied on these assertions and thus recalculated the penalty to the reduced amount of $236,209.79. Investigator Petracco issued the Second Amended Order which was served via a Motion to Amend Order of Penalty Assessment. The Motion to Amend Order of Penalty Assessment was granted by order on February 11, 2008. Investigator Petracco also utilized business records that were subsequently provided by Petitioner’s counsel in response to the prior records request. In so doing, Jesus Mijares was included in the penalty for the period of May 15, 2003, through January 23, 2004, for which he was paid remuneration (in the form of checks written to him), and during which he did not have a current, valid workers’ compensation exemption. These checks were made payable directly to Jesus Mijares from the Paul E. Hahn Company. That company did not have a workers’ compensation policy or any coverage for its employees. Although the Petitioner claimed that all of the workers were employees of various companies that he procured them for, there are no copies of checks or any records that would corroborate this assertion. The Petitioner further asserts that he was the victim of the matter. The credible evidence supports the findings that the Petitioner was contacted to perform roofing construction, that he procured the workers to do the work requested, that the workers were paid a daily rate of $100.00 (either in cash or check), and that the Petitioner was responsible for assuring that the roofing work was performed correctly. The Petitioner has been doing roofing for 20 years. Presumably, he performs the work in a satisfactory manner. The Petitioner does not have workers' compensation insurance coverage for any of the men who work for him. Moreover, the men are not covered by any of the general contractors for whom the Petitioner does the work. Finally, the men are not part of an employment pool that covers them. The Petitioner provided copies of checks to the Department from the Paul E. Hahn Company that were provided to other individuals who were employees of that company. The checks were remuneration to the employees only. In contrast, the Petitioner was unable to explain why some employees received checks and he received checks from which he was to pay other workers. Based upon the most credible assessment of the facts, it must be found that the Petitioner operated as a subcontractor. He paid his employees from the check written to him. Based upon the checks written to him by the Paul E. Hahn Company, based on the lack of records provided by the Petitioner, and the past trend of his work history as a roofing subcontractor, together with the statements from the men on the jobsite, it is found that the Petitioner was an employer within the meaning of the workers' compensation law.
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 sustaining the Second Amended Order of Penalty Assessment and imposing a penalty in the amount of $236,209.79 against this Petitioner. DONE AND ENTERED this 15th day of September, 2008, in Tallahassee, Leon County, Florida. J. D. Parrish 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 15th day of September 2008. COPIES FURNISHED: Colin M. Roopnarine, Esquire Kristian Dunn, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 R. Patrick Beatty, Esquire 32 East Ocean Boulevard Post Office Drawer 2333 Stuart, Florida 34995 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of her race in violation of Pinellas County Code Chapter 70 (the Code).
Findings Of Fact The Department investigated the complaint of Petitioner and issued a determination on August 7, 2007, that reasonable cause exists to believe that Respondent discriminated against Petitioner on the basis of her race. Petitioner is an African- American female. At the hearing, Petitioner presented a prima facie case of discrimination that is undisputed in the evidentiary record. Respondent is an "employer." Respondent employed Petitioner from December 19, 2006, through February 16, 2007. Respondent employs approximately five employees. Respondent was the only African-American employee. Respondent paid Petitioner at the rate of $7.00 an hour. Petitioner performed the duties required by the terms of her employment in a competent and reliable manner. Petitioner received no complaints from her employer concerning the performance of her job duties. The first adverse employment action occurred on January 29, 2007, when Respondent reduced the hours for Petitioner's shift from 40 hours a week to 24 hours. The second adverse employment action occurred on February 5, 2007, when Respondent reduced the hours for Petitioner's shift to 16 hours. Respondent did not reduce the hours of any Caucasian employee. The final adverse employment action occurred on February 16, 2007, when Respondent terminated Petitioner's employment without cause and with no explanation. Respondent replaced Petitioner with a Caucasian employee who works a 40-hour schedule. No evidence of record shows that Respondent took any adverse employment action against a Caucasian employee. During the Department's investigation of this matter, the Department provided Respondent with repeated opportunities to respond to the allegations, to participate as a party subject to investigation, and to participate in mediation. Respondent has not responded to the allegations of racial discrimination. Petitioner submitted no proof of damages other than lost wages. The Code does not prescribe the methodology for calculating lost wages and interest. The Department interprets the Code to mean that Petitioner is entitled to lost wages through the date of the final order to be issued in this proceeding plus interest at the statutory rate prescribed by the chief financial officer of the state in accordance with Subsection 55.03(1), Florida Statutes (2007). The total amount of lost wages through the date of this Recommended Order is $16,856.00. The trier of fact calculated lost wages in the following manner. If Petitioner had suffered no adverse employment action, Petitioner would have worked 40 hours a week at $7.00 an hour for 62 weeks from January 29, 2007, through the date of this Order on April 11, 2008, for a total of $17,360.00. That amount is offset by the wages Petitioner earned after the first and second adverse employment actions in a total amount of $504.00. The difference between $17,360.00 and $504.00 is $16,856.00. The total amount of lost wages through the date of the Recommended Order, in the amount of $16,856.00, must be increased by the amount of lost wages from the date of the Recommended Order through the date of the final order to be issued in this proceeding. That amount will be determined according to the date of the final order if the final order does not modify the Recommended Order after receiving the parties' exceptions to the Recommended Order. No reduction to lost wages is made for wages earned by Petitioner from another employer after the date of the final adverse employment action on February 16, 2007. Neither Petitioner nor Respondent submitted any evidence that Petitioner earned wages from another employer or received unemployment benefits. The record deprives the trier of fact of a factual basis for an offset to lost wages owed by Respondent. The website of the chief financial officer prescribes rates of interest for current and past years to be utilized in determining interest due on judgments and decrees. The applicable interest rate for 2007 and 2008 is 11 percent. The interest rate will apply to the unpaid portion of the amount determined to be due, if any, in the final order until Respondent pays the amount due, if any. Petitioner is not entitled to attorney's fees and costs. Petitioner is pro se and submitted no evidence of having incurred attorney's fees or other costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued finding Respondent guilty of the allegations of racial discrimination against Petitioner and awarding Petitioner the lost wages and interest described in this Recommended Order. DONE AND ENTERED this 11th day of April, 2008, 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 11th day of April, 2008. COPIES FURNISHED: Queenie E. Booth Post Office Box 35201 St. Petersburg, Florida 33705 Theresa Jones St. Petersburg Department of Community Affairs Post Office Box 2842 St. Petersburg, Florida 33731-2842 William C. Falkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Robert J. Molitar Oar Enterprises, Inc. 4807 22nd Avenue South St. Petersburg, Florida 33711
The Issue The issues in this case are whether the allegations set forth in the Administrative Complaints are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged, pursuant to Chapter 465, Florida Statutes (2006), with regulation of the practice of pharmacy. At all times material to this case, the Respondent was a licensed pharmacist in the State of Florida, holding license number PS 26142. On May 3, 2005, a Final Order (DOH-05-0782-S-MQA) was filed based on the stipulated resolution of disciplinary proceedings initiated against the Respondent by the Petitioner in DOH Case Nos. 2002-27092 and 2002-25746. The Final Order imposed a suspension of the Respondent's license as follows: Respondent's license to practice pharmacy shall be suspended until such time as Respondent petitions and appears before the Board and can demonstrate that he is able to practice pharmacy with skill and safety to patients. Proof of his ability to practice safely shall include an evaluation of respondent by the Professional Resources Network (PRN) and a recommendation from PRN to the Board that Respondent can practice pharmacy with reasonable skill and safety to patients. The Final Order imposed a probationary period as follows: Upon the termination of suspension of Respondent's license, Respondent's license shall be placed on probation concurrent with the PRN contract or three (3) years whichever is longer. If, after completing an evaluation of Respondent, the PRN deems it necessary for Respondent to execute a contract for supervision and/or treatment, the three-year probationary period shall run concurrent with the PRN's contract. During the period or probation Respondent shall be subject to the following terms and conditions: Respondent or his employer shall submit written reports to the Compliance Officer at the Board office. The written reports shall contain Respondent licensee's name, license number, current address and phone number; current name, address and phone number of each pharmacy in which Respondent is engaged in the practice of pharmacy; the names of all pharmacists, pharmacy interns, pharmacy technicians, relief pharmacists, and prescription department managers working with the Respondent. These reports shall be submitted to the Compliance Officer every three (3) months in a manner as directed by the Compliance Officer. * * * Respondent shall submit documentation evidencing that his employer, or if employed as a relief pharmacist, his supervision pharmacists(s) and the relief agency, have been provided with a copy of the Final Order describing these probationary terms within ten (10) days of the entry of the Final Order or upon initiation of employment. Respondent shall ensure that his employer or, if employed as a relief pharmacist, the supervising pharmacist at each pharmacy at which the Respondent works, submits written reports to the Compliance Officer for the Board of Pharmacy. These reports shall contain: the name, current address, license number, and telephone number of each pharmacy intern, pharmacy technician, relief pharmacist, and prescription department manager working with the Respondent in the prescription department; a brief description of Respondent's duties and responsibilities; and Respondent's work schedule. These reports shall be submitted by the employer to the Compliance Officer every three (3) months in a manner directed by the Board. The Final Order imposed an administrative fine of $2,000. In the stipulation for settlement of the disciplinary cases, the assessment of costs was addressed as follows: Respondent agrees to reimburse the Department for any administrative costs incurred in the investigation, prosecution, and preparation of this case, not to exceed eleven thousand dollars ($11,000). The total amount of the costs will be assessed at the time the stipulation is presented to the Board. The fine and costs are to be paid by the Respondent . . . within sixty (60) days of the filing of a Final Order accepting and incorporating this Agreement. The copy of the stipulation admitted into evidence at the hearing included a handwritten notation related to the time for payment of the fine and costs and appears to indicate that the 60-day deadline for payment was extended to six months. The source of the handwriting was unclear; but in any event, the Final Order adopted the agreed stipulation and assessed costs of $10,852.66. The Final Order extended the deadline for payment of the costs to six months from the date of the Final Order, but did not specifically reference the deadline for payment of the administrative fine. The evidence establishes that both the fine and the assessed costs were to be paid within six months of the date of the Final Order, or by November 2, 2005. The evidence establishes that the Respondent paid neither the fine nor the assessed costs by the November 2, 2005, deadline. There is no evidence that the Respondent has made any attempt to pay any portion of the financial penalty, and the $12,852.66 remained unpaid at the time of the administrative hearing. The Respondent's suspension was lifted pursuant to an Order of Reinstatement filed June 28, 2005, at which time the probationary period began. According to the Respondent's Responses to the Petitioner's First Request for Admissions, the Respondent was placed by "Healthcare Consultants" to work in relief status at the Winn-Dixie #736 pharmacy and at the Winn-Dixie #741 pharmacy for a total of five days during the month of August 2005. According to the terms of the stipulation as adopted by the Final Order, the Respondent's first quarterly report was due three months following the beginning of the probationary period, or approximately September, 28, 2005. Cheryl Sellers, a compliance officer for the Petitioner, was assigned the responsibility of monitoring the Respondent's compliance with his obligations under the May 3, 2005, Final Order. The Respondent had several extended telephone conversations with Ms. Sellers shortly after the Respondent's probationary period began. During the conversations, the specific disciplinary requirements of the stipulation and Final Order were discussed at length. Additionally, in 1997, the Petitioner had incurred a substantially similar penalty, including a suspension, a fine, and compliance with quarterly reporting requirements. It is reasonable to presume that the Respondent was aware of, and understood, his obligations under the May 3, 2005, Final Order. As was her standard practice, Ms. Sellers sent a package of information to licensees with disciplinary restrictions, including various forms, related to compliance with requirements set forth by Final Orders. The package was mailed by regular mail to the Petitioner on August 4, 2005; but for reasons unknown, the information was not delivered to the Respondent and was returned to the Petitioner by the postal service. The package was not re-mailed to the Respondent until October 12, 2005. The Respondent filed his quarterly reports on October 19, 2005, several weeks after the deadline had passed. Apparently the first Employer's Quarterly Report was completed by an individual identified as Robert Miller, presumably employed by Healthcare Consultants, an otherwise unidentified entity which supposedly placed the Respondent in the Winn-Dixie pharmacies for the August 2005 employment. Mr. Miller was not the pharmacist in charge of the Winn-Dixie units where the Respondent had been employed. By letter dated October 21, 2005, Compliance Officer Cheryl Sellers notified the Respondent that he was "not in compliance" with the May 3, 2005, Final Order and stated as follows: Guidelines for submitting Employer Quarterly Reports were sent to you on October 12, 2005, the Employer's Quarterly Report from Robert Miller received on October 19, 2005, is not acceptable. Efren Rivera the PDM at the Winn Dixie store #736 is the appropriate person to complete this form. [sic] The Employer's Quarterly Report subsequently submitted by Efren Rivera was dated and notarized on November 1, 2005, and was filed thereafter. The Respondent filed for Chapter 7 bankruptcy in late 2005 and was discharged from debt on January 31, 2006. The Respondent has asserted that his obligation to pay the administrative fine and assessed costs was discharged through the bankruptcy.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Pharmacy, enter a final order directing that the Respondent pay a total of $16,352.66, to the Petitioner. The total reflects the $12,852.66 imposed by the May 3, 2005, Final Order and the additional $3,500 penalty related to the violations set forth herein. Additionally, the final order should extend the Respondent's current probationary period by 18 months to be served consecutively to the current probationary period. DONE AND ENTERED this 10th day of August, 2007, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2007. COPIES FURNISHED: Patrick L. Butler, Esquire Billie Jo Owens, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Denis R. Bousquet 5125 Cedar Springs Drive, Unit 203 Naples, Florida 34110 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Rebecca Poston, R.Ph., Executive Director Board of Pharmacy Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701
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.
