Findings Of Fact Respondent, Theresa L. Beadle, began her employment with petitioner, Department of Health and Rehabilitative Services (HRS), on or about July 1, 1982. She held the position of clerk typist II with an AFDC unit at HRS' Miami district office. Her position was considered a "pivotal" one by HRS personnel because it was Beadle's responsibility to keep and maintain the unit's case records for recipients. Therefore, attendance was an important criterion for her position. Beadle has suffered from coccygodynia (severe pain of the tailbone) and low back pain for at least three years and has been treated for this condition by both a chiropractor and a physician. According to one of her physicians (Dr. Shuflitowski), she should not engage in "heavy lifting (or) long-stretching of the arms." However, Beadle's job duties do not require these activities, and her physician confirmed in a letter to HRS on December 31, 1986 that "there is no justification for her being unable to perform her job as indicated." In addition to her back ailment, Beadle has also suffered from depression principally caused by the recent death of both her mother and her only son in October, 1986 and January, 1987, respectively. She has been treated by a psychiatrist (Dr. Betancourt) for this condition. After a brief absence from work in early October, 1986, caused by her mother's death, Beadle returned to work on or about October 4, 1986. On December 11, 1986 she left work saying her son was seriously ill in Connecticut. She did not formally obtain leave to do so. Around December 29, her daughter visited HRS' office and spoke with the program administrator, James Sanders, and told him that after speaking with her mother by telephone, she did not know when her mother would return to work. On December 30, 1986 Sanders advised Beadle by certified mail that she was "directed to report to (her) official position by 8:30 a.m. on Thursday, January 8, 1987 . . . (or she would be) deemed . . . (to) have abandoned (her) position and to have resigned from the Career Service." On January 4, 1987 Beadle's son passed away, and his funeral was held on January 8. Beadle eventually returned to Miami in mid-January. Although she did not return to work at that time, Beadle telephoned Sanders' supervisor, Barbara Coles, on January 15 and was told by Coles to either contact Sanders or her immediate supervisor, Albert Peart, concerning her situation by January 16. She did not contact either person. On January 20, Beadle's daughter telephoned Sanders to say her mother was unable to come to work. On January 23, Beadle sent Sanders a "disability certificate" from a Dr. Ticktin, a Hialeah orthopedic surgeon, who attested that Beadle had been under his care since January 15 and would be "totally incapacitated" until February 5. However, he also wrote a cover letter stating that Beadle had an appointment on January 15 and could "return to work with no heavy lifting." After receiving the above certificate, Sanders wrote Beadle by certified mail on January 23 advising that she was "directed to report to work immediately and provide an explanation for her absences." Again, Beadle did not directly respond to this letter but had Dr. Betancourt, a Miami Shores psychiatrist, send a letter to HRS on February 5 stating that Beadle was under his professional care and could not return to work until February 20. A disability certificate was later sent by Dr. Betancourt attesting that Beadle was "totally incapacitated from January 15 to February 19" and could not return to work until March 6, 1987. Upon receipt of Dr. Betancourt's correspondence, Sanders sent Dr. Betancourt a letter on February 23 requesting further medical information to verify her medical condition. On February 27, Dr. Betancourt responded and advised that although Beadle was suffering from depression, she could "perform (her) duties without any limitations." He also suggested she be transferred to another position "with fewer environmental stressors." On March 12, Beadle returned to work for a "few days," but left soon afterwards to go to Plant City for an undisclosed purpose. There is no evidence that she requested leave to do so. She never returned to work. On March 30, 1987, Coles contacted Sanders about Beadle's absences, and told him he was in danger of being charged with negligence for not taking any action against Beadle. Up to this time, Sanders had not initiated disciplinary action because, in his words, he wanted to give Beadle a chance to return, was a "softie," and knew that being fired was a "traumatic" experience. However, now fearing for his own situation, Sanders wrote Beadle on April 15 requesting a medical certificate and advising her that unless her supervisor (Peart) received a certificate by April 22, all leave used by Beadle after that date would be "unauthorized." Apparently responding to the above request, Beadle had Dr. Betancourt prepare a certificate stating that Beadle had been under his care from April 2 to April 20, but could return to work on April 20. This certificate was received by HRS on April 17. On April 21, Dr. Betancourt sent Sanders a letter stating that "Beadle would like to request a leave of absence for six months because of her emotional turmoil and recent trauma." During this same period of time, Beadle did not personally contact Peart, Sanders or Coles concerning a leave of absence. Confronted with this maze of disability certificates and conflicting medical advice, HRS decided to have Beadle evaluated by another physician. It accordingly advised her by certified mail dated May 4 that she should contact a Dr. Gilmore and make an appointment for an examination. The letter was not picked up by Beadle and was returned to HRS unclaimed. Two other certified letters sent on May 12 and 14 to Beadle were also unclaimed. Beadle never made an appointment with nor was she examined by Dr. Gilmore. On June 25, Beadle was advised by certified mail that in view of her failure to contact her supervisor since her last day of work on March 31, 1987, or to request leave, she was terminated effective upon receipt of the letter. Beadle received the letter, and thereafter requested a hearing to contest the action. Beadle pointed out that she had experienced a series of problems with her supervisor (Peart) who continually harassed her after her return on October She also stated her job evaluations were always good until she was transferred into Peart's unit, and that in her fragile emotional state caused by her recent tragedies, she could not cope with the job stress generated by Peart's harassment. She also pointed out that a request to Sanders to transfer units was ignored. She conceded that she had signed a statement acknowledging she had read and understood the employee's handbook. This handbook explains the unauthorized absence rule, and the need to obtain authorized leave before being absent from work. She also conceded she had been absent for more than three consecutive workdays since March 31, 1987 without having authorized leave. Beadle wishes to eventually return to work, but not in the same unit, and only after she is psychologically able to cope with job stress.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Theresa L. Beadle abandoned her job with petitioner. DONE AND ORDERED this 9th day of November, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1987.
Findings Of Fact Petitioner was employed by Respondent as a cabinet maker from September 20, 1982 until May 11, 1984. He has had epilepsy for twenty years, and disclosed this on his application for employment. There is no dispute that Respondent was aware of Petitioner's epilepsy while he was their employee. Respondent is a corporation engaged in the manufacture of mobile homes. In early 1984 Petitioner began having problems with his medication, and several adjustments in dosage and types of medication were made by his physician. As a result of these adjustments, Petitioner had reactions which included dizziness, drowsiness and extreme irritability. He experienced great difficulty getting up in the morning and began being tardy for work. He had not had a tardiness problem previously, and had been a good worker. On March 16, 1984 Petitioner received a written reprimand for tardiness which indicates he was tardy seven times in ten weeks. Shortly thereafter, Petitioner brought his supervisor a note from his doctor which confirms that he was having trouble adjusting to his medication. It is Respondent's policy to counsel and reprimand, if necessary, employees who are repeatedly tardy. Respondent agreed to allow Petitioner to take extra breaks and have time to relax when needed while his medication problems were being resolved. In fact, from March 16, 1984 until May 8, 1984 Petitioner took extra breaks and rest periods during which he used the telephone and drank soft drinks. As a result, other employees had to help him get his daily work done on time. His tardiness also continued after March 16, 1984. On May 8, 1984 Petitioner was called into his supervisor's office and presented with another written reprimand, which he refused to sign. The reprimand was for not working up to his ability, slowing down in productivity, moving slowly on the job and not "working smart." By "working smart" his supervisor meant organizing his work and his work area to allow him to work on more than one cabinet at a time. It was the normal procedure for cabinet makers to assemble up to five cabinets at one time, but Petitioner was not able to do this routinely and, as a result, his productivity was lower than expected. Respondent had no intention of suspending or terminating Petitioner. Petitioner became agitated in the May 8, 1984 meeting with his supervisor, refused to sign the reprimand, and walked out saying, "Well, terminate me." He then got his hand tools from his work area, punched out, and left the plant. About two hours later, Petitioner called Respondent's general manager and asked to be allowed to come back to work. Petitioner was told that the situation would be looked into, and when Petitioner called back on May 11, 1984 he was informed by Respondent's general manager that he would not be allowed to return to work since his investigation had shown that Petitioner had punched out without informing his supervisor or seeking his permission, and further because of the agitated manner in which he had dealt with his supervisor on May 8. There is no evidence that Respondent has allowed other employees, who left the plant without permission after becoming agitated with their supervisor, to return to work. The evidence establishes that Petitioner was given special considerations due to his medical condition and the Respondent attempted to work with Petitioner for almost two months by making special allowances for extra breaks, phone calls and rest periods. Petitioner's work production was less than could reasonably be expected, and others had to help him get his work done on time. Petitioner was not allowed to return to work due solely to his actions on May 8, 1984, and not because of his epilepsy or medical problems related thereto.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 5th day of December 1986 in Tallahassee, Florida. DONALD D. CONN 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 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3011 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-4 Rejected as irrelevant and unnecessary. 5-7 Adopted in Finding of Fact 1. 8-13 Adopted in part in Finding of Fact 2, but otherwise rejected as unnecessary and cumulative. 14 Adopted in Finding of Fact 3. 15-17 Adopted in part in Finding of Fact 4, but otherwise rejected as irrelevant and unnecessary. 18-19 Adopted in Finding of Fact 5. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 22-23 Adopted in Finding of Fact 6. Adopted in Finding of Fact 2. Adopted in Finding of Fact 7. Adopted and rejected in part in Finding of Fact 7. Adopted in Finding of Fact 7. Rejected in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5-7 Rejected as irrelevant and unnecessary. 8-9 Adopted in Finding of Fact 1. 10-12 Rejected as irrelevant and unnecessary. 13-14 Adopted in Finding of Fact 2. 15-17 Adopted in Finding of Fact 3. 18-19 Adopted in Finding of Fact 3,4,9. Adopted in Finding of Fact 4. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 4,5,9. Rejected as unnecessary and cumculative. Adopted in Finding of Fact 5. 26-27 Adopted in Finding of Fact 4,9. 28-29 Rejected as irrelevant and unnecessary. 30-31 Adopted in Finding of Fact 5. 32 Rejected as irrelevant and unnecessary. 33-35 Adopted in Finding of Fact 6. 36-41 Adopted in part in Finding of Fact 7, but otherwise rejected as unnecessary and cumculative. 42-51 Adopted in part in Finding of Fact 8, but otherwise rejected as unnecessary and cumculative. 52-54 Adopted in Finding of Fact 7,9,10. 55-57 Adopted in Finding of Fact 8. 58 Adopted in Finding of Fact 10. COPIES FURNISHED: Howard L. Dimming, II, Esquire 1849 North Crystal Lake Drive Lakeland, FL 33801 Mark E. Edwards, Esquire 600 Peachtree at the Circle Building 1275 Peachtree Street, NE Atlanta, Ga 30309 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303
The Issue The issue is whether Petitioner may lawfully dismiss Respondent from employment for excessive absenteeism.
Findings Of Fact Petitioner initially employed Respondent as a part-time bus aide on December 8, 1987, and subsequently employed him as a full-time bus aide on September 14, 1989. At all material times, Respondent has been covered by the 2006-2009 Successor Contract between Petitioner and the American Federation of State, County, and Municipal Employees, Local 1184, whose term is July 1, 2006, through June 30, 2009 (Contract). The job of the bus aide is to assist special-needs students in boarding and exiting the bus. When an aide fails to notify his supervisor of his absence from work, Petitioner tries to find a substitute bus aide, but often cannot, so the bus driver must assist these students, as well as perform his usual duties of driving the bus. Respondent has had attendance problems for some time prior to the period in question. For example, he incurred 26 days of unauthorized absences from April 2004 through February 2005. These absences resulted in the issuance to Respondent of a memorandum, dated April 13, 2005, warning him that unauthorized absences justified dismissal. The subject period of absenteeism began on November 21, 2006, when Respondent did not appear at work and did not contact his supervisor. Petitioner documented the absence with three hours of sick leave and three hours of unauthorized leave. On November 22, which was the day before Thanksgiving, Respondent did not appear, and Petitioner documented the absence with six hours of unauthorized leave. The following Monday and Tuesday, November 27 and 28, Respondent was again absent without leave. He worked on November 29 and 30, but missed that Friday, December 1, again without leave. Respondent was absent without leave for four days of the next week, all five days of the following week, and all four days of the week after that, at which point winter break started. After winter break, Respondent was absent without leave for the next nine weeks in their entirety. After missing the first two days of the tenth consecutive week, Respondent finally reappeared at work on March 21, 2007. In the meantime, on January 26, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that Petitioner had deemed him to have abandoned his position due to his extensive absences. The letter gave Respondent ten days to request a review and warned that, if he did not request a review, the School Board would take final action terminating Respondent. On February 21, 2007, Petitioner's District Director, Office of Professional Standards, wrote Respondent and informed him that he would need a clearance to return to work. On March 12, 2007, Petitioner conducted a conference for the record to address Respondent's absenteeism. During the conference, Respondent acknowledged 104.5 absences, including 90.5 unauthorized absences, from March 1, 2006, through February 28, 2007. Respondent's excuses were two deaths in his family and an eviction. After the March 12 conference for the record, Petitioner provided Respondent with a clearance to return to work, even though the matter had not yet been finally resolved. Respondent worked as scheduled for a few days prior to spring break and two days after spring break, following which he was absent without leave for the remaining three days of the first week after spring break and the next two weeks in their entirety. In granting the clearance to return to work, Petitioner did not relieve Respondent from liability for the absences, detailed above, that started on November 21, 2006. Upon Respondent's failure to report to work as scheduled after spring break, Petitioner conducted a duly noticed meeting on May 22, 2007, to discuss pending School Board action to dismiss Respondent. On July 2, 2007, Petitioner advised Respondent that, on July 11, 2007, the School Board would receive the Superintendent's recommendation to dismiss him from employment due to absenteeism. On July 11, the School Board accepted the Superintendent's recommendation, suspended Respondent, and initiated dismissal proceedings against him. Respondent testified at the final hearing, but failed to offer any plausible explanation for the absences in late 2006 and early 2007 that resulted in this case. The deaths in his family in November 2006 and December 2006 were of the grandmother of his brother's wife and the sister of his brother's wife. The eviction occurred in early November 2006. Respondent's dog died from cancer in January 2007. However, Respondent never offered any explanation for why he never even called his supervisor during this extended period of absenteeism. As Respondent testified, the same supervisor had been understanding and supportive when Respondent had required hospitalization in early 2006, and there was no reason to assume that he would not again do what he could reasonably to accommodate Respondent's difficulties. Article XI, Section 4, of the Contract provides: An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination.
Recommendation It is RECOMMENDED that the School Board enter a final order dismissing Respondent from employment. DONE AND ENTERED this 23rd day of January, 2008, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 23rd day of January, 2008. COPIES FURNISHED: Dr. Rudolph F. Crew, Superintendent Miami-Dade County School Board 1450 Northeast Second Avenue, No. 912 Miami, Florida 33132-1308 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Janeen L. Richard, Esquire Miami-Dade County School Board 1450 Northeast Second Avenue, Suite 400 Miami, Florida 33132 Michael Spaulding 105 Northwest 58th Terrace Miami, Florida 33127
Findings Of Fact Petitioner, Grey C. English, has worked for DOT, primarily in its Okeechobee, Florida office, for approximately seven years. At the time in question, he was serving as an HMT II, crew leader, with job duties that included various equipment and machinery maintenance and general road work. In some cases he served as crew leader and in other cases, he was merely a member of the crew. In April, 1986, Mr. English filed a charge of discrimination against DOT before the Florida Commission on Human Relations alleging that he had been passed over for promotion and discriminated against therein because of his race (Black). Part of the allegation involved Mr. R. C. Roberts, who concurred in the selection of another applicant over the Petitioner when he knew there was an irregularity in the selection process. Petitioner presented this evidence in an effort to discredit Mr. Roberts' testimony for Respondent here on the basis of bias, but was unsuccessful. In January 1987, Petitioner and DOT entered into a settlement agreement which disposed of the Petitioner's charge of discrimination without assessing blame, but as a result of which, Petitioner was paid the sum of $2,656.40. This sum was paid by state warrant dated February 13, 1987 which, it is concluded, was received by Petitioner several days later. Attendance documents maintained by DOT reflect that on February 13, 1987, which was a Friday, Petitioner was on authorized leave without pay. On February 16, 1987, the following Monday, he worked 7.3 hours and was authorized leave the remainder of the time. Between Tuesday, February 17 and Thursday, February 19, 1987, Petitioner was present for duty performing safety duties. However, on Friday, February 20, 1987, he was placed on unauthorized leave without pay and remained in that status through March 19, 1987. Michelle L. King, Petitioner's immediate supervisor, relates that on February 19, 1987, when Petitioner came to work, she advised him where his work site would be and with whom he would be working. According to Ms. King, when so advised, Petitioner indicated he would not work with Mr. Mills, apparently one of his prospective co-workers, and walked off the job. Shortly thereafter, Ms. King received a phone call from Petitioner's mother who advised her that Petitioner's grandfather was seriously ill and in the hospital and Petitioner's presence was needed at the hospital to assist in caring for him. When Ms. King immediately went to look for Petitioner, she found him sitting in his car approximately one half block from the DOT yard where she advised him of the message she had received. At this point; Petitioner immediately left the area presumably to go to the hospital. According to Ms. King, he did not ask permission to leave then nor did he ask for any time off during the succeeding days for which he was marked in an unauthorized absence status. During that entire period, however, she did not try to reach him by phone or in person even though she had his phone number on record in the office and knew where he lived. She admits she made no effort to reach Petitioner to tell him his job was in jeopardy because she felt, he had walked off the job and was not, therefore, entitled to that consideration. She merely reported the Petitioner's status to her supervisor, Mr. Lanier, and considered the matter closed. Mr. Lanier indicates he made no effort to contact Petitioner either. Petitioner admits that he was sitting in his car with the mechanic who repaired it; away from the job site, when he was advised of his grandfather's illness. He contends he had left the job earlier that morning because he, himself, was ill, not because he did not want to work with Mr. Mills and he contends that his continued absence from work was occasioned by the need for him to remain with his grandfather in the hospital for the period of time of his absence because there were no other family members available to do so. He contends he stayed with his grandfather, who was ill with and ultimately died of cancer, the entire time. There is no evidence of record, however, to indicate that Petitioner requested or was placed on sick leave when he left work on the morning in question. Petitioner also claims that on one occasion several days after February 19, 1987, he met Ms. Kings, Ms. Chapman, and Mr. Lanier, another supervisor, in a local restaurant during the lunch hour. At that time he told them that he would have to have some time off for a few days because of his grandfather's illness but that he would stay in touch. Petitioner contends that this absence was approved by either Mr. Lanier or Ms. King and he was given no instructions to call in or take any other action regarding his absence. The meeting is confirmed by Mr. Branchaud, a co-worker, who observed Petitioner in a conversation with Mr. Lanier but he cannot say for certain what the specifics of the conversation were. Both Mr. Lanier and Ms. King deny any such meeting took place and this is confirmed by Ms. Chapman. Ms. King and Ms. Chapman, as well as Mr. Lanier, though all employees of DOT, have nothing to gain by telling an untruth or giving perjured testimony regarding the situation involving Petitioner. Consequently, it is found that Mr. English did not get permission from either Mr. Lanier or Ms. King to be absent, and that, therefore, his absence between February 19, 1987 and March 10, 1987 was unexcused. During the period of Petitioner's absence, on March 4, 1987; a DOT official, by certified letter, advised him of his continued absence without approved leave and directed him to report to his duty section by 8:00 am on March 9, 1987 under pain of termination for a failure to comply. The return receipt executed by someone reflecting Mrs. Grey English indicates that the letter was received at Petitioner's home address in Okeechobee on March 11, 1987, one day after the action was taken to terminate him. Petitioner contends that he did not receive that letter and that on the date in question, there was no Mrs. Grey English. He was living at that residence, he contends, with his mother whose name is not English. No other female at that address bore the name Mrs. Grey English. The girl friend who he sometimes identified as his wife was not living at his address at the time the letter was received and did not sign for it in his behalf. Be that as it may, the letter was receipted for by an adult at the Petitioner's address. He did not, however, thereafter comply with the terms of the letter and termination action was taken by DOT on March 10, 1987 when the District Director sent him a letter notifying him of his termination by certified mails return receipt requested. Petitioner, as was stated previously, denies any intention to abandon his position and denies having received any letter of warning. He was, however, fully aware of the department's procedures for obtaining leave authorization and obviously failed to take any of the necessary steps to secure that authorization, instead relying on a purported casual meeting with his supervisor at a restaurant where he supposedly received verbal permission to be absent. This is not persuasive. His credibility, in addition, is somewhat suspect in that he has already demonstrated his willingness to falsify official documentation if it suits his purpose. Petitioner admits that several years prior to the instance in question, he, though not married, filled out certain official documentation for DOT claiming his girlfriend to be his wife for the purpose of putting her on his record as beneficiary of his insurance with the department. He claims he was advised by some official of the department to do this but does not indicate who this individual was. Even if that were the case, he recognized at the time that the lady was not his wife and was nonetheless willing to falsify documentation if it was to his benefit to do so. Consequently, his willingness to be less than candid when it suits his purpose to be so has been established and in this case, the better weight of the evidence establishes clearly that notwithstanding his protestations to the contrary, he walked off the job without authority and made no effort to take any action necessary to preserve his employment status. It is, therefore, concluded that he did abandon his position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Grey C. English, be terminated from employment with the Department of Transportation effective March 11, 1987. RECOMMENDED this 18th day of September, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-1931 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 to this case. By the Petitioner 1-2. Accepted and incorporated in Findings of Fact 1. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10, except for the last section thereof relating to a restatement of his testimony at the hearing, which is not a Finding of Fact. Rejected as contrary to the weight of the evidence. Accepted. Rejected. Petitioner was not terminated for excessive absenteeism. The respondent was considered to have resigned his position with the Department of Transportation and the rules regarding disciplinary termination are not relevant to this situation. 9-12. Irrelevant. 13-17. Rejected as not Finding of Fact. By the Respondent Accepted. Accepted and incorporated in Findings of Fact 9. 3-4. Accepted and incorporated in Findings of Fact 9. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 10. Accepted and incorporated in Findings of Fact 9. 8-9. Accepted. 10-13. Irrelevant. Rejected as not a Finding of Fact. Accepted. COPIES FURNISHED: Isidro Garcia, Esquire Florida Rural Legal Services, Inc. 572 S.W. 2nd Street Belle Glade, Florida 33430 Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32399-0458 Kaye Henderson, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact Petitioner, Larry Zeigler, started working for the Quincy Telephone Company as a lineman in the cable maintenance section in 1976 or 1977. His duties include the installing of telephone cable, both buried and aerial. He worked on the job with Claude Butler, Cleveland Zeigler, and Melton W. (Toby) Bruce. These four men, with several others, made up the entire cable and construction section. Among the men in that section, Butler had the most seniority and as a result did most of the paperwork. The job assignments were banded out to the crews by the supervisor of the section and it was company practice that the senior individual was the one in charge and normally responsible for accomplishing the paperwork. Telephone installation at this Company is primarily divided into two major sections. Cable and construction (C&C) is responsible for the outside installation of cable and telephone lines up to a building. Installation and repair (I&R) is a separate department which deals with inside wiring and the actual connection of the telephone instruments. C&C is and was at the time in question supervised by Bruce Gaston. I&R was not. In early May, 1983, Petitioner was transferred for a period of time to I&R to help out though he was still assigned to C&C. Right after lunch on May 27, 1983, he was directed to go to see Bruce Gaston, his supervisor, who advised him that the company was being forced to lay off a number of employees and that he, petitioner, had been selected as one of those. Petitioner contends that neither Gaston nor any other company official ever gave him a reason for discharge other than the force reduction, but this is not so. He claims, however, Gaston did advise at that time that he was aware of petitioner's previous discrimination complaint and that petitioner should not file one this time. Petitioner was confused over these developments. When he was sent over to I&R to help out, he was told that he was the only one in C&C with the skills needed at I&R. If that were the case, he reasoned, why should he be laid off without warning. In addition, at one point during 1982, Petitioner had asked Gaston for a transfer to I&R but was refused at that time because, according to petitioner, Gaston said he was needed in C&C. Petitioner was one of three individuals from the C&C section who were laid off. The others were Horace Jenkins, who is black, and Toby Bruce, who is white. Several individuals from I&R were also laid off and in the interim since the layoff, at least one new employee has been hired. Petitioner is convinced that he could do the job either in C&C or in I&R which was filled by outside recruitment since he was laid off. When a new parent company took over the operation of the Quincy Telephone Company in early 1983, there was a meeting held for all company employees at which a senior management official advised the employees that no layoffs were anticipated. Petitioner denies having any serious trouble with his employment while working for the company. To be sure, there were some rough spots, however. He had some trouble working with Melvin Locke, a more senior employee. According to Petitioner, Locke was lazy and did not want to work, pushing his work off on the Petitioner. They had words and Petitioner brought the matter up with Mr. Gaston. The following day, Mr. Forshay talked with Petitioner about it and advised him to do whatever Locke directed. Though Petitioner did not consider this to be particularly fair, nonetheless, he did as he was told. According to Gaston, however, Petitioner was assigned to work with Locke for on-the-job training in maintenance. It appeared he was selective as to what orders he would follow, refusing to learn how to do maintenance in those areas that did not interest him. On another occasion, according to Petitioner, when he drove a company vehicle into the work lot, Forshay told him he was driving too fast. In doing so, he says, Forshay cursed him in front of outsiders. On still another occasion, he disagreed with the way Forshay handled one of his absences. In summary of Petitioner's position, he feels that he was discriminated against when discharged because: he was there longer than others who were not discharged; less experienced people were retained instead of him; he had several disputes with Mr. Forshay; and, he filed a prior discrimination complaint which he won and had to be rehired. In May, 1983, Gaston was advised by Mrs. Corbin, the general manager of the company, that there was going to be a reduction in force. He was instructed how to identify those to be retained and those to be discharged. The emphasis was to be placed on selecting the best people for retention - not the worst people for discharge. In other words, supervisors were to examine their people closely with a positive attitude to identify those with the best records and the best potential rather than looking for reasons to discharge those with lesser records or potential. He was advised that of the 9 technicians working for him he would be allowed to retain only 6. Using the criteria given him he selected the 6 he would be able to keep which resulted in Petitioner, Mr. H. Jenkins, and Toby Bruce being identified as those not to be retained. Gaston then discussed his selections with Mr. Forshay who in turn forwarded them to Mrs. Corbin with his concurrence. Mrs. Corbin made the ultimate selection and decision. In going over the personnel records of the people in his section, Gaston made a memo on each one which he subsequently placed in each employee's file. There were several significant factors on the memo about Mr. Zeigler which contributed to his being one of the lowest three rated individuals in the section. These were: He frequently missed work for reasons other than illness. Review of Petitioner's time records kept by Mr. Gaston showed that in 1980. Petitioner was late 6 times and absent 11 times. All absences referred to here are unexcused absences wherein the employee did not call in advance to let anyone know he would not be in. This required a readjustment of the work schedule made up in advance on the expectation of the employee's presence. In 1981, he was late 5 times and absent 4 days. Gaston considered this to be an abuse of time off and Petitioner's absentee and tardy rates were much higher than those of the other employees in the section. Other disciplinary problems: On October 5, 1981, Petitioner requested that his time sheet be falsified (that time taken off as personal time be reported as sick leave). Petitioner did not deny this which, according to the company personnel handbook is grounds for dismissal. Though Gaston recommended this, dismissal action was not taken because it appeared to be an isolated incident. Petitioner broke his arm and took time off to see the doctor with the understanding he would call to report when he would be back to work. He failed to call and could not be reached by phone because his service had been disconnected for nonpayment of the bill even though, as a company employee, he got local service free and a discount on toll service. At this point in time, the company required employees to have a phone so that they could be reached in an emergency. Petitioner knew this. Again, here, Gaston recommended disciplinary action and again none was taken even though this was the second time this had happened. Employee conflict with Mr. Locke referenced above. Petitioner's training scores in courses which, though not required, would be beneficial to him in the performance of his duties, were below standard. He was given the opportunity to take the same material on two separate occasions: once at a company school in Winter Park where his scores were unsatisfactory, and again, from a black instructor in Quincy where, again, his score was unsatisfactory. No other student failed to achieve a satisfactory score. Error rate. The reports for January through May, 1983 and after the force reduction, kept by Gaston on the basis of checks made at random with full knowledge of the employees, reveal that the three employees who were laid off from this section were weak with Petitioner having a very high error rate. After the lay off the remaining people doing the same amount of work as before, made fewer errors than while these three were still employed. Paperwork. From time to time, Petitioner was in charge of details which required the completion of paperwork. His paperwork was unsatisfactory. He would let other people on the job do the paperwork. In making the decision as to who was to be retained and who was to be released, seniority was not the key element. Performance and capability were more important and seniority was important only if it carried with it the experience and competence needed. On the basis of the above factors, Gaston felt, and it is clear that his judgment was accurate, that Petitioner's record, not considering his seniority, reflected limited potential and competence. Mr. Gaston did not want to lay off any employees, black or white, because he felt there was ample work to do to keep the entire work force occupied. The work has not let up since the lay off but has increased. Notwithstanding Petitioner's comments that he was not given a reason for his lay off, Mr. Gaston fully explained to each terminated employee why he was being laid off. Mr. Bruce indicates that Gaston told him that if he had his choice, Bruce would still be working. This is true. A similar comment was made to each of the three men being discharged and it had no racial connotation at all. Gaston did want to keep each employee if he could. Race has never been an issue in the department and he always felt race relations were good. Mr. Gaston discharged Petitioner because he was the weakest employee in the section. He was the employee with the least potential for being able to accomplish all the tasks anticipated after the cutback. There are some minor inconsistencies in the official records as reflected by the employee performance appraisal forms rendered on the Petitioner and the personal work records kept by Gaston in his department. They are such things as tardiness and absences and some of the factors relied upon by Gaston in his analysis of the employee which he testified to at the hearing do not specifically appear on the appraisal forms. Gaston justified not putting them there by contending that he felt that at the time the deficiencies were noted, the appropriate corrective action was taken and the matter would not have been raised again had it not been for the cutback. Use of these factors was appropriate in weighing Petitioner's future use to the company in a comparison against other employees. Mr. Gaston's evaluation of Petitioner appears to have been accurate as other employees with whom he worked, such as Evant Jenkins, indicating that when Petitioner was assigned to him for training for several weeks, Petitioner did well in those areas in which he had an interest, but completely failed to learn anything that did not interest him. Mr. Butler also worked with Petitioner frequently and felt that though Petitioner could do the work, there were times he was difficult to work with and insisted on doing things his own way. Petitioner's uncle, Cleveland Zeigler, knows Petitioner's work and rates him as an acceptable worker. He states, however, that the people hired since the lay off in 1983 are high quality people and the work standards and performance have improved since that time. Toby Bruce feels that both Petitioner and Jenkins were highly qualified, perhaps even more so than he. He also feels that the layoffs were not appropriately done in some case with the wrong people being let go. He feels that he was not treated fairly because he had a house mortgage on which to pay, two cars on which to pay, and a family to support and with that, he was let go without notice with only two weeks severance pay. His obvious bias makes his credibility questionable. Mrs. Corbin made her ultimate decision on who would be retained and who would not on the basis of the entire personnel record of each employee which she reviewed over the several weeks prior to the cutback. She contends she had no choice in implementing the layoffs - that though she fought against them, she was directed by higher headquarters to put them into effect. She is convinced that Petitioner is a good construction man but his performance reports showed that he needs training in maintenance and it is her confirmed opinion that he could not compete with those identified for retention. It was on this basis and not on race that the decision was made to let him go. Race has not been an issue with the company and in fact there is a very active and strong equal opportunity program in effect. Of the 11 people cut from the total work force, 6 were white and 5 were black. Even after the cutback, blacks still accounted for 32 percent of the staff of 65.
Recommendation Based on the foregoing, therefore, it is RECOMMENDED that the petitioner, Larry Zeigler's Petition for Relief be denied. RECOMMENDED in Tallahassee, Florida, this 29th day of March, 1985. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 29th day of March, 1985. COPIES FURNISHED: Paul D. Srygley, Esquire 1030 East Lafayette Street Tallahassee, Florida 32301 Blutcher B. Lines, Esquire P.O. Box 5500 Quincy, Florida 32351 Donald A. Griffin, Executive Director Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
The Issue The issue is whether Petitioner may lawfully discipline Respondent due to excessive absences from work.
Findings Of Fact Petitioner employed Respondent as a police officer in the Operations Division of the Cape Coral Police Department (Department) from October 5, 1987, through approximately April 27, 1998, when Petitioner terminated her employment. As detailed below, Petitioner monthly provides its employees with a specified amount of leave, based on their years of service. Petitioner credits all leave in a single account. Employees then draw on their leave account by taking scheduled and unscheduled leave. This case involves Respondent's use of allegedly excessive amounts of leave. In 1989, Respondent used 125.76 hours of unscheduled leave. On May 23, 1989, she received an interim performance evaluation noting that she was "below acceptable" in unscheduled leave time and needed to improve her relations with other employees. On October 13, 1989, she received an annual performance evaluation stating that she had had 18 days "sick leave" in the preceding 12 months and was below "operational standard" in attendance and relations with others; all of her other categories were marked as meeting operational standard. The attached narrative notes a "slight improvement" since her May 1989 interim performance evaluation. In 1990, Respondent used 198.5 hours of unscheduled leave. Her October 12, 1990, annual performance evaluation states that Respondent was again below operational standard in attendance with 23.25 days of "sick leave." She had raised her relations with others to operational standard and work habits to above operational standard. The narrative attached to the evaluation states that the evaluator has spent a sizable amount of time conferring with Susan regarding causes to her illnesses and resulting time off due to illness. Officer Von Halla does have problems with migraine's and when she experiences one, she is [less than] an effective part of the shift in fulfilling her normal duties. I have tried to understand why she experiences so many migraines and have suggested different activities (i.e. physical exercise, stress reduction). I am confident that despite the significant amount of time taken due to illness, when this officer calls in sick, she is sick and does not use this time for other unknown reasons. I feel, currently, Officer Von Halla is attempting to minimize the amount of times she calls in sick. Despite some improvement recently, Officer Von Halla still is in need of progress in this area so her time reserved starts reflecting this. The narrative concludes that Respondent can improve her weak point, which is attendance, by "finding new ways to minimize the migraine potential and making a genuine effort towards this." Another evaluative document speaks in a very different tone from the annual performance evaluation, which is signed by a sergeant who was Respondent's immediate supervisor. On October 2, 1990--only 10 days before the 1990 annual evaluation-- a captain reviewed Respondent's use of unscheduled leave and warned: you are hereby notified that this level of unscheduled leave time usage will no longer be tolerated. You will be required to achieve a level of usage that is consistent with the national and department average which equates to approximately sixty hours per year, or five hours per month. If you fail to maintain this rate between October 1, 1990 and December 31, 1990 I will request that the Chief of Police consider terminating your employment effective January 1, 1991. If you are successful, you will be expected to maintain this average with the exception of documented major medical complications that require the use of extended leave. By memorandum dated December 14, 1990, from the captain to the police chief, the captain stated: On October 2, 1990, I advised Officer Von Halla that she would be required to maintain an acceptable level of unscheduled leave usage through December 31, 1990. The level of usage was established at five (5) hours per month, or a total of 15 hours for the period of October 2, 1990, through December 31, 1990. . . . Since October 2, 1990, Officer Von Halla has chosen to utilize forty (40) hours of leave. Thirty-two (32) hours were for illness as noted by her chiropractor and eight (8) for unexpected visitors. The captain's memorandum reasons: "In analyzing Officer Von Halla's unscheduled leave, it is clear that her utilization of unscheduled leave far exceeds any norms and Officer Von Halla is clearly abusing this city benefit." The memorandum states that, after consulting with the city attorney and city manager, the captain was recommending that Petitioner initiate termination proceedings against Respondent. By memorandum dated January 17, 1991, the captain asked a lieutenant to convene a Command Review Board to evaluate Respondent's excessive absenteeism and her violation of three groups of general orders prohibiting feigning of illness and failing to perform duties, abusing sick leave, and engaging in any conduct adversely affecting the morale and efficiency of the Department. The memorandum explains the last alleged violation as noting that the department had had to use 66 hours of overtime, at a cost of $1125, to cover shift shortages caused by Respondent's unscheduled absences. The Command Review Board sustained the allegation that Respondent had abused her unscheduled leave, but rejected the allegations of feigning illness and failing to perform duties and engaging in any conduct adversely affecting the morale and efficiency of the department. Accordingly, the Command Review Board recommended that the police chief suspend Respondent without pay for one day. By memorandum dated February 2, 1991, the police chief adopted the findings and determinations of the Command Review Board and suspended Respondent for one day. By memorandum dated February 14, 1991, Respondent protested the proposed discipline and demanded a hearing. The arbitrator entered a decision on June 24, 1991, that the police chief had just cause for suspending Respondent for one day without pay. Respondent served this suspension. The next annual performance evaluation is dated January 25, 1992. Respondent earned marks of above operational standard in job knowledge, quality of work, initiative, work habits, and appearance. Her only mark of below operational standard was in attendance. In the preceding 15.5 months, Respondent had used 18 days of "sick leave" and had one day without pay, due to her exhaustion of leave. From May 1990 through April 1991, Respondent used 148 hours of unscheduled leave. The evaluations and memoranda from 1992 through 1994 are largely the same: average or above-average performance in all areas but attendance. The records note only the excessive use of unscheduled leave, but do not attribute the use to fraud. From January 13, 1994 through December 26, 1997, Respondent used 691.72 hours of unscheduled leave. On February 12, 1995, the former captain, now a major, recommended that the Department suspend Respondent without pay for three days due to excessive use of unscheduled leave. By memorandum dated February 27, 1995, the police chief, "with some reluctance," concurred with the recommendation of three days' suspension. On April 18, 1995, a Departmental disciplinary review board met and failed to agree on corrective action. The board recommended only that the Department remove Respondent from field duty and place her in a noncritical position. Upon further deliberations, the board agreed upon a two-day suspension. Respondent served this suspension in June 1995, and the following month a quarterly evaluation dated July 1, 1995, notes that she was still using unscheduled leave. A memorandum dated September 10, 1995, notes that Respondent used 213 hours of unscheduled leave in the first eight months of 1995. By memorandum dated September 20, 1995, the major and three of his subordinates, including the person with immediate supervisory authority over Respondent, recommended to the police chief that the Department terminate Respondent due to excessive use of unscheduled leave. Rejecting the recommendation for termination, the police chief imposed a 30-day suspension without pay, based partly on the assurance of Respondent's physician that the cause of her constant illness had been corrected. Respondent served her suspension from November 22- December 21, 1995. Quarterly evaluations in June 1996 and March 1997 note some improvement in the use of unscheduled leave. From October 1996 through September 17, 1997, Respondent used 180 hours of unscheduled sick leave. From October 1, 1997, through January 26, 1998, Respondent used 82 hours of unscheduled leave. By memorandum dated January 26, 1998, the major advised the police chief of Respondent's continued use of unscheduled leave and recommended termination. By notice to Respondent from the police chief dated February 13, 1998, the chief advised Respondent that he was considering disciplinary action, including termination. The notice cites the following grounds from Article Seven, Section C, Ordinance 50-94: excessive unauthorized tardiness or absence from work, violation of Department work rules or operating procedures, actions or conduct detrimental to Petitioner's interests, or any other properly substantiated cause that adversely affects Petitioner. The notice alleges that Respondent's conduct also violates department General Order D-1.IV.36, which prohibits excessive use of unscheduled leave. The notice summarizes Respondent's past use of unscheduled leave and the discipline that she had received. The notice asserts that she had used 96 hours of unscheduled leave in the past four months. By letter dated March 12, 1998, Respondent advised the police chief that her ear, nose, and throat physician had placed her on Predisone, which had eliminated her debilitating headaches. By letter dated March 16, 1998, the police chief provided Respondent final notice of proposed disciplinary action for the four grounds mentioned in the prior notice. Respondent has raised an issue of disparate treatment. However, the record fails to reveal other, similarly situated employees with comparable patterns of usage of unscheduled leave. The record contains a detailed record of Respondent's relevant payroll history from January 1, 1994, through May 1, 1998, on which date Petitioner terminated her. By year, these records disclose the following totals of hours for unscheduled leave and leave without pay, the latter of which is due to Respondent's exhaustion of her granted leave: 1994--190 and 48.22; 1995--201 and 148; 1996--94 and 42; 1997--174 and 58; and 1998 (four months)--32.72 and 0. The respective totals are 691.72 and 296.22 hours. Respondent's use of unscheduled leave and leave without pay far exceed the averages for the Department. Respondent is a member of a collective bargaining unit, which is represented by the Florida State Lodge of the Fraternal Order of Police (FOP). Petitioner and FOP negotiated a collective bargaining agreement in effect from October 1, 1997, through September 30, 2000 (Agreement). Article 3, Section 1, of the Agreement provides: Except as specifically abridged or modified by a provision of this Agreement, City will continue to have, whether exercised or not, all of the rights, powers and authority heretofore existing, including, but not limited to, the following: . . . to hire, transfer, promote and demote employees; to direct employees, to take disciplinary action up to, and including, termination; to relieve employees from duty because of lack of work or for other legitimate reasons; [and] to issue rules and regulations . . .. Article 10, Section 2, of the Agreement describes the forms of discipline as follows: In accordance with Police Department General Order D-1 (as dated April 1, 1993), forms of corrective action will be utilized by City with the approval of the Police Chief shall include: Counseling or Re-Training--to correct and improve employee performance; Reprimand--a written statement warning the employee of the consequence of future misconduct of a similar nature; Suspension-- suspension from duty without pay; Demotion--a change to a position of lesser responsibility and salary; and Termination--dismissal from the Police Department. Article 10, Section 3, of the Agreement provides that Petitioner shall use "[p]rogressive corrective action," unless the severity of the offense dictates a more severe action. Article 11 of the Agreement provides that Petitioner may take disciplinary action against an employee for "just cause." Article 15, Section 1(a), of the Agreement grants employees with five or less years of continuous service 25 days of annual leave per year. Article 15, Section 1(b), grants employees with 6-10 years of continuous service 30 days of annual leave per year. The remaining subsections grant more leave based on years of service. Article 15, Section 1(g), of the Agreement provides: The use of annual leave for other than illness must be scheduled with the employee's supervisor. In case of illness, an employee must notify his/her supervisor not later than two (2) hours before the beginning of the scheduled work day or in accordance with Police Department Rules and Regulations. The Agreement provides that Petitioner may discipline covered employees for "just cause," but does not identify what constitutes "just cause." Ordinance 50-94 (Ordinance) sets forth the rules and regulations governing all of Petitioner's employees. Article One, Section B.2, states that the Ordinance covers employees who are parties to a collective bargaining agreement, "except that in the event of a conflict between the terms of this Ordinance and the collective bargaining agreement, the collective bargaining agreement shall govern." Article Six, Section E, provides that an employee may be dismissed for "just cause," but that the department head must comply with the procedures in Article Seven prior to termination. Article Seven, Section B, requires progressive discipline for "the same or similar conduct by the employee," although Petitioner reserves the right to impose the most severe discipline as an initial measure "when circumstances warrant." Article Seven, Section C, cites several grounds for discipline, including "[g]ross neglect of duty or specific serious failure to perform assigned duties"; "[m]ental or physical impairment, normally as supported by written documentation from not less than two licensed physicians, that prevents the employee, even with reasonable accommodation, from performing the essential functions of his or her position"; "[a]bsence without leave, or failure to give proper notice of absence"; "[e]xcessive unauthorized tardiness or absence from work"; "[v]iolation of Department work rules or operating procedures"; "[a]ctions or conduct detrimental to the interests of the City"; or "[a]ny other properly substantiated cause which adversely affects the City." Article Seven, Section D, requires that the employee proceed with a grievance for proposed discipline under the ordinance or collective bargaining agreement. Section E.5 describes the hearing conducted under the ordinance, which is the procedure that Respondent elected, and states, at Subsubsection 7, that the Administrative Law Judge is to determine if Petitioner proves by a preponderance of the evidence "just cause" for the discipline. Subsubsection 8 provides that the order is a final order. Subsubsection 9 provides for judicial review. Article Eleven describes attendance and leave. Section A.6.a provides that fulltime employees shall be present at their assigned jobs, "unless absence from duty is authorized by the Department Head as provided herein." Section A.6.c states in part: Excessive unscheduled absences or tardiness shall be grounds for disciplinary action. For purposes of this paragraph, "excessive unscheduled absences or tardiness" shall mean use which is in excess of the average number of hours and/or occurrences of unscheduled leave taken by other City employees in the same or similar positions . . .. Article Seven, Section E.3, defines unscheduled leave as that which the employee requests and the supervisor approves on the day that it is taken. This section states: "An employee's excessive use of unscheduled leave may be grounds for disciplinary action." Section E.1 contains a schedule for the accrual of leave, and the applicable monthly accrual rate, which increases with seniority, applies to the total of each employee's scheduled and unscheduled leave. Department General Order D-1 (General Order), as last revised on December 11, 1995, provides, at Section II, that it applies to [ALL] members of the Department. This section states that the police chief will use progressive discipline, "unless the severity of the offense dictates a more severe action." Section IV prohibits various acts, including feigning illness, avoiding responsibility, or failing to perform one's duties; "excessive use of unscheduled leave"; or engaging in conduct that adversely affects the morale and efficiency of the department. By memorandum dated July 20, 1987, a major in the Department advised all operations division personnel that absences, "regardless of cause," weaken the Department's ability to serve the public though personnel shortages, increase personnel costs due to overtime to cover absences, and increase burdens on other employees. The safety of the public and law enforcement officers requires a minimum staffing of law enforcement officers on each shift. The absence of a scheduled officer requires that the Department pay overtime for an unscheduled officer to report for duty. The record does not demonstrate that unscheduled absences of an officer, up to the total amount of granted leave, compromise the safety of the public or other officers. The contrary inference is precluded in part by the fact that, in the Agreement, Petitioner grants each officer a certain amount of leave and does not further restrict the officer's choice to use his or her granted leave as unscheduled leave. However, the use of unscheduled leave in excess of the granted leave is not anticipated by the Agreement and may compromise the safety of the public and other officers.
The Issue Whether the proposal Petitioner submitted in response to Respondent's Request for Proposal No. 00-DC-7295 was non- responsive.
Findings Of Fact Stipulated Facts On or about August 14, 2000, the Department issued RFP No. 00-DC-7295 for an Inmate Telephone System. Generally, RFP No. 00-DC-7295 requests proposers to submit proposals to provide local, intralata, interlata, and international telephone services for inmates in the Department's facilities identified in the RFP and coin- operated telephones at each site for staff and visitors. The proposer awarded the contract under RFP No. 00-DC-7295 (the Contractor) must provide and install all telephone instruments and all wiring. The Contractor must also provide system administrators and site technicians who will implement and manage pin numbers and calling lists for inmates, and must provide various specified reports and data to the Department All services, equipment, etc., addressed in RFP No. 00-DC-7295 must be provided to the Department at no cost. Instead, the Contractor must pay the Department a commission calculated as a percentage of gross revenues. Consequently, the contract to be awarded under RFP No. 00-DC-7295 is a revenue-generating contract for the Department. Sprint, T-NETIX, WorldCom at AT&T timely submitted proposals to the RFP. On November 6, 2000, the assigned Department Purchasing Staff member, Genanne Wilson, determined the AT&T and Sprint proposals to be non-responsive for failing1 to meet the mandatory requirements of the RFP. Sprint's proposal was also determined to contain a material deviation2 from the RFP. The determination that the Sprint proposal failed3 to meet the mandatory requirements of the RFP and contained a material deviation was based on Sprint's inclusion of the following underlined language on the Supplemental Proposal Sheets wherein the proposers were instructed to appropriately initial in understanding and agreement each paragraph of the RFP: Liquidated Damages With the express understanding the total liquidated damages are limited to $100,000.00 by the Limitation of Remedies in Section 7.32. Following the determination that the Sprint proposal failed4 to meet the mandatory requirements of the RFP and contained a material deviation, Sprint's proposal was not further evaluated by the Department. The T-NETIX5 and WorldCom proposals were individually evaluated by each member of an Evaluation Team pursuant to the criteria specified in the RFP. On Tuesday, December 5, 2000, the Department posted its intended award of the contract for RFP No. 00-DC-7295 to WorldCom. Sprint and T-NETIX each timely filed a protest to this intended award. Findings of Fact Based on the Evidence of the Record On or about October 13, 2000, the Department issued Addendum No. 1 to RFP No. 00-DC-7295 which reprinted the original RFP in its entirety and included 67 revisions. Section 4.3.6 of the RFP specifies that, "[t]he Department shall reject any and all proposals not meeting mandatory responsiveness requirements." Section 5.1 of the RFP, reads in pertinent part as follows: Tab 1 - Mandatory Responsiveness Requirements The following terms, conditions, or requirements must be met by the proposer to be responsive to this RFP. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet responsiveness requirements will not be evaluated. It is mandatory that the proposer supply one (1) original and ten (10) copies of both the Project and the Cost Proposals. Project and Cost Proposals shall be in separately sealed packages each clearly marked "Project Proposal - RFP-00-DC-7295" or "Cost Proposal - RFP-00-DC-7295" respectively. Inclusion of any commission rates or pricing data in the Project Proposal shall result in rejection of the entire proposal. It is mandatory the proposer return, under Tab 1, the Supplemental Proposal Sheets (Attachment 1) of this RFP document, appropriately initialed in understanding and agreement of each paragraph of the RFP and signed by the person with authority to properly bind the proposer. It is mandatory the proposer complete, sign and return, under Tab 1, the PUR Form 7033, State of Florida Request for Proposal/Contractual Services Acknowledgment which is the front cover of this RFP document. A copy of the document that includes both front and back sides is acceptable. (emphasis in original) Section 6.1 of the RFP further provides: 6.1 Review of Mandatory Responsiveness Requirements Proposals will be reviewed by Department staff to determine if they comply with the mandatory requirements listed in Section 5 of the RFP. This will be a yes/no review to determine if all requirements have been met. Failure to meet any of these mandatory requirements will render proposal non-responsive and result in rejection of the proposal. Further evaluation will not be performed. No points will be awarded for passing the mandatory requirements. (emphasis in original) RFP Section 7.30, entitled, "Liquidated Damages," addresses liquidated damages for various requirements and services to be provided by the successful proposer under the contract for an inmate telephone system. Section 7.30 does not contain a cap or limitation on liquidated damages. RFP Section 7.32, entitled "Limitation of Remedies," addresses the limitation of remedies for the performance or non-performance of machines and programming. There is no cap or limitation on liquidated damages established by RFP Section 7.32. Sprint altered the Supplemental Proposal Sheets by limiting liquidated damages under Section 7.30 to $100,000 based upon its understanding of the relationship between Sections 7.30 and 7.32 of the RFP. Specifically, Sprint read Sections 7.30 and 7.32 in para materia and concluded that total liquidated damages would be "limited to $100,000 by the limitation of remedies in Section 7.32." Mike Jewell, who at the time the RFP was issued, was Sprint's Vice President of Sprint Payphone Services, Inc., was responsible for "oversight over the responses that Sprint submitted and to make sure that they were in keeping with the corporation's business interests." Mr. Jewell testified that the purpose of inserting this language in the proposal was to, "point out to the Department of Corrections that our agreement to 7.30 had to be read in conjunction with the language in the agreement in [sic] 2.7.3.2." Mr. Jewell acknowledged that vendors had the opportunity to ask questions prior to the submittal of their proposals to the Department and that Sprint did not ask any questions regarding the relationship between Sections 7.30 and 7.32 of the RFP. A letter written by Paul Eide, Customer Care Manager for Sprint, and faxed to the Department on November 21, 2000, after the opening of the proposals, stated in pertinent part: In response to the RFP, we found the liquidated damages section to [sic] vague and confusing to the exact dollar amount of a penalty situation. Our intentions were to point out the ambiguity and merely cap the amount so the winning vendor was not liable for an infinite amount of money. Although Sprint requested permission from the Department to remove the $100,000 cap on liquidated damages after the opening of the proposals, the Department did not permit Sprint to do so. Genanne Wilson, a purchasing analyst in the Department's bureau of purchasing, was the person charged with reviewing the proposals for responsiveness. Ms. Wilson determined that Sprint did not meet the requirement of Section 5.1.2 and, therefore, failed to meet the mandatory responsiveness requirements of the RFP. That determination was confirmed by her bureau chief. As specified in Section 6.1 of the RFP, further evaluation was not performed on Sprint's proposal. The evidence submitted by Sprint is not sufficient to establish that Sprint's proposal was responsive. Rather, the evidence establishes that Sprint chose to alter or modify the Supplemental Proposal Sheets even though those who submitted proposals were advised in Sections 5.1 and 6.1 that failure to meet any of the mandatory responsiveness requirements would render a proposal non-responsive and result in rejection of the proposal and that further evaluation would not be performed. Sprint's failure to signify its understanding and agreement to Section 7.30 by initialing the supplemental proposal sheets without more resulted in a failure to meet the mandatory requirement in Section 5.1.2. Sprint's failure to meet the mandatory requirement constitutes a material deviation from the RFP. The Department's determination that Sprint's proposal was non-responsive was consistent with the clear, express language of the RFP which informed proposers of mandatory requirements and that proposals found to be non- responsive would not be further evaluated. Sprint's proposal was not responsive to the RFP because it failed to meet a mandatory requirement and it contained a material deviation. Both defects arise from Sprint's attempt to limit its exposure to liquidated damages.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department of Corrections enter a final order dismissing the bid protest filed by Sprint. DONE AND ENTERED this 6th day of April, 2001, in Tallahassee, Leon County, Florida. BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 2001.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found: The Petitioner, Anna Torres, (hereinafter "Torres") worked for the Department of Transportation as a toll collector at the Golden Glades toll plaza and was a career service employee at all times pertinent to this case. At the time of the events giving rise to this case, Torres had been employed by the Department for about eight years. Torres was authorized to be on approved leave from October 24, 1989, through November 8, 1989. Torres used that period of leave to drive from South Florida to California to visit her parents. Torres was accompanied on the trip by her roommate. Torres was expected to return to work on November 9, 1990. Torres' father had been sick for several years and during her visit his condition took a sudden turn for the worse, as a result of which it was necessary for her father to be hospitalized. Torres was very concerned about her father's medical condition and felt a need to remain in California until it could be determined whether her father was going to recover from his worsened condition. To facilitate a longer stay in California, Torres' mother offered to pay Torres' airfare from California to Florida in the event Torres could not obtain additional leave, and the roommate offered to drive the car back. On November 7, 1989, Torres placed a telephone call from her parents' home in California to the Golden Glades toll plaza. She spoke with Mildred Burham, who was, and is, the assistant manager at the Golden Glades toll plaza and the supervisor of one of the shifts. Mildred Burham was not the supervisor of Torres' shift. The essence of what Torres told Mildred Burham is that, because of a family emergency, Torres needed to stay in California for another two weeks and wanted a two week extension of her vacation. Torres also asked Mildred Burham to convey the message to Vera Hulse. 1/ Vera Hulse was, and is, the manager of the Golden Glades toll plaza. At that time, Torres did not have sufficient annual or sick leave to cover an additional absence of two weeks. During the November 7, 1989, telephone conversation, Mildred Burham told Torres that she (Burham) would "check into" the request for additional leave and would convey Torres' message to Vera Hulse. Ms. Burham did not tell Torres that the two week extension of her vacation was approved. 2/ During the November 7, 1989, telephone call, Torres did not give Ms. Burham the telephone number at her parents' house in California. Instead, she told Ms. Burham that if they needed to get in touch with her, they could call Torres' son at her home in Florida and he could give them the California telephone number. When Ms. Burham told Vera Hulse about the telephone call from Torres, something apparently got lost in the translation. The message communicated to Ms. Hulse was to the general effect that Torres had called and said that because of a family problem Torres would not be back to Florida for another two weeks. Ms. Hulse was not advised that Torres was requesting leave; only that Torres would be two weeks late getting back due to a family problem. Torres was scheduled to work on the following days: November 9, 10, 11, 14, and 15, 1989. Torres did not report for work on any of those days, nor did she have any other communication with her employer after the telephone communication of November 7, 1990, until November 20, 1989, when Torres called again. Between November 9 and November 20, 1989, Ms. Burham and Ms. Hulse called Torres' home telephone number in an effort to contact her son and obtain the telephone number where Torres was staying in California. Those efforts were unsuccessful. On November 9, 10, 11, 14, and 15, 1989, Torres was placed on unauthorized leave without pay. On November IS, 1989, the Department sent Torres a letter advising her that because she had failed to report for work and had been on unauthorized leave without pay since November 10, 1989, she was deemed to have abandoned her position and to have resigned from the Career Service.
Recommendation For all of the foregoing reasons, it is recommended that the Department of Administration enter a final order in this case concluding that the Petitioner, Anna Torres, did not abandon her position of employment with the Department and ordering that she be reinstated to her position as a toll collector with back pay. DONE AND ENTERED at Tallahassee, Leon County, Florida, this 27th day of June, 1990. MICHAEL M. PARRISH, 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 27th day of June, 1990.
Findings Of Fact The Petitioner was employed as a road driver by Overnite on September 24, 1984. He was initially hired at Overnite's Memphis, Tennessee Terminal. In September, 1985, the Petitioner was diagnosed as having non-insulin dependent diabetes. He has remained a diabetic to the present. He became insulin dependent in approximately November of 1988. In March of 1986, the Petitioner was transferred, in accordance with his request, to the Overnite Terminal in Miami, Florida. This transfer was approved by the Miami Terminal Manager, Donald G. Collins. At the time of the transfer or at least within a few days after the Petitioner's transfer to Miami, Collins was aware that the Petitioner was diabetic because of he reviewed the Petitioner's personnel file which included a physical examination form. Petitioner was employed at the Miami Terminal for approximately twenty- one months. During that time, he worked under the supervision of the Terminal Manager, Don Collins. There is no persuasive evidence of conflicts between the Petitioner or Collins or any harassment of the Petitioner by Collins during the twenty-one months the Petitioner worked in Miami. The Petitioner was never disciplined, threatened, suspended, or reprimanded by Collins prior to his termination. The whole time he worked in Miami, the Petitioner had and was known to have diabetes. The Petitioner was discharged by Overnite on December 11, 1987. The reasons for the Petitioner's discharge were: Petitioner had possessed and carried a firearm on Company property; he carried a concealed weapon without a permit; he displayed a firearm to a black employee in the Overnite Jacksonville, Florida, terminal bunkhouse, intimidating the employee and causing him to become nervous and complain about the incident; and, he improperly maintained his driver's logs by failing to log in rest stops along his route in violation of Company and Department of Transportation regulations. The initial decision and recommendation to terminate the Petitioner was made by Gerald Rogers, a Safety Director for Overnite. Roger's job, commonly known as a "Safety Man", was to travel around the country and enforce safety and operating rules for Overnite. Rogers was not attached to any particular terminal and his job duties did not relate to the day-to-day operations, job assignments, or personnel workings in Miami or any other terminal. However, a Safety Man for Overnite, has the authority to terminate Road Drivers. At the time Rogers recommended the Petitioner be terminated, Rogers was conducting an unrelated investigation of theft at the Jacksonville, Florida, terminal. Prior to December 10, 1987, Rogers had never met nor spoken with the Petitioner. There is no indication that Rogers was ever aware that the Petitioner was a diabetic. Rogers had never spoken with Don Collins about the Petitioner prior to the instructions he gave Collins to terminate the Petitioner the day before the Petitioner's discharge. The events leading to Petitioner's discharge began when Petitioner, who is white, was involved in a couple of encounters with a black Driver from Gaffney, South Carolina, Dennis Dawkins. There is conflicting testimony as to what transpired during these incidents. In any event, it is clear that these incidents led to Rogers' discovery that Petitioner was carrying a gun on company premises. The first incident occurred approximately one month before Petitioner was fired. The Petitioner had made his normal run from Miami to Jacksonville and was taking "downtime" in the Jacksonville bunkhouse. Dawkins, who had known the Petitioner for a little more than a year, was also taking downtime at the Jacksonville Terminal. While the two men were in the bunkroom, Petitioner took his pistol out of his overnight bag and displayed it to Dawkins. Petitioner did not physically threaten Dawkins with the pistol, but he did point it at Dawkins repeatedly, despite Dawkins' insistence that he point the barrel in another direction. Dawkins asked Petitioner to put the pistol away saying that it was against Company policy to have it on the premises, and that he had a friend who was shot with a pistol and did not like to be around them. Despite Dawkins' request, the Petitioner did not put the weapon away. Dawkins left the room after several minutes. This incident caused Dawkins to become nervous, scared, and intimidated and, immediately upon leaving the bunkroom, Dawkins reported the incident to other Drivers, including Claude Walls, a Road Driver out of Birmingham, Alabama. Shortly after the incident involving the pistol, Petitioner informed Dawkins that he was prejudiced against blacks. On another occasion, Petitioner told Dawkins that when white people wanted to start a fight, a person would put a block on his shoulder and the other guy would knock it off. However, he said when black kids start fighting, they stick their finger up against the other one's nose. After making this statement, Petitioner placed his finger against Dawkins nose and Dawkins slapped it away. Dawkins became angry and told the Petitioner not to do that again. Dawkins reported this incident to the other Drivers. On or about December 9, 1987, Gerald Rogers was in Jacksonville to investigate thefts at the Jacksonville Terminal. During that visit, Rogers spoke with Claude Walls who reported the incident between Petitioner and Dawkins involving the pistol in the bunkroom. Walls also told Rogers about the incident when Petitioner stuck his finger in Dawkins face. When Dawkins arrived at the Jacksonville Terminal from his scheduled run from Gaffney, he was interviewed by Gerald Rogers regarding the matters conveyed to Rogers by Walls. Dawkins confirmed that he had been intimidated and had become nervous because of the Petitioner's handling of the pistol in the bunkroom and he confirmed the "nose pointing" incident. He also informed Rogers that Petitioner had stated he was prejudiced. The following day, when the Petitioner arrived from Miami, he was interviewed by Gerald Rogers. Rogers inquired as to whether the Petitioner was carrying a firearm on Company premises. Petitioner admitted that he was. Gerald Rogers asked Petitioner whether he had a permit to carry a concealed weapon, and Petitioner stated that he did not. Rogers also checked the Petitioner's log and compared it to the tach chart for his truck. This review indicated that Petitioner had made stops along his route which were not properly logged into his Driver's log. The Petitioner admitted his failure to log in all his stops. This failure on the part of the Petitioner was a violation of Company policy and Department of Transportation regulations. On December 10, 1987, after interviewing the Petitioner, Rogers contacted Don Collins and informed him that the Petitioner was carrying a weapon on Company premises in a concealed manner without a permit. He also told Collins about the improper log entries made by the Petitioner. Rogers recommended that the Petitioner be terminated by Collins upon his return to Miami. On December 11, the Petitioner returned to Miami and was terminated by Don Collins in the presence of the Operations Manager, Randy Gobble. The information investigated and discovered by Rogers and communicated to Don Collins was the basis for the termination of the Petitioner's employment on December 11, 1987. There is no dispute that the Petitioner carried a firearm at work during the majority of the time he was employed in Miami. He carried this weapon on Company property, both in his assigned truck and on his person, either in his pocket or in his overnight bag. Overnite has an unwritten policy that employees are not to carry firearms on Company property. This policy is not set forth in the Employee Handbook. The policy is disseminated to Drivers and employees during Overnite's orientation and through word-of-mouth instructions at various times. This policy was known to Don Collins and was one of the underlying bases for the decision to terminate the Petitioner's employment. However, it does not appear that all employees were aware of the policy. While the policy could have been more clearly announced and/or disseminated, the evidence did not support Petitioner's contention that Respondent's reliance on this policy to discharge Petitioner was a pretext. Petitioner denies any knowledge of a Company policy prohibiting the carrying of firearms on Company property. Nonetheless, it is clear that the policy was well known to most employees including those responsible for Petitioner's discharge. Petitioner contends that other Drivers possessed firearms on Company premises. However, there is no evidence that those persons responsible for the Petitioner's discharge (Don Collins and Gerald Rogers) had any knowledge of other employees who violated the Company policy regarding the possession of firearms on Overnite premises. No previous indicents of employees carrying firearms on Company premises had been brought to the attention of Overnite mangement. Petitioner contends that there were at least two other Road Drivers who carried weapons on company property. Both of those drivers worked at night and had little or no contact with Collins. Petitioner also contends that a Dock Worker, James Watkins, and a night-shift Dock Supervisor, Tom Gaskins, carried weapons. However, no persuasive evidence was presented that Collins or Rogers ever observed or had knowledge that either of these two Dock Workers, or any drivers, were in possession of weapons on Company premises. James Watkins admitted that he carried a weapon, as did his Supervisor, Tom Gaskins. However, he acknowledged that there was a Company policy prohibiting firearms on Company premises and that he knew that his possession of a weapon on the Miami Terminal dock was in violation of that Company policy. Furthermore, Watkins had a conversation with Tom Gaskins, his Supervisor, about carrying weapons at work and they had talked about hiding their weapons and keeping them out of sight as much as possible because they knew it was against Overnite policy. Watkins and Gaskins had "confined" their firearms and kept them out of sight because of the "obvious" -- they could get fired. In sum, it is clear that there was a company policy prohibiting the carrying of a weapon on company property and this policy was known to most, if not all, Overnite employees in the Miami Terminal. While some employees violated this policy, such activities were concealed from and not known to Don Collins at the time he discharged the Petitioner for violating the policy. Petitioner argues that Respondent's reliance on his carrying of a weapon as a grounds for discharge is pretext because his immediate supervisors, Tom Gaskins and Mark Carlson, had been aware for a long time that he carried a weapon on Company property. However, neither Gaskins nor Carlson was involved in or had knowledge of the Petitioner's discharge prior to its occurrence. Furthermore, Carlson states that he had previously informed the Petitioner that it was against Company policy to carry firearms on Company premises. The persons who were responsible for the discharge (Collins and Rogers) had no prior knowledge that Petitioner had been violating Company policy by carrying a weapon. It is clear that the violation of the prohibition against possession of firearms on Company premises is considered a major infraction by upper management. While some lower level supervisors may have been willing to overlook the violation, there is no basis for concluding that Collins' and Rogers' reliance on the policy was a pretext for discrimination. Furthermore, the context in which Rogers discovered that Petitioner was carrying a weapon appears to have magnified the significance of Petitioner's violation of this company policy. The Petitioner alleges in his Petition that the incident with Dawkins was contrived by Overnite subsequent to his discharge and in response to his claim of handicap discrimination. However, the evidence established that the Dawkins incident was known on December 11, 1987 and was one of the bases for the decision to terminate the Petitioner. The Employee Separation Sheet for the Petitioner, which was completed on December 11, 1987, noted that one of the reasons the Petitioner was being terminated was because he had displayed a firearm. Furthermore, the issue of whether Petitioner had displayed his pistol to a co-worker was raised and contested during Petitioner's attempt to gain unemployment benefits in January of 1988. Petitioner did not voice any complaint that he had been discharged because of his handicap until approximately March, 1988. In sum, the reasons given by Overnite for the Petitioner's discharge existed at the time he was terminated from employment and were not pretextual or contrived in response to the charge of discrimination which was not made until approximately three-and-a-half months later. One of the factors leading to the decision to discharge the Petitioner was the belief of Don Collins that the Petitioner was required to have a federal or state-issued permit to carry a concealed weapon in his truck. More than six months after the Petitioner's discharge, the Petitioner presented a statute to the Florida Commission on Human Relations which proved that he was not required to have a permit while he carried the pistol in his commercial vehicle in a zippered bag. Neither Collins nor Rogers were aware at the time of the Petitioner's discharge that Petitioner did not need a permit to carry the weapon in his zippered bag. While their interpretation or knowledge of the law was apparently in error, the evidence did not establish that their reliance on this factor was pretextual. Overnite employs other persons who are both non-insulin and insulin dependent diabetics. Some of these people have been employed and have been known diabetics since prior to the Petitioner's discharge. There is no indication that any of these individuals have been subjected to adverse or disparate treatment. Indeed, it appears that the Company went to great lengths to accommodate another Driver who became insulin dependent. That Driver was transferred to a Check-Bay Attendant position since Department of Transportation regulations prohibited that employee from driving a commercial vehicle while on insulin. There is no persuasive evidence that the Company discriminates against individuals who are diabetic. Because of freight back-ups over the weekend, Road Drivers in Miami were sometimes asked whether they would work the city routes on Mondays, their day off. This practice was common from the time Petitioner transferred to Miami in March of 1986 and continued for the year-and-a-half before he was discharged. The evidence established that the decision of whether to do the city runs was up to the Drivers. They were paid for the work if they chose to accept it. Shortly after his arrival in Miami, Petitioner volunteered to work on the city route on two or three occasions. Petitioner contends that his diabetic condition caused him to become easily fatigued which made it difficult for him to drive the city route on his days off. Petitioner claims that he was terminated because he refused to do the city runs. This contention was not supported by the evidence. The Road Drivers, for any reason or no reason, could opt not to work on their day off, which many did. There were no adverse repercussions to any Driver who did not work on Monday. The evidence established that there were almost always Road Drivers who wanted the extra money and would work on Monday. The Petitioner was not required or requested to do any city runs during the last year he worked for the company. In approximately November of 1986, all line haul road trips were canceled and the Road Drivers were required to do city routes for several weeks due to a backup in freight. Petitioner was absent from work due to illness for much of this time. The Petitioner did make several city runs during one particular week and informed Collins after he attempted to deliver a load of cigarettes that he could do no more because he became easily fatigued. It does not appear that the operation of the Terminal was in any way adversely affected by Petitioner's refusal to make any more city runs after approximately November of 1986. There is no persuasive evidence that the Petitioner's discharge was in any way motivated by or based upon his refusal to make city runs or the fact that he did not do city runs in 1987.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Human Relations Commission enter a final order denying Petitioner, Robert L. Fields' Petition for Relief. RECOMMENDED in Tallahassee, Leon County, Florida, this 24th day of September, 1991. J. STEPHEN MENTON 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 24th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5134 Only Respondent submitted a Proposed Recommended Order. The following constitutes my rulings on the proposed findings of fact submitted by the Respondent. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Adopted in substance in Findings of Fact 2. Adopted in substance in Findings of Fact 3. Adopted in substance in Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6 and 7. Adopted in substance in Findings of Fact 14. Adopted in substance in Findings of Fact 15. Adopted in substance in Findings of Fact 16 and 18. Adopted in substance in Findings of Fact 16 and 17. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 8 and 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11. Adopted in substance in Findings of Fact 12. Adopted in substance in Findings of Fact 13. Rejected as irrelevant and unnecessary. Adopted in substance in Findings of Fact 19. Adopted in substance in Findings of Fact 18. Adopted in substance in Findings of Fact 21. Adopted in substance in Findings of Fact 22. Adopted in substance in Findings of Fact 23. Adopted in substance in Findings of Fact 24. Adopted in substance in Findings of Fact 25 and 26. COPIES FURNISHED: Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Daniel E. Jonas, Esquire Jonas & Jonas 300-71st Street Suite 630 P. O. Box 41-4242 Miami Beach, Florida 33141 David L. Terry, Esquire Blakeney, Alexander & Machen 3700 NCNB Plaza Charlotte, North Carolina 28280
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on October 19, 2015.
Findings Of Fact Respondent manufactures and supplies residential windows and doors. On June 15, 2015, Petitioner was hired by Respondent to work as a Technician 1. Petitioner’s responsibilities included working on the manufacturing assembly line for windows. Petitioner’s employment with Respondent was subject to a 90-day probationary period which would have ended on or about September 15, 2015. However, on or about August 18, 2015, Respondent terminated Petitioner’s employment, and Petitioner contends that Respondent’s decision to terminate his employment resulted from unlawful discriminatory animus. Respondent disagrees with Petitioner’s allegations and contends that legitimate business reasons motivated its decision to terminate Petitioner’s employment with the company. Background Events Prior to August 4, 2015 The Employment Charge of Discrimination alleges that Petitioner believes that he was the victim of unlawful discrimination while working for Respondent. Petitioner alleges what will generally be described as three categories of conduct in support of his charge of discrimination.1/ First, Petitioner alleges that a white coworker named Adam “made a statement saying black people are a waste of space,” and that Petitioner’s immediate supervisor, Eric Christman, who is also white, laughed in Petitioner’s presence after hearing the offensive statement. Second, Petitioner claims Mr. Christman created a racially charged work environment by routinely segregating employees to work in groups based on race. Third, Petitioner claims that when he complained to Respondent’s office of human resources about Mr. Christman’s behavior, Mr. Christman retaliated against him by terminating his employment with the company, and that the decision to terminate his employment was the result of illegal racial animus. Adam Petitioner and an employee named Adam (last name unknown) were hired at the same time and worked on the same team. Although Adam did not testify during the final hearing, the undisputed evidence is that Adam is an individual who identifies as white. At some point during July 2015, Petitioner, Adam, Mr. Christman, Yvonnte Hartsfield, and a few other workers, were on lunch break when Petitioner and Adam started conversing. During the course of the conversation, Adam stated that “blacks are a waste of space.” Both Petitioner and Ms. Hartsfield were offended by Adam’s statement. Petitioner testified that Mr. Christman laughed in response to Adam’s statement and took no action against Adam for making the offensive remark. Ms. Hartsfield corroborated Petitioner’s testimony and testified that she also witnessed Mr. Christman laughing in response to Adam’s offensive statement. Petitioner did not report the incident to Respondent’s office of human resources or to anyone else working in a managerial capacity at the facility. Segregated Work Environment There were approximately 12 individuals who worked on Petitioner’s team while he was employed by Respondent. Petitioner testified that there were times during his employment when production volume in his assigned work area had decreased which resulted in Mr. Christman temporarily reassigning workers to other work-groups throughout the plant. According to Petitioner, it was routinely the case that Mr. Christman reassigned the black and Hispanic workers to other work-groups, while allowing the white workers to remain in their original work assignments. This practice by Mr. Christman resulted in the minority workers having a more labor intense work day, while the white workers in Mr. Christman’s group were essentially idle due to the lack of work. Two of Petitioner’s coworkers testified that they too had observed how the work environment had been segregated in this manner. According to former PGT employee Chris Russo, who is white, “[i]t was like, there was a bunch of, like, racist redneck people there, and they had black people over there, and they’d always keep us separated.” Ms. Hartsfield testified that it appeared to her that Mr. Christman sent the two black workers (her and Petitioner) and the Mexican worker to other production lines while the Caucasians workers remained at their regular work stations. Personal Cell Phone Usage Respondent provides to all of its employees a “PGT Team Member Handbook” (handbook), which Petitioner received on his first day of employment. The handbook, with respect to personal cell phone usage, provides as follows: While at work, team members are expected to exercise the same discretion using personal cell phones as they would using PGT phones. Personal calls and texting during work hours, regardless of the phone used, can interfere with productivity and be distracting to others. Team members are expected to make personal calls during breaks or lunch and should communicate with friends and family members to ensure they are aware of the policy. Team members must inform their leader of the need to use a cell phone while working on the line and obtain permission (which will be granted/denied on a case-by- case basis). Failure to do so may result in disciplinary action. In addition, company- issued cell phones should be turned off or set to silent or vibrate mode during meetings and in other locations where incoming calls may disrupt normal workflow. During July 2015, Mr. Christman, on several occasions, observed Petitioner using his cell phone while on company time. Apparently, cell phone use by employees while working in the production area had become an issue; so sometime in July 2015, members of Respondent’s management team called a group meeting and reminded Petitioner, and other members of the window assembly team, of the company’s cell phone usage policy. Within a few days of the group meeting, Mr. Christman, on August 4, 2015, received on his cell phone a photo image of Petitioner using a cell phone while on the production line. Adam had taken the picture and sent it to Mr. Christman. Soon after receiving the picture of Petitioner on his phone, Mr. Christman met with Petitioner and issued him a “confirmation of conversation,” which is the second step, following a verbal warning, on Respondent’s progressive discipline scale. The confirmation of conversation provides in part that Petitioner is expected “to be in compliance with company policy, [that] [i]mmediate and sustained improvement is expected, [and] failure to correct the [behavior] may result in further disciplinary action up to and including termination of employment.” On August 5, 2015, the day after Petitioner received the confirmation of conversation, he contacted Respondent’s office of human resources and complained that Mr. Christman had treated him unfairly and was discriminating against him on the basis of race. In response to Petitioner’s concerns, a meeting was held on August 6, 2015, where Petitioner was able to meet with Mr. Christman; Ron Clarke, who was Mr. Christman’s supervisor; and Karla Lugo, a representative from human resources. Petitioner requested a transfer to another unit, but after it was explained to him by Mr. Clarke that he needed to stay in his current unit to better learn the job, Petitioner agreed to remain in his position which was supervised by Mr. Christman. Petitioner suggests that Mr. Christman was motivated by racial animus when he disciplined him for unauthorized cell phone usage. Petitioner admitted during the final hearing that on the day in question he was in violation of Respondent’s cell phone usage policy. Nevertheless, Petitioner contends that employees often use cell phones while working and, to his knowledge, are not disciplined, as he was, for their transgressions. Yvonnte Hartsfield has worked for Respondent for several years assembling doors and windows. Ms. Hartsfield testified that she often observed employees using their cell phones while assembling window frames. Ms. Hartsfield testimony is, however, imprecise regarding when her observations were made in relation to the meeting that management had with employees in July 2015 during which employees were told that they were expected to comply with the company’s cell phone usage policy. Petitioner offered no credible evidence that he was treated differently from other employees who, after being reminded of the company’s cell phone usage policy, continued to use their cell phones while working on the production line. Retaliation In Petitioner’s Employment Charge of Discrimination, he mentions several times that he complained to human resources about Mr. Christman’s alleged racist behavior and that Mr. Christman treated him worse after learning of his complaints. The credible testimony establishes that Petitioner did not complain to management about any issues of discrimination until August 5, 2015, which is the day after Petitioner received the confirmation of conversation resulting from his unauthorized cell phone usage. Petitioner offered no credible evidence of any retaliatory actions taken against him by Mr. Christman between August 5 and August 18, 2015, the date upon which Petitioner’s employment was terminated. Respondent’s Reason for Firing Petitioner On August 13, 2015, Petitioner, while operating machinery known as a frame welder, caused the machine to malfunction, which resulted in damage to a window frame and a three and one-half hour loss of use of the machine while repairs were performed. Corey Marks, who works for Respondent as a maintenance technician, testified that he serviced the frame welder in question on August 13, 2015, after Petitioner caused the machine to fail. Mr. Marks credibly testified that he performed a failure analysis on the machine and determined that the problem in question occurred as a result of Petitioner not operating the machine properly. When questioned by Respondent about what caused the frame welder to malfunction, Petitioner offered two theories, neither of which were confirmed by Respondent’s investigation as to the cause of the malfunction. First, Petitioner advised that the machine unexpectedly started on its own, and second that the machine has a “hair trigger” which resulted in Petitioner inadvertently starting the machine. Mr. Marks’ failure analysis did not substantiate either of Petitioner’s theories as to why the machine failed. Respondent, when considering that Petitioner, while on employment probation, had been disciplined for unauthorized cell phone usage and, through inattentiveness, had caused a substantial delay on productivity by damaging the frame welder, decided to terminate Petitioner’s employment. The decision to terminate Petitioner was made by Respondent’s department of human resources. No Evidence of Pretext Petitioner claims that other individuals had damaged Respondent’s machines and were not terminated as a result thereof. Respondent, on cross-examination, elicited the following testimony from Petitioner: Q: You said earlier that there were white employees who broke machines with no action taken. Do you recall that testimony? A: Yes. Q: Who were those employees? A: I was new at the time. So I don’t know. Q: Can you name a single one? A: Nope. Q: Can you name a single machine that you saw broken by a white employee against whom no action was taken? A: No. Hearing Transcript, pgs. 82-83. Mr. Russo, who is white, testified that a frame welder malfunctioned once while he was operating the machine and that he was not disciplined as a result of the incident. The scenario described by Mr. Russo is not comparable to Petitioner’s situation because Petitioner’s incident occurred as a result of operator error, as opposed to an equipment malfunction. Petitioner has failed to offer evidence which establishes that Respondent’s reason for terminating his employment is simply a pretext for unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order finding that Respondent, PGT Industries, did not commit an unlawful employment practice as alleged by Petitioner, Alain Blaise, and denying Petitioner's Charge of Discrimination. DONE AND ENTERED this 2nd day of March, 2017, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 2nd day of March, 2017.
